|
;
;
º
º
.* ºr
º **
3. * : *.

s
:
:
..
§
--
to
*
;
c-Rº/~~~~~~~~~~~~~~~~, ~.
"I EL RX
3.
2.
|PHHIS FFLCH H|S|||||||}|| |
&
§
BEQUEATHED §
TO "I FI E
UNIVERSITY OF MICHIGAN
IR Y T H E
HON. A LPH E US FELCH.
K
LiS; ) (3.
rôx^^^^^^xászaszászászászèrºxixºSrászóSzászászászászászáscºvá.













PROPOSED REVISION
OF THE

G E N E R A L STATUTE s
OF THE ,-
f J-
(, H
*__
----------" -
*~~~
G
AS RE PORT E D TO THE L E GIS LA TU R E
AT ITS ANNUAL SESSION IN 1846.
BY
SAN FOR D M. G. REEN,
COMMISSIONER OF REVISION.
JDetroit:
BAGG & HARMON, PRINTERS TO THE STATE.
ANALYSIS
OF THE SEVERAL TITLES AND CHAPTERS EMBRACED IN THE PROPOSED REVISION
OF THE STATUTES.
TITLE. I.
Of the Stalutes, and the Legislature.
º Page.
Chapter 1—Of the Statutes, - |
Chapter 2—Of the Legislature, - * 5
TITLE II.
, Of Elections other than for Militia and Township Officers.
Chapter 3–Of general and special elections, - - - - 8
Chapter 4–Of notifying elections, 10
Chapter 5–Of the manner of conducting the general election, - 12
Chapter 6—Of the canvass by the inspectors, e 17
Chapter 7—Of the county canvass and proceedings thereon, - 18
Chapter 8—Of the district canvass, - e - - 24
Chapter 9—Of the state canvass, - . . . 25
Chapter 10–Miscellaneous provisions relating to elections, 28
Chapter 11—Of the election of representatives in congress, electors of president and vice president,
and senators in congress, *** 29
TITLE III.
Of Certain State Officers, of Counties and County Officers ; Of Resignations, Vacanceis and Removals, and
- Supplying Vacancies.
Chapter 12—Of certain state officers, 31
Chapter 13—Of counties, 41
Chapter 14—Of county officers, 47
Chapter 15–Of resignations, vacancies and removals, and supplying vacancies, 70
TITLE IV.
Of Townships and of Township Officers.
Chapter 16–Of the powers and duties of townships, and election and duties of township. officers, 75
Chapter 17—Of the division of townships, - 93
Chaptor 18–Of ſences and fence viewers; of pounds and the impounding of cattle, • 94
Chapter 19—Of penalties for violating election laws, 100
TITLE v.
Of Taaces and Duties.
Chapter 20—Of the assessment and collection of taxes,
Chapter 21—Of specific state taxes and duties,
TITLE VI.
Of Highways, Bridges and Ferries.
Chrpter 22—Of the officers having the care and superintendence of highways and bridges, and their
general powers and duties,
Chapter 23—Of persons liable to work on highways, and making assessments therefor,
Chapter 24—Oſ the duties of overseers in regard to the performance of labor on highways, and of the
performance of such labor or the commutation therefor, and the application of moneys
by the commissioners,
Chapter 25—Of laying out, altering and discontinuing public and private roads,
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
26—Of the obstruction of highways, encroachments thereon, and penalties,
27—Of the erection, repairing and preservation of bridges,
28–Miscellaneous provisions of a general nature,
29—Of the regulation of ferries,
TITLE VII.
Of the Regulation of Trade in certain cases.
30—Of the inspection of provisions and other merchandize, and regulations respecting the
sale thereof.
31—Oſ weights and measures,
32—Of bills of exchange and promissory notes,
33—Of limited partnerships,
34––Of money of account, and of the interest of money, and on judgments, verdicts, &c.,
TITLE VIII.
Of the Public Health.
35—Of the preservation of the public health, quarantine, nuisances, and offensive trades,
36—Of medical societies, and regulations concerning the practice of physic and surgery,
TITLE IX.
Of the Internal Police of the State.
37—Of the support of poor persons by their relatives,
38—Of the support of poor persons by counties,
39—Of disorderly persons,
40—Of the racing of animals,
41—Of taverns and other licensed houses,
42—Of the maintenance of illegitimate children, - .
43—Of the observance of the first day of the week, and the prevention and punishment of
immorality, s
Chapter 44—Of the law of the road and the regulation of public carriages,
Chapter 45—Of the firing of woods and prairies,
Chapter 46—Of timber and lumber floating on waters, or carried upon adjoining lands,
Chapter
Chapter
Chapter
47—Of lost goods and stray beasts,
48—Of fire departments in cities and villages,
49—Of certain municipal rgeulations of police,
Chapter 50—Of unauthorized banking, and certain notes or evidences of debt issued by banks,
Chapter 51—Of the destruction of wolves and other noxious animals, -
102
130
1 38
143
1 #5
150
157
160
161
162
193
203
210
213
221
224
225
231
233
238
240
241
244
246
248
250
TITLE X.
gº
Of Corporations.
Chapter 52—Of religious societies,
Chapter 53—Of libraries and lyceums,
Chapter 54—Of burying grounds, . $
Chapter 55—General provisions relating to corporations,
TITLE XI. *
of Public Instruction.
Chapter 56—Of the superintendent of public instruction,
Chapter 57—Of the university and branches,
Chapter 58—Of primary schools,
TITLE XII.
Of the Public Lands and the Superintendence and Disposition thereof.
Chapter 59—Of the state land office, and the officers connected therewith,
Chapter 60—Of the superintendence and disposition of the public lands, 4
TITLE XIII.
Chapter 61—Of the regulation of Internal Improvement,
TITLE XIV.
Of Real Property, and of the Nature, Qualities, and Alienation of Estates therein.
Chapter 62—Of the nature and qualities of estates in real property, and the alienation thereof,
Chapter 63—Of uses and trusts,
Chapter 64—Of powers,
Chapter 65—Of alienation by deed, and the proof and recording of conveyances, and the cancelling
of mortgages,
Chapter 66–Of Estates in dower, by the curtesy, and general provisions concerning real estate,
TITLE XV.
Chapter 67—Of title to real property by descent,
TITLE XVI.
Chapter 68–Oſ wills of real and personal estate,
TITLE XVII.
Of the Settlement of Estates of Dsceased Persons.
Chapter 69—Of letters testamentary and other proceedings on the probate of a will,
Chapter 70—Of the administration and distribution of the estates of intestates,
Chapter 71—Of the inventory and collection of the effects of deceased persons,
Chapter 72–Of the payment of debts and legacies of deceased persons,
299
302
316
326
333
337
346
354
361
364
372
375
384
- 2
Wi
Chapter 73—Of rendering accounts by executors and administrators,
Chapter 74—Of the partition and distribution of estates,
Chapter 75—Of probate bonds and the prosecution of them, . . - *
Chapter 76—Of the conveyance of real estate by executors and administrators in certain cases,
TITLE XVIII.
Of Tille to Real Estate by Special Provisions of Law.
Chapter 77—Of the sale of lands for the payment of debts, by executors, administrators and guardians,
Chapter 78—Of the sale of lands of minors and other persons under guardianship, and securing the
proceeds for their use, - -
Chapter 79—Of the sale of real estate on executions,
TITLE XIX.
Of Fraudulent Conveyances and Contracts relative to Real and Personal Property.
Chapter 80—Of fraudulent conveyances and contracts relative to lands, -
Chapter 81—Of fraudulent conveyances and contracts relative to goods, chattels, and things in action,
Chapter 82—General provisions relating to fraudulent conveyances and contracts,
TITLE XIX.
Of the Domestic Relations.
Chapter S3–Oſ marriage and the solemnization thereof,
Chapter 84—Of divorce, -
Chapter 85—General provisions concerning husband and wiſe,
Chapter 86—Of guardians and wards,
Chapter 87—Of Masters, apprentices and servants,
TITLE XXI.
Of Courts and Judicial Officers.
Chapter 88—Oſ the supreme court,
Chapter 89—Of the circuit courts,
Chapter 90—Of the court of chancery,
Chapter 91—Of the probate courts,
Chapter 92—Of the district courts for the counties of Wayne, Oakland, Washtenaw and Jackson,
Chapter 93–Oſ courts held by justices of the peace,
Chapter 94—Of courts of special sessions,
Chapter 95—Of supreme court cômmissioners, attorneys and other judicial officers,
Chapter 96–General provisions concerning courts, and the powers and duties of certain judicial officers,
TITLE XXII.
º
Of Proce dings in Personal Actions.
Chapter 97—Of the commencement of suits, of process, and the service and return of original wits,
Chapter 98—Of bail in civil actions, and proceedings connected therewith,
Chapter 99—Of pleadings and set offs,
Chapter 100—Of consolidating and referring causes,
Chapter 101—Of death, marriage, or other disability occurring aſter the commencement of the suit,
Chapter 102—Of evidence, -
Chapter 103—Of the trial of issues of fact,
Chapter 104—Of amending pleadings and proceedings,
Chapter 105—Of the assessment of damages,
Chapter 106–Of judgments and executions,
Chapter 107–Provisions concerning actions and proceedings in certain cases,
396
399.
403:
406
4.09%
420,
425,
437
439.
442.
444
447
455
459.
466.
471.
477
578,
584
589.
594
601 .
604
608.
628
643
646
650
663.
TITLE XXIII.
Of Suits Relating to Real Property.
Chapter 108—Of the action of ejectment,
Chapter 109—Of the partition of lands owned by several persons,
Chapter 110—Of waste, -
Chapter 111—Of trespass on lands,
Chapter 112—Of actions for private nuisances,
Chapter 113—General provisions concerning actions relating to real estate,
TITLE XXIV.
Of Proceedings in Special Cases.
Chapter 114—Of proceedings against debtors by attachment,
Chapter 115–Oſ proceedings by and against infants,
Chapter 116–Of proceedings by and against corporations in courts of law,
Chapter 117—Of proceedings against corporations in chancery, --- ſº
Chapter 118–Of the voluntary dissolution of corporations and of the abatement of suits by and against
them, *
Chapter 119—Oſ proceedings by and against public bodies having certain corporate powers, and by and
against officers representing them,
Chapter 120–Of suits against sheriffs and other officers on their official bonds,
Chapter 121—Of proceedings as for contempts, to enforce civil remedies, and to protect the rights of par-
ties in civil actions,
Chapter 122—Of proceedings for the collection of demands against ships, boats and vessels,
Chapter 123–Of proceedings to recover the possession of land in certain cases,
Chapter 124—Of the action of replevin,
Chapter 125—Of distraining and replevying beasts,
Chapter 126—Of the lien of mechanics and others,
Chapter 127—Of the disposition of unclaimed property in certain cases,
Chapter 128–Of the collection of penalties, forfeitures and fines, and of ſorſeited recognizances,
Chapter 129—Of arbitrations,
Chapter 130—Of the foreclosure of mortgages by advertisement,
Chapter 131—Of the draining of swamps and other low lands,
Chapter 132—Of the support and regulation of mills,
Chapter 133–Proceedings to compel the delivery of books and papers by public officers, to their suc-
cessors,
TITLE XXV.
Of Writs of Habeas Corpus, Scire Facias, Informations, Writs of Maun, Prohibition, of Error
Certiorari.
Chapter 134—Of the writs of habeas corpus and certiorari, *A
Chapter 135–Oſ writs of scire facias,
Chapter 136-Of informations in the nature of a quo warranto, and in certain other cases,
Chapter 137–Qf writs of mandam is and prohibition,
Chapter 138–Of writs of error and certiorari,
TTILE XXVI.
Of the Limitation of Actions.
Chapter 139—Of the limitation of actions relating to real property,
Chapter 140—Of the limitation of personal actions,
TITLE XXVII.
Of the punishment of Fraudulent Debtors, and the relief of Insolvent Debtors.
Chapter 141—Of the punishment of ſraudulent debtors,
vii
711
717
719
7:21
727
7.35
736
• 739
746
754.
760
768
772
780
782
790
794
798
801
804
and
807
822
826
834
838
841
847
viii
Chapter 142—Of the relief of insolvent debtors, on the application of an insolvent and his creditors, 852
Chapter 143—Of the relief of insolvent debtors from imprisonment. 859
Chapter 144—General provisions applicable to proceedings under the two last preceding chapters, 862
Chapter 145—Of the powers, duties and obligations of assigns of insolvent debtors under this title, 867
Chapter 146—Of the relief of poor debtors from imprisonment, 878
TITLE XXVIII,
Of Zdmilling prisoners to the Liberties of Jarls, of Escapes, Proceedings on the Election of a new Sheriff, and
General Provisions relating to Jails and the confinement of Prisoners therein.
Chapter 147—Of admitting prisoners to the liberties of jails; of escapes, and proceedings on the elec-
tion of a new sheriff, - - * 882
Chapter 148—General provisions relating to jails and the confinement of prisioners therein, 889.
TITLE XXIX.
Of Costs and the Fees of Officers.
Chapter 149—Of costs, and the recovery and taxation thereuf, in civil cases, 894,
Chapter 150—Of the fees of certain officers, - - 902
TITLE XXX.
Of Crimes and the Punishment thereof.
Chapter 151—Of the rights of persons who are accused of crimes and offences, 927
Chapter 152—Of crimes against the sovereignty of the state, 928
Chapter 153—Of offences against the lives and persons of individuals, 929
Chapter 154—Of offences against property, * 934
Chapter 155—Of ſorgery and counterfeiting, 946
Chapter 156—Of offences against public justice, 951
Chapter 157—Of offences against the public peace, 95.7
Chapter 158—Of offences against chastity, morality and decency, 960
Chapter 159—Oſ offences against the public health, 965
Chapter 160—Oſ offences against the public policy, - 966
Chapter 161—General provisions concerning crimes and punishments, 967
TITLE XXXI.
Of Proceedings in Criminal Cases.
Chapter 162—Of proceedings to prevent the commission of crime, 972
Chapter 163—Of the arrest and examination of offenders, cornmitment for trial and taking bail, 975
Chapter 164—Of indictments and proceedings before trial, 982
Chapter lò5—Of trials in criminal cases, 989
Chapter 166—Of new trials and exceptions in criminal cases, & 991
Chapter 167—Of coroner's inquests, 992
Chapter 168—Oſ judgments in criminal cases, and the execution thereof, 995.
Chapter 169—Of ſees of officers and ministers of justice in criminal cases, 997
Chapter 170—Miscellaneous provisions concerning proceedings in criminal cases, 1000,
TITLE XXXII.
Of Imprisonment for Offences, and the Government and Discipline of Prisons.
Chapter 171—Of county jails and the regulation thereof, 1005
Chapter 172—Oſ the state prison, and the government and discipline thereof W 1010
sTATE OF MICHIGAN.
LEGISLATURE-Regular Session, 1846.
PROPOSED REVISION OF THE STATUTES.
*
*-
AN ACT
FOR REVISING AND CONSOLIDATING THE GENERAL STATUTES OF THE STATE OF .*
MICHIGAN.
1 Whereas, It is expedient that the general statutes of this state should be consolidated, revised and amend-
2 ed, and arranged in appropriate titles, chapters and sections, and that omissions should be supplied:
3 Therefore,
1 Be it enacted by the Senate and House of Representatives of the State of Michigan, In manner follow-
2 ing, that is to say:—
TITLE I.
OF THE STATUTES AND THE LEGISLATURE.
CHAPTER 1.-Of the Statutes.
CHAPTER 2. —Of the Legislature.
CHAPTER 1.
OF THE STATUTES.
Q * , e. e Original ac's-
1 SECTION 1. The original acts of the legislature shall be depositéd with, and kept by, the secretary of state; wº.º.
2 and they shall be recorded by him in books to be provided by him at the expense of the state, in the order in
* - e & e law's 1837-8. R.
3 which they were passed; and he shall carefully compare such records with the original acts. º ; f
1 SEC. 2. Every statute which does not expressly prescribe the time when it shall go into operation, shall when aut.
to take eſſect.
2 take effect throughout the state on the thirtieth day next after that on which it shall be approved by the go-
CHAP. 1.] + . . . ( 2 ) . * , - "[Trrie 1.
3 vernor, or otherwise become a law according to the provisions of the constitution.
Rulcs of con-
struction of sta-
! UlteS. 1 SEC. 3. In the cºnnelion of this statutes of the state, the following rules shall be obsérved, unless such
2 construction would be inconsistent with the manifest intent of the legislature ; that is to say:
3 1. All words and phrases shall be construed and understood according to the common and approved usage
4 of the language ; but technical words and phrases, and such as may have acquired a peculiar and appropri.
5 ate margin the law, shall be construed and understood according to such peculiar and appropriate Iſleºl Il-
6 ing.
ºf 2. Every word importing the singular number only, may extend to and embraee the plural number, and
8 every word importing the plural number, may be applied and limited to the singular number; and ev-
9 ery word importing * masculine gender only, may extend and be applied to females as well as males :
10 3. All words purporting to give a joint authority to three or more public officers or other persons, shall be
11 construed as giving such authority to a majority of such officers or other persons, unless it shall be other-
12 wise expressly declared in the law giving the authority :
13 4. The words “annual meeting,” when applied to townships, shall be construed to mean the annual meet-
14 ing required by law to be held in the month of April :
15 5. The word “grantor,” may be eonstrued as including every person from or by whom any freehold es-
16 tate passes, in or by any deed; and the word “grantee,” as including every person to whom any such in-
17-terest or estate passes in like manner :
18 6. The word “inhabitant,” may be eonstrued to mean a resident of a city, township, village, district, or
19 county :
20 7. The words “insane person,” shall be construed to include an idiot, a non compos, lunatic, and distract-
21 ed person :
22 8. The word “issue,” as applied to the descent of estates, shall be construed to include all the lawful li-
23 neal descendants of the ancestor:
24 9. The word “land,” or “lands,” and the words “real estate,” shall be construed to include lands, te-
25 nements, and real estate, and all rights thereto, and interests therein :
26 10. The word “month,” shall be construed to mean a calendar month ; and the word ‘ year,” a calen-
&
CHAP. 1.] . ( 3 ) [TITLE L
27 dar year; and the word “year” alone, shall be equivalent to the words “year of our Lord : ”
28 11. The word “oath,” shall be construed to include and be equivalent to the word “affirmation,” in all
29 cases where by law an affirmation may be substituted for an oath ; and in like cases the word “sworn ,
30 shall be eonstrued to inelude, and be equivalent to the word “affirmed : ”
31 12. The word º person,” may extend and * nºis to bodies politic and corporate, as well as to indivi-
32 duals :
33 13. The words “preceding” and “ſollowing,” when used by way of reference to any chapter or see-
34 tion of these revised statutes, shall be construed to mean the title, chapter or section next preceding, or next
35 ſollowing that in which such reference is made, unless when some other title, chapter or section is express-
36 ly designated in such reference:
37 14. In all cases in which the seal of any court or public office man be required to be affixed to any paper
38 issuing from such court or office, the word “seal,” shall be construed to mean the impression of such seal
39 on such paper alone, as well as the imprisºn of such seal mixed thereto by means of a wafer or wax :
40 15. The word “state,” when applied to the different parts of the United States, shall be construed to ex-
41 tend to, and include the district of Columbia, and the several territories belonging to the United States ;
- 42 and the words “United States,” shall be construed to include the said district and territories :
43 16. The word “will,” shall be construed to include codicils, as well as wills :
44 17. The words “written,” and “in writing,” may be construed to include printing, engraving and litho-
45 graphing; except that in all cases when the written signature of any person is required by law, it shall
46 always be the proper hand writing of such person ; or in case he is unable to write, his proper mark:
47 18. All acts of incorporation shall be deemed public acts, and as such, may be declared on, and given in
48 evidence without specially pleading the same :
49 19. The words “general election,” shall be construed to mean the election required by law to be held
50 in the month of November :
- - Repeal of repeal-
ing statute.
1 Sec. 4. Whenever a statute, or any part thereof shall be repealed by a subsequent statute, such statute,
2 or any part thereof, so repealed, shall not be revived by the repeal of such subsequent repealing statute.
1 SEC. 5. The secretary of state, immediately after any act of the legislature shall have been deposited śin
- • - - ate to furni
- * copies of ºte:
- for publication.
CHAP, 1.] : - - ( 4 ) [TITLE 1.
2 with him, shall f urnish a true copy thereof to the publishers of the state paper, who shall immediately pub-
1s59, p. 154. 3 lish the same in such paper.
gººn of 1 Sec. 6. The secretary of state shall be entitled to one copy of the statutes for the use of his office,
2 and he shall annualy, and from time to time, immediately after their publication in volumes, deposit thirty
3 copies thereof is the state library, for the use of the legislature, and distribute to the following public
4 officers, persons, corporations and societies, one copy each, that is to say :
who entitled to 5 The governor, lieutenant governor, Senators and members of the house of representatives, the secre-
copy.
6 tary of the senate and clerk of the house of representatives, the senators and representatives of this
7 state in congress, the secretary of state of the United States, chancellor, each judge of a court of re-
8 cord in this state, attorney general, auditor general, state treasurer, adjutant general, the president
9 of the board of internal improvements, superintendent of public instruction, superintendent of the state
10 prison, judge of the district court of the United States for the district of Michigan, clerk of the last named
11 court, the several clerks and registers of courts of record, masters in chancery, prosecuting attorneys, she-
12 riffs, keepers of jails, judges of probate, registers of deeds, county treasurers, county serveyors, coroners,
13 justices of the peace, supervisors and clerks of townships, for the use of their townships, the historical so-
14 ciety of Michigan, the library of the university of Michigan, and of each branch thereof, the governor
15 of each of the states and territories of the United States, for the use of such state or territory.
County Cicrks to 1 SEC. 7. Each county clerk within one month after the adjournment of the legislature in each year, shall
furnish Sec'y of
State with num-
ber of officers &e. º - e
º º: 2 forward to the secretary of state, a statement of the number of officers, persons, corporations and so-
of laws.
3 cieties in his county, entitled by law to a copy of the laws of the next preceding session of the legislature;
4 and as soon as the same are ready for distribution, the secretary of state shall, at his office, deliver to such
- 5 clerk, or to his order, properly packed, the number of copies set forth in such statement, and take a receipt
1837-8, p. 251.
6 therefor.
1 *c. 8. The county clerk, on the receipt of the laws, shall give notice thereof in a newspaper published in
County Clerk to
give notice, and -
take receipt. 2 hi if th e 4 º d
his county, if there be one, and if not, by posting up notices in three or more of the most public places
& therein ; and he shall take and preserve in his office, a receipt for each copy distributed by him, from the
4 person entitled to and receiving the same,
CHAP. 21. . . ( 5 ) - [TITLE 1.
1 SEc. 9. Every person receiving a copy of the laws on account of any office held by him, shall, when he
Officer recciv-
ing statutes, to
2 ceases to hold such office, deliver over to his successor in office all laws received by him as such officer, "...”
3
and take the receipt of his successor therefor,and deposite such receipt,if a township officer, with the township
4 clerk, and if a county officer, with the county clerk ; and any person who shall neglect or refuse to deliver
5 over to his successor in office, all laws received by him as aforesaid, shall be liable to such successor in an
6
action for money had and received, to the full amount it shall cost him to furnish himself with such laws,
and costs of suit; which action shall, on request, be brought and prosecuted by the prosecuting attorney of
7
8
the county.
1
SEC. 10. The expense of publishing the notice aforesaid and of transporting the laws from the office of the Expense • IMO-
\ tice and trans-
portation to be
secretary of state to the county clerk’s office, shall be allowed and paid as other county expenses. paid by county,
2
1 Sec. 11. As soon as the laws are ready for distribution, the secretary of state shall give notice thereof, by Sec'y to give
- notice .#.
e e * • laws are ready
publishing the same for three weeks in the state paper ; and he shall also transmit a written or printed for distribution.
2
3
notice thereof to each county clerk; and the expense of such publication, and all accounts for boxes
4 ſurnished to the secretary of state, for packing and distributing the laws in, when certified by him to be cor-
5
rect, shall be audited and allowed by the auditor general, and paid out of the state treasury.
CHAPTER 2.
OF THE LEGISLATURE.
\
1 SECTION 1. No officer of the senate or house of representatives, while in actual attendance upon the du-
- Officers of Sein-
- tº e ate &c., when
2 ties of his office, shall be liable to arrest on civil process. nº to be atter-
1 SEC. 2. Each house may punish as a contempt, and by imprisonment, a breach of its privileges, or the pri-commutation of
Michigan, art. 4,
g sec. 9.
2 vileges of its members, but only for one or more of the following offences, to wit:
3 1. The offence of arresting a member or officer of the house, or procuring such member or officer to be
4
arrested, in violation of his privilege from arrest:
2
CHAP. 2.] ( 6 ) [TITLE 1.
5 2. That of disorderly conduct in the immediate view of the house, and directly tending to interrupt its
6
proceedings:
7 3. That of refusing to attend, or be examined as a witness, either before the house, or a committee, or
8
before any person authorized by the house, or by a committee, to take testimony in legislative proceedings:
9 4. That of giving or offering a bribe to a member, or of attempting by menace, or other corrupt means
10 or device, directly or indirectly to control or influence a member in giving his vote, or to prevent his giv-
11 ing the same ; but the term of imprisonment which such house may impose for any contempt specified in
2
12 this section, shall not extend beyond the same session of the legislature.
ºf 1 Sec. 3. Every person who shall be guilty of any contempt specified in the preceding section, shall also be
IIlê81110T,
2
deemed guilty of a misdemeanor, and on conviction thereof shall be punished by imprisonment in the
3 state prison not exceeding five years, or by imprisonment in the county jail not exceeding one year, or by
4
fine not exceeding one thousand dollars, or both such fine and imprisonment in the county jail, in the discre-
tion of the court.
5
1 SEc. 4. All persons intending to apply to the legislature for the erection of a new county or township,
Notice of certain
ºn” to
C g|Weſl. * t e & e e
g 2 or for the incorporation of a city or village ; or for any alteration of the bounds of any county, township,
3 city or village, or for the removal of any seat of justice; or for the imposing of a tax for any local purpose
4 in any county ; or for any act of incorporation ; or for an alteration, amendment or extension of any char-
5 ter; or for a release of lands escheated to the state; or for the passage of a law authorising the construc-
6 tion of a dam in or across any stream or river of this state, which is by law a public highway, shall give
7 notice of such intended application as is provided in the next section.
1 SEC. 5. Such notice shall be given by advertisement, briefly specifying the substance and objects of the
How notice to
be given.
2
application, to be published for at least six weeks successively, immediately before the first day of the ses-
3
sion at which the same is to be made, in a newspaper printed in the county, or in each of the counties where
4
the objects of such application are intended to be carried into effect, if there be one printed in such county
or counties, and if not, then in the state paper ; and in all cases of intended application for an act of in-
5
CHAP. 2.] ( 7 ) - [TITLE 1.
6 corporation or alteration, amendment, or extension of any charter, or a release of lands escheated to the
7 state, such notice shall be published in the state paper.
1 SEc. 6. No petition or memorial in reference to such application shall be entertained or acted upon by the ..."."
entertained.
2 legislature, when the same has been in circulation more than six months before the presentation thereof
3 to the legislature, nor when the names of the subscribers thereto shall be written on a separate sheet or piece
4 of paper from the petition or memorial.
1 SEC. 7. The oath of office of any member or officer of the senate or house of representatives, may be By whom oath
of members to
be administered .
2 administered by, and taken and subscribed before the chancellor, any justice of the supreme court, the
3 lieutenant governor, the president pro tempore of the senate, or the speaker of the house of representa-
ae
4 tives.
1841, p. 10.
1 SEC. 8. Anv sen Or Te --> º º ~~ - islatt. wall Members of
y ator or representative while acting as a member of a committee of the legislature, shall ãº.
administer oaths.
2 have authority to administer oaths to such persons as shall be examined before the committee of which he 1839, p. 214
3 is a member.
CHAP. 3..] ( 8 ) [TITLE 2.
Gcneral election
when to be held.
Officers to be
elected.
When special
clections may be
*
TITLE II.
OF ELECTIONs other THAN FoR MILITIA AND Township OFFICERs.
CHAPTER 3.—Of General and Special Elections.
6 & 4.—Of Notifying Elections.
€ $ 5.—Of the manner of conducting the General Election.
<< 6.—Of the Canvass by the Inspectors.
6 & 7.—Of the county Canvass and the proceedings thereon.
( & 8.—Of the District Canvass.
C & 9.—Of the State Canvass.
10.-Miscellaneous Provisions relating to elections.
11.—Of the election of Representatives in Congress, Electors of President and Vice President,
and Senators in Congress.
CHAPTER 3.
OF GENERAL AND SPECIAL ELECTIONS.
1 SECTION 1. An election shall be holden in the several townships and wards in this state, on the first Tues-
2 day in November in each year, which shall be called the general election.
1 SEc. 2. There shall be elected at such general election so many of the following officers as are to be
2 chosen in each year, respectively, that is to say : A governor, lieutenant governor, the senators and
3 representatives in the state legislature, electors of president and vice president of the United States,
4 representatives in congress, and the following county officers, to wit: Associate judges of the circuit
5 court, judges of probate, sheriffs, coroners, clerks, registers of deeds, ireasurers and surveyors.
1 SEc. 3. Special elections may be held in the following cases, and for the election of the following officers,
2 that is to say:
3 1. When a vacancy shall occur in the office of senator or representative in the state legislature :
4 2. When there has been no choice at a general election, of a representative in congress, or of any
5 county officer named in the next preceding section, properly to have been chosen at such general election
6 3. When the right of office of a person elected to the office of representative in congress, or to either
7 of the said county offices, shall cease before the commencement of the term of service for which he shall
8 have been elected :
Char. 8] ( 9 ). [TITLE 2.
9 4. When a vacancy shall occur in either of the said county offices, after the commencement of the term
10 of service, and more than three months before the next general election :
11 5. When , in any other case of a vacancy, not particularly provided for in this section, the governor shall,
13 in his discretion, so direct.
1 SEC. 4. No special election shall be held within forty days next preceding a general election, except in When 110t to be
2 cases where the governor shall order a special election.
1 SEc. 5. A vacancy in either of the offices named in the second section of this chapter, which shall not
When vacancy
to be supplied at
general election.
2 have been supplied before a general election, may be supplied at such election ; and a vacancy in any
3 county office named in the second section of this chapter, shall be ordered by the board of supervisors to be
4 filled at such general election.
1
SEc. 6. Special elections for the choice of the county officers named in seetion two of this chapter, shall,
Special election,
When to be or-
except in cases in which a special election is to be ordered by the governor, be ordered by the board of jºy "per-
2
w
3 supervisors.
*
1 Sec. 7. Special elections shall be held and continued one day only, and shall be conducted, and the re-
To be held one
day only.
sult thereof canvassed and certified, in all respects as near as may be, in like manner as general elections,
3 except as otherwise directed.
Sec. 8. In elections for the choice of all officers namedin the second section of this chapter, the persons IP havi
ersons having
greatest number
of votes deemed
having the greatest number of votes shall be deemed to have been duly elected, although such number elected.
2
3 shall be less than a majority of the whole number of votes given.
Sec. 9. Whenever the time fixed by the law of congress for the election of electors of president and
Election of elec-
tors of president
&c.
vice president of the United States, shall not occur on the day appointed for holding the general election,
2
such election for electors of president and vice president, shall be holden on the day so fixed by the law
3
4 of congress therefor.
CHAP. 4.] ( 10 ) [TITLE 2.
1 SEC. 10. All the provisions of law relating to the notifying and holding of the general election and the
2 election of electors of president and vice president thereat, shall apply to every such election holden pur-
3 Suant to the provisions of the preceding section, and the votes given for such electors shall be returned and
4 canvassed, and the result determined in the same manner in all respects and with the like effect as in case
5 of the election of such electors at a general election.
CHAPTER 4.
OF NOTIFYING ELECTIONS.
1 SEC. 1. When a vacancy shall occur in the office of governor or lieutenant governor, twenty days or
Notice of sup- * ſº & . . tº +.
#.. 2 more before the general election in the first year of the constitutional term for which such officers shall
1Il Ofilee O OW-
ernor, &c.
3 have been elected, the person officiating as governor for the time being shall, at least twenty days before
4 such election, cause a written notice under his hand to be sent to the sheriff of each county in the
5 state; which notice shall state in what office the vacacy has occurred; and that such vacancy will he sup-
6 plied at the next general election.
1 Sec. 2. The secretary of state shall, between the first day of July and the first day of September in
Notice of elec-
º "...º. 2 each and every year in which a governor and lieutenant governor, or representatives in congress, are to
* e
by secretary of *
State. -
be elected for a full term of office, or in which electors of president and vice president are to be elected,
3
4 direct and cause to be delivered to the sheriff of each county, a notice in writing, that at the next general
election a governor and lieutenant governor, electors of president and vice president, a representative
5
6 in Congress for the district to which such county shall belong, or any or all of such officers, as the case
7 may be, are to be elected.
1 Sec. 3. He shall also in each year, between the first day of July and the first day of September, direct and
Notice of elec-
tion of Senators.
2 cause to be delivered to the sheriff of each county a notice in writing, specifying the names of the senators, for
3 the district to which such county shall belong, whose terms of office will expire on the last day of Decem-
4 ber thereafter, and whose successors are to be elected at the next general election.
CHAP. 4.] ( 11 ) - [TITLE 2.
1
2
3
5
3
Sec. 4. If any vacancy in the office of representative in congress, which may properly be supplied at a
Notice of vacan-
cy in office of
general election, shall exist one month befor such election, the secretary of state shall, thirty days at least º
to be given.
before such general election, give notice in writing to the sheriff of each county in the district where such
vacancy exists; which notice shall specifiy the cause of such vacancy, the name of the officer in whose of
fice it occured, and the time when his term of office will expire.
Notice and writs
of election to be
published.
SEc. 5. The secretary of state shall cause a copy of each notice issued by him, and of each writ of elec-
tion issued by the governor, to be published in the state paper once in each week from the date of such no-
Constitution of
tice or writ, until the election to which it shall refer. Hº art. 1, § 2,
Sec. 6. When the board of supervisors of a county shall order a special election to fill a vacancy in any p -
•' Duty of supervi-
sors &c., in or—
dering vacancy
office, and when they shall order such vacancy to be filled at a general election, such order shall be in wri- to be filled.
ting, and signed by the chairman and clerk of the board, and shall specify how the vacancy occurred, the
name of the officer in whose office it occurred,the time when his term of office will expire, and the day on
which such special election shall be held, not being more than forty, nor less than thirty days from the ma-
king of such order ; and such clerk shall without delay, cause a copy of such order to be delivered to one
*...
-
of the inspectors of elections in each township and ward in the county.
SEC. 7. The sheriff, on receiving either of the notices directed in this chapter to be sent to him, shall forth-
Duty of sheriff
on receiving no-
º ſº e - - - º º e e tice.
with cause a notice in writing to be delivered to the township clerk of each township, and to one of the in-
spectors of election in each ward ; which notice shall contain in substance the notices so received by such
sheriff; and he shall also give at least twenty days' notice in writing, to be delivered to the township clerk
of each township, and to one of the inspectors of election in each ward in his county, of the holding of all
general elections for the choice of county officers, designating the officers to be chosen at each and every
such election.
Duty of town-
ship clerk &c.,
ter to be delivered to him, shall by notice in writing under his hand, give at least eight days' notice to the ºccerving no-
Sec. 8. The township clerk or inspector of elections receiving either of the notices directed in this chºp-
electors of the township or ward of the time and place at which such election is to be held, and the offi-
cers to be chosen; and if the notice is of a general election, it shall state whether any of the officers then
CHAP. 5.] & ( 12 ) [TITLE 2.
Inspectors of
elcctions.
1830, p. 33.
When electors
to choose inspec-
1OrS.
Clerks of the
election.
At what time
polls to be open-
ed and closed.
5
to be chosen are to fill vacancies, and the names of those in whose offices the vacancies shall have occur-
6 red; and such township clerk or inspector shall cause such notices to be posted up in at least three of the
7 most public places in the township or ward.
3
CHAPTER 5.
-OF THE MANNER OF CONDUCTING THE GENERAL ELECTION.
SEG. I. At the general election, the supervisor, the two justices of the peace oldest in office, and the
township clerk of each township, and the assessor and aldermen of each ward in the city of Detroit,shall be
the inspectors of election, three of whom shall constitute a quorum.
SEC. 2. In case three of such inspectors shall not attend at the opening of the polls, or shall not remain in
attendance during the election, the electors present may choose, viva voce, such number of such electors
as, with the inspector or inspectors present, shall constitute a board of three in number, and such electors so
chosen shall be inspectors of that election during the continuance thereof.
-*
SEC. 3. The township clerk if present, may be required by the board to act as a clerk of the election, and .
before the opening of the polls, ſhe inspectors in each township shall appoint another competent person to be
a clerk of the election; and iſ the township clerk shall not be present, or shall not be required by the board
to act as a clerk of the election, they shall appoint two such clerks, and the inspectors in each ward in the
city of Detroit shall appoint two competent persons to be such clerks; and each of the clerks so appointed,
and each of the inspectors so chosen, shall take the constitutional oath of office, which oath either of the
inspectors may administer,
SEc. 4. The polls of the election shall be opened at eight o’clock in the forenoon, or as soon thereafter
as may be on the day of election, and shall be continued open until the setting of the sun of the same day,
and no longer; but the board may adjoiurn the polls at twelve o’clock noon, for one hour, in their discre-
tion. £
CHAP. 5.] ( 13 ) [TITLE 2.
5
1
Sec. 5. The inspectors shall cause proclamation to be made of the opening and closing of the polls, and of;...” "
each adjournment; and at the opening of the poll in the ſorenoon, the inspectors shall give notice thereof
if any adjournment is to take place.
SEc. 6. When the Supervisor shall be one of the board, he shall be chairman thereof; but if he be absent, ºnan Of
artl.
such one of their number as the inspectors shall appoint, shall be chairman of the board.
SEc. 7. The electors shall vote by ballot, and each person offering to vote, shall deliver his ballot, so fold-º.””
ed as to conceal the contents, to one of the inspectors in the presence of the board.
SEc. 8. The ballot shall be a paper ticket, which shall contain, written or printed, or partly written and ºwhat to
partly printed, the names of the persons for whom the elector intends to vote, and shall designate the office
to which each person so named, is intended by him to be chosen ; but no ballot shall contain a greater
number of names of persons as designated to any office, than there are persons to be chosen at the election
to fill such office.
SEC. 9. On the were of each ballot, when ſolded, shall appear written or printed one of the follow- now ºne,
ing words: “State,” “Congress,” “Senate,” “Representative,” or “ County;” but no ballot found in
the proper box shall be rejected for want of such endorsement.
SEc. 10. The ballot endorsed “State,” shall contain the names of the persons designated for the offices tº what to
COIllul II),
of governor and lieutenant governor, electors of president and vice president, any or either of them ;
that endorsed “Congress,” the name of the person designated for the office of representative in congress;
that endorsed “Senate,” the names of the persons designated for the office of senators in the state legis-
lature; and that endorsed “Representative,” the names of the persons designated for the office of repre-
sentative in the state legislature; and that endorsed “County,” the names of- the persons designated for
_*
the several county offices to be chosen at such election, any or either of them.
SEC. 11. If at a general election, there be one or more vacancies to be supplied in the office of senator, Designation of
4 \
CHAP. 5.] (
14 ) [TITLE 2.
persons to fill
vacancies. .
Oath to be ten-
dered to thc per-
son challenged.
size.
1841, p. 185-6
Questions to be
propounded by
inspector.
1841, p. 185-6.
Clerk to make
statement of
fucts sworn to.
Statement to be
certified and filed
When vote not
to be received.
Oath when to he
administered,and
vote received.
2
and at the same election a senator is to be elected for a constitutional term, it shall be necessary to desig-
3 nate in the ballot, the person or persons voted for to fill such vacancy or vacancies.
3
4
SEc. 12. If any person offering to vote, shall be challenged as unqualified by any inspector, or any elec-
tor entitled to vote at that poll, the chairman of the board of impºsion shall declare to the person challen-
ged, the qualifications of an elector, and if such person shall state that he is duly qualified, and the chal-
lenge shall not be withdrawn, one of the inspectors shall tender to him the following oath : “You do swear
(or affirm) that you will fully and truly answer all such questions as shall be put to you touching your
qualifications as an elector.”
SEc. 13. The inspectors, or one of them, shall then question the person challenged, as to his age, place
of residence, the length of time he has resided in this state, whether he is a native or a naturalized citizen,
and if the latter, when, where, and in what court he was naturalized, how long he has resided in the
township, or ward, and whether he came into such township or ward for the purpose of voting at that
election, how long he contemplates residing in such township or ward ; and all such other questions as the
inspectors shall deem necessary to test his right to vote at that poll.
SEC. 14. The clerks of the election shall make a statement in writing containing the name of every per-
son to whom such oath shall be administered, with all the materal facts sworn to ; which shall be certified
by the chairman of the board, and returned with the return of votes given at such election, and filed with
the county clerk.
SEc. 15. If the person challenged shall refuse to answer fully any question put to him touching his quali-
fication as an elector, the inspectors shall not receive his vote.
SEc. 16. After fully answering all the questions put to him as aforesaid, if such person shall still perist in
his right to vote, one of the inspectors shall tender to him the following oath :
“You do solemnly swear (or affirm) that you are twenty-one years of age, that you are a citizen of the
United States, (or that you was an inhabitant of this state, on the twenty-fourth day of June, one thousand
CHAP. 5.] ( 15 ) [TITLE 2.
5 eight hundred and thirty-five,) that you have resided in this state six months next preceding this day, that
6 you now reside in this township (or ward, as the case may be,) and that you have not voted at this election ;”
1841, p. 1S6.
7 and if such person will take such oath his vote shall be received.
1 SEC. 17. There shall be provided and kept by the township clerk in each township, at the expense of such º: to
r (! .
2 township, and in each ward in the city of Detroit by
3 at the expense of the - ; five suitable ballot boxes
4 with locks and keys, one to be entitled and labeled, “State,” one “Congress,” one “Senate,” one “Repre-
5 sentative,” and another “County.”
sº
l
SEC. 18. There shall be an opening through the lid of each box, not larger than sufficient to admit a single
* Ballots to be in-
serted through
e © Opening.
2 closed ballot, through which each ballot received, proper to be placed in such box, shall be inserted.
- * e dº p & & g B & b .*.*
1 SEC. 19. Before opening the poll, the ballot boxes shall be examined, that nothing may remain in them; j
&c
2
and they shall then be locked, and the keys thereof delivered to one of the inspectors to be designated by
3
the board; and the said boxes shall not be opened during the election except in the manner and for the pur-
4
poses hereinafter mentioned.
1 SEC. 20. When a ballot shall be received, one of the inspectors, without opening the same or permitting
Ballots how de-
posited.
it to be opened or examined, shall deposit such ballot in the proper box the label of which corresponds
2
3
with the indorsement upon the ballot.
1 SEC, 21. Each of the clerks shall keep a poll list, which shall contain one column, headed “names of vo P
- oll lists to be
T kept by clerks.
2 ters,” and five other columns to be headed, respectively, “State,” “Congress,” “Senate,” “Representative,”
3
and “County”; and in which shall be set down respectively, the names of the voters, and also a mark, op-
4 posite each voter's name, showing what ballot he voted, whether for one or more of the classes above
5 named.
1 SEC. 22. At each adjournment of the poll the clerks shall, in the presence of the inspectors, compare comparing and
As
CHAP. 5.] ( 16 ) [TITLE 2.
correcting lists.
Lists and boxes
and keys, how
kept, &c.
IXeys and boxcs
to lic returned at
next opening of
poll, &c.
Duty of inspect-
ors to challenge.
To keep order.
Persons disobey-
ing commands
of inspectors,
how punished.
By whom order
of commitment
to be executed. "
2
I
2
their respective poll lists, compute and set down the number of the votes in each column, and correct all
mistakes that may be discovered,according to the decision of the board, until such poll lists shall be made in
all respects to correspond.
SEC. 23. One or more of the ballot boxes shall then be opened, and the poll lists placed therein, and each
box so opened shall then again be locked, and a covering with a seal shall be placed on the opening in the
lids of the boxes, and the keys shall be delivered to one of the inspectors, and the boxes to another, to be
designated by the board.
SEC. 24. The inspector having the keys shall keep them in his own possession, and deliver them again
to the board at the next opening of the poll ; and the inspector having the boxes shall carefully keep them
without opening, or suffering them to be opened, or the seals thereof to be broken or removed, and shall
publicly deliver them in that state to the board of inspectors at the next opening of the poll, when the seals
shall be broken, the boxes opened, the poll lists taken out, and the boxes again locked. '
Sec. 25. It shall be the duty of each inspector to challenge every person offering to vote, whom he shall
know or suspect not to be duly qualified as an elector ; and the board of inspectors shall possess full autho
rity to maintain regularity and order, and to enforce obedience to their lawſul commands, during an elec-
tion, and during the canvass and estimate of the votes, after closing of the poll.
SEC. 26. If any person shall refuse to obey such lawſul commands of the inspectors, or by disorderly con-
duct in their presence or hearing, shall interrupt or disturb their proceedings, the inspectors may, by an or-
der in writing, commit the person so offending to the common jail of the county for a period not exceeding
twenty days.
SEC, 27. Such order shall be executed by any sheriff, deputy sheriff, coroner or constable, to whom the
same shall be directed, or if neither of said officers shall be present, such order may be executed by any
other person deputed in writing by the inspectors.
CHAP. 6.] - ( 17 ) & [TITLE 2.
CHAPTER 6.
OF THE CANVASS BY THE INSPECTORS.
I
SECTION 1. As soon as the poll of the general election shall be finally closed, the inspectors shall imme- Inspectors when
º 10 Cam VaSS Votes.
2 diately proceed to canvass and ascertain the result of the election, unless they shall deem it necessary to
3 adjourn such canvass to some convenient hour of the next day.
1 SEC. 2. If the canvass shall be so adjourned, the same course shall be observed in relation to the poll lists, If canvass ad-
journ, boxes,
&c., how dispo-
2 boxes and keys, as is required in the preceding chapter to be observed upon an adjournment of the poll. *d of
1 SEC. 3. The canvass shall be public, and shall commence by a comparison of the poll lists from the be-canvasions
public.
e o e H be com-
2 ginning, and a correction of any mistakes that may be ſound therein, until they shall be found or made to ...**
3 agree.
1 SEC. 4. Each box shall then be opened, and the ballots contained therein taken out and counted by the in- Boxes to b
OXeS to be
opened and bal-
lots counted.
2 spectors unopened, except so far as to ascertain whether each ballot is single ; and if two or more ballots
When ballots to
be destroyed.
3 shall be found so folded together as to present the appearance of a single ballot, they shall be destroyed.
1 SEC. 5. lf the ballots in either box shall be found to exceed in number the whole number of the votes on #....;
lists, excess º
e e be destroyed.
2 the correspondent columns of the poll lists, they shall be replaced in the box, and one of the inspectors
3 shall publicly daw out and destroy so many ballots therefrom unopened, as shall be equal to such excess.
1 Sec. 6. No ballot properly indorsed, found in a box different from that designated by its indorsement, shall when alsº
not to be rejec-
ted. .
2 on that account be rejected; but shall be counted in the same manner as if it had been found in the proper
3 box.
1 SEC. 7. The ballots and poll lists agreeing, or being made to agree, the board shall then proceed to can- Hºº.
ment of Votes.
2 wass and estimate the votes ; and they shall draw up a statement of the result, and cause a duplicate there-
3
of to be made, which statement and duplicate shall be certified by the inspectors to be correct, and sub-
4 Scribed with their names.
CHAP. 7 I ( 18 ) - [TITLE 2.
What statement
to contain, and
how disposed of.
Wide form of
StatementS.
1839, p. 359, &c.
Ballots, how to
be kept.
Poll lists to be
filed, &c.
To whom ballots
&c. to be deliv-
ered in Detroit.
Board of county
canvassers,
when and
Wherc to meet. “
When inspector
unable to attend
to deliver State-
ment to county
clerk.
1 SEC. 8. Such statement shall set forth in words at length, the whole number of votes given for each office,
2 the name of the persons for which such votes for such office were given, and the number of votes so given
3 for each person; and one of said statements shall ſorthwith be delivered to the township clerk, to be filed
4 and preserved by him ; and the other shall be delivered to one of the inspectors, who shall be appointed by
5 the board to attend the county canvass.
1 SEC. 9. The inspectors shall preserve a true copy of all ballots rejected as defective, with the originals at-
2 tached, and deliver the same to the township clerk to be filed in his office, and the other ballots they shall
3 seal up and deliver to said clerk, who shall keep the same in his office until the next general election, sub-
4 ject only to the inspection of the proper authorites, in case of a contested election.
1 SEc. 10. One of the poll lists shall be delivered to the township clerk, and the other to the county clerk,
2 which lists shall be filed and preserved by them in their respective offices.
1 SEc. 11. In the city of Detroit the ballots, and one of such poll lists and statatements shall be delivered to
2 and shall be kept and preserved
3 by him.
CHAPTER 7.
OF THE COUNTY CANVASS AND PROCEEDINGS THEREON.
1 SEC. 1. The several inspectors appointed by the inspectors of election in townships and wards, to attend
2. the county canvass, shall constitute the county board of canvassers, and shall meet on the Tuesday next
3 following the election, before one o’clock in the afternoon, at the office of the county clerk, who shall be
4 secretary of the board; or in his absence his deputy shall be such secretary.
* Sec. 2. If either of the inspectors appointed to attend the county canvass, shall be unable to attend such
2 canvass on the day appointed, he shall, on or before that day cause to be delivered at the office of the coun-
CHAP. 7.] ( 19 ) [Tirle 2.
3
them as shall be present, although less than a majority of the whole number, shall constitute the board of
ty clerk, the original statement of all votes given in his township or ward, which statement said clerk
shall lay before the said canvassers.
SEC. 3. On the day appointed for such canvass, if a majority of the canvassers shall not attend, or if such |
leIl Carl VåSS-
ers inay adjourn.
statements of votes shall not be produced, the canvassers then present shall adjourn to some convenient
hour of the next day.
SEc. 4. If all the original statements of the votes given in the several townships and wards shall not be when messen-
gº - ger to be sent for
statement of
produced on the day appointed for such canvass, the county clerk shall, by a special messenger, or other-"
wise, obtain such original statements as are not produced, or certified copies thereoſ, in time to be deliver-
ed to the board of canvassers, at their said adjourned meeting.
SEC. 5. At the time to which such canvass was adjourned, the canvassers shall again meet; and such of
Board to meet On
adjourned day.
Can VaSSCIS.
SEc. 6. The canvassers shall choose one of their number to be their chairman; and said board shall pro-
To organize and
can VaSS V0teS.
ceed to examine the original statements certified by the several boards of inspectors of election, or certified
copies thereof, and ascertain the number of votes given in the county, and make statements thereof as the
nature of the election may require.
SEc. 7. They shall make a separate statement, containing the whole number of votes given for the offi-To make sepa-
rate Statements,
ces of governor and lieutenant governor, the names of the persons to whom such votes were given, and
the number of votes given to each; another similar statement of the votes given for representative in
congress; another similar statement of the votes given for electors of president and vice president; ano-
ther of the votes given for state senators, when the county alone does not constitute a senate district; ano-Forms of state-
ments,
ther, of the votes given for members of the house of representatives when the county alone does not con-
stitute a representative district ; another, the votes given for county officers, and state Senators and mem-
Char. 7]
( 20 ) [TITLE 2.
1839, p. 359 &c.
What statements
to contain and to
whom delivered.
To be recorded
&c.
Determination
by the board.
Copy of determi-
nation and certif-
icate to be pub-
lished.
Duplicate state—
ments to be made
and delivered to
clerk.
Duplicate state-
ment of votes for
represchtatives
&c.
County clerk to
8
9
2
3
4
bers of the house of representatives, when the county alone constitutes a senate district or representative
district.
SEC. 8. In each of said statements, the whole number of votes given, the names of the candidates, and
the number of votes given to each, shall be written in words at length; and each statement shall be certi-
fied as correct, and attested by the signatures of the chairman and secretary of the board ; and a copy of
each, thus certified and attested, shall be delivered to the county clerk, and recorded by him in a suitable
5 book to be provided by him and kept in his office.
2
SEC. 9. The board shall then determine the persons who have been, by the greatest number of votes,
elected to the several county offices, and members of the house of representatives nnd state senators, re-
spectively, when the county alone constitutes a senate or representative district; and such determination
shall be certified and attested by the chairman and secretary of the board, and be annexed to the statement
of votes given for such officers respectively, and shall be recorded with such statement by the county clerk.
SEC, 10. The board shall cause a copy of every such determination, and the certificate thereto annexed,
to be published as soon as may be in some newspaper printed in the county, if there be one, and if not, then
in the nearest county where one is printed.
SEc. 11. The said board shall make a duplicate statement of the votes given for state senators, when the
county alone does not constitute a senate district, and deliver the same to the clerk of the county to be de-
livered by him to the senatorial district canvassers.
Sec. 12. The said board shall also make a duplicate statement of the votes given for representatives in the
state legislature, when the county alone does not constitute a representative district, and deliver the same
to the clerk of the county, to be delivered by him to the representative district canvassers.
1 See. 13. The county clerk shall record in his office all the statements and certificates that shall be de-
CHAP. 7.] - ( 21 )
[TITLE 2.
2
3
5
10
11
5
e * wº & * nse of the county, a suita- record
livered to him by the county board of canvassers, and shall provide at the expe f y; ºnate-
ble book for that purpose.
SEc. 14. He shall prepare and certify under his hand and seal of office, three copies of the statement of
Clerk to make &
certify and trans-
© * tive i ress, which he shall severally seal up and direct as follows:– j
the votes given for representative in cong 9 y p Of sº of
votes for repre-
Sentative in con-
One copy to the governor, one copy to the secretary of state, and one copy to the guditor aeneral, and #:... :
"or, &c.
s
transmit the same by mail on or before the Tuesday next after the county canvass, when a general elec-
tion has been held, and within five days after such canvass when a special election has been held ; and he
shall also prepare and certify under his hand and seal of office, two copies of the statement and certificate
of votes given for governor and lieutenant governor, which he shall severally seal up and direct to the
- . Const. of Mich.
president of the senate ; and shall separately enclose each copy in an envelope under seal, and shall di- article 5 §4.
rect one copy on the envelope to the governor, and the other copy to the Secretary of state, and transmit
the same by mail, on or before the Tuesday next after the county canvass when a general election has
been held.
SEC. 15. He shall also prepare as many certified copies of each certificate of the determination of the
• Clerk to prep're
g º e and deliver cer-
board of county canvassers, as there are persons declared in such certificate to be elected, and shall withouti.; º:
persons elected.
delay deliver one of such copies to each person so elected.
SEC. 16. Such clerk shall also within thirty days after a general election, transmit to the secretary of List of members
and county offi-
cCrs to be trans-
state a list of the members of the house of representatives elected in the county, and a list of all the coun- º, º
*= <
ty officers elected in such county at such election.
SEC. 17. Each county clerk, immediately after he shall receiye from the board of county canvassers a
Stat’mnt of votes
for electors of
statement of the votes given for electors of president and vice president, shall make out three copies there- #:
f lºtte(i.
of, and certify the same under his hand and seal of office to be true copies, and shall send by mail,
one to the governor, and one to the secretary of state, and shall deliver the other to the special messen-
assº
ger hereinafter mentioned.
CHAP.7 ..]
( 22 ) [TITLE 2.
Certain boards of
canvasers to ap-
point messenger,
&c.
Duty of messen-
ger appointed in
Berriem.
Duty of messen-
ger appointed in
Van Buren.
Duty of messen-
ger appointed in
Allegan.
Duiy of messen-
ger appointed in
Ottawa.
Duty of messen-
I
2
SEC. 18. Each of the boards of county canvassers in the counties of Berrien, Van Buren, Allegan, Ottawa,
Saginaw, and Chippewa, when there shall have been an election for electors of president and vice president,
3 shall immediately aſter closing the canvass appoint some suitable person as a special messenger to carry
4
2
l
copies of the statements of votes given for such electors, to the secretary of state, as hereinaſter directed.
SEC. 19. The messenger appointed by the board of canvassers in the county of Berrien, shall forthwith
after his appointment call upon the several county clerks in the counties of Berrien, Cass, St. Joseph,
Branch, Hillsdale, Lenawee, and Monroe, and obtain copies of the statements of votes given in those coun-
ties respectively for electors of president and vice president, and without delay carry and deliver them to
the secretary of state.
SEc. 20. The messenger appointed by such board in the county of Van Buren, shall ſorthwith, after his
appointment, call upon the several county clerks in the counties of Van Buren, Kalamazoo, Calhoun,
Jackson, Washtenaw and Wayne, and obtain copies of such statements of votes given in those counties
respectively, and without delay carry and deliver them to the secretary of state.
Sec. 21. The messenger appointed by such board, in the county of Allegan, shall forthwith after his ap-
pointment, call upon the several county clerks in the counties of Allegan, Barry, Eaton, Ingham, Livings-
ton and Oakland and obtain copies of such statesments of votes given in those counties respectively, and
without delay carry and deliver them to the secretary of state,
SEc. 22. The messenger appointed by such board in the county of Ottawa, shall ſorthwith after his ap-
pointment, call upon the several county clerks in the counties of Ottawa, Kent, Ionia, Clinton and Shia-
wassee, and if there shall hereafter be any counties organized north of, and adjoining those last men-
tioned, he shall call upon the clerks of such counties also, and obtain copies of such statements of votes
given in those counties respectively, and without delay carry and deliver them to the secretary of
State.
SEc. 23. The messenger appointed by such board in the county of Saginaw, shall forthwith after his ap-
CHAP. 7.] * , ( 23 ) - [TITLE 2
2 pointment, call upon the several county clerks in the counties of Saginaw, Genesee, Lapeer, St. Clair and
ger appoinied in
Saginaw.
3 Macomb, and if there shall be any counties organized north of and adjoining those last mentioned, he shall
4 call upon the clerks of such counties, also, and obtain copies of such statements of votes given in those
5 counties respectively, and without delay carry and deliver them to the secretary of state.
1 SEc. 24. The messenger appointed by such board in the county of Chippewa, shall forthwith after his ap-
Duty of messen-
ger appointed in
- Chi e
2 pointment call upon the clerks of the counties of Chippewa and Mackinaw, and if there shall be any coun- ppewa
3 ties organized within the territory now embraced in, or annexed to either of said last mentioned counties, he
4 shall call upon the clerks of such counties also, and obtain copies of such statements of votes given in those
5 counties respectively, and without delay carry and deliver them to the secretary of state.
1 SEc. 25. The messengers aforesaid shall receive for their services, such compensation as the auditor gen
Compensation of
messengers.
2 eral shall deem reasonable, not exceeding twenty-five cents a mile for travelling to the office of the secre-
3 tary of state, to be audited by the auditor general on the certificate of said secretary that the services have
4 been performed, and paid out of the state treasury.
1 SEC, 26. Whenever any amendment shall have been proposed to the constitution, and agreed to and sub-
Votes for and u-
& * - © - ſº * . . tº e º d-
2 mitted to the people pursuant to the provisions of the thirteenth article of the constitution, if the vote there- ; :"...d.
tution, how ta-
ken, canvassed,
&
3 on shall be required to be taken at the general election, the votes of the electors for and against such C.
4 onendment shall be taken, canvassed, certified and recorded, and certified copies of the statements thereof
5 shall be made and transmitted by the several county clerks to the governor, secretary of state, and auditor
6 general, at the same time, and in the same manner as the vote for representatives in congress are by law
7 required to be taken and canvassed, and statements thereof to be certified, recorded, and transmitted.
Chap. 8.] ( 24 )
[TITLE 2.
{*
CHAPTER 8.
OF THE DISTRICT CANVASS.
District canvass. 1 SECTION 1. In each election district, for the election of representatives, or senators in the state legislature,
Quorum of
board.
Timo and places
of meeting.
1841, p. 190,
Iſ county clerk
unable to attend,
to dcliver state.
lnº. Int.
1811, p. 190.
Poceeding of
Cù Il WºłSSCTS.
2
4
I
the limits of which shall be greater than those of a county, there shall be a board of district canvassers, and
the clerks of the several counties within the district, the associate judges of the circuit court, and the sher-
iff of the county in which the meetings of the board are to be held, shall constitute such board.
SEc. 2. Any three of said canvassers shall be a quorum for the transaction of the business of said board ;
and in case there shall not be three of the members of such board present at any such meeting, the judge
of probate or register of deeds of the county where any such meeting is appointed to be held, or both of
them, may act as members of such board, and with the other members in attendance, shall form a board of
not less than three in number.
SEc. 3. The board shall meet in the district for the election of representatives in the state legislature on
the Tuesday next after the day on which the county canvass is appointed to be made, and in districts for
the election of senators, on the fourth Tuesday after the county canvass, at the office of the clerk of the
county in such district having the greatest number of inhabitants according to the last preceding census.
SEc. 4. If either of the county clerks shall be unable to attend such canvass on the day appointed therefor,
he shall, on or before that day, cause to be delivered at the office of the clerk of the county in which such
meeting is to be held, the original statement of votes given in his county for the officers to be elected in
such district, which statement shall be laid before said board.
SEC. 5. The canvassers shall then proceed to examine the statements of the votes given in the several
* counties in the district, and ascertain and determine what persons have been elected, and to what offices, and
shall draw up a statement thereof in words at length, which statement shall contain the whole number of
votes given in the district for each office, and the names of the persons to whom such votes were given ;
and such statement shall be certified to be correct, and be subscribed by the said canvassers.
Char. 9] - ( 25 ) [TITLE 2.
l
2
SEC. 6. The canvassers shall then determine the persons elected to the several offices within the district as
Board to deter-
mine persous
shall appear by such statement, and shall certify such determination under their hands, and annex the same “*
to their said statement, and deliver the same to the clerk of the county in which their meeting shall be held,
who shall file the same in his office; and said board shall cause a copy of such statement and certificate to
be forthwith published in some newspaper printed in the district.
SEc. 7. The county clerk by whom the said statement and certificate thereto annexed shall be filed, shall
tº * & tº Duty of county
without delay transmit by mail to the secretary of state, a copy of such statement and certificate of deter-...ſº
mination, certified by him under his hand and seal of office ; and he shall also without delay, prepare and
certify as many copies of such certificate of determination, as there are persons stated therein to have been
elected, and cause one of said copies to be delivered to each person so determined to be elected.
2
CHAPTER 9.
CF THE STATE CANVASS.
SEc. 1. The secretary of state, the auditor general and the state treasurer shall be the board of state can-
- State Sanvass-
vassers, any two of whom shall be a quorum for the transaction of business; and if only one of said offi-*
cers shall attend on the day appointed for a meeting of the board, the attorney general on being notified by 2:”
the officer so attending, shall without delay attend with such officer, and with him shall form the board.
SEc. 2. The secretary of state on the receipt of the certified copies of the statements of votes given in
• . of state
the several counties, directed by law to be sent to him by the county clerks, shall record the same in a cºtt.
suitable book to be kept by him for that purpose.
SEC. 3. If from any county clerk no such statement, other than of the votes given for electors of presi-
* - When secretary
dent and vice president, shall have been received by the secretary of state on or before the first Monday ºver
Ident.
of December next after the general election, and on or before the thirtieth day after a special election, he
7
CHAP. 9..] ( 26 ) [TITLE 2.
4
When secretary
shall send special
messenger to ob- 2
taill Statleſſlent.
Secretary to ap- 2
point Ineeting of
the board, &c.
1
Board to examin'
and make State-
ment of votes for
representative in 2
congress.
1843, p. 37. 5
CanvaS86 rB to
certify statement,
and determine 2
the persons elec-
ted.
Adjournments.
shall call upon the governor and receive from him the statement from such county clerk, if the governor
shall have received one.
Sec. 4. If from any county clerk neither the governor, the secretary of state, nor the auditor general
shall have received such statement by the day last mentioned, the secretary of state shall forthwith send a
special messenger to obtain such statement from such county clerk; and such clerk shall immediately on
demand being made by such messenger at his office, make out and deliver to him the statement required.
SEc. 5. For the purpose of canvassing and ascertaining the result of elections other than for electors of
president and vice president, the secretary of state shall appoint a meeting of the state canvassers to be
held at his office on or before the fifteenth day of December next after a general election, and within forty
days after a special election, and shall notify the other members of the board accordingly.
SEc. 6. The said board of canvassers when formed as aforesaid, mal proceed to examine the statements
received by the secretary of state, of the votes given in the several counties, and make a statement of the
whole number of votes given for the office of representative in congress in each congressional district;
which statement shall show the names of the persons to whom such votes shall have been given for said
office, and the whole number of votes given to each.
SEC. 7. The said canvassers shall certify such statement to be correct, and subscribe their names there-
to, and they shall thereupon determine what persons have been by the greatest number of votes duly elect-
ed to such office, and make and subscribe on such statement a certificate of such determination, and deliver
the same to the secretary of state. .*
SEC. 8. The said board of canvassers shall have power to adjourn from day to day, for a term not exceed.
2 ing five days. . *
Secretary to re-
cord statement of 2
canvassers, &c.,
SEC. 9. The secretary of state shall record in his office in a book to be kept by him for that purpose, each
certified statement and determination so made and delivered to him by the canvassers, and shall without
CHAP. 9..] - ( 27 ) . [TITLE 2.
3
I
delay make out and deliver to each of the persons thereby declared to be elected, a copy of such determi.
and cause same
to be published.
nation, certified by him under his seal of office ; and shall also forthwith cause a copy of such certified
statement and determination to be published in the state paper.
Sec. 10. For the purpose of canvassing and ascrtaining the votes given for electors of president and vice, for el
- - OtcS for ClcCl-
ors of president,
&c., when and
president, said board shall meet on the Wednesday next after the third Monday of November, or on such "*"
other day before that time as the secretary of state shall appoint; and the powers, duties, and proceedings º
of said board, and of the secretary of state, in examining, ascertaining, determining, certifying and re-
cording the votes and results of the election of such electors, shall be in all respects, as near as may be, as
*
hereinbeſore provided in relation to the examining, ascertaining, determining, certifying and recordingthe
votes and results of the election of representatives in congress. *
SEc. 11. The secretary of state shall without delay, cause a copy of the certified determination of the Certified copy of
erliſle (1 CO
determieation to
be transmitted to
board of state canvassers, declaring the persons elected as such electors, to be transmitted and delivered by * elected.
special messengers or otherwise, to each of the persons so declared to be elected, which copies shall be cer-
tified under his hand and seal of office.
SEC. 12. For the purpose of canvassing and ascertaining the result of the vote taken at any general elec-
State canvasscrg
to meet and re-
tion, upon any proposed amendment to the constitution, the secretary of state shall appoint a meeting of:"...”.”
mendment to.
constitution.
the state canvassers to be held at his office on or before the fifteenth day of December; at which meeting the
said secretary shall lay before the board the statements received by him of the votes given in the several
counties for and against such amendment.
SEC. 13. The board shall then proceed to examine such statements, and to ascertain and determine the
* e * Bonrd to ascer
result, and shall make and certify under their hands, a statement of the whole number of votes given for, tain ºleier.
mine result.
and the whole number of votes given against such amendment; and they shall thereupon determine wheth-
er such amendment has been approved ard ratified by a majority of the electors voting thereon, and shall
make and subscribe on such statement a certificate of such determina:ion, and deliver the same to the sec.
• ‘
6 retary of state.
Chap. 10 l ( 28 ) [TITLE 2.
l)etermination to
be recorded by
secretary, & pub-
lished with laws.
Unorganized
counties.
Oath of clnks &
inspectors of e-
lections.
Compensation of
county canvass-
ers, &c.
District canvass-
ers &c., how
paid.
Civil process
When not to be
served.
1
2
3
4
5
SEc. 14, The secretary of state shall record in his office, in a book to be kept by him for that purpose,
such certified statement and determination; and if it shall appear that such amendment has been approved
and ratified as aforesaid, he shall also record such determination in the book in which the original acts of
the legislature are recorded, and shall cause the same to be published with the laws enacted by the legisla-
ture at the next succeeding session thereof.
I
CHAPTER 10.
MISCELLANEOUS PROVISINS RELATING TO ELECTIONS.
SECTION 1. Unorganized counties, with other parts of the state which may be attached to any organized
county for judicial purposes, unless otherwise provided, shall be considered as a part of such orgaized coun-
ty for all purposes concerning the election of officers which may be elected at the general or special elec-
tion.
SEc. 2. The oath directed in this title to be taken by persons chosen to be inspectors, or appointed clerks
of elections shall be in the form prescribed in the twelſth article of the constitution of this state.
SEc. 3. Each county canvasser, sheriff and county clerk, shall receive such reasonable compensation for
his services while employed in the business of elections for county officers, as shall be allowed by the board
of supervisors, or county auditors, to be paid by the county.
SEC. 4. Each district canvasser, county clerk, or other person employed in canvassing and returning the
result of elections required by law to be certified by district canvassers, shall receive such compensation as
the auditor general shall deem reasonable, to be paid out of the state treasury.
SEc. 5. Duing the day on which any election shall be held, pursuant to the provisions of law, no civil
2 process shall be served on any elector entitled to vote at such election.
CHAP: 11.] - ( 29 ) - - [Title 2.
1 Sec. 6. When any person shall be elected to fill a vacancy in any elective office, he shall hold the same
2 only during the unexpired portion of the regular term limited to such office, and until his successor shall be
3 elected and qualified.
CHAPTER I 1.
OF THE ELECTION OF REPRESENTATIVES IN CONGRESS, ELECTORs OF PRESIDENT AND VICE PRESIDENT
AND SENATORS IN CONGRESS.
Of the election of Representatives in Congress.
1 SECTION 1. A representative in the congress of the United States, shall be chosen in each of the congres-
2 sidnal districts into which the state is divided, at the general election in the year one thousand eight hundred
3 and forty-six, and every two years thereafter.
1 SEC. 2. If a representative in congress shall resign he shall forthwith transmit a notice of his resignation
2 to the secretary of state ; and if a vacancy shall occur by death, in the office of representative in con-
3 gress, the clerk of the county in which such representative shall have resided at the time of his election,
4 shall without delay trausmit a notice of such vacancy to the secretary of state.
Of the election of Electors of President and Vice President.
1 SEC. 3. At the general election next preceding the choice of president and vice president of the United
2 States, there shall be elected by a general ticket, as many electors of president and vice president as this
3 state may be entitled to elect of senators and representatives in congress.
1 SEC. 4. The electors of president and vice president shall convene at the capitol of this state, on the first
2 Wednesday of December, and if there shall be any vacancy in the office of an elector, occasioned by
3 death, refusal to act, or neglect to attend by the hour of twelve o’clock at noon of that day, the elector
4 or electors present shall proceed to fill such vacancy by ballot and plurality of votes; and when all the
Term of office
when, elected to
fill vacancy.
Representatives
in congress.
when to be elec-
tod.
1843, p. 37.
In case of death
or resignation,
clcrk notify sec-
retary of State.
When electors of
president, &c. to
ſhe cleeted.
Electors when to
meet & perform .
their duties.
12th amendment
to constitution of
United States.
8
CHAP. 11.] ( 30 ) [TITLE 2.
^*
5 electors shall appear, or vacancies shall be filled as above provided, they shall proceed to perform the
Act of congress
of 1st March,
1792.
6 duties of such electors required by the constitution and laws of the United States.
1 Sec. 5. The secretary of state shall prepare three lists of the names of the electors; procure thereto the
Credentials of e-
lectOrS.
2 signature of the governor, affix the seal of the state to the same, and deliver such certificates thus signed
3 and sealed, to one of the electors, on or before the said first Wednesday in December.
of the election of Senators in Congress.
When Senator in
tº "bee- 1 Sec. 6. On the first Tuesday after the second Monday of January next before the expiration of the time
€Cle(1.
2 for which any senator was elected to represent this state in congress, if the legislature shall be then in ses-
*.
3 sign, and if not then within ten days after a quorum of both houses shall be assembled at the then next
4 meeting of the legislature, an election shall be held for a senator in congress, at the place where the legis-
|
5 lature shall be then sitting which election may be continued from day to day, until such senator shall be
6 elected. *
Vacancy to be
filled.
1 Sec. 7. Whenever the seat of any such senator shall become vacant before the expiration of the term
2 for which he was elected, another senator shall be elected in his place, within ten days after the legisla-
3 ture shall have notice of such vacancy, at the place where it shall be then sitting.
i
f - - e º e
Mºº ... I SEc. 8 Such election shall be made in the following manner: The senate and house of representatives
2 shall each openly nominate one person for the office of senator in congress; aſter which they shall imme-
3 diately meet, and if they shall agree in their nomination, the person so nominated shall be deemed elect-
4 ed; if they shall disagree, the election shall be made by a joint vote of the senators and members of the
5 house of representatives, and a majority of the votes given upon such joint vote, shall be necessary to a
6 choice.
Eºse of ~ 1 SEC. 9. Whenever any senator shall be chosen as aforesaid, copies of the resolutions of the senate and
CU]Oll, -
2 house of representatives, testifying such choice, signed by the president of the senate and speaker of the
3 house of representatives, shall be thereupon delivered to the person so chosen senator, as evidence of
4 such election.
CHAP. 12.] - ( 31 ) [TITLE 3,
1
I
TITLE III.
OF CERTAIN STATE OFFICERs ; OF Count[Es AND Country OFFICERs ; AND OF RESIGNATIONs, VACANCIES, AND
REMOVALS FROM OFFICE, AND SUPPLYING WACANCIES.
CHAPTER 12.—Of certain State Officers.
4 & 13.−Of Counties. e
{{ 14.—Of Resignations, Vacancies and Removals, and Supplying Vacancies.
CHAPTER 12.
OF CERTAIN STATE OFFICERS.
The Governor.
SECTION 1. The governor shall receive an annual salary of two thousand dollars to be paid quarter yearly, gºvernor. Sala-
Const. of Mich.,
turt. 5 laws of
e tº e © * ... tº © f 1835, published
and shall not be entitled to any fees or perquisites of office in addition to his salary. §ºpe
Q
1836, p. 4, 1840,
p, 222.
SEC. 2. Whenever by the impeachment of the governor, his removal from office, death, resignation, or
When gover-
nor’s salary to
absence from the state, the powers and duties of the office shall devolve upon the lieutenant governor, the :*:::::
governor.
salary of the governor shall cease, and the same shall be received by the lieutenant governor, as a full
. 1 - º º * * * * * * e 1840, p. 128.
compensation for his services until such disability shall cease, or the vacancy to be filled. p
SEC. 3. The governor may, at the commencement of each session of the legislature, appoint a private
Private secretary
- tº . * ~ * * * * - e •: e session, unless and assistant ii.
Secretary, and an assistant librarian, who shall hold their offices respectively during the s “ ºri.
1840, p. 126, sec.
4—id. p. 128.
Sooner removed by the governor, and no longer, and shall each receive such compensation as the legisla-
ture may direct, not exceeding three dollars a day each, for the time they are employed.
The Secretary of State.
SEc. 4. The secretary of state shall have the custody of the great seal of the state, and copies of all
Sec'y of state to
have º of
- º f . . * . great seal, &c.
records and papers in his office, certified by him, and authenticated by the great seal of the state, shall be *
*
evidence in all cases equally, and with the like effect, as the originals. On St., art, 7
$
SEC. 5. The secretary of state may appoint a deputy with the approbation of the governor, and revoke Deputy secreta-
e
( 32 ) [TITLE 3.
CHAP. 12.]
ry, his powers,
duties and com-
pensation.
Salary of secre-
taly.
1838, p. 258.
State treasurer to
give bond.
Const. art. 7,
Sec. 2,
Condiiion of
bond.
‘Deputy treasur-
er, his powers,
duties and com-
pensation.
1840, p. 233, sec.
3. 1844, p 77, sec
2
4
5
3
2
3
2
10
l
2
such appointment at pleasure; and whenever the secretary of state shall by reason of sickness, absence,
or other cause, be disabled from executing the duties of his office, his deputy, duly appointed, shall execute
the duties thereof until such disability be removed, or until a secretary shall be appointed, and such deputy
shall receive an annual salary of five hundred dollars, payable quarter yearly.
SEG. 6. The secretary shall receive an annual salary of one thousand dollars, payable quarter yearly ;
and also such fees and perquisites of office as shall be allowed him by law ; and he shall keep his office at
the capitol.
The State Treasurer.
SEc. 7. The state treasurer before entering upon the duties of his office, shall give bond to the people of
this state in the sum of one hundred thousand dollars, with three or more sureties, to be approved by the au-
ditor general and the attorney general, which bond shall be filed in the office of the secretary of state.
- &
SEc. 8. The condition of such wn shall be, in substance, that the treasurer and all porsons employed in
his office, shall faithfully discharge their respective duties and trusts, and that the said treasurer shall use
all necessary and reasonable diligence and care in the safe keeping and lawful disposal of all sums of mo-
ney, books, bonds, notes, papers, and all other things appertaining to said office, and which have or shall
come to his hands, or to the hands of any person or persons employed by him ; and that the said treasurer
shall, upon reasonable notice, render a true account in the premises whenever he shall be thereunto re-
quired by any provision of law in that behalf, or by the senate or house of representatives, and shall deli-
ver over to his successor in said office, or to any other person authorized by law to receive the same, all
moneys, books, bonds, notes, papers and other things belonging to said office; and that all balances which
shall appear against him, shall be forthwith paid into the treasury of the state.
SEC. 9. The treasurer may appoint a deputy, for whose acts he shall be responsible, and may revoke such
*PPointment at pleasure; and such deputy may execute the duties of the office during the sickness or ne-
cessary absence of the treasurer, and shall receive an annual salary at the rate of seven hundred dollars,
payable quarter yearly.
CHAP. 12.] - ( 33 ) - [TITLE 3.
5
5
Sec. 10. Upon the death or resignation of the treasurer, or upon a vacancy in that office from any other
*
cause, the secretary of state, with two suitable persons to be appointed by warrant under the hand and seal
of the governor, shall repair to the * or places where the money, papers and other things belonging
to the treasury are usually kept, and having previously given notice to the late treasurer, his heirs, execu-
tors or administrators, and to his sureties, or one of them, or to such of the said persons as may be found in
the state to attend them, shall seal up and secure in their presence, if they shall attend, all such moneys,
papers, and other things supposed to belong to the state.
SEc. 11. They shall there give such representatives or sureties if required by them, a true list of
all boxes and packages so sealed up and secured, and shall note on such list the places wherein the same are
deposited ; whereupon, as soon as it can be conveniently done, and after notice to the parties mentioned in
the preceding section, they shall cause the said boxes and packages to be examined, and a true inventory
to be taken of the said moneys, and of all bonds, notes, securities, books, and other things appertaining to
said office, which shall be required by such late treasurer, or his representatives, or sureties, or either of
them.
SEc. 12. A copy of such inventory shall be deposited by them in the secretary’s office, and any copies
that may be required shall be given to any of the parties mentioned in the preceding seetion ; and they
shall safely keep all moneys and other effects mentioned as aforesaid, until another treasurer shall be ap-
pointed, to whom, when qualified, they shall deliver over the same, taking duplicate receipts therefor, one
of which receipts shall be deposited with the secretary, and the other shall be delivered to the said late trea-
surer or his legal representatives or sureties, or one of them.
SEc. 13. The treasurer shall, on the first Tuesday of each month, and at such other times as the audi-
Proceedings on
death, &c. of
treaSurer.
Ib.
Ib.
Treasurer to ex-
hibit accounts to
tor general may require, exhibit to the said auditor general, for his examination, a true account of his re- * general.
ceipts, and of moneys paid out by him, as treasurer.
SEc. 14. The treasurer shall make to the legislature, at its annual session in January in each year, and
Statement to be
9
CHAP. 12.]
( 34 ) [TITLE 3.
made to legisla-
ture and publish-
ed with Iaws.
Where to keep
office.
His salary.
Fiscal year.
1830, p. 116.
Auditor general
10 state accounts
&c.
To settle claims
and draw War-
ran tS Oll treaSur-
Cr.
Moneys not to be
paid out of treas-
ury except on au-
ditor's Waraant.
Receipts to be
countersigned,
&C.
Accounts be-
tween treaSurer
and 8tate.
2 at such other times as he shall be required by either branch of the legislature, an exact statement of the
3 balance in the treasury to the credit of the state, with a summary of the receipts and payments of the trea-
gº?
4
sury during the preceding year; which annual statement he shall cause to be published with the laws of
5 the session at which the same shall have been made.
1 SEC, 15. He shall keep his office at the seat of government, and shall receive an annual salary of one
2 thousand dollars, payable quarter yearly, in full compensation for all his services.
1 SEC, 16. The fiscal year for the treasury of this state shall commence on the first day of December in each
2
* . . . & &
year, and close on the thirtieth day of November in the succeeding year.
The Auditor General.
1 SEC. HT. The auditor general ghall state all accounts, and examine and liquidate the claims of all persons
2 against the state in cases provided for by law, and give his warrant therefor; and in cases of claims against
3 the state which cannot be liquidated by him, or by the board of state auditors, without further legislative
4 provision, he shall examine and report the same, with the facts relating thereto, to the legislature, with his
5 opinion thereon.
1 Sec. 18. He shall also examine, adjust and settle the claims of all persons indebted to the state; and when
2 there shall be any account liquidated, showing any amount to be due to any person, for the payment
3 whereof an appropriation shall have been made by law, he shall draw his warrant on the treasury therefor.
1 Sec. 19. No moneys shall be paid out of the state treasury except on the warrant of the auditor general ;
2
and all receipts for money paid to the treasurer,shall be taken to the auditor general,who shall countersign the
3 same and enter them in the proper book in his office for that purpose, to the credit of the person by whom
4
2
such payment shall be made, and no such receipt, unless countersigned, shall be evidence of such payment.
SEC. 20. The auditor general shall keep an account in proper books to be provided by him for that pur-
pose, between the state and the treasurer, charging therein to the treasurer the balance in the treasury, and
3 all moneys received by him, and giving him credit therein on the first Tuesday in every month, for all
CHAP. 12.] ( 35 ) - [TITLE 3.
4 warrants paid by him, which warrants shall thereupon be cancelled by the auditor general ; and he shall
5 also keep an account of all outstanding warrants not paid by the treasurer.
1 SEc. 21. He shall on the first Tuesday in each month, and at any other time when he may deem it ne-
Auditor to exam-
ille treasurer’s
2 cessary, examine the treasurer's account of moneys received and of moneys paid out by him; and if on ...
report irregular-
ity &c.
3 examining such acccount he shall discover any irregularity or deficiency therein, he shall, as soon there-
4 after as may be, report in writing the nature and extent of such irregularity or deficiency to the governor,
5 so that the same may be submitted to the legislature, if, in the opinion of the governor, the interests of the
6 state shall require it. i
1 SEc. 22. The auditor general shall make to the legislature, at its session in January in each year, and at
Statement of
funds and reve-
2 such other times as he shall be required by either branch of the legislature, a complete statement of the . * * *
3 funds of the state, and of the revenue thereof, and of the amount of salaries of the officers of the govern-
4 ment, and of other contingent expenses, and other appropriations for the year preceding, and such improve-
5 ments in the financial system of the state as he may deem expedient. 1838, p. 292.
I Sec. 23. He shall from time to time transmit copies of all laws that may be made f elative to the collec-
To transmit col-
© º - - º lection luws.
2 tion of the state revenue, as soon as the same shall be published in the newspapers in which they are au- (2Ction Iław'S
3 thorized to be printed, to the officers concerned in carrying the same into effect.
1 Sec. 24. He shall also draw up instructions for the government of the officers concerned in the collection ºn, ,
certain officers.
2 of the revenue, in the premises; which instructions, certified by the attorney general to be in accordance
3 with law, shall be binding upon such officers; and the publishers of the laws of the state shall publish such
4 instructions, and furnish the auditor general with so many copies thereof as he may deem necessary.
1 SEc. 25. The auditor general shall keep his office at the seat of government; and shall receive an annual
Where to keep
his office, salary.
2 salary of one thousand five hundred dollars, payable quarter yearly, in full for all his services.
*-
1 Sec. 26. The auditor general may appoint a deputy for whose acts he shall be responsible, and may re- Deputy auditor
CHAP. 12.] ( 36 ) [TITLE 3.
general, his pow-
ers and compen-
Stall Oil.
1840, p. 233, sec.
4.
Clerks and thcir
compensation.
1844, 77, T 1.
Duties of attor-
ncy general.
1J).
'I'o advise prose-
cuting attorneys,
and make report
to legislature.
Abstract of re-
ports of prose-
euting attorney.
2
3
4
2
3
2
3
4.
3
voke such appointment at pleasure; and such deputy may execute the duties of the office during the sick-
ness or necessary absence of the auditor general, and shall receive an annual salary at the rate of seven
hundred dollars, payable quarter yearly.
SEC. 27. He may also employ so many regular clerks as may be necssary not exceeding three, at an an-
nual salary of six hundred dollars payable quarter yearly, and so many extra clerks as may from time to
time be necessary, at a salary not exceeding five hundred dollars a year, payable monthly, or otherwise as
the auditor general may think proper.
The Attorney General.
SEC. 28. The attorney general shall prosecute and defend all actions in the Supreme court, in which the
state shall be interested, or a party; and shall also, when requested by the governor or either branch of the
legislature, appear for the people of this state in any other court or tribunal, in any cause or matter, civil
or criminal, in which the people of this state may be a party or interested.
SEc. 29. It shall be the duty of the attorney general, at the request of the governor, the secretary of
state, the treasurer or the auditor general, to prosecute and defend all suits relating to matters connected
with their departments.
SEC. 30. The attorney general shall consult with and advise the prosecuting attorneys, when requested by-
them, in all matters pertaining to the duties of their offices; and he shall make and submit to the legislature
at the commencement of its annual session a report of all official business done by him during the year
preceding, specifying the suits to which he has attended, the number of persons prosecuted, the crimes for
which, and the counties where such prosecutions were had, the results thereof and the punishment award-
ed.
Sæc. 31. The attorney general shall include in his annual report, an abstract of the annual reports of the
several prosecuting attorneys, with suggestions of such improvements or modifications in the criminal ju-
risprudence of the state as he may deem necesary.
CHAP. 12.] ( 37 ) P [TITLE 3.
2
o o º e e 'To gi tº e
SEC. 32. It shall be the duty of the attorney general, when required, to give his opinion upon all ques- §§'."
by governor, &c.
tions of law submitted to him by the legislature, or by either branch thereof, or by the governor, auditor
- - º notify º
of prosecuting
* & - attorneys.
general, treasurer or any other state officer; and also to notify the county treasurer of the proper county,
o 1841, p. 15, sec.
of the neglect or refusal of any prosecuting attorney to make the annual report to the attorney general 2.
required of him by law.
º
SEC. 33. The attorney general shall receive an annual salary of eight hundred dollars, payable quar-compensation.
ter yearly, and such taxable costs as shall be allowed by law, which shall be in full satisfaction for all his
- 1844, p. 77, sec.
services; but the state shall not be in any way chargeable for such taxable costs. 2.
SEc. 34. All moneys received by the attorney general, for debts due or penalties forfeited to the people ofº,”
this state, shall be paid by him, immediately after the receipt thereof, into the treasury.
SEc. 35. The attorney general shall keep, in proper books to be provided for that purpose at the expense
To keep register
g sº tº 3 of demands &c.,
of the state, a register of all actions or demands prosecuted or defended by him in behalf of the people of and ºlive he
Sºl Iſle to Su CCC.SS-
OT.
this state, and of all proceedings had in relation thereto, and shall deliver the same to his successor in
office.
Official Oaths and Bonds of State Officers.
SEC. 36. The state officers named in this chapter, the lieutenant governor, acting commissioner of inter- certain officers
to file oath, &c.,
of office, &c.,
e * 7 : with secretary
mal improvements, deputy secretary of state, deputy auditor general, deputy treasurer, and secretary of the ºr state.”
board of internal improvements, shall each, before entering on the execution of his office, and within twen-
ty days after receiving official notice of his election or appointment, or within twenty days after the com-
mencement of the term of service for which he was elected or appointed, take and subscribe the oath of
office prescribed in the twelfth article of the constitution of this state, and deposit the same with his bond,
in case a bond be required of him by law, with the secretary of state, who shall file and preserve the same
in his office.
SEC, 37. Such oath may be taken and subscribed before the chancellor, any justice of the supreme COUl I’t.
10
CHAP. 12.] - ( 38 ) - [TITLE 3.
who may ad- 2 a judge of any court of record, the secretary of state, the attorney general, any mayor of a city, or the
minister oaths.
3 clerk of any court of record.
.* * * 1 Sec. 38. If either of said officers shall neglect to deposit his oath or bond, according to the provisions of
2 section thirty-six of this chapter, and shall neglect to give the notice specified in the next section, or if he
3 shall enter upon the execution of his office before he shall have so deposited his said oath or bond, he shall
4 in either case, forfeit and pay to the use of the people of this state, one hundred and fifty dollars, to be sued
5
for and recovered in the name of the people of the state of Michigan, in any court of competent jurisdic-
6 tion.
No penalty im: *
.." "* 1 . SEc. 39. No penalty shall attach on account of any neglect to deposit such oath or bond as aforesaid, in
given.
2 case such officer, before entering upon the execution of his office, and within the time limited for filing such
3 oath or bond,shall give notice in writing to the officer or officers having the power by law to order an elec-
4 tion to fill such office, or to fill the same by appointment, or, in case of an appointment by the governor
by and with the advice and consent of the senate, to the governor, stating therein that he declines accept-
5
6 ing such office.
Annual Reports of State Officers.
i.'..." I Sec. 40. It shall be the duty of the several officers and boards of officers of this state, from whom annual
2 reports are required by law to be made to the legislature, to cause their respective reports to be placed in
3 the hands of the printer of the laws of this state, or of such printer as the secretary of state shall employ,
4 as soon as practicable after the close of the fiscal year ; and such report shall be printed, and ready to be
1839, 116, 117.
5 submitted to the legislature immediately upon the permanent organization of the two houses.
1 SEc. 41. It shall be the duty of each of said officers to examine and correct the proof sheets, and super-
Proof sheets by
whom to be ex-
amined and cor- * & - * tº ber some oth-
rected. 2 intend the publication of his report; and each of sāid boards shall appoint one of its members 9' 39" "
•º
3 er suitable person to superintend the publication of its report.
SEc. 42. Of each of the said reports of the treasurer, the auditor general, and the board of internal Ill?-,
.*
Number of co- l
CHAP. 12.] * ( 39 ) {[Title 3.
2 provements, two hundred copies shall be printed and furnished to the senate, and three hundred copies to the "“”
3 house of representatives; of the report of the superintendent of public instruction, four hundred copies
4 shall be printed and furnished to the senate, and six hundred copies to the house of representatives; and of
5 each of the said reports of the several other state officers required to make such reports, one hundred cop-
..º
6 ies shall be printed and furnished to the senate, and one hundred and fifty copies to the house of representa-
7 tives. *
1 SEC. 43. There shall also be printed at the same time, five hundred additional copies of each of said re- §: -
&c., to be print-
ed for binding.
2 ports, which shall be preserved for binding with the other joint documents of the session of the legislature
3 to which they are made.
Board of State Auditors.
©
1 SEC. 44. The secretary of state, the state treasurer and the attorney general shall constitute a board of Board of state
auditors, their
powers and du-
2 state auditors, and as such, they shall have power, and it shall be their duty, annually to enter into a full ties.
3 settlement and final adjustment, with every officer and agent of the state, who may be authorized to receive,
4 keep, or disburse any moneys belonging to this state, of all and singular, debits, credits, claims and demands
5 of whatever kind or description, between such officer or agent and this state ; Provided, That in all set-
6 tiements with the state treasurer, the auditor general shall be a member of said board for that purpose, toº. p. 13, Sec
e
7 the exclusion of said treasurer.
1 Sec. 45. The annual settlement of the accounts of the several receiving or disbursing officers or agents of...
counts to be
made.
2 this state, before the board of state auditors, shall be had as soon after the first day of December in each
3 year, as the accounts of said officers on the books of the auditor general, can be closed for the preceding fis-Notice to be gi.
- VCI).
4 cal year; of which time the auditor general shall give notice to the treasurer, who shall thereupon require
5 said sevaral officers and agents to appear before said board at his office, on some day to be designated by lsº, p.3, see.
6 him, of which time he shall also notify the other members of the board.
º tº , e - º - . Settl
1 SEC. 46. As soon as practicable after the expiration of the official term, or resignation of any such receiv-º ementor
CHAP. 12.]
( 40 ) [TITLE 3.
accounts of offi-
cers resigning,
&c.
1844, p. 32, Sec.
When party en-
titled to Warrant.
Proceeding
when party is
indebted to state.
sº p. 14, Sec.
Annual report
of state auditors.
1842, p. 15, sec.
5.
State library to
be kept by sc-
cretary of state.
1837, p. S.
Where kept, and
who have ac-
ceSS to,
Secretary to re-
port condition of
library annually.
2 ing or disbursing officer or agent, the auditor general shall give notice to the board of auditors, and to such
3 officer or agent, to meet at the office of the state treasurer, for the purpose of making a full and final settle-
4 ment of the accounts of such officer or agent, and the said board shall proceed thereon in the same manner
5 as is provided in relation to the annual settlement of said accounts.
*.
1 SEc. 47. Iſ upon a balance being struck on any settlement made in pursuance of this chapter, it shall ap-
§
2 pear that the state is indebted to the party with whom such settlement is made, he shall be entitled to a
3 warrant upon the treasurer therefor forthwith ; but if it shall appear that such party is indebted to the state,
4 said board shall demand immediate payment of the amount due ; and if for any cause, such payment is
5 not immediately made, the ſact shall be entered upon the books of the treasury, and the treasurer shall give
6 notice thereof to the auditor general, and the auditor general shall not thereafter draw any warrant in fa-
7 vor of such person upon the treasurer, until such payment be made.
1 SEC. 48. The board of state auditors shall submit to the legislature annually, at the commencement of its
2 session in January, a report of their doings during the year next preceding.
Of the State Library.
1 SEc. 49. The secretary of state shall have the charge and safe keeping of the state library, and shall
2 from time to time make such regulations as may be necessary for the management, safety and improve-
3
ment thereof, subject to the revision of the legislature.
1
SEC, 50. The state library shall be kept in the room in the capitol which it now occupies, until some oth-
2
er provision shall be made in reference thereto, and the members of both houses of the legislature, and the
3
executive and judicial officers of the state, shall at all times have free access thereto, under such regula-
4.
tions as shall have been made by the secretary of state.
l
SEC, 51. The secretary of state shall make to the legislature at the commencement of each annual session
2
thereof, a detailed report of the condition of the library, setting forth the amount expended by virtue of any
ess-
appropriation made for the contingent expenses or the enlargement of the library, the sums necessary to
3
CHAP. 13.] - ( 41 ) [TITLE 3.
4 defray the contingent expenses for the support and preservation of the institution, and all such other mat- -
- 1837-8, p. 9, sec.
6.
5 ters as in his opinion may tend to the improvement and protection of the library and its appendages.
Of the Adjutant General.
1 SEC. 52. An adjutant general for this state shall be appointed by the governor, by and with the advice *:::::: º
his rank and
term of Office.
2 and consent of both branches of the legislature in joint convention, who shall be of the rank of brigadier
- 1844, p. 100, sec.
3 general, and shall hold his office for two years, and until his successor shall be appointed and qualified. -
.*
1 SEc. 53. The adjutant general shall, before entering upon the duties of his office, and within twenty days
Oath of office
and compensa-
2 after notice of his appointment, take the oath of office prescribed in the twelfth article of the constitu- tion.
$ ,
3 tion, and file the same with the secretary of state, and shall receive as a full compensation for all his ser-
1844, p. 100, sec.
f .
4 vices, the sum of three hundred dollars annually, payable quarter yearly.
tº
1 SEc. 54. The adjutant general shall, in each year, prepare a return of the militia of this state, exhibiting ro make return
of militia to go.--
vernor annually.
2 their full numerical strength, together with all the arms and military stores belonging to the state, designa- .
3 ting the several kinds, condition and place of deposit, which return he shall deliver to the governor on or
4 before the first day of December.
1 SEc. 55. The adjutant general shall perform all such other duties, relating to the militia, arms and mili-one, aude,
2 tary stores of this state, as are or shall be required of him by law.
CHAPTER 13.
OF COUNTIES.
1 SECTION 1. The boundaries of the several counties in this state, shall remain as now established, unless
Boundaries of
counties.
2 the same shall hereafter be changed by the legislature.
1 SEC. 2. All the rights, powers, duties, privileges and immunities of the several counties, shall remain as
Rights, powers,
&c, of counties.
2 now established until the same shall be altered by law.
11
CHAP. 18.] - ( 42 ) [TITLE 3.
For what pur-
poses counties
bodies corpor’te.
Conveyances
for the benefit of
Counties, their
force and effect.
How real estate
of county may
be conveyed.
Common juris-
diction of
Wayne and
Monroe.
l?rocess from.
Common juris-
diction of
Wayne, Macom',
and St Clair,
1 SEC. 3. Each organized county shall be a body politic and corporate, for the following purposes, that is to
2 say : to sue and be sued; to purchase and hold real and personal estate for the use of the county; to bor-
3 row money for the purpose of erecting and repairing county buildings, and for the building of bridges, to
4 make all necessary contracts, and to do all other necessary acts in relation to the property and concerns of
5 the county.
1 SEc. 4, All real and personal estate, heretofore conveyed by any form of conveyance to the inhabitants
2 of any county, or to the county treasurer, or the governor of the late territory of Michigan, or to any com-
3 mittee, trustees, or other persons, ſor the use and benefit of such county, shall be deemed to be the property
4 of such county; and all such conveyances shall have the same force and effect as if they had been made
5 to the inhabitants of such counties by their respective corporate names.
1 SEC. 5. The board of supervisors of each county or other public officers having the charge and management
2 of the county lands, may, by their order of record, appoint one or more agents to sell any real estate of
3 their county not donated for any special purpose, and all deeds, made on behalf of such county, by such
4 agents under their proper hands and seals, and duly acknowledged by them, shall be sufficient to convey all
5 the right, title, interest and estate which the county may then have in and to the land so conveyed.
Common Jurisdiction of certain Counties.
1 SEC. 6. The counties of Wayne and Monroe shall have jurisdiction, in common, of all offences committed
2 on that part of lake Erie which lies within the limits of this state; and such offences may be heard and tried
3 in either of said counties in which legal process against the offender shall be first issued, and in like man-
4 ner and to the same effect as if such offence had been committed in any other part of either of said counties.
1 SEC. 7. All civil process from either of the counties of Wayne or Monroe, may run into and be executed
2 within and upon that part of lake Erie which lies within the limits of this state.
1 SEC. 8 The counties of Wayne, Macomb and St. Clair, shall have jurisdiction, in common, of alf offen-
CHAP. 13. •. º
P I ( 43 ) [TITLE 3.
- *.x
2
3
4
5
3
**ommitted on that part of lake St. Clair which lies within the limits of this State ; and such offences
may be heard and tried in either of said counties in which legal process against the offender shall be first
issued, in like manner, and to the same effect as if the offence had been committed in any part of either of
said countles.
SEC. 9. All civil process from either of the counties of Wayne, Macomb or St. Clair, may run into, and P f
TOCeSS frog.
be executed within and upon, that part of lake St Clair, which lies within the limits of this state.
SEc. 10. The counties of Berrien, Van Buren, Allegan, Ottawa and Mackinaw, and such other counties
Common jnris-
diction of Berri-
as shall hereaſter be organized upon the easterly shore of lake Michigan, shall have jurisdiction, in com- ºie." 3.
egan, Ottawa
and Mackinaw.
mon, of all offences committed on that part of lake Michigan which lies within the limits of this state ; and
such offences may be heard and tried in either of said counties,in which legal process against the offender,
shall be first issued, in like manner and to the same effect, as if the offence had been committed in any part
isºl, p. 14, sec.
of either of said counties.
Sec. 11. All civil process from either of the counties of Berrien, Van Buren, Allegan, Ottawa or Mack-
e ſº * * Process from.
inaw,or from any such other counties as shall hereafter be crganized upon the easterly shore of lake Mich-
igan, may run into, and be exccuted within and upon that part of lake Michigan, which lies within the lim-
\º 1841, p. 14,sec. 2.
...”
its of this state.
SEc. 12. The counties of Saginaw, Mackinaw and St. Clair, and such other counties as may hereafter be
Common juris-
wº & * * & * . & li ſi - * w g
organized upon the shore of lake Huron, shall have jurisdiction in common of all offences committed on ...º.º.
Af and St. Clair,
that part of lake Huron which lies within the limits of this state ; and such offences may be heard and tried
in either of said counties in which legal process against the offender shall be first issued, in like manner,
and to the same effect, as if the offence had been committed in any part of either of said counties.
Civil process
h from.
SEc. 13. All civil process from either of the counties of Saginaw, Mackinaw, or St. Clair, or from suc
other counties as may hereafter be organized upon the shore of lake Huron, may run into, and be ex-
ecuted within and upon that part of lake Huron which lies within the limits of this state.
CHAP. 13.] ( 44 ) [TITLE 3.
Chippewa, &c.
Process from.
Jºach county to
provide suitable
buildings.
Prison limits.
When county
shall reimburse
sheriff, &c.
Certain districts
annexed, to be
deemed part of
county,
1 Sec. 14. The county of Chippewa, and such other counties as may hereafter be organized upon the shore
2
of lake Superior, shall have jurisdiction, in common, of all offences committed on that part of lake Su-
3 perior which lies within the limits of this state, and such offences may be heard and tried in either of such
4 counties in which legal process against the offender shall be first issued, in like manner and to the same ef.
5 fect as if the offence had been committed in any part of either of said counties.
1 SEC. 15. All civil process from the county of Chippewa, or from such other connties as may hereafter
2 be organized upon the shore of lake Superior, may run into, and be executed within and upon, that part of
3
lake Superior which lies within the limits of this state.
County Buildings.
I Sec. 16. Each organized county shall, at its own proper expense, provide a suitable court house, and
2 a suitable and sufficient jail, and fire-proof offices, and all other necessary public buildings, and keep the
3
same in good repair.
1 SEC. 17. The prison limits of each county, shall extend to all places within the boundaries of the county.
1
SEc. 18. In case of the escape of any prisoner, by reason of the insufficiency of the jail, whereby the
2 sheriff, or other officer performing the duties of sheriff, shall be made liable to any party at whose suit such
3 prisoner was committed, the county shall reimburse and pay all sums of money recovered of the sheriff or
4
such other officer by such party, by reason of such escape.
-
Unorganized Counties.
1 SEc. 19. Unorganized counties and other districts, annexed, or hereafter to be annexed to any organized
2 county for judicial purposes, shall, for every purpose be deemed to be within the limits of the county to
3 which they are or may be so annexed, and as forming a part thereof, unless, and until, otherwise provided
4 by law.
CHAP. 13.] ( 45 ) [TITLE 3.
2
Division of Counties, &c. \
Sec. 20. When a county seized of lands shall be divided into two or more counties, or shall be altered in
Lands of coun-
tº tº º ſº * ties on division,
its limits, by annexing a part of its territory to any other County or counties, each county shall become &c.
seized to its own use, of such part of said lands as shall be included within its limits, as settled by such di.
vision or alteration.
SEC, 21. When a county possessed of, or entitled to money, rights, credits, things in action or personal
Property, how
apportioned on
property, shall be so divided or altered, or when any unorganized county or district annexed to any county division:
for judicial purposes, shall be organized into a separate county, such money, rights, credits, things in ac-
tion or personal property, shall be adjusted and wronimº. and a settlement thereof made between the
counties interested therein, by the supervisors thereof, as to them or a majority of them shall appear to be
just and equitable.
SEc. 22. The supervisors aforesaid shall meet for the purpose of such settlement, at such time as shall be
The supervisors
to meet for Settle-
Iment.
prescribed by the law making such division or alteration; or if no time is prescribed by such law, at such
time as the board of supervisors of either of the counties interested shall appoint, at the office of the treas-
urer of the county retaining the original name of the county so divided or altered.
Sec. 23. Debts owing by a county so divided or altered, shall be apportioned in the manner prescribed
Debts to be ap-
portioned.
in section twenty-one of this chapter, and each county shall thereafter be charged therewith, according to
such equitable apportion ment. g
SEc. 24. In case of the division or alteration of a county as aforesaid, if the supervisors cannot agree
Commissioners
to be appointed
* * t º º * e e if supervisors
upon a settlement, as provided in this chapter, the supervisors of either of the counties interested may ap-Gannà agree.
ply to the circuit court for any adjoining county, for the appointment of five judicious men residing within
a county not interested, to be commissioners for the purpose of settling and determining the matters afore-
said between such counties; and upon such application, such circuit court shall appoint such commissioners -
for the purpose aforesaid.
12
CHAP. 13.]
( 46 ) [TITLE 3.
Connmissioners
to meet and
make determina-
tion.
Suits between
counties, &c.
How counties to
sue and be sued.
Process in pro-
ceedings against
supervisors, on
whom to be
served, duty of
chairman &c.
Who compe-
tent Witnesses
and jurors.
What actions
may be prosecu-
led before a jus-
tice.
*.
l
Sec. 25. Such commissioners shall meet at such time as they may appoint, and after being duly sworn
faithfully and impartially to perform their duties as such commissioners, shall proceed to examine into the
merits of the matters aforesaid, and shall make such détermination in relation thereto as to them, or a ma-
mjority of them shall appear to be just and equitable, which determination shall be entered at length by the
clerks of the respective counties so interested as aſoreseid, upon the journals of the board of supervisors
thereof, and shall be final and conclusive betweensuch parties.
Of legal proceedings in favor of, and against counties.
SEc. 26. Whenever any controversy or cause of action shall exist, between any of the counties of this
state, or between any county and an individual or individuals, such proceedings shall be had either in law
or equity, for the purpose of trying and finally settling such controversy, and the same shall be conducted
in like manner, and the judgment or decree therein shall have the like effect, as in other suits or proceed-
ings between individuals and corporations.
SEc. 27. In all such suits and proceedings, the name in which the county shall sue or be sued, shall be
“The Board of Supervisors of the county of ”; (the name of the county,) except in
cases where other county officers shall be authorised by law to sue in their name of office, for the benefit
of the county.
SEC. 28. In all legal proceedings against the board of supervisors, the process shall be served on the chair-
man or clerkof the board; and whenever any such suit or proceeding shall be commenced, it shall be the duty
of such chairman or clerk to notify the prosecuting attorney thereof, and to lay before the board of super-
visors, at their next meeting, all the information he may have in regard to such suit or proceeding.
SEc. 29. On the trial of every action in which a county shall be interested, the electors and inhabitants
of such county shall be competent witnesses and jurors.
SEc. 30. Any action in favor of a county, which, if prosected by an individual, could be prosecuted be-
fore a justice of the peace, may be prosecutcd by such county in like manner, before any such justice.
CHAP. 14 J - * - ( 47 ) [TITLE 3.
2
SEc. 31. In all suits and proceedings prosecuted by or against counties, or by or against county officers in
- * * Costs.
their name of office, costs shall be recoverable as in like cases against individuals.
SEC. 32. When a judgment shall be recovered against the board of supervisors, or against any county offi-
Proceedings to
collect judgment
against board of
supervisors, &c.
cer in an action prosecuted by or against him in his name of office, no execution shall be awarded or issued
upon such judgment, but the same, unless reversed, shall be levied and collected as other county charges,
and when so collected shall be paid by the county treasurer to the person to wbom the same shall have been
adjudged, upon the delivery of a proper voucher therefor.
1
CHAPTER 14.
OF COUNTY OFFICERS.
Of the Board of Supervisors.
Sec. 1. The supervisors of the several townships and wards in each of the counties of this state,
* g sº g * º & wº Meetings of su-
shall meet annually in their respective counties for the despatch of business, as a board of supervisors.-pervisors.
They may also hold special meetings when necessary, at such times and places as they may find conve-
nient, and shall have power to adjourn from time to time as they may deem necessary.
SEc. 2. The annual meetings of the boards of supervisors shall be held on the second Monday of October
Annual meeting
tº e g & e of board , when
in each year, at the court house in each county, if there be one, and if there be no court house in the coun- and where held.
1842 p. 32, sec.3,
ty, then at the place where the last circuit court shall, or ought to have been held. jºi"; ;
- 21, 1844, p. 162,
sec. 10.
SEc. 3. The board of supervisors of each county in this state shall have power, at their annual meetings,
- Powers of board.
or at any other legal meeting, excepting where some other provision is specially made by law,
1 To make such orders concerning the corporate property of the county, as they may deem expedient :
2 To examine, settle and allow all accounts chargeable against such county; and to examine and settle
all accounts of the receipts and expenditures of the county :
CHAP. 14.] ( 48 )
[TITLE 3.
1840, p. 161, sec.
1.
Who supervi-
sors in the city of
Detroit, 1842, p.
22, sec. 2.
Quorum for bu-
Sln CS8,
Meetings to be
public.
Chairman of
board.
Chairman may
administer oaths.
6
7
8
19
10
II
12
14
15
2
3
2
3 To provide for the erection and reparing of court houses, jails, poor houses, and all other necessary
&
public buildings within, and for the use of the county :
4. To require the county treasurer to cause to be insured, any or all the public buildings belonging to the
county, in the name of said treasurer and his successors in office :
5. To borrow money for the purpose of erecting and completing the county buildings and for the
building of bridges within the county, in the cases provided for by law :
6. To represent the county, and to have the care of the county property, and the management and busi-
ness of the county, in all cases where no other provision shall be made :
Af -
7. To direct the raising of such moneys as may be necessary to defray the county charges and expenses,
and the necessary charges incident upon, or arising from the execution of their lawful authority ; and,
8. To perform all other acts and duties which may be authorized and required by law.
SEc. 4. The city of Detroit shall be entitled to one supervisor for each ward ; and the assessor elected
for each ward at the annual charter election of said city, shall be the supervisor of his ward.
SEc. 5. A majority of the supervisors of any county shall constitute a quorum for the transaction of
business; and all questions which shall arise at their meetings shall be determined by the votes of a majo-
rity of the supervisors present.
SEc. 6. The boards of supervisors shall sit with open doors, and all persons may attend their meetings.
SEc. 7. They shall, at their first meeting in each year, choose one of their number as chairman, who
shall preside at such meeting and at all other meetings, during the year, if present ; but in case of his ab-
sence from any meeting the members present shall choose one of their number as a temporary chairman.
SEC. 8. Every chairman shall have power to administer an oath to any person, concerning any matter
submitted to the board, or connected with their powers or duties.
SEC. 9. Each board of supervisors may borrow, when necessary for the erection of public buildings of
CHAP. 14.] ( 49 ) & [TITLE 3.
2
3
5
the county, or the building of bridges therein, any sum of money not exceeding fiſteen thousand dollars in
Supervisors may
borrow money
e & for erection of
all, at an interest not exceeding seven per cent per annum, and for a term not less than five, nor more buildings, &c.
than fifteen years; or may raise the same by a tax; but no board of supervisors shall borrow or raise by
• - Act No. 44, 1845.
a tax for such purposes more than two thousand dollars, unless authorised by a majority of the electors, as is
provided in the two next succeeding sections.
SEC. 10. Whenever the board of supervisors of any county shall, by a vote or resolution, determine that
it is necessary to borrow or raise by a tax a greater sum than two thousand dollars for the purposes men-when mode, to
be given that
votc. Will be ta-
tioned in the preceding section, they shall cause a notice thereof to be posted up in three of the most public ken.
places in each township within the county, at least thirty days before the next annual election or township
meeting, specifying the amount proposed to be borrowed or raised by a tax, and the purpose for which the
same is to be expended, and that a vote of the qualified electors of said county will be taken thereon at such
annual election or township meeting.
SEc. 11. At the time specified in said notice, a vote of such electors shall be taken for and against such
*N
proposed loan, or tax, as the case may be, and the votes shall be canvassed by the township canvassers, and Nºi;
thereon.
the result certified by them, and transmitted to the county clerk within ten days after such vote shall have been
taken; and such clerk shall deliver such certified statements to the board of supervisors at their next meet-
ing; and if it shall appear from such certificates, that a majority of said electors have voted for such loan
or tax, it shall be the duty of the board of supervisors to borrow or raise as aforesaid the sum specified in
their said notice.
Sec. 12. Whenever the said board shall have borrowed or raised by a tax any money as aforesaid, such
ſº e Moneys to be
money shall not be used for any other purpose than that for which the same was borrowed or raised ; and jºsu-
ry, and how ap-
plied.
such money shall be paid into the county treasury, and may be drawn therefrom for the purposes aforesaid
in the same manner as other moneys may be drawn from the treasury for the contingent charges of the 1811, p.40, see.1.
county.
13
CHAP. 14.] ( 50 ) - [TITLE 3.
1 SEC. 13. The said board shall provide for the payment of the moneys borrowed by them as above provided,
How payment of
money borrowed
to be provided e o • & • : ©
for. 2 with the interest thereon, in the same manner as is provided for the payment of the contingent expenses of
3 the county.
1 SEc. 14. The county clerk of each county shall be the clerk of the board of supervisors of said county,
County clerk to
be clerk of
board, his com-
pensation. 2 and shall be allowed for his services as such clerk, a reasonable compensation, to be fixed by the board, and
3
to be paid by the county.
1 Src. 15. It shall be the general duty of such clerk,
tººI duty of 2 1. To record in a book to be provided for that purpose, all the proceedings of the board :
3 2. To make regular entries of all their resolutions and decisions, on all questions concerning the raising
4 of moneys :
5 3. To record the vote of each supervisor on any question submitted to the board, if required by any mem-
*
6 ber present ; and,
7 4. To preserve and file all accounts acted upon by the board.
1 SEc. 16. The books, records and accounts of the boards of supervisors, shall be deposited with their clerk,
2 and shall be open without any charge, to the examination of all persons; and the clerk shall deliver to any
Clerks to keep
books, &c., and
give copies
when demanded.
3
person who may demand it, a certified copy of any account on file in his office, on receiving ſrom such
4 person six cents for every folio of one hundred words contained in such copy.
1 SEC. 17. It shall be the duty of the clerk to designate upon every account upon which any sum shall be
Clerks to desig-
te amounts al- e e
... 2 audited and allowed by the board, the amount so audited and allowed, and the charges for which the same
3
was allowed.
1 Sec. 18. It shall be the duty of the several boards of supervisors, as often as shall be necessary, to cause
Supervisors to -
cause buildings
to be repaired,
*
2 the court house, jail, and public offices of their respective counties, to be duly repaired at the expense
3 of such county ; but the sums expended in such repairs shall not exceed five hundred dollars in any one
4 year.
CHAP. 14.] ( 51 ) te [TITLE 3.
1
2
2
SEc. 19. They shall also cause to be prepared within the jails of the respective counties, at the expense
Solitary cells in
county jails.
of such counties, so many solitary cells for the reception of convicts who may be sentenced to punishment
therein, as the circuit court for the county may direct.
...”
SEC. 20. Each member of the board of supervisors shall be allowed a compensation for his services and
Compensation of
supervisors.
expenses in attending the meetings of the board, at the rate of one dollar and fifty cents per day, and six
cents for each mile travelled in going from the residence of the supervisor to the place of meeting, to be 1842, p.28, sec.4,
audited by the board, and paid by the county.
f
SEc. 21. The several boards of supervisors shall cause to be made out and published yearly, immediately
Reports of re-
ceipts and expen-
tº e ſº ſº º tº - o ... di to be pu-
after their annual meeting, in at least one newspaper published in the county, and if none be published intº
the county, then in some other newspaper published in the state, a report of the receipts and expenditures
*
of the year next preceding, and the accounts allowed.
SEc. 22. A special meeting of the board of supervisors of any county, shall be holden only when reques-
- When special
& © e * > • ſº tº , tº º f bo'rd
ted by a majority of the supervisors in such county ; which request shall be in writing, addressed to the º
county clerk, and specifying the time and place of such meeting; and upon the reception of such request,
the clerk shall immediately give notice of such meeting to each of the supervisors aforesaid ; but not more
than fifteen days shall be occupied by any board of supervisors in any year, in the holding of special
meetings.
SEC. 28. If any supervisor shall refuse or neglect to perform any of the duties which are or shall be re-
* . ..º. *
lect of duty Dy
quired of him by law, as a member of the board of supervisors, without just cause therefor, he shall, for supervisors.
each offence forſeit one hundred dollars.
SEC. 24. When any claim of any person against a county, shall be disallowed in whole or in part by the
Appeals to cir-
cuit Court.
board of supervisors, such person may appeal from the decision of the board disallowing the same, to the
circuit court for the same county, by causing a written notice of such appeal to be served on the clerk of ..",".. & 56,
- SCC, e
4 such board within twenty days after the making of such decision.
CHAP. 14 J ( 52 ) [TITLE 3.
Clerk to give no-
tice of appeal to
prosecuting at-
torney, &c.
1S40, p. 56, Sce.
4.
Procedings on
appeal, costs, &c.
1810, p.56, sec.5.
Board of audit-
ors for county of
Wayne.
1844, p. 122.
Meeting of board
&c.
l
2
5
4
5
*
Sec. 25. The clerk of the board, on receiving such notice of an appeal, shall immediately give notice
thereof to the prosecuting attorney, unless he shall be a party to, or interested in such appen, and the pro-
secuting attorney shall thereupon appear in the matter of such appeal in behalf of the county, and defend
therein ; but if the prosecuting attorney shall be a party to, or interested in the appeal, then the clerk shall
give notice thereof to the supervisors, or one of them, who may employ some other attorney to attend there.
to in behalf of the county.
SEc. 26. The court to which such appeal may be taken, shall proceed to hear and determine the same in
a summary manner, at the next term after the same shall have been taken, unless it shall be continued up-
on good cause shown ; and if such court shall affirm the decison appealed from, judgment mal thereupon be
rendered against the party appealing, for costs; but if the whole, or any part of the account disallowed by
the board of supervisors, shall be allowed by the court, such court may in its discretion, allow costs to the
6 party appealing ; and the clerk of said court shall prepare and file with the board of supervisors, at their
7
7
next meeting after such determination, a statement of the decision of the court on such appeal.
Board of Auditors for the County of Wayne.
SEC, 27. There shall continue to be a board of county auditors for the county of Wayne, composed of
three persons, one of whom shall be elected annualy at the general election in said county, and shall hold
his office for the term of three years, and until his successor shall be elected and qualified ; but no two of
such auditors shall be residents of the same township or city.
SEc. 28. The annual meeting of the board of auditors shall be holden at the office of the county clerk on
the first Monday of October in each year, and the auditor having the shortest portion of a regular term to
serve, shall be the chairman of the board; and such board shall have power to adjourn from time to time,
when necessary for the transaction of business; and may hold special meetings at such times and places
as a majority of them may deem proper, public notice thereof being first given by the clerk of the board,
by publishing the same in a newspaper printed in said county, at least ten days before the holding
thereoſ.
CHAP. 14.] ( 53 ) •
[TITLE 3.
5
2
2
SEC. 29. The said board of auditors shall have and exercise all the powers, and perform all the duties
Powers and du-
lićS.
conferred or imposed upon the boards of supervisors of the several counties in this chapter, or by any oth-
er provision of law, except those mentioned in the next succeeding section ; and the board of supervisors
of the county of Wayne shall not have or exercise any of the powers herein conferred upon said board of
auditors. >
*
SEc. 30. The supervisors in the county of Wayne shall hold their annual meeting in each year, at the º
pervisors for
county of
e w wº Wayne.
time and place appointed by law; and shall have and exercise all the powers conferred by law upon the
supervisors of the several counties, in relation to the equalizing and correcting of the assessments in said
º
county, apportioning the state and county taxes to be collected in the several townships, ascertaining and
&
sº
returning the aggregate valuation of real and personal property in the county, and all other matters con-
nected with the assessment and collection of taxes within said county.
SEc. 31. The said board of county anditors shall, on or before the annual meeting of the board of super- Auditors to re-
port amount of
tax necessary to
& Uc raised.
visors in said county in each year, ascertain and report to said board of supervisors, the amount of tax ne-
cessary to be raised therein for county purposes.
SEC. 32. Appeals may be taken from the determination of said board of auditors in the same cases, in the Appeal how ta-
* - ken.
same manner, and with the like effect, as provided in relation to appeals from the determinations of boards
of supervisors of the several counties.
º
SEC. 33. The county clerk of the county of Wayne shall be the clerk of said board of auditors, and shall
Clerk of board of
auditors; his
Perform the same duties as clerk of such board as the clerks of the several counties are required to perform".
as clerks of the boards of supervisors therein.
SEC, 84. Each of said auditors shall be allowed for his services and expenses in attending the meetings of the Compenation of
auditors,
board, at the rate of one dollar and fifty cents per day, and six cents per mile for travelling from his resi-
14
CHAP. 14.] ( 54 ) - [TITLE 3.
County treasur-
cr, elected for
two years,to give
bond.
Bond to be given
to supervisors,
its condition.
Deputy.
Office, how sup-
plied in case of
l vacancy, &c.
Who not to le
{rC:1Sll rer.
3
4
dence to the place of meeting; to be certified by the clerk, and audited by the associate judges of the cir.
cuit court for the county of Wayne.
Of the County Treasurer.
SEC. 35. The county treasurer shall be elected at the general election, for the term of two years, and shall
2 give a bond for the faithful and proper discharge of the duties of his office, as hereinafter directed.
*-
SEc. 36. The said bond shall be given to the board of supervisors of the county, with three or more suffi-
2 cient sureties to be approved of by the board of supervisors, and in such sum as they shall direct, condition-
I
l
ed that such person, and his deputy, and all persons employed in his office,shall ſaithfully and properly ex-
ecute their respective duties and trusts, and that such treasurer shall pay according to law, all monies which
shall come to his hands as treasurer, and will render a just and true account thereoſ whenever required
by the board of supervisors, or by any provision of law : and that he will deliver over to his successor in
office, or to any other person authorized by law to receive the same, all moneys, books, papers
*.
and other things appertaining or belonging to said office.
SEc. 37. The county treasurer may appoint a deputy, who, in the absence of the treasurer from his office,
or in case of a vacancy in said office, or any disability of the treasurer to perform the duties of his office,
may perform all the duties of the office of treasurer, until such vacancy be filled, or such disability be re-
moved.
Sec. 38. In case the office of county treasurer shall become vacant, or in case the treasurer from any
cause, shall be incapable of discharging the duties of his office, the board of supervisors may, if in their opin-
ion the interests of the county require it, by writing under their hands, select a suitable person to perform
the duties of the treasurer; and such person so selected, upon giving such bond for the faithful performance
of the duties of the office as the said board shall direct, may perform such duties until such vºy shall be
filled or such disability be removed.
SEc. 39. No person holding the office of prosecutig attorney, associate judge of the circuit court, county
2 clerk, supervisor or sheriff, shall hold the office of county treasurers
CHAP. 14.] - ( 55 ) [TITLE 3.
I
2
2
2
1
SEc. 40. It shall be the duty of the county treasurer to recive all monies belonging to the county, from
To receive and
pay moneys.
whatever source they may be derived ; and all monies received by him for the use of the county, shall be
paid by him only on the order of the board of supervisors, signed by their clerk, and countersigned by their
chairman, except when special provision for the payment thereof is or shall be otherwise made by law.
SEc. 41. At the annual meeting of the board of supervisors, or at such other time as they shall direct, the
To exhibit books
&c., to supervi-
* * * * e SOI. S.
county treasurer shall exhibit to them, all his books and accounts, and all vouchers relating to the same, to
be audited and allowed.
SEC. 42. Upon the death, resignation, or removal from office, of any county treasurer, all the books and M &
S &C., t
x, i. .
e º & º e g * * * successor.
papers belonging to his office, and all moneys in his hands by virtue of his office, shall be delivered to his
©
successor in office, upon the oath of the preceding county treasurer, or in case of his death upon the oath
of his executors or administrators.
Sec. 43. The county treasurer shall receive for his services, such compensation as the board of supervi-compensation.
sors shall deem reasonable to be allowed and ordered by them.
Sec. 44. When directed by the board of supervisors, the county treasurer shall cause to be insured any or
Insurance of
buildings of
all the public buildings belonging to the county, as said board shall direct, and the insurance thereon shall “”
º ſº . 1840, p. 161.
be taken in the name of the treasurer, and his successors in office. p
SEc. 45. In case of the destruction of, or damage done to the buildings so insured, the treasurer shall have Treasurer to
collect moneys in
case of damage.
authority, and it shall be his duty, to demand and receive the moneys which shall be due on acconnt of such
insurance, and in case of neglect or refusal to pay the same, he shall sue for and collect such moneys in
his name of office whenever directed by the board of supervisors, and pay the same into the county treas-
- e © & * * * * e ºn e º ºn tº 1840. n. 161, sec.
ury, to be used in repairing or rebuilding such public buildings. ºw, p. 101, e.
SEc. 46. Whenever the condition of the county treasurer's bond shall be forfeited, to the knowledge of the Bond, whenlo
be put ill suit.
*
2 board of supervisors of the county, they shall cause such bond to be put in suit.
*
CHAP. 14.] ( 56 ) [Title 3.
1 SEC. 47. All moneys recovered in any such action, shall be applied by the board of supervisors to the use
Moneys recov'ed
on bond, how ap-
plied.
2 of the county, or to such other use or uses as the same ought properly to be applied to.
*
To keep office at 1 SEc. 48. The county treasurer shall keep his office at the seat of justice for the county.
seat of justice.
Associate Judges of the Circuit Court.
rw, assoºn, 1 SEc. 49. Two associate judges of the circuit court for each of the organized counties of this state, shall
judges elected
§ four years.
inst., art. 6, º
ºf ur 2 be elected at the general election for the term of four years.
*
*
- © & º & o - we º nsellor
Not to practice *t * ircuit court for any count shall practice as an attorney or couns
as attorney, &c., 1 SEc. 50. No associate judge of the c y y p
within his coun-
ty.
2 at law within such county.
compensation. 1 SEc. 51. Each of the said associate judges shall be allowed and paid for his services as a member of the
2 circuit court, while attending the session thereof, two dollars per day 3 and for travelling to and from the
3 court, at the rate of two dollars for every twenty miles, to be paid by the county; and for other services,
# * * * * 4 such fees and compensation as shall be allowed by law.
Judge of Probate.
1 Sec. 52. The judge of probate for each organized county shall be elected at the general election, for the
Judge of probate
to be elcted for
ſour years, to
have custody of 2 term of four years, and shall have possession of the seal, records, books, files and papers belonging to the
probatc records.
3 court of probate, and shall keep a record of all orders, decrees and other official acts made or done by him,
Const.,art. 6,sec. º & - -
*** 4 which record may be inspected by all persons interested without charge.
*...* I SEc. 53. The judge of probate shall keep his office at the seat of justice ſor the county; and he shall re-
justice.
Compensation.
2 ceive such compensation for his services as shall be allowed by law.
Prosecuting Attorney.
Prosecuting at-
ºpen 1 SRC. 54. The prosecuting attorneys shall, in their respective counties, appear for the state or county, and
Sº, "7, 2 prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions wheth-
8 er civil or criminal, in which the state or county may be a party or interested.
Char. 14.]" ( 57 ) $ [TITLE 3.
\
SEc. 55. Each prosecuting attorney shall, when requested by any magistrate of the county, appear in be-To attend º
Imagistrates, &c.
l
2
half of the people of this state before any such magistrate, other than those exercising the police juris-
3 diction of incorporated cities and villages, and prosecute all complaints made in behalf of the people of
4 this state, of which such magistrate shall have jurisdiction.
1 SEc. 56. The prosecuting attorneys shall give opinions, in cases where the state or county may be a party to give opinion,
in certain cases.
2
or interested, when required by any civil officers in the discharge of their respectve official duties relating
3
to the interests of the state or county.
1 SEC, 57. Each prosecuting attorney shall, in the month of November in each year, make and transmit to
Report of prose
cuting attorney.
2
the attorney general, a report, setting forth particularly the amount and kind of official business done by
3 him in his county in the preceding year, the number of persons prosecuted, the crimes and misdemeanors
4 for which such prosecutions were had, the result thereof, and the punishments awarded.
1 SEC. 58. Each prosecuting attorney who shall neglect or refuse to make and transmit his annual report as
Penalty for neg-
lect to make re-
rquired by the preceding section, shall forfeit the sum of fifty dollars for each and every such neglect or port.
2
3
refusal.
1 SEC, 59. No prosecuting attorney shall receive any fee or reward from or on behalf of any prosecutor or Not to recei
IV O rece]. We
fee from prose-
cutors, &c.
2
other individual for services in any prosecution or business to which it shall be his official duty to attend ;
•
3 nor be concerned as attorney or counsel ſor either party, other than for the state or county, in any civil
4
action depending upon the same state of facts upon which any criminal prosecution, commenced or prosecu-
5
ted, shall depend.
A
Sec. 60. The prosecuting attorneys shall severally receive such compensation for their services, as the
Compensation.
board of supervisors of the proper county shall, by an annual salary or otherwise, from time to time or-
2.
3
der and direct.
l SEc. 61. The supreme court and each of the circuit courts and district courts, may, whenever there shall
15
CHAP. 14.] ( 58 ) * [Title 3.
2
Courts may ap- .
point in certain
CaSCS,
County clerk
to be elected and
give bond.
Const., art. 6,
Sec. 5.
Condition of
Deputy clerk,
how appointed.
Clerks, &c., re-
sponsible for
acts of deputy.
When deputy to
act as clerk.
be no prosecuting attorney for the county, or when the prosecuting attorney shall be absent from the court,
3 or unable to to attend to his duties, if either of said courts shall deem it necessary, by an order to be en-
3
10
tered in the minutes of such court, appoint some other attorney at law to perſorm, for the time being, the
duties required by law to be performed in either of said courts by the prosecuting attorney, who shall there-
upon be vested with all the powers of such prosecuting attorney for that purpose.
County Clerk.
SEC. 62. The county clerk in each organized county shall be elected at the general election, for the term
of two years, and shall give a bond to the people of this state in the penal sum of two thousand dollars to
be approved by the circuit court or two judges thereof, ſor the faithful discharge of the duties of his office.
SEc. 63. The condition of such bond shall be in substance as follows : Whereas, The above bounden
hath been elected to the office of clerk of the county of
at the general election held therein, [or at a special election
held therein, j on the day of . - : Now,
therefore, the condition of the above origin is such, that if the said -
shall faithfully, truly and impartially enter and record all orders, decrees, judgments and proceedings of
the courts whereof he shall officiate as clerk, and faithfully and impartially perform all other duties of his
said office, and shall pay over all moneys that may come into his hands as such clerk, and shall deliver
over to his successor in office all the books, records, papers, seals, and other things belonging to his said
office, then the above obligation to be void, otherwise to be and remain in full force.”
SEc. 64. Each county clerk shall appoint a deputy to be approved by the circuit court or the judges there-
of, and may revoke such appointment at his pleasure, which appointment and revocation shall be in Wri-
ting, under his hand, and filed in his office ; and in the absence of the clerk from his office, or from the
court, the deputy may perform all the duties of such clerk.
SEC. 65. The county clerk and his sureties shall be responsible for the acts of his deputy ; and in case of
the death, resignation or removal of the clerk, or in case of a vacancy by any other means, in the said oſ-
8 fice of clerk, the deputy shall perform all the duties of such clerk, until such vacancy shall be filled.
- & .
Char. 14.] ( 59 ) t [TITLE 3.
1 Sec. 66. The books necessary to be kept and used in the clerk's office, shall be procured by the clerk,
Books to be pro-
cured.
2 under the direction of the judges of the circuit court, at the expense of the county ; and the board of su-
3 pervisors of the county shall audit and allow the account for such books, on the certificate of the said
4 judges.
1 SEc. 67. The clerk of each county shall transmit to the secretary of state, annually, within one week aſ- Clerk, when to
transmit list of
justices to secre-
tary of state.
2 ter the fourth day of July, a list certified by him, of all justices of the peace of the county, stating the
3 times of their respective election, and their terms of service, and whether elected to fill a vacancy, and if
4 so, what vacancy; and whenever the county clerk shall receive information of the death, removal or re-
, p. 52, Sec.
e º sº & e de tº * te * 1840
5 signation of any justice of the peace of his county, it shall be his duty forthwith to notify the secretary of 0.
6 state of such vacancy.
1 SEC, 68. The county clerk shall keep his office at the seat of justice for the county, and shall receive such *
To keep office at
seat of justice.
2 fees and compensation for his services as shall be provided by law.
Of Sheriffs.
^
1 SEc. 69. The sheriff of each organized county shall be elected at the general election, for the term of when sheriff
..", º Of
~ office, ponti.
2 two years, and shall give bond to the people of thys state in the penal sum of ten thousand dollars, and with
3 such sufficient sureties, not less than three in number, as the judges of the circuit court, or two of such
4 judges shall approve,
1 SEc. 70. The condition of such bond shall be in substance as follows: “Whereas, The above bounden,
Condition of
sº sheriff's bond.
2 hath been elected to the office of sheriff of the county of
3 , at the general election held therein, (or at a special elec-
4 tion held therein,) on the day of ; Now therefore,
5 the condition of the above obligation is such, that if the said shall well
6 and faithfully in all things perform and execute the office of sheriff of the said county of
7 * , during his continuance in office by virtue of the said election, without fraud deceit
8 or oppression, then the above obligation to be void, otherwise to be and remain in full force.”
CHAP. 14.] ( 60 ) [TITLE 3.
Sheriff may ap-
point deputies.
Under sherifl'.
WWhen under
sheriff to act as
Sheriff.
Appointmeut of
deputies, &c.,
how made.
Sheriff to renew
sccurity.
5
SEc. 71. Each sheriff may appoint one or more deputies, for whose official acts he shall be in all respects
*
responsible, and may revoke such appointments at his pleasure ; and persons may also be deputed by any
sheriff, by an instrument in writing, to do particular acts.
SEc. 72. The sheriff of each county shall, as soon as may be, after entering upon the execution of his
office, appoint some proper person under sheriff of the same county, who shall also be a general deputy,
to hold during the pleasure of such sheriff; and as often as a vacancy shall occur in the office of such un-
der sheriff, or he become incapable of executing the same, another shall in like manner be appointed in
his place.
SEC. 73. Whenever a vacancy shall occur in the office of sheriff of any county, the under sheriff of such
county shall in all things execute the office of *::: until a sheriff shall be elected and qualified; and any
deſault or misfeasance in office of such under sheriff in the mean time, as well as before, shall be deemed
to be a breach of the condition of the bond given by the sheriff who appointed him, and also a breach of the
condition of the bond executed by such under sheriff to the sheriff by whom he was appointed.
SEC. 74. Every appointment of an under sheriff, or of a deputy sheriff, and every revocation thereof,
shall be in writing under the hand of the sheriff, and shall be filed and recorded in the office of the clerk
of the county; and every such under sheriff or deputy shall, before he enters upon the duties of his
office, take the oath prescribed by the twelfth article of the constitution of this state. But this section
shall not extend to any person who may be deputed by any sheriff to do a particular act only.
SEc. 75. It shall be the duty of every sheriff, within twenty days aſter the first Monday in January, in
£,
each year subsequent to that in which he shall have entered on the duties of his office, to renew the security
required to be given by him before entering upon the duties of his office; which renewed security shall be
in the same amount, and be given in the same manner, and be subject in all respects to the same regula -
tions, as the original security required from such sheriff.
Sec. 76. The sheriff shall have the charge and custody of the jails and prisons in his county, and of the
CHAP. 14.] ( 61 ) [TITLE 3.
2
prisoners in the same ; and shall keep them himself, or by his deputy or jailor, for whose acts he shall be Tº have care of
. - jails and prisons.
3 reponsible.
5
6
I
SEc. 77. The sheriff in person or by his under sheriff or deputies, shall serve or execute according to law,
. To execute pro-
CCSS,
all process, writs, precepts and orders, issued or made by lawful authority, and to him directed.
SEc. 78. Sheriffs and their deputies may execute all such process as shall be in their hands at the expira- when sheriff.
&c., may exe-
cute process af-
© s * - e g e . ter expiration of
tion of the term for which such sheriffs were elected, or at the time of their removal from office ; and in office.
case of a vacancy in the office of sheriff, every deputy in office under him, having any writ or process
in his hands at the time such vacancy happened, shall have the same authority, and be under the same obli-
d e e . • º 1839, p.216 sec.5.
gation to serve and execute, and return the same, as if such sheriff had continued in office. º, p.219 se
SEC. 79. Any default or misfeasance in office of any deputy sheriff or jailor, after the death, resignation
Default of depu-
ty, &c., breach
or removal of any sheriff by whom he was appointed; shall be adjudged a breach of the bond of such “”
sheriff.
SEC. 80. Any action for the malfeasance, misſeasance or nonfeasance of a sheriff or any of his deputies, Action for mal
feasance, &c., of
sheriff, &c., to
may be prosecuted against the executors or administrators of such sheriff, in like manner as if the cause of ****
action survived at common law.
SEC, 81. No sheriff, deputy sheriff, or coroner shall appear in any court as attorney or counsel for or
No sheriff, &c.,
• * e © ſº to Q Ct aS att0r-
on behalf of any party in a suit; nor shall he draw, make or fill up any writ, declaration plea or process, hºel,
or draw papers.
for any such party; nor shall he with intent to procure himself to be employed in the collection of any
demand, or the service of any process, advise or counsel any person to commence any suit or proceeding,
and either of said officers, for a violation of any provision of this section, shall forfeit the sum of fifty dol-
lars.
SEC. 82. Any sheriff, deputy sheriff, coroner or constable, may require suitable aid in the service of pro-
16
CHAP, 14 J ( 62 ) [TITLE 3.
Sheriff, &c. may
require aid in
certain cases,
When sheriff’s
services charge-
able to the state.
Sheriff to keep
office, and give
notice thereof.
Papers may be
served by leav-
ing at sheriff’s
Office.
If no notice giv-
en, papers may
be left at county
clerk’s Office.
Two coroners to
be elected in each
county. To give
bond.
2
3
2
cess in civil or criminal cases, in preserving the peace, or in apprehending or securing any person for felo-
ny or breach of the peace, when such officer may have power to perform such duty; and when any such
officer shall find resistance made against the execution of any process, or shall have good reason to believe
that such resistance will be made, he may take the power of the county, and proceed therewith in proper
person to execute such process.
SEC. 83. Whenever a sheriffshall be required, by any statutory provision,to perform any service in behalf
of the people of this state, and for their benefit, which shall not be made chargeable by law to his county,
or to some officer or other person, his account for such services shall be audited by the auditor general and
paid out of the state treasury.
SEc. 84. It shall be the duty of the sheriff of every county to keep an office at the place where the courts
for such county are held, of which he shall file a notice in the office of the clerk of the county; and to
keep the same open during the usual business hours each day, Sundays excepted.
SEc. 85. Every notice or other paper which shall be required to be served on any sheriff, may be served
by leaving the same at the office designated by him in such notice, during the hours for which it is requi-
red to be kept open ; but if there be any person belonging to such office therein, such notice or paper shall
º
be delivered to such person; and every such service shall be deemed equivalent to a personal service on
such sheriff.
SEc. 86. If no notice shall be filed by any sheriff with the county clerk as herein required, the service of
all papers on such sheriff may be made by leaving them at the office of the county clerk, with such clerk
or his deputy; and the same shall be deemed equivalent to a personal service on such sheriff.
Coromers.
SEc. 87. Two coroners shall be elected for each of the organized counties of this state, at the general
election, for the term of two years, who shall give bond to the people of this state, in such penal sum, and
CHAP. 14.] - ( 68 ) [TITLE 3.
3 with such sufficient sureties, as the judges of the circuit court, or two of them, shall direct and approve, the
4 condition of which bond shall be in substance the same as that to be given by the sheriff; varying only
- - º art. 7,
5 in the description of the office. Sec. 4.
1 SEc. 88. When there shall be no sheriff or under sheriff in any county, the judges of the circuit court or
When coroner
to be designated
to act as sheriff.
two of them, shall designate one of the coroners to perform the duties of sheriff, which coroner, so desig-
nated, shall be vested with the same powers, and be liable in the same manner as sheriffs, until a sheriff
4 shall be elected and qualified ; and shall have the custody and control of the jail and the prisoners therein ;
5 and when the sheriff, for any cause shall be committed to the jail, the coroner living nearest the jail shall
6 be keeper thereof.during the time the sheriff shall remain a prisoner therein,
1 SEc. 89. Every coroner within his county, shall serve and execute process of every kind, and performall
2 other duties of the sheriff, when the sheriffshall be a party or interested in the case ; and in all cases where
cute process
when sheriff a
party, &c.
3 a coroner may execute the duties of the sheriff, he shall have the same powers conferred upon, and pro-
º
ceed in the same manner prescribed for the sheriff, in the performance of similar duties; and such coroner
shall be liable in the same manner, and to the same extent, as sheriffs are made liable in similar cases.
Register of Deeds.
1 SEC. 90. The register of deeds for each organized county shall be elected at the general election, for the
Register of deeds
e tº ſº be elected and
2 term of two years, and shall give bond to the people of this state in the penal sum of three thousand dol- *:::::::"
3 lars, with two sureties to be approved by the county treasurer, the condition of which shall be, that he shall
. Const., art. 7,
4 faithfully and impartially discharge the duties of his office. sec. 4.
1 SEC. 91. The register shall keep his office at the seat of justice for the county, and shall receive such
e e Office to be kept
2 fees and compensation for his services as may be provided by law. at seat of justice.
1 SEC. 92. The register of deeds shall appoint a deputy, to hold his office during the pleasure of the regis-
te e . a * tº e , ſº * Register to ap-
2 ter; such appointment and the revocation thereof to be in writing, and filed in the office of the county º §ºs.
Coroners to exe-
CHAP. 14.] ( 64 )
[TITLE 3.
When deputy to
act as register.
When judge to
appoint persons
to perform du-
ties of register.
Supervisors to
provide books
for recording.
County survey-
or to be elected,
term of his office
and bond.
Const., art. 7,
Sec. 4.
Surveyors may
appoint depu-
ties.
3 clerk; and before such deputy shall enter upon the duies of his office, he shall take the oath prescribed by
4 the twelfth article of the constitution, and for the faithful performance of his duties by such deputy the reg
5 ister and his sureties shall be responsible.
1 SEc. 93. In case of a vacancy in the office of the register of deeds, or his absence or inability to perform
2 the duties of his office, such deputy shall perform the duties of register during the continuance of such va-
3 cancy or disability.
1 SEc. 94. If during a vacancy in the office of register of deeds, there shall be no deputy register, or iſ
- sº
2 such deputy be unable from any cause, to perform the said duties, the judges of the circuit court for the
º
3 county, or two of them may, by writing under their hands, appoint some suitable person to perform the
4 duties of register of deeds for the time being, who shall take an oath of office, and give such bond as the
5 said judges shall direct and approve.
1 SEC. 95. The board of supervisors of each county shall from time to time provide suitable books, at the
2 expense of the county, for the entering and recording of all deeds and matters required by law to be enter-
3 ed and recorded by the register of deeds.
County Surveyors.
1 SEC. 96. The county surveyor for each organized county, shall be elected at the general election, for the
2 term of two years, and shall give bond to the people of this state, in the penal sum of two thousand dollars,
3 with two sureties to be approved by the county treasurer, conditioned for the ſaithful and impartial dis-
4 charge of the duties of his office.
f
1 SEC, 97. Each county surveyor may appoint one or more deputies, and revoke such appointment at pleas-
2 ure ; which appointment and revocation shall be in writing, under his hand, and filed with the county clerk,
3 and such deputies shall take the constitutional oath of office; and for the faithful performance of the duties
4 of their office by such deputies, the said surveyor and his sureties shall be responsible.
Z
CHAP. 14.] ( 65 ) [TITLE 3. *
l
2
Sec. 98. The certificate of the surveyor or his deputy, of any survey made by him of any lands in the centnºtest
surveyor, when
presumptive evi-
county, shall be presumptive evidence of the facts therein contained, unless such surveyor or deputy shall dence.
be interested therein.
SEC. 99. The county surveyor, in person or by deputy, shall make and execute such Surveys within his
Surveyor to
make surveys
county, as may be required of him by order of any court, or by application of any person therefor. §eavy
SEC. 100. Whenever a survey may be required of any land, in which the county surveyor or either of
- When surveyor
Or º in-
º g - - terested, surveys
his deputies shall be interested, or when from any cause there shall be no surveyor or deputy surveyor of may be maičiy
- - - county survey-
te or of an adjoin-
ing county.
the county to be found or able to act, such survey may be made by the surveyor of an adjoining county
or either of his deputies in like manner, and to the same effect as if such survey had been made by the
-
surveyor of the county where the land is situated.
SEC. 101. Each county surveyor shall record, in a suitable book to be provided by him at the expense of
o e What surveys to
the county, all surveys made by him and his deputies, except such as are made for a temporary purpose, and be recorded.
surveys of township highways, inserting at the head of each survey so recorded the name of the person for
whom it was made, and the number of the survey in the order in which it shall be made ; to which book
he shall make an index, referring to such names, or in some other suitable manner referring to each sur.
vey, and the number thereof.
SEc. 102. When the term of office of any county surveyor shall expire, or he shall resign or be removed,
County survey-
- º e e te or to deliver
he shall deliver over all the books and papers relating to his office, to his successor therein, and any county ...". pil-
pers to success-
- or. Penalty for
neglect.
surveyor who, on the expiration of his term of office, or on his resignation or removal, shall neglect ſor
the space of one month aſter his successor shall be elected or appointed and qualified, to deliver such books
and papers as aforesaid, and any executor or administrator of any deceased county surveyor, who shall
neglect for the space of one month to deliver to such successor all such books and papers which shall come
to his hands, shall forfeit and pay a sum not less than ten nor more than fifty dollars, and a similar sum for
every month thereafter during which he shall so neglect to deliver the same as aforesaid.
Act No. 51, 1845.
17
CHAP. 14.] -. ( 66 ) [TITLE 3.
Rccords, &c., of
former survey-
ors to be deliver-
ed over.
Surveys, how
made.
Chainman, &c.,
to be sworn.
Variation frC)Hºl
true meridian to
be stated.
Compensation to
surveyor, &c.
Act No. 51, 1815.
I
2
l
3
4
5
SEc. 103. All records of surveys, field notes and calculations, made by any former county surveyor, since
the organization of the state government, and now in the hands of such former county surveyor, or of any
other person, shall on demand of the county surveyor of the proper county, be immediately delivered to
him, as a part of the records and files of his office, and the boards of supervisors of the several counties,
shall respectively audit and allow to the persons entitled thereto, such sum as they shall deem a reasonable
compensation for the expense of the books containing such records.
SEc. 104. It shall be the duty of each county surveyor, in subdividing any section, or part of a section
of land, originally surveyed under the authority of the United States, to make his survey in conformity
to the original survey, and where any parcel of land is discribed as being one half, or one quarter, or
any other equal portion of a quarter section, and the subdivision lines of such parcel shall not have been
before established, the same shall be surveyed and subdivided in such manner as to include the equal portion
of the quarter section so described.
SEc. 105. Every chainman and marker, employed in making surveys pursuant to the provisions of this
chapter, shall first take an oath that he will faithfully discharge his duties as such, which oath the coun-
ty surveyor or the deputy making the survey is hereby authorized to administer.
SEc. 106. In all surveys made as aforesaid, except such as are made for a temporary purpose, the course
shall be stated according to the true meridian, or as the same shall appear by a meridian line to be estab-
lished by the county surveyor at some place within his county, and a description thereof by him recorded;
and the variation of the magnetic meridian from the true meridian shall also be stated, with the day, month
and year when the survey was made.
SEc. 107. The county surveyors and their deputies shall respectively be entitled to receive for their
services a compensation not exceeding three dollars a day, including the time of travelling to and from the
place of making the survey, and fifty cents for recording each survey, to be paid by the person for whom
the services are rendered; and for each plat and certificate, or a copy thereof, fifty cents to be paid by the
person requesting the same.
**
CHAP. 14.] - ( 67 ) [TITLE 3.
Notaries Public.
I Sec. 108. The governor, by and with the advice and consent of the senate, may appoint one or more no-Nouries public
how appointed.
2 taries public in each county, who shall hold their offices respectively for four years unless sooner removed
3 by the governor.
1 SEc. 109. Whenever the governor shall appoint a notary public, the secretary of state shall transmit his Commission to
be transmitted.
2 commission to the clerk of the county for which such notary was appointed ; and the county clerk, on re- łº-Ti, Sec.
3 ceiving such commission, shall give notice thereof to the person so appointed.
1 SEc. 110. The person so appointed shall, before entering upon the duties of his office and within twenty
Oath of Office.
2 days after receiving notice of his appointment, appear before the county clerk and take the oath of office
3 prescribed by the constitution, and the said clerk shall file and preserve the same in his office. gº p. 77, Sec.
1 SEC. 111. Each notary public shall also, before entering upon the duties of his office, and within the time Notary to give
• bond.
2 limited for filing his official oath, give bond to the people of this state, with one or more sureties to be ap-
3 proved by the county clerk, in the penal sum of one thousand dollars, the condition of which bond shall be
4 that such notary shall duly and faithfully, discharge the duties of his office, and he shall file the same with
sº
5 said clerk.
1 Sec. 112. Upon the filing of the official oath and bond as required in the two next preceding sections, the
Cerk to deliver
COIN).I]] ISSIO Il Oll
filing bond.
2 clerk shall deliver to the person so appointed the commission received by him for such person, and shall
3 thereupon give notice to the secretary of state of the filing of such oath and bond, and of the time of filing
1842, p. 77, sec.
4.
4 the same.
1 SEc. 113. Notaries public shall have auththority to take the proof and acknowledgments of deeds; to ad-
2 minister oaths, and take affidavits in any matter or cause pending, or to be commenced or moved in any Powers.
3 court of this state; to demand acceptance of foreign and inland bills of exchange, and of Promissory
4 notes, and to protest the same for non-acceptance, or non-payment, as the case may require; and to ex-
5 ercise such other powers and duties, as by the law of nations, and according to commercial usage, or by the
6 laws of any other state, government or country, may be performed by notaries public.
CHAP. 14.]
( 68 ) [TITLE 3.
When certificate
of notary to be
presumptive evi-
dcnce.
3 Kent's com.,
93; statutes of
Tennessee, 1836,
p. 502, sec. 1–5.
When office of
notary vacated,
papers, &c., to
be deposited
with County
clerk.
Penalty for neg-
lect.
Penalty for de-
stroying or con-
cealing papers.
County clerk to
.keep records,
&c., and give co-
pies when re-
quired.
Where notaries
to reside.
2
3
SEc. 114. In all the courts of this state the certificate of a notary public, under his hand and seal of office,
of official acts done by him as such notary, shall be received as presumtive evidence of the facts contained
in such certificate; but such certificate shall not be evidence of notice of non-acceptance or non-payment
in any case in which a defendant shall annex to his plea, an affidavit denying the fact of having received
such notice.
Sec. 115. Whenever the office of any notary public shall become vacant, the records of such notary and
all the papers relating to his office, shall be deposited in the offs. of the clerk of the proper county ; and
any notary who on his resignation or removal from office, shall neglect for the space of three months to
deposite such records and papers, and any executor or administrator of any deceased notary public who shall
neglect for the space of three months after his appointment, to deposite with said clerk all such records and
papers as shall come to his hands, shall forfeit and pay a sum not less than fifty dollars, nor more than two
hundred dollars,
SEc. 116. If any person shall knowingly destroy, deface, or conceal any records or papers belonging to
the office of a notary public, he shall forfeit and pay a sum not exceeding five hundred dollars ; and such
person shall also be liable to an action for damages at the suit of the party injured.
SEc. 117. The county clerk shall receive and safely keep all the records and papers of notaries public, di-
rected to be deposited in his office, and shall give certified copies of such records and papers, under his hand
and seal, when required ; and for such copies he shall receive the same fees as are by law allowed to nota-
ries public ; and copies so given by said clerk shall be as valid and effectual as iſ given by a notary pub.
lic.
SEC. 118. Notaries public shall reside in the county for which they are appointed, but they may act as
such notaries in any part of this state; and they shall receive for their services such fees as shall be pro-
vided by law.
CHAP. 14.] ( 69 ) - [TITLE 3. .
Filing Oaths. and Bonds by County Officers.
'ſ-
1 SEc. 119. Each of the officers named in this chapter, except notaries public and prosecuting attorneys, ºr ºn ºfficers
to take oath, & c.
2 shall before entering upon the duties of his office, and within twenty days aſter receiving official notice of
3 his election, or within twenty days after the commencement of the term for which he was * take and
4 subscribe the oath of office prescribed by the constitution of this state, before some officer authorized by law
5 to administer oaths, and deposite the same with the clerk of the proper county, who shall file and preserve
6 the same in his office.
*
1 SEC, 120. Each of the said officers of whom a bond shall be required by law, except the said treasurer,
2 before entering upon the duties of his office, and within the time limited in the last preceding section for $.".
posited with
county treasu-
3 depositing his oath, shall deposite his bond with the said treasurer, who shall file and preserve the same in rer.
4 his office ; and the said treasurer before entering upon the duties of his office, and within the time limited in
5 the preceding section for depositing his oath, shall deposit his bond with the clerk of the county, who shall
6 file and preserve the same in his office.
Penalty for ne-
1 SEC. 121. If either of the said officers shall neglect to deposite his oath or bond according to the provi- glect.
2 sions of the two last preceding sections, without giving the notice specified in the next section, or iſ he shall
3 enter upon the execution of his office before he shall have so deposited his said oath or bond, he shall in either
4 case, forfeit and pay one hundred dollars.
No penalty to
1 SEc. 122. No penalty shall attach on account of any neglect to deposite such oath or Rond as aforesaid, in tºn II. O-
.*
2 case such officer, before entering upon the execution of his office, and within the time limited for filing
3 such oath or bond, shall give notice in writing to the officer or officers having the power by law to order an
4 election to fill such office, or to fill the same by appointment, stating therein that he declines accepting such
5 office.
A
Commission of
pros. attorney to
1 SEC. 123. Whenever the governor shall appoint a prosecuting attorney, the secretary of state shall trans ...
2 mit his commission to the clerk of the county for which such prosecuting attorney was appointed, and the
* , º Clerk to give no-
3 county clerk on receiving such commission, shall immediately give notice thereof to the person so appointed. tice.
18
CHAP. 15.] ( 70 ) [TITLE 3.
I Sec. 124. The person so appointed shall, before entering upon the duties of his office, and within twenty
Pcrson appoint- * &
cd to take oath *
"** 2 days after receiving notice of his appointment, appear before the county clerk and take and subscribe the
3 oath of office prescribed by the constitution, and file the same with the clerk, who shall thereupon deliver
4 to the person so appointed the commission received by him for such person, and shall thereupon give notice
5 to the secretary of state of the filing of such oath, and of the time of filing the same.
1 SEc. 125. The regular terms of office of the several county officers elected at the general election, shall
Regular term of
. officers,
...” 2 commence on the first Monday of January succeeding their election; but those elected at the general elec-
3 tion, or at a special election, to fill vacancies, may qualify and enter upon the execution of their offices im-
In case of cloc-.
tion to fill vacan- -
cy. g º o tº º
4 mediately aſter being notified of their election.
CHAPTER 15.
OF RESIGNATIONS, VACANCIES, AND REMOVALs, AND OF SUPPLYING VACANCIES.
Resignations.
1 SECTION I. Resignations shall be made as follows:
Resignations to º * * * *
whom made 2 1 By the governor, lieutenant governor, and all officers elected by joint vote of the senate and house of
3 representatives; to the legislature:
4 2. By officers appointed by the governor alone, or by the governor by and with the advice and consent of
5 the senate, or both branches of the legislature; to the governor ;
6
3. By Senators and representatives, to the presiding officers of their respective houses, who shall imme-
7
diately transmit the same to the governor : : …;
8 4. By all other officers who hold their offices by election, except officers elected at township meetings; to
9 the officer or officers respectively authorized by law to order a special election to fill such offices respect-
10 ively :
11 5. By all other officers holding their offices by appointment, and not by election ; to the body, board, or
12 officer that appointed them.
1 SEC. 2. It shall be the duty of all officers, bodies, or boards to whom the resignation of any office contem-
CHAP. 15.] ( 71 ) - [TITLE 3
2
3
4.
2
10
11
12
plated in the last preceding section, is authorized to be made, or who are authorized to fill any vacancy in n. *
O Duties of officers
&c., to whom re-
signations are
any of said offices, or to order a special election therefor, when duly informed of the existence of such va- ".
cancy, to cause to be filed in the office of the secretary of state, a statement of the occurrence, with the
date and cause of such vacancy.
Vacancies.
*
SEc. 3. Every office shall become vacant, on the happening of either of the following events, before the
What events to
wº create vacancy.
expiration of the term of such office :
1. The death of the incumbent :
2. His resignation :
3. His removal from office :
4. His ceasing to be an inhabitant of º state ; or, if the office be local, of the district, county, township,
city or village, for which he shall have been elected or appointed, or within which the duties of his office
are required to be discharged : \
5. His conviction of any infamous crime, or of any offence involving a violation of his oath of office :
6. His refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such
.*
oath or bond, within the time prescribed by law : Or,
7. The decision of a competent tribunal, declaring void his election or appointment.
Removals from Office.
SEC. 4. For any reasonable cause, which shall not be sufficient for the impeachment of the chancellor, he
iº & Impeachments
may be removed by the governor, on the address of two thirds of each branch of the legislature; but the tº:
when chancellor
may be removed,
* g e we See const., art.
cause or causes for which such removal may be required, shall be stated at length in the address. S.
SEc. 5. The secretary of state, auditor general, and all state and county officers, except the state treasurer,
Certain officers
chancellor, and judges of the supreme and circuit and district courts, who are or shall be appointed by the ºve
governor alone, or by the governor, by and with the advice and consent of the senate, or of both branches of
the legislature, or by the legislature without the concurrence of the governor, may, for official misconduct,
or habitual or wilful neglect of duty, at any time during the recess of the legislature, be removed, and the
vacancy supplied during such recess, by the governor.
CHAP. I5.] * ( 72 ). [TITLE 3.
1 SEC, 6. All officers who are or shall be appointed by the governor to fill a vacancy which shall have ex-
Persons appoint-
ed to fill vacan- -
Cy may be re- © e - *
In OVed. 2 isted during the recess of the legislature, may be removed by the governor.
When * o
*::::::::::" 1 Sec. 7. The governor shall remove all county officers chosen by the electors of any county or appointed
County and
township offi-
CerS. 2 by him, except associate judges, judges of probate and county clerks, and shall also remove all justices of
3 the peace and township officers chosen hy the electors of any township, when in his opinion such officer is
4 incompetent to execute properly the duties of his office; or when he is satisfied that such officer has been
5 guilty of official misconduct, or of wilſul or habitual neglect of duty, if in his opinion such misconduct or
6 neglect shall be sufficient cause for such removal; but no such officer shall be removed for such misconduct
7 or neglect, unless charges thereof shall have been exhibited to the governor, and a copy of the same served
8 upon such officer, and an opportunity given him of being heard in his defence.
1 SEC. 8. The governor may direct the prosecuting attorney of the county in which such officer may be, un-
Prosecuting at-
ttorney to con-
duct examina-
tions, &c. 2 less such prosecuting attorney be the officer charged, to conduct an inquiry into the charges made ; and such
3 prosecuting attorney shall thereupon give at least eight days’ notice to the officer accused, of the time and
4 place at which he will proceed to the examination of witnesses in relation to such charges, before some as-
5 sociate judge of the circuit court for the same county, and he shall also, at the time of giving such notice,
6 serve on the officer accused, a copy of such charges.
1 SEc. 9. The prosecuting attorney may issue subpoenas, signed by him with his name of office, to
Subpoenas, and :
ſ - - º - {- º •
jº. 2 compel the attendance of any witness whom he shall deem material, before either of the associate judges
3 of the county, and such judge shall have the same power to enforce obedience to such subpoena by attach-
4 ment, and to commit any person who shall refuse to be sworn, or to answer, as the circuit court would have
5 in a civil cause pending therein.
1 Sec. 10. On the application of the officer accused, to the prosecuting attorney, or to any justice of the
Accused may
have subpoenas. - º
2 peace, he shall be entitled to the like process of subpoena, obedience to which may be enforced in the same
3 manner as provided in the last preceding section, by the judge before whom the inquiry may be conducted.
*
CHAP. 15.]
( 73 ) [TITLE 3.
3
5
4
SEc. 11. At the time and place therefor specified in the notice, the judge before whom such inquiry shall
Examinations
made and trans-
o itted.
be conducted, shall proceed to take the testimony of the witnesses produced before him by the prosecuting"
attorney, and by the officer accused, which witnesses shall be sworn by such judge; and every answer giv-
en by them to any question which either party shall require to be reduced to writing, shall be written by
or under the direction of such judge ; their testimony shall then be read to and subscribed by them, and
shall be certified by the judge taking the same, and delivered to the prosecuting attorney, who shall transmit
the same to the governor.
SEC. 12. Whenever charges shall be made against any prosecuting attorney as provided in section Proceedings
when charges
made against
e º & OSeCutling ill-
seven of this chapter, the governor shall direct the attorney general, or the prosecuting attorney of some ºuts
county adjoining that in which the accused resides, or some other attorney at law, to conduct the inquiry
into such charges, and such officer or attorney, when so directed, shall haye and exercise the same powers to
conduct such inquiry, and shall proceed therein in the same manner, as the prosecuting attorney of the 1840, p. 36.
proper county is authorized and required to do in other cases.
SEC, 13. The judges of the circuit court shall have authority, in term time or in vacation, to remove the
When judges of
circuit court may
remove clerk.
county clerk when in their opinion he is incompetent to execute properly the duties of his office ; or when
on charges and evidence they shall be satisfied that he has been guilty of official misconduct, or habitual or
wilful neglect of duty, if in their opinion such misconduct or neglect shall be a sufficient cause for such remo-
val; but no such clerk shall be removed for such misconduct or neglect, unless charges thereof shall have
[been preferred to said judges, and notice of the hearing, with a copy of the charges delivered to such
clerk, and a full opportunity given him to be heard in his defence.
SEC. 14. The office of state treasurer, commissioner of the land office, or of any other collector or recei- When governor
may declare cer-
tain offices vil-
º © Cant.
ver of public moneys, appointed by the legislature, by the governor alone, or by the governor, by and with
the advice and consent of the senate, or of both branches of the legislature, except those officers for whose
removal provision is otherwise made by law, may be declared vacant by the governor, in case it shall appear
19
CHAP. 15 J t ( 74 y [Title 3.
Governor may
fill certain Va-
cancies during
recess of legisla-
ture.
Bae
When associate
judges may fill
vacancies.
Persons appoint-
ed to fillivacancy
to comply with
directions, &c.
Officers appoint-
ed by governor
during recess,
how long to
hold.
5 to him on the report of the auditor general, that such treasurer, commissioner or other officer, has in any
f
6 particular wilfully violated his duty.
Supplying Vacancies.
1 SEC. 15. When during the recess of the legislature, there shall be in either of the offices to be appointed
2
by the governor alone, or by the governor, by and with the advice and consent of the senate, or of both
3
branches of the legislature, or by the legislature without the concurrence of the governor, no officer duly
4 authorized to execute the duties thereof; some suitable person may be selected and appointed by the govern-
5 or to perform the duties of either of said offices for the time being.
SEC, 16. When at any time, there shall be in either of the offices of sheriff, coroner, county clerk, reg-
2 ister of deeds, or county surveyor, no officer duly authorized to execute the duties thereof, some suitable
*
3 person may be appointed by the associate judges of the circuit court to perform the duties of either of said
4 offices for the time being.
1 SEc. 17. Each of the persons appointed in pursuance of either of the two last preceding sections, shall
before proceeding to execute the duties assigned him, comply with such conditions and directions as shall be
3 precribed and given relative to oaths and bonds, by the officer or officers appointing him as aforesaid.
1 SEc. 18. All officers appointed by the governor during the recess of the legislature, shall continue to ex-
2 ercise the duties of their respective offices, until the close of the next succeeding session, unless others
3 shall be appointed in their stead by competent authority, and shall have entered upon the discharge of their
4 respective duties.
CHAP. 16] e ( 75 ) \ [TITLE 4.
TITLE IV.
OF Townships AND Township OFFICERs.
*
CHAPTER 16.—Of the Powers and Duties of Townships, and Election and Duties of Township Officers.
46 17.-Of the Division of Townships.
{{ 18.—Of Fences and Fence Viewers; of Pounds and the Impounding of Cattle, &c.
66 19.-Of Penalties for violating Election Laws.
CHAPTER 16.
of THE Powers AND DUTIES OF Townships, AND ELECTION AND DUTIES OF TOWNSHIP OFFICERS.
* º of
gº te * * tº * § to WinS 1ps.
1 SECTION 1. The limits and boundary lines of every organized township, shall remain as now established,
2 until otherwise provided by law.
Powers and Duties of Townships.
} SEC. 2. The inhabitants of each organized township shall be a body corporate, and as such, may sue and
Inhabitants of
townships to be
2 be sued, and may appoint all necesssary agents and attorneys in that behalf; and shall have power to pur-º;
hold and dispose
of real estate &c.
3 chase and hold real and personal estate for the public use of the inhabitants, and to convey, alienate and
4 dispose of the same ; and to make all contracts that may be necessary and convenient for the exercise of
5 their corporate powers, and any orders for the disposal of their corporate property which they may judge
6 expedient.
1 SEC. 3. The inhabitants of each township shall have power, at any legal meeting, by a vote of the quali-
May raise mo-
ney, for what
2 fied electors thereof, to grant and vote such sums of money, not exceeding such amounts as are or may be purpose".
8 limited by law, as they shall deem necessary for defraying all proper charges and expenses arising in the
4 township.
1 SEC. 4. The inhabitants of each township may, at any legal meeting, by a vote of the qualified electors
Orders and by-
laws.
2 thereof, make all such orders and by-laws for determining the time and manner in which cattle, horses,
3 swine, sheep and other animals shall be restrained from going at large in the highways, and for directing
CHAP. 16.] - ( 76 ). [TITLE 4.
Penalties.
By-laws to be
published.
Suits, &c.
Conveyances
made for use of
township.
Annual meeting,
when held.
Officers to be
elected.
Officers to be
chosen by ballot.
Officers to be
chosen Viva
VOCe.
4 and managing the prudential affairs of the township, as they shall judge most conducive to the peace, wel-
5 fare and good order thereof.
1 SEC. 5. They may annex to such orders and by-laws suitable penalties, not exceeding ten dollars for any
y º . . fe º -
2 one breach thereof, to be recovered by complaint before any justice of the peace of the township or county
3 where the offience shall have been committed.
1 SEC. 6. The by-laws of any township shall, before the same shall take effect, be published once in each
2 week for at least three successive weeks, in some newspaper printed in the county, iſ there be one, and if
3 not, then by posting up copies thereof in three of the most public places in the township; and such by-laws
4 duly made and published shall be binding upon all persons coming within the limits of the township, as well
5 as upon the inhabitants thereof.
1 SEC. 7. All suits, acts or proceedings, by or against a township, in its corporate capacity, shall be in the
2 name of such township ; but every conveyance of lands within the limits of such township, made in any
3 manner, for the use or benefit of its inhabitants, shall have the same effect as if made to the township by
4 name.
Township Meetings.
1 SEC. 8. The annual meeting of each township shall be held on the first Monday of April, in each year;
2 and at such meeting there shall be an election for the following officers: One supervisor, one township
3 clerk, one treasurer, one school inspector, two directors of the poor, two assessors, three commissioners of
4 highways, so many justices of the peace as there are by law to be elected in the township, and so many
5 constables as shall be ordered by the meeting, not exceeding four in number.
1 SEC. 9. Each of the officers named in the last preceding section, shall be chosen by ballot; and before
2 proceeding to choose the officers hereinafter directed to be chosen at such meeting. .
1 SEc. 10. There shall also be elected at such meeting, to be chosen viva voce, or in such manner as the
CHAP. 16.] - ( 77 ) - [TITLE 4.
2
3
5
meeting may direct, one overseer of highways for each road district, and as many pound masters as the
meeting may direct.
SEC. 11. Justices of the peace shall severally hold their offices for four years, except when elected to fill Term of othee
- - - of justices.
a vacancy in office occurring before the expiration of the legal term of four years, and when elected to fill
such vacancy, they shall hold during the unexpired portion of such term ; Provided, That when there shall
have been no previous election and classification of justices of the peace in any township pursuant to the
sixth article of the constitution of this state, the justices elected at such meeting shall be classed and divi-
ded by lot, respectively, for one, two, three, or four years, and shall severally hold their offices accord-
ingly.
SEc. 12. Each school inspector elected as aforesaid, shall hold his office for two years, and until his suc- ...;
of school inspec-
to rS.
cessor shall be elected and qualified, except when elected to fill a vacancy, in which case he shall hold du-
ring the unexpired portion of the regular term ; Provided, That where there shall have been no previous
1843, p. 90, sec.
election for school inspectors in any township, there shall be two such inspectors elected, one for one year,”
and one for two years, who shall severally hold their offices accordingly.
SEc. 13. Each of the officers elected at such meetings, except justices of the peace and school inspectors, What officers to
* - hold one year.
shall hold his office for one year, and until his successor shall be elected and duly qualified.
SEc. 14. Each township officer elected at a special meeting to fill a vacancy, shall hold his office during officers elected
to fill vacancies.
the then unexpired portion of the regular term of the office, and no longer, unless again elected.
SEc. 15. The annual and special township meetings, shall severally be held at the place in the township areaſing, where
to be held.
where the last annual township meeting was held, or at such other place therein as shall have been ordered
at a previous meeting, or when there has been no such previous meeting, at such place as shall be directed
in the act or proceedings by which the township was organized, unless it shall, in either case, become in-
convenient to do so.
CHAP. 16.1
( 78 ) ' [TITLE 4.
When place of
mecting may be
changed, and
ºfeling adjourn-
Cú.
1839, p. 122-3.
Proceedings on
adjournment.
1839, p. 123.
For what purpo-
ses meeting may
adjourn.
First meeting in
townships,
where held.
1830, p. 16 & 17,
sec. 1.
Proceedings at
ſirst meeting in
township.
1839, p. 17, scC.
2.
In case of fail-
urc, meeting
how called.
lº, p. 17, Sec.
l
Sec. 16. Whenever it shall become inconvenient to hold a township meeting at the place designated there-
2 for, the board of inspectors or a majority of them, after having assembled at, or as near as practicable to
4
l
l
2
3
l
*
such place, and opened the meeting, and before receiving any votes, may adjourn said meeting, to the near-
est convenient place for holding the same, and at such adjourned place ſorthwith proceed with the meeting.
SEC. 17. Upon adjourning any township meeting as provided in the last section, the board of inspectors
shall cause proclamation thereof to be made, and shall leave a constable, or some other proper person at
the place where such meeting was opened, to notify all persons arriving at such place that the meeting has
been adjourned, and the place to which it has been adjourned.
SEc. 18. Any annual or special meeting may, by a vote of the meeting, be adjourned to any other day,
and from time to time, and to any other place in the township, for the purpose of transacting any proper
business of the township, except for the election of officers.
SEc. 19. The first township meeting after the organization of any township, shall be held on the first
Monday in April after its organization, and at such meeting there shall be an election for such officers as
are by law to be elected at township meetings.
SEc. 20. At the first township meeting in any township, the qualified electors present between the hours
of nine and ten o’clock in the foremonial choose one of their number as moderator, one of their number
as clerk, and two others of their number as inspectors, who shall severally take the oath of office prescribed
by the twelfth article of the constitution, and shall conduct the proceedings of such meeting in all respects
as other township meetings are required by law to be conducted, as near as may be, and with the same
Aº tº
powers.
Sec. 21. If the inhabitants of any newly organized township shall ſail to hold their first township meeting
on the day specified in the nineteenth section of this chapter, any three qualified voters of such township ,
may call a meeting of the electors of such township, for such township election, at any time thereafter, by
4 posting up notices thereof in not less than three public places in such township, at least ten days previous to
5 the holding of such meeting.
Char. 16.] ( 79 ) [TITLE 4.
|
‘l
that may occur, if the township board or any two of them shall deem it expedient, and make their order
SEC. 22. At such first township meeting, the moderator shall administer the oath of office to the other in-
Who to adminis-
ter oaths.
spectors, and either of the other inspectors, after having been so qualified, may administer the like oath to """"
the moderator.
SEc. 23 Speeial township meetings may be held for the purpose of choosing officers to fill any vacancies
* jº meetings
10 fill Vacan CiC S.
therefor.
- & * º © Special meetings
Sec. 24. Special township meetings shall also be held for the purpose of transacting any other lawful busi-. other purpo-
ness, when ordered by the township board or any two of them, on a request to them in writing, signed by -
any twelve electors of the township, specifying therein the purposes for which such meeting is to be held ;
and the mode of proceeding at all special meetings, shall be the same as at the annual meetings.
Sec. 25. Every order for a special township meeting shall specify the purpose for which it is to be held order for special
- - - meeting what to
specify.
and the time when, and the place where it shall be held ; and if any vacancies in office are to be filled at
such meeting, such order shall state in what offices vacancies exist, how they occurred, and who were
the last incumbents, and if the vacancy be in the office of justice of the peace, such order shall also state
at what time the constitutional term of office will expire.
Sec. 26. The time appointed for holding any special township meeting shall not be more than twenty, nor
Within what
time after order
less than fifteen days from the time of making the order therefor; and such order shall be left with the ºne tole
township clerk within two days after the making thereof, and shall be recorded in his office.
•º
SEc. 27. The said clerk shall within two days after such order shall be left with him, cause copies thereof
Clerk to give no-
lice.
2 to be posted up in three of the most public places in the township ; and if there be a newspaper printed in
3
such township, he shall also cause a copy to be published therein, if practicable, at least five days before the
4 day appointed for such special meeting.
i
SEc. 28. No notice of the annual township meetings shall hereafter be necessary.
No notice of an-
* - nual inceting.
CHAP. 16.] ( 80 ) [TITLE 4.
Manner of conducting Elections.
;.” I Sec. 29. At the election of officers required to be chosen by ballot at the annual township meeting, the
2 inspectors of election shall be the same as at the general election.
1 SEc. 30. The township clerk last before elected or appointed, shall be the clerk of the township meeting,
Township clerk
to keep minutes.
2 and shall keep faithful minutes of its proceedings, and a correct list of the persons voting at the election;
3 and he shall enter at length in his minutes, every order or direction, and all rules and regulations made by
4 such meeting.
SEc. 31. If the township clerk be absent, then such person as shall be appointed by the inspectors for that
WWhen clork of
meeting to be ap-
pointed by in-
spectors. 2 purpose shall act as clerk of the meeting, first taking an oath to be administered by one of the inspectors,
3 that he will faithfully perform the duties of his office according to the best of his ability.
Opening and 1 SEC. 32. The polls of the election shall be opened at nine o'clock in the forenoon, or as soon thereafter
closing of poll.
2 as may be, and shall be closed between the hours of three and six o'clock in the afternoon, and the inspect-
3 ors shall cause proclamation to be made at least one hour before the closing of the polls, that the polls of the
4 election will be closed, at or within the specified hour, naming it.
*:::: ; ...e. 1 SEc. 33. When the election is by ballot, the inspectors shall deposit the ballots in a box to be constructed,
l ‘.
*
2 kept and disposed of, as near as may be, in the manner prescribed in chapter five.
I Sec. 34. The ballot shall be a paper ticket,with the names of the persons for whom the elector intends to
Ballots what to
contain, &c. • - - * - • . - - -
2 vote written or printed thereon; and shall designate the office to which each person so named is intended
3 by him to be chosen ; but no ballot shall contain a greater number of names as designated to any office,
4 than there are persons to be chosen at such election to fill such office, and each bailot shall be so folded as
5 to conceal the contents, and shall be delivered to one of the inspectors.
1 SEC. 35. If at any such election, there shall be one or more vacancies to be supplied, in the office of jus-
Designation of \
persons to fill
vacancy. 2
tice of the peace, and at the same election, a justice is to be elected for the constitutional term, it shall be
CHAP. 16.] ( 81 ) [TITLE 4
4
2
3
uecessary to designate on the ballot the person or persons voted for to supply such vacancy or vacancies.
Ae
SEc. 36. If any person offering to vote at such election, or upon any question arising at such township Challenges
\
meeting, shall be challenged as unqualified by any inspector, or any elector entitled to vote at such meet-
ing, the inspectors shall proceed thereupon in the manner prescribed in chapter five, in case of a challenge
at the general election ; and no person whose vote shall have been received upon such challenge, shall be
again challenged upon any other question, arising at the same township meeting.
SEC. 37. The inspectors, or officer presiding shall have the same authority to preserve order, to enforce Authority to
preserve order,
&c.
obedience and to commit for disorderly conduct, as is possessed by the board of inspectors at a general
election.
SEc. 38. Immediately after the close of the polls, there shall be elected the other officers to be elected by
Officers to be
- :*.
e e gº * OSC Of DOIS.
the meeting, in such manner as the meeting shall direct. C p
SEG. 39. After the officers last mentioned shall have been chosen, the meetig shall then determine by
Other business
of meeting.
vote, whether they will proceed to transact the other business proper to be transacted at that meeting, be-
fore the canvass of the ballots given for officers elected by ballot, or whether such canvass shall first take
place.
SEC. 40. All questions upon motions made at township meetings, shall be determined by the majority of the
Questions upon
electors voting; and the officer presiding at such meeting, shall ascertain and declare the result of the jºw *
votes upon each question. -
Canvass of Votes.
SEC. 41. The votes given by ballot shall be publicly canvassed by the inspectors at the place where the
º & Canvass of votes
meeting was held, and the result shall be read by the clerk to the persons there assembled; and such read- and determina.
tion of result,
ing shall be sufficient notice to all persons elected at that election to any office, whose names are on the poll
list as voters.
21
Char. 16.] . ( 82 ) [TITLE 4.
Ballots to be
counted and
compared with
poll list.
Statement of re-
Sult, &c.
Statement of de-
termination to
be certified and
recorded.
Who to be
deemed elected ;
when choice to
; determined by
Ot.
Oath of office.
Clerks when to
notify person
elected.
2
2
SEc. 42. Before the ballots are opened they shall be counted and compared with the poll list, and the
like proceedings shall be had, as to ballots folded together, and as to differences in number, as are pre-
scribed in chapter five.
SEc. 43. The canvass being completed, and the result ascrtained, the inspectors shall draw up a statement
in writing, setting forth in words at full length, the whole number of votes given for each office, the names
of the persons for whom such votes for each office were given, and the number of votes so given to each
person, which statement shall be certified under the hands of the inspectors to be correct.
SEC. 44. The inspectors shall also certify upon such statement, their determination of the persons elected
to the respective offices, including as well those elected without ballot, as those elected by ballot; which
statement and certificate of determination shall be left with the township clerk, and recorded in his office.
SEC. 45. The persons having received the greatest number of votes given for any office at such election
shall be deemed and declared duly elected ; and if two or more persons shall have received an equal num-
ber of votes for the same office, the inspectors of election shall determine the choice by lot, and shall de-
clare and certify the same accordingly.
Township Officers.
SEC. 46. All officers except justices of the peace required to be elected at township meetings by ballot,
shall before entering upon the duties of their offices and within ten days after notice of their election, re-
spectively take and subscribe the oath of office prescribed by the twelfth article of the constitution, before
the township clerk, or some other officer authorized to administer oaths, and file the same with the township
clerk, who shall record the same; and such oath shall be administered without reward, and certified by the
officer before whom the same was taken, with the date of taking the same.
SEC. 47. Within two days after the election of any officers at a township meeting, the clerk shall transmit
to each person elected to any township office, and whose name shall not have been entered on the poll list
4 at such election as a voter,a notice of his election.; and each overseer of highways and pound master elect-
CHAP. 16.] ( 83 ) [TITLE 4.
5 ed at such meeting, shall within ten days after notice of his election, file with the said clerk a notice in
6 writing, of his acceptance, and in default thereof he shall be deemed to have refused to serve.
nter upon their
1 SEc. 48. The persons so elected justices of the peace, shall enter upon the duties of their offices respective- º
- duties.
2 ly as follows:
3 1. Those elected for the full term of four years; on the fourth day of July next succeeding their election :
4 2. Those elected to fill vacancies, and those elected at the first township meeting in any new township,
5 immediately upon the filing of their oath of office and security with the county clerk, as required by law.
1 SEC. 49. When a new township shalll be erected, iſ there be one or more justices of the peace then re-
Justices residing
In new to WW Il-
e. e tº ships.
2 siding therein, they shall be deemed justices thereof, and shall hold their offices according to their respect-
3 ive classes; and only so many justices shall be chosen as shall be necessary to complete the number of four
4 ſor such township.
1 SEC. 50. Within six days after the election of justices of the peace in such new township, the
Classification of
justices. . .
2 supervisor shall give notice in writing to the justices elected and to the township clerk, of the time and
3 place when and where he will meet them, to determine bylot the classes of such justices; which notice shall 1836, p. 20
, p. 20, Sec.
6. -
4 be served at leastsix, and not more than twelve days, previous to the time appointed therein for such meeting.
1 SEC. 51. At the time and place so appointed, the supervisor and township clerk shall cause to be written on Mode of class.
fying.
2 separate pieces of paper, as near alike as may be, the numbers one, two, three, four, or such, and so many
3 of such numbers as shall correspond with the classes which shall be vacant, and shall cause them to be roll-
4 ed up as nearly alike as may be, and deposited in a box, and the persons elected justices shall severally draw
5 one of the said pieces of paper, and shall be classed according to the number written on the paper so drawn
- - 1836, p. 21, sec.
6 by him, and shall hold his office for such number of years, either one, two, three or four, as shall corres-"
7 pond with such number so drawn.
&
R& - • . . l ing, the supervisor shall daw for
1 SEC. 52. If any person elected a justice shall neglect to attend such drawing, p * when superin-
* tendent may
draw for absent
e e © tº * tº justices.
2 him ; but if the supervisor be absent from his township or unable to serve, or his office be vacant, the town-
º º ſº . © • * º 1830, p. 21, sec. 8.
3 ship clerk shall give the notice and perform the duties herein enjoined on such supervisor.
CHAP. 16. J ( 84 ) [TTLE 4.
1 SEC. 53. Duplicate certificates of such drawing, and of the result thereof, shall be made and certified by the
Certificates of *…, • sº
classification to
be made and re- e & tº
corded. 2 supervisor and township clerk, or such one of them as shall attend the same, one of which shall be filed
3 with the township clerk, and the other with the county clerk, and shall be recorded by said clerks in the
4 books in which the canvasses of votes shall have been recorded, and shall-be conclusive evidence of the clas-
5 ses to which the justices so elected belong.
1 SEc. 54. In case more than one existing vacancy in the office of justices of the peace shall be supplied by
Classification in -
case of election
to fill vacancies. 2 election at any township meeting, the classes of the persons elected to fill the same shall be determined by
3 lot, within the time, and in the manner prescribed for classifying justices elected in new townships.
Penalty on offi-
cers for neglec
to qualify.
I SEc. 55. If any person elected to any township office, except that of justice of the peace, of whom an
2 oath of office is required, who is not exempted by law from holding the office to which he is elected, shall
3 not, within ten days after notice of his election, take and subscribe the oath of office required by law, and
4 cause the same to be filed with the township clerk, or if any such officer of whom a bond or se-
5 curity shall be required, shall not file such bond or security, within the time above limited for filing his
6 said oath, he shall forfeit and pay the sum of ten dollars, and if any person elected to the office of over-
7 Seer of highways or pound master, and not exempted by law from holding such office, shall refuse to serve,
8 he shall forfeit and pay the like sum.
Resignations, Vacancies, and Supplying Vacancies.
1 SEc. 56. Resignations of all officers elected at township meetings, shall be in writing, signed by the offi-
How resigna-
tions made.
2 cer resigning, and addressed to the township board; and shall be delivered to and filed by the township
3 clerk ; and when a justice of the peace resigns, such clerk shall immediately transmit a copy of such re-
4 signation, certified by him to the county clerk.
When office to 1 SEC. 57. Every township office, including the office of justice of the peace, shall become vacant upon
become Vacant.
2 the happening of either of the events specified in chapter fifteen, as creating a vacancy.
1 SEC. 58. Whenever there shall be a vacancy, or when the incumbent shall, from any cause, be unable to
*
2 perform the duties of his office, in either of the township offices, except that of justice of the peace and
CHAP. 16.] . - ( 85 ) [TITLE 4.
3
5
5
township treasurer, the township board may make temporary appointments of suitable persons to dis-
Temporary ap-
pointments in
charge the duties of such offices respectively; and such persons so appointed shall take the oath of office, or tº: to
township board.
file the notice of acceptance required by law, and shall continue to discharge such duties until the office is
* 1843, p. 20.
filled by election or until the disability aſoresaid be removed.
SEc. 59. In case the treasurer of any township shall refuse to serve, or shall vacate his office before When townshi
1p
- treasurer to be
- appointed by
completing the duties thereof, or be disabled from completing the same, by reason of sickness or any other"
o
cause, the township board shall forthwith appoint a treasurer for the remainder of the term, who shall give
like security, and be subject to like duties and responsibilities, and have the same powers and compensation
as the treasurer in whose place he was appointed, and the township clerk shall immediately give notice
thereof to the county treasurer; but such appointment shall not exonerate the former treasurer or his sure- 1843, p. 73, sec
; p - ſo, Stº.
40.
ties from any liability incurred by him or them.
~
Supervisor.
SEc. 60. The supervisor of each township shall prosecute, in the name of the people of this state, ors isor t
Ulp.6, rvişOr to
- ...; for
penalties.
otherwise, as may be necessary, for all penalties and forfeitures incurred within his township, and for which
no other officer is specially directed to prosecute.
SEC, 61. He shall, by virtue of his office, be an assessor of his township, and as such shall perform the
- To be an assess-
Or.
12.
Sec. 62. The supervisorshall preserve and keep all books, assessment rolls and other papers belonging to his
Supervisor to
preserve books,
e g e e * &c., and give
office, and shall deliver the same on demand to his successor in office ; and on the application of any per- copies.
wn. he shall give ceirtified copies of any such papers, or abstracts from any assessment roll or books in
his office ; and for making any such copies or abstracts he shall be entitled to receive from the person ap-
plying therefor, six cents for each folio; but no such copy or abstract and certificate shall be required for
less than twelve and a half cents; and such certified copies or abstracts shall be presumptive evidence of 1843, p. 70.
the facts therein contained.
22
CHAP. 16 I
( 86 y [TITLE 4.
To attend meet-
ings, of board of
supervisors.
To lay before
board, entries
concerning mo-
neys to be rais-
ed.
Township clerk
to keep records,
&c.; of town-
ship.
Minutes of
township meet-
ing.
To return to
county clerk
names of consta-
bles,
To give notice
of election of
justices,
To appoint a
deputy. Dutics
of deputy.
1 SEc. 63. The supervisor of each township shall attend the annual meeting of the board of supervisors of
2 the county, and every adjourned or special meeting of such board of which he shall have notice.
1 SEc. 64. Each supervisor shall lay before the board of supervisors such copies of entries concerning
2 moneys voted to be raised in his township, as shall be delivered to him by the township clerk.
Township Clerk.
1 SEc. 65. The township clerk of each township shall have the custody of all the records, books and pa-
2 pers of the township, when no other provision is made by law; and shall duly file and safely keep all cer-
3 tificates of oaths, and other papers required by law to be filed in his office, and record such as are required
4 to be recorded therein.
1 SEC. 66. He shall transcribe, in the book of records of his township, the minutes of the proceedings of
2 every township meeting held therein, and he shall enter in such book, every order or direction, and all rules
3 and regulations made by any such township meeting.
1 SEc. 67. The township clerks immediately after the qualifying of any constables, chosen or appointed
2 in their respective townships, shall return to the clerks of their respective counties, the names of such con-
3 stables.
1 SEC, 68. Each township clerk shall, immediately after the election of any justices of the peace in his
2 township, transmit a written notice thereof to the county clerk, stating therein the names of the
3 persons so elected, and the terms for which they were respectively elected ; and if one or more of them
4 has been elected to fill a vacancy, he shall state in such notice who was the last incumbent of the office.
1 SEC, 69. Each township clerk shall, immediately on entering upon the duties of his office, appoint a
2 deputy, who shall take an oath of office and file the same with the clerk; and in case of the absence, sick-
3 ness, death, or other disability of the clerk, such deputy shall perſorm the duties of such clerk, and receive
4 the same compensation as the clerk would have been entitled to receive therefor.
CHAP. 16.] ( 87 ) * [TITLE 4.
2
Township Board.
*
. ... * * * | e e • * * ſº Who shall con-
SEc. 70. The justices of the peace and township clerk shall constitute the township board, any three of .8 tº in
O3 ICl.
º,
whom shall constitute a quorum for the transaction of business.
SEc. 71. When from any cause there shall not be three of the officers constituting such board, competent when quorum
not present, su-
pervisor to act.
or able to act, the supervisor on being notified by the clerk or one of the justices, shall meet with any mem-
bers of the board, and shall have the same authority as the other members of the board.
SEc. 72. The township board shall meet annually on the Tuesday next preceding the annual township Annual meeting
of township t
- board for audit-
meeting to be held in such township, for the purpose of auditing and settling all claims against the township; . .”
and they shall state on each account the amount allowed by them; and the amounts allowed by them shall
be paid by the treasurer, on the order of the board, signed by their clerk, and countersigned by one of
such justices,
Settlement with
treasnrer and
tºº. Other officers.
the township treasurer, for all moneys received and disbursed by him as such treasurer; and they shall also
SEc. 73. The said board shall at their annual meeting in each year, examine and audit the accounts of
audit and settle the accounts of all other township officers, who are authorized by law to receive or disburse
any public moneys by virtue of their offices.
SEc. 74. The township clerk shall be the clerk of such board, and shall keep a true record of all their
Clerk of board.
proceedings in his office, $º *
SEc. 75. All the accounts audited by such board, shall be filed and preserved by such clerk, for the in- annºun, to
- be filed and pro-
duced at annual
spection of any of the inhabitants of the township, and shall be produced at the next annual township mee-"
ting, and there read by him, if the same shall be required by the meeting or by any legal voter.
Treasurer.
SEc. 76. The township treasurer shall receive and take charge of all moneys belonging to the township, puties of treasu-
+. & rer.
or which are by law required to be paid into the township treasury, including all moneys that may accrue to
CHAP. 16.] ( 88 ) [TITLE 4.
fºll, p. 159, sec.
Bond of treasu-
rer.
Treasurer to
keep account of
receipts and ex-
penditures.
To Settle with
township board.
Constables to
attend township
meetings.
Constables to
give security.
º
3 his township on account of non-resident highway taxes, and shall pay over and account for the same,
4
2
1
2
6
according to the order of such township, or the officers thereof duly authorized in that behalf; and shall
*
perform all such other duties as shall be required of him by law.
Sec. 77. Each township treasurer, within the time limited for filing his oath of office, and before he shall
enter upon the duties of his office, shall give bond to the township in such sum, and with such sureties as
the supervisor shall require and approve, conditioned for the faithful discharge of the duties of his office,
and that he will faithfully and truly account for and pay over according to law, all moneys which shall
come into his hands, as such treasurer, and the supervisor shall endorse his approval thereon and file the
same in his office.
SEc. 78. Each township treasurer shall keep a just and true account of the receipts and expenditures of
all moneys which shall come into his hands by virtue of his office, in a book to be provided for that pur-
*
pose, at the expense of the township, and to be delivered to his successor in office.
SEc. 79. On the Tuesday next preceding the annual township meeting, he shall account with the town-
ship board of the township, for all moneys received or disbursed by him.
Constables.
SEC, 80. The constables of the several townships shall attend at the opening of every township meeting
and election held in their respective townships; and such of them as shall be designated by the inspectors,
or by the moderator, shall remain in attendance during such meeting or election, and the canvass thereof.
Sec. 81. Every person elected or appointed to the office of constable, before he enters upon the duties of
his office, and within the time presented by law for filing his official oath, shall execute, in the presence of
the supervisor or clerk of the township, with one or more sufficient sureties, to be approved of by such su-
pervisor or township clerk, an instrument in writing, by which such constable and his sureties shall jointly
and severally agree to pay to each and every person who may be entitled thereto, all such sums of money
as the said constable may become liable to pay on account of any execution that may be delivered to him
7 for collection.
CHAP. 16.] - . ( 89 ) - [TITLE 4
1 Sec. 82. Such supervisor or township clerk shall endorse on such instrument, his approbation of the sure-
Approval and
filing security.
2 ties therein named, and shall then cause the same to be filed in the office of the township clerk, and a copy
sº
3 of such instrument, certified by the township clerk, shall be competent evidence to prove the contents and
[4 execution thereof, and all actions against a constable or his sureties, upon any such instrument, shall be
5 prosecuted within two years after the expiration of the year for which the constable named therein shall
6 have been elected.
1 Sec. 83. Constables shall serve all warrants, notices and process lawfully directed to them by the town-r.........
* • * * - ºts. notices,
2 ship board, or the township clerk, or any other officer, and shall perform such other duties as are required
3 of them by law.
1 SEC. 84. Any constable may serve any writ, process or order lawfully directed to him, in any township
r Constable may
serve ; in
* e any township in
2 in his county. - - his county. p
nisterial officers,
and to attend
'COUlrtS,
1 SEc. 85. Constables shall be ministerial officers of justices of the peace, and shall attend upon the sessions comales mi-
2 of the circuit or district courts for their respective counties, when notified for that purpose by the sheriff.
Commissioners and Overseers of Highways.
1 Sec. 86. Every commissioner of highways, and every overseer of highways, having accepted his office penalty oncom.
missioners and
º j º:
2 shall, ſor every neglect of the duties of his office, forfeit the sum of ten dollars. ºśy.
;C. 87. - .* * - c.; *g rseers of hi * * * e May be indicted
1 SEC, 87. Any of the said commissioners or overseers of highways, may be prosecuted by indictment, forº ency in
highways.
2 any deficiency in the highways within his limits, occasioned or continued by his fault or neglect ; and on
3 conviction thereof, may be fined in any sum not exceeding fiſty dollars.
1 SEC. 88. Each of the said commissioners of highways, before entering upon the duties of his office, and º
jº - o give bond.
2 within the time limited by law for filing his official oath, shall give bond to the township in the penal sum
3 of five hundred dollars, with one or more sufficient sureties to be approved by the supervisor, or by the town- # º:
4 ship clerk, conditioned for the ſaithful performance of the duties of his office.
23
CHAP. 16.] ( 90 ) [TITLE 4.
Approving and
filing bond.
Clerk of Com-
missioners, his
duties.
1841, p. 159, Sec.
2 and 3.
Oath of Justices
of the Peace.
Justices to give
security.
Approval of
sureties, and fil-
ing of instru-
Iment.
I
2
432
5
2
3
4
l
SEC, 89. The supervisor or township clerk shall endorse his approval on such bond, and shall cause the
same to be filed with the township clerk, who shall safely keep the same in his office.
SEC 90. The township clerk of each township shall be the clerk of the commissioners of highways, and
shall under their direction record their proceedings in a suitable book to be provided by him for that purpose
at the expense of his township, and shall keep an accurate account of all orders drawn by them on the
township treasurer, stating the amount of each, and in whose favor the same was drawn; and all books and
papers relating to the business of said commissioners, shall be preserved and kept by him in his office.
Justices of the Peace.
Sec. 91. Each justice of the peace elected to fill a vacancy, and each justice elected for a term less than
four years, within ten days after notice of his election, and each justice of the peace elected for the full
term of four years, on or before the fourth day of July next after his election, shall take and subscribe his
oath of office before some officer authorized to administer oaths, and file the same with the county clerk.
Sec. 92. Each justice of the peace before he enters upon the duties of his office, and within the time limit.
ed by law for filing his official oath, shall execute in the presence of the supervisor of his township, or of
the county clerk, with one or more sufficient sureties to be approved of by such supervisor or county clerk, {
an instrument in writing, by which such justice and his sureties shall jointly and severally agree to pay to
each and every person entitled thereto, all such sums of money as such justice shall become liable to pay
for or on account of any money which may come into his hands as a justice of the peace, upon demand
thereof made by such person, his agent or attorney.
SEc. 93. Such supervisor or county clerk shall endorse on such instrument, his approval of the sureties
therein named, and such justice shall then cause the same to be filed in the office of the county clerk, and
a
a copy of such instrument, certified by such clerk under his hand and seal, shall be competent evidence to
prove the contents and execution thereof.
SEC, 94. If any justice of the peace shall fail to comply with such agreement, it shall be competent
CHAP. 16.1 ( 91 ) - [TITLE 4.
2 for any person to whom such justice shall have become liable by reason of such failure, to sue such justice
When and how
- * justice and sure-
3 and his sureties, or any of them in assumpsit, and to declare against them generally, for money had and re-º."""
4 ceived to the use of the plaintiff, and if the plaintiff on the trial of such suit, shall establish his right to re-
5 cover, he shall have judgment for principal, interest and costs.
1 SEc. 95. If any justice of the peace shall enter upon the execution of his office before having filed his of Penalty for en-
tering upon his
2. office, without .
filing oath, &c,
2 ficial oath or such agreement as aforesaid, as required by law, hq shall forfeit the sum of one hundred dol-
3 lars,
Compensation to Township Officers.
*
1 SEC. 96. The following township officers shall be entitled to compensation at the following rates for each Compensation of
. certain township
officers, for cer-
tain services.
2 day actually and necessarily devoted by them to the service of the township, in the duties of their respect-
3 ive offices.
4 1. The officers composing the township board, assessors, inspectors of elections, clerks of the poll, com.
5 missioners of highways, school inspectors and directors of the poor, one dollar and twenty-five cents a day:
6 2. The township clerk, as clerk of the board of commissioners of highways, of the township board, and of #. p. % Sec.3.
- , p. 70, Sec.
as º º
7 the board of school inspectors, one dollar and twenty-five cents a day; but no township officer shall be en-
8 titled to pay for acting in more than one capacity at the same time.
1 Sec. 97. For services not otherwise provided for by law, rendered to townships by township officers in the Compensation
for other servi-
CCS,
2 duties of their respective offices, the township board shall audit and allow such compensation as they shall
3 deem reasonable.
Township Business, other than Elections.
1 SEc. 98. In the transaction of any business other than the election of officers in any township meeting,
Moderator of
township meet-
2 the supervisor, if present, shall be the moderator of the meeting; and if he shall not be present, any othering.
3 of the inspectors of election, except the clerk,who shall be designated by the inspectors present, shall be the
4 moderator; or the meeting, under the direction of the inspectors present, may elect, viva voce, a modera-
5 tor of the meeting.
CHAP. 16.] ( 92 ) [TITLE 4.
1
Sec. 99. The moderator shall preside in, and regulate the proceedings of the meeting ; he shall decide all
Powers and du- - -
ties of modera-
tor.
2
questions of order, and make public declaration of all votes passed; and when any vote so declared by him
3 shall immediately upon such declaration be questioned by seven or more of the voters, he shall make the
4 vote certain by polling the voters, or dividing the meeting, unless the township shall by a previous vote, or
5 by their by-laws, have otherwise provided.
1 SEc. 100. No person shall speak in the meeting before permission obtained of the moderator, nor while
Ib.
2
any other person is speaking by his permission; and all persons at such meeting shall be silent at the re-
3
quest of the moderator.
pisorderly con- 1 Szc. 101. If at any township meeting any person shall conduct himself in a disorderly manner, and after
duct at township -
meetings. 2 notice from the moderator, shall persist therein, the moderator may order him to withdraw from the meet-
3 ing; and on his refusal, may order the constables or any other persons to take him from the meeting, and
4 confine him in some convenient place until the meeting shall be adjourned.
z’
† 1 SEC. 102. Any person who shall refuse to withdraw from such meeting, on being ordered by the moderator
regarding order
of moderutor, e S. o º - o e
2 to do so, as provided in the preceding section, shall for every such offence forfeit a sum not exceeding twen-
3 ty dollars.
Qualifications of Voters and Officers.
1 SEC, 103. Every inhabitant of any township, having the qualifications of an elector, as specified in the
Who may vote,
challenges.
constitution of this state, and no other person, shall have a right to vote on all matters and questions before
3
any township meeting, and when any person claiming the right to vote shall be challenged by a voter, the
4 moderator shall proceed in the same manner as on challenges at the election of township officers.
1 SEC, 104. No person, except an elector as aforesaid, shall be eligible to any elective office contemplated
ºsibility to of—
Jl CC,
2 in this chapter.
CHAP. 17.] ( 93 ) ITITLE 4.
Cities of Detroit and Monroe.
1 SEC. 105. The cities of Detroit and Monroe, respectively shall continue to have and exercise all the P9W" cities of Mon-
roe and Detroit,
additional justi-
2 ers and privileges, and be subject to all the duties and liabilities conferred or imposed upon them, respect-“’
3 ively, by law ; and two additional justices of the peace shall continue to be chosen in the township of Mon-
4 roe, and two in the city of Detroit, in the same manner, and with the like powers, and subject to the same
* 1836, p. 23, sec.
5 duties and liabilities, as provided in this chapter, in relation to the election, powers, duties and liabilities of ſº,
6 justices of the peace.
CHAPTER 17.
Of the Division of Townships.
* *
1 Sporion 1. When a township seized of lands shall be divided into two or more townships, the supervisors
Disposition of
lands on divi-
.. . . ſº . . . * sion of town-
2 and directors of the poor of the several townships constituted by such division, shall meet as soon às may be ship, and appor-
tionment of pro-
ceeds.
3 after the first township meetings subsequently held in such townships, and when so met shall have power
4 to make such agreement concerning the disposition to be made of such township lands, and the apportion-
5 ment of the proceeds in case of a sale thereof, as they shall think equitable, and to take all measures, and
6 execute all conveyances which may be necessary to carry said agreement into effect.
1 SEc. 2. When a township shall be altered in its limits by annexing a part of its territory to another town-jºº"
township.
2 ship or townships, the Supervisor and directors of the poor of the township from which such territory shall
3 be taken, and of the township or townships to which the same shall be annexed, shall, as soon as may be af.
4 ter such alteration, meet for the purpose, and possess the powers provided in the preceeding section.
1 SEC, 8. If no agreement for the disposition of such lands-shall be made by the supervisors and directors Iſ .#.
ment IS made
*. within six mos.
in relation to
3 within six months after such alteration or division, then the supervisors and directors of the poor of each ****
4 township in which any portion of such lands shall lie, shall proceed as soon as may be thereafter, to sell
° and convey such part of said:lands as shall be included within the limits of such township ; and the pro-
° ceeds arising from such sale shall be apportioned between the several townships interested therein, by the
24
CHAP. 18.] ( 94 ) [TITLE 4,
Moneys, &c.,
how apportioned
in case of divis-
ion, &c.
Mecting of su-
pervisors and di-
rectors of poor,
llow called.
Qualifications of
preceding sec-
liOIlS.
Debts how ap-
portuined.
What constitutes
lawful fence.
7
supervisors and directors of the poor of all such townships, according to the amount of taxable property in
the township divided or altered, as it existed immediately before such division or alteration, to be ascertain-
ed by the last assessment roll of such township. *...
SEc. 4. When a township possessed of, or entitled to money, rights and credits, or other personal estate,
2 shall be so divided or altered, such moneys, rights, credits and personal estate, including moneys belonging
l
1
to the township, in the hands of township officers, shall be apportioned between the townships interested
therein, by the supervisors and directors of the poor of such townships according to the rule of apportion-
ment above prescribed; and they shall meet for that purpose as soon as may be after the first township meet-
ings subsequently held in such townships.
SEc. 5. Whenever a meeting of the supervisors and directors of the poor of two or more townships
shall be required, in order to carry into effect the provisions of this chapter, such meeting may be called
by either of the said supervisors; but the supervisor calling the same shall give at least six days notice in
writing to all the other officers, of the time and place at which such meeting is to be held.
ge
SEc. 6. The preceding sections of this chapter shall not apply to any cemetery or burrying ground belon g-
ing to a township ; but the same shall belong to the township, within which it may be situated, after a di-
vision shall have been made.
SEC. 7. Debts owing by a township so divided or altered, shall be apportioned in the same manner as the
personal property of such township; and each township shall thereaſter be charged with, and pay its share
of the debts, according to such apportionment.
l
CHAPTER 18,
of FENCES AND FENCE VIEWERS ; of POUNDS AND THE IMPOUNDING OF CATTLE.
Fences and Fence Viewers.
SECTION 1. All fences four and a half feet high, and in good repair, consisting of rails, timber, boards, or
CHAP. 18. I - - ( 95 ) - [TITLE 4.
2 stone walls, or any combination thereof, and all brooks, rivers, ponds, creeks, ditches and hedges, or other
3
things which shall be considered equivalent thereto, in the judgment of the fence viewers within whose
4 jurisdiction the same may be, shall be deemed legal and sufficient fences.
l
Sec. 2. The respective occupants of lands enclosed with fences, shall keep up and maintain partition ſen- partition fences
how maintained.
ces between their own and the next adjoining enclosures, in equal shares, so long as both parties continue
to improve the same.
\
Sec. 3. In case any party shall neglect to repair or rebuild any partition fence, which of right he ought
Proceedings in
case of neglect to
e repair or rebuild.
to maintain, the aggrieved party may complain to two or more fence viewers of the township, who, after
due notice to each party, shall proceed to examine the same ; and if they shall determine that the fence is
insufficient, they shall signify the same in writing to the delinquent occupant of the land, and direct him to
repair or rebuild the same within such time as they shall judge reasonable, not exceeding fifteen days; and
if such ſence shall not be repaired or rebuilt accordingly, it shall be lawful for the complainant to repair or
rebuild the same.
SEC. 4. When any deficient fence, built up or repaired by any complainant as provided in the Preceding Remedy of com-
plainant for re-
e - - o pairs, &c.
section, shall be adjudged sufficient by two or more of the fence viewers, and the value of such repairing
a
or building up, together with their fees, shall be ascertained by a certificate under their hands, the complai-
nant shall have a right to demand, either of the occupant or owner of the land where the fence was defi-
cient, double the sum so ascertained ; and in case of neglect or refusal to pay the sum so due, for one
month after demand thereof made, the complainant may recover the same, with interest at one per cent a
month, in an action for money paid, laid out and expended.
SEc. 5. When any controversy shall arise about the rights of the respective occupants, in partition fences,
In case of con-
troversy, fence
or their obligation to maintain the same, either party may apply to two or more fence viewers of the town. *** *
ship where the lands lie, who after due notice to each party, may in writing assign to each his share there-
of, and direct the time within which each party shall erect or repair his share of the fence in the manner
CHAP. 18.]
[TITLE 4.
( 96 )
In case of neg-
lect, &c.,. party
erecting an
maintaining
fence entitled to
double the value.
When occupant
to pay for portion
of fenee assigned
to him.
Partition fonces
to be kept repair-
ed through the
year unless, &c.
When lands
bounded or divi-
ded by river, &c.
and parties disa-
gree, viewers
may be had.
5
6
2
before provided ; which assignment, being recorded in the township clerk's office shall be binding upon
the parties, and upon all the succeeding occupants of the lands; and they shall be obliged always thereaf-
ter to maintain their respective portions of said fence.
SEC. 6. In case any party shall refuse or neglect to erect and maintain the part of any fence assigned to
him by the fence viewers, the same may be erected and maintained by the aggrieved party, in the manner
before provided; and he shall be entitled to double the value thereof, ascertained in the manner aforesaid,
*
and to be recovered in like manner.
SEC. 7. When in any controversy that may arisé between occupants of adjoining lands, as to their re-
spective rights in any partition fence, it shall] appear to the fence viewers that either of the occupants had
before any complaint made to them, voluntarily erected the whole fence, or more than his just share of
the same, or otherwise become proprietor thereof, the other occupant shall pay for so much as may be as-
signed to him to repair or maintain, the value of which shall be ascertained and recorded in the manner pro-
vided in this chapter.
SEc. 8. All partition fences shall be kept in good repair throughout the year, unless the occupants of the
lands on both sides shall otherwise mutually agree.
Sec. 9. When lands of different persons, which are required to be fenced, are bounded upon, or divided by,
any river, brook, pond or creek, which of itself, in the judgment of the fence viewers is not a sufficient
ſence, and it is in their opinion impracticable, without unreasonable expense, for the partition fence to be
made in such waters,in the place where the true boundary line is, if in such case the occupant of the land on
the one side, shall refuse or neglect to join with the occupant of the land on the other side in making a par-
tition fence on the one side or the other, or if such persons shall disagree respecting the same, then two or
more fence viewers of the township wherein such lands lie, on application to them made, shall forthwith
proceed to view such river, brook, pond or creek.
SEc. 10. If such fence viewers shall determine such river, brook, pond or creek in the preceding section
CHAP. 18.] --- - ( 97 ) [TITLE 4. ---
2 mentioned, not to answer the purpose of a sufficient ſence, and that it is impracticable, without unreasona-
Proceedings of
fence viewers.
3 ble expense, to build a fence on the true boundary line, they shall after giving notice to the parties, deter-
4 mine how, or on which side thereof the fence shall be set up and maintained, or whether partly on one side
5
and partly on the other side, as to them shall appear just, and shall reduce such determination to writing,
6 and sign the same ; and if either party shall refuse or neglect to make and maintain his part of the
7 fence according to the determination of the fence viewers, the same may be made and maintained by the oth-
8 er party as before provided in this chapter, and the delinquent party shall be subject to the same charges and
W.
9 costs, to be recovered in like manner.
1. SEc. 11. When any lands, belonging to different persons in severalty, shall have been occupied in com-
When lands
Owned in seve-
& to . tº - e :- rally l
2 mon, without a partition fence between them, and one of the occupants shall be desirous to occupy his...}}}."
common, any
occupant may
3 part in severalty, and the other occupant shall refuse or neglect, on demand, to divide with him the line.”"
4 where the fence ought to be built, or to build a sufficient fence on his part of the line when divided, the party
5 desiring it may have the same divided and assigned by two or more fence viewers of the same township, in
6 the manner provided in this chapter.
1 SEc. 12. Upon the division and assignment as provided in the preceding section, the fence viewers may, in When vi
-- V Ilen Viewers
may assign time
for making fence
2 writing under their hands, assign a reasonable time for making the fence, having regard to the season of ºntº
3 the year, and if either party shall not make his part of the fence within the time so assigned, the other
4 party may, after having completed his own part of the ſence, make the part of the other, and recover there-
5 for double the ascertained expense thereof, together with the fees of the fence viewers, in the manner pro-
6 vided in this chapter.
1 SEC. 13. When one party shall cease to improve his land, or shall open his enclosure, he shall not take
When partition
{} a & e • . . . . - º * fence not to be
2 away any part of the partition fence belonging to him and adjoining the next enclosure, if the owner or .
3 occupant of such adjoining enclosure will within two months after the same shall be ascertained, pay there-
4 for such sum as two or more fence viewers shall, in writing under their hands determine to be the value of
5 such partition fence belonging to such party.
25
CHAP. 18.] ( 98 ) [TITLE 4.
Whcn occupant
or owner to pay
one-half of par— ,
tition fence, &c.
When a fence
viewer to be ta-
ken from each
township.
Fences running
in 10 Water.
When line of
unimproved
lands divided,
Who to erect
fences, &c.
'Notice on deter-
mination of per-
Son not to im-
prove lands.
3
2
Spc. 14. When any uninclosed land shall be afterwards inclosed, the occupantor owner thereof shall pay
for one half of each partition fence, standing upon the line between his land and the inclosures of any other
occupant or owner, and the value thereof shall be ascertained by two or more fence viewers of the town-
*
ship, in writing under their hands, in case the parties do not agree; and if such occupant or owner shall
neglect or refuse for thirty days after the value has has been so ascertained and demand made, to pay for
one half of such partition fence, the proprietor of such fence may maintain an action in the form aforesaid,
*
for such value, and the costs of ascertaining the same.
SEC. 15. In all cases where the line upon which a partition fence is to be made, or to be divided, is the
boundary line between townships, or partly in one township and partly in another, a fence viewer shall be
taken from each township.
SEC.16. Where aſpartition fence running into the water is necessary to be made, the same shall be done in
equal shares, unless otherwise agreed by the parties, and in case either party shall refuse or neglect to make
or maintain the share belonging to him, similar proceedings shall be had, as in case of other fences, and
with the like effect.
SEc. 17. In all cases where the line upon which a partition fence is to be built between unimproved lands,
has been divided by the fence viewers, or by agreement in writing between the owners of such lands, re-
corded in the office of the clerk of the township, or of one of the townships where such lands lie, the several
owners thereof, and their heirs and assigns forever, shall erect and support said fences, agreeably to such
division.
‘SEc. 18. If any person shall determine not to improve any part of his lands adjoining any partition ſence
that may have been divided according to the provisions of this chapter, and shall give six months' notice
of such determination to all the adjoining occupants of lands, he shall not be required to keep up or support
any part of such fence during the time his lands shall lie open and unimproved.
CHAP. 18.] ( 99 ) . |[Tim LE 4
JFenoe Viewers.
*
1 SEC. 19. The overseers of bighways of the several townships in this state, shall be fence viewers in their Who to be fence
Vieyers.
}
2 respective townships.
*
.1 SEC. 20. Any fence viewer, who shall, when requested, unreasonably neglect to view any fence, or to :* for ne-
2 perform any other duty required of him in this chapter, shall forfeit the sum of five dollars, and shall also
3 be liable to the party injured for all damages consequent upon such neglect.
1 SEc. 21. Each fence viewer shall be paid by the person employing him, at the rate of one dollar a day
- º * ſe * - * * e Compensation of
2 for the time he shallibe so employed; and if such person shall neglect to pay the same within thirty days fence viewers.
3 after the service shall have been performed, each fence viewer having performed any such service may re-
4 cover in an action of assumpsit, double the amount of such fees.
‘Pounds and Impounding Cattle, &c.
1 SEC. 22. Each township shall, at its own expense, and in such places therein as the électors shàll direct, pro-
Townships to
. provide and
* e te e & g ſº º tai
2 vide and maintain one or more sufficient pounds, in which swine, sheep, horses, asses, mules, goats and meat."
3
cattle may be restrained and kept from going at large contrary to law, or to any by-law of such township.
'A
I Sec. 23. Every township that shall, for the space of six months, neglect to provide or maintain a suff-
ºly for ne-
glect.
2 cient pound, shall forfeit the sum of thirty dollars.
1 SEC, 24. Each township shall, at the township meeting in each year, elect a suitable person to be keeper
. Pound keeper.
2 of each pound therein, as provided in chapter sixteen.
1 SEC, 25. If any person shall wilfully injure any pound maintained by any township, he shall be deemed
& f . . . . . . º tº , ſº . - ... tº Punishment for
2 guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding fifty dollars, injury topounds.
* or by imprsionment in the county jail not exceeding ninety days at the discretion of the court.
CHAP. 19.]
( 100 ) [TITLE 4.
Punishment of
officers for wil-
ful neglect of
duty.
gu , p. 187, Sec.
Punishment for
bribing an elec-
tor, &c.
1844, p. 15-16,
Sec. 1.
Punishment for
illegal voting.
1841, p. 186, sec.
3.
ºt, p. 16, Sec.
Penalty for
counselling, &c.
any person not
qualified to vote
1841, p. 187, sec
4 and 5.
5
4.
5
6 scribed in the third
CHAPTER 19. Af
of PENALties for violating election Laws.
SECTION 1. If any officer on whom any duty is enjoined by law, relative to general, special, township or -
charter elections, or the canvassing or return of votes given at any election, shall be guilty of any wilful
neglect of such duty, or of any corrupt conduct in the execution of the same, he shall, on conviction there-
of, be deemed guilty of a misdemeanor, and shall be punished by fine not exceeding one thousand dollars,
or imprisonment in the state prison not exceeding three years.
SEC. 2. If any person shall by bribery, menace, or any other corrupt means or device whatever, either
directly or indirectly, attempt to influence any elector in giving his vote, or to deter him from, or interrupt
him in giving the same, at any election held pursuant to the provisions of law, such person shall on con-
viction thereof be adjudged guilty of a misdemeanor, and shall be punished by a fine not exceeding five hun-
dred dollars, or by imprisonment in the county jail not exceeding one year, or both, in the discretion of the
Court.
SEC. 3. Every person not a qualified voter, who shall at any election, wilfully give in a vote for any offi-
cer then to be chosen ; and every qualified voter who, at such election shall vote or offer to vote in any
township or ward in which he does not reside, or who shall vote or offer to vote more than once at the same
election, either in the same or any other township or ward, or shall give in two or more votes folded togeth-
er, shall, on conviction thereof, be adjudged guilty of a misdemeanor and shall be punished by fine not ex-
ceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or both in the
discretion of the court.
f
SEc. 4. Every person who shall procure, aid or counsel any person not duly qualified to vote at the place
where the vote is given or offered, to give or offer his vote at any such election, and every person who shall
procure aid, or counsel any person to go or come into any township or ward for the purpose of voting
therein, at any election, knowing that such person is not duly qualified to vote in such township or ward,
shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished in the manner pre-
Y e º n - e.
section of this chapter.
e" e - Y
* • * ~ * *
º * * c *
o e
}
º
- * * ~ y,
CHAP. 19.] ( 101 ) [TITLE 4.
1 SE6. 5. If any person not duly authorised by law, shall, during the progress of any election in this state,
Punishment for
violation of bal-
2 or after the closing of the polls, and before the ballots are counted, and the result ascertained, break open, or lot box. &c.
3 violate the seals or locks of any ballot box in which ballots have been deposited at such election, or who
4 shall obtain undue possession of such ballot box containing such ballots, and conceal, withhold, o: destroy
5 the same, or who shall fraudulently or forcibly add to or diminish the number of ballots legally deposited,
6 and all persons aiding or abetting therein, shall be adjudged guilty of a misdemeanor, and on conviction lººp. 188, sec.
7 thereof shall be punished by imprisonment in the state prison for a term not exceeding ten years, or by a
8 fine not exceeding one thousand dollars.
1 SEC. 6. It shall be the duty of every inspector of elections, sheriff, constable, and justice of the peace, Duty of herit
&c., to cause of
fender to be ar-
e & tº & tº gº e rested and give
2 knowing, or having reason to believe that an offence punishable under the provisions of this chapter, has º.
- cuting attorney.
3 been committed, to cause the offender forthwith to be arrested, and to give information thereof to the pro-
4 secuting attorney without delay, and such prosecuting attorney shall adopt effectual measures for the punish-
5 ment of all persons who shall violate the provisions of this chapter.
i SEc. 7. It shall be the duty of all courts in this state, having cognizance of such offences, at each term courts to charge
grand jury to
present offences
gº g . Tº º º ... against this
2 thereof, to charge the grand jury to make presentment of all offences committed within their respective chapter.
3 counties, against any provison of this chapter.
26
CHAP. 20.] ( 102 ) * - ITITLE 5.
TITLE v.
OF TAxEs AND DUTIES.
CHAPTER 20.—Of the Assessment and Collection of Taxes.
66 21.—Of Specific State Taxes and Duties.
CHAPTER 20.
OF THE ASSESSMENT AND COLLECTION OF TAXES.
& Of the Properly to be Tawed.
All property lia- 1 SECTION 1. All property real and personal, within this state, not expressly exempted therefrom, shall be
ble notexempted.
1843, p. 60.
Real estato.
Personal estate.
Corporate pro-
perty.
2 subject to taxation in the manner provided by law.
1 SEC. 2. Real estate shall for the purposes of taxation, be construed to include all lands within the state,
.2 and all buildings and fixtures thereon, except in cases otherwise expressly provided by law.
1 SEC. 3. Personal estate shall, for the purposes of taxation, be construed to include all goods, chattels, mo-
2 neys and effects, wheresoever they may be ; all ships, boats and vessels belonging to inhabitants of this
3 state, whether at home or abroad, and all capital invested therein ; all moneys at interest due the person to
4 be taxed more than he pays interest for, and all other debts due such persons more than their indebtedness;
5 all public stocks and securities, all stock in turnpikes, railroads, canals and other corporations out of this state,
6, owned by inhabitants of this state ; all personal estate of monied corporations whether the owners thereof
7 reside in or out of the state, and the income of any annuity, unless the capital of such annuity be taxed
8 within this state.
1 SEC. 4. All property of private corportions, except in the cases where some other provision is made by
2 law, shall be assesed in the name of the corporation, in the township or ward where the same shall be
3 situated, and in collecting the same all the personal property of such corporation shall be liable to be
4 seized wherever the same may be found in the county, and sold in the same manner as the property of in-
*
5 dividuals may be sold for taxes.
CHAP. 20.] ( 103 ) [TITLE 5.
I
2
3
4
10
11
12
13
3
5
SEc. 5. The followin g property shall be exempt from taxation, viz:
Property ex-
empt from taxa-
1. All property exempt by law from levy or sale on execution; - - lion,
2. All the property of the United sale, and of this state, except lands bid off for the state at tax sales;
and all arms and military equipments of individuals liable to do military duty, and kept for that purpose ;
3. All public or corporate property of the several counties, cities, villages, townships and school districts
in this state, used or intended for corporate purposes;
4. The personal property of all library, benevolent, charitable and scientific institutions incorporated
within this state, and such real estate belonging to such institutions as shall actually be occupied by them,
or by the officers of such institutions, for the purposes for which º were incorporated;
5. All houses of public worship, with the pews or slips and furniture therein, and rights of burial and
tombs while in use as repositories of the dead;
6. The estates of Indians, and the personal estates of persons who by reason of infirmity, age and pow-
erty may, in the opinion of the assessors, be unable to contribute towards the public charges.
SEc. 6. When a tenant paying rent ſor real estate, shall be taxed therefor, he may retain out of his rent, when tenant
tain .
† by
the taxes paid by him for the same, unless there be an agreement to the contrary. IIl,
SEc. 7. All personal estate within this state, except in the cases where other provision is made by Personal estate.
- where assessed,
the third and eighth sections of this chapter, shall be assessed to the owner in the township where he shall
be an inhabitant on the second Monday of April, and all resident real estate, to the person occupying it on
that day, unless the same shall be given in by some other person for assessment to him.
SEC. 8. The excépted cases referred to in the preceding section, and not included in said section three, Cases excepted.
are the following:
1. All goods, wares and merchandize, or stock in trade, including stock employed in the business of the me-
chanic arts, in any township other than that where the owner resides, shall be taxed in the township where
the same may be, if the owner hire or occupy a store, shop, or warehouse therein, and shall not be taxable
where the owner resides;
CHAP. 20.] ( 104 ) [TITLE 5.
7
8
10
11
12
13
14
15
16
17
18
19
20
21
2. All horses, mules, neat cattle, sheep and swine kept throughout the year in any township other than
where the owner reside shall be assessed to such owner in the township where they are kept;
3. All personal property belonging to minors under guardianship, shall be assessed to the guardian in the
township where he is an inhabitant, and the personal property of every other person under guardianship,
shall be assessed to the guardian in the townsnip of which the ward is an inhabitant ;
4. All personal property held in trust by any executor, administrator or trustee, the income of which is
to be paid to any married woman or other person, shall be assessed to the husband of such married Woman,
or to such other person, in the township of which he is an inhabitant; but if such married woman or other
person reside out of this state, the same shall be assessed to such executor, administrator or trustee, in the
township where he resides; •g
5. Personal property placed in the hands of any corporation as an accumulating fund for the future ben-
efit of heirs or other persons, shall be assessed to the persons for whose benefit the same is accumulating
if within this state; otherwise to the person so placing it, or his executors or administrators, until a trustee
shall be appointed to take charge of such property, or of the income thereof;
6. The personal estate of persons deceased, which shall be in the hands of executors or administrators shall
22 be assessed to the executors or administrators in the towhship where the deceased last dwelt, until they shall
23
24
25
26
27
1
Person al pro-
gºy mortgaged
C.
give notice to the assessor that the estate has been distributed and paid over to the parties interested.
7. All property held by any religious society as a ministerial fund, shall be assessed to the treasurer of
such society; and if such property consists of real estate, it shall be taxed in the township where such
property lies; if it consists of personal property, it shall be taxed in the township where such society usu-
ally holds its meetings.
SEC. 9. When personal property is mortgaged, or pledged, it shall, for the purpose of taxation, be deem-
f
2 ed the property of the person who has possession thereof.
*
1 SEC. 10. The undivided real estate of any deceased person may be assessed to the heirs or devisees of such
Undivided real
...s. 2 person, unless occupied by some other person to whom it may be assessed, without designating them by name,
ed person.
3 until they shall have given notice to the assessors of the division of such estate, and the names of the sev-
CHAP. 20.] . - ( 105 ) [TITLE 5.
4
5
eral heirs and devisees, and each heir and devisee shall be liable for the whole of such tax, and shall have
a right to recover of the other heirs and devisees, their respective portions thereof, when paid by him.
University and
SEc. 11. Any person holding a certificate of purchase of university or primary school lands, or occupy-
- school lands.
2 ing the same, shall be liable to be assessed therefor as if he were the actual owner thereof: Provided however,
3
That the same shall be assessed as personal property and not as real estate, and the tax thereon shall be
collected in the manner prescribed for the collection of taxes upon personal property.
SEC. 12. Partners in mercantile or other business, whether residing in the same or different townships, Partners, how
taxed.
may be jointly taxed under their partnership name, in the township where their business is caried on, for
all the personal property employed in such business, and if they have places of business in two or more
townships they shall be taxed in those townships for the proportion of property employed in such townships
respectively ; and in case of being so jointly taxed, each partner shall be liable for the whole tax.
Of the Duties of Assessors and other Officers.
SEC. 18. The assessors in each township shall, between the second Monday in April and the first Monday
When assess-
te g - t to be made.
in May in each year, make out an assessment roll of all the taxable property in their township, either by vis- Inellt to be made
iting the residence of each individual, or inquiring personally of the owner or occupant of any eState
1844, p. 69, sec.
1.
real or personal to be taxed, iſ such owner reside within the township, and shall appraise the same at its
*
true cash value.
Sec. 14. The assessors may divide their townships into districts for the purpose of ascertaining the
Assessors may
divide townships
TODe - g
property liable to be taxed, and the persons subject to the payment of taxes thereon, and assign one district into districts.
to each assessor, but such Property and persons, and the valuation of such property, shall be finally deter.
1814, p. 69.
mined by them, or a majority of them, jointly, and if any assessor shall neglect his duties within his dis-
trict, the other assessors shall perform them.
Sec. 15. On the Saturday next preceding the second Monday in May, in each year, the assessors shall
27
CHAP. 20 ( 106 y
[TITLE 5.
When a8sess-
ment roll to be
reviewed.
1844, p. 60.
Assessment roll
what to contain.
Blanks to be pre-
pared and trans-
mitted.
Real estate how
to be deseribed.
2
6
I
2
4
2
3
3
5
10
11
12
13
meet at the office of the supervisor, in the severol townships, for the purpose of reviewing and completing their
assessment; and on the request of any person conceiving himself aggrieved, and on sufficient cause being
shown by the affidavit of such person, or by other evidence to the satisfaction of the assessor, they may al-
ter the same as to the personal property of such person, or the estimated value thereof, and when the
party, his agent, or attorney shall make affidavit of theyalue, they shall assess it at the value sworn to ; and
no notice of such meeting shall hereafter be necessary.
SEc. 16. The assessment roll shall contain the names of the resident persons liable to be taxed ; a full de-
scription of the real estate of such persons; the number of acres in each tract or parcel as near as the
same can be ascertained, the estimated value of each tract or parcel, and the aggregate valuation of the
personal estate of each person liable to be taxed.
Sec. 17. For the purposes mentioned in the last preceding section, the auditor general shall before the first
Monday in April it each year, prepare and transmit suitable blanks to the several county treasurers, who
shall, before the second Monday in April supply all the assessors with the same.
SEc. 18. The description of real estate shall be as follows:
1. If the land to be assessed be an entire section, it shall be described by the number of the section, town
ship and range ;
2. If the tract be a subdivision of a section authorized by the United States for the sale of public lands, it
shall be described by a designation of such subdivision, with the number of the section, township and
range ;
3. If the tract be less or other than such subdivision, it shall be described by a designation of the number
of the lot or tract, or of other lands by which it is bounded :
4. In case of lands surveyed or laid out as a town or village, and a plat thereof recorded in the register's
office of the county, iſ the tract to be assessed be a whole lot or block, it shall be described by a designa-
of the number thereof; if it be a part of a lot or block, it shall be described by its boundaries, or in some
other way by which it may be known; and tshall not be necessary to insert the quantity of any such lands
in the assessment roll ;
CHAP. 20.] - ( 107 ) [TITLE 5.
14 5. If the lands to be assessed be a tract of which the subdivision cannot be ascertained by the assessors,
15 they shall enter on the roll the boundaries thereof;
16 6. Undivided shares or interests in lands, shall be assessed to the owners thereof, if such ownership is
17 known to the assessors, and no tract iu the same section, originally entered as one parcel shall be subdivi-
18 ded in assessing, unless the fact of a subdivision having been made by the owner or owners, shall be known
19 to the assessors ;
20 7. It shall be sufficient to describe lands to be assessed or sold for taxes, in the manner heretofore in use, by led p. 161
21 initial letters, abbreviations and figures.
1 SEc. 19. All lands unoccupied, and not claimed to be owned by any resident of the township where they
Non-resident
lands.
2 are situated, and not exempt from taxation, shall be assessed as non-resident lands, and shall be entered on
3 a part of the roll separate from that upon which the estates of residents are entered.
1 SEc. 20. When a person is assessed as trustee, guardian, executor or administrator, a designation of his º
guardian, &c.
2 representative character shall be added to his name, and such assessment shall be entered on a separate line
3 from his individual assessment.
1 SEC. 21. When the assessors shall have reviewed and completed the assessment roll, they shall attach a
Certificate to be
attached to roll.
2 certificate thereto signed by them in the following form:
3 “We do hereby certify that we have set down in the above assessment roll all the real estate in the town-
4 ship of liable to be taxed, according to our best information, and that we have estima-
5 ted the same at what we believe to be the true cash value thereof; that the said assument roll contains a
6 true statement of- the aggregate valuation of º taxable personal estate of each and every person named
7 in said roll, and that except in those cases where the value of such personal estate has been sworn to by
8 the owner, his agent or attorney, we have estimated the same at its true cash value, according to our best
9
information and belief.”
1 SEc. 22. The township clerk of each township shall, on or before the second Monday of October in each
CHAP. 20.]
( 108 ) [TITLE 5.
Clerk of town-
ship to deliver
Statement of mo-
neys for town-
ship purposes.
Supervisors to
equalize assess-
lment.
How assessment
equalized.
Alterations of
descriptions.
Corrected roll to
be certified and
delivered to su-
pervisor.
A.
2 year, deliver to the supervisor of his township, a statement of the money to be raised therein for township
3 purposes, and the amount voted for the maintenance and support of common schools and the township li-
4 brary, stating the amount of each, as well as the aggregate amount.
1 SEC. 23. The board of supervisors of each county shall, at their session in October in each year, examine
2 the assessment rolls of the several townships, and ascertain whether the relative valuation of real estate in
3 the respective townships has been equally and uniformly estimated.
1 SEC. 24. If, on such examination, they shall deem such valuation to be relatively unequal, they shall
2 equalize the same by adding to or deducting from the valuation of the real estate in the township or
3 townships, such percentage as in their judgment will produce relatively, an equal and uniform valuation of
*
4 the real estate in the county, and the percentage added to or deducted from the valuation in each township
5 shall be entered upon their records.
I SEc. 25. The board of supervisors shall also make such alterations in the description of any lands upon
2 said rolls, as may be necessary to render such description conformable to the requirements of this chapter.
*
1 SEC. 26. After the assessments shall have been equalized, and the descriptions corrected, as provided in
2 the two last preceding sections, a certificate signed by the chairman of the board, shall be made upon, or
3 appended to the roll of each township, in the ſollowing form, to wit: “I do hereby certify that the board
4 of supervisors have equalized and corrected the within roll, by adding to (or by deducting º the valu-
5 ation of the real estate made by the assessors therein per cent (or, without adding to Or
6 deducting from the valuation of real estate, made by the assessors therein,” as the case may be,) and have
7 determined the aggregate value of the taxable real and personal property in the township of
8 , to be dollars, and cents, for the year eighteen hundred and ; ” which
9 assessment roll thus certified, shall be delivered to the supervisor of the proper township, who shall file and
10 keep the same in his office.
y
1 Sec. 27. The board of supervisors, at the time of equalizing the assessments, shall cause to be entered on
CHAP. 20.] ( 109 ) [TITLE 5.
2
3
3
their records the aggregate valuation of the taxable real and personal property of each township in their
Aggregate value
alion to be recor-
county as determined by them, from which record the clerk of the board shall, within ten days after their an-jºi.
general.
nual meeting, make and transmit to the auditor general, by mail or otherwise, a statement of the aggregate
valuation of the taxable real and personal property of the county.
Manner of Assessing Taces.
º G
Sec. 28. Whenever a general state tax shall be required, and the amount of such tax upon each dollar of º,
apportioned, &c.
the valuation shall not have been previously ascertained by law, the auditor general shall apportion the
same among the several counties, in proportion to the valuation of the taxable property therein, as the same
shall be ascertained from the last returns made to him by the clerks of the several boards of supervisors,
and shall before the October session of such boards, make out and transmit to the clerks of the several
boards of supervisors, the amount of such tax so apportioned by him to the county, and shall charge the
several amounts of such apportionment to the counties respectively.
º & º e ©
SEc. 29. The board of supervisors shall, at their annual session in October, in each year, ascertain
Apportionment
º • n : e of tax for coun-
and determine the amount of money to be raised by tax for county purposes, and apportion such amount ty purposes.
and also the amount of state tax required to be raised, among the several townships in the county, in pro-
portion to the valuation of the taxable property therein for the year, as equalized by the board; which de-
termination and apportionment shall be entered at large on their records.
SEC. 30. The clerk of the board of supervisors shall, immediately after such apportionment, make out two
* Certificate of ap-
portion ment to
e made by
certificates of the amount apportioned to be assessed upon the taxable property of each township, for state lift. &c.
and county purposes, one of which he shall deliver to the county treasurer, and the other to the supervi-
sor of the township, and the county treasurer shall charge the amount specified in each certificate to the
proper township.
SEc. 31. The supervisor of each township shall proceed to assess taxes for the amount specified in such
Qa How taxcs as-
sessed by super-
certificate, together with a tax for the amount of money to be raised by his township, adding thereto four visor.
28
CHAP. 20.] ( 110 ) - [TITLE 5.
1st, p. 160, sec.
Notice to treasu-
Ter—treasurer's
bond, &c.
Act No. 67,1845,
Sec. 7.
County treasur-
er to file bond,
and give receipt.
When supervi-
Sor to deliver
a8SeSSment roll
10 treasurer.
Warrant.
3
per cent, for collection expenses, upon the taxable property in the township, according, and in propor-
tion to the individual and particular estimate and valuation, as specified in the assessment roll of the town-
ship for the year.
SEC, 82. The supervisor of each township, on or before the twenty-fifth day of October, in each year,
shall notify the township treasurer of the amount of state and county tax apportioned to his township, and
such treasurer on or before the fifth day of November, shall give to the county treasurer and his successors
in office, a bond in double the amount of such state and county taxes, with good and sufficient sureties to be
approved by the supervisor of the township, or the county treasurer, conditioned that he shall duly and faith-
fully perform the duties of his office, and shall deliver the same to the county treasurer.
SEc. 33. The county treasurer shall file and safely keep such bond in his office, and on the receipt there-
of, he shall give to the township treasurer a receipt stating that he has received the bond required by the
preceding section, which receipt the said township treasurer shall deliver to the supervisor on or before the
tenth day of November. Q
SEC, 34. The supervisor, after the delivery of such receipt, and on or before the fifteenth day of Novem-
ber, shall deliver to the township treasurer a copy of the corrected assessment roll of his township, with the
taxes for the year annexed to each valuation, and carried out in the last column thereof; the school, li-
brary, and school-house taxes in one column, the highway taxes in another, and the township, county and
state taxes in another column ; and if other taxes are at any time required by law, they shall be placed in
another column, and the warrant for their collection shall speciſy particularly the several amounts and pur-
poses for which said taxes are to be paid into the township and county treasuries respectively.
SEc. 35. To such assessment roll and tax list, a warrant under the hand of the supervisor shall be annex-
ed, commanding such treasurer to collect from the several persons named in said roll, the several sums men-
tioned in the last column of such roll opposite their respective names, and to retain in his hands the amount
receivable by law into the township treasury for the purposes therein specified, and to account for and pay
over to the county treasurer the amounts therein specified for state and county purposes, on or before the
CHAP. 20.] ( 111 ) [TITLE 5.
6 first day of February then next; and the said warrant shall authorize the treasurer, in case any personna-
7 med in the assessment roll shall refuse or neglect to pay his tax, to levy the same by distress and sale of
8 the goods and chattels of such person.
f
1 SEC, 86. The taxes assessed upon any real estate of any resident or non-resident, and all legal charges when to be a
* lien on real es-
tate.
2 made thereon, shall be a lien on said real estate from the first day of November of the year in which such
3 real estate was assessed.
Of the Collection and Return of Tawes.
\
1 SEC. 37. Every township treasurer upon receiving the tax list and warrant, shall proceed to collect ther hip t
OWI) sº
Surer ...
taxes.
2 taxes therein mentioned, and for that purpose shall call at least once on the person taxed, if a resident or at
3 the place of his usual residence in the township, and shall demand payment of the taxes charged to him on
4 such list.
1 SEC. 38. In case any person shall refuse or neglect to pay the tax imposed on him, the treasurer shall
Proceedings in
case of refusal
2 levy the same by distress and sale of the goods and chattels of such person, or of any goods and chattels in *P*.
3 his possession, whereever the same may be found within his township; and no claim of property to be
4 made thereto by any other person, shall be available to prevent a sale.
1 Sec. 39. The treasurer shall give public notice of the time and place of sale, and of the property to be
-- Notice of sale.
2 sold, at least ten days previous to the sale, by advertisement to be posted up in three public places in the
3 township where such sale shall be made; and the sale shall be by public auction.
1 SEc. 40. If the property so distrained cannot be sold for want of bidders, the treasurer shall return a
Proceedings ºf
32 statement of the fact, and if the tax be assessed upon real estate, such real estate shall be returned in the jº" "*
3 same manner as if the same were non-resident lands.
1 SEc. 41. If the property distrained shall be sold for more than the amount of the tax and collection fees,
Surplus, how
disposed of.
2 the surplus shall be returned to the person in whose possession said property was when the distress was
3 made, if no claim be made to such surplus by any other person in writing ; but if any other person shall
CHAP. 20.] - ( 112 ) [TITLE 5.
In case of remo-
val from town-,
ship, property
may be taken in
any part of
county.
When tax shall
be received on
part of lot or un-
divided share,
&c.
•
Moneys collect’d
how disposed of
by township
treasurer.
Return of taxes
not collected.
4
in writing claim such surplus on the ground that the property sold belonged to him, and such claim be ad-
5 mitted by the person for whose tax the property was sold, the surplus shall be paid to such owner; but iſ
6
1
such claim be denied by the person for whose tax the property was distrained, such surplus shall be depos.
ited in the township treasury, until the rights of the parties shall be determined by due course of law.
SEC. 42. In case any person upon whom any tax may be assessed in any township for personal estate,
shall have removed out of such township after the assessment, and before such tax ought by law to be col-
lected, it shall be lawful for the treasurer of such township to levy and collect such tax of the goods and
chattels of the person so assessed, in any township within the county to which such person shall have re-,
moved, or in which he shall reside.
SEC. 43. Such township treasurer shall receive the tax, or any one of the several taxes, on a part of any
lot or parcel of land, or on any undivided share or other interest therein, which the tax payer will clearly
define ; and if the tax on the remainder of such lot or parcel of land shall remain unpaid, the township treas-
urer shall enter a specification thereof in his return to the county treasurer; but if the part on which the tax
is so paid shall be an undivided share, the person paying the same shall state to the treasurer the name of
the owner of such share, that it may be excepted in case of the sale for the tax on the remainder, for which
purpose the treasurer shall enter the name of such owner in his account of arrears of taxes.
SEc. 44. The township treasurer shall retain in his hands the amount specified in his warrant to be paid
into the township treasury, for the purposes therein specified, and shall, within one week after the time
specified in his warrant for paying the money directed to be paid to the county treasurer, pay to such coun-
ty treasurer the sum required in his warrant, either in delinquent taxes or in funds then receivable by law.
Sec. 45. If any of the taxes mentioned in the tax list annexed to his warrant shall remain upaid, and the
township treasurer shall be unable to collect the same from the owner or occupant of the premises assessed,
he shall make out a statement of the taxes so remaining unpaid and due, with a full and perfect description
of such premises from his tax roll, and submit the same to the county treasurer.
Sec. 46. The county treasurer shall immediately compare such statement with the tax roll in the hands of
Char. 20.] ( 113 ) - [TITLE 5.
*
2 such township treasurer, and if he finds it to be a true transcript from the same, he shall add to it a certifi-
Return to b
jº With
© e - - .# • . . . . - ax roll, &c.
3 cate showing that he has examined and compared such statement with the tax roll in the hands of such tax roll. & C
4 township treasurer and found it correct; and shall file such statement so certified in his office.
&
1 Sec. 47. Upon making an affidavit to be annexed to such statement, before the county treasurer or his º
- township treasu-
rer; credit for
amount return-
2 deputy duly appointed, or before any officer authorized to administer oaths, that the sums mentioned in *
3 such statement remain unpaid, and that he has not upon diligent inquiry, been able to discover any goods or
4 chattels, belonging to, or in the possession of the person charged with, or liable to pay such sums, whereon
for making re-
5 he could levy the same, the township treasurer shall be credited by the county treasurer with the amount Compensation
s turn.
6 thereof, and for making the return aforesaid he shall be entitled to receive one dollar and fifty cents, and
7 six cents per mile travel fee one way, to be allowed and paid to him by the county treasurer, together with # * 160, sec.
8 two per cent on all taxes returned as delinquent, but no such treasurer shall be allowed more than ten
9 dollars, including said two per cent, for making his returns.
1 SEc. 48. Upon the settlement of the amount of taxes directed to be collected by the township treasurer
Endorsement of
satisfaction on
2 and paid to the county treasurer, such county treasurer shall endorse the bond of the township treasurer as º; º
and warrant.
A)
3 paid up, which endorsement shall operate as a full discharge of the treasurer and his sureties from the obli-
4 gation thereof, unless it shall afterwards appear that the return of such treasurer is false, in which case
5 such bond shall continue in force, and such treasurer and his sureties shall be liable thereon for all dama-
6 ges occasioned by such false return ; and the township treasurer shall immediately deposit his tax roll and
7 warrant with the county treasurer, who shall file and preserve the same in his office.
1 Sec. 49. In case the treasurer of any township shall refuse to serve, or shall die, resign or remove out of
When town-
2 the township before he shall have entered upon or completed the duties of his office, or be disabled from *śin
treasurer, and
proceedings
thereupon.
3 completing the same from any cause, the township board shall forthwith appoint a treasurer for the remain-
4 der of the year, who shall give like security, and be subject to like duties and penalties, and have the same
5 powers and compensation as the treasurer in whose place he was appointed ; and the township clerk shall
29
CHAP. 20 J ( 114 y
[TITLE 5.
Money retained
by township
treasurer, in
what order paid
Out.
Township trea—
surer to make
oath to state-
ment of taxcs
collected, &c.
Compensation of
treasruer for
collecting taxes.
When supervi-
sor to deliver
tax roll and War-
rant to sheriff,
and powers and
duties of Shcriff
thereon.
6
7
2
7
8
immediately give notice of such appointment to the county treasurer, but such appointment shall not exon-
erate the former treasurer or his sureties from any liability incurred by him or them.
SEc. 50. In case the township treasurer shall not collect the full amount of taxes required by his warrant
to be paid into the township treasury, such portion thereof as he shall collect shall be retained by him and
paid out for the following purposes, and in the following order, viz:
1. The amount raised for general township purposes, to be paid on the order of the townshi p board ;
2. The amount raised for school and library taxes, to be paid on the order of the school inspectors, or
school district officers, as the case may be ; *
3. The amount of the highway taxes, to be paid on the order of the commissioner of highways.
SEc. 51. At the time of paying over the moneys collected to the county treasurer, pursuant to the provis.
ions of this chapter, the township treasurer shall make out under oath, a statement of all monys collected
by him on account of taxes, and deliver such statement to the county treasurer, who shall file and preserve
the same in his office.
SEc. 52. The township treasurer shall receive four per cent on the amount collected, which he shall retain
out of the moneys collected by him; and in case of a distress and sale of goods or chattels for the payment of
any tax,the treasurer may also collect on such sale one dollar and twenty-five cents over and above the tax,
as his fees for making such sale, which percentage and fees shall be in full for his services in collecting
such taxes.
SEc. 53. In case the township treasurer shall neglect or refuse to file his bond with the county treasurer
in the manner, and within the time prescribed by law, and the township board shall fail to appoint a treas-
urer who shall give such bond and deliver a receipt for the same to the supervisor by the tenth day of No-
vember, the supervisor shall deliver the tax roll and warrant to the sheriff of the county, who shall execute
to the county treasurer a like bond as is required of the township treasurers, and make like collections and
returns, and shall be entitled to the same compensation allowed to the township treasure rs on all taxes so
handed over to him for collection; and for the purpose of collecting the same shall be vested with all the
powers conferred upon the township treasurer.
CHAP. 20.] ( 115 ) - [TITLE 5.
1 SEc. 54. The township treasurer or other collecting officer, on the receipt of any tax, shall give a receipt
Officer to giver
receipt on pay-
e º & e ment of tax, &c.
2 for the same, and shall note on his tax roll the payment thereof, and if any such treasurer or other collecting
3 officer shall return to the county treasurer as unpaid, any taxes which have been paid to him except where
4 there is a double assessment, he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be
5 punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred
6 dollars, or both at the discretion of the court.
1 SEc. 55. If any township treasurer shall neglect or refuse to pay to the county treasurer the sums required
"When Warrant
to issue against
2 by his warrant,or to account for the same as unpaid, as required by law, the county treasurer shall, within ten ºnship treat-
3 days after the time when such payment ought to have been made, issue a warrant under his hand, directed
4 to the sheriff of the county, commanding him to levy such sum as shall remain unpaid and unaccounted for,
\
5 together with his fees for collecting the same, of the goods and chattels, lands and tenements, of such town-
6 ship treasurer and his sureties, and to pay the said sums to such county treasurer, and return such warrant,
7 within forty days from the date thereof.
1 SEc. 56. The county treasurer shall forthwith deliver such warrant to the sheriff of his county, who shall
w Warrant to be
2 immediately cause the same to be executed, and shall make return thereof to the county treasurer within . º, º:
Sheriff of the
county.
3 the time therein specified for the return thereof, and pay to such treasurer the amount required by such
4 warrant, and such sheriff shall be entited to collect and receive the same fees as are allowed by law to
5 sheriffs on executions.
1 SEC. 57. If any sheriff shall neglect to return any such warrant, or to pay the money collected thereon,
2 within the time limited for the return of such warrant, or shall make a false return thereto, the county .#
for neglect or
false return.
3 treasurer shall proceed by attachment in the supreme court, or any other court of competent jurisdiction
4 against such sheriff, to collect the whole sum directed to be levied by such warrant, in the same manner,
5 and with the like effect as for neglecting to return an execution in a civil suit, and the proceedings thereon
* †
6 shall be the same in all recpects.
CHAP. 20.]
( 116 ) [TITLE 5.
When county
treasurer to pro-
secute sheriff
and his sureties.
County treasur-
€r to enter re-
turns of lands
delinquent for
taxes, and make
transcript &c.
Transcript to be
forwarded to au-
ditor general.
1844, p. 160, § 6.
Real estate as-
sessed to resi-
dent—proceed-
ing on return of.
Payment of tax-
es after return.
Office charges.
C
l
2
3
SEC. 58. In ease the county treasurer shall fail to collect such monies by attachment, he shall forthwith
cause a prosecution to be had against the sheriff and his sureties for the sum due on such warrant, which
sum when collected, shall be paid to the county treasurer.
SEc. 59. When any county treasurer shall receive from a township treasurer a statement of unpaid tax-
es on the lands of residents or non-residents, verified according to law, such county treasurer shall enter
the same at length on the books in his office provided for that purpose, and he shall make a correct trans-
cript thereof, which shall be compared by the county clerk with the statement of the township treasurer
as certified by the county treasurer, and if he finds it to be a true transcript thereof, he shall add to it a cer-
tificate that he has examined and compared the same with the certified statement of the township treasurer
and found it correct.
SEC, 60. Such transcript, so made out, compared and certified, shall be forwarded by the county treasurer
to the auditor general by the first day of March next after the return of such statement; but such trans-
cript shall be receivable at any time during said month of March, though forwarded after the first day thereof.
Sec. 61. If the taxes on any real estate assessed to a resident, shall be returned unpaid according to law,
the same proceedings shall be had thereon in all respects, as in cases of lands assessed as non-resident.
SEc. 62. Any person may pay the taxes on any parcel of lands returned as aforesaid, or on any undivided
2 share thereof, with interest calculated theron from the first day of February next after the same were as-
I
sessed, at the rate of fifteen per cent per annum, and the office charges, to the treasurer of the county in
which the lands are situated, at any time before they are sold for taxes, or to the state treasurer on the cer-
tificate of the auditor general, at any time before the first day of September next preceding the time ap-
pointed for such sale.
SEc. 63. The county treasurer and auditor general shall add ſor office charges upon each certificate
containing one description, twenty-five cents, and for each additional description in the same certificate, six
cents; and the amount received by the county treasurers for charges, shall go into the county treasuries,
CHAP. 20.] | ( 117 ) - [TITLE 5.
4 of which they shall keep an accurate account, and the amount received at the state treasurer’s office shall
5 go into the state treasury to the eredit of the general fund.
1 SEc. 64. The county treasurers shall issue duplicate receipts for all taxes received by them, which shall
r g e g e Duplicate re-
2 not operate as a discharge of the taxes until countersigned by the county_clerk, and one of said duplicates fºre
3 shall be left with such clerk; but no additional charge shall be made for issuing duplicate receipts.
1 SEc. 65. The duplicates of such receipts shall be filed by the county clerk, who shall make an entry of
- County clerk to
enter receipts,
and transmit the
2 the amount for which every such receipt was given, with the name of the person paying such tax, in a book;"
3 to be provided by him for that purpose at the expense of the county; and shall on the first Monday of each
4 month, forward all the receipts on file in his office to the auditor general, in such manner as he may direct.
1 SEC. 66. Every county treasurer who shall have received into the treasury of his county sufficient to
When county
2 make up the amount of taxes assessed for county and township purposes, shall make returns, at least once tº mºre
return of moneys
to State treaSur-
g tº * Cre
3 in three months to the state treasurer, at such times, and in such manner as he shall direct, of the amount
4 received by him for delinquent taxes, payable to such state treasurer.
1 SEc. 67. Until the several counties which shall have remaining unpaid more delinquent taxes than the
2 amount of the state tax for the year in which the same were assessed, shall have received the amount rais-lº":"re.
ceive taxcs pald
to State treasur-
3 ed for township and county purposes, they shall be entitled to receive from the state treasurer at the close *
4 of each month, in specie or its equivalent, the amount there received for delinquent county or township
5 taxes returned from the several counties, until they shall have received the amounts assessed in such coun-
6 ties for other than state tax.
1 SEC, 68. Immediately after the returns of the several township treasurers to the county treasurers, in all
When county
treasurer to pay
2 cases where the amount collected shall exceed the amount raised for county and township purposes, jitº sº.
treasury.
3 the county treasurers shall forthwith pay into the state treasury the excess collected as aforesaid, for which
4 amount the said counties shall be credited on account of the state tax for the proper year.
30
CHAP. 20.] ( 118 ) [TITLE 5.
What lands to be
subject to re-
demption and
sale and where
to be sold.
lºu, p. 139, sec.
Statement to be
made by auditor
general.
When and
where state-
ments to be pub-
lished:
lsº p. 160, sec
When paper to
be designated by
auditor general.
#14, p, 160, sec.
I
Of the Sale of Lands for Tawes, and the Conveyance and Redemption thereof.
SEc. 69. All lands returned to the auditor general as provided by law, upon which the taxes, interest and
2 charges shall not be paid within one year next after the return thereof, or be charged back to the proper
3 county, shall be subject to sale and redemption as hereinaſter provided, and shall be sold in the same coun-
4 ty from which they were returned, or in which the lands were situated at the time such taxes were as-
5 sessed.
1 SEc. 70. The auditor general shall make out a separate statement of all such lands as the taxes shall re-
2
2
1
main due upon at the expiration of one year from the return thereof, in each of the respective counties; spe-
ciſying the amount of taxes due on each parcel, the interest thereon to the first Monday of October there-
after, together with the costs of advertising, postages, expense of sale and returns thereof and conveyances,
calculated upon each description by dividing such charges by the whole number of descriptions,
SEC. 71. The auditor general shall cause each of such statements to be published in the county in which
the lands therein described are situate, for eight weeks successively next previous to the first Monday of
October in each year, in one newspaper printed and publised in such county, if there be one which shall
have been * therein six months prior to the first day of April, and in case there is no such news-
paper printed and published in the county, such statement shall be printed and published in an adjoining
county if there be such newspaper established therein for the period aforesaid; but if there is no such
newspaper printed or published in the same or any adjoining county, such statement shall be printed and
published in the state paper.
SEC. 72. The newspapers in which such statements are to be published, shall be designated by the auditor
2 general on or before the first day of April in each and every year, and not aſterwards, unless the proprie-
3 tor of any paper so designated shall neglect or refuse to print and publish such statement, or unless from
4 some other cause it shall become impracticable, in which case the auditor general shall designate some
5 other paper for that purpose, beſore the time limited for commencing the publication.
CHAP. 20.] f ( 119 ) [TITLE 5.
1 SEC. 73 The cost of printing and publishing such statements, shall not exceed thirty cents for each
e G & ºf e Cost of print-
Ing
2 description of land so advertised, and no printer shall be paid for publishing any such statement, who shall not
3 forward to the auditor general, within twenty days after the last publication thereof, an affidavit made by
4 some person to whom the facts are known, stating such publication, and also that he has transmitted to each
- a i 1844, p. 160, sec.
e © e - te e and 9.
5 county treasurer by mail, copies of the two first numbers of his paper containing such statement, immedi-
6 ately aſter their publication.
lished with state-
1 SEc. 74. The auditor general shall annex to, and cause to be published with each of said statements, a jº:
- Iſle Ht.
2 notice that so much of each tract or parcel of land described in said statement as will be necessary for that
3 purpose, will be sold by the county treasurer on the first Monday of October next thereafter, at such public
4 and convenient place at the seat of justice of the county as the county treasurer may select, for the pay-
5 ment of the taxes, interest and charges thereon.
I SEc. 75. As soon aſter the first Monday of September as shall be practicable, the auditor general shall
List to be trans-
mitted by auditor
- tº e * º * eneral to coun-
prepare and transmit, to the several county treasurers, lists of all lands described in the respective state- É'...".
2
3 ments, on which the taxes, interest and charges shall have been paid, which lands together with all the
4 lands whereon the taxes, interest and charges shall have been paid to the county treasurer before the sale,
5
shall be struck from the statement of lands advertised to be sold by the respective county treasurers, and
6 shall be withheld from sale.
1 SEC. 76. On the day designated in the notice of sale, the several county treasurers, under the direction of Sale how male.
2
the auditor general, shall commence the sale of those lands on which the taxes shall not have been paid as
aforesaid, and shall continue the same from day to day (Sundays excepted) until so much of each parcel
4 thereof shall be sold as shall be sufficient to pay the taxes, interest and charges thereon.
1 SEC. 77. In case less than the whole of any parcel described in the statement aforesaid, shall be sold for
Ilı.
2 the taxes, interest and charges, thereon, the portion thereof sold shall be taken from the north side, or
3 north end of such parcel, and shall be bounded on the south by a line running parallel with the northerly
CHAP. 20.] ( 120 ) - - [TITLE 5.
J844, p. 162, sec.
11.
Payment of bids,
when to be made
&c.
Funds receiva-
ble at sales.
Notice of a-
mount to be paid
in specie, state
treasurer to di-
rect remittances,
&c.
Certificate Of
Bale, Szc.
Deed to purcha-
8Cl’.
4
2
5
2
2
'4
1
line thereof, unless the same be an irregular fraction, in which case the portion thereof so sold shall be
bounded on the south by a line running due east and west.
Sec. 78. The county treasurers may, in their discretion, require immediate payment of every person to
whom any parcel of such land shall be struck off, and in all cases where payment is not made in twenty-
four hours, he may declare the bid canceled, and at his discretion sell the lands again; and any person so
neglecting or refusing to pay any bid made by him, shall not be entitled after such neglect, to have any bid
made by him received by the treasurer during such sale.
Q
Spc. 79. The several county treasurers shall receive on such sales, such funds only as shall at the time be
receivable by law at the state treasury on account of the general and delinquent tax funds; and so much
as maybe necessary to pay for printing, and charges of sales, shall be paid in specie or its equivalent.
SEc. 80. The state treasurer shall notify the county treasurers what amount must be paid in specie or its
equivalent; and the remittance of all moneys received at tax sales shall be made as directed by the state
treasurer, and the expenses of advertising and sale shall be paid therefrom on the auditor general’s warrant,
and the remainder shall be placed to the credit of the general fund as received.
SEc. 81. At the sale aforesaid, the respective county treasurers shall give to the purchasers on the pay-
ment of their bids, a certificate in writing, describing the lands purchased, and the amount paid therefor,
and shall endorse thereon the kind of funds received, and such certificate shall be regularly numbered, and
a copy of each forwarded by the county treasurers to the auditor general in such manner as he shall di-
rect.
SEc. 82. On the presentation of such certificate of sale to the auditor general, after the expiration of the
time provided by law for the redemption of lands sold as aforesaid, he shall execute to the purchaser, his
heirs and assigns, a deed of the land therein described, unless he shall have discovered that the same was
improperly sold, which deed shall be prima facia evidence of the regularity of all the proceedings from the
valuation of the land by the assessors, to the date of the deed inclusve; but * lands shall be subject to
all unpaid taxes properly chargable thereon,
CHAP. 20.1 ( 121 ) - “ ºr [TITLE 5.
1
2
3
2
s
Sec. 83. Any person claiming any of the lands sold as aforesaid, or any interest therein, may at any time
How lands may
be redeemed.
within one year next succeeding the sale, redeem any parcel of said lands or any part or interest in the same,
by paying into the state treasury the amount for which such parcel was sold, or such proportion thereof
as the part or interest redeemed shall amount to, with interest thereon at the rate of twenty-five per cent.
Act No. 64,1835,
per annum; of which interest twenty per cent shall be paid by the state treasurer to the purchaser, and five Sec, 2.
per cent. shall belong to the state, and be passed to the credit of the general fund.
SEc. 84. When any such land shall be redeemed as provided in the preceding section, the interest shall in Interest h
Illerest ſlow
computed.
all cases be computed from the day of sale, up to the end of the current quarter of the year limited for such Act 64, 1845, sec
- - - 2. y y .
redemption. b
SEc. 85. If any parcel of land cannot be sold to any person for the taxes, interest and charges, such par-
e e e †- g d
cel shall be passed over for the time being, and shall, on the succeeding day, or before the close of the sale, ºr
- - sale, and when
bid in for the
© e State.
be re-offered ; and if on such second offer, or during such sales, the same cannot be sold for the amount
aforesaid, the county treasurer shall bid off the same for the state.
SEC. 86. All lands bid off for the state as provided in the last preceding section, shall continue liable to be Lands * off for
- State liable to
- taxation.
taxed, in the same manner as if they were not the property of the state, and such taxes shall be a charge
upon such lands.
A
Sec. 87. If the auditor general shall discover before the sale, or before the conveyance of any lands as
º gs i
• º e case of irregula-
aforesaid, that on account of irregular assessments, or for any other cause, any of such lands ought not toº.
be sold or conveyed, he shall ſorbear to cause the same to be sold, or withhold a conveyance, after sale, as
the case may be ; and in such case, if a sale has been made, he shall on demand cause the money paid
therefor to be refunded.
SEC. 88. If such errors originated with the county or township officers, the amount so refunded shall be
When amount
refunded to be
charged against the county from which the tax was returned, and the supervisors of such county shall ; against
cause the same to be reſunded to the state treasury.
31
CHAP. 20.]
[TITLE.5.
( 122 )
If sale found to
be invalid after
conveyance,
amount paid to
be reſunded, &c.
Money to be re-
funded by coun-
ty—state not to
be liable for
COSIS.
Accounts of
county treasurer
to be stated by
auditor general.
When tax rejec-
ted, &c., super-
visors to correct
rect errors, &c.
How rejected
taxes, &c., to be
charged back.
I
2
Sec. 89. If aſter the conveyance of any land sold for taxes, the auditor general shall discover that the
sale was invalid, he shall, on demand, cause the money paid therefor to be reſunded, with seven per cent
3 interest, and in all such cases, when the auditor general, deeming a title invalid shall have offered to the
4
purchaser his money and interest upon a delivery and cancelment of the deed, and the purchaser shall
5 have refused to receive the money and cancel the deed, such purchaser shall, never be entitled to receive
6 any more than the purchase money and seven per cent interest thereon to the day of such offer and refusal.
1 SEc. 90. Such money, when paid by the state treasurer, shall be reſunded to the state treasury by the
º
2.
3
l
2
3
4
5
not be liable to costs.
before the board of supervisors at their first meeting after the receipt of the same.
Of Rejections and Re-assessments.
proper county, and in any action of ejectment brought by the owner to recover such lands, the state shall
SEC. 91. The auditor general shall state the accounts of the several county treasurers, on the first day of -
July in each year, allowing to the several counties ten per cent interest on such portion of the taxes un-
paid on the first day of February in the same year, as shall belong to them for township and county pur-
poses, and shall transmit a copy thereof by mail, or otherwise, to the county clerk, who shall lay the same
1 SEC. 92. Whenever the county treasurer shall be notified by the auditor general, or shall otherwise be
3
4
6
1
*
ship, or otherwise correct such errors as they shall consider just.
come satisfied that any tax has been paid to the township treasurer, or that there was a double assessment
upon any lands, or that any parcel is so erroneously or defectiyely described, that it cannot be sold, he
shall deliver to the board of supervisors an accurate statement thereof, and the said board shall cause the
same to be re-assessed upon the same land in the next year's tax, or raise the amount upon the proper town-
SEc. 93. The auditor general is authorized and required, in all cases where taxes upon lands returned de-
2 linquent to his office, shall be rejected for any cause, or having been credited, shall be charged back on
3
the books of his office, to charge the same over to the county from which such taxes were returned, unless
CHAP. 20.] - - ( 123 ) [TITLE 5.
4 the lands upon which the same were assessed, shall have been set off to some other county, or attached to
l
5 some other county for judicial purposes, and in case such lands shalſ have been so set off or attached, they
i
6 shall be charged to the county to which they may belong at the time of such rejection.
1 SEc. 94. It shall be the duty of the board of supervisors to furnish to the auditor general a list of all tax-
Supervisor to
i. º
in h, shall. - 'ai * * † : º Cººſ rºº’iº. hai is rot. - tº . - e . < *, * * lands detache
2 es.which shall have been rejected or charged back to their county by him, upon lands which shall haveº,
which taxes are
* charged back.
3 been detached from such county subsequent to the time when such taxes were assessed ; and the auditor
4 general shall thereupon credit to such county the amount which he may have so charged back, and charge
5 the same to the county in which such lands may be then situated, provided such taxes shall not have been
6 previously paid or re-assessed.
1 SEC. 95. The auditor general, immediately after ascertaining the amount of taxes, interest and charges,
º: ºral
& tº - * to for Ward (O
2 due upon any lands which have been or may hereafter be rejected or charged back as hereinbefore pro- ºnly ..";
- a description of
lands, &c.
3 vided, shall forward to the treasurer of the county in which such lands shall then be situated, or to which
they may be attached, a description of such lands, together with a statement of the amount of taxes, inter.
est and charges thereon, and specifying for what year or years such taxes were originally assessed.
Sec. 96. The county treasurer receiving such statement shall lay the same before the board of supervi- County treasu-
rer to lay state-
ment before
sors at their next session thereafter, and if such taxes shall have been rejected or charged back by the au- i.”
ditor general for any informality not affecting the legality of the assessment, the board of supervisors shal l
*** to be re-assessed upon the same land, and collected with the taxes of the then current year,
5 and in the same manner.
©
I
SEc. 97. If such **nnot be properly re-assessed upon the same lands, the board of supervisors shall
Proceedings
when taxes can-
not be re-assess-
2 ©
cause the same or any part thereof, to be re-assessed upon the taxable property of the proper township, as lºsome
. - 0.11(1S .
3 may appear equitable.
SEC 98. Whenever the auditor general shall have rejected any state, county, or township tax, for the
reason that the amount assessed for any such Purpose exceeds the limitation established by law, the county
CHAP. 20.] . & ( 124 ) - [TITLE 5.
3 treasurer of the county in which the lands so assessed shall be situated, shall make out and present to the
Proceedings' g - -
when tax ex-
ds limit fixed sº g * © º ©
i." "*" 4 board of supervisors thereof at their then next session, a list of the lands, with the taxes assessed, and the
5 interest accrued thereon.
1 SEC. 99. The board of supervisors shall cause so much of said taxes as shall remain unpaid, and as shall
lb. 2 not exceed the limit fixed by law, for the year in which they were originally assessed, to be re-assessed up-
*
3 on the same lands, if they can legally do so, and collected with, and in the sume manner as the taxes for
4 the year in which the same shall be re-assessed as aforesaid.
1 SEC. 100. If any such taxes cannot be properly re-assessed upon the same lands, the board of supervisors
Ib. . - -
2 shall cause the same or any part thereof under the limitations aforesaid, to be assessed upon the taxable
3 property of the proper township, as may appear equitable.
Of Lands Bid in for the State at Taw Sales.
1 SEc. 101. No land bid in for the state at the sales of lands for taxes, agreeably to the provisions of this
Lands bid in for
|...}. 2 chapter, shall be offered for sale for any year’s tax levied subsequent to that for which it was so bid in, un-
rest to be charg—
ed.
3 til it shall have been redeemed, or sold as hereinafter provided ; but upon the amount of taxes due at the
.4 time when it would have been so offered had it not been previously bid in for the state, interest shall be
5 charged at the rate of twenty-five per cent, a year to the time of redemption or sale as provided in this
Act 64, 1845.
6 chapter.
1 SEc. 102. Any person may redeem any lands, or any part or interest which shall be clearly defined in
R d ti f e e & e &
tº 2 any lands, heretofore bid in, or that may hereafter be bid in for the state, at any time beſore thesame shall
State. *-
3 be sold, as hereinafter directed, by paying into the state treasury, on the certificate of the auditor general
4 the amount of taxes for which the same were so bid in, with interest thereon, at the rate of twenty-five
5 per cent, from the day of sale to the day of redemption, together with all taxes, interest and charges that
6 shall remain unpaid on said lands in the office of the auditor general at the time of such application, and
7 not otherwise,
CHAP. 20.] ( 125 ) - [TITLE 5.
1 Sec. 103. The auditor general shall furnish to each of the county treasurers, on or before the first day of
List of lands bid,
. for º º,
*. * * . . . . . . c., to be fur-
2 August in each and every year, a full and accurate statement of all lands in his county that may have mished by audi-
tor general.
3 been bid in for the state on which the time of redemption would have expired, had the same been sold to
4 individuals, and which shall remain unredeemed until the first day of June next previous to said first day of
5 August.
l
SEG. 104. Such list shall exhibit the aggregate amount of all sums due to the state on each description of
\ Contents of lists.
land for redemption from sale including interest thereon, and all taxes which shall have remained in the
2
3.
office of the auditor general unpaid on the said first day of June, with interest and charges thereon, which
4
interest shall be computed to the first Monday of October in the same year.
1 Sec. 105. The auditor general shall cause such statement to be published for six weeks successivel , next Statement and
8 p y
notice of sale to
be published.
2
previous to the first Monday of October, in the manner provided by law for the publication of lands delin-
3.
quent for taxes, and shall cause to be published therewith a notice that the lands described in such state-
4 ment will be sold at public auction by the treasurer of the county in which such lands are situated, at the
5
time and place designated for the ordinary tax sales, under the direction of the auditor general.
e tº tº º Minimum bid t
1 SEc. 106. Such notice shall also state that the minimum bid receivable at such sale, shall be the aggre- lºated º,”
2 gate of the taxes, interest and charges aforesaid, as exhibited in such statement.
1 SEc. 107. The county treasurer shall, on payment of the purchase money at such sale, issue certificates
Certificates to
© & e hasers.
2 of sale to the purchasers, in such form, and make such returns to the auditor general as shall be prescribed purchasers
3 by him, and shall also transmit the monies received on such sales to the state treasurer, in such manner as
4
he shall have directed.
1 SEC, 108. At the time designated in the notice, or immediately after the sale of other lands advertised to ilºw con-
*m.
2
be sold for taxes at the same time, each county treasurer shall commence the sale at the place designated,
3
and continue the same from day to day if necessary, (Sundays excepted,) until he has offered all the lands
*
32
CHAP. 20.]
( 126 ) [TITLE 5.
Deed to purcha-
Ser.
When auditor
general may
cancel sale, and
refund purchase
money.
Purchasers not
entitled to inter-
est after notice.
When lands to
be struck from
the assessment
rolls.
º
4
5
3
embraced in his list, which shall not have been redeemed, or otherwise discharged; and he may re-offer and
sell any Parcel When a bidder shall refuse to pay his bid, for twenty-four hours after the lists have been
gone through, or he may, in his discretion demand immediate payment, and if not paid, cancel the bid, and
- * **
4°
re-offer the lands.
SEc. 109. The Auditor general shall, on the presentation of the certificate of sale at his office, or as soon
thereafter as may be, execute a deed of the lands to the purchaser or his assigns, which shall convey all
the right acquired by the state under the original sale or sales, subject to all taxes duly assessed on the lands
described therein, and such deed shall be prima facia evidence of the correctness of all the proceedings to
the date of the deed, and of title in the grantee therein named, and when duly acknowledged, may be re-
corded and admitted in evidence in the same nanner as other deeds of conveyance.
Sec. 110. The auditor general shall have power, and it shall be his duty, at any time within two years
from the date of any such sale, to cancel the same, in all cases where the original sale to the state, shall be
shown to his satisfaction to have been invalid for any cause, and in such case he shall draw his warrant on
the state treasurer for the amount of purchase money, and interest at the rate of seven per cent. in favor of
the purchaser or his assigns, and such lands may thereafter be sold for any tax levied thereon subsequent
...”
to the tax for which it was bid in for the state, in the same manner as other lands may be sold for taxes, and
with the same effect.
Sec. 111. No person who shall refuse to receive back his purchase money and interest, and surrender
his deed, shall be entitled to any interest after he shall have been notified by the auditor general that the
sale has been cancelled.
Sec. 112. All lands which shall be offered at public auction as aforesaid, on which no bid is made equal
*
to the minimum price designated, and which shall not be redeemed or otherwise discharged from the taxes
due thereon, prior to the first day of March succeeding the time of offering them, shall be struck from the
4 assessment rolls, and not again assessed until they are sold by, or redeemed from the state.
*
CHAP. 20.] ( 127 ) [TITLE 5.
1 SEc. 113, The auditor general shall, in the month of March in each year, transmit to the several
List of lands to
- º: from
º o o rolls, and of
2 county clerks and county treasurers, lists of all lands to be so struck from the assessment rolls in their re-iānāšºe-
* & turned, to be
sent to county
clerks, and their
spective counties, and lists of such as have been previously struck from the rolls, but are to be restored duty thereupon.
3
4 and again assessed; and the said clerks respectively, on or before the first Monday of April thereafter,
5 shall transmit a list to the several supervisors, designating such lands in their respective townships as are to
6
be left out of the assessment roll, and such as have been previously left out, but are to be restored.
1 SEC. 114. The purchaser of any lands bid in for the state at a tax sale, and sold pursuant to the provis-
Paymcnt to be
-* made by purcha-
ser for deed.
2 ions of this chapter, on application to the auditor general for a deed, shall pay an office charge of twenty-
five cents for the first, and six cents for each subsequent description contained in such deed, which shall be
-*
3
4 paid into the state treasury to the credit of the general fund.
1
SEc. 115. There shall be paid for publishing the statements and notices of sales of lands bid in for the
& Compensation
for publishing
StatementS.
state as aforesaid, the same compensation allowed by law for publishing the lists and notices of sales of lands
2
3
delinquent for taxes for the current year, which shall be audited and allowed by the auditor general, to-
4
gether with the expenses of the sale, and postages, and paid out of the general fund on the warrant of the
5
auditor general.
SEC. 116. In case it shall become necessary in the prosecution of an action of ejectment by any
1.
*
Officer having
person having an adverse claim to any land bid in for the state as provided in this chapter, the officer having ºl.
- * when to be made
.defendant.
2
3
charge of the land in behalf of the state, may be made defendant.
Miscellaneous Provisions. *
1 SEC. 117. Any person who has a lien upon any lands returned for non-payment of taxes, may pay ther t of t
ayment of tax-
's es gºon ha-
º - - ving Iten.
2 taxes, interest and charges thereon, and the receipt of the county treasurer or state treasurer therefor duly -
assº”
3 countersigned, shall constitute an additional lien on such land to the amount therein specified; and the
4 amount so specified shall be collectable, with interest thereon, in the same manner as the original lien.
1 SEC: 118. If any township clerk or assessor shall wilfully neglect or refuse to perform any of the duties penalty on
4. clerks and as-
sessors for nc-
glect, &c.
CRAP. 20. I
( 128 ) "[TITHE 5.
Supervisors to
transmit names,
&c., of clerks,
and assessors
who have incur-
red penalty, to
prosecuting at-
torney, &c.
Losses, by
whom sustained:
in certain cases.
Auditor general
to furnish
blanks.
Who to act as
supervisor, &c.,
in city of Detroit,
1842, p. 101, sec.
96, 1843, p. 84.
Sec. 80.
Auditor general
to publish and
transmit copies
of this chapter
with suitable
form, &c.
2 required of him by the provisions of this chapter, he shall forfeit and pay a sum not exceeding one hun-
3 dred dollars.
1 SEC. 119. The board of supervisors of each county shall, at their annual session in each year, transmit
2 to the prosecuting attorney, the names and places of abode of all township clerks and assessors within their
<!
3 county who shall have incurred any forfeiture under the provisions of this chapter, and such prosecuting at-
4 torney shall immediately prosecute for such forfeiture.
1 SEC. 120. All losses that may be sustained by the default of the treasurer of any township shall be charg-
2 able on such township ; and all losses that may be sustained by the default of any county treasurer in the
3 discharge of the duties imposed by this chapter, shall be chargable on such county, and the board of super-
4 visors of such county shall add such losses to the next year’s taxes of such township or county.
SEC. 121. The auditor general shall, from time to time, furnish suitable blanks, in addition to those re-
2
quired by the preceding provisions of this chapter, for returns of unpaid taxes, receipts, and certificates of
3 sale, which shall be sent to the several county treasurers.
1 SEC. 122. The assessors of the several wards in the city of Detroit, shall have and exercise the powers and
2 duties of supervisors, and the of the several wards of said city shall have and exercise
g
the powers and duties of township treasurers, under the provisions of this chapter.
3
1 SEC. 123. The auditor general shall, from time to time, whenever he shall find it necessary, cause to be
2
printed at the expense of the state, a sufficient number of copies of this chapter, with such forms of pro-
3
ceeding under the same as may be necessary and proper, to furnish one copy to each supervisor, township
4 treasurer, assessor, township clerk, and county clerk, and three copies to each county treasurer; and shall
5 transmit to each county treasurer, at the expense of the county, a sufficint number for such county, and
6 every county treasurer receiving such copies shall immediately transmit to the township clerk of each town-
7
ship, five copies, to be distributed by him to the officers entitled thereto.
©
1
SEC. 124. Any officer who shall wilfully neglect or refuse to perform any of the duties imposed upon him
CHAP. 20.] ( 129 ) [TITLE 5.
tº tº . - tº a tº wº Wilful neglect of
2 by this chapter, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by § º '. d
CCITICOM Ill ISO162-
meanor, and
how punished.
#
3 imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars, in
4 the discretion of the court.
contested claims
1 SEc. 125. Whenever a surplus arising from the sale of any property distrained for taxes, shall be claim- ºgº
- to surplus on
sale of property
2 ed by any other than the person for whose tax such property was sold, and such claim shall be contested ...""
3 by such person, such claimant may prosecute an action against such person ; or the person for whose tax
4 such property was sold may prosecute such action against such claimant, as for money had andre ceived;
5 in which action the right of the respective parties to such surplus shall be tried and determined.
1 SEC, 126. For the purposes of such action, the defendant shall be deemed to be in possession of the sur-
2 plus in the hands of the township treasurer, and upon the presentation to such treasurer of a certified copy Ib.
3 of the final judgment rendered in such action, the said treasurer shall pay over the same to the party recov-
4 ering such judgment; and no township treasurer shall be liable to any claimant of such surplus, the right
5 to which is contested as provided in this chapter, until he shall have refused to pay over such surplus upon
6 the production of a certified copy of a judgment as aforesaid.
1 SEC. 127. In any action brought pursuant to the two last preceding sections no other cause of action shall sumn and
execution.
° be joined, nor shall any set off be allowed; and if an execution issue on a judgment so rendered, it shall
° direct the costs only of such action to be levied by virtue thereof.
1 SEC. 128. When any property shall be legally distrained and sold for the tax of any person, and such
* Property shall be owned by another person, such owner may recover of the person for whose tax the same;;..."
perty sold for
tax of another.
3 was sold, the value of such property, in an action of assumpsit as for goods sold and delivered, deducting
4 therefrom the amount of any surplus which may have been claimed or recovered by such owner as provi-
5 ded in this chapter.
33
CHAP. 21.] ( 180 ) - [TITLE 5.
Tax on capital
stock of banks.
When certain
CHAPTER. 21.
of specific state taxes and Duties.
Taw upon Banks.
1 SECTION. 1. Every bank now incorporated, or hereaſter to be incorporated, shall pay to the state, at the state
2 treasury, a yearly tax of one per cent on the amount of capital * paid in ; one half thereof on or be-
3 fore the first Monday of April, and the other half on or before the first Monday of Octobler, in each year;
4 which tax shall be in lieu of all state, county, township or other taxes in this state, on the capital stock of
5 said banks, and of all state tax imposed by the charter of any such bank heretofore incorporated.
1 SEC. 2. Any portion of the capital stock of any bank, which shall, in accordance with the provisions of
portion of stock
exempted.
When stock
paid in within
six months. .
Proceedings in
case of neglect
to pay tax.
2 its charter and the laws of this state, have become vested in real or personal estate within this state, sub-
3 ject to taxation, and which shall be actually assessed within this state, for ordinary state, county, and other
4 taxes, upon proof thereof to the satisfaction of the state treasurer and attorney general, shall be exempt
5 from said tax of one per cent. for the year succeeding such assessment, to the amount of the valuation of
6 Such property on the assessment roll.
1 SEC. 3. If any part of the capital stock of any bank shall have been paid in within six months next be-
2 fore either of the days specified for the payment of said tax, the tax on such part shall be paid in proportion
3 to the time that shall have elapsed after such part of the capital stock shall have been paid in.
1 SEC. 4. If any bank shall neglect to make such payment, the state treasurer shall forthwith notify the
2 attorney general thereof, who shall thereupon immediately institute proceedings against such delinquent
3 bank, by bill in chancery or by an action at law, for the recovery of such tax, with interest and costs, in
4 the same manner and with the like effect as is hereinafter provided in cases of delinquent railroad, canal
5 and turnpike corporations.
CHAP. 21.] ( 131 ) [TITLE 5.
2
3
l
Taw upon Railroad, Canal, and Turnpike Corporations.
Sec. 5. Every company heretofore incorporated or hereafter to be incorporated within this state, for the
Tax on capital
purpose of constructing and using any railroad, canal or turnpike therein, shall pay a yearly tax to the ###".
I'O31(1 & II (1 Ott) Cr
corporations.
state, of one per cent on the amount of the capital stock of such company paid in or secured to be paid,
which tax shall be paid into the state treasury by said corporations respectively, on or before the first Mon-
day of October in the year one thousand eight hundred and forty-seven, and in each year thereafter.
SEc. 6. Such tax shall be in lieu of all state, county, township or other taxes in this state, on the capital i. *...*.
- O
tú XCS.
stock of said eorporations, and on the railroad, canal or turnpike constructed and used by any such 'corpora-
tion, and on all the real and personal property in which said capital stock shall be invested, and which shall
be used and occupied by any such company, in accordance with the provisions of its charter, and the laws
of this state, in the construction or use of such railroad, canal or turnpike.
SEC. 7. If any such incorporated company shall neglect or refuse to pay the tax aforesaid, on or before
Proceeding in
case of neglect
© - - io e tº t tº Ve
the said first Monday of October, the state treasurer shall immediately furnish the name of every such o pay
company so neglecting or refusing to pay such tax, to the attorney general, with the amount due from each;
and the attorney general shall thereupon file a bill in the court of chancery, against every such company,
for the discovery and sequestration of its property.
SEC. 8. The chancellor on the filing of such bill, or on the coming in of the answer thereto, shall order
tº ſº e Sequestration,
such part of the property of such company to be sequestered, as he shall deem necessary for satisfying the injunction, &c.
taxes in arrear, with the costs of prosecution ; and he may,also, at his discretion, enjoin such company and
the officers thereof, from any further proceedings under their act of incorporation, and may order and di-
rect such other proceedings as he may deem necessary to compel the payment of such tax and costs.
Sec. 9. The attorney general may also recover such tax, with costs, from such delinquent company, by
Proceedings at
action in the name of the people of this state in any court of competent jurisdiction. ºx to recover
- & X, -
CHAP. 21.] - ( 132 ) [TITLE 5.
No person to be
broker, &c.,
Without license.
Prohibition not
to apply to cer-
tain corporations
und persons.
Proceedings to
Obtain license.
A mount to be
paid before li-
cense granted.
Brokers and Eachange Dealers.
1 SEC. 10. No person shall be engaged in the business of a broker, or of buying or selling current or un-
2 current money, or bank notes, or in the exchange thereof, or in the exchange of coins, without first paying
3 into the state treasury the sum hereinafter mentioned, and obtaining a license from the state treasurer, to
4 carry on the business of a broker and exchange dealer, in the manner hereinafter provided, except as provi-
5 ded in the next section.
1 SEC. 11. The prohibition in the preceding section contained shall not apply to corporations authorized by
2 law to carry on the business of exchange, and the buying and selling of money, nor to persons engaged in
3 commercial or mercantile operations, as forwarders, dealers in products of the country, grocers, merchants
4 and millers, or others whose regular business, other than that of brokers and exchange dealers, renders the
5 purchase and sale of exchanges or the purchase or sale of current or uncurrent money, a legitimate part of
6 their said business or occupation.
1 SEC. 12. Any persons desiring to carry on the business of brokers and exchange dealers as aforesaid may,
2 before commencing such business obtain from the treasurer of this state, a license for each sº OT COI) CeII,
3 which they propose to establish ; for which purpose they shall file with said treasurer a certificate, speci-
4 fying, f
5 1. The name of every person who is to be connected with such business, and constitute a part of the firm.
6 2. The actual amount of capital to be invested in the business of the concern, and the precise amount that
7 each partner is to put in :
8 3. The city or village, township and county wherein said business is intended to be carried on ; which
9 said certificate shall be duly verified by the oath of the party applying for the license.
1 SEC. 13. The persons applying for such license shall, at the time of filing such certificate, pay to the
2 state treasurer therefor at the rate of two and one half per cent on the amount of the capital stock to be used
3 in such business; whereupon the said treasurer shall grant under his hand and official seal, to the person or
4 persons applying therefor, a license to carry on the business of brokers and exchange dealers with the capital
CHAP. 21.] - ( 133 ) [TITLE 5.
5
6
mentioned in the certificate, and at the place there in specified, for a term not exceeding one year from the
A
date thereof; but such license may be renewed annually from time to time upon payment therefor, at the rate
f
aforesaid; and the proceeds of all such licenses shall be placed to the credit of the general fund.
SEc. 14. If any person shall carry on the business of a broker or exchange dealer, contrary to the provi-
Violation of pro-
hibition to be
deemed a misde-
sions of this chapter, such person shall be deemed guilty of a misdemeanor, and on conviction thereof shall meanor.
be punished by fine not less than one hundred nor more than two thousand dollars, in the discretion of the
COurt.
SEC. 15. Every person who shall obtain a license to carry on the business of a broker and exchange deal-
Affidavit to be
filed.
er, as provided in this chapter, before he commences the business, shall make and file with said state treasu-
rer, an affidavit stating therein that he has not, and will not have any connexion, directly or indirectly, with
any bank or banks, and that no bank is or shall be entitled to any share of the profits of such business.
Hawkers and Pedlars and Distillers.
SEc. 16. No person shall be authorized to travel from place to place within this state, for the purpose of
No person to be
hawker, &c.,
carrying to sell, or exposing to sale any goods, wares or merchandize, nor shall any person within this without license."
state be a distiller of ardent spirits, unless he shall have obtained a license as a hawker and pedlar, or distil-
ler of ardent spirits, in the manner hereinafter directed.
Sec. 17. Every person desirous to obtain a license as a hawker or pedlar shall apply to the treasurer of
Application for
e g o e e - © * § te e license as hawk-
this state, and shall deliver to him a note in writing, signed by such applicant, stating in what manner he er and pedlar.
intends to travel and trade, whether on foot, or with one or more horses, or other beasts of burthen, or with
*
any sort of carriage.
SEc. 18. Every such applicant, before he shall be entitled to a license, shall pay into the state treasury the
- Payment of du-
& e tº - * e ties.
following duties: If he intend to travel on foot, the sum of ten dollars; if he intend to travel and carry
his goods with a single horse or other beast carrying or drawing a burthen, the sum of twenty five dollars,
34
CHAP. 21.] ( 134 ) [TITLE 5.
WVlmcm treasurcr
to grant license.
Application for
license as a dis-
tiller.
Payment oſ du-
ties.
When treasurer
to grant license.
Licenses to be
issued in April,
and may be re-
newed annually.
4
5
3
and if he intend to travel with any vehicle or carriage drawn by more than one horse, or other animal the
sum of fifty dollars.
SEC. 19. Upon the presentation of such note in writing, and the payment of the proper duties herein re-
quired, the state treasurer shall grant to such applicant, a license under his hand and seal of office, and au-
thorizing such applicant to travel and trade as a hawker or pedlar, in the manner stated in such note for
the term of one year from the date of such license.
SEC. 20. Every person desirous to obtain a license as a distiller of ardent spirits, shall apply to the treas-
urer of this state, and shall deliver to him a note in writing, signed by such applicant, stating the village or
city, township and county in which he proposes to carry on the business of distilling, and whether he pro
poses to occupy one or more distilleries therein.
SEc. 21. Every applicant for a license as a distiller, before he shall be entitled to such license, shall pay
into the state treasury the sum of one hundred and fifty dollars if such applicant intend to occupy but one
distillery, and one hundred and fifty dollars for each other distillery in which he proposes to carry on such
business.
SEC. 22. Upon the delivery of such note in writing, and the paymet of the proper duties required in the
last preceding section, the state treasurer shall grant to such applicant a license under his hand and seal of
office, anthorizing such applicant to carry on the business of distilling ardent spirits at the place, and in the
number of distilleries stated in such note, for the term of one year from the date of such license.
SEC. 23. All licenses to hawkers and pedlars, and distillers of ardent spirits, shall be issued in the month
of April in each year, and at no other time; and every license granted, or to be granted, for either of the
purposes aforesaid, shall be renewed annually by the state treasurer, if such renewal be applied for, on the
same terms and conditions that the original license was granted.
SEC. 24. Every person who shall be ſound travelling and trading within this state, contrary to the provis.
CHAP. 21.] - ( 185 ) [Title 5
2.
3.
2
2
3
4 to such treasurer, of all auction duties upon goods or property which may be sold by him, according to
ions of this chapter, or contrary to the terms of any license that may have been granted to him as a hawker
Penalty for
hawking, &c.,
or pedlar, shall, for each offence, forfeit the sum of twenty-five dollars. Willl Out Itcense
SEC. 25. Every person who shall carry on the business of distilling ardent spirits contrary to the provi- *...*
license,
sions of this chapter, or contrary to the terms of any license granted to him as a distiller of ardent spirits,
shall for each offence ſorfeit the sum of two hundred and fifty dollars.
A.
Sec. 26. Nothing contained in this chapter shall be construed to prevent any mechanic residing in this Construction.
state, from selling his work any where in the state.
SEc. 27. Every person who shall be found travelling and trading as aforesaid, and who shall reſuse to pro- Penalty f
- ** Or re-
fusing to pro-
- * & l duce license.
duce a license as a hawker or pedlar, to any officer or citizen who shall demand the same, shall for each
offence forfeit the sum of ten dollars.
SEc. 28. In every case of a prosecution against any person for the recovery of any penalty given in this costs in cases of
prosecution.
chapter, no costs shall be allowed to the defendant, if it shall appear that before the commencement of the
prosecution, such defendant had refused to produce his license, or to disclose his name when lawfully requi-
red.
Sec. 29. No prosecution for the recovery of any penalty imposed for any violation of the provisions of
Limitation of
prosce utions for
this chapter, relating to hawkers and pedlars, shall be maintained unless it shall be brought withtn sixty benalty.
days after the commission of the offence charged.
Of Auctioneers and of Duties upon Sales at Auction.
SEC. 30. Any citizen of this state may become an auctioneer within the county in which he resides, on exe-
How person
o e tº e - 4e b
cuting and delivering to the treasurer of such county, a bond in the penal sum of two thousand five hundred ...” "
dollars, with two or more sufficient sureties to be approved by such treasurer, conditioned for the payment
1839, p. 145.
5 law.
CHAP. 21.] ( 136 ) [TITLE 5.
For what term.
Auctioneer to
render state-
ments on oath.
sº
ſ)elivery of
statement and
payment of du-
i!C8.
County treau-
rer to forward
statement to"au-
ditor general,
and pay over
duties.
Articles subject 3
to duties.
l
2
5
2
4
SEc. 31. Every person who shall have executed and delivered such bond to the county treasurer shall, for
the term of four years next after the date of such bond, be an auctioneer within such county, and be author
rized to carry on and perform the business of an auctioneer. and shall conform to the provisions hereinaf.
ter contained.
SEC. 32. If such auctioneer reside in either of the cities of this state, he shall on the first Monday of each
month, and if he reside in any other place, then on the first Monday of April and October in each and eve-
ry year, make out a statement in writing, verified by his oath, and deliver the same to the county treasurer,
in which statement he shall designate particularly :
1. The sums for which all the goods at every auction held by him after delivering such bond, or the date
of his last preceding statement, were sold :
2. The days on which sales were so made by him, and the amount of sales on each day :
3. The amount of duties chargeable under the provisions of this chapter.
SEc. 33. Every such statement, verified as aforesaid shall, within ten days after the date thereof, be de-
livered by such auctioneer to the treasurer of the county in which he resides, and such auctioneer shall, at
the time of delivering such statement, pay over to such county treasurer the duties chargeable by law upon
the sales specified in such statement, and take the treasurer's receipt therefor, which receipt shall be coun-
tersigned by the clerk of the same county, who shall make an entry of the amount thereof, in a proper
book to be kept by him for that purpose.
SEc. 34. Each county treasurer shall, immediately after receiving such statement, forward the same to
the auditor general, and shall pay over all auction duties received by him to the state treasurer, in such
manner as such treasurer shall direct.
SEc. 35. The following articles, and no others shall be subject to the payment of the following duties, if
sold at auction : * *
1. All ardent spirits, wines, and intoxicating liquors, whether foreign or domestic, shall be liable to the
2
/
payment of a duty of two and a half per cent.
CHAP. 21.] ( 137 ) [TITLE 5.
g”
5
6
5
4
2. All goods, wares, and merchandize of every description imported from any place without the United
States, shall be liable to the payment of a duty of one and a half per cent at each and every time they
are so exposed for sale.
SEc. 36. Goods and chattels otherwise liable to auctton duties shall be exempt therefrom if sold under the
When chattels
cxempt.
following circumstances:
1. If they shall belong to the United States, or to this state ;
2. If they shall be sold in pursuance of any judgment, order or decree of any court of law or equity, or
under any seizure or distress by any public officer;
3. If they shall belong to an estate of a deceased person, and be sold by his executors or administrators,
or by any other person duly authorzed by any judge of probate;
4. If they shall be the effects of a bankrupt or * and be sold by his assignee, appointed pursuant
to law, or by a general assignment for the benefit of the creditors of such bankrupt or insolvent.
SEc. 37. All goods, property and effects, liable to the payment of duties, shall, in all cases when sold at .."
made, &c.
auction, be struck off to the highest bidder, and when the auctioneer, or owner, or any person employed by
them or either of them, shall be such bidder, they shall be subject to the same duties as if struck off to any
other person; but this section shall not be construed to render valid any sale which would otherwise be
5 deemed fraudulent and void.
2
3
4
SEc. 38. All duties shall be calculated on the sums for which the goods or property exposed for sale shall I) uties how cal-
culated.
be respectively struck off to the purchaser thereof.
SEc. 39. If any person shall act as an auctioneer in the sale of any goods or property liable to the pay-Persons acting.
without authori-
ty, guilty of
e tº e te º e e • In 1801CIIleil Il O T.
ment of duties under the provisions of this chapter, without first having delivered to the county treasurer
the bond herein required, such person shall be deemed guilty of a misdemeanor, and on conviction thereoſ
shall be punished by a fine not exceeding five hundred dollars.
35
CHAP. 22.] ( 138 ) [TITLE, 6.
TITLE VI.
OF HIGHways, BRIDGES AND FERRIES.
CHAPTER 22—Of the Officers having the Care and Superintendence of Highways and Bridges, and their
general Powers and Duties.
& C 23—Of the persons liable to work on Highways, and making Assessments therefor.
6 & 24—Of the Duties of Overseers in regard to the Performance of Labor on Highways; and of
the Performance of such Labor or commutation therefor, and the application of Mo-
neys by the Commissioners.
£ 6 25—Of Laying out, Altering and Discontinuing Public and Private Roads.
26—Of the Obstruction of Highways, Encroachments thereon, and Penalties.
27—Of the Erection, Repairing and Preservation of Bridges.
28—Miscellaneous Provisions of a general nature.
& C 29—Of the Regulation of Ferries.
CHAPTER 22.
OF THE OFFICERS HAVING THE CARE AND SUPERINTENDENCE OF HIGHWAYS AND BRIDGEs, AND THEIR
GENERAL POWERS AND DUTIES.
1 SECTION I. The commissioners of highways in the several townships in this state, shall have the care and
Commissioners
of highways,
their duties.
2 wºmenºne of highways and bridges therein, and it shall be their duty:
3 1. To give directions for the repairing of roads and bridges within their respective townships:
4 2. To regulate the roads already laid out, and to alter such of them as they shall deem inconvenient :
5 3. To cause such of the roads used as highways, as have been laid out, but not sufficiently described, and
6 such as shall have been used for twenty years, but not recorded, to be ascertained, described and entered of
7 record in the township clerk’s office :
8 4. To cause the highways, and the bridges over streams intersecting highways, to be kept in repair :
9 5. To divide their respective townships into so many road districts as they shall judge * by wri-
e
10 ting, under their hands, to be entered of record in the township clerk's office, such divisions to be made an-
^
11 nually, if they shall deem it necessary; but no such division shall be made within ten days next preceding
12 the annual township meeting, and not oftener than once in any one year:
CHAP. 22.] ( 139 ) - [TITLE 6.
18 6. To assign to each of said districts, such of the inhabitants liable to work on highways as shall reside in
14 such distict, or own lands therein; and,
*
15 7. To require the overseers of highways, from time to time, and as often as they shall deem it necessary,
16 to have all persons assessed to work on the highways, perform labor thereon with such teams, earriages,
17 sleds or implements as said commissioners, or any of them shall direct.
1 SEC. 2. The commissioners of highways shall have power, in the manner and under the restrictions *-To layout and
discontinue
roads.
2 inafter provided, to lay out and establish, upon actual survey, such new roads in their respective townships
3 as they may deem necessary and proper; and to discontinue such old roads and highways as shall appear
*
4 to them to have become unnecessary.
1 SEC. 3. The commissioners of highways of each township shall render to the township board, at the an- To rend
In Oter a C-
§: jºin-
º tº g e . * & ship board.
2 nual meeting of such board in each year, an account in writing; stating,
3 1. The labor assessed and performed in their township;
4 2. The sums paid for delinquencies and commutations, and other moneys received by them, and the ap-
*
5 plication thereof;
6 3. The improvements which have been made on the roads and bridges in their township during the year
7 preceding such report, and an account of the state of such roads and bridges; and,
8 4. A statement of the improvements necessary to be made on such roads and bridges, and an estimate of
9 the probable expense of making such improvements beyond what the labor to be assessed in that year will
10 accomplish.
* Sec. 4. The commissioners of highways of each township shall deliver to the supervisor of such town-
Statement of
2 ship, a statement of the improvements necessary to be made on the roads and bridges, together with the ...".
* Probable expense thereof, which supervisor shall lay the same before the board of supervisors at their next
4 annual meeting; and the board of supervisors shall cause the amount so estimated, to be assessed, le-
5 vied and colleced in such township, in the same manner as other township charges, but the money to be
6 raised in any such township, shall not exceed in any one year, the sum of two hundred and fifty dollars.
CHAP. 22 J - ( 140 ) [TITLE 6.
1 SEC. 5. It shall be the duty of the commissioners of highways of each township, to cause mile boards or
Milestones, &c. -
2 stones, to be erected where not already erected, on the post roads, and such other public roads in their
3 township as they may think proper, at the distance of one mile from each other, with such fair and legible
4
inscriptions thereon as they may think proper.
Duties of over- 1 SEC. 6. It shall be the duty of the overseers of highways in each township :
8601'.
2 1. To repair and keep in order the highways, within the several districts for which they shall have been
3
elected or appointed respectively ;
4 2. To warn all persons assessed to work on the highways in their respective distrtcts, to come and work
5
on such highways according to law ;
*
6 3. To cause the noxious weeds within the limits of the highways in their respective districts, to be cut
7 down or destroyed twice in each year, once before the first day of July, and again before the first day of
8
September; and the requisite labor shall be considered highway work; and,
9 4. To collect all sums due for delinquencies and commutation money, and to execute all lawful orders of
10 thecommissioners of highways.
º -
1 SEC. 7. It shall also be the duty of the overseers of highways, once in every month, from the first day of
To remove
loose Stones, ^,
and keep up
In OIlúl IIlCI] (S. 2 April to the first day of December, to cause all the loose stones lying on the beaten track of every road
3 within their respective districts, to be removed; and to cause the monuments erected on the boundaries of
4 highways to be kept up and renewed, so that the extent of such roads may be publicly known.
1 Sec. 8. Whenever the amount of highway tax assessed by the commissioners in any year, shall be less
Additional as-
sessment by
OVCfSCCI, 2 than one days work on one hundred dollars of the valuation, according to the assessment roll, and the
3 overseer of any district, after havng expended two-thirds of the tax expressed in his tax list, shall deem
4 the labor insufficient to keep the roads therein in repair, it shall be the duty of such overseer to make anoth-
5 er assessment on all the taxable inhabitants and property in the district, in the same proportion, as near as
may be, and not exceeding in the whole, including the original assessment, one º work for every one
7 hundred dollars of valuation as aforesaid; and the labor so assessed by the overseer, shall be performed or
1840, p. 81, sec.
3. commuted for, in like manner as if the same had been assessed by the commissioners of highways.
CHAP. 22.] - ( 141 ) [TITLE 6.
l
2
2
3
l
2
3
Sºo. 9. Two thirds of the original assessment of highway taxes, shall be collected from all the resident
When assess-
ments to lje col-
inhabitants in each district, before the first day of July, and all the remainder of said assessment or assess ſecºv
ments in the discretion of the overseer.
SEC. 10. The commissioners of highways of each township shall cause guide-posts with proper inscrip-outle posts.
tions and devices thereon, to be erected at the intersection of all post roads in their township, and at the in-
tersection of such other roads therein as they may deem necessary.
Sec. 11. It shall be the duty of the overseers of highways to maintain and keep in repair, at the expense
Guide posts to
of the township, such guide-posts as may have been erected by order of the commissioners, within the º:
districts for which they shall have been respectively elected or appointed.
SEC. 12. The commissioners of highways, whenever they shall think it necessary or useful, may direct, {
crapers and
ploughs:
and empower any overseer of highways in their respective townships, to procure a good and sufficient
iron or steel shodscraper, and a suitable plough, or either of them for the use of his road district, to be paid
for with moneys arising from commutations and delinquencies within such district.
SEc. 13. In case the moneys arising from commutations and delinquencies shall be insufficient for the n.
purpose aforesaid, the deficiency shall be assessed by the overseer upon the inhabitants, and owners of
lands in the district in the proportion they are respectively assessed on the assessment roll of the township;
and if any one so assessed, shall neglect or refuse to pay such assessment, the same may be sued for and
recovered by the overseer.
Sec. 14. If any overseer shall be employed more days in executing the several duties enjoined upon him
º: of work
& º © - Jy overseer, how
by this chapter, than he is assessed to work on the highways, he shall be paid for the excess at the rate of pºiá'rº.
Seventy-five cents per day, and be allowed to retain the same out of any moneys that may come into his
hands for delinquencies or commutations under this chapter; but he shall not be allowed to commute for
the days he is assessed,
36
CHAP. 22.] ( 142 ) . [TITLE 6.
When commis-
Sioners to ap-
point overseer,
&c.
Warrant to be.
filed, notice to
be given, &c.
Penalty for ne-
gkect, &c., by
OVCrSeer.
When commis-
sioners to prose-
cute ſor penalty.
1
2
SEc. 15. If any person chosen to the office of overseer of highways shall refuse to serve, or if his office
shall become vacant, the commissioners of highways shall, by warrant under their hands, appoint some oth-
er person in his stead; and the overseers so appointed shall have the same powers, be subject to the same
orders, and liable to the same penalties, as overseers chosen in township meetings.
*.
*
Sec. 16. The commissioners of highways making such appointment, shall cause such warrant to be filed
in the office of the township clerk, who shall forthwith give notice thereof to the person appointed, which
person shall give written notice of his acceptance to such clerk, within ten days after receiving notice of his
appointment.
SEc. 17. Every overseer of highways who shall reſuse or neglect to perform any of the duties required o.
him by law, or which may be lawfully enjoined on him by the commissioners of highways of his township,
and for the omission of which a penalty is not hereinafter provided, shall, for any such neglect or refusal,
forfeit the sum of ten dollars.
SEC. 18. It shall be the duty of the commissioners of highways of each township, whenever any person
2 resident in their township shall make complaint that any overseer of highways in such township has reſu-
sed or neglected to perſorm any of the duties required of him by law, and shall give or offer to such com-
missioners sufficient security to indemnify them against the costs which may be incurred in prosecuting for
5 the penalty annexed to such refusal or neglect, forthwith to prosecute such overseer in the name of the peo-
6
ple of this state, for the recovery of such penalty.
*
CHAP. 23.] ( 143 ) [TITLE 6
CHAPTER 23.
*
OF PERSONS LIABLE To work on HIGHWAYS, AND MAKING ASSESSMENTS THEREFoR.
1 SECTION I. Every person owning or occupying land in the township in which he resides, and every male
Persons liable
to be assessed.
inhabitant above the age of twenty-one, and under fifty years, except as hereinafter provided, residing in
2
the township where the assessment is made, shall be assessed to work on the highways in such township;
3
and the lands of non-residents, situated in such township, shall be assessed for highway labor as hereinafter
4
5 directed.
1 SEC. 2. The commissioners of highways of the several townships, shall meet at the office of the supervi-
When tax to be
assessed.
2 sor, on the second Monday of May in each year, for the purpose of assessing a highway tax, and they shall
- 1841, p. 69, $2.
3
have free aecess to the assessment roll until they shall have completed their assessment.
1 SEC. 3. Each of the overseers of highways shall within sixteen days after his eleetion or appointment, Lists to be fu
IS I -
nished by over-
SeerS.
2 deliver to the township clerk a list subscribed by him, of the names of all the inhabitants in his road dis-
3 trict who are liable to work on the highways:
SEC. 4. The commissioners of highways in each township, shall make out from the assessment roll, a
1
Statement and
description of
separate list and statement of the valuation of all the taxable personal property, and a description of all propé.
2
3 lots or parcels of land within each road district in such township, inserting in a separate - part of such list
4 desriptions of lands owned by non-residents of the township, with the value of each lot or parcel set down
5 opposite to such description, as the same shall appear on the assessment roll, and if such lot or tract was
9 not separately described in such roll, then in proportion to the valuation which shall have been affixed to
1840, p. 81, § 3.
7 the whole tract of which such lot or parcel forms a part.
1
SEc. 5. In making the estimate and assessment of highway labor, the commissioners shall proceed as fol-
Assessment how
IIlºl(162,
2 lows:
3
1. Every male inhabitant in each road district, being above the age of twenty-one, and under the age of
4
* fifty years, *cept ministers of the gospel and priests of every denomination, paupers, persons of color not
5 possessing taxable property, idiots and lunatics, shäll be assessed one day :
CHAP. 23.] ( 144 ) [TITLE 6.
6 2. The residue of the highway labor to be assessed, not exceeding one day's work upon one hundred dol-
7
lars of the valuation, shall be apportioned upon the estate, real and personal, of every inhabitant in each of
8 the road districts in such township, and upon each tract or parcel of land in the respective road districts,
9 of which the owners are non-residents, as the same shall appear by the assessment roll:
10 3. The commissioners shall affix to the name of each person named in the lists ſurnished by the overseers
11 and not assessed upon the assessment roll, and also to each valuation of property within the several road
12 districts, the number of days which such person or property shall be assessed for highway labor, adding one
13 day to the assessment of each person liable to a poll tax, and assessed upon the township assessment roll.
1 Sec. 6. The clerk of the board of commissioners shall, under their direction, make duplicates of the seve-
Clerk to make
duplicates.
2 ral lists, which shall be subscribed by the commissioners, one of which lists for each road district, shall be
3 filed by such clerk in his office, and the other shall be forthwith delivered to the overseer of highways of the
4 district in which the highway labor therein specified is assessed.
Names of per- 1 SEC. 7. The names of persons left out of any such list, and who ought to have been included therein, and
sons on itted. -
2 of new inhabitants who have not in the same year been assessed in some other place for highway labor,
3
shall be from time to time added to the several lists, and rated by the overseers in proportion to their taxa-
4 ble real and personal property, as others are rated on such lists by the commissioners, to work on the high-
5 ways, subject to an appeal to the commissioners.
1 SEC. 8. It shall be the duty of the commissioners of highways of each township, to credit such persons as
Credit to persons l
working private
roads.
2 live on private roads and work the same, so much upon their assessment on account of such work, as such
3 commissioners may deem necessary to improve and keep such private roads in repair; or they may annex
4 any such private road to some highway district.
Certai 1 SEC. 9. Whenever the occupant of any land not owned by him, shall be assessed therefor by the commis-
Crtill n in SSCSS-
ments to be
inade separate.
2 sioners, they shall distinguish in their assessment list, the amount charged upon such land, from the person-
3 al tax, if any, of such occupant ; but when any such land shall be assessed in the name of the occupant
CHAP. 24.] ( 145 ) - [TITLE 6
4
5
6
7
the owner thereof shall not be assessed during the same year, to work on the highways on account of such
land.
SEc. 10. Whenever any tenant of any land for a less term than twenty-five years, shall be assessed to
When assess-
ment may be de.
work on the highways on account of such land pursuant to the last section, and shall actually perform such ...”
work, or commute therefor, he shall be entitled to a deduction from the rent due or to become due from
him for such land, equal to the full amount of such assessment, or he may recover the same of his landlord
in an action for money paid for his benefit, estimating the same at so much as is or shall be prescribed by
law for commutation per day for highway labor, unless otherwise provided by agreement between such ten-
ant and his landlord.
OF
CHAPTER 24.
THE DUTIES OF OverSEERS IN REGARD TO THE PERFORMANCE OF LABor ON HIGHWAYS ; AND OF THE
PERFORMANCE OF SUCH LABOR OR THE COMIMIUTATION THEREFOR, AND APPLICATION OF MIONEYS
BY THE COMMISSIONERS.
1 SECTION. 1. It shall be the duty of the overseers of highways, to give at least twenty-four hours' notice to Notice to per-
2
SOIns assessed.
b
all persons assessed to work on the highways in their respective districts, and residing in their townships,
of the time and place when and where they are to appear for that purpose, and with what implements.
SEc. 2. It shall be the duty of the several overseers of highways, to notify the agent of every non-resi- Wł t of
1611 agent. O
.#. 10
º e t tº - ſº tº o ... . be notified.
dent owner of lands within their respective districts, if they shall know that any such agent resides within
the township, of the number of days assessed upon the lands of such non-resident, and of the time when,
and place where the labor is to be performed; which notice shall be given at least five days previous to
the time appointed.
SEC. 3. Every person liable to work on the highways, shall work the whole number of days for which
º
º ... for WOrk. &c.
he shall have been assessed ; but every such person, other than an overseer, whether resident or non-resi- y
37
CHAP. 24.] - ( 146 ) [TITLE 6.
When commu-
tation to be paid.
Overseer may
require cart, &c.
Work by substi-
tute.
Forfeiture for
idleness, &c.
Liability for re-
fusal to work,
&c.
3
4
3
4
dent, may elect to commute for the same or any part thereof, at the rate of seventy-five cents for each day,
in which case such commutation money shall be paid to the overseer of highways of the district in which
the labor is required to be perſormed, and shall be applied and expended by such overseer, in the construc.
tion and repair of the roads and bridges in the same district.
SEc. 4. Every person intending to commute as aſoresaid, shall, within twenty-four hours after he shall be
notified to appear and work on the highways, pay the commutation money for the work required of him,
and the commutaion shall not be considered as complete until such money be paid.
SEc. 5. Every overseer of highways shall have power to require a cart, wagon, plough or scraper, with
a yoke of oxen or span of horses, and a man to manage them to be furnished by any person having the same
within his district, who shall have been assessed and shall be liable for three days or more ; and the
person ſurnishing a man and team, with a cart, wagon, plough or scraper, upon such requisition shall be
entitled to a credit of three days for each day’s service therewith.
SEC. 6. Every person assessed to work on the highways and warned to work thereon, may appear and
work in person, or by an able bodied man as a substitute; and the person so appearing shall actually work
eight hours in each day, and in default thereof the person assessed shall pay fifteen cents for each and ev-
ery hour such person or substitute shall be in default.
SEC. 7. If any person assessed, or his substitute shall, after appearing, remain idle, or not work faithfully,
or hinder others from working, such offender shall ſor each offence, pay the sum of one dollar.
SEC. S. Every person so assessed and duly notified, who shall not commute, and who shall refuse or ne-
glect to appear as above provided, shall for every day’s refusal pay the sum of one dollar; and if he was
lawfully required to furnish a team, carriage, man or implements, and shall refuse or neglect to comply, he
shall pay as follows:
1. For wholly refusing to comply with such requisition, three dollars and fifty cents for each day:
CHAP. 24.] - ( 147 ) [TITLE 6.
6 2. For omitting to furnish a cart, wagon, plough or scraper, one dollar and twenty-five cents for each
7 day:
8 3. For omitting to furnish a yoke of oxen or span of horses, one dollar and twenty-five cents for each
9
9 day:
10 4. For omitting to furnish a man to manage the same, one dollar and twenty-five cents for each day.
\
1 SEC. 9. It shall be the duty of every overseer of highways, within six days aſter any person shall become Overseer when
to make com-
plaint against
2 liable for the payment of any sum of money under the provisions of either of the last preceding sections, #. ºpeſo,
3 unless a satisfactory excuse be rendered to him by the person so liable, to make complaint to some justice
4 of the peace of the township, stating the default, neglect, refusal or other cause, by reason of which such
5 person became so liable.
1 SEC. 10. The justice to whom such complaint shall be made, shall forthwith issue a summons, directed to
Proeeding on
complaint.
2 any constable of the county, requiring him to summon the person against whom such complaint shall have
3 been made, to appear forthwith before such justice, at some place to be specified in the summons, to show
4 cause why a judgment should not be rendered against him according to law for the cause mentioned in the
5 complaint; which summons shall be served personally, or by leaving a copy at the place of abode of the
6 person complained of.
SEC. 11. On the return of such summons, or within such reasonable time thereafter as the justice shall al-
Judgment and
CXeCºltion.
1
* low, if no sufficient cause shall be shown to the contrary, the justice shall render a judgment in favor of the
3 people of this state against such person for the sum which such person shall have become liable to pay on
**count of the default, neglect, or other delinquency mentioned in the complaint, with the costs of prosecu-
* *; and shall forthwith issue an execution under his hand, directed to any constable of the county, com-
6 manding him to levy the amount of such judgment, including the costs of the proceedings, of the goods and
7 chattels of such defendant.
* * * The constable to whom such execution shall be delivered, shall forthwith proceed to collect the
CHAP. 24.] ( 148 ) [TITLE 6.
Proceeding on
execution.
Moneys collect-
ed to be set off
against assess-
Ill Cilt,
Excuse, effect of.
List on non-res-
ident lands, &c.,
to be delivered to
Supervisor.
1844, p. 69, sec.4.
List to be laid
before board of
supervisors and
proceedings
thereon.
1844, p.69, sec. 5.
2 moneys therein mentioned, by distress and sale of the goods and chattels of the defendant therein named,
3 giving at least three day’s notice of the time and place of sale; and he shall pay such moneys when collec-
4 ted to the justice who issued the execution, who shall pay the same to the overseer who entered the com-
5 plaint, to be by him expended in improving the roads and bridges in his district.
1 SEc. 13. Every sum of money collected for a refusal or neglect to appear and work on the highways shall
2 be set off against the assessment upon which it was founded, estimating every one dollar and twenty-five
3 cents collected, exclusive of the costs of the proceedings, as a satisfaction for one day’s work.
1 SEc. 14. The acceptance by an overseer, of an excuse for any refusal or neglect, shall not in any case
2 exempt the person excused from commuting for or working the whole number of days for which he shall
3 have been assessed during the year.
1 SEC. 15. Every overseer of highways shall, on or before the first Monday of October in each year, make
2 out and deliver to the supervisor of his township, a list of all the lands of non-residents and of persons un-
3 known, which are taxed on his list, upon which the labor assessed has not been paid, and the amount of la-
4 bor unpaid ; and said overseer shall make and subscribe an affidavit thereon, before some person competent
5 to administer oaths, or before the supervisor, that the labor assessed upon the lands so returned has not been
6 performed, and remains unpaid.
1 SEC. 16. The Supervisor of each township shall lay all such lists returned by the overseers to him, before
2 the board of supervisors at their annual meeting in October, and such board shall cause the amon of such
3 arrearages of labor, estimating the same at eighty cents for each day, to be levied on the lands so returned,
4 and to be collected in the same manner that the contingent charges of the county are levied and collected;
5 and the same when collected shall be paid into the township treasury, to be applied by the commissioners of
6 highways in the construction and improvement of roads and bridges, in the road district for the benefit of
7 which the labor was originally assessed.
Sec. 17. Every overseer of highways shall, on or boſore the second Saturday next preceding the time of
CHAP. 24.1 ( 149 ) * [TITLE 6.
2 holding the annual township meeting in histownship, render to the commissioners of highways of his town-
Account to be
3. e g - gº - rendered by
3 ship, an account in writing, verified by his oath, and containing: OWCrSeCr,
4 1 The names of all persons assessed to work on the highways in his district :
3 2. The names of all those who have actually worked on the highways, with the number of days they have
6 so worked :
7 3. The names of all those against whom judgments have been recovered by virtue of this chapter, and the *
8 sums so recovered:
9 4. The names of all those who have commuted and the amounts paid by them, and the manner in which
10 the moneys arising from judgments and commutations have been expended by him :
11 5. A list of all the non-resident lands in his district upon which the labor has been performed or commu-
12 ted for.
1 SEC. 18. Every such overseer shall, immediately upon the rendering of such account, pay over to the
Overseer to pay
over moneys in
tº º * e tº tº their hands, &c. .
2 township treasurer all moneys collected by him for judgments and commutations, and remaining unexpend-
s
3 ed, to be applied by the commissioners in the construction and improvement of roads and bridges in the
4 road district of the overseer who paid over the same.
1 SEC. 19. If any overseer shall neglect or refuse to pay over any moneys, remaining unexpended in his
When township
treasurer to Sule
tº º tº g f , &c.
2 hands, as required by the preceding section, it shall be the duty of the township treasurer forthwith to sue or moneys, &c
3 for the same in his name of office, in an action for money had and received to the use of such treasurer,
4 which moneys, when collected, shall be applied as provided in the preceding section.
1 SEC. 20. No money shall be drawn by the commissioners of highways from the township treasury, in pay-
Highway mo-
neys how
2 ment of any labor, contract or materials furnished, except by an order signed by a majority of them, and ""
3 countersigned by the township clerk, and accompanied by their certificate that the labor has been actually
4 performed, or the contract fulfilled, or materials furnished, for which the amount of such warrant is to ap-
tº - 841, p. 159, § 5,
5 ply in payment. - - 1841, p. 159, § 5
38
CHAP. 25.] * ( 150 ) [TITLE 6.
Letting of con-
tracts for re-
pairs, &c.
1841, p. 159, § 6.
Survey of ruad,
order, &c.
Copy of order to
be posted.
Consent of own-
, er, when neces-
Sary.
*
SEC. 21. Whenever the commissioners of highways shall determine to appropriate any portion of the mon-
eys accruing to their township on account of non-resident highway taxes, in the repairing or construction
of roads or bridges therein, they shall contract at public auction, with the lowest bidder giving good and
sufficient security to be approved by the township treasurer, for the performance thereof; and not less than
ten days notice shall be given by said commissioners, of the time and place of selling such contracts, by
posting up such notice in at least three of the most public places in their township.
l
CHAPTER 25.
OF LAYING OUT, ALTERING AND DISCONTINUING PUBLIC AND PRIVATE RoADs.
SECTION 1. Whenever the commissioners of highways shall lay out, alter or discontinue any road, they
shall cause an accurate survey to be made of such road, and shall incorporate such survey in an order to
be signed by them, and shall cause such order to be filed and recorded in the office of the township clerk,
who shall note the time of recording the same upon the record.
SEc. 2. It shall be the duty of the township clerk, whenever any order of the commissioners for laying
out, altering or discontinuing any road shall be received by him, forthwith to post a copy of such order on
*
the outer door of the house or building where the township meeting is usually held, or iſ there be no such
house-or building, then in one of the most publie places in the township ; and the time hereinafter limited
for appealing from any such order, shall be commputed from the time of recording the same.
Sec. 3. No public or private road shall be laid out through any orchard or garden without the consent of
the owner thereof, if such orchard have been set out four years or more, or if such garden have been cul-
tivated as such four years or more ; nor shall any such road be laid out through any buildings, or any fix-
tures or erections for the purposes of trade or manufactures, or any yards or enclosures necesary to the use
and enjoyment thereof, without the consent of the owner.
-- º
SEc. 4. The lands of individuals or corporations shall in no case be taken for the purpose of laying out,
CHAP. 25.] * ( 151 ) * [TITLE 6
2 making, repairing or altering highways, or their rights be thereby injured, without just and adequate com.
Lands not to be
taken without
e - * e g - & © COI) pensation.
3 pensation, to be ascertained according to the provisions of law. p
- e tº e © Application for
1 SEc. 5. Whenever any three or more persons in any township, liable to be assessed for highway labor, º out road,
C.
2 shall wish to have a highway in such township, laid out, altered or discontinued, they may, by writing un-
3 der their hands, make application to the commissioners of highways of the township for that purpose,
4 in which case the commissioners shall appoint a time for examining the premises, and hearing the par-
5 ties interested, and shall give notice of such time to one or more of the applicants.
Notice of meet-
ing of cominis-
º º º - SIOI!6 rS.
2 owning or interested in any of the lands through which the highway may pass, of such time, and of the
1 SEC. 6. The commissioner shall olso cause at least ten days notice in writing to be given to all persons
3 time when they will meet to consider any claim for damages; which notice shall be served personally, or
4 by copy left with, or at the residence of, the owner or occupant; and in case the owner is not a resident of
5 the township, and the lands are unoccupied, such notice shall be posted up at least ten days before the time
6 of meeting, in three of the most public places in the township.
1 SEC. 7. The commissioners, after examining the premises, and hearing the parties, and deciding on the
Doings of com-
missioners to be
2 application, shall return to the office of the township clerk the original application, with their doings in ºe.
3 Writing, stating the manner of notifying the parties, and their decision; which shall be kept on file in the
4 clerk’s office.
1 SEC. 8. If the commissioner shall judge the public good, or the necessity of individuals shall require such
Commissioners
* highway to be laid out, altered or discontinued, as claimed in the application, and shall judge any person º-
ment of dama-
geS.
3 interested in lands through which the highway shall be laid, entitled to damages, they shall propose to agree
4 with such person for the payment to him by the township, of such sum as they shall judge he is entitled to:
5 before such highway shall be opened.
1 sº. 9. Iſ such proportion shall be accepted by such person, such agreement shallibe reduced to writing and
CHAP. 25.] ( 152 ) - - [TITLE 6.
Proceedings on
proposition if
accepted.
, \
When referencC
may be had.
When applica-
tion may be
made for ap-
pointment of ap-
praisers.
Appointment of
appraisers.
Warrant to ap-
praisers.
2 signed by such person, and the said commissioners, and filed in the township clerk's office, and shall forever
3 preclude such person from any further claim for such damages; and such person shall be entitled to an
-
4 order from the township board upon the treasurer of the township, for the amount of damages specified in
5
1
2
1
such agreement.
SEC. 10. If any person interested in lands through which a highway shall be laid or alºre by the com-
missioners, shall not accept the proposal made by them for compensation for damages, the commissioners
may in behalf of the township, agree with such person to refer the same to one or more disinterested per-
sons, whose award shall be final; and such reference and award, and all proceedings in settling the dama-
ges, shall be stated in the doings of the commissioners, to be returned to the township clerk.
SEC. 11. If any person interested in lands through which a highway shall be laid out or altered by the *
missioners, shall not be satisfied with the sum offered, or if no sum be offered, and if the parties shall not
agree to refer the same, he may within sixty days after the highway shall be opened to be worked, and not
aſter, apply to a justice of the peace of the same or an adjoining township, for the appointment of apprai-
sers to appraise such damages, which application shall be in writing, describing the premises, and any
number of persons claiming damages on account of such highway, may join in such application; but such
- application shall not delay the opening of the highway.
Sec. 12. On the receipt of such application, the justice shall appoint a time and place for that purpose,
and shall issue a citation or notice stating the time and place of hearing, which shall be served on one or
more of the commissioners, at least six days before such time; and if the parties shall not agree to any oth-
en mode of appointing such appraisers, they shall be appointed in the following manner; the justice may
make a list of eighteen disinterested free holders of the county; each party may object to six on the list,
and out of the number not objected to, the justice shall, by lot, select three for the appraisers.
Sec. 13. The justice shall then annex to the application a warrant under his hand, and issue the same to
the appraisers so elected, directing them justly and impartially to appraise the damages sustained by the ap"
Char. 25.] ( 153 ) [TITLE 6
plicant in the premises described in the application, and to make return of their doings to such justice with.
4 in thirty days after the date of such warrant.
5
Sec. 14. The appraisers shall be sworn justly and impartially to make the appraisal, and shall give notice
Proceedings of
appraisers, &c.
to one or more of the commissioners, at least four days before the time appointed for that purpose ; and
shall at the time appointed, proceed to view the premises and make the appraisal, and shall make their re-
turn thereof to the justice, as directed in the warrant, with a statement of their time and expenses, which
shall be certified by the justice and filed with the township clerk, and if the amount of the appraisal shall
be more than was offered by the commissioners, the costs and expenses shall be paid by the township ; if
not more than was offered, the costs and expenses shall be paid by the applicant.
Af
SEc. 15. Such appraisers shall be entitled to receive one dollar and twenty-five cents per day each for
Costs and dama-
e º e w g * e ges to be levied
their services, and the justice shall be entitled to one dollar and fifty cents for his fees; and the damages &c.
consequent upon laying out or altering any highway, as finally settled, and all the lawful charges against
the township for services, fees and expenses in settling such damages, shall be levied and collected in the
township within which such highway is situated, and shall be paid by the township treasurer, upon the or-
der of the township board, as other township charges.
SEC. 16. Whenever the commissioners of highways in one township shall disagree with the commission-
Proceedings in
case of disagree-
** • * * * e º & ment between
ers of any adjoining township, whether in the same or another county, in relation to the laying out of a gºers
of adjoining
townships.
new road, or the alteration of an old road, extending into both townships, the commissioners of both town-
ships, or a majority of them, shall meet together, at the request of the commissioners of either township, and
make their determination upon such subject of disagreement.
** 17. Whenever it shall become necessary to have a highway upon the line between two townships,
Highways on
the lines of
such highway shall be laid by two or more of the commissioners of highways of each of Said townships, townships.
either upon such line or as near thereto as the situation of the ground will admit; and they may vary the
39
CHAP. 25 J - ( 154 ) [TITLE 6.
Apportionment
of damages, &c.
Proceedings of
commissioners.
Highways laid
on the lines be-
tWeen to WW Il-
ships.
Application for
private roads,
and proceedings
thèreon.
r Use of private
roads.
4
5
5
same either to the one side or the other of such line as they shall deem necessary, and they shall together
proceed in appointing a time of hearing and giving notice, as is required when an application is made for
laying out a highway in one township.
SEC. 18. The commissioners of highways of such adjoining townships, upon laying out a highway
upon the line thereof, shall determine what part of such highway shall be made and repaired by such
township, and what share of the damages shall be paid by each.
SEC. 19. The commissioners of highways of such adjoining townships shall proceed in all things, as is
required of the commissioners of highways of one township, in laying out highways in such township; and
their proceedings, or a duplicate thereof, shall be returned to the township clerk o: each township, and
their order, including the survey, shall be recorded in each township clerk’s office ; and each township shall
have all the rights, and be subject to all the liabilities, in relation to the part of * highway to be made
and repaired by such township as if the same was located wholly in such township.
SEc. 20. All highways heretofore laid out upon the line between any two townships, shall be divided, allot-
ted, recorded, and kept in repair, in the manner above directed.
SEc. 21. Whenever appication shall be made in writing, by any inhabitant of a ownship owning land
therein, for a private road, such commissioners shall appoint a time of hearing, and cause notice thereof
to be given, and the proceedings shall be the same in all respects, as in case of an application for a public
road, and us damages shall be ascertained in the same manner; and such damages, shall be paid by the
person applying for the road before the same shall be opened.
SEc. 22. Every such private road shall be for the use of such applicant, his heirs and assigns, but shall
not be converted to any other use or purpose than that of a road; nor shall the occupant or owner of the
land through which such road shall be laid out, be permitted to use the same as a road, unless he shall have
signified to the commissioners his intention of so making use of the same, before the damages were ascer-
tained.
Char. 25.] ( 155 ) ITITLE 5.
1
2
Sec. 23. Public roads to be laid out by the commissioners of highways, shall not be less than four rods width of roads.
wide ; and private roads shall not be less than two rods wide.
SEc. 24. Any person who shall conceive himself aggrieved by any determination of the commissioners of Appeal from de-
termination of
commissioners,
highways, either in laving out, altering or discontinui in refusing tol ut, alter or discontinue an &c.
8 yS, ying out, altering or discontinuing, or in refusing to lay out, a C any
road, may, within sixty days aſter such determination, appeal to the associate judges and judge of probate of
the proper county ; but an appeal by one person, shall not conclude nor affect the rights of any other per-
wn who shall appear within the time limited ; and the said judges shall suspend all proceedings upon ap-
peals received by them from any such determination, until the time limited for such appeals shall have
expired, to the end that their decision when made, may embrace the whole subject.
SEc. 25. In case of an appeal from the determination of commissioners of highways of adjoining town. Appeal from º:
termination o
commissioners
* * & ſº º g gº of adjoining
ships in different counties, relating to a road upon the line of such township, such appeal may be made to townships.
the associate judges and judge of probate of either of such counties, and such judges to whom the first
appeal shall be made, shall have exclusive jurisdiction of all appeals from the same determination.
SEc. 26. Every appeal from a determination of commissioners of highways shall be in writing, addressed
ſº how
C.
- II].8l.
to the associate judge and judges of probate, and signed by the party appealing, and shall briefly state the
ground upon which it is made, and whether it is brought to reverse entirely the determination of the com-
missioners, or only to reverse a part thereof; and in the latter case it shall specify what part.
SEC, 27. It shall be the duty of the judges to whom the appeal is made, as soon as may be after the time, d g
udges to give
- notice.
limited for taking appeals shall have expired, to give notice to the appellant, and to one or more of the
Commissioners from whose determination the appeal was taken, of the time when they will proceed to view
the premises, and to hear the appeal.
SEC. 28. Every such notice shall be served at least eight days before the time mentioned therein, by de-
Service of no-
tice.
livering a copy of the same to the appellant, and to one of such commissioners, or by leaving a copy there-
of at the dwelling house of such appellant and commissioner.
CHAP. 25.] . ( 156 ) fTITLE 6.
Decision of ap-
peal. .
Fees of Judges,
and by whom
paid. -
When commis-
Sioners to pro-
ceed to lay out
roads, &c.
Notice to owner,
&c., of improv’d
lands to remove
fences.
When highway
shall cease to be
a road.
I SEC. 29. The said judges shall proceed at the time specified in the notice, to view the premises, and o
2 hear the proofs and allegations of the parties; and they may issue process to compel the attendance of
3 witnesses, and may adjourn from time to time as may be necessary, and their decision shall be conclusive
4 in the premises, and every such decision shall be reduced to writing, be signed by the judges making the
5 same, and filed by them in the office of the clerk of the propér wº who shall record the same, and
6 give notice thereof to the commissioners of highways.
1 SEC. 30. Each of said judges shall be entitled to receive two dollars for each day employed in viewing
2 the premises, and in the hearing and decision of such appeal, to be paid by the party appealing, when the
3 determination of the commissioners shall be affirmed; but when it is reversed to be a charge against the
4 county.
1 SEC. 31. When any appeal shall have been made from a determination of the commissioners, refusing to
2 lay out, alter or discontinue a road, and the decision of the judges shall reverse such deterimination, the
3 commissioners of highways shall immediately proceed to lay out, alter or discontinue such road in the same
4 manner, and the proceedings thereon shall be the same, as if they had originally determined to lay out?
5 alter or discontinue such road.
1 SEC. 32. Whenever a public highway shall have been laid out and established, or altered, through any en-
2 closed or improved lands, the commissioners of highways shall give the owner or occupant of the land
3 through which such road shall have been laid out or altered, notice thereof, and require him to remove his
4 ſences within such time as they shall deem reasonable, not less than may days after giving such notice,
5 and no person shall be required to remove his fences between the first day of April and the first day of
6 November, without his consent.
1 SEC. 33. Every public highway already laid out, that shall not have been opened and worked within four
2 years from the time of its being so laid out, and every such highway hereafter to be laid out, that shall
3 not be opened and worked within the like period, shall cease to be a road for any purpose whatever.
CHAP. 26.] ( 157 ) [TITLE 6.
1 SEc. 34. All public highways now in use, heretofore laid out and allowed by any law of this state, or of
What highways
- .."
© & pu g
2 the late territory of Michigan, of which a record shall have been made in the office of the clerk of the
3 county or township ; and all roads not recorded, which have been, or shall have been used as public high-
4 ways twenty years or more, shall be deemed public highways, but may be altered or discontinued according
5 to the provisions of this chapter.
1 Sec. 35. When any highway shall be discontinued, the same shall belong to the owner or owners of the
Lands to revert
2 adjoining lands; if it shall be located between the lands of two or more different owners, it shall be annexed ºlinance
3 to the lots to which it originally belonged, if that can be ascertained; if not, it shall be equally divided be-
4 tween the owners of the lands on each side.
1 SEC. 36. If any such discontinued highway shall be set to a tract of land, throu gh which a new highway when disonº.
ued, highway to
... be taken into ac-
2 shall be laid out, the same may be taken into consideration in estimating the damages sustained by the i. ºfte.
3 owner ; and in estimating the damages which may be sustained by any person owning or interested in
4 lands, by reason of laying out or altering any highway, the benefits which such person may receive thereby
5 shall be taken into consideration.
CHAPTER 26.
OF THE obstruction of HIGHWAYS, ENCROACHMENTS THEREON, AND PENALTIES.
1 SECTION I. Whoever shall wilfully obstruct any highway, or fill up, or place any obstruction in any Penalty for ob-
structing high-
ways, &c.
2 ditch, constructed for draining the water from any highway, shall forfeit for every such offence a sum not
3 exceeding twenty-five dollars.
1 SEC. 2. In every case where a highway shall have been laid out and opened, and the same has been or
• Encroachments.
2 shall be encroached upon by fences, the commissioners of highways shall make an order under their hands
* requiring the occupant of the land through or by which such highway runs, and of which such fences form
40
CHAP. 26.] - ( 158 ) [Title 6.
Forſciture for
not removing cn-
Croachments.
Proceedings in
case encroach-
IIlents be denic d.
lb.
4
5
5
a part of the inclosure, to remove such fences beyond the limits of such highway within sixty days, and
they shall cause a copy of such order to be served upon such occupant; and every such order shall specify
the width of the road, the extent of the encroachment, and the place or places in which the same shall be,
*
with reasonable certainty.
SEc. 3. If such encroachment shall not be removed within sixty days after service of a copy of such or-
der, such occupant shall forfeit the sum of fifty cents for every day after the expiration of that time, dur-
ing which such fence shall continue unremoved.
Sec. 4. If the occupant upon whom a copy of such order shall be served, shall deny such encroachment,
the commissioners or some one of them shall apply to some justice of the peace of the county, for a Pre:
cept, which shall be issued by such justice, directed to any constable of the county, commanding him
to summon six disinterested feeholders thereof, to meet at a certain day and place, and not less than four
days after the issuing thereof, to inquire into the premises, and the constable to whom such precept shall be
directed, shall give at least three days notice to one of the commissioners of highways of the township, and
to the occupant of the land, of the time and place at which such freeholders are to meet.
SEC. 5. On the day specified in the precept the jury so summoned shall be sworn by such justice, well
*A
and truly to inquire whether any such encroachment has been made as described in the order of the com-
missioners, and by whom ; and the witnesses produced by either party shall be sworn by the justice, and
the jury shall hear the proofs and allegations which may be produced and submitted to them ; and in case
any person so summoned as a juror shall not appear, or shall be incompetent, his place may be supplied by
a talesman as in other cases.
SEC. 6. If the jury find that any such encroachment has been made by the occupant of the land, or
any former occupant thereof, they shall make and subscribe a certificate in writing of the particulars of
such encroachment, and by whom made, which shall be filed in the office of the township clerk; and the
occupant of the land, whether such encroachment shall have been made by him, or by any former occu-
CHAP. 26.] ( 159 ) [TITLE 6
5 pant, shall remove his fences within sixty days after the filing of such certificate, under the penalty of fifty
6 cents for each day after the expiration of that time during which such fences shall remain unremoved.
1 SEC. 7. If the jury find that any such encroachment has been made as aforesaid, the occupant shall pay
Ib.
2 the costs of such inquiry, and if the same shall not be paid in ten days, the justice shall issue a warrant
3 for the collection thereof, directed to any constable of the county, commanding him to levy such costs and
4 his fees thereon, of the goods and chattels of such delinquent, and the justice, constable, jurors and wit-
5 messes, shall be entitled to the same compensation as for other similar services in proceedings before justices
6 of the peace.
1 SEC. 8. If the jury find that no encroachment has been made, they shall so certify, and shall also
º o e e & . . . When damages
2 ascertain and certify the damages which the then occupant shall have sustained by such proceeding; which to be paid by
commissioners.
3 damages, together with the costs of the proceedings, shall be paid by the commissioners of highways, and
4 shall be charge in their favor against their township.
1 SEc. 9. No person shall be required to move any fence under the above provisions, except between the
2 first day of November and the first day of April, unless the same shall have been made within three months Yº...
moved.
3 next before the making of the order for the removal thereof.
1 SEc. 10. If any tree shall fall or be fallen by any person from any enclosed land, into any highway, any
Penalty on oc-
e º t ſ t
2 person may give notice to the occupant of the land from which such tree shall have fallen, to remove the ºn
trees, &c.
3 same in two days; and if such tree shall not be removed within that time, but shall continue in such high-
4 way, such occupant shall forfeit the sum of fifty cents for every day thereafter, until such tree shall be re-
5 moved.
www.
1 Sec. 11. In case any person shall cut down or fall any tree on enclosed land not occupied by him, so that
Liability f
2 it shall fall into any highway, unless by the order or consent of the occupant, such person shall Pºy to *highway.
3 occupant of such land the sum of one dollar for every tree so fallen, and the like sum for every day the same
4 shall remain in such highway, to be recovered as damages in an action of trespass, or on the case.
CHAP. 27.] ( 160 ) [TITLE 6.
Penalty for fall-
ing trees, into
rivers, &c.
When moneys
may be raised
for building
bridges.
Limitation of
am Oulnt.
When notice
may be put up
at end of bridge.
Forfeiture.
Penalty for in-
juring bridge.
1 SEC, 12. Whoever shall cut, or cause to be cut or fallen, any tree, so that the same shall fall into any ri-
2 ver or stream which now is, or hereafter shall be declared a public highway, and shall not remove the same
3 out of such river or stream within twenty-four hours thereafter, shall forfeit five dollars for every tree so
4 fallen and left remaining in such river or stream.
CHAPTER 27.
OF THE ERECTION, REPAIRING AND PRESERVATION OF BRIDGES.
I SECTION 1. Whenever it shall appear to the board of supervisors of any county, that any one of the
2 townships in such county would be unreasonably burthened, by erecting or repairing any necessary bridge
3 or bridges in such township, such board of supervisors may cause such sum of money to be raised and levied
4 upon the county, as will be sufficient to defray the expenses of erecting or repairing such bridge or bridges,
5 or such part of such expenses as they may deem proper; and such moneys when collected, shall be paid,
6 to the township treasurer of the township in which the same are to be expended, and be applied by the
7 commissioners of highways of such township to the purpose for which the same was raised.
1 SEC. 2. No board of superyisors shall, under the provisions of the preceding section, cause any sum ex-
2 ceeding one thousand dollars to be raised and levied in any county in any one year.
1 SEc. 3. The commissioners of highways of any township may put up and maintain at the expense of their
2 township, in conspicuous places at each end of any bridge in such township maintained at the public charge,
3 and the length of whose chord is not less than twenty-five feet, a notice with the following words in large
4 characters: “One dollar fine for riding or driving on this bridge faster than a walk.”
1 Sec. 4. Whoever shall ride or drive faster than a walk on any bridge, upon which such notice shall have
2 been placed, and shall there be, shall forfeit for every such offence the sum of one dollar.
1 SEC. 5. Whoever shall injure any bridge maintained at the public charge, shall, for every such offence
2 forfeit treble damages
CHAP. 28.] ( 161 ) [TITLE 6.
CHAPTER 28.
MISCELLANEOUS PROVISIONS OF A GENERAL NATURE.
1 SECTION 1. All trees standing or lying on any land over which any highway shall be laid out, shall be when trees, &c.
...r.”
2
for the proper use of the owner of such land, or person otherwise entitled thereto, except such of them as
3
may be requisite to make or repair the highway or bridges on the same land, or within one mile of the
4 same.
1 Sec. 2. Any person owning or occupying land adjoining any highway not less than three rods wide, r. may be set
out along high-
way, &c.
2 may plant or set out trees on each side of such highway contiguous to his land; which trees shall be set in
3 regular rows, at a distance of at least six feet from each other, and within ten feet of the margin of the
4 highway; and if any person shall cut down, destroy or injure any tree that may have been or shall be so
5 planted or set out, or which shall have been left on the side of such highway for shade, he shall be liable in
6
treble damages to the owner or occupant of such adjoining land, in an action of trespass, or on the case.
SEC. 3. Whoever shall wilfully destroy, remove, injure or deface any milestone or mileboard, erected on
- 2 Person remov-
ing milestone,
&c., guilty of
any highway; or shall wilfully injure or deface any inscription or device upon any guide-post or guide-"
2
3
board on any highway, or remove, destroy or injure any such guide-post or guide-board,shall be deemed guil-
4
ty of a misdemeanor, and on conviction thereof shall be fined not exceeding fifty dollars, or imprisoned in
5
the county jail not exceeding three months, in the discretion of the court.
SEC. 4. Whoever shall injure any highway by obstructing or diverting any creek, water course or sluice,
! Liability for in-
juring highway,
or by drawing logs or timber on the surface of any road or bridge, or by any other act, shall be liable in &c.
3
treble damages, to be recovered in an action of trespass, or on the case, by the overseer of highways of
the road district within which the injury was done, in his name of office, to be expended by him in the re-
5
pair of roads in his district.
1
SEC. 5. The provisions of this chapter, and of the preceding chapters, relating to highways and bridges,
41
CHAP. 29 J - --- ( 162 ) [TITLE 6.
2 shall be construed to extend to all parts of the state, except where special provisions inconsistent therewith,
Provisions of
this title to cx-
º,"; 3 have been or shall be made by law in relation to particular townships, counties, cities or villages, and
C. g - - - - t * * • * *
4 to all roads already laid out and made, or hereafter to be made in this state by the United States, except that
5 no such road shall be altered or discontinued under such provisions.
CHAPTER 29.
OF THE REGULATION OF FERRIES.
License for . 1 SECTION 1. The associate judges and judge of probate of each of the counties of this state, may grant li-
keeping ferries. }
2 censes for keeping ferries in their respective counties, to as many suitable persons as they may think pro-
38 per; which licenses shall continue in force for a time to be specified therein by said judges, not exceeding
4 three years.
Rates of ferriage 1 SEC. 2. The said judges when they shall grant any license to keep a ferry, shall order and direct the rates
how regulated.
2 of ferriage which the person licensed may receive, and may from time to time thereafter, during the con-
3 tinuance of such license, alter such rates; and they may also direct what and how many hours each day
4 such person shall attend his ſerry.
When not to be 1 SEC. 3. No such license shall be granted to any person other than the owner of the land through which
granted cycept to
owner of land.
2 the highway adjoining the ferry shall run, unless such owner shall consent thereto, or shall neglect to ap-
8 ply for such license, after notice as hereinaſter provided.
1 SEC. 4. Whenever application shall be made by any person other than such owner, the judges shall not
Ib.
2 grant a license to such applicant without the consent in writing of such owner, unless proof shall be made
3 that such applicant caused notice to be given in writing to such owner, at least eight days before such ap-
4 plication made, of his intention to make the same.
t
1 SEC. 5. Every person applying for such license shall, before the same be granted, give bond to the people
Char. 29.] ( 163 ) [Trrie 6.
* of this state in such penal sum as the judges shall direct, not less than two hundred dollars, with so many,
- - - Bond to be giv-
€Il.
3 and such sufficient sureties as the said judges shall direct and approve upon condition that he will faithful-
4 ly keep and attend such ferry, with such and so many Safe and convenient boats, and so many men to work
5 the same together with sufficient implements therefor, during the several hours in each day, and at such
6 several rates, as the said judges shall from time to time order and direct, which bond shall be filed with the
7 county clerk.
1 SEC. 6. Every such license shall be entered by the county clerk in a suitable book in his office; and a
- º ºnse
y Clerk, &c.
2 copy of such license, attested by such clerk, shall be delivered to the person licensed,
When waters di-
vide tWO COun-
ties.
2_tained in either of the counties, shall be sufficient to authorize the person obtaining the same, to transport
I Sec. 7. Whenever the waters over which any ferry may be used, shall divide two counties, a license ob-
3 persons, goods, wares, merchandize and effects, to and from either side of said WaterS.
1 SEC. 8. Every person who shall violate such bond shall be deemed guilty of a misdemeanor, and on con-ºn,
ing Dond gul
of misdemeanor,
2 viction thereof, shall be subject to such fine as the court may adjudge, not exceeding twenty-five dollars for
3 each offence, and unless such fine, and the costs of prosecution shall be paid within ten days after such fine
4 shall have been imposed, the prosecuting attorney for the county shall prosecute such bond for the use of
5 the state.
1 SEC. 9. If any person shall use any ferry for transporting across any river, stream or lake, persons,
Persons using
e - - • A : e e ferry without li-
2 goods, chattels or effects, for profit or hire, unless authorized in the manner directed in this chapter, such'. ...”
- ...” Ill ISOICIll Call) Or.
3 person shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be subject to such fine as
...”
4 the court may adjudge not exceeding twenty dollars for each offence.
1 SEC, 10. When any offence mentioned in either of the two last preceding sections, shall be committed on when person
- - -- - - may be prosecu-
ted in either of
© tº * * e - t º e e 1.WO COunties.
2 waters dividing two counties, the person so offending may be prosecuted in either of such counties. WO counties.
1 SEc. 11, Nothing contained in this chapter shall affect or impair any right or privilege belonging to any
Limitations *
• * g e º º ... • rovisions of this
2 individual or corporation, by virtue of any law of this state. - §:
CHAP. 30.] ( 164. ) [TITLE 7,
TITLE VII.
OF THE REGULATION of TRADE IN CERTAIN CASEs.
CHAPTER 30.-Of the Inspection of Provisions and other Merchandize and Regulations respecting the
sale thereof. -
6 & 31.—Of Weights and Measure.
4 & 32.-Of Bills of Exchange and Promissory Notes.
C & 33.-Of Limited Partnerships.
& 6 34.—Of Money of Account, and the Interest of Money, and on Judgments, Verdicts, &c.
CHAPTER 30.
OF THE INSPECTION OF PRovisions AND OTHER MERCHANDrzE, AND REGULATIONS RESPECTING THE SALE
THEREOF.
ºlº to be 1 SECTION I. There shall be appointed in each of the organized counties in this state, as the public conve-
appointed.
How appointed
and term of of
fice,
Oath and bond.
Deputies.
2 nience and necessity may require, inspectors of the following articles, namely ; beef and pork, butter and
3 hog's lard, fish, flour and meal, leather, and pot and pearl ashes.
1 Sec. 2. The said inspectors shall be appointed by the governor, by and with the advice and consent of the
2 senate, and shall hold their offices respectively for the term of five years from their respective appoint-
3 ments, unless sooner removed from office by the governor.
1 SEc. 3. Each inspector shall, before entering upon the duties of his office, take and subscribe the oath of
2 office prescribed by the twelfth article of the constitution of this state, and cause the same to be filed in the
3 office of the clerk of the county for which he shall be appointed, and shall also give bond, with sufficient
4 sureties as hereinafter provided.
1 SEC. 4. Each inspector shall appoint one or more deputy inspectors, removable at his pleasure, in each
º
2 township within his county where he shall deem it necessary, for whose official conduct he shall be respon-
3 sible ; and they shall give bonds with sufficient sureties to him in a penal sum not exceeding five hundred
CHAP. 30.] ( 165 ) [TITLE 7.
4 dollars each, and shall take and subscribe the constitutional oath of office, and cause the same to be filed in
5, the office of the clerk of the county within which they shall be appointed.
Beef and Pork.
1 Sec. 5. Each inspector of beef and pork shall, before entering upon the duties of his office give bond Bond of inspect
- - On(l Of 111806.CU-
ors of beef and
ſº e e º & © pork.
2 with sufficient sureties to the treasurer of this state, in the penal sum of one thousand dollars, which bond
3
shall be approved by the county clerk, and lodged with the treasurer of the county for which such inspec-
4
tor is appointed.
1 Sec. 6. Each inspector of beef and pork shall annually in the month of December, make a return to the
e Annual return S.
2
secretary of state, of the whole number of barrels and half barrels of pork so inspected by him and his
*
deputies during the year preceding the first day of December in the year when such return is made, desig-
3
4
nating therein the different sorts, and the places at which the same was inspected.
1 SEC. 7. No person shall export, or cause to be exported from this state, to any other state or country, ex-
- - Beef and pork
not to be export-
2 ed except in bar
cept the province of Canada, any beef or pork salted in this state, except in barrels or half barrels, of the: “.."
3
quality and dimensions hereinafter provided, and the contents whereof shall have been inspected and
4
packed; nor unless the casks containing the same shall be branded, agreably to the directions hereinafter
5 contained.
1 SEC. 8. All barrels in which beef or pork shall be packed, shall be made of good seasoned white oak or
Quality of bar-
rels and weight
of contents.
2
white ash staves and heading, free from any defect, and each barrel shall contain two hundred pounds of
3
beef or pork.
SEC. 9. Such barrels shall measure seventeen and a half inches between the chimes, and be twenty-nine
2
º º o e e . . Barrels I
inches long, and be hooped with at least twelve good hickory, white oak, or other suitable hoops; and if the tº now
3
barrel be made of white ash staves, it shall be hooped with at least fourteen such hoops; the staves and
4
heads shall be made of a proper thickness, and the hoops shall be well set and driven together.
42
CHAP. 30.] ( 166 ) [TITLE 7,
Half barrels.
Quality, Ste., of
beef.
Denominations
of beef.
Mess becſ.
Prime.
Cargo.
How salted.
I
2
Sec. 10. The half barrels in which any beef or pork shall be packed, shall contain not less than fifteen
nor more than sixteen gallons, and made in proportion to, and of the like materials as a whole barrel, and
shall contain one half of the quantity of beef and pork of the whole barrel.
SEc. 11. No beef shall be packed in barrels or half barrels, for sale or exportation, unless it be of ſat
cattle not under three years old ; and all such beef shall be cut into pieces as nearly square as may be,
and of not more than twelve, nor less than four pounds in weight.
SEC. 12. All beef which an inspector shall find on examination to have been killed at a proper age, and
to be fat and merchantable, shall be sorted and divided for packing or re-packing, in barrels or half barrels,
into three sorts to be denominated, “mess,” “prime,” and “cargo,” beef.
SEC, 13. Mess beef shall consist of the choice pieces of such cattle as are large and well ſatted, without
hocks, shanks clods or necks, and may or may not contain two choice rounds out of the same cattle, not
\
exceeding ten pounds each ; and each barrel or half barrel containing beef of this description shall be
branded on one of the heads with the words “mess beef.”
SEC. 14. Prime beef shall consist of choice pieces of good fat cattle, of which there shall not be in a bar.
rel more than one-half of a neck, nor more than two shanks, with the hocks cut off of the hind legs at the
smallest place above the joints; and each barrel and half barrel containing beef of this description shall
be branded on one of the heads with the words “ prime beef.”
Sºc. 15. Cargo beef shall be of fat cattle, with a proportion of good pieces, and not more than one-half
of a neck, and three shanks, with the hocks cut off in the same manner as in prime, in a barrel, and shall
be otherwise merchantable; and each barrel and half barrel of beef of this description shall be branded
4 on one of the heads with the words “ cargo beeſ.”
1 SEC. 16. Every barrel of beef shall be well salted with good clean salt, equal to
2 pounds of Turks Island salt, exclusive of a strong new pickle; and to each barrel shall be added four oun-
CHAP. 30.] ( 167 ) N [Title 7.
3 ces of saltpetre; and every half barrel shall be salted in the same proportion, and two ounces of saltpetre
4 shall be added thereto.
1 SEC. 17. On one head of every barrel and half barrel of merchantable beef and pork inspected and pack-
How branded.
2 ed, shall be distinctly branded the weight it contains, with the first letter of the christian name, and the sur
3 name at full length, of the inspector or deputy who shall have inspected the same, the word “M1CHIGAN,”
4 and the name of the county, and the year in which the same was inspected and branded.
1 SEc. 18. No beef or pork shall be branded by an inspector, except such as shall be sweet and wholesome,
- . ho to be
- º e e tº q & bran €(1.
2 and except the same be packed in casks of the dimensions hereinbefore prescribed.
Denominations
of pork.
1 Sec. 19. There shall be three qualities of pork that may be branded on inspection, and the first quality
2 shall be denominated “mess pork,” and shall consist of the sides of good fat hogs, exclusive of all other
|
3 pieces, and each barrel or half barrel of pork of this description, shall be branded on one of its heads with Mess pork.
4 the words “mess pork.”
1 SEC. 20. The second quality of pork shall be denominated “prime pork,” of which there shall not be in Prime pork.
2 a barrel more than three shoulders, the legs being cut off at the knee joint, nor more than twenty-four
8 pounds of heads which shall have the ears and snouts cut off, such snouts to be cut off at the opening of the
4 jaws, and the brains and all impure matter to be taken out of the heads, and the rest of the pork necessary
5 to constitute a brand of prime pork, shall be made up of side pieces, neck and tail pieces, and on one head
6 of every such barrel or half barrel shall be branded the words “prime pork.”
* Sec. 21. The third quality of pork shall be denominated “ cargo pork,” of which there shall not be in a
- Cargo pork.
2 barrel more than thirty pounds of head, nor more than four shoulders, and it shall otherwise be merchanta-
* ble Pork, and one head of every such barrel or half barrel of such pork shall be branded with the words
4 “cargo pork.”
1 Sec. 22. Every barrel of pork shall be well salted with good clean salt, equal to seventy pounds of good
CHAP. 30.] ( 168 ) [TITLE 7.
How salted.
Fees for inspect-
ing.
Penalty for meg-
lect or fraud.
Unlawful brand-
ing, penalty for.
Penalty for in-
termixing.
Penalty for sell-
ing, &c., contra-
ry to law.
2.
3.
Turks Island salt, exclusive of a strong new pickle, and every half barrel shall be salted in the same Pº"
portion.
Sec. 23. The inspectors and their deputies shall be paid the following, and no other fees, for inspecting
and branding all casks of beef and pork, and giving a certificate thereof, to wit: For every barrel, fifteen
cents, and for every half barrel, ten cents, which charges shall be paid by the person employing the insPeº-
tor, together with the sum of twenty-five cents for each barrel, and fifteen cents for each half barrel, for
packing and coopering the same, if done by him.
SEc. 24. If any inspector or deputy inspector shall unreasonably neglect or refuse to inspect or brand, on
2 application made to him for that purpose, or shall be guilty of any neglect or fraud in inspecting, packing
2
1
or branding any casks of beef or pork, contrary to the provisions of this chapter, or shall mark with his
brands any casks containing beef or pork, which has not been actually inspected, he shall forfeit the sum
of ten dollars for each offence. .
SEC, 25. If any person other than an inspector or deputy inspector, shall brand any cask of beef or pork
as having been inspected, he shall forfeit a sum not exceeding twenty dollars for each cask so unlawfully
branded.
SEc. 26. If any person shall with intent to defraud, intermix, take out or change any beef or pork from
any cask inspected or branded as aforesaid ; or shall put into such cask any other beef or pork for sale or
exportation, contrary to the provisions of this chapter, he shall forfeit for each offence a sum not exceeding
twenty dollars.
SEC, 27. If any person shall sell or offer for sale, any cask of salted beef or pork, not containing the
quantity, and not packed in the manner provided by law, he shall forfeit for each cask so offered or sold, a
sum not exceeding ten dollars.
SEc. 28. 1ſ any person shall sell, or offer for sale, any barrel, or half barrel of beef or pork imported
CHAP. 30.] ( 169 ) [TITLE 7.
2 into this state, and not inspected in the state or country in which it shall have been packed,without first hav-
Offering import-
º • ' • e wº ed beef or pork
3 ing the same inspected and branded agreeably to the provisions of this chapter, he shall for each barrel or **P*
4 half barrel so sold or offered for sale, forfeit a sum not exceeding ten dollars.
Butter and Hog's Lard.
1 SEC, 29. Each inspector of butter and hog's lard shall, before entering upon the duties of his * inneson of
nspectors o
butter. &c., to
e © o tº * & give bond.
2 give bond with sufficient sureties, to the treasurer of this state, in the penal sum of five hundred dollars;
3 which bond shall be approved by the county clerk and lodged with the treasurer of the county for which
Cº.
4 such inspector is appointed.
1 SEc. 30. Each of the inspectors of butter and lard shall annually, in the month of December, make a re- Annual
in nual returns.
2 turn to the secretary of state, of the whole number of casks, the different qualities, and the weight of each
3 quality of butter and lard inspected by him and his deputies during the year next preceding the first day of
4 said December.
1 Sec. 31. The inspectors or their deputies shall examine casks, kegs and firkins containing butter or hog's
Mode of making
inspection.
2 lard, on application made by any person, and shall with a proper instrument, perforate the contents of such
3 casks, kegs or firkins, from one head to the other, and thereby draw out so much as shall determine the
4 quality of the whole; and they shall see that it has been preserved with a due proportion of good fine salt,
5 that it is sweet and pure, and otherwise merchantable.
1 Sec. 32. Each cask, keg or firkin of butter or hog's lard, which appears to be good and merchantable,
How branded,
2 shall be branded in plain and legible characters with the word “butter,” or “hog's lard,” as the same may
3 be, and “first,” or “second,” or “third,” according to its quality ; and all other butter or hog's lard,
4 shall be branded with the word “refuse.”
1 Sec. 33. Each cask, keg or firkin of butter or hog's lard shall also be branded with the weight of the con.
2 tents thereof, and with the word “MICHIGAN,” the name of the township where it shall be inspected,
43
CHAP. 30.] ( 170 ) [TITLE 7.
Casks, how
made.
How prepared.
Fees for inspect-
ing.
Penaty for neg-
lect or delay.
Penalty for
counterfeitung
brand, &c.
3 the initial letter of the inspector or deputy's christian name, and the whole of his surname, and the month
4 and year in which the same may be inspected; and where the name of the month consists of more than on
5 syllable, it may be abbreviated.
1 SEc. 34. All casks, kegs or firkins in which butter or hog's lard shall be packed for exportation, shall be
2 made of sound and well seasoned white oak or white ash staves and heading, full bound with oak, ash or
3 walnut hoops.
1 SEC, 35. Each cask, keg or firkin, before any butter or hog's lard shall be packed therein, shall be filled
2 with a strong brine, which shall remain therein three days, and as soon as the brine is emptied from the
3 cask, keg or firkin, it shall be weighed by the owner of such butter or hog's lard, who shall with a marking
4 iron, mark on one of the heads thereof the full weight of the casks, keg or firkin, and shall brand thereon
5 the initial letter of his christian name and the whole of his surname.
1 SEC, 86. The inspector or any deputy, for his services in inspecting, branding, weighing and delivering
2 to the owner an invoice or weigh-note under his hand, of the weight of each cask, keg, or firkin, shall re-
3 ceive eight cents for each cask, keg, or firkin, to be paid by the person employing him.
I Sec. 37. If any inspector or deputy inspector, shall, on application made for the inspection of any butter
2 or hog's lard, as aforesaid, unreasonably neglect, refuse or delay to proceed to such inspection and branding
3 ſor the space of three hours aſter application made to him, he shall for each offence forfeit the sum of five
4 dollars.
I SEc. 38. If any person shall counterfeit any brand used by any inspector or deputy inspector, or if any
\
2 person shall make use of any such counterfeit brand, or of the brand of any inspector or deputy, to im-
3 press or brand any cask, keg or firkin of butter or hog's lard, he shall forfeit for each offence the sum of
4 ten dollars; and if any owner of batter or lard shall falsely mark any cask, keg or firkin thereof, or cause
5 the same to be falsely marked, he shall forfeit the sum of three dollars for each offence.
1 SEC. 39. If any person shall with intent to defraud, intermix, take out or change any butter or hog's lard,
CHAP. 30.] - ( 171 ) - [TITLE 7.
2 from any cask, keg or firkin inspected and branded as aſoresaid, or shall put into such cask, keg or firkin
3
4
Penalty for in-
termixing.
any other butter or lard, for sale or exportation, without first cutting out the said brands and marks, the per-
son so offending shall for each such cask, keg or firkin, forfeit the sum of ten dollars.
SEc. 40. If any person shall sell, or offer for sale any cask, keg or firkin of butter or hog's lard imported .*.
C., imported,
- and not inspect-
- tº e ſº d.
into this state, and not inspected in the state or country from which it shall have been brought, without first eu:
having the same inspected or branded agreeably to the provisions of this chapter, he shall forfeit for each
cask, kes or firkin so sold or offered for sale, a sum not exceeding five dollars.
fish.
SEc. 41. Each inspector of fish, before entering npon the duties of his office, shall give bond, with suffi- º: t d
# sh to give bond.
cient sureties, to the treasurer of this state, in the penal sum of one thousand dollars, which bond shall be
approved by the county clerk, and lodged with the treasurer of the county for which such inspector is ap-
pointed.
SEc. 42. Each inspector of fish shall annually, in the month of December, make a return to the secretary
- Annual returns.
of state, of the quantity of fish inspected by him and his deputies during the year next preceding the first
day of said December; and in each return he shall specify the different kinds and qualities, and the quan-
tity of each quality so inspected.
SEc. 43. The inspector and his deputies shall on application made to them for that purpose, proceed to ex-
Inspection.
amine any pickled fish submitted ſor inspection, and shall see that the same have been well struck with salt,
or pickle in the first instance, and preserved sweet, free from rust, taint or damage; and such fish as shall
be found in good order, and of a good quality, shall be packed either in barrels containing two hundred
pounds, or in half barrels containing one hundred pounds.
SEC. 44. Such fish shall be packed with good clean salt suitable for the purpose, and after packing said H ked
- OW packed.
fish with sufficient salt to preserve them, and heading said casks, they shall be filled up with a clean strong
pickle ; and the fish denominated white fish of good quality, properly cleaned, and in good order, may be
4 packed as aforesaid without having been previously salted or pickled:
CHAP. 30.] - ( 172 ) - [TITLE 7.
1 SEC. 45. Each cask shall be filled with fish of one and the same kind ; and the inspectors and their depu-
Denominations"
and how brand-k
ed. 2 ties shall brand in plain legible letters on the head of each cask of fish inspected by them reº,
3 “number one,” or “number two,” representing the quality of the fish packed or re-packed ; he shall also
4 brand on one head of each cask, the denomination of the fish, the initials of the christian name, and the
5 whole of the sur name of the inspector or deputy, the name of the county in which such fish are inspected,
6 the word “MICHIGAN,” and the month and year of the inspection.
1 SFc. 46. If any person, with intent to defraud, shall intermix, take out, or change any inspected fish,
Penalty for
frauds.
2 which shall be packed and branded as aſoresaid, or shall put any other fish in any cask so branded, for sale
3 or exportation, or if any person shall counterfeit any brand marks of any inspector or deputy, on any cask
4 containing fish, he shall forfeit fifteen dollars for each offence.
1 SEc. 47. All pickled fish which shall have been duly inspected in the state or country in which they shall
When not sub-
ject to re-inspec-
liOIl.
2 have been packed, shall not be subject to re-inspection in this state ; and such fish may be sold or exported
3 as if the same had been inspected in this state.
1 SEc. 48. All casks used for packing and re-packing pickled fish, shall-be made of sound well seasoned,
Casks how
made.
2 white, red or black oak, white ash or white pine timber ; the barrels and half barrels shall be well hooped,
3 with at least ten good hoops each, and shall be made in a substantial, workmanlike manner.
1 SEC. 49. The fees for inspecting and branding shall be, for each barrel, ten cents, and for each half bar-
Fees of inspect-
ors of fish.
2 rel, six cents; and for overhauling, inspecting, re-packing and branding, for each barrel, twenty cents,
3 and ſor each half barrel, twelve cents, exclusive of cooperage; which fees sh all be paid by the person
4 employing the inspector.
1 SEC. 50. If any person shall sell within this state, or shall export, or cause to be exported therefrom any
Penalty for sell-
ing ºpºrt- 2 fainted or otherwise damaged fish, unless with the intent that the same shall be used for some other purpose
.# tainical fish,
3 than as food, he shall forſeit the sum of ten dollars for every one hundred pounds of such fish, and in the
&
4 same proportion for any other quantity thereof; and upon any trial in such case, the burden of proof shall
5
be upon the defendant, to show for what purpose such fish were so exportedor sold.
CHAP. 30.] * - ( 173 ) [TITLE 7.
1 SEC. 51. If any inspector or deputy inspector of fish shall brand any cask of fish, the contents of which
Penalty on in-
speetor for cer-
2 he has not duly inspected and ascertained to be good, or if he shall permit any other person to use his brand * *
8 in violation or evasion of the provisions of this chapter, he shall forfeit for each offence the sum of twenty
4 dollars, and shall also be removed from office.
Flour and Meal.
1 SEC. 52. Each inspector of flour and meal, before entering upon the duties of his office, shall give bond l of
Bond of inspect-
Or ...'...".
meal.
2 with sufficient sureties for the faithful performance of the duties of his office, in the penal sum of one thou-
,”
3 sand dollars, which shall be approved by the county clerk, and lodged with the treasurer of the county for
4 which such inspector is appointed. - a
*
*
1 SEC. 53. Each inspector, of flour and meal shalſ, annually, in the month of December, make a return
- * Annual returns.
2 to the secretary of state, of the quantities and qualities of flour and meal inspected by him and his deputies
3 during the year preceding the first day of said December.
1 SEC. 54. All wheat flour, rye flour, and buckwheat meal, manufactured in this state for sale or exporta- How packed
2 tion, shall be packed in good and strong casks, made of seasoned oak or other sufficient timber, and hooped
3 with at least ten good and substantial hoops, three of which shall be on each chime, and properly nailed.
1 Sec. 55. The casks shall be of two sizes, one of which shall contain one hundred and ninety-six pounds
Sizes and capa-
- gº e e lf incl in di city of casks.
2 of flour or meal, with staves twenty-seven inches in length, and each head sixteen and one-half inches in di-
8 ameter ; the other size shall contain ninety-eight pounds, with staves twenty-two inches long, and each
4 head fourteen inches in diameter.
1 SEC, 56. The casks shall be made as nearly straight as may be, and their tare shall be accurately marked
Casks how
made and brand-
2 on one head with a marking iron, and they shall also be branded with the weight of the flour or meal con-ed.
sº
8 tained,therein, and with the initials of the christian, and the whole of the surname of the manufacturers there-
44
CHAP. 30 J ( 174 ) [TITLE 7.
4 of, except when such flour or meal shall be manufactured by a company, when the cask may be branded
5
Brands of wheat
flour.
Of rye flour, &c.
Application for s 1
inspection, &c.
Duties of inspec- l
tor.
4
8
10
11
1.
Fees of inspec-
iOrg. 2
with the name of such company,
Sec. 57. Every such cask of wheat flour shall also be branded as follows, namely: If of a superior quality,
“superfine,” if of a second quality, “fine,” if of a third quality, “fine middlings,” if of a fourth quality,
“middlings.”
SEC. 58. Each cask of rye flour of the first qualty, shall be branded with the words “superfine rye flour,”
and each cask of the second quality, with the words, “fine rye flour,” and each cask of buckwheat meal
shall be branded with the words “B. meal.”
SEc. 59. When the flour or meal has been packed and branded according to the preceding provisions, ap-
plication may be made to an inspector or deputy inspector of flour and meal,and it shall be his duty to exam-
ine and determine the quality of the same.
SEc. 60. It shall be the duty of the inspector or deputy,
1. To ascertain by examination, the weight of all casks which he may suspect of being falsely tared:
2. To alter and correct the brands in all cases where he shall be of opinion that they do not designate the
real quality of the flour or meal:
3. To weigh such casks as he shall suspect do not contain the full weight, and if they do not contain the
full weight, to brand them with the word “light:”
4. To brand all casks containing flour or meal so damaged as not to be fit for exportation, with the word
“bad; ” and,
5. On all casks made, branded and packed according to the provisions of this chapter, to brand in a legi-
ble manner on one head thereoſ, the initials of his christian, and the whole of his surname, together with
the name of the county where the inspection has been made.
*
SEC. 61. Every inspector or deputy inspector of flour and meal, shall be entitled to receive for inspecting,
boring, branding and plugging each barrel and half barrel, three cents, and for weighing and ascertaining
3 the light weight or under tare of each barrel and half barrel, three cents,
CHAP. 30.] ( 175 ) [TITLE 7.
*.
1 SEc. 62. Every person who shall pack any flour or meal for exportation, or cause the same to be packed
Penalty for
frauds.
2 in any cask except such as is required by the provisions of this chapter, or who shall knowingly undermark
3 the tare of any cask, or put therein a less quantity than is branded thereon, shall forfeit five dollars for ev-
4 ery cask so packed, undermarked or deficient; but any manuſacturer of flour or meal may sell the same in
5 casks of any description, without marking or branding, where such flour or meal is intended solely for the
6 consumption of the purchaser.
1 SEC. 63. Every person who shall alter or counterfeit any brand marks of the inspector or deputy, or of
Penalty for
counterfeiting
- tº e G e brand marks &c.
2 the manufacturer, made under the provisions of this chapter, shall forfeit the sum of ten dollars for every"""
3 cask, the brand of which shall be so altered or counterfeited ; and every person who shall put any flour or
4 meal into an empty cask, branded by an inspector, and offer the same for sale in such cask, without first
5 cutting out the brands, shall forfeit for each offence, the sum of five dollars.
1 SEC. 64. No inspector or deputy inspector of flour and meal shall purchase or sell any flour or meal *Inspectors not to
buy and sell.
2 cept for his private use, or be directly or indirectly concerned in any such purchase, under the penalty of
3 not less than one hundred, nor more than five hundred dollars for each offence.
Leather.
1 SEC. 65. Each inspector of leather shall, before entering upon the duties of his office, give bond to the
Bonds of inspec-
tors of leather.
2 treasurer of this state in the penal sum of two hundred and fifty dollars, with sufficient sureties, which bond
3 shall be approved by the county clerk, and lodged with the treasurer of the county for which such inspec-
4 tor is appointed.
1 Sec. 66. Each inspector of leather shall annually, in the month of December, make a return to the sec-Annº ºn.
2 retary of state, of the number and weight of all the sides of sole leather inspected by him and his deputies
3 during the year ending on the first day of that month; and in such return he shall designate the quantity
4 of each quality of leather so inspected.
1 SEC, 67. No sole leather made of the hides of neat cattle, except such as shall have been previously inspect- When sole lea
- - ther not to be
sold without in-
2 ed and sealed by an inspector in this state, or of some other of the United States, shall be sold for any "P"
CHAP. 30.] ( 176 ) * [TITLE 7.
Penalty for sell-
ing contrary to
law.
Sole leather
how inspected.
How branded.
Penalty for
ſraud:
Fees for inspec-
ting.
3
4
l
2
purpose whatever, within any county in which there shall be an inspector, until the same shall have been
inspected, weighed and sealed by the inspector for such county or his deputy.
SEC, 68. If any person shall, within any county for which an inspector shall have been appointed, buy
or sell any such sole leather which shall not have been inspected as aſoresaid, he shall forfeit one dollar for
3 each side of sole leather so bought or sold; provided however that nothing in this or the next preceding
4
5
section, shallbe construed to prevent any manufacturer of sole leather residing within this state, from selling
the leather manufactured by him, without first having the same inspected.
SEC, 69. Every inspector or deputy, when requested, shall inspect all sole leather offered for his inspec-
tion, and he shall furnish himself with proper scales, weights and seals for such purpose, and shall weigh
each side of sole leather which he shall inspect, and impress thereon the initials of his christian and the
whole of his surname, and the name of the county for which he is inspector or deputy, at full length, and
also the weight thereof.
SEC. 70. On all sole leather which such inspector or deputy.hall find upon inspection, to be manufactured
of good hides, in the best manner, he shall impress the word “best”; and on all manuſactured of good
hides in a merchantable manner, the word “good”; and on all manufactured of damaged hides in a mer-
chantable manner the word “damaged”; and on all sole leather not belonging to any of thequalities afore-
said, the word “bad.”
SEC. 71. If any person shall with intent to defraud, alter or deface such mark on any side of sole leather
so inspected, or shall counterfeit such marks, he shall, for each offence, forfeit the sum of twenty-five
dollars.
SEc. 72. The inspector or his deputy shall be paid for inspecting, weighing and sealing each side of sole
leather, the sum of four cents, to be paid by the person employing him.
Sec. 73. If any side of sole leather shall, when dried in a merchantable manner, so vary as to weigh five
CHAP. 30.] t º ( 177 ) [TITLE 7.
2 per cent. more or less than the weight marked thereon by the inspector who inspected the same, he shall
Inspector liable
in case of varia-
tion in weight.
3
be liable to pay the whole variation, at a fair valuation, to be recovered in an action on the case by the
party injured thereby.
4
z
SEc. 74. If any inspector or deputy inspector of leather, on application made to him for the inspection of
I
Penalty for ne-
glect, &c.
2
any sole leather, shall for the space of three hours, unreasonably refuse or neglect to make such inspec-
3 tion, he shall for each offence forfeit the sum of five dollsrs.
Pot and Pearl Ashes.
1 SEC, 75. Each inspector of pot and pearl ashes shall, before entering upon the duties of his office, give
& - º * tº , , Bond of inspect-
2 bond to the treasurer of this state with sufficient sureties, in the penal sum of five hundred dollars, which or of pot and
pearl ashes.
3 bond shall be approved by the county clerk, and lodged with the treasurer of the county for which such in-
4 spector is appointed.
1 SEC. 76. Each inspector of pot and pearl ashes shall, annually, in the month of December, make a re- Annual returns.
2 turn to the secretary of state, of the number of casks of pot and pearl ashes inspected by him and his
3 deputies during the year ending on the first day of that month, specifying the number of each kind under
4 each brand, and the weight of each quality.
1 Sce. 77. Every manufacturer of pot and pearl ashes shall brand each cask containing the same, with the
How branded,
#: by manu-
- º * º acturer.
2 initial letters of his christian name, and the whole of his surname, or with the name of the company, if
the same shall have been manufnctured by a company, and with the name of the township, village or city
3
4 where the same shall have been manufactured, before the same shall be removed from the manufactory,
5 under the penalty of one dollar for each cask so removed without being previously branded as aforesaid.
1 Sec. 78. The inspectors and their deputies shall, within their respective counties, examine all pot and
Examinaiion by
e inspector.
pearl ashes submitted to them for inspection; and they shall remove the same from the casks, and carefully"
2
3
inspect, and determine the quality of the same, and sort the same into three differedt sorts, if necessary.
45
CHAP. 30.]
( 178 ) [TITLE 7.
Sorting and
branding by in-
Spector.
Fees for inspec-
tion, &c.
When re-in-
spection unne-
cessary.
Penalty on in-
spector for ne-
glect, &c.
Casks how
made.
Casks to be
weighed and
Imarked.
1 SEC. 79. They shall put each sort into casks by itself which they shall distinguish by the words, “first
2 sort,” “second sort,” or “third sort,” with the words “pot ashes,” or “pearl ashes,” as the same may be,
3 branded thereon in plain legible letters, together with the weight thereof, the initial letters of the inspect-
4 or’s or deputies christian name, and the whole of his surname, the place where such pot or pearl ashes shall
5 be inspected, and the word “MICHIGAN,” at full length on one head of each cask.
1 SEC. 80. The inspector or his deputy shall receive for inspecting, weighing and branding, and deliver-
2 ing to the owner an invoice or weigh note under his hand, of the weight of each cask of pot or pearl ashes,
3 the sum of six cents for every hundred pounds so inspected ; and if any cask shall be coopered and nailed
4 by him, he shall receive therefor the further sum of twelve cents.
1 SEC. 81. Any pot or pearl ashes, imported into this state from any other of the United States, and in-
2 spected in the state from which the same shall have been exported, shall not be subject to re-inspection ;
3 and any pot or pearl ashes so imported, which shall have been inspected in any other state, may be shipped
4 without inspection in this state.
SEC, 82. If any inspector or deputy inspector shall, aſter application made to him for the inspection of
any pot or pearl ashes, unreasonably refuse or neglect to make such inspection for the space of three hours
*~
after such application, the inspector or deputy so refusing or neglecting, shall, for each offence, forfeit the
3
4 sum of five dollars,
1 SEc. 83. Every cask in which pot or pearl ashés shall be packed for exportation shall be made of sound
and well seasoned oak or white ash staves and heading, full bound, not less than twenty-nine inches in
3
length, and nineteen inches in diameter in the head, and of such weight in proportion to its contents, as
4 will amount as near as may be, to fourteen per cent, tare thereon.
1 SEC, 84. The inspector or deputy, after removing the pot or pearl ashes from the cask for inspection,
2
shall weigh each cask and mark the weight with a marking iron on the head thereof.
1 SEc.;85. If any person shall, with intent to defraud, brand any pot or pearl ashes manufactured by him:
CHAP. 30.] ( 179 ) [TITLE 7.
2 self, with the name of any other person, or shall brand any such cask manufactured by another person with Penalty for
frauds.
3 his own name, or shall counterfeit any brand belonging to, or proper to be used by the inspector or any
4 deputy to impress or brand any cask of pot or pearl ashes, he shall forfeit and pay for each offence, the
5 sum of fifty dollars.
z
1 SEC, 86. If any person shall with intent to defraud, take out of any cask of pot or pearl ashes, inspected Ib.
2 and branded as required by this chapter, any portion of the contents thereof, and put into the same any oth-
3 er pot or pearl ashes, or shall put into any empty cask which shall have been branded by the inspector as
4 aforesaid, any pot or pearl ashes, for sale or exportation, without first cutting out the said brand marks, the
5
person so offending shall, for each such cask, forfeit the sum of ten dollars.
Beer, Ale and Cider.
1 SEC. 87. No person shall sell or expose for sale any ale or beer, in barrels, half barrels, casks or
Capacity of
º g º tº & º k 3. & tº
2 kegs, of a less capacity, respectively, than barrels of thirty-two gallons each, half barrels of sixteen gal- CºlSR.S., &C
3 lons each, and casks or kegs of ten gallons each, unless such other barrels, half barrels, casks or kegs,
4 shall be conspscuously and permanently marked, on both heads, with the true measure thereof in gallons.
1 SEC, 88. Any person offending against the provisions of the last preceding section, shall forfeit the value
Forfeiture.
2 of the ale or beer so exposed for sale or sold, and the barrels, half barrels, casks or kegs containing the
3 same.
1 SEc. 89. In all contracts for the sale of any ale, beer or cider, by the barrel or half barrel, the barrel . how
2 shall be deemed to contain thirty-two gallons, and the half barrel sixteen gallons, unless the parties other-
3 wise agree.
Staves and Heading.
f
1 SEC 90. In every town from which stayes are usually exported, there shall be two or more suitable persons, cullers of slaves
and heading
thcir º:
* tº g 4. gº Inent, Oath O
2 to be cullers of staves and heading, who shall be appointed by the governor by and with the advice and ...
3 consent of the senate, and who shall, before entering upon the duties of their offices, take and subscribe
4 the constitutional oath of office, and cause the same to be filed in the office of the clerk of the county.
CHAP. 30.] * ( 180 ) [Turle 7
Compensation.
*
Inspecting and
culling.
Butt staves.
Pipe staves.
Hogshead stav's.
5
4
within which the duties of their offices are to be performed, and shall holdſtheir offices for the term of five
years from the time of their respective appointments, unless sooner removed from office by the govarnor.
SEc. 91. They shall be allowed for their time and services in culling and inspecting staves, as follows,
namely: ſor every thousand long butt staves, one dollar and twenty-five cents; for every thousand short
butt staves, one dollar; for every thousand pipe staves, fifty cents; for every thousand hogshead staves and
heading, thirty-seven and a half cents; and for every thousand barrel staves and heading, twenty-five
cents, to be paid by the owner thereof.
Sec. 92. All staves or heading intended for sale or exportation may be inspected and culled, by a culler
of staves and heading, at or near the place of sale or exportation ; and none shall be culled as merchanta-
ble, unless they shall be of the description required in the following sections.
SEc. 93. All long butt staves shall be of good white oak timber, five feet six inches long, and all short butt
Staves shall be of good white oak timber, four feet six inches long, and both at least five inches broad when
dressed, clear of sap, two inches thick on the thinnest edge, and not more than two and a half inches thick
in any place, and they shall be regularly split with the grain of the wood, and free from twist, and other-
wise good and sufficient.
SEc. 94. All pipe slaves shall be made of good white oak timber, four feet six inches long, and shall work
three inches broad when dessed clear of sap, and shall be three quarters of an inch thick on the thinnest
edge, regularly split with the grain of the wood, and shall not have more than six worm holes, and be oth
erwise good and sufficient.
g
Sec. 95. All hogshead staves shall be made of good white oak timber, three feet six inches long, and
shall work three inches broad when dressed, clear of sap, and shall be three quarters of an inch thick on
the thinnest edge, regularly split with the grain of the wood, and shall not have more than four worm holes,
and shall be otherwise good and sufficient.
CHAP. 31.] ( 181 ) * [TITLE 7.
1 Sec. 96. All barrel staves shall be made of good white oak or white ash timber, two feet six inches long,
º º Barrel. Stavé8.
2 and shall work three and a half inches broad when dressed, clear of sap, and shall be three quarters of an
3
inch thick on the thinnest edge, regularly split with the grain of the wood, and shall not have more than
three worm holes, and be otherwise good and sufficient.
4
1 SEc. 97. All hogshead heading shall be made of good white oak timber, two feet eight inches long, and Hogshead head-
ing.
2 no less than five inches broad clear of sap, two-thirds of which shall be suitable for middle pieces, and shall
3
not be less than three quarters of an inch thick on the thinnest edge, regularly split with the grain of the
4 wood, and be otherwise good and sufficient.
SEc. 98. If any culler shall connive at, or be guilty of any fraud in the culling of staves or heading, he
Penalty on cul-
ler for fraud and
lect.
2 shall forfeit the sum of fifty dollars for each offence ; and in case any culler of staves and heading shall negle
3
unreasonably neglect or refuse to attend to the services required of him, when he shall be thereunto re-
4
quested, he shall forfeit the sum of fifty dollars for every such neglect or refusal.
CHAPTER 31.
OF WEIGHTS AND MEASURES,
1 SECTION 1. The weights and measures which have been adopted, used and allowed in the late territory of
2
* - - • e º • e º tº tandard of
Michigan, and in this state, shall remain the authorized public standards, by which all weights and measures %.
IIleasureS.
8
shall be tried, proved and sealed, in the manner provided in this chapter.
1
SEC. 2. The said weights and measures, together with the scales and beams, and those made in conformity
Preservation of,
&c.
2 therewith, which are now, or may hereafter be deposited in the treasury of this state, shall be preserved by
3 the treasurer, and be used as public standards; and such weights, measures and scales and beams as may be
4 procured from time to time to replace the same, shall be made in the same form, and of the same dimen-
º
5 sions and proportions, with the aforesaid weights and measures, and scales and beams.
46
CHAP. 31.] ( 182 ) [TITLE 7.
State sealer, his
duties.
Supervisors to
procure standard
from state sealer
&c.
County standard
to be deposited
with clerk; his
duties.
County standard
to be tried once
in five years.
When county
standard to be
procured by
treasurer ,
2
2
2
4
5
Sec. 3. The treasurer of the state shall be the state sealer of weights and measures, and he shall have and
keep a seal which shall be so formed as to impress the letter “M.” upon the weights and measures, and
scales and beams, to be sealed by him, with which he shall-seal all such authorized public standards of
weights and measures, and all the weights and measures and scales and beams to be provided by the several
counties, when examined by said treasurer, and found to be in conformity with the standard weights and
measures and scales and beams aforesaid.
Sec. 4. The board of supervisors of each county for which the same have not already been obtained, shall
procure for the use and at the expense of their county, a complete set of weights and measures, and scales
and beams in exact conformity with those remaining in the state treasury; except that the same may be
made of such suitable materials as the supervisors may direct, which shall be tried and proved by the said
treasurer, and be by him sealed and certified.
Sec. 5. When so sealed and certified, such weights and measures, scales and beams, shall be deposited with
the county clerk, who shall be the sealer of weights and measures for the county, and the same shall be
kept by him as the standard of weights and measures for the county; and the said clerk shall also provide
and keep a seal similar to the seal required to be kept by the state treasurer, with which he shall seal the
weights and measures, and scales and beams, to be provided by the several townships.
SEC. 6. Once in every five years from the first day of January, eighteen hundred and forty-five, each
county clerk, ſor the time being, shall cause the said standards in his keeping to be tried, proved, and sealed
by the state standards, under the direction of the state treasurer.
SEc. 7. If the board of supervisors of any county which has not heretofore provided such standards, shall
neglect for six months to provide the same, and cause them to be tried, proved and sealed as aforesaid, and
delivered to the clerk of the county, it shall be the duty of the clerk to notify the county treasurer of such
neglect, and such county treasurer shall immediately provide such standards, and cause the same to be
tried, proved, sealed and deposited as aſoresaid, at the expense of his county,
gºss-
Chap. 31.] ( 183 ) [TITLE 7.
l
i
2
3
4.
heretofore have been done, for the use and at the expense of the township, a complete set of weights and &
Sec. 8. The township board of each township shall procure to be made and provided, when it shall not
Standard for
each township,
how procured,
measures, and scales and beams, in conformity with the standards kept by the clerk of the county, which
shall be tried, proved and sealed, and certified by the county clerk, by the standards remaining in his of.
fice; and such weights and measures, scales and beams, so tried, sealed and certified, shall be delivered to
and kept by the clerk of the township, as standards for the township ; such township standards to be made
of such suitable materials as the said township board shall direct; and the said board shall also provide al
seal similar to the state seal, to be kept by the township clerk.
SEc. 9. The township clerk of each township shall be the sealer of weights and measures therein, and Township sealer
his duty.
shall have the care and custody of the standard weights and measures of his township, and, shall seal
weights and measures, scales and beams, used within his township, after having tried and proved them by
**
the township standards.
Sec. 10. The clerk of each township shall, once in each year, sometime in the month of April, put up a Ib.
written notice in three of the most public places in the township, stating therein the time and place when
and where he will attend such of the inhabitants as live within the limits described in the several notices
aforesaid, and seal all such of their great and small scales, beams, weights and measures, as they shall
bring for that purpose ; and he shall deface and destroy all such as cannot be brought to the just standard.
SEc. 11. The township clerk shall be entiled to demand and receive from the person for whom the ser-
Compensation of
tº tº we w g e township clerk
vice is rendered, for trying, proving, and sealing as aforesaid three cents for each scale, beam, weight, or
measure found not to be conformable thereto, and two cents for each beam, weight or measure found to be
conformable therete.
SEC. 12. The township clerk shall go, once in every year, to the houses, stores and shops of such mer. -
When clerk to
go to store, &c.,
chants, traders, retailers of spirituous liquors, and of such other of the inhabitants of the township, using * u, weights.
A.
scales, beams, weights and measures, for the purpose of buying and selling, as shall neglect to bring OT
send in their scales, beams, weights and measures, and he shall there try, prove and seal the same,
CHAP. 31.] * ( 184 ) [TITLE 7.
*
Double fees,
when to be paid.
Fees for county
clerk, for seal-
ing, &c.
Penalty for re-
fusing to have
weights, &c.,
tried and sealed.
When township
clerk to procure
standard.
Penalty on seal-
er for neglect,
&c.
Vibrating steel-
yards.
Construction of
certain contrºcis.
1 SEC. 13. For the services required in the last preceding section, the township clerk shall be entitled to de-
2 mand and receive of such merchants or other persons, double the fees hereinbefore provided for the like
3 services, together with four cents for every mile he shall necessarily travel for that purpose, going out and
4 returning home.
1 SEc. 14. The county clerk shall be entitled to receive from each township clerk, a fee of three cents for
2 the first sealing of every weight, measure, scale or beam, and two cents each for every subsequent Sealing
3 of the same,
1 SEc. 15. Every person refusing or neglecting to have his scales, beams, hay-scales, platform balances,
2 weights or measures so tried, proved and sealed once in each year, shall forfeit a sum not exceeding twenty
3 dollars for each offence.
1 SEc. 16. If the township board of any township, after notice to them that the standard of weights and
2 measures for the county have been deposited with the county clerk, shall neglect for the space of six months,
3 to provide standard weights and measures for their township as above directed, it shall be the duty of the
4 township clerk forthwith thereafter to procure the same at the expense of the township.
1 SEc. 17. If any sealer of weights and measures shall neglect to perform his duty, as prescribed in this
2 chapter, he shall forfeit for each neglect, the sum of five dollars.
1 SEC. 18. The vibrating steel-yards, which have heretofore been allowed and used in this state, may con-
2 tinue to be used ; but each beam, and the poises thereof, shall be annually tried, proved and sealed, by a
3 scale of weights and measures, like other beams and weights.
1 SEc. 19. When any commodity shall be sold by the hundred weight, it shall be understood to mean the
2 net weight of one hundred pounds avoirdupois, and all contracts concerning goods or commodities sold by
3 weight, shall be construed accordingly, unless such construction would be manifestly inconsistent with the
4 special agreement of the parties contracting.
2^
CHAP. 32.] - ( 185 ) - [Title 7.
I
2
SEC. 20. Whenever wheat, rye, indian corn, oats, barley or buckwheat, shall be sold by the bushel, and no
* - Wººns
O e
special agreement as to the measure or weight thereof shall be made by the parties,the measure thereof shall
be ascertained by weight, and shall be computed as follows: Sixty pounds for a bushel of wheat; fifty-six
pounds for a bushel of rye, or Indian corn; thirty-two pounds for a bushel of oats; forty-eight pounds for
- • 1839, p. 218, § 9.
a bushel of barly ; and forty-six pounds for a bushel of buckwheat.
&
SEC. 21. The half bushel and the parts thereof shall be the standard measure for charcoal, fruits and oth- Measure for
-- charcoal, &c.
er commodities, customaryily sold by heaped measure; and in measuring such commodities, the half bushel
or other smaller measure, shall be heaped as high as may be, without special effort or design.
CHAPTER 32.
OF BILLS OF EXCHANGE AND PROMISSORY NOTES,
SECTION 1. All notes in writing, made and signed by any person, whereby he shall promise to pay to any Wh
- at notes ne-
gotiable.
other person or his order, or to the order of any other person, or unto the bearer, any sum of money therein
mentioned, shall be due and payable as therein expressed; and shall have the same effect, and be negoti-
able in like manner, as inland bills of exchange, according to the custom of merchants.
SEc. 2. Every note signed by the agent of any person under a general or special authority, shall bind Note signed by
º agent.
such person, and have the same effect, and be negotiable, as provided in the preceding section.
SEC. 3. The word “person,” in the two last preceding sections, shall be construed to include any corpo-corporations in-
cluded.
ration capable by law of making contracts.
Sec. 4. The payees and endorsees of every such note payable to them or their order, and the holders of
Actions by pay-
* * © & $ sº e & ees, &c.
every such note payable to bearer, may maintain actions for the sums of money therein mentioned, in like
manner as in cases of inland bills of exchange, and not otherwise.
47
CHAP. 32.] ( 186 ) [TITLE 7.
*
1 SEC. 5. Such notes made payable to the order of the maker thereof, or to the order of a fictitious person,
Effect when
jº ºrder - -
of maker, &c. e º a • * * º
- 2 shall, if negotiated by the maker, have the same effect, and be of the same validity as against the maker,
8 and all persons having knowledge of the facts, as if payable to bearer.
M. grace al- 1 SEC. 6. On all bills of exchange payable at sight, or at a ſuture day certain within this state, and on all
OW º * *
2 negotiable promisory notes, orders and drafts payable at a future day certain, within this state, in which
* £’ -
3 there is not an express stipulation to the contrary, grace shall be allowed, except as provided in the fol-
4 lowing section, in like manner as it is allowed by the custom of merchants, on foreign bills of exchange,
5 payable at the expiration of a certain period after date or sight.
1 SEC. 7. The provisions of the last preceding section shall not extend to any bill of exchange, note or draft
Notice if payable
on demand.
2 payable on demand.
1 SEC. 8. No person within this state shall be charged as an acceptor on a bill of exchange, unless his ac-
Acceptance to be
in writing.
2 ceptance shall be in writing, signed by himself or his lawful agent.
Ratcs of ex- 1 SEc. 9. Whenever any bill of exchange, drawn or endorsed within this state, and payable without the li-
change and da-
mages, when
payable without 2
É.e. 2 mits of the United States, shall be duly protested for non-acceptance or non-payment, the party liable for
3 the contents of such bill shall, on due notice and demand thereof, pay the same at the current rate of exchange
4 at the time of the demand, and damages at the rate of five per cent. upon the contents thereof, together with
5 interest on the said contents, to be computed from the date of the protest; and said amount of contents, da-
6 mages and interest, shall be in ſull of all damages, charges and expenses.
when payable 1 SEC, 10. The rates of damages to be allowed upon bills of exchange duly protested for non-acceptance or
in another state
of the U. States.
2 non-payment, if drawn or endorsed within this state, payable at any place without this state, but within the
3 United States, shall be as follows, in addition to the contents of such bill with interest and costs, that is to
4 say: upon all such bills payable within the territory of Wisconsin, or either of the states of Illinois, India-
5 na, Ohio or New York, three per cent, on the contents of the bill; if payable within either of the states of
6 Missouri, Kentucky, Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New
Chap. 38.] ( 187 ) [TITLE 7.
7
8
D.
Jersey, Pennsylvania, Delaware, Maryland, Virginia, or the District of Columbia, five per cent., and if
«ſ
payable elsewhere, within any other of the United States or the territories thereof, ten per cent.
6
CHAPTER 33. - §
OF LIMITED PARTNERSHIPS.
SECTION 1. Limited partnerships for the transaction of any mercantile, mechanical or manufacturing bu-
- For what purpo-
ses limited part-
© tº . º º - g nerships may be
siness, within this state, may be formed by two or more persons, upon the terms, with the rights and powers, formed.
and subject to the conditions and liabilities hereinafter provided; but nothing in this chapter contained shall
be construed to authorize any such partnership for the purposes of banking or insurances.
Sec. 2. Limited partnerships may consist of one or more persons, who shall be called general partners, Lumus, orgs.
neral and special
partners.
and who shall be jointly and severally responsible as general partners now are by law, and of one or more
persons who shall contribute a specific amount of capital, in cash or other property at an value, to the-
common stock, who shall be called special partners, and who shall not be liable for the debts of the partner-
ship, beyond the amount of the fund so contributed by them respectively to the capital, except as hereinaf-
ter provided.
JBy whom busi-
ness to be trans-
Sec. 3. The general partners only, shall be authorized to transact business, to sign for the partnership, and “
to bind the same.
SEc. 4. The persons desirous of forming such partnership, shall make and severally sign a certificate Certificate, it
rtl , its
‘COInter) {S.
*y,
which shall contain :
1 The name or firm under which the partnership business is to be conducted;
2. The general nature of the business to be transacted :
3. The names of all the general and special partners interned therein, distinguishing which are general
partners, and which are special partners, and their respective places of residence :
4. The amount of capital stock which each special partner shall have contributed to the common stock ;
and,
CHAP. 33 ( 188 ) & [TITLE 7.
How certificate
to be acknowl-
edged.
Certificate to be
º and record -
C(i.
When certificate
to be filed and
recorded in dif-
ferent counties.
Affidavit to be
filed with certifi-
Catc. -
Consequences of
false certificate,
&c.
Terms of part-
nership to be
published,
9 5. The period at which the partnership is to commence, and the period when it will terminate.
\
Sec. 5. Such certificate shall be acknowledged by the several persons signing the same, before some off
cer authorized by law to take the acknowledgment of deeds, and such acknowledgment shall be made and
certified in the manner provided by law for the acknowledgment of deeds for the conveyance of land.
SEc. 6. The certificate so acknowledged and certified shall be filed in the office of the county clerk of the
county in which the principal place of business of the partnership shall be situated, and shall be recorded
at length by the clerk in a book to be kept by him; and such book shall be subject, at all reasonable hours,
to the inspection of all persons who may choose to inspect the same.
SEc. 7. If the partnership shall have places of business situated in different counties, a transcript of such
certificate, and of the acknowledgment thereof, duly certified by the clerk in whose office it shall have been
filed, under his official seal, shall be filed and recorded in like manner, in the office of the clerk of every
such county, and the books containing such records shall be subject to inspection in the manner above di-
rected.
SEC, 8. At the time of filing of the original certificate and the acknowledgment thereof, as before directed,
an affidavit of one or more of the general partners shall also be filed in the same office, stating that the
amount in money, or other property at cash value, specified in the certificate to have been contributed by
each of the special partners to the common stock, has been actually, and in good faith contributed and ap-
plied to the same.
SEC. 9. No such partnership shall be deemed to have been formed until such certificate, acknowledg-
ment and affidavit, shall have been filed as above directed; and if any ſalse statement be made in such cer-
tificate or affidavit, all the persons interested in such partnership shall be liable for all the engagements
thereof, as general partners.
SEC. 10. The partners shall publish the terms of the partnership, when recorded, for at least six weeks,
immediately after the recording thereof, in two newspapers to be designated by the clerk of the county in
CHAP. 33.] ( 189 ) [TITLE 7.
3 which such record shall be made, and to be published in a senatorial district in which their business shall be
4 carried on ; and if such publication be not made, the partnership shall be deemed general.
1 SEC. 11. Affidavits of the publication of such notices, by the printers of the newspapers in which the
Affidavit of pub-
lication may be
2 same have been published, or some one in their employ knowing of such publication, may be filed with the filed, &c.
3 clerk directing the same, and shall be evidence of the facts therein contained.
1 SEC, 12. Upon the renewal or continuance of a limited partnership, beyond the time originally agreed up- º, of
- - - - partnersnip.
2 on for its duration, a certificate shall be made, acknowledged, recorded and published, in the like manner
3 as is provided in this chapter for the formation of limited partnerships; and the affidavit of one or more of
4 the general partners as above provided, shall also be filed with the proper county clerk as aforesaid ; and
5 every such partnership so continued, which shall not be renewed or continued in conformity with the pro-
6 visions of this section, shall be demed a general partnership.
1 Sec. 13. Every alteration which shall be made in the names of the partners, the nature of the business, ...' ...
- - lution, &c.
2 in the capital, or in the shares thereof, or in any other matter specified in the original certificate, shall be
3 deemed a. dissolution of such limited partnership, and every such partnership which shall in any way be
4 carried on after myº alteration shall have been made, shall be deemed a general partnership, unless
5 renewed as a special partnership, according to the provisions of the last preceding section.
1 Sec. 14. The business of the partnership shall be carried on under a firm in which the names of the
Names compos-
ing firm.
2 general partners only shall be inserted, without the addition of the word “company,” or any other general
3 term ; and if the name of any special partner shall be used in said firm, with his consent or privity, or if
4 he shall personally make any contract respecting the concerns of the partnership, with any person except
5 the general partners, he shall be deemed and treated as a general partner.
1 SEc. 15. During the continuance of the partnership under the provisions of this chapter, no part of the ca-
- . - t - - - Capital stock not
: - 4 - to be withdrawn,
2 pital stock thereof shall be withdrawn, nor any division of interest or profits be made so as to reduce said &c.
48
CHAP. 33.] - ( 190 ) [TITLE 7
When assign-
ment invalid.
Provisions rela
tive to assign-
ment, &c.
Suits how pros-
ecuted.
Dissolution of
limited partner-
ships.
3
2
3
capital stock below the sum stated in the certificate above mentioned; and if at any time during the contin-
uance, or at the termination of the partnership, the property or assets, shall not be sufficient to pay the
partnership debts, then the special partners shall severally be held responsible for all sums by them recei-
ved, withdrawn or divided with interest thereon from the time when they were so withdrawn or divided
respectively.
SEc. 16. No general assignment by such partnership of its property or effects, in case of insolvency, or
where their goods and estates are insufficient for the payment of all their debts, shall be valid unless it
shall provide for the distribution of all the partnership property and effects among all the creditors, in pro-
portion to the amount of their several claims; excepting claims of the United States, arising from bonds
on duties which are first to be paid or secured.
\
SEc. 17. In case oſ an assignment, as provided for in the last preceding section, the assent of the credi-
tors shall be presumed, unless they shall, within sixty days after notice thereof, dissent either expressly, or
by some act clearly implying such dissent; and no such assignment shall be valid, unless notice thereof
shall be published in some newspaper printed in the county, where the place of business of the parties ma-
king it is situated, or if no newspaper be printed in such county, then in some newspaper printed in an adjoin-
ing county, or at the seat of government, within fourteen days after making such assignment.
SEc. 18. All suits respecting the business of such partnership shall be prosecuted by and against the
general partners only, except in those cases in which provision is made in this chapter that the special part-
ners shall be deemed general partners, and that special ºnnethin shall be deemed general partnerships,
in which cases all the partners, deemed general partners, may join or be joined in such suits; and except-
ing also those cases where special partners shall be held severally responsible, on account of any sums by
them received, or withdrawn from the common stock, as above provided.
.*
Sec. 19. No dissolution of a limited partnership shall take place except by operation of law, before the
time specified in the certificate before mentioned, unless a notice of such dissolution shall be recorded in the
*ěstry in which such certificate or the certificate of renewal or continuance of the partnership, was record-
CHAP. 34.] ( 191 ) - [Trrºr 7
4 ed, and in every other registry where a copy of such certificate was recorded; and unless such notice shall
5 also be published six weeks successively in some newspaper printed in the county where the certificate of
6 the formation of such partnership was recorded; or if no newspaper shall, at the time of such dissolution,
7 be prime in such county, then in some newspaper printed in an adjoining county, or at the seat of govern-
Rights and liabil-
8 ment. ` ities of partners.
1 SEC. 20. In all cases not otherwise provided for in this chapter, the members of limited partnershipsshall {
2 be subject to all the liabilities, and entitled to all the rights of general partners.
CHAPTER 34.
f ac-
of Money of Account, AND of the INTEREST of Money AND on JudgMENTs, verdicts, etc. º. of as
1 SECTION. 1. The money of account of this state, shall be the dollar, cent, and mill; and all accounts in
2 the public offices, and all other public accounts, and all proceedings in courts, shall be kept and had in con-
3 formity with this regulation.
Note, &c., ex-
pressed in other
money of ac-
- Count to be re-
duced to dollars,
1 SEC. 2. Nothing contained in the preceding section, shall vitiate or affect any account, charge or entry, &c.
2 originally made, or any note, bond, or other instrument expressed in any other money of account ; but
3 the same shall be reduced to dollars and parts of a dolar, as herein before directed, in any suit thereupon.
Interest of Money. Raté of interest.
1 SEc. 3. The interest of money shall continue to be at the rate of seven dollars and no more upon one
2 hundred dollars for a year, and at the same rate for a greater or less sum, and for a longer or shorter
3 time; except that in cases of money loaned, it shall be lawful for the parties to stipulate in writing for the
4 payment of any rate of interest, not exceeding ten per cent per annum. --
- Usury,
1 SEC. 4. No bond, bill, note, contract or assurance, made or given for or upon a consideration or contract,
2 whereby or whereon a greater rate of interest has been, directly or indirecty, reserved, taken or received,
8 than is allowed by law, shall be thereby rendered void ; but in any action brought by any person on such
CHAP. 34.] ( 192 ) . [TITLE 7.
1843, p. 54.
When usury not
to affect negotia-
ble notes, &c.
Interest on judg-
ments and de-
CrCCS,
Interest on ver-
dicts, &c.
4 usurious contract or assurance, except as is provided in the following section, if it shall appear that a great-
5 er rate of interest has been, directly or indirectly reserved, taken or received than is allowed by law, the
1
plaintiff shall have judgment for the principal and legal interest only, exclusive of the usury.
Sec. 5. In any action brought on any bill of exchange or promissory note payable in money, and to order
or bearer, originally given or made for or upon any usurious consideration or contract, if it shall appear
that the plaintiff became, in good faith the indorsee or holder of such bill of exchange or promisory note,
4 for a valuable consideration, then and in such case, unless it shall further appear that the plaintiff, at the
5
l
4
time of becoming such indorsee or holder, had actual notice that such bill or note was given for or upon a
usurious consideration or contract, he shall be entitled to recover thereon, in the same manner, and to the
same extent as if such usury had not been alledged and proved.
Interest on Judgments, Verdicts, &c.
SEC. 6. Interest may be allowed and received upon all judgments at law, for the recovery of any sums
of money, and upon all decrees in chancery for the payment of any sums of money, whatever may be the
form or cause of action or suit in which such judgment or decree shall be rendred or made ; and such in-
terest may be collected on execution.
SEC. 7. In all actions founded on contracts express or implied, whenever in the prosecution thereof any
amount in money shall be liquidated or ascertained in favor of either party, by verdict, report of referees,
award of arbitrators, or by wºmen made by the clerk of º court, or by any other mode of assess-
ment according to law, it shall be lawful, unless such verdict, report, award, or assmen shall be set aside,
to allow and receive intern upon such amount so ascertained or liquidated, until rºmant thereof, or un-
til judgment shall be thereupon rendered; and in making up and recording such judgment, the interest on
such amount shall be added thereto, and included in the judgment.
CHAP. 35.] - ( 193 ) - s [Title 8.
TITLE VIII.
OF THE PUBLIC HEALTH.
CHAPTER 35—Of the Preservation of the Public Health—Quarantine, Nuisances and Offensive
--> Trades.
M & 36—Of Medical Societies, and Regulations concerning the Practice of Physic and Sur.
gery.
CHAPTER 35.
\
of THE PRESERVATION OF THE PUBLIC HEALTH-QUARANTINE–NUIsANCEs, and offensive
TRADES. - -
1 SECTION 1. The supervisor and justices of the † acti * i-
p J peace of every township respecting which no other provi-pºrno, hºle.
2 sign is or shall be made by law, shall be a board of health ſor their respective townships, and the township
*
3 clerk shall be the clerk of such board, and shall keep a record of their proceedings in a book to be provi-
4 ded for that purpose at the expense of the township.
$
1 Sec. 2. Every board of health may appoint a physician to the board, who shall be the health officer of
Appointment of
health officer,
* * . . . e - & * º {} his compensa-
2 his townslºp, and shall hold his office during their pleasure, and they shall establish his salary, or other tion, &c.
3 compensation, and shall regulate all ſees and charges of every person employed by them in the execution
4 of the health laws, and of their own regulations.
1 Sec. 3. The board of health shall make such regulations respecting nuisances, sources of filth, and causes
Regulations ré-
tº _ tº tº , - 4 e • e lating to causes
2 of sickness, within their respective townships and on board of any vessels in their ports or harbors, as they "º".
3 shall judge necessary ſor the public health and safety, and if any person shall violate any such regulations,
4 he shall forfeit a sum not exceeding one hundred dollars.
1 SEc. 4. The said board shall also make such regulations as they may deem necessary for the public
e e * e tº ſº * & tº Respecting arti-
2 health and safety, respecting any articles which are capable of containing or conveying any infection or j
C tº
tagion, &c.
3 contagion, or of creating any sickness, when such articles shall be brought into, or conveyed from their
49
Char. 35.] ( 194 ) [TITLE 8.
4 township, or into or from any vessel; and if any person shall violate any such regulation, he shall ſorſeit a
5 sum not exceeding one hundred dollars.
1 SEC. 5. The said board shall also make all regulations which they may deem necessary for the interment
Respecting inter- - . -
ment of dead. *
wa
2 of the dead, and respecting burying grounds in their township ; and it shall also be the duty of said board
3 to purchase in each surveyed township, so much land ſor burying-grounds as shall be necessary ſor burying
4 the dead of such township.
Board to hold 1 SEc. 6 The board of health of the township in which such burying-grounds shall be, and their successors
oard to ho .*
ground iu trust,
&c.
2 in office, shall hold the ſee of such land in trust for such township ; and they shall keep the same or so
3 much thereof as shall be necessary, surrounded with a good and substantial fence ; the expenses of the
4 purchase of such lands, and of fencing and regulating the same to be paid by the township.
1 SEC. 7. Notice shall be given by the board of health, of all regulations made by them, by publishing the
Notice of regu-
lation how pub- * & e g
lished. 2 same in some newspaper of the township, iſ there be ore published therein, and if not, then by posting them
3 up in five public places in such township; and such notice of said regulations shall be deemed legal notice
4 to all persons.
1 SEc. 8. The board of health shall examine into all nuisances, sources of filth and causes of sickness that
Board to exam-
ine into nuisan- 2
ces, &c., and de-
stro V, reinovc or &
prevent the
Stull C.
may in their opinion be injurious to the health of the inhabitants within their township, or in any vessel
3 within any harbor or port of such township; and the same shall destroy, remove, or prevent, as the case
-º-,
4 may require.
1 Sec. 9. Whenever any such nuisance, source of filth, or cause of sickness shall be ſound on private pro-
Proceedings, if
ºuisinge.º. 2 perty, the board of health shall order the owner or occupant thereof, at his own expense, to remove the
found on plivule
properly.
3 same within twenty-four hours; and if the owner or occupant shall neglect so to do, he shall forfeit a sum
4 not exceeding one hundred dollars.
1 Sec. 10. If the owner or occupant shall not comply with such order of the board of health, such
CHAP. 35.] e ( 195 ) [TITLE 8.
2
l
4.
board may cause the said nuisance, source of filth or cause of sickness to be removed, and all *Penses when nuisance,
* &c., to be remo-
ved by board at
incurred thereby shall be paid by the said owner or occupant, or by such other person as shall have caus-ººººººw'-
ed or permitted the same.
Sec. 11. Whenever any person shall be convicted on an indictment for a common nuisance that may be
Court may order
nuisance remov-
injurious to the public health, the court may in its discretion, order it to be removed or destroyed at the ex- i.” “
pense of the deſendant, under the direction of the board of health of the towhnship where the nuiance is
found; and the form of the warrant to the sheriff or other officer may be varied accordingly.
SEc. 12. Whenever the board of health shall think it necessary for the preservation of the lives or health Proceed’g when
admittance of
board, &c., is
e . a * * * gº e g tº º e fused.
of the inhabitants, to enter any building or vessel in their township, for the purpose of examining into, and “
&
destroying, removing or preventing any nuisance, source of filth or cause of sicknesss, and shall be refused
such entry, any member of the board may make complaint, under oath to any justice of the peace of his
county, whether such justice be a member of such board or not, stating the facts of the case, so far as he
has knowledge thereof.
Sec. 13. Such justice may thereupon issue a warrant, directed to the sheriff or any constable of the
- Ib.
county, commanding him to take sufficient aid, and being accompanied by any two or more members of said
board of health, between the hours of sunrise and sunset, to repair to the place where such nuisance, source
of filth, or cause of sickness complained of may be, and the same destroy, remove or prevent, under the di-
rection of such members of the board of health,
Sec. 14. The board of health may grant permits for the removal of any nuisance, inſected article or sick
Board may per-
mit renoval of
* * * & E. º & t e ii.fe:ted articles,
person, within the limits of their township, when they shall think it safe and proper so to do. ºted aruele,
© .
SEc. 15. When any person coming from abroad, or residing in any township within this state, shall be in-
* ſ}oard to mako
A C * - e e p ; , , !- O” sº provisions 10
ſected, or shall lately before have been inſected with the small pox or other sickness dangerous to the pub §§.
of sluatl:pox,&x.
lic health, the board of health of the township where such person may be, shall make effectual provision in
the manner in which they shall judge best for the safety of the inhabitants, by removing such sick or infec-
CHAP. 35.] .
( 196 ) [TITLE 8.
Provision in
case infected
ersons (::Un not
e reindved.
Iłoard may re-
strain travellers
coming from in-
ſected districts.
Removal of per-
sons infected.
Infected bng-
guge, clothing,
and goods, how
secured.
5
2
*
ted person to a separate house, if it can be done without dunger to his health, and by providing nurses and
other assistance and necessaries, which shall be at the charge of the person himself, his parents, or other
person who may be liable for his support, if able; otherwise, at the charge of the county to which he be-
longs.
SEc. 16. If any such infected person cannot be removed without danger to his health, the board of health
shall make provision for him as directed in the preceding section, in the house in which he may be, and in
such case they may cause the persons in the neighborhood to be removed, and may take such other meas-
ures as they may deem necessary ſor the safety of the inhabitants.
SEC. 17. The board of health of any township near to, or bordering upon either of the neighboring states,
may appoint by writing under their hands, suitable persons to attend any places by which travelers may
pass from inſected places in other states; and the persons so appointed may examine such passengers as
they may suspect of bringing with them any infection which may be dangerous to the public health, and
if need be, may restrain them from traveling until licensed thereto by the board of health of the township
to which such persons may come ; and any person coming from such inſected place, who shall without li-
cense as aſoresaid, travel within this state, unless it be to travel by the most direct way to the state from
whence he came, aſter he shall be cautioned to depart by the persons appointed as aſoresaid, shall forfeit a
sum not exceeding one hundred dollars.
Sec. 18. Any two justices of the peace may, if need be, make out a warrant under their hands, directed
to the sheriff or any constable of the county, requiring him, under the direction of the board of health, to
remove any person inſected with contagious sickness, or to impress and take up convenient houses, lodgings,
nurses, attendants, and other necessaries for the accommodation, safety and relief of the sick.
SEc. 19. Whenever, on the application of the board of health, it shall be made to appear to any justice
of the peace, that there is just cause to suspect that any baggage, clothing, or goods of any kind ſound with-
3 in the township, are inſected with any disease which may be dangerous to the public health, such justice of
4
the peace shall by warrant under his hand, directed to the sheriff or any constable of the county, require
CHAP. 35.] ( 197 ) [TITLE'8.
5
6
7
4
him to take with him as many men as the said justice shall deem necessary to secure such baggage, cloth-
ing, or other goods, and to post said men as a guard over the house or place where such baggage, clothing,
or other goods shall be lodged, which guard shall take effectual care to prevent any person removing or com-
ing near to such baggage, clothing, or other goods, until due inquiry be made into the circumstances
thereof.
SEc. 20. The said justice may also, by the same warrant, if it shall appear to him necessary, require the Impressing hou
ses, &c., for
º iufected .
tº g © g - .” e goods.
said officer, under the direction of the board of health, to impress and take up convenient houses or stores,
for the safe keeping of such baggage, clothing, or other goods; and the board of health may cause them
to be removed to such houses or stores, or to be otherwise detained until they shall in the opinion of said
5 board of health, be freed from inſection.
SEc. 21. Such officer, in the execution of such warrant, shall, if need be, break open any house, shop, or
Power of officer
any other place mentioned in said warrant, where such baggage, clothing or other goods shall be ; and he:"; "-
may require such aid as shall be necessary to effect the execution of the warrant; and all persons shall, at
the command ot any such officer, under a penalty not exceeding ten dollars, assist in the execution of the
warrant, iſ able to do so.
SEc. 22. The charges of securing such baggage, clothing, or other goods, and of transporting and purify-
Charges to be
ſº • - g g paid by owner.
ing the same, shall be paid by the owner or owners thereof, at such rates and prices as shall be determined
by the board of health.
SEC. 23. Whenever the sheriff or other officer shall impress or take up any houses, stores, lodgings, or
- - Compensation
~~ “; tº e º * ... for houses, nur-
other necessaries, or shall impress any nurse or attendants, as provided in this chapter, the several parties ...".”"
interested shall be entitled to a just compensation thereſor, to be paid by the county in which such persons
or property shall have been so impressed or taken up.
SEC. 24. Whenever any person confined in any common jail shall be attacked with any disease, which, in
* * tº º & ſº When prisoners
the opinion of the physician of the board of health, or of such other physicians as they may consult, shall ::::::::::
- angerous dis-
- - - ease, may be re-
* = * t - in oved.
50
CHAP. 35.] ( 198 ) [TITLE 8.
3 be considered dangerous to the safety and health of the other prisoners, or of the inhabitants of the town-
4
ship,the board of health shall, by their order in writing, direct the removal of such person to some hospital or
5
other place of safety, there to be provided for and securely kept, so as to prevent his escape, until their
O
further orders; and if such prisoner shall recover from the disease, he shall be returned to such jail.
1 SEC. 25. If the person so removed shall have been committed by order of any court, or under any judicial
Prisoners remo-
ved to be return- sº * * * *
º: * be 2 process, the order for his removal, or a copy thereof, attested by the presiding member of said board of
having escaped.
3 health, shall be returned by him, with the doings thereon, into the office of the clerk of the circuit court
4 for the county; and no prisoner removed as aforesaid shall be considered as thereby having committed an
5 escape.
1 SEc. 26. Whenever any pestilence or contagious disease shall break out in any county poor-house in this
When superin- - .
tendents of poor
may remove
º 2 state, or in the vicinity thereof, and the physician to such county poor-house, or such other physician as the
3
superintendents may consult, shall certify that such pestilence or disease is likely to endanger the health of
4 the persons supported at such poor house, the superintendents of such county poor house shall cause the
5
persons there supported, or any of them, to be removed to some other suitable place in the same county,
6 and there to be maintained and provided for at the expense of the county, with all necessary medical at-
7 tendance and care, until they can safely be returned to such poor house, or otherwise discharged.
Quarantine.
Township qua- Sec. 27. Any township may establish a quarantine ground in any suitable place, either within or without
rantine.
2
its own limits; provided, that if such place shall be without its limits, the assent of the township within
3 whose limits it may be established, shall be first obtained therefor.
Quarantine for
tWO Or more
townships.
1 Sec. 28. Any two or more townships may, at their joint expense, establish a quarantine ground for their
2 joint use, either within or without their own limits; provided that if such place shall be without their
3 limits, they shall first obtain the assent of the township within whose limits the same may be.
1 Sfc. 29. The board of health in each township in this state bordering upon lake Michigan, lake Superior,
CHAP. 35.] ( 199 ) - [TITLE 8
2
3
2
7
f
lake Huron, lake St. Clair or lake Erie, or upon any of the principal rivers or straits connecting together
Quarantine in
township bor-
º & © tº , e. g - & d & t i
any of the said lakes, or bordering upon any navigable waters uniting with any of the said lakes, rivers or ...";..."
straits, may from time to time establish the quarantine to be performed by all vessels arriving within the
limits of such townships, and may make such quarantine regulations as they shall judge necessary for the
health and safety of the inhabitants.
SEC. 30. The quarantine regulations so established, shall extend to all persons, and all goods and effects, quarantine reg-
ulation 8 to ex-
tend to persons
. . e tº e and goods in
arriving in such vessels, and to all persons who may visit or go on board of the same. Vessels.
Sec. 31. The said quarantine regulations, aſter notice shall have been given in the manner before provided
Penalty for vio-
ſº te lating quaran-
in this chapter, shall be observed and complied with by all persons; and any person who shall violate any "****
such regulations, shall forfeit a sum not less than five dollars, and not more than five hundred dollars.
SEc. 32. The board of health in each township bordering upon any of the lakes, rivers straits, or other
Vessels in cer-
tain cases to be
gº * & Qº • * to ºn tº * removed to qua-
navigable waters hereinbefore mentioned, may at all times cause any vessel arriving within the limits of the gºne ground,
township, when such vessel or the cargo thereof shall, in their opinion, be ſoul or infected, so as to endanger
the public health, to be removed to the quarantine ground, and to be thoroughly purified, at the expense
of the owners, consignees, or persons in possession of the same , and they may also cause all persons arri-
ving in or going on board of such infected vessel, or handling such infected cargo, to be removed to any
hospital under the care of the said board of health, there to remain under their orders.
SEc. 33. If any raaster, seaman or passenger, belonging to any vessel on board of which any inſection
- Master, &c., to
tº * answer on oath
may then be, or may have lately been, or which may have been at, or which may have come from, any ºº:: * *
port or place where any infectious disease prevails, that may endanger the public health, shall refuse to
answer on oath, to be administered by any member of such board, such questions as may be asked him, re-
lating to such infection or disease, by any member of the board of health of the township to which such
vessel may come, such master, seaman or passenger so refusing, shall forfeit a sum not exceeding two hun-
dred dollars; and in case he shall not pay such sum, he shall suffer six months imprisonment.
Chap. 85 J …” ( 200 ) - [TITLE 8.
Expenses, by
whom to be
paid.
Hospitals for re-
ception of per-
sons having
Small pox, &c.
By whom hospi-
tals to be regula-
ted, &c.
Penalty for in-
oculating with
Small pox, ex-
cept at hospitals.
Physicians, &c.,
to be subject to
rcgulations of
board, &c.
When board of
health to provide
hospital.
When infected
persons to be re-
moved to hospi-
tal, &c.
1 SEC. 34. All expenses incurred on account of any person, vessel or goods, under any quarantine regula.
2 tions, shall be paid by such person, or by the owner of such vessel or goods respectively.
Small Poa, and other Dangerous Diseases.
1 Sec. 35. The inhabitants of any township may establish within their township, and be constantly provided
2 witn, one or more hospitals for the reception of persons having the small pox, or other disease which may
3 be dangerous to the public health.
1 SEC. 36. All such hospitals shall be subject to the orders and regulations of the board of health or a com-
2 mittee appointed by such board for that purpose ; but no such hospital shall be established within one hun-
3 dred rods of any inhabited dwelling house situated in an adjoining township, without the consent of such
4 adjoining township.
1 SEC. 37. If any person shall inoculate any other person, or inoculate himself, or suffer himself to be inoc-
2 ulated with the small pox, unless at some hospital licensed and authorized by law, he shall for each offence
3 forfeit a sum not exceeding two hundred dollars.
SEc. 38. When any hopsital shall be so established, the physician attending the same, the persons inocu-
2 lated or sick therein, the nurses, attendants and all persons who shall approach or come within the limits of
3 the same, and all such ſurniture and other articles as shall be used or brought there, shall be subject to such
4 regulations as shall be made by the board of health, or of the committee appointed for that purpose.
1 SEC. 39. When the small pox, or any other disease dangerous to the public health, shall break out in any
2 township, the board of health shall immediately provide such hospital or place of reception for the sick and
3 inſected, as they shall judge best ſor their accommodation, and the safety of the inhabitants ; and such hospi-
4 tals and places of reception, shall be subject to the regulations of the board of health, in the same manner
5 as hereinbefore provided ſor established hospitals.
1 Sec. 40. The board of health shall cause such sick or infected persons to be removed to such hospitals or
2 places of reception, unless the condition of the sick person be such as not to admit of removal without dan-
Chap. 35.] - ( 201 ) [TITLE 8.
3
4
4
ger of life ; in which case the house or place where the sick shall remain, shall be considered as a hospital
to every purpose before mentioned, and all persons residing in, or in any way concerned with the same,
shall be subject to the regulations of the board of health as before provided.
SEc. 41. When the smail pox, or any other disease dangerous to the public health, is ſound to exist in iºn
- O
- - §§s.
& • * e €3.86.
any township, the board of health shall use all possible care to prevent the spreading of the infection, and
to give public notice of infected places to travellers, by such means as in their judgment shall be most
effectual for the common safety.
Sec. 42. If any physician or other person, in any of the hospitals or places of reception before mention-
Penalty for vio-
lating regulation
ed, or who shall attend, approach, or be concerned with the same, shall violate any of the regulations law- of hospitals.
fully made in relation thereto, either with respect to himself, or his or any other person’s property, the per-
son so offending shall, for each offence, forfeit a sum not less than ten nor more than one hundred dollars.
SEc. 43. Whenever any householder shall know that any person within his ſamily is taken sick with the
Householders to
e º . . . :- º e ive notice of
small pox, or any other disease dangerous to the public health, he shall immediately give notice thereof to #ºly
for neglect.
the board of health, or to the health officer of the township in which he resides; and if he shall refuse or
neglect to give such notice, he shall forfeit a sum not exceeding one hundred dollars.
Sec. 44. When any physician shall know that any person whom he is called to visit, is inſected with the
* - g tº º * º Penalty on phy-
small pox, or any other disease dangerous to the public health, such physician shall immediately give no- º:
to give notice.
tice thereof to the board of health or health officer of the township in which such diseased person may be:
and every physician who shall refuse or neglect to give such notice, shall forfeit for each offence, a sum
not less than fifty, nor more than one hundred dollars.
SEC. 45. Every township may, at any meeting, make suitable proyision for the inoculation of the inhabi-
Inoculation with
e * tº COW DOX.
tants thereof with the cow pox, under the direction of the board of health, or the health officer of the town- p
sihp, and they shall raise all necessary sums of money to deſray the expenses of such inoculation, in the
same manner that other township charges are defrayed.
51
CHAP. 35.] ( 202 ) - [TITLE 8.
Offensive Trades.
Places may he
assigned for car-
rying on offen-
Sive trades.
1 SEC. 46. The township board of every township, the president and trustees, or council of every village
2 and the mayor and aldermen of every city, respectively, when they shall judge it necessary, shall from time
3 to time assign certain places for the exercising of any trade or employment, offensive to the inhabitants, or
4 dangerous to the public health ; and they shall forbid the exercise thereof in places not so assigned ; and all
5 such assignments shall be entered in the records of the township, village or city, and they may be revoked
6 when the said township, village, or city officers may think proper.
1 SEC. 47. When any place or building so assigned shall become a nuisance by reason of offensive smells
; 2 or exhalations proceding therefrom, or shall become otherwise hurtful or dangerous to the neighborhood or
3 to travellers, and the same shall be made to appear on a trial, or the admision of the person exercising
4 such trade or employment, before the circuit cour for the county, upon a complaint made by the board of
5 health, or by any other person, the said court may revoke such assignment, and prohibit the further use of
6 such place or building for the exercise of either of the aforesaid trades or employments, and may cause such
7 nuisance to be removed or prevented.
1 SEC. 48. Any person injured, either in his comfort, or the enjoyment of his estate, by any such nuisance,
Action on the
3. *. te te * e &
gos. 2 may have an action on the case for the damages sustained thereby, in which action the defendants may plead
3 the general issue, and give any special matter in evidence.
Boards of Health in Cilies and Villages.
1 SEC. 49. The mayor and aldermen of each incorporated city, and the president and council, or trustees,
Who to consti-
tute board in ci-
ties and villages. 2 of each incorporated village in this state, shall have and exercise all the powers, and perform all the duties
3 of a board of health as provided in this chapter, within the limits of the cities or villages respectively, of
4 which they are such officers.
CHAP. 36.] ( 203 ) [TITLE 8
CHAPTER 36.
OF MEDICAL SOCIETIES, AND REGULATIONs concerNING THE PRACTICE OF PHYSIC AND SURGERY.
1 Section 1. The medical society which was incorporated within the late territory of Michigan, by the state medical
society continu-
ed.
2 name and style of “The Medical Society of the Territory of Michigan,” shall continue to be a body poli-
3 tic and corporate under the name and style of “The Medical Society of the State of Michigan,” and by
4 that name shall be capable in law of suing and being sued, pleading and being impleaded, answering and
5 being answered unto, defending and being defended in all courts and places, and in all causes and matters
Laws of Michi-
gan, 1827, p. 530.
6 whatsoever, and shall have and use a common seal, and may alter the same at pleasure; and may annual-
7 ly elect by ballot, a president, vice president, secretary and treasurer, who shall hold their offices for one
8 year, and until others are elected in their places.
1 Sec. 2. The physicians and surgeons in the several counties within this state, may meet together in their physicians and
surgeons in
counties may
* & . . . . . º * * meet and choose
2 respective counties, on such day, and at such place within such counties as a majority of them shall deem officers, &c.
3 proper; and the said physicians and surgeons, or any of them, not being less than four in number, being
so assembled, may choose by ballot, a president, vice president, secretary and treasurer, who shall hold
5 their offices for one year, and until others shall be chosen in their places.
1 SEc. 3. When such societies shall be so organized, they shall each be a body politic and corporate, in
fact and in name, by the name of “the medical society of the county of ” (the name of the county to be logies cor-
p
orate, &c.
where formed,) and by such name shall be capable in law of suing and being sued, pleading and being
impleaded, answering and being answered unto, defending and being defended in all courts and places, and
5 in all causes and matters whatsoever.
SEC. 4. No physicians and surgeons shall be authorized to form a county medical society under the pro-
Physicians and
e e © e tº g º º e surgeons to be in
2 visions of this chapter, except such as shall be in regular standing in the medical society of this state, or regular standing.
in some county medical society organized according to law.
SEc. 5. All the county medical societies heretofore incorporated and established under the provisions of
Medical societies
heretofore incor-
2
e e º e e o º d, b-
the revised statutes of this state, are hereby established and confirmed in all their rights, privileges, autho- . ãºn.
rrn 6(1.
County societics
CHAP. 36.]
( 204 ) [TITLE 8.
Annual nieet-
Ings.
Examination of
students, and
granting of di-
plomas.
When applicant
rejected, not to
be admitted
within six
months.
When applicant
rejected by state
In edieal society,
not to be licens'd
by county socie-
1V.
Censors to be
appointed, their
oath ,
3.
I
2
4
1
rities and powers, subject to the provisions hereinafter contained, respecting the county medical societies.
SEc. 6. The county medical societies heretofore incorporated, or which shall hereafter be incorporated
may at their first meetings to be holden under the provisions of this chapter, agree upon the times and pla-
ces of holding their annual meetings; but such times and places may be changed by said societies respect-
ively, at any annual meeting, by a vote of a majority of all the members of the society, and the secretary
of each of said societies shall lodge in the office of the clerk of the proper county, a copy of all the pro-
ceedings had at the first meeting thereof, and said clerk shall file and preserve the same, and may receive
therefor twelve and a half cents.
Sec. 7. The medical societies established as aſoresaid, may examine all students who shall present them-
selves for that purpose, and if found qualified, may license them to practice as physicians and surgeons,
and give diplomas therefor, under the hand of the president and the seal of the society before whom such
students shall be examined; which diploma shall be sufficient to authorize the person obtaining the same, to
practice physic or surgery, or both, as shall be set forth in such diploma, in any part of this state.
SEc. 8. Any student of medicine who shall present himself to the censors of either of the county medical
societies for examination, and shall be found unqualified for the practice of physic and surgery, shall, not
be admitted to another examination before the censors of any medical society, within six months after the
time he shall have been found unqualified as aforesaid ; but such applicant may in all cases in which he
may think himself aggrieved, appeal to the censors of the medical society of the state.
SEc. 9. When any student shall have been examined by the censors of the medical society of the state,
and rejected, he shall not at any time thereaſter be examined or licensed by any county medical Society,
but shall in all such cases make application thereafter to the state medical society for examination and li-
cense ; and any license obtained contrary to the provisions of this chapter shall be absolutely void.
SEc. 10. Each of the medical societies aforesaid, may at its annual meeting, appoint not less than three,
nor more than five censors, to continue in office ſor one year, and until others are chosen in their places,
CHAP. 36.] º ( 205 ) [TITLE 8.
3 who shall take an oath that they will carefully and impartially examine all students who shall present
4 themselves for that purpose, and report their opinions in writing to the president of the society.
1 SEc. 11. No person shall commence the practice of physic and surgery within this state, until he shall
Who shall not
wº- practice.
have passed an examination and received a diploma from one of the said societies, or unless he shall have
2
3 been admitted a member of one of said societies upon evidence of his having pursued a regular course of
*
study as a student of medicine, and received a diploma as a doctor of physic, from some medical society or
5 institution of some other state or country, authorized by law to confer such degree.
1 Sec. 12. If any person shall commence the practice of physic or surgery in this state contrary to the
Disability to sue
º º tº * > e for or collect
2 provisions of the preceding section, or after his license shall have been annulled, he shall be incapable of ...
3
suing for or collecting any debts or charges in any court, incurred or charged for or by reason of any such
practice.
4
Sec. 18. The said medical societies may severally purchase and hold for the use of said societies re-
1
To what amount
spectively, real and personal estate; but the medical society of the state shall not hold such estate to an i.
- personal estate.
2
3
amount exceeding twenty-five thousand dollars, nor shall any county medical Society hold such estate to an
4 amount exceeding five thousand dollars.
1 SEc. 14. No person under the age of twenty-one years, shall be licensed to practice as a physician or sur-No person um-
der twenty-one
years of age to
2 geon in this state. - be licensed.
1 SEC. 15. Each medical student, who shall apply for a license to practice as a physician and surgeon, shall
When applica-
2 tion for license
make such appication to the medical society of the county where he resides, or where he pursued his stud.” made.
3
ies; and if there be no medical Society in such county, he shall make his application to the state medical
4 society.
l
SEC. 16. The censors of a county medical society, shall not in any case proceed to examine any appli-
52
CHAP. 36.] ( 206 ) [TITLE 8.
All the censors
to be notified of
application. .
When melmber
may be suspend-
ed, and his li-
cense annulled.
2
3
l
2
3
4
cant for such license, unless all the censors of the society shall have been duly notified of the application,
and also of the time and place of the examination; nor unless a majority of such censors shall be present.
*
*
SEC. 17. Upon complaint in writing, filed with any county medical society, charging any member of such
society with any infamous crime, habitual drunkenness, or with gross ignorance, immorality, or incompe-
tency, such society, at any regular meeting, may proceed to investigate such complaint, and if upon such
investigation, and due proof of the facts so charged, the person complained of shall be found guilty by a
5 vote of two-thirds of all the members present, such society may suspend such person from further mem-
6 bership, and may annul the license of such person.
1
Notice to person
charged.
Evidence on ex-
amination, and
appeal to state
society.
When com-
plaint, &c., to be
certified and
transmitted.
Subpoenas for
WitneS86.S.
2
2
Sec. 18. No investigation of such charges shall be made until after due notice to the person charged,
of the filing of such charges, and a copy of such charges shall first have been given to the person com-
plained of, at least thirty days before the day when such investigation shall take place.
sº 19. The evidence given on such investigation shall be on oath, which may be administered by the
president of the society, or any justice of the peace, and shall be reduced to writing, and filed with the re-
cords of the society; and if the person suspended shall conceive himself aggrieved by the decision of the so-
ciety, he may appeal to the state medical society, and the said state medical Society shall thereupon, at some
regular meeting, inquire into m examine the proceedings of the county medical society on such complaint,
and may, when they shall deem it proper, annul such suspension, and restore to the person suspended, all
the rights and privileges of a licensed physician and surgeon.
SEc. 20. On such appeal being claimed, such county medical society shall forthwith cause a copy of the
2 said complaint and charges, together with a copy of all the evidence, and the proceedings of such society
thereon, to be certified by their secretary, and sent to the president of the state medical society.
SEC. 21. On the investigation of any charges, as provided in this chapter, the president of the county me-
dical Society before which the same may be had, may, on application made to him for that purpose, issue
subpoenas to compel the attendance of any witnesses residing within this state, which subpoenas shall be
CHAP. 36.] ( 207 ) - [TITLE 8.
4 tested in the name of such president, and signed by the secretary of such society, and may be served and re-
5 turned by any proper officer of the county, or by any other person.
**
1 Sec. 22. If, upon due service of such subpoena, and payment or tender of the fees allowed by law for at-
Penalty, &c., for
- disobeying sub-
* º e e €IlāS.
2 tendance upon courts of record, any witness shall neglect or refuse, without sufficient cause, to appear at poenas
3 the time and place specified in such subpoena, he shall forfeit the sum of twenty-five dollars, and shall also
4 be liable to the party aggrieved for all damages occasioned by such neglect or refusal.
*
1 SEc. 23. Any county medical Society, at any regular meeting, may remove and annul any suspension
- When suspen-
sion may be an-
nulled by county
2 which may have been made by such society, by a vote of two-thirds of all the members present, provided society.
3 notice of the intended motion to remove such suspension shall have been given at a previous meeting of the
4 society.
1 SEC. 24. Each medical society may make such by-laws and regulations, relative to the affairs, concerns,
By-laws and re-
& & © º º * e e gulations,
2 and property of the society, and relative to the admission and expulsion of its members, as a majority of
3 the members thereof, at their annual meeting, shall think proper, provided such by-laws and regulations
4 shall not be contrary to, nor inconsistent with the laws of this state.
sº
1 Sec. 25. The treasurer of each medical society shall receive, and be accountable for all moneys that may
- Treasurer.
2 come into his hands by virtue of the by-laws, and all that may be paid for the admission of members, or li-
3 censing students; and the treasurer shall account for such moneys to the society, at its annual meetings;
4 and no money shall be drawn from the treasury of the society, unless by a vote or order of the society,
5 and on the warrant of the president.
1 SEC, 26. The secretary of each medical society shall keep a book, in which he shall enter all the resolu-
Secretary.
2 tions and proceedings of the society, the name of each member, the time of his admission, the annual re-
3 ports of the state of the treasury, and all such other things as the society may direct, to which book every
4 member of the society may at all times have access; and the said secretary shall deliver all books, papers,
5 and records belonging to the society, and under his care and control, to his successor in office.
CHAP. 36 ) ( 208 )
[TITLE 8.
Moneys may be
raised, for what
purposes.
Admission fees.
Election of
members of
state society.
Copy of license
to be deposited
with clerk of
county.
When physi-
cians, &c., inay
associate theim-
sclves with soci-
cty in adjoining
county.
Vice president to
perform duties
of president.
Bodies of certain
criminals to be
delivered to
county societies.
1 SEc. 27. Each medical society may cause to be raised and collected from each member thereof, a sum not
2 exceeding three dollars in a year, for the purpose of procuring a medical library, and for the encourage.
3 ment of useful discoveries in chemistry and botany, and such other improvements as the society may think
4 proper.
1 SEC. 28. Each student on receiving a diploma from the state medical society, shall pay to the president
2 thereof ten dollars, and on receiving a diploma from any county medical society, each student shall pay to
3 the president thereof five dollars; which sums the president shall pay to the treasurer of said societies re-
4 spectively.
1 SEC. 29. The state medical Society may elect by ballot, at its annual meeting, eminent physicians and ser-
2 geons residing within this state, which persons so elected, shall be permanent members of the society, and
3 entitled to all the privileges of the same ; but no more than two such members shall be elected in any one
4 year, and such members shall not receive for their attendance any compensation from the funds of the so-
5 ciety.
1 SEC. 30. All persons who may hereafter be licensed as physicians or surgeons, within this state, shall de-
2 posite a copy of such license with the clerk of the county in which such practitioner may reside ; and ſor
3 filing such copy, the clerk shall be entitled to receive twelve and a half cents.
1 SEC. 31. If there shall not be a sufficient number of physicians and surgeons in any county to form
2 themselves into a medical society under the provisions of this chapter, the physicians and surgeons re-
3 siding in such county, may associate themselves with a medical society in an adjoining county.
1 SEC. 32. In case of the death, resignation, removal or absence of the president of any medical Society,
2 the vice president may, for the time being, perform all the duties, and exercise all the powers of the pres-
3 ident.
1 Sec. 33. In each county of this state in which a county medical society shall be established according to
2 the provisions of this chapter,the keeper of the jail of such county shall deliver to any agent of said society,
Char: 36.] - º 3:09 ) Tºrts &
3 on the presentation of an order signed by the president thereof, the bodies of all criminals who shall die in
4 such jail under sentence of six months imprisonment, of more, unless the friends or relation. of the deceas. 1814, p. 73.
B. ed shall claim the same for interment, or unless the criminal or his friends shall have made provision for his
6 burial.
*
1 SEc. 34. The officers of the state prison shall deliver to any agent of the medical society of the state, on Bodies of ce; ,
tain criminals to
be delivered to
g e e – o * s state society.
2 the presentation of an order signed by the president of such society, the bodies of all criminals who shall
3 die in said prison; unless the friends or relatives of the deceased shall claim the same for interment,or un-
1844, p. 73.
4 less the criminal or his friends shall have made provision for his burial.
1 SEC. 35. Whenever the medical department of the university of Michigan shall be organized, said depart-
When medical
department of
2 ment shall be entitled to the exclusive privilege conſerred upon the medical society of the state by the pre- §§
1844, p. 73.
3 ceding section.
1 SEc. 36. The officers of the state medical society, and the officers of the several county medical societies,
Who to be offi-
cers of societies.
2 last elected, shall be the officers of such societies respectively until others are duly elected.
1 Sec. 37. The president of each county medical society shall be ex-officio a member of the state medical
Presidents of
county societies
tº 49 tº gº to be members
2 society, and shall be entitled to represent the county medical society of which he is president in the state ***
3 medical society.
* Sec. 38. Every person who shall falsely represent himself to be a duly licensed physician or surgeon, Person falsely
representing
himself to be
2 and sha .** q} * ~. - te physician, &c.,
ll procure himself to be employed as such, shall be deemed guilty of a misdemeanor, and on con-gº.f."
g
Ineºſl Olſ.
* viction thereof shall be punished by imprisonment in the county jail not exceeding one year, or by a fine
4 not exceeding one thousand dollars, or both in the discretion of the court.
53
CHAP. 37.] ( 210 ) [Title 3.
Certain persons
to support poor
relations.
In case of fail-
ure, superinten-
dants to apply to
circuit court.
TITLE IX.
OF THE INTERNAL Police of The STATE.
CHAPTER 37.—Of the Support of Poor Persons by their Relatives,
66 38.-Of the Sui port of Poor Persons by Counties.
68 39. —Of Disorderly Persons.
66 40.-Of the Racing of Animals.
66 41.-Of Taverns and other Licensed Houses.
5 & 42. –Of the Maintenance of Illegitimate Children.
& 6 43.−Of the Observance of the First Day of the Week, and the Prevention and Punishment
of immorrality. *
68 44.—Of the Law of the Road and the Regulation of Public Carriages.
&C 45.-Of the Firing of Woods and Prairies. * *
66 46.-Of Timber and Lumber ſloating on Waters and Carried upon adjoining Lands.
6.6 47.-Of Lost Goods and Stray Beasts.
66 48.-Of Fire Departments in Cities and Villages.
66 49.—Of certain Municipal Regulations of Police.
& 50,—Of Unauthorised Banking, and certain. Notes or Evidences of Debt issued by Banks.
6 & 51.—Of the Destruction of Wolves und other Noxious Animals.
CHAPTER 37.
OF THE SUPPORT OF POOR PERSONS BY THEIR RELATIVES,
1 SECTION 1. The father, mother, and children, being of sufficient ability, of any poor person who is blind,
2 old, lame, impotent or decrepit, so as to be unable by work to maintain himself, shall at their own charge,
3 relieve and maintain such poor person, in such manner as shall be approved by the directors of the poor
4 of the township where such poor person may be.
1 SEc. 2. Upon the ſailure of any such relative to relieve and maintain any such poor person, it shall be
2 the duty of the superintendents of the poor of the county where such poor person may be, to apply to the
3 circuit court ſor the county where such relative my dwell, for an order to compel such relief; of which
4 appication at least fourteen days notice in writing shall be given by serving the same personally, or by
5 leaving the same at the dwelling place of the person to whom it may be directed, in case of his absence
6 thereſrom, with some person of suſficient age.
CHAP. 37.] . ( 211 ) [TITLA 9.
1 SEc. 3. The court to which such application may be made, shall proceed in a summary way to hear the
Court to make
order.
2 proofs and allegations of the parties, and shall order such of the relatives aforesaid, of such poor per-
- O -
3 son, as appear to be of sufficient ability, to relieve and maintain such poor person, and shall therein specify
2
4 the sum which will be sufficient for the suport of such poor person, to be paid weekly. : ;
1 SEc. 4. The said court shall also in such orders direct the relative or relatives who shall perform that du- Order in which
- relations are lia-
ble.
2 ty, in the following order; the father shall be first required to maintain such poor person, iſ of sufficient
3 ability; if there be no father, or he be not of sufficient ability, then the children of such poor person, if
4 there be no such children, or they be not of sufficient ability, then the mother, if she be able to do so.
1 SEc. 5. If it shall appear that any such relative is unable wholly to maintain such poor person, but is able Contribution,
- when to be
ordered.
2 to contribute towards his support, the court may in its discretion direct two or more relatives of different de-
3 grees to maintain such poor person, and shall prescribe the proportion which each shall contribute for that
tº
4 purpose; and if it shall appear that the relatives liable as aforesaid, are not of sufficient ability wholly to
5 maintain such poor person, but are able to contribute something therefor, the court shall direct the sum, in
k *
6 proportion to their ability, which such relations shall severally pay weekly for that purpose.
- e ſº tº & e ai aintain such poor
1 Sec. 6. Such order may specify the time during which the relatives aforesaid shall maint P” order what is
specify ; anay be
Wuried in certain
tº tº & e CuSCS.
2 person, or during which any of the said sums so directed by the court shall be paid, or it may be indefinite,
3 or until the ſurther order of the court; and the said court may from time to time vary such order, when-
4 ever circumstances shall require it, on the application either of any relative affected thereby, or of any su-
5 perintendent of the poor, upon fourteen days’ notice being given in the manner aſoresaid,
1 SEC. 7. The costs and expenses of any application under the provisions of this chapter, shall be ascertain-
r * Payment of
2 ed by the court, and paid by the relatives against whom any order may bo made, and the payment thereofººn.
cnforced.
3 and obedience to the order of inaintenance, and to any order of such court for the payment of money as
4 aforesaid, may be enforced by process of attachment from such court.
1 SEC, 8. If any relative who shall have been required by such order to relieve or maintain any poor person
* w
( 212 ) "[Pitts 9.
Action may be
brought by sta-
perintendants in .
case of neglect,
&c.
When superin-
tendants ſilay
. apply for war-
rant to seize CS-
tate of pcrson
absconding.
When warrant
to issue, and du-
ty of superinten-
dants thereoil.
Sales by owner
after warrant is-
sued to be void.
Inventory and
return loy super-
intendants.
Circuit court
may confirm a
discharge war-
19nt, &c.
ºshall neglect to do so in such manner as shall be approved by the directors of the poor of the township where
4.
5
2
2
2.
3 such poor person may be, and shall neglect to pay to the superintendents of the poor of the county, weekly,
the sum prescribed by the court for the support of such poor person, the said superintendents may maintain
an action against such relatives, as for moneys paid, laid out and expended, and shall recover therein the
sum so prescribed by the said court ſor every week the said order shall have been disobeyed up to the time
of such recovery, with costs of suit, for the use of the poor.
Sec. 9. Whenever the father, or the mother being a widow, or living separate from her husband, shall ab-
*
scond from his or her children, or a husband from his wife, leaving any of them chargeable, or likely to
become chargeable upon the public for their support, the superintendents of the poor of the county where
such wiſe or children may be, may apply to any two justices of the peace of any county in which any es-
tate, real or personal, of the said father, mother or husband may be situated, for a warrant to seize the
Sū Iſle,
SEC. 10. Upon due proof of the facts aforesaid, the said justices shall issue their warrant, authorizing the said :
superintendents to take and seize the goods, chattels, eña, things in action, and the lands and tenements
of the person so absconding ; and the said superintendents, by virtue of such warrant, may seize and take
the said property, things in action, and effects, wherever the same may be ſound in the same county, and
they shall be vested with all the rights and title to the said property, things in action, and effects, which
the person so absconding had at the time of his or her departure.
SEc. 11. All sales and transfers of any personal property left in the county from which such person ab-
sconded, made by him or her aſter the issuing of such warrant, whether in payment of an antecedent debt,
or for a new consideration, shall be absolutely void; and the said superintendents shall immediately make
an inventory of the property, things in action, and effects so seized by them, and return the same with their
proceedings, to the next circuit court for the county in which such superintendents reside, there to be filed.
tº -
Sec. 12. The said circuit court, upon enquiring into the facts and circumstances of the case, may confirm
the said warrant and seizure, or may discharge the same; and if the same be confirmed, such court shall
***
\ ^.
CHAP. 38.] ( 213 ) ſºſuplje ºb.
3 from time to time direct what part of the personal property shall be sold, and how much of the proceeds of
orderéd.
4 such sale, and of the rents and profits of the real estate, if ahy, shall be applied towards the maintenance of
5 the wife and children of the person so abseonding.
1 Sec. 13. The superintendents shall sell at public vendue the property so ordered to be sold, and receive
When sale to be:
Sale of property
•- - . . . . . . . . . . • * , . . - e : und application
2 the rents and profits of the real estate of the person so absconding, and shall apply the same to the mainte- of Próceeds.
3 nance and support of the wife or children so absconded, and for that purpose shall draw on the county'trea-
4 surer thereſor; and they shall account to the said circuit court for all moneys so received by them, and for
5 the application thereoſ, from time to time, and may be compelled by said court to render such account at
6 any time.
1 SEc. 14. If the party so absconding return and support the wife or children so abandoned, or give securi- when ºust-
ces may dis-
charge onder.
2 ty to the superintendents of the poor of such county, to be approved by any two justices of the peace of
3 such county, that the wiſe or children so abandoned shall not become, or thereafter be chargeable to the
4 county, then such warrant shall be discha ged by an order of such justices, and the property taken by vir-
5 tue thereof, and remaining unappropriated, or the proceeds thereoſ, aſter deducting the expenses of the
6 proceedings aforesaid, shall be restored to such party.
CHAPTER 38. ---
OF THE SUPPORT OF POOR PERSONS BY COUNTIES.
1 SECTION 1. Every poor person who is blind, old, lame, sick or decrepit, or in any other way disabled or en-r. persons,
when to be
maintained by
2 feebled, so as to be unable by his work to maintain himself, and who shall not be relieved or maintained by “”
3 his relatives as provided in the preceding chapter, shall be maintained by the county in which he may be, ac-
4 cording to the following provisions.
1 SEC. 2. It shall be the duty of the board of supervisors of each county, at their annual meeting in each year
54
CHAP. 38.] ( 314 ) - - [TITLE 9.
2 to appoint three discreet freeholders of such county to be superintendents of the poor within the same, who
Appointment of *
superintendents,
; **** 3 shall hold their offices for one year, and until others shall be appointed in their places and duly qualified,
*
4 and who shall take the oath of office prescribed in the twelfth article of the constitution, and file the same
5 with the county clerk,
-- 1 Sec. 3. A majority of the persons so appointed shall be at all times competent to transact business, and
Compensation. | t +
2 to execute any powers vested in the board of superintendents; and they shall be allowed such sum for their
3 actual attendance and services, as the board of supervisors of the county shall deem reasonable.
I SEC. 4. They shall be a corporation by the name of the superintendents of the poor of the county for
“To be a corpora-
tion, their pow-
**** 2 which they shall be appointed, and shall possess the usual powers of a corporation for public purposes, and
3 they shall meet as often as the board of supervisors of the county shall direct, at the county poor-house, if
4 there be one, and iſ not, then at the place of holding the circuit courts in their county, and at such other
5 times and places as they shall deem necessary.
1 SEc. 5. They shall have the general superintendence of all the poor who may be in their respective coun-
Specification of -
certain powers *
and duties. ~ & , “º wº
2 ties, and shall have power, and it shall be their duty,
3 1. To have the charge of the county poor-houses that have been or shall be erected, and to provide suita-
4 ble places for the keeping of such poor, when so directed by the board of supervisors, when houses for that
5 purpose shall not have been erected by the county; and ſor that purpose to rent a tenement or tenements,
6 and land not exceeding fiſty acres, and to cause the poor of the county to be maintained at such places:
7 2. To ordain and establish prudential rules, regulations and by-laws, for the government and good order
8 of such places so provided, and of the county poor-houses, and for the employment, relief, management,
9 and government of the persons therein placed ; but such rules, regulations and by-laws shall not be valid
10 until sanctioned by the associate judges of the county:
11 3. To employ one or more suitable persons to be keepers of such houses or places, and all necessary of
12 ficers and servants; and to vest in them such powers for the government of such houses as shall be neces-
13 sary, reserving to the paupers who may be placed under the care of such keepers, the right to appeal to
14 the superintendents:
Char. 38.] - ( 215 ) - [TITLE 9.
15
16
17
18
19
20
21
.23
2.
25
26
27
28
29
30
31
32
33
34
5
4. To purchase the furniture, implements, and materials that shall be nesessary for the maintenance of
the poor, and their employment in labor, and to sell and dispose of the proceeds of such labor as they shall
deem expedient :
5. To prescribe the rate of allowance to be made to any persons for bringing paupers to the county poor-
house or place provided for the poor, subject to such alterations as the board of supervisors may, by gen-
eral resolution, make :
6. To authorize the keepers of such houses or places, to certify the amount due to any person for bring-
ing such paupers; which amount shall be paid by the county treasurer, on the production of such certifi-
cate, countersigned and allowed by any two of the superintendents :
7. To direct the commencement of suits by any directors of the poor, who may be entitled to prosecute
upon any recognizances, bonds or securites, taken for the indemnity of any township or of the county, and
in case of the neglect of any such directors, to commence and conduct such suits, without the authority of
such directors, in their names :
8. To draw from time to time on the county treasurer for all necessary expenses incurred in the discharge
of their duties; which draſts shall be paid by him out of the moneys placed in his hands for the support of
the poor :
9. To render to the board of supervisors of their county, at their annual meeting, an account of all mon-
eys received and expended by them or under their direction, and of all their proceedings :
10. To pay over all moneys remaining in their hands to the county treasurer, within fifteen days after the
expiration of their office.
f
Sec. 6. The board of supervisors of any county in this state, in which a county poor-house is not already
Board of super-
erected, may at any annual or special meeting thereof, determine to erect such house for the reception of visors may dº.
termine to erect
poor house, and
direct superin-
the Poor of their county; and upon filing such determination with the clerk of the county, they may direct ...". "-
the superintendents of the poor of such county to purchase one or more tracts of land, not exceeding three
hundred and twenty acres, and to erect thereon one or more suitable buildings for the purpose aforesaid.
Char. 38]
( 216 ) [TITLE 9.
Tax to defrny
expellses of
building, &c.
When poor per-
son to be rein OV-
cd to poor-
llouse.
To l;8 received
and relieved:
Expensc of re-
mov u how
paid.
Dircctors when
to be allowed
money's paid out
by them.
Whcn justico to
ortici annount to
be expended ſor
temporary re-
lief.
1
.2
l
32
Sec. 7. To detray the expenses of such purchase and buildings, the said board of supervisors may raise, -
by tax on the taxable real and personal property within the same county, a sum not exceeding seven thou-
sand dollars, in such instalments, and at such times as they muy judge expedient; and º tax shall be
raised, assessed and collected in the same manner as the other county charges, and shall be paid by the
county treasurer upon the order of the superintendents of the poor, to be applied for the purposes aforesaid.
SEc. 8. When any person shall apply ſor relief to any director of the poor, or to any superintendant, he
shall inquire into the state and circumstances of the applicant, and if it shall appear that the person so ap-
plying is in such indigent circumstances as to require permanent relief and support, and can be safely
removed, the director or superintendent shall, by a written order, cause such poor person to be removed to
the county poor-house, to be relieved and provided for as his necessities may require,
SEc. 9. Every such person so removed, shall be received by the keeper of the county poor-house, and
shall be supported and relieved therein, under the direction of the superintendents, until it shall appear to
them that such person is able to maintain himself, when the said superintendents may, in their discretion,
discharge him.
Sec. 10. The expense of such removal shall be paid by the county treasurer, on the certificate of the
keeper, countersigned as aforesaid, at the rate which shall have been prescribed by the superintendents.
Sec. 11. The directors of the poor shall be allowed such sums necessarily paid out, or contracted to be
paid by them, for the relief or support of such pauper previous to such removal, as the superintendents
shall judge were reasonably expended while it is improper to remove such pauper; which sums shall be
paid by the county treasurer on the order of the superintendents.
Sec. 12. If it shall appear that any such poor person so applying for relief as aforesaid, requires only
temporary relief, or is so sick, lame, or otherwise disabled that he cannot be safely or conveniently remo-
ved to the poor house, and the application be made to a director, he shall apply to a justice of the peace of
the same township, who shall examine into the facts and circumstances, and shall, in writing, order such
Char. 38.] ( 217 ) [TITLE 9.
5
1
sum to be expended for the temporary relief of such poor person as he shall deem the circumstances of the
case to require.
SEc. 13. Such order shall entitle the director to receive any sum which he may have paid out or contracted
County treasur-
er to pay am’nt
to pay within the amount therein specified, from the county treasurer; but no greater sum than ten dollars expended, &c.
shall be so expended or paid for the relief of any one person, or one family, without the sanction in wri-
ting of one of the superintendents of the poor of the county, which shall be presented to the county treasu-
rer with the order of the justice.
SEc. 14. The superintendents may provide for the support of paupers that may be idiots or lunatics, out e.
Provision for
support of idiots
and lunatics out
of the county poor-house, in such place, and in such manner as shall best promote the interests of the coun- * * *
ty, and conduce to the comfort and recovery of such paupers.
SEc. 15. Any person who shall send, carry, transport, remove or bring, or who shall cause or procure to e.
* Punishment for
removing pau-
pers from one
be sent, carried, transported, removed or brought, any poor or indigent person from any county, into any ..." " ".
other county, without legal authority, and there leave such poor person, or who shall entice such poor, person
so to remove, with intent to make any such county to which the removal shall be made chargeable with
the support of such pauper, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be im-
prisoned not exceeding one year, or fined not exceeding two hundred dollars, or both, in the discretion of the
COurt.
SEc. 16. The pauper so brought, removed or enticed, shall be maintained and provided for by the superin- P
- aupcrs relnov- '
ed, &c., where
to be maintained.
tendents of the poor of the county where he may be, and the said superintendents may give notice to either
of the superintendents of the poor of the county from which such pauper removed or was brought or en-
- Notice may be
given.
ticed, informing them of such improper removal, and requiring them forthwith to take charge of such
pauper.
SEC. 17. The superintendents to whom such notice may be directed shall, within thirty days after the ser-
55
CHAP. 38.]
( 218 ) [TITLE 9.
Superintendents
receiving notice
to pay expenses,
&c., or deny the
allegation of re-
niovul within
twenty days.
If superintend-
CInts to whom
notice is given
omit to remove
puupgr, &c.,
they and their
SucCeSSOrS lia-
ble.
On receiving no-
tice of denial, ac-
tion to be com-
Imenced; conse-
quence of ne–
glect.
Who not to bo
superintendent.
Keepers exempt
from militia ser-
vice, &c.
Places provided
by superintend-
ents to be deem-
cd poor-houses.
2 vice thereof take and remove such pauper to their county, and pay the expenses incurred in giving such
3
I
2
notice, and in maintaining such pauper from the time of his becoming a charge to the county in which he
is maintained ; or they shall within the time aforesaid, notify the superintendents from whom such notice
was received, or either of them, that they deny the allegation of such improper removal or enticing.
Sec. 18. If the superintendents to whom a notice shall have been given as provided in the sixteenth section
of this chapter, shall omit to take and remove such pauper, and also neglect to notify such denial within the
time aforesaid, they shall be liable for said expenses so long as such pauper shall remain a charge ; and an
action for such expenses may be maintained from time to time by, and in the name of the superintendents
incurring the same, or their successors in office, against the superintendents so made liable, and their suc-
cessors in office.
SEc. 19. Upon receiving any such notice of denial as aforesaid, the superintendents upon whom the same
may have been served, shall, within three months thereafter, commence an action against the superintend-
ents of the poor of the county to whom the first notice was directed, for the expenses of supporting such
pauper, as for moneys paid, laid out and expended, and shall prosecute the same to effect; and if such ac-
tion be not commenced within the time aforesaid, the same shall be foreverbal red, and no action shall there-
after be brought for any expenses incurred in supporting or maintaining such pauper.
Sec. 20. No supervisor of any township, prosecuting attorney of any county, county clerk, or county
2 treasurer, shall be appointed to, or hold the office of superintendent of the Poor.
l
2
Sec. 21. The keeper of every poor-house shall be exempt from all service in the militia, and from serv-
ing on juries during the time he shall be such keeper.
SEc. 22. The places which shall be provided for the reception of the poor, by the county superintendents,
pursuant to the provisions of this chapter, shall in all cases be deemed to be the county hoor-house; and all
3 the provisions of this chapter, applicable to county poor-houses, shall extend and apply to such places.
CHAP. 38.] ( 219 ) [TITLE 9.
l
2
5
SEC. 23. The superintendents of the poor of each county shall cause the paupers of such county, who
Education of
pauper children.
may be over five and under sixteen years of age, to be tanght and ed ucated, in the same manner that other
children are taught in the primary schools of this state, at least one-ſourth part of the time such paupers
shall remain under their charge ; and the expense thereof shall be paid in the same manner as other con-
tingent expenses are paid for the support of such paupers.
SEc. 24. Any person who shall bring or remove, or cause to be brought or removed, any poor or indigent
Liability of per
Fon removing
º º & tº & Cº. e { } pauper from
person, from any place without this state, into any county within it, with intent to make such county charg- another state.
able with the support of such paupers, shall forfeit and pay fifty dollars, to be recovered before any justice
of the peace of the county into which such pauper shall be brought, or in which the offender may be ; and
shall also be obliged to convey such pauper out of the state, or support him at his own expense.
SEC. 25. It shall be lawſul for the justice or court before whom such person shall be convicted for a viola- Magistrate may
require security.
tion of the provisions of the preceding section, to require of such person satisfactory security that he will,
within a reasonable time to be named by the justice or court, transport such person out of the state, or in-
demnify such county for all charges and expenses which may have been, or may be incurred in the support
of such pauper; and if such person shall neglect or refuse to give such security when required, it shall be the
duty of the justice or court, to commit him to the county jail for a term not exceeding three months.
SEc. 26. All moneys which shall be received for licenses to tavern keepers, common victuallers, or retail-
Moneys receiv'd
ſor licenses to be
§ 0. © tº g . . © & aid to county
ers of spirituous liquors, in any sownship, city or incorporated village, shall be paid over by the officers re- "...".
feitures, &c., for
neglect.
spectively receiving the same, to the county treasurer, within thirty days after the receipt thereof; and
any officer who shall neglect to pay over such moneys within the time aforesaid, shall forfeit and pay
the sum of fiſty dollars, and shall also be liable to an action by and in the name of the county treasurer, as
6 for money had and received, for all moneys so received by him, with interest thereon from the time when
7
the same should have been paid over.
CHAP. 38.]
( 220 ) [TITLE 9.
Moneys receive
ed by directors
and superinten-
dents to be paid
to treasurer, &c.
Liability of su-
perintendents for
neglect to ac-
count, &c.
Estimate of
a mount InCCeSSal-
ry for support of
poor, and collec-
tion thereof.
Accounts of di-
rectors and jus-
tices, how audi-
ted and paid.
Annual report
of superintend-
ents,
Sec. 27. All moneys which shall be collected by any superintendents, or by the directors of the poor of
any township, or received by any of them on any bond or other security given for the benefit or indemy
of any county, or of any township; and all other moneys which shall be received by such superintend
ents or directors for the benefit of the poor, shall be by them paid over, within thirty days after the receipt
of the same, to the county treasurer ; and if not so paid, the same may be recovered in an action as ſor
money had and received to be brought by and in the name of the county treasurer, with interest at the rate
of ten per cent. from the time the same should have been paid.
SEc. 28. Every superintendent who shall neglect or refuse so render an account or statement, or to pay
5'
2 over any moneys as required in this chapter, shall forfeit the sum of two hundred and fifty dollars, and
shall also be liable to an action by and in the name of the county treasurer, as for moneys had and received
for all moneys which may be in his hands after the expiration of his term of office, with interest thereon,
from the time when the same ought to have been paid over.
SEc. 29. The superintendents of the poor in each county shall present to the board of supervisors at
2 their annual meeting in each year, an estimate of the sum which in their opinion will be necessary during
1.
the ensuing year for the support of the county poor; and the said supervisors shall cause such sum as they
*
sº
may deem necessary for that purpose, to be assessed, levied and collected, in the same manner as the other
contingent expenses of the county; to be paid to the county treasurer, and by him to be kept as a separate
fund, distinct from the other funds of the county.
SEc. 30. The accounts of the directors of the poor and of justices of the peace for any personal or offi-
cial services rendered by them in relation to the poor, shall be audited and settled by the superintendents,
and be paid on their order by the county treasurer; but no allowance shall be made to any officer for
attending any board with accounts, for the purpose of having the same audited or paid.
Sec. 31. It shall be the duty of the superintendents of the poor of each county, on or beſore the twenti-
2 eth day of December in each year, to report to the secretay of state, in such form as he shall direct, the
CHAP. 39.] ( 221 ) . [TITLE 9.
3 number of paupers that have been relieved or supported in such county the preceding year, the whole ex-
4 pense of such support, specifying the amount paid for the * transportation of paupers, and any other items
5, which do not constitue, any part of the actual expense of maintaining such * and the allowance
6 made to superintendents, directors, justices, keepers and officers; the actual value of the labor of the pau-
7 pers maintained, and the estimated amount saved in the expense of their support in consequence of their
8 labor.
1 SEC. 32. Any superintendent who shall neglect or refuse to make such report as aforesaid, or who shall
Penalty for ne–
glect to make re-
wilfully make any false report, shall forfeit one hundred dollors ; and the secretary of state shall give no-Pº". &c.
2
tice to the prosecuting attorney of the county, of every such neglect or refusal, or misconduct.
3
1 SEC. 33. The secretary of state shall annually lay before the legislature, during the first month of its ses- Duty of secreta-
- ry of state.
2 sidn, an abstract of said report.
CHAPTER 39.
OF DIS ORDERLY PERSONS,
1 SECTION 1. All persons who threaten to run away and leave their wives or children a burden on the pub-
What persons
deemed disorder-
lic; all persons pretending to tell fortunes, or where lost or stolen goods may be found; all common prosti-ly.
2
3 tutes, and all keepers of bawdy houses, or houses for the resort of prostitutes; all drunkards, tiplers, game-
4 sters, or other disorderly persons; all persons who have no visible calling or business to maintain themselves
5
by, but who do for the most part support themselves by gaming; all jugglers, common showmen, and
6 mountebanks, who exhibit or perform for profit any puppet show, wire or rope dancing, or other idle shows,
7
arts, or feats; all persons who keep in any public highway, or in any public place where spirituous liquors
8 are sold, any gaming table, wheel of fortune, box, machine, instrument or device for the purpose of gami
9 ing; all persons who go about with such table, wheel or other machine, instrument or device, exhibiting
56
*
( 222 ) [TITLE 9.
CHAP. 39.]
Apprehension of
offenders, and
security ſor
good behavior.
Where record
of conviction to
be made, and of
fender commit’d.
What deemed a
breach of reeug -
nizance.
When new se-
curities may be
required or of
fender commit-
ted.
How person
committed may
be discharged. '
Duty of jailer to
furnish list to
circuit court,
10
11
2
* &
tricks or gaming therewith ; all persons who play in the public streets or highways, with cards, dice, or any
instrument or device for gaming, shall be deemed disorderly persons.
SEc. 2. Upon complaint made on oath to any justice of the peace, against any person as being disorder-
ly, he shall issue his warrant for the apprehension of the offender, and cause him to be brought before such
justice for examination ; and if it shall appear by the confession of the offender, or by competent testimo-
ny, that he is a disorderly person, the justice may require of the offender a recognizance with sufficient
& *
sureties for his good behavior for the term of one year thereaſter.
SEc. 8. In default of such sureties being found, the justice shall make up, sign and file in the county
2 clerk’s office, a record of conviction of such offender as a disoderly person, specifying generally the nature
5
I
1.
2
and circumstances of the offence, and shall by warrant under his hand, commit such offender to the com-
mon jail of the county, there to remain until such sureties be found, or such offender be discharged accord-
ing to law.
SEC. 4. The committing of any of the acts which constitute the person so bound, a disorderly person,
shall be deemed a breach of the condition of such recognizance.
SEc. 5. Upon a recovery being had upon any such recognizance, the court before which such recovery
shall be had, may in its discration, either require new sureties for good behavior, to be given, or may com-
mit the offender to the common jail of the county, ſor any time not exceeding six months.
SEc. 6. Any person committed to the common jail for not finding sureties for good behavior may be dis-
charged by any two justices of the peace of the county, upon giving such sureties for good behavior, as
3 were originally required from such offender.
1
2
3
SEc. 7. It shall be the duty of the keeper of every jail, except in those counties within which a district
court shall have been established, to lay before the circuit court for his county, on the first day of the term
next after the commitment of any disorderly person to such jail, a list of the persons so committed and then
CHAP. 39.1 - ( 223 ) * [Title 9.
4
in his custody, with the nature of their offences, the name of the justice committing them, and the time of
their imprisonment.
*
SEc. 8. In those counties within which a district court shall have been established, such list and statement
* Jailers in certain
- ..". º º:
shall be laid before such district court, and not before the circuit court. ºat-
SEc. 9. The said court beſore which such list shall be laid shall inquire into the circumstances of each
Court to exam-
case, and hear any proofs that may be offered, and shall examine the record of conviction, which shall be **** *
deemed presumptive evidence of the facts therein contained, until disproved.
SEc. 10. The court may discharge such disorderly person from confinement, either absolutely or upon Powers of court
in relation to
disorderly per-
receiving sureties for his good behavior, in its discretion ; or the said court may in its discretion, autho- “”
rize the superintendents of the poor of the county, to bind out such disorderly persons as shall be minors in
some lawful calling, as servants or apprentices, or otherwise, until they mal be of full age, respective-
ly, or to contract for the services of such disorderly persons as shall be of full age, with any person, as la-
borers or servants, for any time not exceeding one year, which binding out and contracts shall be as valid
and effectual as the indenture of any apprentice with his own consent and the consent of his parents, and
shall subject the person so bound out or contracted for, to the same control of their masters, respectively,
and of such court, as if they were bound as apprentices.
SEC 11. Such court may in its discretion, order any such disorderly person to be kept in the common jail
Court may order
for any time not exceeding six months, at hard labor ; or may direct, that during any part of the time of tº:
& . bor, or on bread
and water.
his imprisonment, not exceeding thirty days, such offender shall be kept on bread and water only.
Sec. 12. If there be no means provided in such jail for employing offenders at hard labor, such court
may direct the keeper thereof to furnish such employment as it shall specify, to such disorderly person as *:::cer.
er to furnish
employment, &c.
may be committed thereto, either by a justice, or any court, and for that purpose to purchase any necessa-
ry raw materials and implements, not exceeding such amount as the court shall prescribe, and to compel
such persons to perform such work as shall be allotted to them.
CHAP. 40.] ( 224 ) - [TITLE 9.
Expenses how
paid.
Keeper to sell
produce of la-
bor, &c.
What deemed
racing,"and"pu-
nishment there-
for.
Duty of sheriff,
&c., to prevent
racing.
1 SEC. 18. The expenses incurred in pursuance of such order, shall be paid to the keeper by the county trea-
2 surer, on the production of a certified copy of the order of the court, and an account of the materials fur-
3 nished, verified by his oath.
1 SEc. 14. The keeper shall sell the produce of such labor, and shall account for the first cost of the mate-
2 rials purchased, and for one half of the surplus to the board of supervisors, and pay the same into the coun-
3 ty treasury; and the other half of the surplus shall be paid to the person earning the same, on his discharge
4 from imprisonment; and such keeper shall also account to the court, whenever required, for all materials
5 purchased, and for the disposition of the proceeds of the earnings of such offenders.
CHAPTER 40.
of THE RACING OF ANIMALs.
1 SECTION. 1. All running, trotting, or pacing of horses, or any other animals, for any bet or stakes, in
2 money, goods or other valuable thing, or for any reward to be given to the owner or rider of any animal
3 which shall excel in speed, excepting such as are by special laws for that purpose expressly allowed, shall
4 be deemed racing within the meaning of this chapter, and are hereby declared to be common and public
5 nuisances and misdemeanors ; and all parties concerned therein, either as authors, betters, stakers, stake
6 holders, judges to determine the speed of animals, riders, contrivers, or betters thereof, shall be deemed
7 guilty of a misdemeanor, and shall be punished by a fine not exceeding five hundred dollars, or by impri-
8 sonment, not exceeding one year, in the county jail.
1 SEC. 2. It shall be the duty of all sheriffs and their deputies, justices of the peace, and constables, to at-
2 tend at the place where they shall know, or be informed that any race is about to be run, contrary to the
3 provisions of law, and there give notice of the illegality thereof, and endeavor to prevent such race, by
4 dispersing the persons collected for the purpose of attending the same, and by all other ways and means in
5 their power.
1 SEC. 3. Upon his own view of any person offending against the provisions of this chapter, as well as upon
CHAP. 41.] ( 225 ) - [TITLE 9.
º * * * * © . * . . * Apprehension,
- 2 the testimony of others, any justice of the peace shall issue his warrant for the immediate apprehension of £º,
j - offending.
3 the persons so offending, to the end that they may be compelled to enter into recognizances, with sufficient
4
sureties for their good behavior, and for their appearance at the next circuit or district court for the county,
s
as the case may be, to answer for the said offences.
- tº º ºs & S ll contribute or collect. or solici 2]” t Forfeiture for
1 SEC. 4. Every person who shall contribute o ct; or solicit any other person to contribute or collect making up purse
&c.
2 any money, goods, or things in action, for the purpose of making up a purse, plate, or other valuable thing,
3 to be raced for by any animal, contrary to law, shall forfeit the sum of twenty-five dollars for each offence. ©
1 Sec. 5. The owner in whole or in part of any animal that shall be used or employed by his permission or
Forfeiture of va-
gº - e e Jue of animal,
privity, in racing, contrary to law, shall forfeit the value of the animal so used or employed ; and every “.
2
3
person who shall be concerned in laying any bet or wager upon the event of any illegal race, or in con-
4
tributing to the stakes to be awarded upon any such event, shall forfeit the amount of the bet or wager so
5 made, or of the sum or thing so contributed.
CHAPTER 41.
OF TAVERNS AND OTHER LICENSED HOUSES.
1 Section 1. No person shall be an inn-holder or tavern keeper, common victualler, or seller of wine, f f
Orfellure for
being inn-hold-
a er, &c., without
brandy, rum, or other spirituous liquor, to be used in or about his house, or other building, unless he is first".
2
3
licensed as a tavern keeper, or common victualler, according to the provisions of this chapter, on pain of
4
forfeiting one hundred dollars.
I
SEC. 2. If any person shall sell any wine or spirituous liquor, or any mixed liquor, part of which is spirit-
Selling liquor
to be used about,
uous, to be used in or about his house or other building, without being duly licensed as a tavern keeper, or ºil-
2
3
common victualler, he shall forfeit for each offence, twenty-five dollars.
57
CHAP. 41.]
( 226 ) [TITLE 9.
Retailing with-
out litefis8,
I&etailer not to
sell liquor to be
used about
house, &c.
Tavern keeper.
to furnish provi-
‘sions, &c.
Right and obli-
gations of com-
mon victuallers.
Penalty on ta-
vern keeper for
refusing to re-
ceivestrangers,
Ste.
Impleinefits of
#. not to be
ept, nor gaming
&c., permitted.
2
4
SEc. 3. No person shall retail or sell any wine, brandy, rum, or other spirituous liquor, in a less quanti-
ty than twenty-eight gallons, and that delivered and carried away all at one time, unless he is first licensed
as a retailer of wine and spirits, as provided in this chapter, on pain of forfeiting twenty-five dollars for
each offence.
SEc. 4. If any person licensed to be a retailer, as aforesaid, and not licensed as a tavern keeper, or com-
mon victualler, shall sell any of the above mentioned liquors, either mixed or unmixed, to be used in or
about his house or other buildings, he shall forfeit for each offence the sum of twenty-five dollars.
Sec. 5. Every tavern keeper shall at all times be ſurnished with suitable provisions and lodging for stran-
gers and travelers, and with stable room, hay and provender, for their horses and cattle ; and if he shall
not at all times be so provided, the township board may revoke his license.
SEc. 6. Every common victualler shall have all the rights and privilleges, and be subject to all the duties
and obligations of tavern keepers, excepting that he shall not be required to furnish lodging for travelers,
nor stable room, hay and provender for horses and cattle.
SEC. 7. Every tavern keeper and common victualler, shall at all times have a board or sign conspicuously
affixed to his house, or in same conspicuous place near the saine, with his name thereon and the employ-
ment for which he is licensed, on pain of forſeiting ten dollars.
SEC. 8. If any tavern keeper shall, when requested, refuse, without reasonable cause, to receive and make
*
suitable provision for strangers and travelers and their horses and cattle, he shall be deemed guilty of a
misdemeanor, and on conviction thereof shall be punished by a fine not exceeding fifty dollars, and shall
also by order of the court be deprived of his license. p
*
SEc. 9. No tavern keeper, or common victualler, shall have or keep in or about his house, or other buil-
*
dings, yards or gardens, or their dependencies, any dice, cards, billiards, or other implements used in gam.
ing; nor shall suffer any person resorting there, to use or exercise any of said games, or any other unlaw-
ful game or sport, within said premises, on pain of forſeiting ten dollars for each offence.
CHAP. 41.] -- ( 227 ) [TITLE 9. Penalty for ex-
ercising games
about taverns,
º * * * g. &c
SEc. 10. Every person who shall use or exercise any of the games aforesaid, in or about any such house
*
or building of a tavern keeper or common victualler, shall forfeit the sum of ten dollars.
SEc. 11. No tavern keeper or common victualler shall suffer any person to drink to drunkeness or excess punkenness,
&C.
in his premises, nor suffer any minor, travelers excepted, to have any strong drink there, on pain of for-
feiting five dollars for each offence.
age
*
SEc. 12. Every tavern keeper, common victualler, or other person who shall give, sell, or dispose of any Penalty for dis
- ( ge
posing of liquor
to Indians.
spirituous liquor, wine, mixed liquor, or other intoxicating drink, to any male or female Indian, or to any
1841, p. 137.
common drunkard, shall forfeit for each offence the sum of twenty dollars.
SEC. 13. If any tavern keeper or common victualler, shall trust or give credit exceeding seventy-five
lº ſº & Not dit
cents, to any person for liquor, he shall forfeit and lose all sums so trusted or credited, above the sum ofīº *.
venty-five cents.
seventy-five cents; and all actions brought therefor shall be utterly barred, and the defendant in any such
action may avail himself of the provisons of this section under the general issue.
SEc. 14. If any common victualler shall keep open his house, cellar, store, shop or place of business, on
on any part of the day or evening of the first day of the week, or on the evening of any other day of the ºu.
keep open house
at certain times.
week at a later hour than ten o'clock, and entertain any person therein by selling him any spirituous liquor,
he shall forfeit for each offence, the sum of ten dollars.
SEc. 15. When any person shall by excessive drinking of spirituous liquors, so mis-spend, waste or les-
Sen his estate, as thereby to expose either himself or his family to want or indigent circumstances, or the T hin board
- ownship board
&c. may prohi-
bit sale of liquor
county to which he belongs to expense forthe maintenance of him or his family, the township board of the ..." "
township in which such spendthrift lives shall, in writing, under their hands, forbid all licensed tavern keep-
ers, common victuallers and retailers of the same township, to sell him any spirituous or intoxicating liquors
for the space of one year ; and they may in like manner forbid the selling of any such liquors to such
spendthrift, by the said licensed persons of any other township to which the said spendthrift may resort for
CHAP. 41.] ( 228 ) [TITLE 9.
Renewal of pro-
hiljition.
Penalty for pro-
curing liquor for
prohibited per-
SO !].
Township board
&c., may grant
licenses; provi-
SO.
1845, act No. 46.
Licensc what to
contain.
8 the same ; and the clerk of each incorporated city shall, under the direction of the mayor and aldermen
9 thereof, issue a like prohibition as to any such spendthriſt living in such city.
1 SEC. 16. The said mayor and aldermen, and the said township board shall, in the same manner, from year
2 to year, renew such prohibition, as to all such persons as have not, in their opinion reformed within the,
3 year; and if any tavern keeper, common victualler, or retailer shall, during such prohibition, give, sell
4 or dispose of, to any such prohibited person, or for his use, any such spirituous or intoxicating liquor, he
5 shall forfeit for each offence twenty dollars.
1 SEc. 17. When said mayor and alderment, or township board, in execution of the foregoing provisions
2 shall have prohibited the sale of spirituous liquors to any such spendthriſt, if any person shall, with
3 a knowledge of such prohibition, give or sell to, or purchase or procure for in behalf of such prohib-
4 ited person, or for his use, any such spirituous or intoxicating liquors, he shall forfeit for each offence the
5 sum of twenty dollars.
1 SEc. 18. The township boards may severally license, for their respective townships, so many persons to
2 be tavern keepers and retailers therein, as they shall think the public good may require ; and the mayor,
3 recorder and aldermen of each incorporated city, may in like manner license tavern keepers and retailers
4 in their cities respectively; provided that no license for the sale of any intoxicating liquors shall be grant-
5 ed in any city, village or township, when a majority of the qualified voters thereof shall have voted at the
6 next preceding township or charter election therein, against the granting of such licenses, as hereinafter
7 provided.
1. SEc. 19. Every license, either to a tavern keeper, or retailer, shall contain a specification of the street,
2 lane, alley or other place, and the number of the building, or some other particular description thereof,
3 where * licensed person shall exercise his employment; and the license shall not protect any such per-
4 son from the penalties provided in this chapter for exercising his employment in any other place than that
5 which is specified in the license.
CHAP. 41.] ( 229 ) • [TITLE 9.
I SEc. 20. The mayor, recorder and aldermen of each incorporated city, and the corporate boards of incor-
N Licenses to com-
mon victuallers.
2 porated villages, may, unless, prohibited as aforesaid, license for their cities and villages respectively, as
3 many persons to be common victuallers, as they shall think the public good may require, and every such
4 license shall contain such a specification or description as is required in the preceding section, of the street
5 or other place, and of the building where the person so licensed shall exercise his employment; and the
6 license shall not protect him from the penalties provided in this chapter for exercising it in any other place.
1 SEC. 21. The powers * to be exercised, and the duties required to be performed by the provisions
Certain powers
to be exercised
© e e & b
2 of this chapter, by the mayor, recorder and aldermen of each incorporated city, and the township board of §§§ia.
geS.
3 each township, so far as relates to the licensing of retailers, and to the prohibition of the sale of spirituous
4 liquors to spendthrifts, shall be exercised by the president and common council, or other corporate board of
5 each incorporated village.
1 SEc. 22. All licenses to tavern keepers, common victuallers and retailers, shall expire on the first Mon-
Licenses Yºn
• * * e © e . * * * * * to expire, an
2 day of April in each year, but any license may be granted or renewed at any time within thirty days next renewal thereof.
3 rººms that day, to take effect from the said first Monday of April, and after that day they may be gran-
4 ted for the remainder o the year, whenever the officers authorzed to grant the same shall deem it expedi-
5 ent; but if application shall be made to a township board for any license, at any other time than at
6 their annual meeting, the person applying therefor shall pay the members thereof for their services at the
7 rate allowed by law.
1 SEC. 23. Every person who shall be licensed as provided in this chapter, shall pay for such license to the payment for i.
cense, &c.
2 clerk of the city, village or township, in which he is licensed, and before such license shall be delivered to
3 him or become operative, such sum as the officers granting the same shall determine; which sum shall not
4 be less than five nor more than twenty dollars, and which money shall be paid over as directed in chapter 1942 S 2
• 842, p. 109, § 2.
5 thirty-eight for the benefit of the poor.
58
CHAP. 41.] ( 230 ) [TITLE 9.
Licenses for
sale of ale, beer,
&c.
Penalty for
keeping up sign,
&c., by person
not licensed.
When no iicense
to be granted,
Additional box
to be furnished
for reception of
votes relating to
licenses.
1845, act No. 46.
Votes in favor of
and against li-
CenSCS,
1
- 2
I
2
5
2
4
5
6
SEC. 24. Any license to a tavern keeper, retailer or common victualler may, if the applicant require it, or
cº
if a license ſor the sale of intoxicating liquors shall be prohibited as aforesaid, be so framed as to authorize
the licensed person to sell beer, ale, cider, or any, other ſermented liquors except wines, and not to author-
- .ſº - &
ize him to sell brandy, rum, or any other spirituous liquors or wines; in which case the sum to be paid for
such license shall not be less than two nor more than eight dollars.
SEC. 25. If any person shall set up or keep, on or near his house, any sign, emblem, or insignia, intima-
ting the same to be a tavern, or common victualling house, without having a license as provided in this
chapter, he shall be subject to a fine of five dollars for each day on which the same shall be kept up.
SEC, 26. No license shall be granted or renewed to any person unless the officers granting the same shall
be satisfied that the public good will be promoted thereby, and that the person applying is of good moral
character.
SEC. 27. At each annual meeting or charter election for the election of officers in any township, city or
village, the inspectors of elections therein shall furnish an additional box for the reception of ballots, which
box shall be labelled with the word “Licenses,” and shall be kept, and the ballots deposited therein shall be
canvassed, and the result thereof declared and certified, in the same manner that the other ballot boxes
are required to be kept, and the other votes cast at such election declared and certified.
SEc. 28. Each person qualified to vote for the officers to be elected at such election, may deliver to the
inspectors, or one of them a ballot, having written or printed thereon the word “License,” or the words
“No License,” which ballot shall be deposited in said box; and if it shall appear upon canvassing such bal-
lots that a majority of them have thereon the words “No License,” the officers of such township, city or
village, shall be prohibited from granting any license for the sale of intoxicating liquors, during the year
then next ensuing.
Chap. 42.] - ( 231 )
[TITLE 9
I
2
* CHAPTER 42. \
of THE MAINTENANCE of ILLEGITIMATE children.
SECTION 1. When any woman who has been delivered of a bastard child, or is pregnant with a child,
Complaint
against father of
bastard child, &
which if born alive, may be a bastard, shall make complaint to any justice of the peace, and shall desire to ...tion
CrCOI).
instiute a prosecution against the person whom she accuses of being the father of the child, the justice shall
take her accusation and examination, in writing, under oath, respecting the person accused, the time when
and the place where the complainant was begotten with child, and such other circumstances as the said
6 justice shall deem necessary, for the discovery of the truth of such accusation.
2
Sec. 2. The said justice may issue his warrant against the party accused, which may be executed in any Justice may is-
sue warrant,
proceedings
part of this state, and after hearing him in his defence, may require him to enter into recognizance with **
one or more sureties to the satisfaction of the justice, in such sum as he may deem necessary, not less
than one hundred nor more than five hundred dollars, upon condition to appear and answer to the said
complaint at the next term of the circuit court for the county, and to abide the order of the court there-
on, and may order him to be committed until he shall enter into such recognizange, and on the trial of the
issue before the court, the examination taken as aforesaid shall be given in evidence.
SEC. 3. If at the next term of the said court, the complainant shall not have been delivered, or shall not
- Proceedings in
circuit court.
be able personally to attend, or if there shall be any other sufficient reason therefor, the court may order a
continuance of the causé, from time to time, as they shall judge necessary, and such recognizance shall re-
main in force until final judgment; provided, that if the sureties in such recognizance shall, at any term
of said court, object to ºrs any longer held liable, or if the court shall, for any cause, deem it proper,
such court may order the defendant to enter into a new recognizance, with such sureties, and for such a-
mount as they shall direct ; and he shall stand committed until such new recognizance shall be entered into.
Sec. 4. Upon the trial of the cause, the woman making the complaint shall be admitted as a witness, unless
º * & Trial and judg-
she shall have been convicted of a crime which would by law render her incompetent as a witness in any ment.
other cause ; and the issue to the jury shall be, whether the defendant is guilty or not guilty; and if the
CHAP. 42.] ( 232 ) [TITLE 9.
4 jury shall find him guilty, or if he shall admit the truth of the accusation, he shall be adjudged to be the
5 father of such child, and shall stand chargeable with the maintenance thereof, with the assistance of the
6 mother in such manner as the court shall order.
performance of
Bond to secure 1 SEc: 5. Such person so adjudged to be the father of such child, shall give bond to the superintendents of
order, &c. -
2 the poor of the county, with sufficient sureties to the satisfaction of the court, to perform such order, and
3 also to indemnify the county, which might be chargeable with the maintenance of such child; and he may
4 be committed to prison until he shall give such bond; but if on such trial he shall be found not guilty, the
5 court shall order that he be discharged; and in either case, the judgment of the court shall be final.
1 SEC. 6. Any man who shall have been imprisoned ninety days, for having failed to comply with the or-
Relief of person
imprisoned.
2 der of the circuit court, as provided in this chapter, shall have the benefit of the laws for the relief of poor
3 prisoners committed on execution for debt, provided he shall procure the like notification of his intention to
4 take the oath prescribed to poor debtors, to be served on the complainant if still living within this state, and
5 also upon one of the said superintendents of the poor; such notification to be served at least thirty days be-
6 fore the time appointed for taking the oath.
sº, i.e. 1 Sec. 7. The mother of such child, and the said county superintendents respectively, may at all times after
tion.
2 the liberation of such prisoner on taking said oath, recover by action of debt or on the case, any sum of
3 money which ought to have been paid to them respectively by him in pursuance of such order of the court.
1 SEc. 8. If any woman shall be delivered of a bastard child, which shall be chargable or likely to become
When superin-
tendents, &c., to
make applica-
jº. 2 chargable to any county; or shall be pregnant of a child likely to be born abastard and to become charga-
nation.
3 ble to any county; the superintendents of the poor of any county, or any of them, or the directors of the
4 poor of the township, or any of them, where such woman shall be, shall apply to some justice of the
5 peaceof the same county to make inquiry into the facts and circumstances of the case.
1 SEC. 9. Such justice shall examine such woman on oath respecting the father of such child, the time
2 when and the place where she was begotten with child, and such other circumstances as the justice may
CHAP. 43.] ( 233 ) [TITLE 9.
3 deem necessary for the discovery of the truth; and shall thereupon issue his warrant to apprehend the re-
- Woman ſo b
§: ... id
- g * º reputed father
puted ſather; and the same proceedings shall be thereupon had, as if complaint had been made by such apprehended.
4
5 woman, as prescribed in the foregoing provisions of this chapter, and with the like effect.
1 SEC. 10. Any warrant issued for the apprehension of such reputed father, may be executed in any county W l
arrant may be
W executed in any
e º o o º tº county.
2 in this state, in which the person against whom the same issued may be found.
1 SEC. 11. In all cases where application shall be made to a justice of the peace by any superintendent or
Woman to lje
compelled to at-
2 director of the poor as hereinbefore provided, the justice may compel the attendance of the mother of such tend and testify. ,
…”
3 bastard child, or woman pregnant with a child likely to become a bastard, and may compel her to testify,
4 and disclose the name of the father of such child; and in case of her refusal, may, after the expiration of
5
one month from the time of her delivery, if she shall be sufficiently recovered, commit her to the common
6 jail of the county, by a warrant under his hand, in which the cause of commitment shall be distinctly set
7 forth, there to remain until she shall testify and disclose the name of such father.
1 SEC. 12. The superintendents of the poor of any county in this state shall have power to make such com- -
Superintendents
may compromisc
with father of
2 promise and arrangement with the putative father of any bastard child in such county, relative to the sup-bas".
3 port of such child, as they shall deem equitable and just, and thereupon may discharge such putative father
4 from all liability for the support of such bastard.
CHAPTER 43.
OF THE OBSERVANCE OF THE FIRST DAY OF THE WEEK, AND THE PREVNETION AND PUNISHMENT OF
IMMORALITY.
Af
Observance of the First Day of the Week.
º º * gºes - manner of labor
1 SEC. I. No person shall keep open his shop, ware-house or work-house, or shall do any ’Shops, &c., not
to be kept openi
on first day of
2 business or work, except only works of necessity and charity, or be present at any dancing, or at any pub-week, &c.
59
CHAP. 43.] - ( 234 ) [TITLE 9.
w
3 lic diverson, show or entertainment, or take part in any sport, game or play, on the first day of the week ;
Kecpers of pub-
lic houses not to
entertain, CKccpt
travellers, &c.,
on first day of
wcek.
Penalty for vio-
lating preceding
scetion.
Public diversions
&c.
Between what
hours civil pro
cess not to be
executed.
Disturbance of
religious meet-
ings.
4 and every person so offending shall be punished by a fine not exceeding ten dollars for each offence.
1 Sec. 2. No tavern keeper, retailer of spirituous liquors, or other person keeping a house of public enter-
2 tainment, shall entertain any persons, not being travelers, Strangers or lodgers in his house, on the said
3 first day of the week, or shall suffer any such persons on said º, to abide or remain in his house, or in the
4 buildings, yards or orchards or fields appertaining to the same, drinking or spending their time idly, or at
*
5 play, or in doing any secular business.
1 Sec. 3. Every person offending against any of the provisions of the last preceding section, shall be
2 punished by a fine not exceeding five dollars for each person so entertained, or suffered so to abide or re-
3 main; and upon any conviction after the first, such offender shall be punished by a fine not exceeding ten
4 dollars; and if convicted three times, he shall be afterwards incapable of holding a license; and every per'
5 son so abiding or drinking shall be punished by a fine not exceeding five dollars.
1 SEC. 4. No person shall be present at any game, sport, play or public diversion, or resort to any public
2 assembly, excepting meetings for religious worship or moral instruction, or concerts of sacred music, upon
3 the evening of the said first day of the week; and every person so offending shall be punished by a fine
4 not exceeding five dollars for each offence.
1 SEC. 5. No person shall serve or execute any civil process ſrom midnight preceding, to midnight following
2 the said first day of the week; but such service shall be void, and the person serving or executing such pro-
3 cess, shall be liable in damages to the party aggrieved, in like manner as if he had not had any such pro-
4 cess.
1 SEc. 6. If any person shall on the said first day of the week, by rude and indecent behavior, or in any
2 other way, intentionally interrupt or disturb any assembly of people met for the purpose of worshiping
3 God, he shall be punished by a fine not less than two, nor more than fifty dollars.
Char. 48.] ( 235 ) - [TITLE 9.
l
5
5
2
3
4
Sec. 7. No person who conscientiously believes that the seventh day of the week ought to be observed as
Persons observ-
ing seventh day
the sabbath, and actually refrains from secular business and labor on that day, shall be liable to the pen-ſºº, "otiu-
', cº-º- -
alties provided in this chapter, for performing secular business or labor on the said first day of the week,
provided he disturb no other person.
SEC. 8. For the purposes of the provisions of this chapter, the said first day of the week shall be under-
stood to iuclude all the time between the midnight preceding and the midnight following the said day; and ..".
day of the week.
no prosecution for any fine or penalty incurred under any of the r in • * * : * ~ * *
p any | y r y of the preceding provisions of this chapter, shall tº or
time for prosecu-
tion.
be commenced after the expiration of six months from the time when the offence' shall have been com-
mitted.
Gaming.
SEC, 9. If any person shall by playing at cards, dice or any other game, or by betting on the sides or
r g t tº te Money, &c., lost }
hands of such as are gaming, or by any betting whatever, lose, to any person so playing or betting, any º
sum of money, or any goods whatever, and shall pay or deliver the same, or any part thereof to the win-
ner, the person so paying or delivering the same, may sue for and recover such money, in an action for
money had and received to the use of the plaintiff, and such goods, in an action of replevin, or the value
thereof in an action of trover, or in a special action on the case.
St *e o e s e & * *4 © •º
SEC, 10. If the person so losing said money or goods, shall not within three months after such loss, with- when winner,
subject to fine.
out covin or collusion, prosecute with effect for such money or goods, the winner to whom such money or
goods shall have been so paid or delivered shall be subject to a fine not exceeding three times the value of
such money or goods.
SEC. 11. In any suit to be brought by the person so losing any such money or goods, against the person
Oath of plaintiff
and of deſend'nt.
receiving the same, when it shall appear from the declaration that the said money or goods came to the
hands of the defendant by gaming, if the plaintiff shall make oath before the court in which such suit is
pending, that the said money or goods were lost by gaming with the defendant as alleged in the declaration,
5 judgment shall be rendered that the plaintiff recover damages to the amount of the said money or goods,
CHAP. 43.] ( 236 ) - [TITLE 9.
6 unless the defendant will make oath that he did not obtain the same, or any part thereof by gaming with
7 the plaintiff; and if he shall so discharge himself, he shall recover of the plaintiff his costs; but the plain-
8 tiff may at his election, maintain and prosecute his action according to the usual course of proceeding in
9 such actions at common law.
Forſciturc for
winning or los-
ing to value of
five dollars.
1 SEc. 12. Every person who shall win or lose, at any time or sitting, by gaming or by betting on the hands
2 or sides of such as are gaming, any money or goods, to the value of five dollars or more, whether the same
3 be paid over or delivered, or not, shall forfeit and pay three times the value of such money or goods ; pro-
4 vided that a prosecution shall be commenced therefor within eighteen months after the committing of the
5 offence.
1 SEc. 13. All notes, bills, bonds, mortgages or other securities or conveyances whatever, in which the
Dertain notes, tº § e g *
º, 2 whole or any part of the consideration, shall be for any money or goods, won by playing at cards, dice, ol
how far void.
3 any other game whatever, or by betting on the sides or hands of such as are gaming, or by any betting
4 or gaming whatever, or for reimbursing or repaying any monies knowingly lent or advanced for any ga-
5 ming or betting, shall be void and of no effect, as between the parties to the same, and as to all persons, ex-
6 cept such as shall hold or claim under them in good faith, and without notice of the illegality of such con-
7 tract or conveyance.
1 SEc. 14. Whenever any mortgage or other conveyance of land shall be adjudged void under the provis-
J, ands in certain
CascS to enurc iO * g gº
lº" 2 ions of the preceding section, such lands shall enure to the sole benefit of such person or persons as would
entitled if grant-
er, &c., Werc - -
dead. e * *
3 be then entitled thereto, if the mortgagor or grantor were naturally dead ; and all grants and conveyances
4 for preventing such lands from coming to or devolving upon the person or persons to whose use, and bene.
5 fit the said lands would so enure, shall be deemed fraudulent and of no effect, except as against purchasers
6 in good faith, and without notice of the illegality of such mortgage or other conveyance.
Penalty for 1 SEC, 15. If any person shall keep, or knowingly suffer to be kept, in any house, building, yard, garden,
keeping billiard
table, or gaming
house, &c. 2 or dependency thereof, by him actually used or occupied, any table for the purpose of playing at billiards'
* for hire, gain or reward, or shall, for hire, game or reward, suffer any person to resort to the same, for
CHAP. 48.] ( 237 ) [TITLE 9.
4
5
2
the purpose of playing at billiards, cards or dice, or any other unlawful game; every person so offending
shall, for each and every such offence, forfeit a sum not exceeding one hundred dollars, and shall further
recognize, with sufficient sureties, in such reasonable sum as the court shall direct, for his good behavior,
and especially that he will not be guilty of any offence against the provisions of this chapter for the term
of one year then next ensuing.
SEc. 16. If any person shall keep or knowingly suffer to be kept, in any house, building, yard, garden, Penalty for
ºg nine-pin
alley, &c.
or dependency thereof, or in any field, by him owned or occupied, any nine-pin alley, or any alley to be
used in the playing of nine-pins, or any other like game, whether to be played with one or more balls,or with
nine or any other number of pins, for hire, gain or reward, or shall for hire, gain or reward, suffer any
person to resort to the same for the purpose of playing at any such game, every person so offending shall,
for eyery such offence, forfeit a sum not exceeding fifty dollars, and shall further recognize for his good
behavior, in like manner as is required of a person convicted of any offence mºnº in the preceding
section.
SEc. 17. If any person shall play at billiards, cards, dice, nine-pins, or any other unlawful game, at any Penalty for
playing in cer-
tain cascs.
such table or alley, kept or used as mentioned in the two last preceding sections, he shall forfeit a sum not
less than two dollars, nor more than ten dollars for each offence.
Sec. 18. If any person shall make oath before any justice of the peace, that he suspects, or has probable
When warrant
shall issue to
e tº * * º iº º t perSO
cause to suspect, that any house, or other building is unlawfully used as, and for a common gaming house, #; in
gaming house,
&c.
for the purpose of gaming for money or other property, and that idle and dissolute persons resort to the
same for that purpose, such justice, whether the names of the persons last mentoned are known to the com-
plainant or not, shall issue a warrant, commanding the sheriff or any constable to enter into such house
or building, and there to arrest all persons who shall be there found playing for money, or otherwise, and
also the keepers of the same, and to take into their custody all the implements º gaming there found, and s
to bring the said persons and implements before such justice to be dealt with according to law.
60
CHAP. 44.] ( 288 ) [TITLâ 9.
Persons mceting
with carriages,
&c., to turn to
the right. S
Penalty, &c., for
violating prece-
tling section.
Penalty for em-
ploying driver
addicted to
drunkenness.
Owner of coach,
&c., to discharge
driver, on notice
of his being in-
toxicated.
CHAPTER 44.
of THE LAW OF THE ROAD AND THE REGULATION OF PUBLIC CARRIAGES.
1 SECTion 1. Whenever any persons shall meet each other on any bridge or road, travelling with carriages,
2 wagons, carts, sleds, sleighs, or other vehicles, each person shall seasonably drive his carriage or other ve.
3 hicle to the right of the middle of the travelled part of such bridge or road, so that the respective carriages,
4 or other vehicles aforesaid, may pass each other without interference.
1 SEc. 2. Every person offending against the provisions of the preceding section, shall for each offence for-
2 ſeit a sum not exceeding twenty dollars, and shall also be liable to the party injured for all damages sustain-
3. ed by reason of such offence; provided, that proceedings shall be commenced for the recovery of such for.
4 feiture within three months after the offence shall have been committed, and any action for such damages
5 shall be commenced within one year aſter the cause of action shall have accrued-
1 SEc. 3. No person owning, or having the direction or control of any coach, or other carriage or vehicle
2 running or traveling upon any road in this state, for the conveyance of passengers, shall employ, or con-
3 tinue in employment, any person to drive such coach, carriage, or other vehicle, who is addicted to drunk-
4 enness, or to the excessive use of intoxicating liquors; and if any such person shall violate the provisions
5 of this section, he shall forfeit at the rate of five dollars per day for all the time during which he shall have
6 kept such driver in such employment.
1 SEc. 4. If any driver, whilst actually employed in driving any snch coach, carriage of vehicle, shall be
2 guilty of intoxication, it shall be the duty of the owner or person having the sing: or control of such
3 coach, carriage, or other vehicle, on receiving written notice of the fact, signed by any passenger who wit-
4 nessed the same, and certified by him under oath, forthwith to discharge such driver from such emptoyment;
5 and every person who shall retain, or have in such service, within six months after the receipt of such no-
6 tice, any driver, who shall have been so intoxicated, shall forfeit at the rate of five dollars per day for all
.*
7 the time during which he shall keep any such driver in such employment after receiving such notice.
CHAP. 45.] - ( 289 ) [TITLE 9.
I
2
6
Sec. 5. No person driving any carriage or vehicle for the conveyance of passengers for hire upon any
A Driver running
horses guilty of
road or highway in this state, with or without passengers therein, shall run his horses, or cause or permit ºnemeanor,
them to run, upon any occasion, or for any purpose whatever ; and every person who shall offend against
the provisions of this section shall be deemed guilty of a misdemeanor, and on eonviction thereof shall be
punished by a fine not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding
thirty days, or both, at the discretion of the court.
Sec. 6. It shall not be lawful for the driver of any carriage used for the conveyance of passengers for Penalty on dri
ver for leaving
l horses unfasten- '
hire, to leave the horses attached thereto, while any passenger remains in or upon the same, withont ma- cd.
king such horses ſast with a sufficient halter, rope or chain, or without some suitable person to take the
charge and guidence of them, so as to prevent their running ; and if any such driver shall violate the pro-
visions of this section, he shall forfeit a sum not exceeding twenty dollars; but no prosecution shall be
commenced therefor after the expiration of three months from the time of committing the offence.
Sec. 7. The owners of every carriage running or travelling upon any turnpike road or public highway,
Owners of cas-
riage liable for
for the conveyance of passengers for hire, shall be liable, jointly and severally, to the party injured in all ijºo
persons in their
employ.
cases, for all injuries and damages done by any person in the employment of such owners as a driver,
while driving such carriage, to any person, or to the property of any person, whether the act occasioning
such injury or damage be wilful, negligent or otherwise, in the same manner as such director would be
liable.
l
CHAPTER 45.
of THE FIRING OF WOODS AND PRAIRIES.
SECTION 1. Every person who shall wilfully or negligently set fire to any woods, prairies, or grounds,
2 not his own property, or shall wilfully or negligently permit any fire to pass from his own woods, prairies, Wilfully setti'
3 or grounds, to the injury or destruction of the property of any other person, shall be deemed guilty of a
fire to wood’
&c., how
nished.
4 misdemeanor, and on conviction thereof, shall be punished by a fine not exceeding one thousand dollars, or
CHAP. 46.] - ( 240 ) [TITLE 9.
Duty of justices,
&c., in extin-
guishing fires.
Penalty for refu-
sing compliance
with the order.
How owner of
timber, &c., may
reclaim the
sunne, and Con-
sequence of ne-
głcct.
Penalty for dc-
stroying marks
on timber, &c.
5
6
2
5
2
by imprisonment in the county jail not exceeding one year, or both, in the discretion of the court; and
*
shall also be liable to the party injured in double the amount of damages sustained.
SEc. 2. Whenever the woods or prairies in any township shall be on fire, so as to endanger property, it
shall be the duty of the justices of the peace, the Supervisor, and the commissioners of highways of such
township, and each of them, to order such, and so many of the inhabitants of such township, liable to work
on the highways, and residing in the vicinity of the place where such fire shall be, as they shall severally
deem necessary, to repair to the place where such fire shall prevail, and there to assist in extinguishing
the same, or in stopping its progress.
SEc. 3. If any person shall refuse or wilfully neglect to comply with such order, he shall forfeit a sum
not less than five, nor more than fifty dollars.
2
CHAPTER 46.
of TIMBER AND LUMBER FLOATING UPON WATERS, OR CARRIED UPON ADJOINING LANDS.
SECTION 1. Whenever any logs, timber, boards or planks, in raſts, or otherwise, shall be driſted upon any
island in any of the waters within this state, or upon the bank or shore of such waters, the owner of such
logs, timber or lumber may, at any time within one year, remove the same, on paying or tendering to the
owner or occupant of the land such reasonable damages as may have been caused by reason of such drift-
ing, and by reason of such removal, and if the owner shall not, within the said year, make such payment
or tender, and take such logs, timber or lumber from such lands unless he and the owner or occupant of
such lands, shall otherwise agree, the same shall be deemed the property of such owner or occupant of the
lands.
Sec. 2. lf any person shall unlawfully cut out, alter or destroy, any mark of the owner, made on any
logs, timber, or lumber, put into any lake, river, stream or pond, he shall forfeit a sum not exceeding ten
CHAP, 47.] ( 241 ) [TITLE 9.
- 3 dollars, for each log, stick of timber, or piece of lumber, the mark of which he shall have so altered, cut
4 out or destroyed; and shall be liable to the party injured in three times the amount of damages.
1 SEC. 3. In any suit under the provisions of the preceding section, if such logs, timber or lumber shall be
2 found in the possession of the defendant, with the marks cut out, altered or destroyed, it shall be consider-
3 ed presumptive evidence of his guilt, and the burthen of proof shall be upon him to discharge himself.
1 SEC. 4. Whoever shall convert to his own use, without the consent of the owner thereof, any logs, tim-
2 ber, boards, or planks floating in any of the waters of this state, or lying on the banks or shores of such
3 waters, or on any island where the same may have drifted, except as is in this chapter provided for, shall
4 be liable to the owner thereof in treble the amount of damages.
CHAPTER 47.
OF LOST GOODS AND STRAY BEASTS.
Possession of
defendant where
presumptive ev-
idence of guilt.
Liability of per-
son converting
logs, &c.
1 SECTION 1. When any person shall find any lost money, or lost goods, if the owner thereof be known, Notice of finding
2 he shall immediately give notice thereof to such owner; if the owner thereof be unkown, and such money
3 or goods be of the value of three dollars or more, the finder shall, within two days, cause notice thereof to
4 be posted in two public places within the township where the same were found ; and shall also, within seven
5 days, give notice thereoſ in writing to the township clerk of such township, and pay him twenty-five cents
6 for making an entry thereof in a book to be kept for that purpose.
1 Sec. 2. If the money or goods so ſound be of the value of ten dollars or more, and the owner thereof be
2 unknown, the finder thereof shall also, within one month after such finding, cause notice thereof to be ad-
3 vertised in some newspaper in the same county, if one be published there, and if not, then in some news-
4 paper published in an adjoining county and continued therein, for six successive weeks.
goods, &c., how
given.
|b.
61
CHAP. 47.]
( 242 ) [TITLE 9.
Taking up stray
animals,
Notice to owner,
and entry on
to WRship book.
When notice to
be published in
newspaper.
Appraisal of lost
goods and stray
beasts.
When owner to
restitution.
l
2
2
I
I
Sec. 3. It shall be lawful for any resident freeholder of any township in this state, to take up any - striy
horses, mules or asses, by him found going at large in such township, beyond the range where such hone,
mules or asses usually run at large; and also to take up, between the months of November and March,
any stray neat cattle, sheep or swine by him found going at large therein, beyond the range where such
animals shall usually have run at large.
SEC. 4. Such finder shall immediately give notice thereof to the owner of any such animal, iſ known to
him; but if the owner thereof be unknown, such finder shall, within ten days, cause notice thereof to be
entered with the township clerk, in such book as aforesaid, containing a description of the color, age and
natural and artificial marks of such animals, as near as may be, and the name of such finder, and shall
pay such clerk twenty-five cents ſor entering the same ; and shall also cause such notice to be posted up in
two of the most public places in such township.
SEC. 5. If the owner of any such animal or animals shall not, within one month, appear and reclaim them,
and such animal or animals taken up at the same time shall be of the value of ten dollars or more, the fin-
der shall cause such notice to be published in a newspaper in the same county, if one be published there,
and if not, then in a newspaper published in an adjoining county, and continued therein for six successive
\ -
weeks,
* ~
SEC. 6. Every finder of lost goods or stray animals, of the value of ten dollars or more, shall, within
three months, and before any use shall be made thereof, procure an appraisal of the same to be made and
certified by a justice of the peace of his township, which appraisal he shall within said three months, cause
to be filed with the township clerk; and he shall pay to such justice fifty cents for such appraisal and certif-
icate, and six cents for each mile necessarily travelled by him in such service, and to the clerk six cents for
filing the certificate.
SEC. 7. If the owner of any such money or goods, other than stray animals, shall appear at any time
2 within one year after such entry with the township clerk, and shall make out his right thereto, he shall have
3 restitution of the same, or of the value thereof, upon his paying all the costs and charges aforesaid, together
CHAP. 47.] ( 243 ) [TITLE 9.
4 with a reasonable compensation to the finder for keeping and taking care of the same, and for his necessa-
5 ry travel and expenses in the case; which charges shall, in case of disagreement between the owner and
6 finder, be determined by some justice of the peace of the township, who shall certify the same.
1 SEc. 8. If no owner shall appear within one year, then such lost money or goods shall remain to the find- -
When goods,
- &c., º, re-
. g gº & g II) e it fi tº-
2 er, he paying one half of the value thereof to the treasurer of the township, according to said appraise- ..."
- ship entitled to
one-half of va-
lue.
3 ment, after deducting from such value all the fees and charges aforesaid, to be determined and certified by a
4 justice of the peace as aforesaid; and upon his neglect or refusal to pay the said half of the value, the
.*
5 same shall be covered by the township treasurer, in an action of debt or on the case.
1 SEc. 9. If the owner of any such stray beast shall appear within six months after such entry with the
When owner to
have restitution
of stray beasts.
2 township clerk and shall make out his right thereto, he shall have restitution of the same, upon paying all
3 lawful charges as before provided in the case of lost goods.
1 SEC. 10. If such owner shall not appear and make out his title to the animals, within the said six months, sale of stray
beasts, and dis-
position of pro-
ceeds,
2 such animals shall be sold at the request of the finder, by any constable of the township, at public auction,
3 upon first giving notice thereof in writing, by posting up the same in three of the most public places in such
4 township at least ten days before such sale, and the finder may bid therefor at such sale; and the moneys
*.
5 arising therefrom, aſter deducting all the lawful charges aforesaid, and the fees of the constable, which
6 shall be the same as upon a sale on execution, shall be deposited in the treasury of the township.
1 SEC. 11. If the owner of any such animal shall appear within one year after the entry with the township
When owner to
rcceive moneys
2 clerk as aforesaid, and establish by his own affidavit or otherwise to the satisfaction of the township treasu- º: *...
rer.
3 rer, his title thereto, he shall be entitled to receive the money so deposited in the township treasury, from
4 the proceeds of the sale ; and if no owner shall appear within the said year, such money shall belong to
5 the township.
1 SEC. 12. If the finder of any lost money, goods, or stray beasts, shall neglect to cause the samé to be en- Finder neglect-
ing to advertise,
&c., to lose be-
In
2 tered, advertised, or notice thereof to be posted, as directed in this chapter, he shall be precluded from all ºlº
CHAP. 48.] - ( 244 ) [TITLE 9.
Liability of per-
son unlawfully
taking stray ani-
mals.
When horses,
&c., may be
moderately
worked by find-
Cr.
Exemption of
firemen ſrom
militia duty, &c.
1843, p. 17.
3 the benefits of this chapter, and from all claim for keeping such goods or animals, or on account of any
4 charges in relation thereto.
1 SEc. 13. If any person shall unlawfully take away any animal, taken up as a stray pursuant to the pro-
2 visions of this chapter, without paying all the lawful charges incurred in relation to the same, he shall be
3 liable to the finder thereof to the value of such animal, which may be recovered in an action of trespass
4 or on the case.
1 SEC. 14. If any horses, mules or oxen, of sufficient age and strength, and used to work, shall be taken up
2 under the provisions of this chapter as strays, and shall not be reclaimed by the owner within three months
3 after entry thereof with the township clerk, the person taking up the same may moderately and carefully
4 work such horses, mules or oxen within the township where they were so taken up, and the value of such
5 labor shall be deducted from the charges aforesaid. o
CHAPTER 48.
OF FIRE DEPARTMENTS IN CITIES AND WILLAGES.
1 SEETION 1. Every person who was a fireman in any incorporated city or village in this state on the sixth
2 day of February in the year one thousand eight hundred and forty-three, or at any time thereaſter, and who
3 shall have served, and shall continue to serve as such for the term of seven years from that time or from
4 the time of his appointment, if appointed since that time, and every person who may hereafter be appoint-
5 ed a fireman in any such city or village, and shall serve as such for the term of seven years, shall during
6 the time of such service be exempted from serving as a juror in any of the courts of this state; and from
7 the performance of all militia duty, and shall forever thereafter be exempted from the performance of all
8 militia duty, except in cases of insurrection or invasion.
1 sec. 2, it shall be lawful for the qualified voters of any such city or village, at their annual election of
2 officers thereof to authorize the common councilor other corporate board of such city or village, to raise a
CHAP. 48.] ( 245 ) [TITLE 9.
3 sufficient sum to pay each fireman therein the sum of five dollars; and thereupon such sum shall be levied
Compensation
may he raised to
e - - - º compensate fire-
4 and collected, in the same manner as the other contingent expenses of such city or village are levied and men:
5 collected.
1 SEC. 3. Upon such provision being made for the payment of firemen as provided in the preceding section, Payment of
compensation.
2
each fireman who shall produce a certificate from the foreman of his company, cou mersigned by the chief
3 engineer of the fire department of such city or village, stating that he has well and faithfully performed
4 his duties as such fireman during the year then next preceding, shall be allowed and paid out of the treasury
5 of such city or village, the said sum of five dollars as a compension ſor his services.
1 SEC. 4. The recorder or clerk of every such city or village, shall keep an accurate record in a book to be
Record to be
kept by recorder
or clerk.
2
provided ſor that purpose of the name, occupation and residence of every fireman of such city or village, to-
3 gether with the date of his appointment, and a designation of the company to which he is attached;
4 and whenever any fireman shall resign or be removed, it shall be so entered upon such record ; and the
5
appointment, resignation or removal, of every fireman, shall also be entered on the minutes of the common
6 council or other corporate board.
1 SEc. 5. It shall be the duty of the recorder or clerk of such city or village, to deliver to every fireman
2 who shall have served during the said term of seven years as provided in this chapter, a certificate to that ºne of
3 effect, signed by himself and the mayor of such city or president of such village, which certificate shall
4 be received as evidence in any of the courts of this state.
1 SEC. 6. It shall be lawful for the common council or other corporated board of each incorporated city or vil- Taxes for pur-
chasing and re-
pairing engines.
2 lage, to levy and collect, by a tax upon all the taxable real and personal property within the limits thereof,
3 in the manner prescribed in the charter of such city or village for the collection of taxes therein, such sums
4 as may be necessary for the purchasing and repairing of fire engines and other fire apparatus, and for de-
5 fraying all other necessary expenses of the fire department thereof.
62
CHAP. 49.] - + ( 246 ) [TITLE 9.
Fire companies
may make by-
laws, &c.
Fire engines ex-
empted from
execution.
1843, p. 19, sec.
8, 1844, p. 76,
Sec. 1"
Township board
&c., may license
shows, and ex-
hibitions.
I
2
7
Sec. 7. Every fire company shall have power to make such by-laws, rules and regulations, not inconsist-
ent with the laws of this state, for their government and discipline, and to prescribe such penalties for the
violation thereof, not exceeding five dollars for any one offence, as they may deem necessary, to the
efficient accomplishment of the object of their organization; and they may sue for and collect such penal-
ties in the name of the common council or other corporate board of the city or village to which they
belong.
SEc. 8. All fire engines, and apparatus requisite for, and ordinarily used by fire companies in the extin-
guishment of fires, which are now owned, or which may herafter be purchased and owned by any incor-
porated city or village, and kept for the use of any fire company therein, and all waterworks with the buil-
dings, machinery and fixtures, and the ground occupied thereby, now owned or which may hereafler be
purchased and owned by any incorporated city or village, and used or intended to be used for the supplying
of water for the extinguishment of fires and the use of the inhabitants, shall be, and are hereby exempted
from levy or sale for any debt, damages, fine or amercement whatever.
2
3
CHAPTER 49.
of CERTAIN MUNICIPAL * of PolicE.
Theatrical Earhibitions and Public Shows.
SECTION 1. The township board of any township, or the corporate board of any village, may at any meet-
ing heldfor that purpose, license theatrical exhibitions, public shows, and such other exhibitions as they
deem proper, to which admission is obtained on payment of money, upon such terms and conditions as they
shall think reasonable, and may regulate the same in such manner as they shall think necessary for the
preservation of order and decorum, and to prevent any danger to the public peace; but no such license
shall be in force for a longer time than the officers granting the same shall have heen elected to office.
SEC. 2. Any person who shall set up or promote any such exhibition or show, or shall publish or advertise
CHAP. 49.] - ( 247 ) [TITLE 9.
2 the same, or otherwise aid or assist therein, without a license first obtained, as provided in the preceding
- & Punishment for
- setting up shows
* . . . . Ç - ſº . . without license.
3 section, or contrary to the terms and conditions of such license, or while the same is suspended, shall be
4 deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding two
5 hundred dollars.
Gunpowder.
1 SEC. 3. The inhabitants of every township or incorporated village may, at any regular meeting, order that inhabitant, or
townships, &c.,
t may make regu-
t tº . º tº g & G lations in rela-
2 no gunwder shall be kept in any place within the limits of such township or village, unless the same shall tº keeping
gun-powder.
3 be kept in tight casks or canisters, and that no gunpowder, above the quantity of fifty pounds, shall be kept
4 kept or deposited in any shop, store or other building, or in any ship or vessel, which shall be within the
5 distance of twenty-five rods from any other building, or from any wharf; that no gunpowder above the
6 ºnly of twenty-five pounds, shall be kept or deposited in any shop, store or other building, within ten
7 rods of any other building ; and that no gºver above the quantity of one pound, shall be kept or de-
8 posited in any shop, store or other building, within ten rods of any other building, unless the same shall be
9 well secured in copper, tin or brass canisters holding not exceeding five pounds each, and closely covered
10 with copper, brass or tin covers.
When search
warrant may be
issued.
2 that he has probable cause to suspect that gunpowder is deposited or kept within the limits of the township
1 SEC. 4. Upon complaint made on oath to any justice of the peace, by any township or village officer,
3 or village, contrary to law, such justice may issue his warrant directed to any constable of such township,
4 or the marshal of such village, ordering him to enter any shop, store or other building, or vessel specified
5 in said warrant, and there to make diligent.search for the gunpowder suspected to have been deposited or
6 kept as aforesaid, and to make return of his doings to such justice forthwith.
1 SEC. 5. If any person shall commit either of the offences mentioned in the two preceding sections, he
2 shall forfeit a sum not exceeding twenty dollars, but the two preceding sections shall not extend to any §§
preceding sec-
tion S.
3 manufactory of gunpowder, nor in any case prevent the transportation thereof through any township, or
4 from one part of any township to another part thereof.
CHAP, 50.] ( 248 ) [TITLE 9.
Regulations re-
Jating to dogs.
Moneys received
for licenses to be
paid to treasur-
Cr.
Owner, &c.,
when liable in
double damages.
When any §er-
l
son may ki
dog.
Of Dogs.
1 SEC, 6. The inhabitants of any township or incorporated village, may make such by-laws concerning the
2 licensing, regulating and restraining of dogs going at large, as they shall deem expedient,and may affix any
3 penalties not exceeding ten dollars, for any breach thereof; but no such by-law shall extend to any dog not
4 owned or kept in such township, and no person shall be obliged to pay more than two dollars, annually for
5 any license granted under the provisions of this chapter.
1 SEC. 7. All money received for the several licenses mentioned in this chapter shall be paid to the treasurer,
2 for the use of the township or village, as the case may be.
1 Sec. 8. Every owner or keeper of any dog, shall be liable to any person injured by such dog, in double
2 the amount of dapages suctained by him, to be recovered in an action of trespass or on the case.
1 SEc. 9. Any person may kill any dog that shall suddenly assault him, while he is peaceably walking or ri-
2 ins any where out of the enclosure of the owner or keeper of such dog, and any person may kill any
3 dog that shall be found out of the enclosure or immediate care of the * * worrying, or killing
4 any cattle, swine, sheep or lambs, unless the same be done by the direction or permission of the owner of
5 such cattle, swine, sheep or lambs; or which shall have been accustomed to strolling away from the own-
6 er or keeper thereof, and worrying or killing sheep or lambs, or doing other injury.
CHAPTER 50.
of UNAUTHorized BANKING AND CERTAIN NOTES or EVIDENCEs of DEBT Issued BY BANKS.
1 SECTION 1. No person unauthorized by law shall subscribe to, or become a member of, or any way interes-
2 ted in any association or company formed for the purpose of issuing notes or other evidences of debt, to be
3 loaned or put in circulation as money; nor shall any person unauthorized by law, subscribe to, or become
4 in any way interested in any bank or fund created or to be created for the like purposes, or either of them.
CHAP. 50.1 ( 249 ) [TITLE 9
1
2
2
4 of the preceding provisions of this section shall thereby forfeit all its chartered rights and privileges; a
5
SEc. 2. Whoever shall subscribe to, or become a member of any such company, or be interested in any Penalty for sub
- scribing, &c.
such bank or fund, shall forfeit one hundred dollars.
*A
SEc. 3. No incorporated company, without being expressly thereunto authorized by law, shall employ any
& tº o e . Penalty on di-
part of its effects, or be in any way interested in any fund that shall be employed for the purpose of recei- j . ºf
company for un-
lawful banking
ving deposites, making discounts or isnuing notes or other evidences of debt, to be loaned or put in circula-
tion as money; and any director, officer, or agent of any incorporated company who shall violate any
provision of this section, shall forfeit one thousand dollars.
SEc. 4. All notes and other securities for the payment of any money, or the delivery of any property, Notes, &c., gi-
ven to unautho-
- rized company,
made or given to any association, institution or company, that shall be formed for any such unlawful pur- “” Void.
pose as aforesaid, or made or given to secure the payment of any money loaned or discounted by any in- -
corporated company or its officers, contrary to the provisions of the preceding section, shall be void.
Sec. 5. No person, association, or body corporate, whether public or private, except such bodies corporate
Penalty for issu-
e - e e e ing bills, &c., to
as are or shall be expressly authorized by law to do a regular banking business, and to issue bank bills, shall circulatº a mol
ney, without ex-
press authority.
issue any bills, notes, due-bills, draſts, or other evidences of debt, to be loaned or put in circulation as mo-
ney, or to pass or be used as a currency or circulating medium, and every person, and every corporation, lsº, p.m. see.
and every member of such corporation, who shall violate the provisions of this section, or who shall directly
or indirectly assent to such violation, shall forfeit one thousand dollars, and any such corporation shall there.
by ſorfeit all its corporate rights and privileges.
SEc. 6. No corporation authorized by its charter to do a banking business and to issue bank bills, shall
Penalty for sign-
ing certain bills-
make such bills payable in any thing but specie ; or at any other place than its banking house, or office
as located by its charter ; or not payable on demand ; and every such corporation which shall violate any
nd
1842. p. 28, § 2.
every person who shall sign any such bills as president, cashier or otherwise of such corporation, shall for
6 feit a sum not less than five hundred dollars, nor more than one thousand dollars.
- 63
CHAP. 51.] ( 250 ) [TITLE 9.
Penalty for cir-
culating certain
bills.
Bounty for kill-
ing wolves, &c.
Wolf or wolf's
heads, &c., to be
taken to justice.
Examination of
applicant.
1 SEC. 7. No person shall pay, give, or receive in payment, or in any way circulate or attempt to circolate
2 any bank bill, promissory note, or other evidence of debt, issued by any banking company, or by any oth-
3 er corporation, within this state, or elsewhere, which shall purport to be for the payment of a less sum
4 than one dollar, or which shall be made payable otherwise than in specie on demand ; and every person
5 who shall violate any of the provisions of this section, shall for each offence forfeit a sum not exceeding
6 fifty dollars, but no prosecution shall be commenced therefor, after the expiration of three months from the
7 time of committing the offence.
CHAPTER 51.
OF THE DESTRUCTION OF WOLVES AND OTHER NOXIOUS ANIMALS.
1 SECTION 1. Every person, being an inhabitant of this state, who shall kill a full grown wolf, or a wolf's
2 whelp, in any organized township in this state, shall be entitled to a bounty of eight dollars for each wolf
3 over three months old, and four dollars for each wolf’s whelp under the age of three months, to be allowed
4 and paid in the manner hereinaſter provided.
1 SEC. 2. Every person intending to apply for such bounty, shall take such wolf or wolf's whelp killed by
2 him, or the head thereof, with the ears and skin entire thereon, to one of the justices of the peace of the
3 township within which such wolf or whelp shall have bºn taken, who shall thereupon associate with him
4 another justice, or an assessor or commissioner of highways of such township, to act with him in deciding
5 upon such application.
1 SEC. 3. The person claiming such bounty shall then be sworn by such justice, and state on oath the time
2 and place, when and where every wolf and wolf's whelp, for which a bounty is claimed by him, was taken
3 and killed ; and he shall also submit to such further examination on oath, concerning the taking and killing
4 of such wolf or whelp, as the justice and officer associated with him may require, and the statement made
5 by him shall be reduced to writing in the ſorm of an affidavit, which shall be subscribed by the person ma-
(6 king it.
CHAP. 51.] ( 251 ) •. [TITLE 9.
1 SEC. 4. If it shall appear to the justice and officer associated with him, that the wolf or whelp was taken
When certificate
to be given.
2
and killed within such township by the person applying for such bounty, and that the mother of any such
3
whelp was not taken before she brought forth the same, they shall cut off and burn to ashes, the ears
4 and scalp of such wolf or whelp, and deliver to the person so applying a certificate of the facts, and wheth-
5 er the same was over or under the age of three months when taken, annexing thereto the original affidavit
6 made and subscribed by such person.
1 SEc. 5. Such certificate, with the affidavit annexed, shall, within fifteen days after the date thereof, be de-
2
e g e e e tº b
livered to one of the supervisors of the same county; and if such supervisor shall doubt the correctness of º:
pervisor.
3 the certificate or affidavit, he shall give notice to the person claiming the bounty, to give further evidence
4 of the correctness thereof, and shall retain the papers in his hands until such further proof shall be made.
1 SEC. 6. If such supervisor shall have no doubt as to the correctness of such certificate and offidavit, or if
2 his doubts shall be removed by further proof, he shall lay such certificate and affidavit before the board of §:..
aid before board
of supervisors,
e e . te e tº &c.
3 supervisors at their next meeting, and if the board shall be satisfied that such certificate and affidavit are C
4 just and correct, they shall award to the person to whom such certificate shall have been granted, the boun.
5 ty above specified, and shall cause the certificate and affidavit to be filed with their clerk.
1 SEC. 7. Duplicate certificates, stating all the bounties that shall have been allowed by the board at any
Duplicate to cer-
2 meeting, shall be made under their direction, and after being signed by their chairman, and clerk, shall be jº"
vered to treasu •
rer, and boun-
3 delivered to the county treasurer, who shall thereupon pay to the several persons named in such certificate, ties paid.
4 out of any moneys in the treasury for defraying the contingent expenses of the county, the bounties to
5 them respectively allowed. *
1 SEc. 8: The county treasurer shall charge to the treasurer of the state, the one half of all the bounties al-
One-half of
bounties to be
te tº * > harged to stat
2 lowed by the board of supervisors, and shall transmit an account thereof to the auditor general, accompa- º *
3 nied by one of the duplicate certificates, received from the board of supervisors; and shall also procure and
4 transmit with such account, a certified copy of the original certificates and affidavits filed with the clerk of
5 the board of supervisors, upon which the bounties mentioned in such account shall have been allowed.
CHAP, 51.] * ( 252 ) | [TITLE 9.
1 SEc. 9. The auditor general shall examine every account so transmitted to him, and if he shall discover
Auditor general
to examine ac-
:::::::::::” 2 any defect or irregularity, which shall induce him to believe that the same ought not to be allowed, he may
Ol),
3 suspend, in whole or in part, as he may think proper, the payment of such account, until satisfactory proof
4 be made to him, by affidavit or otherwise, of the justice of such account; and if the further proofs produc-
5 ed to him shall not be satisfactory, he shall reject such portion of the account as shall have been suspended,
6 and his decision thereon shall be final and conclusive.
Sums audited to 1 SEC. 10. Every sum audited and allowed by the auditor general, upon any such account, not exceeding
be paid out of.
state treasury.
2 the one half of the bounties allowed by the board of supervisors, shall be paid out of the treasury of the
3 state, to the treasurer of the county from which such account was transmitted.
1 SEc. 11. The boards of supervisors of the several counties of this state, shall have power, at the expense
Additional boun-
tieS. 2 of their respective counties, to award and allow such other and further bounties for the destruction of wolves
3 wolf whelps, and such bounties for the destruction of panthers and other noxious animals within their re-
4 spective counties, as they may think proper; and the same proof shall be required in such case, as is here-
5 inaſter prescribed, and such additional or other bounties, when duly allowed and certified, shall be paid out
6 of the county treasury.
1 SEc. 12. If any, justice of the peace, or other officer, who shall be applied to for a certificate under the
Giving false cer-
tificate, a misde- tº º © & tº iº tº o & wº
...” 2 provisions of this chapter, shall wilfully give a ſalse certificate in the premises, such justice or other officer
3 shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not excee-
4 ding five hundred dollars, or imprisonment in the county jail not exceeding one year.
CHAP, 52.] . ( 253 ) - [Turls 10.
TITLE X.
OF CORPor ATIONS.
CHAPTER 52—Of Religious Societies.
46 53—Of Libraries, and Lyceums.
4 & 54—Of Burying Grounds.
& 4 55—General Provisions relating to Corporations.
CHAPTER 52.
OF RELIGIOUS SOCIETIES.
1 SECTION 1. It shall be lawful for all persons of full age, belonging to any church, congregation or re-
Person belong-
ing to religious
2 ligious society, not already incorporated, to assemble at the church, or meeting house, or other place where .
r - €leCt trustees.
8 they statedly attend for divine worship, and by a plurality of votes to elect any number of discreet persons
4 of their church, congregation or society, not less than three nor more than nine in number, as trustees to
5 take charge of the estate and property belonging thereto, and to transact all affairs relative to the tempo-
6 ralities thereof. -
1 SEC. 2. It shall be lawſul for any such church, congregation or religious society to choose their minister e. e
& residents of
corporations,
who entitled to
2 to be the president of the said corporation, and of their meetings by a vote as aforesaid; and at the election *
3 provided for in this chapter, every person of full age, who has statedly worshiped with such church, con-
4 gregation or society, and has been formerly considered as belonging thereto, shall be entitled to a vote.
1 SEC. 3. The minister of such congregation or society, or in case of his death or absence, one of the elders
jºins elec-
* - g OI! S.
2 or deacons, church wardens or vestrymen thereof, and for the want of such officers, any other person, be-
3 ing a member or stated hearer in such church, congregation or society, shall publicly notify the congrega-
4 tion of the time when, and the place, where the said election, shall be held, at least fifteen days before the day
64
Char. 52.] ( 254 ) | [TITLE, 10.
Who to preside,
certificate,
Certificate to be
acknowledged
and recorded.
Powers of trus-
teeg.
5 of election; and such notification shall be given for two successive sabbaths, on which such church, congre-
6 gation or society shall statedly meet for public worship, preceding the election.
1 SEc. 4. Any two of the elders, deacons, church wardens or vestrymen of such church, congregation or
2 society, or, if such officers shall not be present, then any two voters present, to be nominated by a majority
3 of the voters, shall preside at such election, receive the votes, and determine the qualification of voters;
4 and they shall immediately after the election certify under their hands and seals, the names of the persons
5 elected to serve as trustees; in which certificate, the name by which the said trustees and their successors
©
6 in office shall forever thereafter be called and known, shall be particularly mentioned and specified.
1 Sec. 5. Such certificate shall be acknowledged by the person making the same, or proved by a subscrib-
2 ing witness thereto before some officer authorized to take the acknowledgment of deeds, and recorded, to-
3 gether with the certificate of such acknowledgment or proof, by the clerk of the county within which the
4 church or place of worship of such congregation shall be situated, in a book to be provided by him for that
5 purpose ; who shall be entitled to receive seventy-five cents for such recording ; and thereafter such trus-
6 tees and their successors, shall be a body corporate by the name expressed in such certificate.
1 SEC. 6. Such trustees may have a common seal, and may alter the same at pleasure, and they may take
2 into their possession and custody all the temperalities of such church, congregation or society, whether the
3 same shall consist of real or personal estate, and whether the same may have been given, granted or devis-
4 ed, directly or indirectly to such church, congregation or society, or to any other person or persons for
5 their use.
1 SEC. 7. Such trustees my also in their corporate name, sue and be sued in all courts and places, and
* they may recover and hold, all the debts, demands, rights and privileges, all churches, buildings, burying
3 places, and all the estate and appurtenances belonging to such church, congregation or society, in whatso-
4 ever manner the same may have been acquired, or in whose hands *: the same may be held, as fully
5 and amply as if the right and title thereto had been originally vested in the said tune ; and they may
6 hold other real or personal estate, and demise, lease and improve the same; but the whole of such estate,
7 real and personal, shall not exceed the yearly value or income of three thousand dollars.
Char. 52.] - ( 255 ) [TITLE 10.
1 SEc. 8. The said trustees shall also have authority to alter and repair their churches and meeting houses,
w Ib.
2 and under the direction of the society or congregation, to erect churches and meeting houses, and dwelling
3 houses for their ministers, and other buildings ſor the use of their church, congregation or society.
1 Sec. 9. They shall also have authority to make rules and orders for managing the temporal affairs of such
Ib.
2 church, congregation or society, and to dispose of all moneys belonging thereto, and to order and regulate
3 the renting of pews or slips in their churches and meeting houses, and the perquisites for the breaking of
4 the ground in the cemetery or church yard, and in the said churches and meeting houses, for burying the
5 dead.
1 SEC. 10. They may appoint a clerk and treasurer of their board, and a collector to collect and receive Appointment of
clerk and treasu-
ICr.
2 their rents and revenues, and may regulate the ſees to be allowed to such clerk, treasurer and collector, and
3 may remove them and appoint others in their stead at pleasure ; and such clerk shall enter all rules and
4 orders made by such trustees, and payments ordered by them, in a book to be procured by them for that
5 purpose.
I Sec. 11. Any two of the trustees may at any time call a meeting of the trustees; and a majority of them rº, ºn.
may call meet-
ing.
2 being lawfully convened, shall be competent to do and perform all matters and things which such trustees
3 are authorized to do and perform.
1 Sec. 12. The said trustees shall hold their offices for three years; and immediately after their first elec-
2 tion, as hereinbefore provided, the said trustees shall be be divided by lot into three classes, numbered one, classification of
- tru 8tee8.
3 two and three 3 and the seats of the first class shall be vacated at the end of the first year, of the second
4 class at the end of the second year, and of the third class at the end of the third year, to the end that as
5 near as may be, one third part of the whole number of trustees may be annually chosen.
1 SEC. 18. It shall be the duty of the clerk of said trustees, at least one month before the expiration of the of. ..º.
* of trustee, and
notice of elec-
2 fice of any of the said trustees, to notify the same in writing to the minister, or in case of his death or ab-.”””
3 sence, to the elders or church wardens, and if there be no elders or church wardens, then to the deacons or
CRAF, 52.] ( 256 ) - [TITLE 10.
Conducting elec-
tion and filling
vacancies.
Qualification of
voters, after first
election.
Clerk to keep
register of stated
hearers.
Majority of soci-
ety to fix com-
pensation of mi-
Ilister,
4 vestrymen of any such church, congregation or society, specifying in such notice the names of the trustees
5 whose office will expire; and the minister, or other officers receiving such notice shall, in manner aforesaid
6 notify the members of such church, congregation or society of such vacancies, and appoint the time, and
7 place for the election to supply the same.
1 SEC, 14. Such election, shall be held at least six days before vacancies shall wn as aforesaid, and all
2 Such subsequent elections shall be held and conducted by the same persons, and in the same manner as
3, hereinbefore, provided for the first election; and in case any vacancy shall happen by the death of a trus-
4 tee, his refusal to act, or removal from the society before his term of office expires, or otherwise, notice
5 thereof shall be given as aforesaid, and an election shall be held, and another trustee chosen in his stead
6 for the remainder of such term.
1 SEC, 15. No person lºnges to any such church, congregation or society, incorporated under the pro-
2 visions of this chapter, shall be entitled to vote at any election after the first, until he shall have been an
3 attendant on public worship in such church, congregation or society, at least six months before such elec-
4 tion, and shall have contributed to the support of such church, congregation or society, according to the
5 usages and customs thereof.
1 SEc. 16. The clerk of the trustees shall keep a register of the names of all such persons as shall desire
2 to become stated hearers in the said church, congregation or society, and shall therein note the time when
3 such request was made, and the said clerkshall attend all subsequent elections, in order to test the qualifi-
4 cations of such voters, in case they shall be questioned.
1 Sec. 17. Nothing in this chapter contained, shall be construed to give to such trustees the power to fix or
2 ascertain the salary or compensation to be paid to any minister, but the same shall be ascertained and fixed
3 by a majority of such society entitled to vote at the election of trustees.
1. Sec. 18. It shall be lawful for the circuit court for the county in which any such religious corporation
\
2 shall have been constituted, on the application of such corporation, if such court shall deem, it proper, to
CHAP. 52.] ( 257 ) [TITLE 10.
3
4
make an order for the sale of any real estate belonging to such corporation, and to direct the application of when circuit
court may order
sale of property.
the moneys arising therefrom, to such uses as the said corporation, with the approbation of such court, shall
conceive to be for the interest of such corporation.
& x.
SEc. 19. At least thirty days previous notice of any such application to the circuit court shall be given, by
Notice of appli-
* * * o º & º tº * cation for order.
publishing the same in some newspaper published in the county, if one be there published, and if not, by
posting up notices in three or more public places in such county.
. 20. Every church, congregati religi º g * * Churches, &c.,
SEC very rch, congregation or religious society, heretofore incorporated in pursuance of law, ; incor-
- porated.
and not since dissolved, shall be, and is hereby established and confirmed; and in case of the dissolution of
any such corporation, or of any corporation hereafter to be formed in pursuance of the provisions of this
chapter, ſor any cause whatever, the same may be incorporated under the provisions of this chapter, at any
time within six years after such dissolution ; and thereupon all the estate, real and personal, formerly be-
longing to the same, and not lawfully disposed of, shall vest in such corporations as if there had been no
such dissolution.
SEc. 21. All lands, tenements and hereditaments, that have been or may hereafter be lawfully conveyed
Land, &c. con-
veyed to trustee.
by devise, gift, grant, purchase or otherwise, to any persons as trustees, in trust for the use of any religious
society organized, or which may hereafter be organized within this state, either for a meeting house, bury-
ing ground, or for the residence of a preacher, shall descend, with the improvements, in perpetual succes-
5 sion to, and shall be held by such trustees, in trust for such society.
l
2
5
6 called and known, which certificate shall be ackn
&
SEC. 22. Whenever by the constitution, rules or usages of any particular church or religious denomina-
- Appointment of
wº e e e ‘e tº * e trustees in cer-
tion, trustees are required to be appointed by any minister, presiding elder, or other officer or officers of tain cases.
such church or denomination, it shall be the duty of such minister, presiding elder, or other officer or offi-
cers, to give to such trustees a certificate of their appointment, under the hand and seal of the person ma-
king the same, speciſying the name by which such trustees and their successors shall forever thereafter be
~ -
owledged or proved and recorded as is hereinbefore direc-
65
CHAP. 53.] ( 258 ) g [TITLE 10.
*
1840, p. 16, &c.
When minister, .
deacons, &c., to
be trustces, &c.
1840, p. 79. T
Meeting of pro-
prietors to form
corporations,
how called.
Proprietors may
choose officers.
7
8
*
ted, whereupon such trustees and their successors appointed in the same manner, shall be a body corporate,
by the name expressed in such certificate ; with all the rights, powers and privileges of other religious cor-
9 porations constituted according to the provisions of this chapter.
I
2
SEC. 23. Whenever by the constitution, rules and usages of any particular church or religious denomina-
tion, the minister or ministers, elders and deacons, or other officers, elected by any church or congrega-
tion, according to such constitution, rules or usages, are thereby constituted the trustees of such church or
*
congregation, it shall be lawſul for such minister or ministers, elders and deacons, or other officers, to as-
'semble together, and execute under their hands and seals a certificate, stating therein the name by which
they and their successors in office shall forever thereafter be called and known, which certificate shall be
acknowledged or proved and recorded as hereinbefore directed ; whereupon such persons and their succes-
sors in office, shall be a body corporate by the name expressed in such certificate, with all the rights, pow-
sº
ers and privileges of other religious corporations, constituted according to the provisions of this chapter.
2
2
CHAPTER 53.
OF LIBRARIES AND LY CEUMS.
SECTION 1. Any seven or more proprietors of a library may form themselves into a corporation, under
such corporate name as they may adopt, for the purpose of enlarging, regulating and using such library ;
and for that purpose any justice of the peace may, on the application of five or more of the proprietors is-
sue his warrant to one of them, directing him to call a meeting of the proprietors, at the time and place ex-
| -
pressed in the warrant, for the purpose of forming such corporation, and such meeting shall be called by
posting up a notice containing the substance of such warrant, in at least two public places in the township
where such library is kept, at least seven days before the time of meeting.
SEc. 2. Any seven or more of the proprietors of such library, met in pursuance of such notice, may choose
a president, a clerk, a librarian, collector, treasurer, and such other officers as they may deem necessary ;
CHAP.53.] ( 259 ) [TITLE 10.
3 and they may also determine upon the mode of calling future meetings of the proprietors; and the procee-
4
5
dings of such first meeting, containing a specification of the corporate name adopted by such proprietors,
shall be certified by the clerk of such corporation, ard recorded by the county clerk of the county within
which the same is formed, who shall be entitled to receive seventy-five cents for recording the same.
SEC. 3. When such proprietors shall be organized as a corporation in the manner herein before provided,
Powers and pri-
vileges of corpo-
ration.
they shall have all the powers and privileges, and be subject to all the duties of a corporation, according to
ihe provisions of chapter fiſty-five, so far as such provisions shall be applicable in such case, and not in-
consistent with the provisions of this chapter.
SEc. 4. The treasurer and collector shall give bond to such corporation, with sufficient sureties, to the sat-
Bond of collect-
or and treasurer.
isfaction of the president, for the faithful discharge of their duties.
SEc. 5. The said proprietors may raise such sums of money, by assessment on the shares, as they shall
jndge necessary for the purpose of preserving, enlarging and using the library ; and the shares may be sº
transferred according to such regulations as they may prescribe, and such corporation may hold real and
personal estate, to any amount not exceeding five thousand dollars, in addition to the value of their books.
Of Lyceums.
SEC. 6. Any fifteen or more persons, in any township or county within this state, who shall by *º how
Organized, &c.
associate for the purpose of mental improvement, and the promotion of education, may form themselves -
into a corporation by the name of “The Lyceum of ,” (the name of the place where
the meetings of the corporation are to be holden) by calling their first meeting and being organized in like
manner as is provided in this chapter, in the case of library corporations, and every lyceum, upon becom-
ing a corporation as aforesaid, shall have, during the pleasure of the legislature, all the like rights, powers,
and privileges, as the proprietors of such libraries, and may hold real and personal estate, not exceeding
six thousand dollars.
CHAP. 49.] ( 260 ) - [TITLE 10.
CHAPTER 54.
OF BURYING GROUNDS.
g g I SECTION 1. Any seven or more persons of full age, who have or may become joint owners of any parcel
Joint proprietors
of land may -
form corpora- *. º ge &
$iOI). 2 of land for the purpose of a burying ground for the dead, may form themselves into a corporation by such
name as they shall adopt, for the purpose of fencing, improving, ornamenting, and keeping the same in
1840, p. 155, &c.
4 suitable condition, in the manner hereinafter provided.
Proceedings to 1 SEc. 2. Upon the application of any five of such proprietors to any justice of the peace of the county in
r -
organize.
which such ground is situated, he shall issue his warrant to one of such proprietors, directing him to call a
meeting of the proprietors at the time and place, and for the purpose expressed in the warrant, and such
meeting shall be called in obedience to such warrant, by posting up a notice thereof, containing the substance
of the warrant, in at least two public places in the township, city or village in which such ground is situa-
ted, at least seven days before the time of holding such meeting.
*s
SEc. 3. Any seven or more of such proprietors who shall meet in pursuance of such notice, may choose
Choosing offi- -
CerS.
a president, clerk, collector, treasurer, sexton, and such other officers as they may determine to be neces-
3 sary, and may also provide for the manner of calling future meetings.
* 1 SEC. 4. Such clerk shall make out a certificate of the organizati t gº & ſº e
Certificate to be ganization of such corporation, specifying the
* and recor-
e e 2
corporate name thereof, the officers chosen at such meeting, and the description of the ground belonging to
such corporation; which certificate shall be signed and acknowledged by the president and clerk of such
corporation, and recorded in the office of the county clerk, who shall be entitled to receive seventy-five
5 cents for recording the same. . * *
...A
powers and pri. 1 SEC. 5. When such proprietors shall be organized as a corporation in the manner hereinbefore provided,
vileges of corpo- . . *
rations.
2 they shall have all the powers and privileges, and be subject to all the duties and liabilities of a corporation,
3 according to the provisions of chapter fiſty-five, so far as such provisions shall be applicable in such case,
--- (>
4 and not inconsistent with the provisions of this chapter,
Chap. 55.] ( 261 ) [TITLE 10.
1 SEc. 6. The treasurer and collector shall give bonds to the corporation, with sufficient sureties to the sat.
Treasurer and
collector to give
- bond.
2 isfaction of the president, for the faithful discharge of their duties. s -
1 SEC. 7. The said proprietors may raise such sums of money by assessment on the shares, as they shall certain powers
of corporation.
2 judge necessary for fencing, improving, ornamenting and keeping such ground, and the shares may be
3 transferred according to such regulations as they may prescribe ; and such corporation may hold so much
4 real and personal estate as shall be necessary for the purposes contemplated in this chapter, and no more.
CHAPTER 55.
GENERAL PROVISIONS RELATING TO CORPORATIONS.
Section. 1. All corporations shall, when no other provision is specially made, be capable, in their corpo-
Corporation ina)
* sue and be sued,
e * clect officers,and
rate name to sue and be sued, appear, prosecute and defend all actions and causes to final judgment and jeº.
execution, in any courts or elsewhere ; to have a common seal which they may alter at pleasure ; to elect
in such manner as they shall determine to be proper, all necessary officers, and to fix their compensation,
5 and define their duties and obligations ; and to make by-laws and regulations consistent with the laws of
6 the state, ſor their own government, and for the due and orderly conducting of their affairs, and the man-
7 agement of their property.
SEc. 2. All corporations may, by their by-laws, where no other provision is specially made, determine
Nature of by-
e lawys.
the manner of calling and conducting their meetings, the number of members that shall constitute a quo-
rum, the number of shares that shall entitle the members respectively to one or more votes; the mode of
voting by proxy, the mode of selling shares for the non-payment of assessments, and the tenure of office of
the several officers; and they may prescribe suitable penalties for the violation of their by-laws, not ex-
ceeding in any case twenty dollars, for any one offence; but no such by-laws shall be made by any corpo-
ration, repugnant to the provisions of its charter.
66
CHAP. 55.] ( 262 ) [TITLE 10.
Notice of incCt-
ings.
lb.
When notice un-
neccssary.
Members inlay
fill Vacancies,
&c. tº
Corporation may
hold and convey
and ; transfer of
shares.
2
I
2
Sec. 3. The first meetings of all corporations unless otherwise provided for in their acts of incorporation,
shall be called by a notice signed by one or more of the persons named in the act of incorporation, setting
forth the time, place and purposes of the meeting; and such notice shall, at least twenty days before the
meeting, be delivered to each member, or published in some newspaper of the county where the corporation
shall be established, or if no newspaper be published in the county, then in some newspaper published in
an adjoining county.
Sec. 4. Whenever, by reason of the death, absence, or other legal impediment of the officers of any cor-
poration, there shall be no person duly authorized to call or preside at a legal meeting thereef, any justice
of the peace of the county where such corporation is established may, on a written application of three or
more of the members thereof, issue a warrant to either of the said members, directing him to call fl. 11166-
ting of the corporation, by giving such notice as shall have been previously required by law ; and the jus-
tice may, in the same warrant, direct such person to preside at such meeting until a clerk shall be duly cho-
sen and qualified, if there shall be no other officer present legally authorized to preside thereat.
SEc. 5. When all the members of a corporation shall be present at any meeting, however called or noti-
fied, and shall sign a written consent thereto on the record of such meeting, the doings of such meeting
shall be as valid, as if legally called and notified.
SEc. 6. The members of such corporation, when so assembled, may elect officers to fill all vacancies
then existing, and may act upon such other business as might lawfully be transacted at regular meetings
of the corporation,
Sec. 7. Every snch corporation may hold land to an amount authorized by law, and may convey the same;
and whenever the capital stock of any such corporation is divided into shares, and certificates thereof are
issued, such shares may be transferred by endorsement and delivery of the certificates thereof, such indorse-
ments being by the signature of the proprietor, or his attorney or legal representative ; bu such transfer
shall not be valid, except between the parties thereto, until the same shall have been so entered on the books
CHAP. 55.] ( 263 ) [TITLE 10.
6
2
10
g r o º Af º
of the corporation, as to show the names of the parties, the number and designation of the shares, and the
date of the transfer.
SEC. 8. All corporations whose charters shall expire by their own limitation, or shall be annulled by for-
Corporation to
continue three
e • *z, * - * º º º º ears after disso-
feiture or otherwise, shall nevertheless continue to be bodies corporate, for the term of three years after ...:
tain purposes.
the time when they would have been so dissolved, for the purpose of prosecuting and defending suits by or
against them, and of enabling them gradually to settle and close their concerns, to dispose of and convey
their property, and to divide their capital stock; but not for the purpose of continuing the business for which
such corporations have been or may be established.
SEC. 9. When the charter of any corporation shall expire or be annulled, as provided in the preceding
Powers of court
of chancery af-
section, the court of chancery, on the application of any creditor of such corporation, or of any stock hol- ter dissolution.
der or member thereof, at any time within the said three years, may appoint one or more persons to be re-
ceivers or trustees oſ, and for such corporation, to take charge of the estate and effects thereof, and te col-
lect the debts and property due and belonging to the corporation, with power to prosecute and defend, in
the name of the corporation, or otherwise, all such suits as may be necessary or proper for the purposes
aforesaid, and to appoint an agent or agents under him or them, and to do all other acts which might be done
by such corporation, if in being, that may be necessary for the final settlement of the unfinished business
of the corporation; and the powers of such receivers or trustees may be continued beyond the said three
years, and as long as the court shall think necessary for the purposes aforesaid.
Sec. 10. The said receivers or trustees shall pay all debts due from the corporation, if the funds in their
Duties of recciv-
ers, &c.
hands shall be sufficient thereſor, and if not they shall distribute them rateably among all the creditors who
shall prove their debts in such manner as shall be directed by said court, and if there shall be any balance
remaining after the payment of said debts, the receivers or trustees shall distribute and pay the same to and
among those who shall be justly entitled thereto, as having been stockholders or members of the corpora-
tion, or their legal representatives,
CHAP. 55.] ( 264 ) [TITLE.10
When franchise
may be sold on
cxceution.
Notice of sale on
execution.
Adjournment of
sale.
Who considered
highest bidder.
Officers return,
and rights of
purchaser.
1 SEC. 11. When any judgment shall be recovered against any turnpike or other corporation, authorized to
2 receive toll, the franchise of such corporation with all the rights and privileges thereoſ, so far as relates to
3 the receiving of toll, may be taken on execution, and sold by public auction.
1 SEC. 12. The officer having such execution against any cerporation mentioned in the preceding section,
2 shall, thirty days at least, before the day of sale of any franchise or other corporate personal property, give
3 notice of the time and place of sale, by posting up a notice thereof in any township in which the clerk, treas-
4 urer, or any one of the directors of such corporation may dwell, and also by causing an advertisement of
5 the sale, expressing the name of the creditor, the amount of the execution, and the time and place of sale,
6 to be inserted three weeks successively in some newspaper published in any county in which either of
7 the aforesaid officers may dwell, if any such there be, and if no newspaper be publishod in any such coun-
8 ty, then in the state paper.
1 SEc. 13. The officer who may levy any execution, as prescribed in the preceding section, may adjourn
a
2 the sale from time to time as may be necessary, until the sale shall be completed.
1 SEC. 14. In the sale of the franchise of any corporation, the person who shall sstisfy the execution, with
2 all legal fees and expenses thereon, and shall agree to take such franchise for the shortest period of time,
8 and to receive during that time all such toll as the said corporation would by law be entitled to demand, shall
4 be considered as the highest bidder.
1 SEc. 15. The officer's return on such execution shall transfer to the purchaser all the privileges and im-
2 munities which by law belonged to such corporation, so far as relates to the right of demanding toll; and
3 ſhe officer shall, immediately after such sale, deliver to the purchaser possession of all the toll, houses and
$4 gates belonging to such corporation, in whatever county the same may be situated; and the purchaser may,
'5 ºthereupon demand and receive, all the toll which may accrue during the time limited by the terms of his
6 purchase in the same manner; and under the same regulations, as such corporation was before authorized
7 to demand and receive the same.
CHAP. 55.] ( 265 ) [TITLE 10
*
2
5
2
Sec. 16. Any person who may have purchased, or shall hereafter purchase under the provisions of the
f
Purchaser may
recover penal-
chapter, the franchise of any such turnpike or other corporation, and the assignees of such purchaser, may “”
recover in an action on the case, any penalties imposed by law for an injury to the franchise, or for any
other cause, and which such corporation would have been entitled to recover during the time limited in the
said purchase of the franchise ; and during that time the corporation shall not be entitled to prosecute for
such penalties.
SEc. 17. The corporation whose franchise shall have been sold as aforesaid, shall in all other respects, I’owers and du
ties of corpora-.
tion after sale of
retain the same powers, and be bound to the discharge of the same duties, and liable to the same penalties franchise.
and forfeitures, as before such sale.
SEc. 18. Such corporation may, at any time within three months after such sale, redeem the ſranchise by
. how
redeemed.
paying or tendering to the purchaser thereof the sum that he shall have paid therefor, with twelve per
cent. interest thereon, but without any allowance for the toll which he may have received ; and upon such
payment or tender, the said ſranchise, and all the rights and privileges thereof, shall revert and belong to
said corporation, as if no such sale had been made.
SEc. 19. Whenever any damages may have been, or may hereaſter be assessed in favor of any person,
How damages
• * tº - e - º º e may bo recover-
for any injury sustained in his property by the doings of any such turnpike or other corporation authorized º lil CCI fºul Il Cil-
º - S 8.
to receive toll or pay for the transportation of persons or property, and the said damages shall remain un-
paid for the space of thirty days after such assessment, such person may have a warrant of distress against
•ºs
such corporation, for the damages assessed, together with interest thereon, and his reasonable costs, and the
same proceedings shall be had thereon and with the same effect, as upon an execution issued upon a judg-
ment against such corporation.
Sec. 20. All the proceedings aſoresaid, respecting the levy of executions and warrants of distress,
When procced-
ings on execu-
may be had in any county in which either the creditor, or the president, or any director, or the treasurer or º, may
clerk of the corporation may reside,
CHAP. 55.]
( 266 ) [TITLE 10.
When contrilou-
tion may be en-
forced in chan-
cery.
\What acts of in-
corporation inay
be altered or re-
pealed.
1839, p. 218, § 11.
Returns to su-
pervisors.
ºrfeiture for
.ieglect
Forfeiture for
transferring
shares fraudu-
lently.
5
7
2
I
2
Sec. 31. When the officers or members of a corporation, or any of them, are liable for any debts of the
corporation, or for any acts of such officers or members, respecting the business of the corporation, and al-
so when any of the said officers or members shall be liable to contribute, for money paid by any other or
others of them, on account of any such debts or acts, the money may be recovered by a bill in the court
of chancery; and the said court may make all such orders and decrees therein, as may be necessary to do
justice between the parties,
g
SEc. 22. Every act of incorporation passed since the twentieth day of April in the year one thousand
* **, *
alteration or repeal, at the pleasure of the legislature ; provided that no act of incorporation shall be re-
pealed, unles for some violation of its charter or other default, when such charter shall contain an express
provision limiting the duration of the same.
SEC. 23. It shall be the duty of the clerk of every corporation within this state, whose capital stock is or
shall be subject to taxation for county or township purposes, and if there be no such clerk, then of the di-
rectors of such corporation, annually, between the fiftenth day of March and the first day of April, to
nake returns in person or by mail, to the supervisor of each township, and the assessors of each city in this
state, in which any share holder in such corporation shall reside ; which return shall state the name of
each owner residing in such township or city, the number of shares belonging to each on the fifteenth day
of March of that year, and the par value of such shares,
SEc. 24. If any clerk or director metioned in the preceding section, shall refuse or neglect to make such
return, or shall wilfully make a false return, he shall forfeit the the sum of fifty dollars.
Sec. 25. If any shareholder shall fraudulently transfer any share in either of the corporations mentioned
in the twenty-third section of this chapther, for the purpose of avoiding taxation, he shall forfeit a sum
equal to one half the par value of the shares so transferred.
SEc. 26. The cashier of each bank, and the secretary or clerk of each incorporated railroad, canal or
Ch.A.P. 55.] ( 267 ) - º [TITLE 10.
2
turnpike company shall, on the first Monday of October in each year, or within fifteen days previous there.
Returns to state
* & & g & I refl Sur Or.
to, make a return to the state treasurer, verified by his oath, stating the amount of capitol stock of such
bank or railroad, canal or turnpike company then actually paid in, and in default thereof, the whole capi-
tal stock mentioned in the act of incorporation of such bank or company shall, for the purpose of com-
puting the state tax payable by such bank or company, be deemed to have been paid in.
SEc. 27. It shall be the duty of the attorney general whenever and as often as he shall be required by the
e © . tº * & Examination of
governor, to examine into the affairs and condition of any bank or banks in this state, and report sheh ex-banks.
amination to the governor; and for that purpose the said attorney general shall have power to administer
all necessary oaths to the directors and officers of every such bank, and to examine them on oath in relation
to the affairs and condition thereof, and to examine the vaults, books, papers and documents belonging toº!", ""
such bank, or pertaining to its affairs and condition,
CHAP, 56.] ( 268 ) [TITLE 11.
Superintendent
to submit annu-
al report to legis-
lature—what to
contain.
Const., art. 10,
Sec. 1.
Superintendent
to cause primary
school laws, with
forms, &c. to be
transmitted.
Laws, &c., to be
printed by print-
ºr to the state,
with list of books
&c., annexed.
1813, p. 109.
TITLE XI.
OF PUBLIC INSTRUCTion.
CHAPTER 56.-Of the Superintendent of Public Instruction.
4 & 57.—Of the University and Branches.
§ { 58.-Of Primary Schools.
CHAPTER 56.
OF THE SUPER INTENDENT OF PIJBLIC INSTRUCTION.
1 SECTION 1. It shall be the duty of the superintendent of public instruction to submit to the legislature an
2 annual report, exhibiting the condition of the university and primary school funds, and the condition of the
3 university and branches, and of the primary schools, and all such other matters relating to his office and the
4 public schools as he may think proper to communicate.
1 Sec. 2. He shall prepare and cause to be printed with the laws relating to primory schools, all necessary
2 forms and regulations for conducting all proceedings under said laws, and transmit the same, with such in-
3 structions relative to the organization and government of the public schools and the course of studies proper
4 to be pursued therein, as he may deem advisable, to the several officers entrusted with their management
5 and care.
1 SEC. 3. Such laws, forms and instruction shall be printed by the person having the contract for the state
2 printing, in pamphlet form, with a proper index; and shall also have annexed thereto, a list of such school
3 books as the superintendent shall think best adapted to the use of the primary schools, and a list of books
4 containing not less than two hundred volumes suitable for township libraries, with such rules as he may think
5 proper to recommend for the government of such libraries.
1. Sec. 4. The superintendent shall apply the income of the university ſund to the payment of such debts as .
CHAP. 56.] ( 269 ) [TITLE 11.
Q
*
3
4.
5
2
2
5
shall accrue from the operation of the laws relating to the establishment and support of the univerty, and
Application of
gº tº . * income of uni-
shall apportion the income of the primary school funds among the several townships and cities of the state, jºr-
funds.
in proportion to the number in each between the ages of five and eighteen years, as the same shall appear by
the reports of the several county clerks made to him for the school year last closed.
SEc. 5. He shall prepare annually a statement of the amount payable to the university from the income of Superintcnd
- uperintcndent
to prepare annu-
al statement of
the university fund, and also of the amount in the aggregate payable to each county in the state from the tº:
and amount pay-
able to counties
º º tº & from income of
income of the primary school fund, and shall deliver the same to the auditor general, who shall thereupon joi'É.-
- ditor general to
draw warrant
upon state trea-
draw his warrant upon the state treasurer in favor of the treasurer of the university for the amount payable surer.
*.
to the university, and shall also draw his warrant upon said state treasurer, in favor of the treasurer of each
county, for the amount payable to such county.
SEc. 6. The said superintendent shall also send written notices to the clerks of the several counties, of ..º.º.º.
O SCI10. In Otlee (O
county clerks.
the amount in the aggregate to be disbursed in their respective counties, and the amount payable to the
townships therein respectively, which notices shall be disposed of as directed in chapter fifty-eight.
Sec. 7. The superintendent shall receive for his services the sum of five hundred dollars per annum, pay-
Salary of super-
intendent,
able quarter yearly out of the state treasury.
SEC. S. Upon all sums paid into the state treasury on account of the principal of the university or pri-
Interest to be
computed on
p w * * g * - ; : 2, certain sums
mary school funds, except where other provision is or shall be made by law, the treasurer shall compute;...".
treasury, &c.
interest from the time of such payment or from the time of the last computation of interest thereon, to
the first Monday of April, in each and every year, and shall give credit therefor to the university or pri. 1945, p. 14s.
mary school interest fund as the case may be, and such interest shall be paid out of the general fund.
CHAP. 57.]
( 270 ) [TITLE 11.
University to be
maintained.
1837, p. 102, 308,
1837-8, p. 284.
Government
vested in re-
gents.
*s,
Governor to be
president Of
hoard.
Regents to be a
body corporate.
Powers and du-
ties of regents.
University to
consist of three
departinents.
2
CHAPTER 57.
OF THE, UNIVERSITY AND BRANCHES.
*
SEETION 1. The institution established in this state, under the name and style of “The University of Mich-
igan,” for the purpose of providing the inhabitants of the state with the means of acquiring a thorough
knowledge of the various branches of literature, science, and the arts, shall continue to be maintained and
supported from the income of the university fund.
w
SEc. 2. The government of the university shall continue to be vested in a board of regents, to consist
of the governor, lieutenant governor, judges of the supreme court, and the chancellor of the state, and
\
twelve other members, three of whom shall be elected annually by the legislature in joint convention for
º
the term of ſour years.
SEc. 3. The governor shall be the president of the board of regents, and shall preside at all the meetings
thereof when present, but in his absence the board may appoint a president pro tempore.
SEc. 4. The said regents and their successors in office, shall constitute a body corporate, under and by the
name of “The Regents of the University of Michigan,” and as such corporation they may sue and be sued,
and may have and use a common seal, and alter the same at pleasure.
SEc. 5. The regents shall have power, and it shall be their duty to make such by-laws and ordinances for
the government of the university, as they shall judge expedient for the accomplishment of the trust repos-
ed in them; to appoint the requisite number of professors and tutors, and determine their respective sala-
ries, and to appoint a steward, and fix the amount of his compensation,
SEc. 6. The university shall consist of three departments, to wit: the department of literature, science,
º
and the arts; the department of law ; and the department of medicine; and there shall be established by
the regents in the several departments, such number of professorships as the wants of the institution shall
from time to time require, and the income of the fund will warrant.
CHAP, 57.1 e * ( 271 ) [TITLE 11.
l
2
2
2
Sec. 7. The immediate government of the several departments shall be entrusted to their respective ſac-
Government of
departments en-
º w e * . T . trusted to the fa-
ulties, but the regents shall have a general supervisory power over the same, and may regulate the courseº"
to supervision of
regents.
of instruction, and prescribe the books to be used in the respective departments.
#
&
Sec. 8. The regents shall have power to conſer such degrees, and grant such diplomas as are usually Rººm, m,
confer degrees.
conferred and granted by universities. \.
SEc. 9. The regents shall have power to remove any professor, or tutor, or any other officers connected May remove pro
- fessors, tutors,
and other offi-
with the institution, when in their judgment the interests of the university require it. CerS.
w & e e Secretary, trea-
Spc. 10. The board of regents shall appoint a secretary, treasurer and librarian, who shall hold their of-ºr-
* * r 181 I ap-
pointed ; term
of offices.
fices respectively, during the pleasure of the board.
Sec. 11. The secretary shall keep a journal of the proceedings of the regents, in which the ayes and hoes
Dutics of secre-
tary.
on all questions shall be entered, iſ requested by any one of the regents present; and shall keep and pre- -
serve all books and papers belonging to the board.
Sec. 12. The treasurer shall give such bonds as the regents shall direct for the faithful performance of the pºles often-
*
duties of his office, and shall keep a true and faithful account of all moneys received and paid out by him.
SEc. 13. The fee of admission to the university shall never exceed ten dollars, and it shall be open to all
Admission ſee,
º º § e º * e e is and who entitled
persons resident in this state who may wish to avail themselves of its advantages, without charge of tuition, ººges 9
institution.
under such regulations as shall be prescribed by the regents; and others may be admitted thereto under
such regulations as the regents shall prescribe.
SEc. 14. The moneys received for admission fees, and for tuition of students residing out of this state, \dmission fees
A[l In 18Sl es,
&c., to be paid
& e & to treal Su TCI , e
shall be paid into the hands of the treasurer, and so much thereof as are needed for that purpose, shall be, ..." "**
expended by the regents in keeping the university buildings in good repair and condition, and the balance º
if any, shall be appropriated for the increase of the library of the institution.
CHAP. 57.]
( 272 ) [TITLE II.
Board of visit-
ors how appoint-
ed—their duties,
Regents to make
annual exhibit
of affairs of uni-
Versity—what to
contain.
Regents to cause
additional build-
ings to be erected
when necessary.
Regents to ex-
pend moncy's for
apparatus, &c.
Regents may es-
tablish branches,
and make rules,
&c.
To be departin’t
for education of
females, and de-
partment for ed-
ucation of teach-
CIS.
I
SEC. 15. A board of visitors to consist of five persons, shall be appointed annually by the superintendent
° of public instruction, and it shall be the duty of such visitors to make a personal examination into the state
2
3 -
5
1
2
of the university in all its departments, and report the result to the Superintendent, suggesting such im-
Provements as they may deem inportant, which report shall be transmitted to the legislature at its next ses-
Sion.
Sec. 16. The regents shall make an exhibit of the affairs of the University in each year to the superin-
tendent of public instruction, setting forth the condition of the university, the amount of receipts and ex-
penditures, the number of professors and tutors, and the salaries of each; the number of students in the se-
veral departments, and in the different classes, the books of instruction used, and such opher information
...”
as the superintendent may require, together with an estimate of the expenses for the ensuing year.
SEC. 17. The board of regents shall from time to time cause to be erected upon the grounds designated by
the legislature, such additional buildings for the university, as the wants of the institution shall require, and
the income of the fund will warrant.
SEC. 18. The regents shall have power to expend from time to time, so much of the income of the univer-
sity fund as may be necessary for the purchase of philosophical and other apparatus, and for the increase
and improvement of the library and cabinet of natural history.
Sec. 19. The regents, with the approbation of the superintendent of public instruction, may establish
branches of the university in the different parts of the state, as they may deem expedient, and shall estab-
lish all needſul rules and regulations for the government of such branches; but such branches shall not
* - e organi-
have power to conſer degrees, and not more than one such branch shall be established in any one org
zed county, except under the provisions of the twenty-fifth section of this chapter.
Sec. 20. In connexion with every such branch of the university, there shall be established a department
for the education of females in the higher branches of knowledge, whenever suitable buildings shall be
3 prepared, to be under the same general direction and management as the branch with which it is connected;
CHAP. 57.] ( 273 ) [TITLE 11.
4
5
3
and there shall also be established in each branch, a department especially appropriated to the education
of teachers for the primary schools, together with such other departments as the regents shall judge neces-
sary to promote the public welfare.
Sec. 21. In one at least of the branches of the university, there shall be a department of agriculture, with
In one of branch-
es agricultural
competent teachers in the theory of agriculture, including vegetable physiology and agricultural chemis- Tºole
try, and in experimental and practical farming and agriculture.
SEc. 22. Whenever any branches of the university shall be established, there shall be apportioned to each
Moneys to be ap-
propriated for
e - support of pro-
such sums for the support of its professors and teachers, and for the purchase of books and apparatus as may fessors, &c., in
branches.
be necessary, and as the state of the university fund shall warrant.
*
Sec. 23. Meetings of the board of regents may be called in such manner as the regents shall prescribe;
Meetings of
* e g * board, and quo-
and eight regents attending shall be a quorum for the transaction of business, and the regents present, run for busi.
Il eSS
whether a quorum or otherwise shall have power to adjourn from time to time.
SEc. 24. The board of regents may appoint an executive committee, to consist of not less than three nor
Executive com—
- wº ſº mittee of board
more than five regents, and may vest in said committee such powers for the transaction of the ordinary bus * *
sº
iness of the board of regents as they may deem proper, under such regulations as they shall prescribe.
Sec. 25. The board of regents may,with the approbation of the superintendent of public instruction,consti-pºd mayo.
stitute certain
primary schools,
tute any of the primary schools in this state branches of the university, and admit them to all the privileges; "“"
and benefits of such branches,whenever such schools shall possess the requisite qualifications, according to
such general rules and regulations as shall be prescribed and estabiished by said board in that behalf.
69
CHAP. 58.]
( 274 ) [TITLE 11.
When new dis-
trict is formed,
township clerk
to deliver notice
to laxable inha-
bitants,
1843, p. 88, &c.
Inhabitant to
serve notice.
Return of no-
tice.
Notice and re-
turn to be re-
corded.
Elcetion of t. ffi-
cers, &c.
When district
decimed organi-
zed.
2
3
CHAPTER 58.
or primary schools. - - . .
IDistricts.
SECTION 1. Whenever the board of school inspectors of any township shall form a school district therein,
it shall be the duty of the clerk of such board to deliver to a taxable inhabitant of such district, a notice in
writing, of the formation of such district, describing its boundaries, and specifying the time and place of
the first meeting, which notice with the fact of such delivery, shall be entered upon record by the clerk.
SEC. 2. The said notice thall also direct such inhabitant to notiſy every qualified voter of such district,
either personally or by leaving written notice at his place of residence, of the time and place of said meet-
ing, at least five days before the time appointed therefor, and it shall be the duty of such inhabitant, to no-
tify the qualified voters of said district accordingly.
SEc. 3. The said inhabitant, when he shall have notified the qualified voters as required in such notice,
shall endorse thereon a return, showing such notification, with the date or dates thereof, and deliver such
notice and return to the chairman of the meeting.
.*
SEc. 4. The said chairman shall deliver such notice and return to the director chosen at such meeting,
who shall record the same at length in a book to be provided by him at the expense of the district, as a part
of the records of such district.
Sec. 5. The qualified voters of such district, when assembled pursuant to snch previous notice, and also at
each annual meeting shall choose a moderator, director, and assessor; who shall within ten days after such
meeting, severally file with the director, a written acceptance of the offices to which they shall have been
respectively elected, which shall be recorded by said director.
SEC. 6. Every such school district shall be deemed duly organized when any two of the officers elected at
wº
the first meeting, shall have filed their acceptance as aforesaid.
Sec. 7. In case the inhabitants of any district shall fail to organize the same in pursuence of such notice
CHAP. 58.] ( 275 ) [TITLE 11.
2
7
2
as aſoresaid, the said clerk shall give a new notice in the manner hereinbefore provided, and the Same Pro- New notice in
case of failure to
organize. w
ceedings shall be had thereon as if no previous notice had been delivered.
SEc. 8. Every school district organized in pursuance of this chapter, or which has been organized and
- Corporate pow-
Crs of districts.
continued under any previous law of the state or territory of Michigan, shall be a body corporate, and shall
possess the usual powers of a corporation for public purposes, by the name and style of “School District
number - (such number as shall be designated in the formation thereof by the inspectors)
of . ,” (the name of the township or townships in which the district is situa-
ted,) and in that name shall be capable of suing and being sued, and of holding such real and personal es-
tate as is authorized to be purchased by the provisions of this chapter, and of selling the same.
SEc. 9. The record made by the director as required in the fourth section of this chapter, shall be prima
Director's record
facie evidence of the facts therein set forth, and of the legality of all proceedings in the organization of evidence
the district prior to the first district meeting ; but nothing in this section contained shall be so construed as
to impair the effect of the record kept by the school inspectors as evidence.
SEc. 10. Every school district shall in all cases be presumed to have been legally organized when it shall
Presumption of
legal organiza-
(iOIl.
have exercised the franchises and privileges of a district for the term of two years.
District Meetings.
SEc. 11. The annual meeting of such school district shall be held on the last Monday of September in
Annual meeting.
each year, and the school year shall commence on that day. º'
SEC. 12. Special meetings may be called by the district board, or by any one of them, on the written re-
Special inecting.
quest of any three legal voters of the district, by giving the notice required in the next succeeding section,
and in all notices of special meetings the object of the meeting shall be stated.
SEC, 13. All notices of annual or special district meetings, aſter the first meeting has been held as afore-
Notice of meet-
1ngs.
said shall specify the day, and hour, and place of meeting, and shall be given at least six days previous to
such meeting, by posting up copies thereof in three of the most public places in the district; and in case of
CHAP. 58.] -- ( 276 ) [TITLE 11.
When meeting
not illegal for
want of notice.
"Who entitled to
VOLC.
Challenges.
False oath to Joc
deemed perjury.
*
VVlien challenge
Inay be made in
certain cases.
1°owers of vo-
1621 S.
4
tº
assº
any special meeting called for the purpose of establishing or changing the site of a school house, such no-
tice shall be given at least ten days previous thereto.
i
SEc. 14. No district meeting shall be deemed illegal ſor want of due notice; unless it shall appear that the
omission to give such notice was wilful and fraudulent.
SEc. 15. Every white male inhabitant of the age of twenty-one years, residing in the district, and liable
to pay a school district tax therein, shall be entitled to vote at any district meeting.
SEc. 16. If any person offering to vote at a school district meeting, shall be challenged as unqualified, by
any legal voter in such district, the chairman presiding at such meeting shall declare to the person challeng
ed the qualifications of a voter, and if such person shall state that he is qualified, and the challenge shall
not be withdrawn, the said chairman shall tender to him an oath in substance as follows: “You do swear
(or affirm) that you are twenty-one years of age, that you are an actual resident of this school district,
and liable to pay a school district tax therein;” and every person taking such oath, shall be permitted to
vote on all questions proposed at such meeting.
#
SEc. 17. If any person so challenged, shall refuse to take such oath, his vote shall be rejected, and any
person who shall wilfully take a false oath, or make a false affirmation under the provisions of the prece-
ding section, shall be deemed guilty of perjury.
SEc. 18. When any question is taken in any other manner than by ballot, a challenge immediately after
the vote has been taken, shall be deemed to be made when offering to vote, and treated in the same man-
I].6} t.
SEC. 19. The qualified voters in such school district, when lawſully assembled,shall have power to adjourn
from time to time as may be necessary; to designate a site for a school house by a vote of two-thirds of
those present, and to change the same by a similar vote, at any regular meeting.
Sec. 20. When no site can be established by such inhabitants as aforesaid, the school inspectors of the
Char. 58.] ( 277 ) - [TITLE 11.
2
2
2
township or townships in which the district is situated, shall determine where such site shall be, and their
When inspect-
ors to determine
determination shall be certified to the director of the district, and shall be final, subject to alteration after- . Sºchool
wards by the inspectors only, if necessary.
*
Sec. 21. The said qualified voters shall also have power at any such meeting, to direct the purchasing or
Voters may di-
rect the pº-
º - •: . e g e tº e & ë sin & &C., O! ºn
leasing of an appropriate site, and the building hiring, or purchasing of a school house, and to impose such .....
r and impose tax.
{
tax as may be sufficient for the payment thereof, subject to the limitation contained in the succeeding séc-
tion.
Sec. 22. The amount of taxes to be raised in any district for the purposes mentioned in the preceding
*
Limitation of tax
section, shall not exceed the sum of two hundred dollars in any one year, unless there shall be more than gºooºoº-
thirty scholars residing therein, between the ages of five and eighteen years; and the amount thereof shall
not exceed four hundred dollars in any one year, unless there shall be more than fifty scholars residing in
the district between the ages last aforesaid.
Sec. 23. Such qualified voters when assembled as aforesaid, may from time to time impose such tax ast, to repair,
&c
shall be necessary to keep their school house in repair, and to provide the necessary appendages, and to pay
and discharge any debts or liabilities of the district lawſully incurred.
Sec. 24. They may also determine at each annual meeting the length of time a school shall be taught in
Voters may de-
f termine the
te tº . g g e ſº length of time a
their district during the ensuing year, which shall not be less than three months ; and whethhr by male or school shaji be
taught, &c.
female teachers, or both ; and whether the moneys apportioned for the support of the school therein shall
be applied to the winter or summer term, or a certain portion of each.
SEc. 25. In case any of the matters in the preceding section mentioned, are not determined at the annual
When district
board may de-
termine,
meeting, the district board shall have power and it shall be their duty to determine the same.
SEC, 26, Said qualified voters may also, at any regular meeting, authorize and direct the sale of any school
CHAP. 58.] ( 278 ) *J [TITLE 11.
When Voters
may direct sale
of property.
1)irections in re-
gard to suits.
District officers.
Moderator's
powers and du-
tics. -
Moderator t0
keep order, &c.
Penalty for dis-
turbing meeting.
2 house, site, building or other property belonging to the district, when the same shall no longer be needed
3 for the use of the district.
1 SEc. 27. They may also give such directions, and make such provision as they shall deem necessary, in
2
relation to the prosecution or defence of any suit or proceeding in which the district may be a party or in-
3 terested.
District Officers, their Powers and Duties.
1 Sec. 28. The officers of each school district shall be a moderator, director and assessor, who shall hold
2
their respective offices until the annual meeting next following their election or appointment, and until their
successors shall have been chosen, and filed their acceptance, but not beyond ten days after the time of a
4
second annual meeting after their election or appointment, without being again elected or apointed.
Moderalor.
SEC. 29. The moderator shall have power, and it shall be his duty to preside at all meetings of the dis-
trict, to sign all warrants for the collection of rate bills after they shall have been prepared and signed by
the director, and all orders upon the assessor for moneys to be disbursed by the district, and to countersign
all warrants of the director upon the township treasurer for moneys raised for district purposes, or appor-
tioned to the district by the township clerk; but iſ the moderator shall be absent ſrom any district meeting,
6
the qualified voters present may elect a suitable person to preside at the meeting.
SEc. 30. If at any district meeting, any person shall conduct himself in a disorderly manner, and aſter no-
2
tice from the moderator or person presiding, shall persist therein, the moderator or person presiding may
order him to withdraw from the meeting, and on his refusal, may order any constable or other person or
persons to take him from the meeting, and confine him in some convenient place until the meeting shall be
5
adjourned.
Sec. 31. Any person who shall reſuse to withdraw from such meeting on being so ordered as provided in
t
2 the preceding section, or who shall wilfully disturb snch meeting, shall, for everysuch offence, forfeit a sum
3 ot exceeding twenty dollars.
CHAP. 58.] - ( 279 ) . º [TITLE 11.
l
2
2
2
2
3
2
\- Assessor.
Assessor to col-
lect and pay over
in Olleys.
SEC. 32. The assessor shall pay over all moneys in his hands belonging to the district, on the warrant of
the moderator, countersigned by the director; and shall collect all rate bills for tuition and ſuel, in 'obe-
dience to the command contained in the warrant annexed thereto.
SEC. 33. In case any person shall neglect or refuse to pay the amount on such rate bill for which he is li
On refusal to
pay, assessor to
e * collect by dis-
able on demand, the assessor shall collect the same hy distress and sale of any goods or chattels of such tress.
person, wherever ſound within any county in which the district or any part of it is situated.
SEc. 34. The assessor shall give at least ten days' notice of such sale, by posting up written notices
Noticc of sale.
thereof in three public places in the township where such property shall be sold.
SEC 35. At the expiration of his warrant, the assessor shall make a return thereof, in Writing, with the
Assessor to
rate bill attached, to the director; stating the amount on said rate bill collected, the amount uncollected, hºurn to
and the names of the persons from whom collections have not been made.
SEc. 36. The assessor shall appear for and on behalf of the district, in all suits brought by or against the wº
!CIn 18SeS
SOr
to appear for
e * g * * s e tº district.
same, when no other directions shall be given by the qualified voters in district meeting, except in suits in
*
which he is interested adversely to the district, and in all such cases the director shall appear for such dis-
4 trict, iſ no other direction be given as aforesaid.
2
3
I
2
3
Director.
Sec. 37. The director shall be the clerk of the district board, and of all district meetings when present,
i)irector to be
- g e ſº clork.
but if he shall not be present at any district meeting, the qualified voters present may appoint a clerk of
such meeting, who shall certify the proceedings thereof to the director to be recorded by him.
Sec. 38. The director shall record all the proceedings of the district in a book to be kept for that purpose,
tº To record pro-
and preserve copies of all reports made to the school inspectors, and safely preserve and keep all books and *, *.
papers belonging to his office ; and shall countersign all orders drawn by the moderator upon the assessor
for moneys of the district in his hands.
CHAP. 58.] ( 280 ) . [TITLE 11.
To contract with
teachers.
*
'J'o apportion
fuel.
To take CellSllS
of district, and
muke list.
To ſurnish copy
of list to teacher,
and require
teacher 10 note
attendance and
Inake return.
When toachcr to
keep list, &c.
DircCtor to as-
certain amount
due for tuition.
l
2
5
2
SEc. 39. By and with the advice and consent of the moderator and assessor, or one of them, the director
shall contract with and hire qualified teachers for, and in the name of the district, which contract shall be
w
in writing, and shall have the consent of the moderator and assessor, or one of them endorsed thereon, and
shall specify the wages per week or month as agreed by the parties, and a duplicate thereof shall be filed
in his office.
SEc. 40. He shall ascertain as near as practicable, before the commencement of each school term, the just
proportion which each person having scholars to send to the school, ought to furnish of the fuel for such
term, and give each such person at least five days’ notice of the time within which he is required to deliv-
er the same at the school house, and if any person shall not deliver his proportion as required, the amount
thereof shall be assessed to him on the rate bill.
SEc. 41. Within ten days next previous to the annual district meeting, the director shall take the census
of his district, and make a list in writing of the names of all the children belonging thereto between the
ages of five and eighteen years.
SEc. 42. He shall ſurnish a copy of such list to each teacher employed in the district, and require such
& .
teacher carefully, to note the daily attendance of each scholar, and to make a return thereof to him, inclu-
ding the ages of all scholars whose names are not on such list ; and such teacher shall also certify and re-
turn, according to his best inſormation and belieſ, the name of the person liable for the tuition of each
W -
scholar.
Spc. 43. In case the director shall not have furnished such list as aforesaid, the teacher shall keep a list
of all the scholars attending school, and the number of days each scholar shall attend the same, with the
age of each, and the name of the person liable for the tuition of each, according to his best information and
belieſ, which list he shall return to the director as aforesaid.
Sec. 44. The director shall ascertain from the return of such teacher the number of days for which each
person not exempted shall be liable to pay for tuition, and the amount payable by each,
CHAP, 58.] ( 281 ) [TITLE 11.
1
2
2
2
SEc. 45. Within twenty days after recoiving such list and certificate from the teacher, the director shall
Rate bill for tui-
tion and fuel,and
make out a rate bill, containing the name of each person so liable, and the amount due from him for tui-ºº!" for col-
tion and fuel, or either, adding thereto five cents on each dollar of the sum due, for assessor’s fees, and
&
gº
shall annex thereto a warrant for the collection thereof, to be signed by him and the moderator.
*
SEc. 46. Such warrant shall command the assessor that within sixty days he collect of the persons named ºn's of war-
in said rate bill the amount set opposite their respective names, and that if any person shall neglector re-
fuse, on demand, to pay the amount on said rate bill for which he is liable, he collect the same by distress
and sale of the goods and chattels of such person wherever found within the county or counties in which
the district is situated, first publishing such sale at least ten days by posting up notices thereof in three pub-
lic places in the township where such property shall be sold.
SEc. 47. In case the moderator and director shall deem it necessary, they may by an endorsement on such
Renewal of
War rºllt.
warrant signed by them, extend the time therein specified for the collection of such rate bill, not exceeding
thirty days.
Sec. 48. The director shall provide the necessary appendages for the school-house, and keep the same in
Director to pro-
vide appendages,
good condition and repair during the time a school shall be taught therein, and shall keep an accurate ac- tº keep
count of all expenses incurred by him as director.
Sec. 49. He shall present said account for allowance to the qualified voters of the district at a regular
- Allowance of di-
meeting, and the amount of such account as allowed by such meeting shall be assessed and collected in the rector's account.
same manner as other district taxes; but no such account snall be allowed at a special meeting, unless the
intention to present the same shall be expressed in the notice of such meeting.
\
SEc. 50. He shall give the prescribed notice of the annual district meeting, and of all such special meet-
Director to give
e º e © º e - º ; , , notice of Imeet-
ings as he shall be required to give notice of in accordance with the provisions of this chapter, one copy of .
which for each meeting shall be posted on the outer door of the district school-house, if there be one,
71
CHAP. 58.] ( 282 ) . [TITLE 11.
To draw books
from township
library, and re-
turn the same,
Distribution of
books.
Ł)irector to draw
and sign war-
rants on treasu-
rer.
Director to re-
port to township
clerk.
Contents of re-
port.
1 SEC. 51. The director shall draw from the township library the proportion of books to which his district
2 may be entitled, and return the same to the township library at the expiration of three months, and shall
3 continue to draw books in like manner, at the expiration of every three months, and to return the same as
4 aforesaid,
*
1 SEC, 52. He shall distribute the books drawn out by him to the parents or guardians of the children of the
2 district of the proper age, for the time and under the restrictions contained in the rules prescribed by the
8 board of school inspectors.
1 SEC, 53. He shall draw and sign all warrants upon the the township treasurer ſor moneys raised for dis-
2 trict purposes, or apportioned to the district by the township clerk, and present the same to the moderator to
3 be countersigned by him.
1 SEC. 54. The director shall also, at the end of each school year, deliver to the township clerk to be filed
2 injhis office, a report to the board of school inspectors of the township, showing:
º
3 1. The whole number of children belonging to the district, between the ages of five and eighteen years,
4 according to the census taken as aſoresaid :
5 2. The number attending school during the year, under five, and also the number over eighteen years of
6 age.
7 3. The whole number that have attended school during the year :
8 4. The length of time the school has been taught during the year by a qualified teacher, the name of each
9 teacher, the length of time kept by each, and the wages paid to each :
10 5. The average length of time scholars over five and under eighteen years of age have attended school
11 during the year :
12 6. The amount of money received from the township treasurer, apportioned to the district by the township
13 clerk :
#
14 7. The amount of money raised by the district, and the purposes for which it was raised:
15 8. The kinds of books used in the school :
- } -
sº
CHAP, 58.] ( 283 ) [Tirle 11.
16 9. Such other facts and statistics in regard to schools and the subject of education, as the superintendent of
17 public instruction shall direct.
District Board.
1 SEc. 55. The moderator, director and assessor shall constitute the district board.
Dlstrict board.
1 SEC. 56. Said board shall, between the last Monday of September, and the second monday of October * Board
- jºy
º e tº e e district, &c.
2 each year, make out and deliver to the supervisor of each township in which any part of the district is situ-
3 ated, a report in writing under their hands, of all taxes voted by the district during the preceding year, and
4 and of all taxes which said board is authorized to impose, to be levied upon the taxable property within the
5 district.
SEc. 57. The district board may purchase at the expense of the district, such school books as may be Purºhºse of
- *A books for poor
children.
l
2
necessary for the use of children admitted by them to the district school free of charge, and they shall in-
3
clude the amount of such purchases, and the amount which would have been payable for ſuel and teachers
4 wages by persons exempted from the payment thereof, together with any sums on the district rate bills,
5 which could not be collected, in their report to the supervisor or supervisors, to be assessed as aforesaid.
I SEc. 58, Said board shall exempt from the payment of teachers' wages, and from providing fuel for the use
- Excmption of
poor persona.
* * - - s • * * e º - tº tº f f t of
2 of the district, all such indigent persons residing therein, as in their opinion ought te be exempted, and shall º O
3 certify such exemptions to the director ; and the children of such persons shall be admitted to the district
4 school ſree of charge, during the time of such exemption.
1 SEc. 59. They shall purchase or lease a site for a school-house, as shall have been designated by the dis-
Board shall pug-
º * * - chase or hire
2 trict, in the corporate name thereoſ, and shall build, hire, or purchase such school-house out of the ſund site for schºol-
4. house, &c.
3
provided for that purpose, and make sale of any site or other property of the district, when lawfully direc-
4 ted by the qualified voters, at an annual or special meeting.
1 SEC, 60. The district board shall apply and pay over all school moneys belonging to the district, in accord-
<-
CHAP, 58.] ( 284 -) [TITLE 11.
IBoard to apply
school moneys.
Bond to be re-
quired of ussess-
() T.
When bond to
be lodged, and
when sucd, &c.
Report of re-
ceipts and dis–
bursem Cills.
State:hicnt of
taxes, &c.
IBoard to llave
custody of dis-
trict property.
2 ance with the provisions of law regulating the same, and as may be directed by the district; but no school
3
5
3
moneys apportioned to any district shall be appropriated to any other use than the payment of teacher's
wages, and no part thereof shall be paid to any teacher who shall not have received a certificate as required
in this chapter, before the commencement of his school.
SEc. 61. The moderator and director shall require of the assessor, and the assessor shall execute to
the district, a bond in double the amount of money to come into his hands as such assessor during the year,
as near as the same can be ascertained, with two sufficient sureties to be approved by the moderator and di-
rector, conditioned for the faithful application of all moneys that shall come into his hands by virtue of his
office. - sº
SEc. 62. Such bond shall be lodged with the moderator, and in case of any breach of the condition thereof
the director shall cause a suit to be commenced thereon in the name of the district, and the money when
collected shall be paid into the township treasury for the use of the district, subject to the order of the pro-
per district officers.
Sec. 63. Said board shall present to the district, at each annual meeting, a report in writing, cofitaining an
accurate statement of all moneys of the district received by them or any of them, during the preceding
year, and of the disbursements made by them, with the items of such receipts and disbursements.
Sec. 64. Such report shall also contain a statement of all taxes assesed upon the taxable property of the
district during the preceding year, the purposes for which such taxes were assessed, and the amount assess-
ed for each particular purpose, and said reports shall be recorded by the director in a book to be provi-
ded and kept for that purpose.
SEc. 65. The said district board shall have the care and custody of the school house and other property of
the district, except so far as the same shall be specially confided to the custody of the director, including all
books purchased for the use of pupils admitted to the school free of charge.
CHAP. 58.] *. ( 285 ) e [Title 11.
1.
2
2
I
2
& * . To fill vacan-
Sec. 66. The said board shall have power to fill by appointment any vacancy that shall occur in their cits.
own number, and it shall be their duty to fill such vacancy within ten days after its occurrence.
SEc. 67. If the assessor shahl fail to give bond as is equired in this chapter, or from sickness or any oth-
Board may ap-
point assessor in
CCrtain C&SeS.
er cause, shall be unable to attend to the duty of collecting any district rate bill, the said board shall appoint
an acting assessor to collect the same, who shall possess all the powers of the district assessor for that pur.
pose, and shall, before proceeding to the collection thereoſ, give bond to the district in double the amount
of money to be collected, in the same manner, and with the same effect as the district assessor is required
to give such bond.
Township Board of School Inspectors.
SEc. 68. The inspectors elected at the annual township meetings, together with the township clerk, shall Board of school
inspectors.
constitute the township board of school inspectors; and the inspector elected at the annual township
meeting, having the shortest time to serve, shall be chairman of said board, and the said township clerk
shall bé the clerk thereof.
Sec. 69. The chairman of said board shall be treasurer thereof, and shall give bond to the township in enº.
board to be trea-
surer and give
double the amount of library moneys to come into his hands during his term of office, as near as the same"
can be ascertained, with two sufficient sureties to be approved by the township clerk, conditioned for the
faithful appropriation of all moneys that may come into his hands by virtue of his office.
SEC. 70. Said bond shall be filed with the township clerk, and in case of the non-ſulfillment thereof, said
- In casc of
breach, bond to
clerk shall cause a suit to be commenced thereon, and the moneys collected in such suit shall be paid into "****
the township treasury for the benefit of the township library.
SEC. 71. The inspectors shall divide the township into such number of school districts as may from time Formation of
districts.
to time be necessary, which districts they shall number, and they may regulate and alter the boundaries of
the same as circumstances shall render proper; but no district shall contain more than nine sections of
72
CHAP. 58.] ( 286 ) [TITLE 11.
4 land, and each district shall be composed of contiguous territory, and be in as compact a form as may be.
&
Persons residing SEC. 72. They may attach to a school district any person residing in the township; and not in any orga-
out of district g
may bc attach'd.
2
nized district, at his request; and for all district purposes, except raising a tax ſor building a school house,
3 such person shall be considered as residing in such district; but when set off to a new district, no sum shall
4 be raised for such person as his proportion of the district property.
1 SEC, 73. The inspectors shall apply for and receive from the township treasurer all moneys appropriated
Inspectors to re- -
ceive and appro-
priate library
money. 2 for the township library of their township, and shall purchase the books, and procure the necessary appen-
3 dages for the township library, and make such rules for the regulation thereof, and the preservation of the
4 books contained in it as they may deem proper.
1 SEC. 74. They shall appoint one of their number to visit each school in the township having a qualified
To appoint one
of their number
*** 2 teacher, at least ouce in each school term in which a school is taught, who shall inquire into the condition
3 of such schools, examine the scholars, and give such advice to both teachers and pupils as he may think be-
4 neficial.
1 SEc. 75. When a new district is formed in whole or in part, ſrom one or more districts possessed of a school
When part of
district set off,
y l f em g ſº tº . e & e *
.*.*.*... 2 house or entitled to other property, the inspectors, at the time of ſorming such new district, shall ascertain
tioned.
*
3 and determine the amount justly due to such new district, from any district out of which it may have been
in whole or in part formed, as the proportion of such new district, of the value of the school house, and
4
5 other property belonging to the former district at the time of such division.
*
.*
1 Sºc. 76. Such proportion.shall be ascertained and determined according to the value of the taxable pro-
Ilow proportion
!" ": 2 perty of the respective parts of such former district, at the time of the division, by the best evidence in the
*
a’
3 power of the inspectors, and such amount of any debt due from the former district, which would have been
4
a charge upon the new, had it remained in the former district, shall be deducted from such proportion.
I Sec. 77. The amount of such proportion, when so ascertained and determined, shall be certified by the
CHAP. 58.] ( 287 ) - [TITLE 11.
2
2
5
1
2
2
5
township clerk to the supervisor of the township, whose duty it shall be to assess the same upon the taxable
To be certific d to
supervisor.
property of the district retaining the school house or other property of the former district, in the same
manner as if the same had been authorized by a yote of such district.
Sec. 78. When collected, such amount shall be paid over to the assessor of the new district to be applied ºppº.
ICl L CO II e CI -
ed, how dispo-
sed of.
to the use thereof, in the same manner, under the direction of its proper officers, as if such sum had been
voted and raised by said district for building a school house or other district purposes, and the money so
paid over shall be placed to the credit of the taxable property taken from the former district, and be deduc-
ted from any tax imposed in the new district on such taxable property for school district purposes.
SEC. 79. Between the first and fifteenth days of October in each year, the inspectors shall make out and
Annual report
of inspectors.
deliver to the township clerk, a report to the county clerk, setting forth the whole number of districts in
their township, the amount of money raised and received for the township library, together with the sev-
eral particulars set forth in the reports of the school directors, for the preceding school year.
ºs
SEc. 80. The board of inspectors, before making their annual report to the county clerk, shall examine
Rccord of teach-
* g ! ſ r. . * - e ſº e º g er to be examin-
the record of teachers to whom certificates have been given by them, and if in any school district a school ... report
made, &c.
shall not have been taught for three months during the preceding school year by a qualified teacher, no
part of the public money shall be distributed to such district, although the report from such district shall set
forth that a school has been so taught ; and it shall be the duty of the board to certify the ſacts in relation
to any such district in their report to the county clerk.
SEC, 81. Wherever it shall be necessary or convenient to form a district from two or more adjoining town-
Formation of
& e •. e. ë e º * * * - tº , º districts in twº
ships, the inspectors, or a majority of them, of each of such adjoining towfiships, may ſorm such district, jº
ships.
and direct which township clerk shall make and deliver the notice of the formation of the same to a taxa-
4 ble inhabitant thereof, and may regulate and alter such district as circumstances may render necessary;
5
6
and they shall also designate the township to which the director of such district shall make his annual re.
port,
CHAP. 58.] *º- ( 288 ) t + {TITLE 1 [.
Director to re-
port to each
township.
Districts formcd
from two or
more townships,
how regulated.
Amount of tax-
es. how certified
and apportioned.
Examination of
teach crs.
5
2
SEc. 82. The director of every district formed as provided in the preceding section, shall also report to the
clerk of each township in which the distriet is in part situated, the number of children between the ages of
five and eighteen years in that part of the district lying in such township, and books shall be drawn from
the library of each township for the use of such district ; but the district shall have access to but one such
library at the same time, and the said inspectors shall establish the order in which books shall be drawn
from each township library.
SEC. 83. Such school districts already formed from two or more townships, shall continue to be governed
by the regulations already established according to law, in relation to the annual reports, and the drawing
of books from the township libraries, subject to such changes as may be made in respect thereto by the
said inspectors, in conformity with the preceding provisions.
p
SEC, 84. The full amount of all taxes to be levied upon the taxable property in such district, shall be cer-
tified by the district board to the supervisor of each of such townships, and each of said supervisors, after
the assessment rolls shall have been equalized by the board of supervisors, shall certify to each other su- -
pervisor within whose township such district is in part ºute, the amount of taxable property in that part
of the district lying in his township ; and such supervisors shall respectively ascertain the proportion of
such taxes to be placed on their respective assessment rolls, according to the amount of taxable property
in each part of such district.
SEc. 85. It shall be the duty of the inspectors to examine annually, all persons offering themselves as
candidates for teachers of primary schools in their township, in regard to moral character, learning and
ability to teach a school; and they shall deliverto each person so examined and found qualified, a certificate
signed by them, in such form as shall be prescribed by the superintendent of public instruction ; which cer-
.*
tificate shall be in ſorce for one year from the date thereof, unless annulled within that time, and no person
shall be deemed a qualified teacher within the meaning of this chapter, who has not such a certificate in
force.
Sec. 86. For the purpose of making such examination, the board of school inspectors shall meet on the
-*
*
Chap. 58.] ( 289 ) - [TITLE 11.
2
3
2
first Saturdays of May and November in each year, at the office of the township clerk, or at such other
Meetings for ex-
^. ſº * * e & j aming teachers,
place as they shall designate, of which meetings the township clerk shall give at least ten days notice in º notice mere
Writing, by posting up the same in three public places in the township.
A
SEc. 87. The inspectors shall make no charge against the township for examining teachers at any other
When teachers
* g e sº e © to pay fee for
times than those specified in the preceding section; but if application shall be made by any such candidate *
for examination at any other time, he shall pay to each of the inspectors for such examination the sum of
fifty cents for their services.
Sec. 88. The examination of teachers shall be public, and no certificate shall be given by the Inspectors, º i.
fication of teach-
er,
unless they are satisfied that the applicant possesses a good morál character, and a thorough and accurate
knowlege of the several branches of study usually taught in primary schools, and is competent in other re-
spects to teach and govern a school.
Sec. 89. When a district is situated in two or more townships, the teacher for such district shall be ex-
Where teacher
to be examined
- - & * e .. g * * * tº for district situa-
amined by the inspectors of the township to which the director is required to make his annual report. ted in two-or
more townships.
SEc. 90. Whenever the inspectors shall deem it necessary to re-examine any teacher of a primary school Inspector may
re-examine
teacher, and an-
& * * e * 5 º - - * . nuI certificate.
in their township, they may give five day’s notice to such teacher of the time and place of such re-exami-
nation, and of their intention to annul his certificate if they find him deficient in the requisite qualifications;
and at the time and place specified in the notice, if such teacher shall not appear and submit to such re-
examination, or if he shall be ſound deficient as aforesaid, the inspectors may annul the said certificate.
SEc. 91. The whole number of meetings of said board of inspectors during any one year, at the expense
e - tº º & Number of
of the township, shall not exceed six ; and whenever said board shall meet for the purpose of forming or ... ."
board, and no-
tice in certain
C:\SCs,
altering school districts, they shall cause the like notice to be given as is required for meetings to examine
*.
teachers.
73
CHAP. 58.] ( 290 ) [Title 11.
I)istricts may be
formed from two
Or unord town-
ships, and puplis
classified.
On application of
district board,
inspector may
classify pupils in
any district, &c.
Inspector to ac- .
Counſ, to, LOW Ila
ship, board.
When inspec-
turs to supply
vacancy in dis-
trict board.
Clerk of board:
of inspectors.
l, SEc. 92. Whenever the board of inspectors of any township, shall deem that the interests of any of the
2. **i. will be best promoted by so doing, they may form a single district out of an y two or more districts
3 therein, and classify the pupils in such district into two or more classes, according to their proficiency and
4 advancement in learning, and require that such pupils be taught in distinct schools or departments as clas-
*s
5
sified by them, and such district may have the same number of school houses if necessary, and raise the
6 same amount of taxes which the original districts forming the same could raise if not united.
1 SEc. 93. The said inspectors may also, on the application of the district board of any district, classify the
2 pupils therein in the manner prescribed in the preceding section, and require that such pupils be taught in
3 dama departments, whenever they shall judge that the interests of the school will be best promoted there-
4 by ; and in case of any such classification as is provided for in this or the preceding section, as many
5 teachers may be employed for each district, as there are departments in which teachers are required.
1 SEc. 94. It shall be the duty of the board of inspectors, to render to the township board on the Tuesday
2 next preceding the annual township meeting, a full and true account of all moneys received and disbursed
3 by them as such inspectors during the year, which account shall be settled by said township board, and such
4 disbursements allowed if the proper vouchers are presented.
1 SEc. 95. Whenever any district board shall fail to supply any vacancy that shall occur in their own num-
2 ber, within ten days after the time of its occurrence, the board of inspectors shall fill the same by appoint-
3 ment,
Certain. Duties. of Township Clerk.
1 SEc. 96. The township clerk shall be the clerk of the board of school inspectors by virtue of his office,
2 and shall attend all meetings of said board, and under their direction prepare all their reports and record
\
3 the same, and shall record all their proceedings, including the names of teachers to whom certificates shall
4 have been given, with the date of each certificate, and the name of each teacher whose certificate shall
5 have been annulled, with the date of such annulment.
CHAP. 58.] ( 291 ) - [TITLE 11.
1 SEc. 97. On receiving notice from the county treasurer, of the amount of school moneys apportioned to Clerk to a
Že nihrir-
- i. išć".
:- 4---~~~ls - - ~ * ~ * *** * ~ * + l- - -- a-- - - --- - - . . . . . . . . . i , , , , ... • . . a . . . . a º ... meys.
2 his township, he shall apportion the same amongst the several districts therein entitled to the same, in
3 proportion to the number of children in each between the ages of five and eighteen years, as the same shall
4 be shown by the annual report of the director of each district for the school year last closed.
1 Sec. 98. Said clerk shall also apportion in like manner, on receiving notice of the amount from the §§,
raised by town-
ship, and record
2 township treasurer, all moneys raised by township tax, or received from other sources for the support of apportionment,
3 schools, and in all cases make out and deliver to the township treasurer, a written statement of the number
4 of children in each district drawing money, and the amount apportioned to each district, and record the ap-
portionment in his office.
5
1 Sec. 99. He shall receive and keep all reports to the inspectors from the directors of the several school tº
2 districts in his township, and all the books and papers belonging to the inspectors, and file such papers in his
3 office.
Sec. 100. He shall receive all such communications as may be transmitted to him by the superintendent #.
munication 8
from superinten -
dent.
l
2 of public instruction, and dispose of the same in the manner directed therein.
1 Sec. 101. He shall transmit to the county clerk all such reports as may be delivered to him for that pur-
To transmit in-
spector's report.
2 pose by the inspectors, within the time limited in this chapter.
I Sec. 102. Each township clerk shall cause a map to be made of his township, showing by distinct lines To make map of
district.
2 thereon, the boundaries of each school district and parts of school districts therein, and shall regularly num-
3 ber the same thereon as established by the inspectors.
I Sec. 103. One copy of such map shall be filed by the said clerk in his office, and one other copy he shall To fil f
o file copy o
Imap, and deliver
º - * - - copy to supcrvi-
2 file with the supervisor of the township; and within one month after any division or alteration of a district, *
3 or the organization of a new one in his township, the said clerk shall file a new map and copy thereof as
4 aforesaid showing the samé,
- CHAP. 58.]
t ( 292 ) [TITLE 11.
To certify am't
to be collected
on division of a
district.
Clerk to be li-
brarian.
Assessment and
cullection of
taxes for school
purposes.
Assessment and
collection of
township. school
and library tax.
>
$tatement to be
deſivered to trea-
surer with war-j
rant, &c.
l
Sec. 104. The clerk shall also certify to the supervisor the amount to be assessed upon the taxable pro-
property of any school district retaining the district school-house or other property on the division of the
/
district, as the same shall have been determined by the inspectors, and he shall also certify the saine to the
*
director of such district, and to the director of the district entitled thereto.
SEC. 105. Said clerk shall also be the township librarian, and as such shall have the custody of the town-
ship library ; and he shall do and execute all such other acts and things pertaining to his office, as may be
required of him by the inspectors,
Of Tawes for School Purposes. *
SEc. 106. It shall be the duty of the supervisor of the township to assess the taxes voted by every school
district of his township, and also all other taxes provided for in this chapter, chargable against such dis-
trict or township, upon the taxable property of the district or township respectively, and to place the same
on the township assesment roll in the column for school taxes, and the same shall be collected and returned
by the township treasurer in the same manner and for the same compensation as township taxes,
Sec, 107. The supervisor shall also assess upon the taxable property of his township, one mill on each dol-
2 lar of the valuation thereof in each year; and so much of the money thus raised as shall have been direct-
I
Ç
)
*
3
4
ed by vote at the last annual meeting, not exceeding twenty-five dollars, shall be applied to the purchase
of books for the township library, and the remainder thereof shall be apportioned to the several school dis-
tricts in the township, for the support of schools therein, and the same shall be collected and returned in the
*
& o & & e * * * * -º be
same manner as provided in the preceding section ; and all school taxes returned for non-payment, shall
collected in the same manner as state and county taxes.
Sec. 108. The supervisor, on delivery of the warrant ſor the collection of taxes to the township treasur-
er, shall also deliver to said treasurer a written statement of the amount of school and library taxes, the
amount raised for district purposes on the taxable property of each district in the township, the amount be-
longing to any new district on a division of the former district, and the names of all persons having judg-
CHAP, 58.] & ( 293 ) g - [TITLE 11.
5 ments assessed under the provisions of this chapter upon the taxable property of any district, with the
6 amount payable to such person on account thereof.
1 SEC. 109. The township treasurer shall retain in his hands out of the moneys collected by him, after de-
School;tax to be
retained by trea-
º surer, subject to
2 ducting the amount of the tax for township expenses, the full amount of the school tax on the assessment warranº.
8 roll, and hold the same subject to the warrant of the proper district officers, to the order of the school in.
4 spectors, or of the persons entitled thereto.
1 SEC. 110. Said treasurer shall from time to time apply to the county treasurer for all school and library
Township treas.
2 b surer to apply
€ - * > * gº e - e. © * > _ to county treasu-
moneys belonging to his township, or the districts thereof; and on the receipt of the moneys to be appor º, for moneys,
- C.
*tioned to the districts, he shall notify the township clerk of the amount to be apportioned.
Certain Duties of the County Clerk.
1 SEc. 111. It shall be the duty of each county clerk to receive all such communications as may be directed
County clerk to
receive and dis-
pose of commu-
2 to him by the superintendent of public instruction, and dispose of the same in the manner directed by said icatiºns from
- superintendent.
3 superintendent,
1 SEC. 112. The clerk of each county shall, on or before the tenth day of November in each year, make
'To report to su-
perintendent.
2 and transmit to the superintendent of public instruction, a report in writing, setting forth the whole num-
3 ber of townships in his county, distinguishing those from which the required reports have been made to him
4 by the inspectors, and containing an abstract of their reports.
1 SEc. 113. He shall also within the time mentioned in the preceding section, make and deliver to the coun-, t
o report to
county treasurer
statement of
2 ty treasurer a written statement of the whole number of children in each township in the county, between §º
3 the ages of five and eighteen years, as shown by the inspectors’ reports; and the board of supervisors of
4 each county shall allow to the clerk thereof such compensation as they may deem reasonable for the ser-
5 vices required of him by the provisions of this chapter.
74
CHAP, 58.]
( 294 ) [TITLE 11.
Library to be
maintained in
each township,
Books to be o
drawn once in
three months,
and returned by
directors,
Proceeds of
fines, &c., to be
apportioned by
county treasurer
among town-
ships for pur-
ph ifle of books.
J)irector to dis-
tribute books of
district library,
and collect da-
mages for inju-
ry done to, and
books belonging
to township li-
Drary.
2
Libraries.
SEc. 114. A ownship library shall be maintained in each organized township in this state, which shall
be the property of the township, and the parents and guardians of all children therein between the ages of
five and eighteen years, shall be permitted to use books from such library without charge, being responsi-
ble to the township for the safe return thereof, and for any injury done thereto, according to such rules and
regulations as are or may be established by the board of school inspectors of the township
SEc. 115. The books in such library shall, once in three months, be distributed by the township librarian
among the several school districts of the township, in proportion to the number of children in each between
the ages aforesaid, as the same shall appear by the last report of the director thereoſ, and said books shall
be drawn and returned by the several directors for their respective districts.
SEc. 116. The clear proceeds of all fines for any breach of the penal laws of this state, and all equiva-
lents for exemption from military duty, when collected in any county, and paid into the county treasury,
together with all moneys heretofore collected and paid into said treasury on account of such fines or equiva-
lents, and not already apportioned, shall be apportioned by the county treasurer between the first and tenth
days of April in each year, among the several townships in the county, according to the number of children
therein between the ages of five and eighteen years, as shown by the last annual statement of the county
clerk on file in his office; which money shall be applied to the purchase of books for the township library
and for no other purpose.
SEC. 117. In each district in which a district library has been established, the director shall, as the libra-
rian of the district, distribute the books therein to the children of his district of proper age, and shall col-
lect from the parents or guardians of such children, all such damages as they may respectively become lia-
ble to pay on account of any injury done to, or loss of, or neglect to return any of such books, or any
books belonging to the township library, pursuant to such rules and regulations as shall be prescribed by
the board of school inspectors.
SEc. 118. If such damages shall have occurred by reason of any injury to, or loss of, or neglect to return
Chap. 58.] ( 295 ) - [Tirle 11.
2 any books belonging to the township library, they shall be collected in the name of the township, and paid I)
- - amages to
books, how col-
3 into the township treasury for the benefit of such township library, and if the same shall have accrued by º and ap-
4 reason of any injury to, or loss of, or neglect to return any books belonging to the district library, the same
5
shall be collected in the name of the district, for the benefit of the district library.
f
Distribution of the Income of the School Fund.
I SEc. 119. The interest of the primary school ſuud shall be distributed on the first Monday of April in me... or
school ſund to
* º º Onl
& g & e e º irst Monday of
each year, for the support of primary schools in the several townships in this state ſrom which reports have Kº
- & year. Payable
to county trea-
tº º & º e e & g SU TerS On war-
3 been received by he superintendent of public instruction, in accordance with the provisions of this chapter ºut."
2
4 for the school year last closed, in proportion to the number of children in such townships between the ages
5 of five and eighteen years; and the same shall be payable on the warrant of the auditor general to the trea-
6 surers of the several counties.
*
1 SEc. 120. The several county treasurers shall apply for and receive such moneys as shall have been ap-
County treasu-
rer to receive
2 portioned to their respective counties, when the same shall become due ; and each of said treasurers shall; ...".
township.
3 immediately give notice to the treasurer and clerk of each township in his county, of the amount of school
4 moneys apportioned to his township, and shall hold the same subject to the order of the township treasurer,
I Sec. 121. In case the moneys apportioned to any township as aſoresaid, shall not be applied for by the
If township trea-
• . surer does not
te * . . . . e. * apply for mo–
2 township treasurer within three months after the receipt of the same at the county treasury, the molleys so néys !";
- months, same to
be apportioned
to other low in-
3 unapplied for shall be apportioned among the other townships of the county in the same manner the first ap-º".
4 portionment was made.
* *
I Sec. 122. Whenever the clerk of any county shall receive from the superintendent of public instruction, cººrs.
cciving notice
ſron superin-
tendent of am' at
of moneys, to
file suine, and
deliver copy to
county tre;usu-
3 his office, and forthwith deliver a copy thereof to the county treasurer. ... rer.
2
notice of the amount of moneys apportioned to the several townships in his county, he shall file the same in
Of Suits and Judgments against School Distric's.
I SEC. 123. Justices of the peace shall have jurisdiction in all cases of assumpsit, debt, covenant, and tres-
Chap. 58.] ( 296 ) [TITLE 11.
Justices to have
jurisdiction in
certain cuscs.
Suit ngainst dis-
trict how com-
menced,
No execution
shall issue .
against district.
Judgmcnts
against district to
be certified to
supervisor by
3.188CSSOI".
If assessor fails
to certify, party
nlay get certiſi-
cate from justice
or clerk.
Iſ district in two
Or ill () re. (OVV ll-
ships, certiſicate
to he made to
supervisor of
cuch.
e Supervisors to
{{SBeSS illll Oul ill
of judgment and
interest. [How
collected and re-
turned.
3
pass on the case against school districts, when the amount claimed, or matter in controversy shall not ex-
ceed one hundred dollars, and the parties shall have the same right of appeal as in other cases.
SEC. 124. When any suit shall be brought against a school district, it shall be commenced by summons, a
copy of which shall be left with the assessor of the district at least eight days beſore the return day thereof.
SEC. 129. No execution shall issue on any judgment against a school district, nor shall any suit be brought
thereon, but the same shall be collected in the manner prescribed in this chapter.
SEC. 126. when ever any final judgment shall be obtained against a school district, iſ the same shall not
be removed to any other court, the assessor of the district shall certify to the supervisor of the township and
to the director of the district, the date and amount of such judgment, with the name of the person in whose
favor the same was rendered, and iſ the judgment shall be removed to another court, the assessor shall cer-
tify the same as aforesaid, immediately after the final determination thereof, against the district.
SEC. 127. If the assessor shall fail to certify the judgment as required in the preceding section, it shall be
2 lawful for the party obtaining the same, his executors, administrators or assigns, to file with the supervisor
2
1
2
5
the certificate of the justice or clerk of the court rendering the judgment, showing the facts which should
have been certified by the assessor.
SEC. 128. If the district against whom any such judgment shall be rendered, is situated in part in two or
more townships, a certificate thereof shall be delivered as aforesaid to the supervisor of each township in
which such district is in part situated.
Spc. 129. The supervisor or supervisors receiving either of the certificates of a judgment as aforesaid,
shall proceed to assess the amount thereoſ with interest from the date of the judgment to the time when the
warrant for the collection thereof will expire, upon the taxable property, of the district, placing the same
on the next township assessment roll in the column for school taxes, and the same proceedings shall be had,
and the same shall be collected and returned in the same manner as other district taxes.
CHAP. 58.] ( 297 ) [TITLE 11.
Penalties and Liabilities. - - - •
1 SEc. 130. Every taxable inhabitant receiving the notice mentioned in the first and second sections of this § *i.
irst meeting.
2 chapter, who shall neglect or refuse duly to serve and return such notice, and every chairman of the first
*
s
3 district meeting in any district who shall wilfully neglect or refuse to perform the duties enjoined on him in
*
4 this chapter, shall respectively forfeit the sum of five dollars.
1 SEc. 131. Every person duly elected to the office of moderator, director or assessor of a school district, Penally on dis-
trict officers for
neglect, &c.,
2 who shall neglect or reſuse, without sufficient cause to accept such office and serve therein, or who, having
3 entered upon the duties of his office, shall neglect or refuse to perform any duty required of him by virtue
4 of his office, shall ſorſeit the sum of ten dollars,
*
1 SEC. 132. Every person duly elected or appointed a school inspector, who shall neglect or refuse, with- ###".
SDCCLOTS (Or. In O
jº. OY
ſº * © & e neglecting duty.
2 out sufficient couse, to qualify and serve as such, or who having entered upon the duties of his office, shall
3. neglect or refuse to perform any duty required of him by virtue of his office, shall forfeit the sum of ten
4 dollars.
1 SEc. 133. If any board of school inspectors shall neglect or refuse to make and deliver to the township
Bourd of school
inspectors liable
e - * e * , ºn tº º tº º for neglcct.
2 clerk, their annual report to the county clerk, as required in this chapter, within the time limited therefor,
3 they shall be liable to pay the full amount of morey lost by their ſailure with interest thereon, te be reco-
- How recovered.
4 vered by the township treasurer in the name of the township, in an action of debt or on the case.
1 SEc. 134. If any township clerk shall neglect or refuse to transmit the report mentioned in the preceding
Township clerk
e * & º to transluit re-
2 section to the county clerk as required in this chapter, he shall be liable to pay the full amount lost by such .."...ie'.
itmoutit lost.
3 neglect or refusal, with interest thereon, to be recovered in the manner specified in the preceding section,
1 SEC. 135. Every county clerk who shall neglect or refuse to make the report required in this chapter, to
- County clerk
e te tº º º - - neglecting to
2 be made by him to the superintendent of public instruction, within the time therefor limited, shall be liable º:
ulmOunt lost.
8 to pay to each township the full amount which such township or any school district therein, shall lose by
75
Chap. 58.]
( 298 ) [Title 11.
4
Money collected
on account of
neglect, how
disposed of.
Removal of offi-
cer for illegal use
of money.
Persons paying
taxes in district
may send to
school, and be
rated therein.
*
When district
shall be divided,
after tax assess-
ed and not col-
lected, how col-
lected and ap-
portioned.
5
l
such neglect or refusal, with interest thereon, to be recovered in the manner specified in the two last prece-
ding sections,
*
Sec. 136. All the moneys collected or received by any township treasurer under the provisions of either º
of the three last preceding sections, shall be apportioned and distributed to the school districts entitled there-
to, in the same manner, and in the same proportion that the moneys lost by any neglect or refusal therein
mentioned would, according to the provisions of this chapter, have been apportioned and distributed.
Sec. 137. The township board of each township shall have power, and is hereby required to remove from
office, upon satisfactory proof, after at least five days' notice to the party implicated, any district officer or
school inspector who shall have illegally used or disposed of any of the public moneys entrusted to his
charge,
Miscellaneous provisions relating to Primary Schools.
Sec. 138. Any person paying taxes in a school district in which he does not reside, may send scholars to
any district school therein, and such person shall, for that purpose have and enjoy all the rights and privil-
eges of a resident of such district, except the right of voting therein, and shall be rated therein for teach-
ers' wages and fuel, and in the census of such district, and the apportionment of moneys from the school
fund, scholars so sent, and generally attending such school, shall be considered as belonging to such district.
SEc. 139. Whenever any portion of a school district shall be set off and annexed to any other district,
or organized into a new one, after a tax for district purposes, other than the payment of any debts of the
district, shall have been levied upon the taxable property thereof but not collected, such tax shall be col-
lected in the same manner as if no part of such district had been set off; and the said former district, and
the district to which the portion so set off may be annexed, or the new district organized from such portion,
shall each be entitled to such proportion of said tax, as the amount of taxable property in each part there-
of bears to the whole amount of taxable property on which such tax is levied.
\
Sec. 140. For the purpose of apportioning the income of the primary school fund among the several
CHAP. 59.] • ( 299 ) - [TITLE 12.
2 townships, a district situated in part in two or more townships, shall be considered as belonging to the town-
District in two
Or in Ore to W n- f
g l. 3 * e g g g º ships, income o
3 ship to which the annual report of the director is required to be made, but money raised in any one of such j'.".
apportioned, &c.
*
4 townships for the support of schools therein shall be apportioned to the districts and parts of districts there-
5 in, according to the number of children of the proper age in each,
1 SEC. 141. Children supported at a county poor house shall not be included in any report of the number children sun-
portcd at poor-
house not to be
º e * e * l d & <-
2 of children in any school district. º ed in re
TITLE XII.
Of The PUBLIC LANDs, AND THE SUPERINTENDENCE, AND Disposition THEREoy,
CHAPTER 59.—Of the State Land Office, and the Officers connected there with,
{ { 60.—Of the Superintendence and Disposition of the Public Lands.
CHAPTER 59.
of THE STATE LAND of FICE, AND THE OFFICERS CONNECTED THE REWITH, *
1 Section 1. The state land office established in the village of Marshall in the county of Calhoun, shall be
Larid office.
N -
g . . . * . . . . 1844, p. 80, &c.
2 continued at the place aſoresaid, until otherwise provided by law. p
I Sec. 2. The chief officer of the land office, shall be called the commissioner of the land office, and shall
* Commissioner,
* & g tº .."ji.
2 be appointed by the governor, by and with the advice and consent of the senate, and shall hold his office for
3
the term of two years, and until his successor shall be appointed and qualified,
*
1
Sec. 3. The commissioner of the land office shall receive an annual salary of one thousand dollars, pay- His salary.
2
able quarter yearly,
1 SEC. 4. Before entering upon the duties of his office, he shall take the oath prescribed by the twelfty ar-
CHAP. 59.] ( 300 ) [Title 12.
Oath of office
und bond.
Condition of
bond.
Commissioner to
appoint deputy
and clerk.
Depuly and
clerk to take
oath—commis-
sioner and se-
cretary respon-
Bible for their
{UC(S.
Commissioncr
to keep record
of sales &c.
Monthly state-
In 16 ill to State
trCâSurer,
2
3
ticle of the constitution of this state, and cause the same to be filed with the secretary of state, and shall
also execute to the people of this state a bond in the penal sum of fifty thousand dollars with two sufficient
4 sureties to be approved by the auditor general and state treasurer, and deposit the same with the secretary
2
2
of state.
Sec. 5 The condition of said bond shall be, that the said commissioner shall faithfully discharge the du-
ties of his said office, and that he will honestly and truly account for and pay over all moneys and evidences
of debt that may come into his hands by virtue of his office, or into the hands of his deputy or clerk, accor
ding to law.
SEc. 6. The said commisioner shall appoint a deputy and may also appoint one clerk if the business of his
office shall require it, each of whom shall receive an annual salary not exceeding five hundred dollars pay-
able quarter year y.
SEc. 7. Said deputy and clerk shall severally, before enterig upon the duties of their offices, take and sub-
scribe the constitutional oath oſ office, and cause the same to be filed with the secretary of state, and the
commissioner may remove them or either of them at his pleasure, and the said commissioner and his sure-
ties shall be responsible for their official acts.
SEc. 8. The commissioner shall keep a record of the sales of lands, and of the moneys received by him
on account either of principal or interest, the date of such sale or payment, the description of the lands
sold, with the number of acres thereof, and the name of each purchaser, or person payiug such moneys, to
whom he shall give a receipt for such moneys, and shall credit the proper fund therewith.
Sec. 9. He shall on the first Monday of eacn and every month, cause to be made out and transmitted to
the state treasurer, a statement showing the amount of money, or evidences of debt received by him, the
3 name of the persons paying the same, the time of payment, the number of the certificate upon which such
4 moneys were paid, the kind of funds received, and the proper ſund to be credited there with.
1 SEC. 10. He shall also, on the first Mondays of March,June, September and December in each year, and
Chap. 59.] . ( 391 ) [TITLE 12.
|
2 at any other time when required by the state treasurer, deliver and pay over to said treasurer all moneys
Moneys to be
paid to state
3 and evidences of debt received by him as aſoresaid. treasurer. ,
N.
1 SEc. 11. The said commisionershall have the general charge and supervision of all lands belonging to the Commissi
- - Ommissioner t0.
have charge of
lands.
2 state, or which may hereafter become its property, and also of all lands in which the state has an interest,
3 or which are or may be held in trust by the state for any purpose mentioned in this title, and may superin-
4 tend, lease, sell, and dispose of the same in such manner as shall be directed by law.
1 SEc. 12. He shall annually make a report to the legislature of his official proceedings, showing the quan-
Annual report
of commissioner.
2 tity of land sold or leased, and the amount received therefor; the amount of interest moneys received to the
3 credit of the several ſulds, and all such other matters relating to his office as he may think proper to com-
4 municate.
1 SEc. 13. There shall also be appointed by the governor, an officer who shall be called the recorder of the
Recorder of
*-*
land office, who shall hold his office for the term of two years, and until his successor shall be appointed
2
3 and qualified, and shall keep his office in the village of Marshall aforesaid, and receive an annual salary of
4 four hundred dollars a year, payable quarter yearly.
1 SEC. 14. The said recorder may appoint a deputy, but without additional expense to the state, for whose Recorde, may
appoint deputy :
both to take
2 official acts he shall be responsible; both of whom shall severally, before entering upon the duties of their oath.
3 office take and subscribe the constitutional oath of office, and cause the same to be filed with the secretary
4 of state.
I Sec. 15. It shall be the duty of the recorder or his deputy to countersign every certificate of purchase, nº of .....
der.
2 receipt or other official instrument in writing, which may be issued or given by the said commissioner, and
-
which purports to be evidence of meneys received by him; and unless such certificate, receipt or official
instrument be so countersigned, it shall not be evidence of payment, nor valid in law.
-
76
CHAP. 60.] ( 302 ) [TITLE 11.
1 Sec. 16. The said recorder, upon countersigning any certificate, receipt or other instrument as aforesaid,
Ib.
2 shall charge the commissioner with the amount received by him as therein mentioned, and credit the proper
3 fund therewith, and shall also keep a record of the names of the persons paying the same, the number of
4 the certificate upon which the amount shall be paid, and the time of the payment.
|b 1 SEc. 17. The recorder shall also, after comparing the accounts kept by him with those kept by the com-
2 missioner, on the first Monday of each and every month transmit to the state treasurer a statement of all
3 the several certificates, receipts and other official instruments, which have been issued or given by the com-
4 missioner, and countersigned as aforesaid, together with the dates, numbers and amounts thereof, the names
*
5 of the several persons paying such sums, and the several funds to which they respectively belong.
CHAPTER 60.
OF THE SUPERINTENDENCE AND DISPOSITION OF THE PUBLIC LANDS.
University and School Lands.
I
SECTION I. The minimum price of the unsold and unimproved university lands, shall be twelve dollars per
Minimum prices tº º &
º acre, and the minimum price of the unsold and unimproved school lands shall be five dollars per acre; but
School landS, ſº
to be ſirst offercd *
ut public auc-
tion. 3
no such land shall be otherwise sold until they shall once have been offered for sale at public auction, and
* * * * 4 no such lands shall be sold for less than the aforesaid prices respectively, nor shall any treasury notes or
5
warrants be received for university lands hereaſter forfeited to the state.
Terms of pay- * SEc. 2. The terms of payment on the sale of university and school lands, shall be twenty-five per centum
Incl. t. -
of the purchase money to be paid at the time of the purchase, the balance of the principal at any time
thereafter at the option of the purchaser, with interest at the rate of seven per cent per annum on the un-
paid balance, payable on the first day of March or within sixty days thereaſter, in each and every year at
such place or places as shall be specified in the certificate of purchase.
SEC. 3. At the time of the sale of any such lands, the commissioner shall make out and deliver to the
• CHAP. 60.] * - ( 303 ) [TITLE 12.
2
3
I
l
5
7
2
3
purchaser or purchasers thereof a certificate in which the said commissioner shall, in the name of the peo-
r Certiſicatc of
purchase, what
© º 0 - 0 * - s e r to Cºuntain.
ple of this state, certify the description of land sold, the quantity thereof and the price per acre, the con-
sideration paid and to be paid therefor, and the time and terms of payment,
SEC. 4. The said certificate shall further set forth, that in case of the non-payment of the interest due, by lb.,
the first day of March or within sixty days thereafter, in each and every year, by the purchaser or pur-
chasers, or by any person claiming under him or them, then the said certificate shall from the time of such
failure be utterly void and of no effect, and the said commissioner may take possession thereof and re-sell
the same as is hereinafter provided.
Sec. 5. Any purchaser of university or school lands, his heirs or assignes, who shall have paid on or be Yºlº,
- lance at any
time, &c.
fore the first day of March, in the year one thousand eight hundred and forty-two, a sum equal to twenty
per cent of the purchase money on his certificate, together with the interest up to said day; and any per-
son who shall have become such purchaser since the thirteenth day of April, in the year one thousand eight
hundred and forty-one, his heirs or assigns, who shall have paid according to the terms of his certificate,
shall be privileged to pay the balance of principal due on his purchase at any time hereafter at his option ;
but in all cases the interest on the unpaid balance of principal shall be paid on the first day of March, or
within sixty days thereafter, in each and every year.
**
Sec. 6. In case of non-payment, either of principal or interest when due, according to the provisions of when commis.
sioner may take
possCssion and
1 C-Scl!.
the preceding section, or according to the terms of the certificate of sale, as the case may be, such certifi-
cate shall become void and of no effect from the time of such failure,and the commissioner may take imme-
diate possession thereof and re-sell the same.
SEc. 7. The said commissioner shall, whenever in his opinion the interest of the state will not be secured
\ Coºnmissioner
it lay requite se-
º º - e - º - Curity of -
by the payment in this chapter required to be made at the time of the purchase, require of the purchaser ...," "
such security for the payment of any moneys to become due and payable according to the terms of the cer-
tificate of purchase, as in his judgment will secure the respective funds against loss.
CHAP. 60.]
( 804 ) [TITLE 12.
Patchts to be is-
succi by govern-
() iſ a
Fee of land.
Commissioner
may recover
utmount due for
which security
is given.
Improved lands.
how sold.
Conn'r may lay
off tracts into
snialſ lots, and
sell thcu.
Appraisal.
I
2
2
2
SEc. 8. The governor of the state shall sign and cause to be issued patents for said lands as described in the
certificates of sale, whenever the same shall be presented to him with the further certificate of the commis-
sioner endorsed thereon, that the whole amount of principal and interest specified therein has been paid ac-
cording to law, and that the holder of the certificate of purchase is entitled to a patent for the lands described
therein. - -
Sec. 9. The fee of each and every parcel of the said lands shall be and remain in the state until patents
shall issue ſor the same respectively, upon full payment as aforesaid ; and in case of a non-complyance by
the purchaser, his heirs or assigns, with the terms of the certificate as aforesaid, or with the provisions of
law applicable thereto, any and all persons being or continuing in possession of any such lands aſter a
failure to comply with the terms of the certificate as aforesaid, or with such provisions of law as aforesaid,
without a written permission of the commissioner of the land office shall be deemed and held to detain such
lands forcibly, and without right, and to be trespassers thereon.
SEc. 10. In all cases where security has been taken from the purchaser, pursuant to the provisions of the
seventh section of this chapter, the commissioner shall have power to sue for and recover all such sums as
may become due and payable for which such security was given.
Sec. 11. All the improved portions of the university and school lands remaining unsold, shall be subject
to sale at the respective prices at which they were severally offered at the last annual public sales, until
the improvements on the same shall have been appraised as provided in this chapter.
Sec. 12. Whenever either the university or school fund will, in the opinion of the commissioner, be im-
proved by laying off any section or tract of university or school lands, into small parcels, or village lots,
the said commissioner may cause the same to be done, and may sell the same at the respective minimum
prices established in this chapter; or if in his opinion any of such parcels or lots exceed in value such pri-
ces, he may cause the same to be appraised by three disinterested freeholders of the county in which such
parcels or lots are situated.
Chap. 60.1 e - ( 305 ) [TITLE 12.
2
l
2
Sec. 13. Such freeholders shall be appointed by the commissioner, and after being first duly sworn so to
- - - Appraisers to be
sworn, and is
• , § * - * . . - & t - tº & tº • e - g - * k - : g
do, shall appraise the several parcels or lots directed by said commissioner to be appraised by them, at their ...”
true value respectively, and shall make a return of such appraisement duly certified by them, to the com-
4A
missigner. .#
º
SEC. 14. All parcels or lots so appraised, shall be subject to sale in the same manner, and upon the same Lots to be º
- . at appraised va-
luc, but not be-
low minimum
terms and conditions, and the certificates of purchase shall have the same effect, as in the case of other uni- price.
versity or school lands, according to the provisions of this chapter, at the prices at which the same were se-
verally appraised, until a new appraisal shall be made, which the commissioner may, in his discretion, cause
to be had in the manner aſoresaid, and with the like effect ; but no lots or parcels so appraised shall be sold
for less than the minimum price of said lands established in this chapter,
gº * @ & & # º * tº When lands
Sec. 15. The said commissioner may also, in his discretion, reserve and withhold from sale, such portions ºneld
from sale.
of the university and school lands as in his opinion it may not be advantageous to sell and dispose of, and
for so long a time as in his opinion will be most beneficial to the several funds affected thereby.
SEC. 16. All university and school lands which have been or may be forfeited by the non-payment of ei-roºm.
to be offered at
auction.
ther principal or interest, and which have not been offered at public auction after forfeiture, before the same
Minimum price
& * - s * & & e ſº of inn proved
shall be subject to private entry, shall be offered for sale at public auction, and the minimum price of all ...
portions or tracts upon which improvements shall have been made, shall be such as shall be determined by
*.
the commissioner in the manner hereinafter in this chapter provided.
SEc. 17. The sale of such forfeited lands shall be held at such times and places as shall be designated in
Sałe, when held,
* º & g ū & & e tº g how notific t g
a notice containing a description of the lands so ſorfeited, which notice shall be published once in each
week at least four weeks successively before the time of sale, in a newspaper printed in the county where
the lands are situated if there be one, if not then in a newspaper printed in an adjoining county if there be
one, and if there be none printed in an adjoining county, then in such newspaper as the commissioner shall
designate.
* 77
CHAr. 60.] t ( 306 ) - - [Trrle 12.
Rights of pur-
chasers; &c.,
under certificate.
Certificates may
be recorded.
Payments to
8tate treasurer
on cortificates.
Redemption of
rights forfeited
by purchaser.
lists of ſor ſeitetl
lands, add un-
sold lands itn-
proved, to be
Sent to cou tily
clerks, &c.
f
4.
I
Sec. 18., Certificates, of purchase issued:pursuant to the provisions of law, shall, entitle the purchaser to
2. the possession of the lands therein described, and shall be sufficiont evidence of title to enable the purcha-
3 ser, his heirs or assigns to maintain actions of trespass for injuries done to the same, or ejectment, or any
4 other proper action or proceeding to recover possession thereof, unless such certificate shall have become
5
l
2
void by forfeiture; and all certificates of purchase in force may be recorded in the same manner that deeds
of conveyance are authorized to be recorded.
Sec. 19. Any purchaser of unversity or school lands may pay to the state treasurer the amount due on his
certificate of purchase, whether principal or interest, and for the amount, so paid, the treasurer shall, give
3 his receipt, which shall be countersigned by the auditor general ;, and a statement of all such payments
4
5
shall be transmitted by said treasurer to the commissioner of the land office.on.or before the first Monday of
each month.
SEc. 20. In all cases where.the rights of a purchaser shall have become. forfeited, under, the provisions of
this chapter, by his failure to pay the amount due upon his certificate of purchase, if such purchaser, his
heirs or assigns shall, before the time appointed for the sale of the lands described in such certificate at
public auction, pay to the commissioner of the land office, the full amount then due and payable upon such
certificate, and fifty cents on each dollar of such amount in addition thereto, such payment shall operate as
a redemption of the rights of such purchaser, his heirs or assigns, and said certificate, from the time of such
payment, shall be in full force and effect, as iſ no such ſorſeiture had occurred.
SEc. 21. On or before the first day of June in each year, the commissioner of the land office shall prepare
and transmit to the clerks of the several counties in which the same are situated, lists of all the forfeited
lands in the several townships therein, and of all the unsold university, school, and state building lands which
4 he may have cause to believe are improved, together with proper forms of returns and certificates of ap-
5 praisement, to be forthwith distributed by such clerks respectively to the several supervisors of townships to
6 whom the same may be directed,
CHAP. 60.] ( -307 ) - - Title 13.
1 SEC. 22. Every supervisor of a township; upon receiving the lists, and forms asaforesaid, shall proceed to -
- & - - ... • Supervisor to
- e - - e & appraise in-
2 estimate and appraise the value of all the improvements upon the several tracts or parcels of land mention- "“”
º Q - - ... • 3.
3 ed in such lists, and after making such appraisement according to the forms prescribed by said commission.
*
4 er, he shall make returns thereof duly certified by him to the commissioner, on or before the first day of
º
5 August in the same year,
*
| SEC, 23. On the return of such appraisement, the amount of the appraised value of improvements on each on return of ap-
- praisal commis' r
to fix price.
2 tract or parcel shall be divided by the number of acrescontained therein, and the result; together with the
3 minimum price per acre of unimproved lands of the same description as establishéd in this chapter, shall be
4 the specific minimum price per acre of such tract or parcel, the improvements upon which shall have been
5 so appraised, until the same shall be changed by a subsequent appraisal;
*
I Sec. 24. The unimproved forfeited lands shall continue at the minimum price per acre of unsold-and-un- ...,
ty lands.
2 improved lands, as established in this chapter,
1 SEc. 25: The commissioner of the land office may, from time to time lease, for terms not exceeding one
Leasing impro-
g ſº * e g * ved lands.
2 year, and until the same are disposed of according, to law, all such university and school lands; and other
3 lands belonging to the state, as shall have improvements on them ; and such lenses shall contain proper co-
4 venants to guard against trespaases and waste,
*
I
1 SEC. 26. The university lands of. this state, lying near Toledo, in the state of Ohio, may be sold by the
University lands
in Ohio.
2 said commissioner whenever he shall deem it most advantageous to the university fund, to sell the same in
3 the manner and upon the terms and conditions prescribed in this chapter, for the sale of other university
4 lands.
1 Sec. 27. Whenever it shall appear to the commissioner necessary, in order to ascertain the true bounda-
• * Commis'r may
* cause necessary
2 ries of any tract or portion of the lands mentioned in this chapter, or to enable him to describe and dispose.”"
3 of the same, in suitable and convenient lots, he may cause all such necessary surveys to be made ; and the
CHAP. 60.] - ( 308 ) [TITLE 12.
4 expenses thereof shall be paid out the proper fund, in the same manner as the other incidental expenses of
5 the land office. ‘. . . . . . . . . . . ... • - * . . . . . .
1
State Building Lands.
I Sec. 28. The minimum price of the unsold and unimproved state building lands shall be twelve dollars per
State building
lands. . .
2 acre, and the minimum price of the improved state building lands shall be such as has been or may be de-
1844, p. 90. e e e º . . . . . . - - e e e e *
- 3 termined by the commissioner in the manner provided in this chapter for determining the minimum price of
4 improved university lands; but none of the said lands shall be sold for less than twelve dollars per acre.
Terms and eon- I
ditions of sale. Sec. 29. The terms and conditions, and manner of sale of said lands, and of payment, both of Principal
2 and interest thereſor, shall be the same in all respects as are prescribed in this chapter for the sale of uni-
3 versity and school lands and payment for the same, and the said commissioner shall issue certificates of pur-
4 chase upon the sale thereoſ in the same form, and with the like effect, as upon the sale of university or school
5 lands.
State Salt Spring Lands.
?
1 SEC. 30. The minimum price of the lands selected for this state as salt spring lands, and which shall not
Salt spring
lands.
2 have been improved, shall be five dollars per acre; and the minimum price of the improved salt spring lands
1913, p. 110, &c. 3...shall be such as may be determined by the commissioner in the manner provided in this chapter for deter-
4 mining the minimum price of improved university and school lands, but none of said lands shall be sold for
5 less than five dollars per acre.
1 SEc. 31. The terms and conditions and manner of sale of said lands, and of payment both of principal and
Terms and con-
ditions of sale. o . º -> - e e - e º
""" “ 2 interest therefor shall be the same in all respects as are prescribed in this chapter for the sale of university
3 and school lands and payment thereſor, and the commissioner of the land office shall issue certificates of
4 purchase upon the sale thereof in the same form, and with the like effect, as upon the sale of university or
. Aº
* .
-
5 school lands.
1 SEC. 32. None of said salt spring lands shall be subject to private entry until they shall have been first
CHAP. 60.] ( 309 ) # [TITLE.12.
2 advertised and offered for sale at public auction in the manner prescribed in this chapter for advertising and rands to be first
uffered at public
auction.
3
selling forfeited university and school lands,
1 Sec. 33. Such of the said lands as have been improved by the state by boring thereon for salt springs, and certain pºiſºn.
not to be SOld.
2 such other of said lands as in the opinion of the governor, state geologist and commissioner, should not be
3 sold, shall be withheld from sale, and shall not be sold under the provisions of this chapter,
1 SEc. 34. Whenever in the opinion of the commissioner the interests of the state will be promoted by *y when true, to
be laid off into
village lots, &c.,
o tº g iº wº {}. and how mini-
2 ing off any section or tract of said lands into small parcels or village lots, he may cause the same to be done, ºn...e.
lished,
3 and such lotsor parcels to be appraised in the manner provided in this chapter for appraising university and
/ -
4.
school lands laid off into small parcels or village lots, and such appraisal shall be the minimum price at
5
which such lots or parcels shall be respectively sold. &
1 SEc. 35. All sums received on account of the sale of said sal spring lands, shall be paid into the treasu- Moneys received
. on sale to be cre-
dited to to gene-
ry of the state, to the credit of the general fund. ral fund.
2
Internal Improvement Lands.
1 SEc. 36. The minimum price of the unsold portion of the half million of acres of land granted to this state Price of internal
improvement
lands to be $1,25
e e tº . To b
by the act of Congress of September fourth,one thousand eight hundred and forty-one, for interual improve- per acre. 'L'o be
2
first offered at
public auction.
3 ment purposes, shall be one dollar and twenty-five cents per acre ; and none of the internal improvement
4
lands of this state shall be subject to private entry, until the same shall have been first offered at public auc- ****
*
5 tion.
1 SEc. 37. None of said lands shall be sold for less than their respective minimum prices, and all of said lands Not to be sold for
less than mini-
mum price,
2
not sold at such public auction, shall be subject thereafter to sale at their minimum prices respectively.
1 Sec. 38. All lands and real estate which have or may become the property of this state, the title to which Lands º
In O&WIOleIn
º: i.
- - - appraised and
2 has been or may be derived from any source in the payment or collection of debts to the state, shall be ap-sold.
78
CHAr. 60.] ( 310 ) [TITLE 12.
When subject to
private sale.
On the sale, cer-,
tificate to be giv-
en, what to con-
taill.
Kind of funds
received to be
endorsed on
certificate.
Notice of public
sale liow given.
Com’r to trans-
mit to gevernor
a Statement of
certificates is-
Sued once in
three montlis.
3 praised by the commissioner of the land office, the auditor general, state treasurer and secretary of state, or
4 any two of them, as soon as practicable after the title thereto shall become vested in the state ; which ap-
5 praisal shall be in writing, and one copy thereof shall be filed in the office of the commissioner, and one
6 copy in the office of the auditor general.
1 SEc. 39. The said lands and real estate, after being once offered for sale at public auction at not less than
2 the appraised value, and remaining unsold, shall be subject to private sale at any time thereafter, at the
3 minimum price established by such appraisal, or by any subsequent appraisal which the said officers may,
4 in their discretion, at any time make.
1 SEC. 40. On the sale of any of said internal improvement lands, the commissioner shall make out and de-
2 liver to the purchaser thereof a certificate, containing a description of the same, the contents thereof, the
3 amount paid therefor, the date of the sale and the name of the purchaser, and setting ſorth that upon pre-
4 sentation thereof at the office of the secretary of state, the purchaser will be entitled to a patent from the
5 governor for the lands therein described.
1 SEc. 41. He shall also endorse upon the certificate the kind of funds or evidences of debt received in pay-
2 ment for the lands described therein.
1 SEC. 42. Whenever it shall be necessary to offer any of said lands at public sale, the commissioner shall
2 cause a notice, containing a description of each parcel thereof, and the time and place appointed for the
3 sale, to be published at least four weeks successively in a newspaper printed in each county in which any of
4 such lands are situated, if there be one, and also in the state paper.
1 SEC. 43. On or before the first days of January, April, July and October, in each year, the commissioner
2 shall cause to be made out and transmitted to the governor, a statement of all the certificates of purchase
3 issued by him for any of said lands, the numbers thereof, a description of the lands mentioned in each, and
4 the names of the purchasers thereof respectively.
Chap. 60.] ( 311 ) [TITLE 12
I
2
2
!
D
Sec. 44. On the receipt of such statement, the governor shall execute and deposite with the secretary of
Governor to is-
- i. patents and
state patents for the lands described in such certificates, to the purchasers thereof or their assigns respective- *ście.
tary of state.—
ly; which patents, or duly certified copies thereof, shall be sufficient evidence of the facts contained there-
in ; but no such patent shall be issued by the governor for any such lands unless he shall be satisfied that
the title of the state thereto is perſect and complete.
SEc. 45. The secretary of state shall not deliver any such patent, until the original certificate of the com-Patent ſ: ".
SUlè un ICSS title
of state is per-
ſect.
missioner shall be deposited in his office, unless the same shall have been lost or destroyed, and upon pre-
senting to the commissioner an affidavit satisfactory to him, showing that such original certificate has been
lost or destroyed as aforesaid, the said commissioner shall issue to the person entitled thereto, a duplicate
thereof.
SEc. 46. Upon the presentation of such duplicate certificate and affidavit to the secretary of state, he shall jº tº
eliver patent,
until certificate is
surrendered un-
deliver to the person so entitled, the patent for the land described therein, and shall file and preserve all such º: or de-
cartificates and affidavits in his office.
SEC, 47. The certificate of purchase of any of said lands, given by the commissioner as aforesaid, shall
Certificate evi-
dence of title for
be sufficient evidence of title in the purchaser, his heirs or assigns, to enable him or them to maintain tres. *P*
pass or any other proper action for any injury to the lands therein described, or to recover possession there-
of, and such lands shall be liable to be taxed from the time of issuing such certificate.
Sec. 48. All warrants drawn by the auditor general, and now outstanding, or that may hereafter be drawn ºy.
In CIA[.
z
according to law, against any of the funds of this state, and all treasury notes and other lawful obligations
of this state, payable out of the state treasury, shall be receivable for all lands belonging to this state ſor
purposes of internal improvement, and the commissioner shall, on receiving any such warrants or obligh-
tions bearing interest, endorse the amount of interest accrued thereon.
CHAP. 60.] - ( 312 ) [TITLE 12.
Com'r to have
custody of books
and papers rela-
lung to lands.
1844, p. 93.
Maps to be furn-
isled for land of-
fice.
*Lists of lands
sold to be sent to
county treasurer
annually,
Lists to be ſurn-
ished to supervi-
sors by county
tred Sull Cr.
Registers to re-
cord patents: Eſ-
fect of record.
Incidental ex-
penses of land
office how al-
lowed und paid.
Sale madc by
mistake, &c., to
be void, and mo-
ney to be refund-
cd, on surrender
of certificate.
Miscellaneous Provisions.
1 SEC, 49. The commissioner of the land office shall have the custody of all books and papers relating to any
2 of the public lands mentioned in this chapter, except such as properly belong to the records or files of other
3 offices.
1 SEC. 50. The state geologist shall furnish the land office with a map of each of the several counties of this
2
state, as soon as the same are completed.
1 SEC, 51. The said commissioner shall, on or before the first day of April in each year, transmit to the
2
treasurer of each county in which any of the lands mentioned in this chapter may have been sold during
3 the year then next preceding, a description of each parcel of the lands so sold in such county, and the names
4
of the purchasers, distinguishing university and school lands from others.
I SEC. 52. The several county treasurers receiving such descriptions shall, on or before the second Monday
2
of April, deliver to the supervisor of each township in which any of such lands are situated, a description
3
of such lands therein, with the names of the purchasers of the same.
1 SEc. 53. The registers of deeds of the several counties are authorized to record all patents issued by the
2 governor pursuant to the provisions of this chapter, and the record thereoſ shall have the same effect as the
3 record of other conveyances executed according to the laws of this state.
1 SEc. 54. The necessary incidental expenses of the land office shall be paid out of the several funds, re-
2 spectively, in relation to which they were incurred, and upon the presentation of satisfactory vouchers
3 therefor to the board of state auditors, shall be allowed by them at their annual settlement with the commis-
4 sioner.
1 SEc. 55. In case of any sale made by mistake, or not in accordance with law, or obtained by fraud,
2 the same shall be void; and no certificate of purchase issued thereon shall be of any effect, but the holder
[TIBLE k2.
3.
4.
3
2
I
of any such certificate shall be required to surrender the same to the commissioner, who shall thereupon
refund the amount paid in the like ſunds received by him on such certificate.
Sec. 56. The legal assignees of all bona fide purchasers of any of the lands mentioned in this chapter,
Assignecs of
purchasers, their
ics,
shall be subject to, and governed by, the provisions of law applicable to the respective purchasers of whom ***"""
they are the assignees, and they shall have the same rights in all respects, as original purchasers of the same
class of lands.
*
Sec. 57. All sales of lands by the commissioner, shall be made according to the subdivisions thereof by the in what parcels
land to be sold.
United States’ surveys, unless the same shall have been laid off into smaller lots as provided in this chap-
ter, or unless in the opinion of the commissioner any of said lands can be more advantageously disposed of
according to other divisions to be ascertained and distinctly described by him.
**.
SEC. 58. When an original certificate of purchase shall have been issued by the commissioner for a quar. ...
certain cases.
ter section or more of said lands, according to the legal sub-divisions thereof, he may in his discretion, up-
on the surrender of such certificate, and the payment of one dollar for each new certificate requested, is-
sue a new certificate for each smaller legal sub-division included in such original purchase not being less
than one half of a quarter section, if in his opinion no injury will result therefrom.
SEc. 59. A right of way is reserved to the state over all the lands heretofore sold by the state subject to ...'...".
over lands re-
served to the
Stal{*.
such right, and over all lands which may hereafter be sold under the provisions of this chapter, for the pur-
pose of constructing and using any rail road or other public work of the state upon or over the same, and
no damages shall be allowed therefor.
*
Sºo. 09. All damages recovered for any trespass or other injury upon or to any of the lands mentioned in Damages recov.
cred to be puid
over for benefit
º o - º ºg of proper fund.
this chapter, shall be paid over to the commissioner of the land office or into the state treasury, for the be- proper ſun
nefit of the fund to which the same may properly belong.
SEC, 61. Every person who shall commit any wilful trespass upon any of the lands owned, or held in trust
79
CHAP. 60.]
( 314 ) [Triº 12. '
Trespass, &c.,
on public land, a
misdemeanor &
how punished.
Courts to charge
grand jury spe-
cially.
Wilful trespaser
liable in treble
damages, casual,
&c., in single
damages.
Pcsons holding
or continuing in
possessession of
lands without
authority, liable
to action of ſor-
cible entry and
detainer, &c.
I’ros. Atl’ys to
report trespass-
ers to commis-
sioner, and pros-
ccute actions
when directed.
2
3
or otherwise by this state, either by cutting down or destroying any timber or wood, standing or growing
thereon, or by carrying away any timber or wood therefrom, or who shall injure or remove any buildings,
fences, improvements, or other property belonging or appertaining to said lands, or shall aid, direct or coun-
tenance any such trespass or other injury, shall be deemed guilty o: a mid-meanor and on conviction
thereoſ shall be punished by imprisonment in the county jail not more than one year, or by a fine not ex-
ceeding five hundred dollars, or both such fine and imprisonment, in the discretion of the court.
SEc. 62. It shall be the duty of every court having jurisdiction of the same, specially to charge the grand
jury at each term of such court, to inquire into all offences against the provisions of this chapter, and pre-
sent any person who may be guilty of any such offence within their county.
**.
SEc. 63. Any person who shall commit any trespass upon any of the lands owned, or held in trust or oth-
erwise by this state, shall be liable in treble damages, in an action of trespass to be brought in the name of *
the people of this state, if such trespass shall be adjudged to have been wilful; and single damages on-
ly shall be recovered in such action if such trespass shall be adjudged to have been casual and involuntary.
Sec. 64. In case any person shall hold or continue in possession of any of the lands mentioned in this
chapter without express authority in writing from the commissioner of the land office, or contrary to the
y
conditions or covenants of any lease or written agreement, he shall be liable to an action of forcible entry
and detainer, or any other proper action or actions for the recovery of possession of such lands, and dama-
... * t
*
ges for the detention of the same.
Sec. 65. The prosecuting attorneys of the several counties shall promptly report to the commissioner all
trespasses committed upon any of said lands which may come to their knowledge, and shall, when directed
by the commissioner, prosecute all actions for any trespass or injury thereto, or for the recovery of possession
thereof, or otherwise.
Sec. 66. It shall be the duty of each of said prosecuting attorneys, whenever requested by the commission-
CHAP. 60.] ( 315 ) [TiTLE 12.
2 er, to advise, with and give their opinion upon all questions of law which may be submitted to them by the
- P ting at-
- - - jº. #e.
º & e e º - © e - e gal opinion.
3 said commissioner relating to the duties of his office, without unnecessary delay, and without charge to the
4 commisioner or to the state.
I
SEc. 67. The seal now in use in said land office shall continue to be the seal of said office, and in case the is oriend of
Cć.
é
)
2 same should be lost or destroyed, another seal, with a similar device shall be procured for said office by the .#
3 commissioner thereof.
1 SEC. 68. All treasury notes or warrants bearing interest, drawn by authority of law on the treasurer of this certain obliga-
- - tions receivable
- for ºversiº
e . - e. - g e lands.
2 state, shall be received in payment of principal for any of the university lands which may hereaſter be
© * º - e 1844, p. 18.
3 sold, and which have not once been sold and forfeited, in the same manner as they are by law receivable
4 for any lands owned by this state, subject to the limitations hereinaſter contained.
1
SEc. 69. The whole amount of such notes and warrants which may be received under the provisions of ºn of
e aſſ] Oullû,
2 the preceding section, shall not exceed the residue of the sum of one hundred thousand dollars which shall
3 remain after deducting the full amount of all sums which shall have been credited to the regents of the
e º wº • - - • : º e - º g * - - 22 -
4 university, or to the university fund on the principal of the “Michigan University State Stock,” in pursu- 1844, p. 18, 1838,
e - 248, 1844, p. 17.
5 ance of “an act authorizing the receipt of obligations of this state in payment of university lands,” approved
6 February 28, 1844, and of “an act ſor the relief of the university of Michigan,” approved March 11, 1844.
1 SEc. 70. The state treasurer shall, on the first days of January, April, July and October, in each year,
2 make out a statement of the notes or warrants received in payment of principal ſor university lands pursuant .."
10 bc. CrC(IIIC (I IO
university fund
quarterly.
3 to the provisions of the sixty-eighth section of this chapter during the preceding quarter with an interest account
4 upon the same, and shall thereupon credit the university fund with the amount of such notes or warrants and
5 interest.
1 Sec. 71. From the date of each and every such credit, the university fund shall be relieved from the payment Fund relicved
from payment of
interest Olh Sullite
º e - ºn 6 * - g f stock.
2 of interest on an amount of the said “Michigan University State Stock,” equal to the amount of such credit. amount () ( S100
CHAr. 6].]
( 316 ) [TITLs 18,
Scal, evidcnce.
of executiou, Qſ
ccrtificatc.
Board of inter-j :
mal improve-
illent.
1840, p. 91, &c.
Secretary and
treasurer t0
... have travelling
expenses paid.
Acting commis-
sioner.
When governor
to fill vacancy.
Board to have
care of pubiic
Worlds'
1 See. 72. The seal of the land office affixed to any certificate of purchase, receipt or other instrument issued
2 by the commissioner of the land office, according to the provisions of this chapter, shall be prima. facie evi-
3 dence of the due execution of such certificate.
TITLE XIII.
CHAPTER 61.
OF THE REGULATION OF INTERNAL IMPROVEMENT.
I SECTION 1. The board of internal improvement shall consist of the state treasurer and secretary of state,
2 who shall be ex-officio members, and one other person, who shall be appointed by the governor, by and with
3 the advice and consent of both branches of the legislature in joint convention.
SEc. 2. The said treasurer and secretary shall perform the duties required by them in this chapter without
any additional salary or charges, their necessary traveling expenses only excepted.
SEC. 3. The person so appointed shall be acting commissioner, and president of the board, and shall hold
his office for one year, and until his successor shall be appointed and qualified, and shall receive a salary of
one thousand dollars a year payable quarter yearly, as full compensation for his services, including his ex-
penses, except necessary travelling expenses not exceeding two hundred dollars.
Sec. 4. In case of the death, resignation, or inability of the acting commissioner to perform the duties of
his office during the recess of the legislature, the governor shall appoint some suitable person acting com-
missioner, who shall hold his office until the next meeting of the legislature, and until an acting commis-
4 Sioner shall be appointed in the manner aforesaid, and duly qualified.
1
SEC. 5. The said board of internal improvement shall have the care and management of all the rail roads
2 and other works of internal improvement belonging to this state, or which may hereafter be constructed by
3 the state.
CHAP. 61.] a ( 317 ) [TITLE 13.
1 Sec. 6. The said acting commissioner of internal improvement shall, before entering upon the duties of
Oath of acting
commissioner.
2 his office, take and subscribe the oath prescribed in the twelfth article of the constitution of this state, and
--~~
3 cause the same to be filed in the office of the secretary of state.
-
1 SEc. 7. The said board shall appoint a secretary, who shall also be the book-keeper of the board, and who i:#;"on.
- pensation.
2 shall receive a salary of eight hundred dollars per annum, payable quarter yearly out of the internal im-
3 provement fund.
secretary to
keep journal &
a CCOUl Ilt,
1 Spc. 8. The secretary shall keep a correct journal of the proceedings of the board when in session, and a
2 detailed account of all receipts and expenditures on account of the works of internal improvement.
sº
1 Sec. 9. To enable the secretary to keep such account, it shall be the duty of the acting commissioner to ºng º
- sioner to file du-
plicate vouchers,
e - º & º &C.
2 file in the internal improvement office, duplicate vouchers for all disbursements on account of the said pub-
3 lic works, after the same shall have been duly audited.
1 Sec. 10. Said board shall cause a complete record of all their proceedings to be kept, and shall annually Board to repor
to legislature.
2 report the same to the legislature, together with a full and accurate description of the condition of all the
3 public works under their charge, and any other information in regard to said works, which they may deem
4 proper.
1 SEC. 11. The auditor general shall prescribe all the necessary forms for vouchers and accounts to be used Auditor general
t?
to prescribe
forms of vouch-
2 by the board, or any commissioner, engineer or other person, in receiving or disbursing money on account CIS.
3 of any of said works of internal improvement.
1 * Sec. 12. No contract shall be made or entered into by said board, or any commissioner, or other officer or No contract to
- be made by
board unless ex-
pressly directed
2 agent of the state, for prosecuting any work of internal improvement, or for any materials or labor there- "y".
3 for, until the same shall have been expressly authorized and directed by law, nor otherwise than in strict
4 conformity to the laws making appropriations therefor,
80
Ciar: 61.] ( 818 ) & \ - [TITLE 13.
1 Sec. 13. When any contracts for constructing any portion of a rail road, canal, or other work of internal
Notice of letting
COIllräCIS,
2 improvement, shall be authorized and directed by law in conformity with appropriations made for that pur-
3 pose, at least thirty days' notice of the time and place of letting such contracts shall be given, by publish-
4 ing the same in three public newspapers printed within this state, one of which shall be the state paper.
T SEc. 14. No advances shall be made upon any such contract, and from all sums which shall become due
en per ceut to -
be retained on
contracts until
fulfillcd. 2 thereon during the progress of any contract, ten per cent. shall be deducted and retained until the fulfill-
3 ment thereof, and in case of failure on the part of the contractor to complete and fulfill his contract in the
4 manner, and within the time stipulated, or within such further time as may be allowed him for that purpose,
5 the amounts so deducted and retained shall be forfeited to the state.
1 SEc. 15. No commissioner, engineer, or other officer or agent of the state in any way connected with the
No commission- *
, cr to be interCSt-
* * * 2 works of internal inprovement of the state, shall be directly or indirectly interested in any contract with
3
said board or its agents, for labor or materials to be applied upon any such work of internal improvement,
* 4 and every contract made in contravention of the provisions of this section shall be utterly vold.
Sec. 16. Every commissioner, engineer, or other officer or agent of this state, who shall violate the pro-
Punishment for 3
violating provi- & wº & &
º 2 visions of the preceding section, shall thereby vacate his office, and shall be deemed guilty of a misdemea-
nor, and upon conviction thereof shall be punished by a fine not less than five hundred dollars, nor more
than five thousand dollars, or imprisonment in the county jail not exceeding one year, or by both such fine
5
and imprisonment, in the discretion of the court.
SEc. 17. The said board may assign any specific duties relating to their trust, and not otherwise provided
Board may as-
sign duties to 2
Imembers, Cnh-
for, to any member of the board ; and they may employ so many principal engineers, not exceeding two,
ploy cngineers, . -
&c., -
3 and so many assistant engineers, not exceeding six, as they shall deem necessary to carry on said works,
4 the compensation of each principal engineer not to exceed one thousand dollars per year, and the compen-
5 sation of each assistant enginner, not to exceed eight hundred dollars per year.
l
SEC. 18. Said board may also appoint so many superintendents, collectors, laborers and mechanics as in
f
CHAP. 61.] - (, 319 ) * [TITLE 13.
... 2
3
G
)
2
3
their opinion may be necessary to enable them to discharge the duties required of them by law, and shall
Superintendents,
collectors, &c.
determine their compensation; and they shall also require of each collector a bond to the people of this State,
in such penal sum as they may think proper, with two sufficient sureties to be approved by them, condition-
ed for the faithful discharge of his duties as such collector, and that he will faithfully and promptly account
* .
for and pay over all sums that may come into his hands by virtue of his office.
a
- o - * * *. - worlºn ºf Y n Eſtrºy tº ºr in it it tº * . }) < Engineers, &c.,
Sec. 19. Engineers, superintendents, collectors, laborers and mechanics employed by the board under the ...". places,
e * during pleasure
of board.
provisions of this chapter, shall hold their offices or places during the pleasure of the board and no longer.
w - - ..; l e - * - * C • - Cr º • •
Sec. 20. Each commissioner may be required to take the charge and management of any particular work Fach commis-
sion cr may be
rcquired to take
- - ; , oz. . ; • º º - charge of parti-
of internal improvement, and under the direction of the board to make all necessary purchases, and all con-º".
tracts in their behalf for instruments, materials, labor, machinery or transportation, connected with such
work, and such commissioner shall be responsible for the faithful performance of all the duties fawfully re-
quired of him by the board.
Sec. 21. Such commissioner shall make and deliver to the board at its annual meeting, and at any other
Commissioner to
report to board.
time when required by the board, a detailed report of all the matters committed to his charge, specifying
the several amounts received and disbursed by him, and on what account, and the amount and situation of
all unfinished contracts as near as may be practicable.
Spc. 22. If such commissioner shall be in charge of any canal, rail road or other public work, completed
When to report
receipts, &c.
or in operation, he shall state in such report the amount of all receipts for transportation upon, or use of
same ; specifying the number of passengers, and the amount received from them, the kinds and qualities of
ſreight, and the amounts received for the different kinds thereof according to the toll lists, together with the
amount and nature of all expenditures: on account of transportation or repairs:
SEC, 23. Each commissioner, before entering upon the duties of his office, shall give bond to the people
Bonds to lic gi-
ven lºy coniiniis-
of this state in the penal,sum of twenty thousand dollars with two sufficient sureties to be approved by the ""
auditor general, conditioned for the faithful discharge of the duties of his office, and that he will account
Chap. 61.] ( 320 ) [TITLE 13.
Estimates and
certificates of
Work.
Commissioner to
examine certiſi-
cate, &c.
VV hen and how
auditor general
to draw War-
ſtull l.
General powers
of board.
4
5
5
for all moneys that shall come into his hands as such commissioner, whenever required by law, or by reso-
lution of the board, or within twenty days thereafter ; which bond shall be filed in the office of the auditor
general.
SEc. 24. Whenever any contractor or other person shah be entitled to any pay for labor performed, or
materials furnished in the construction of any work of internal improvernent, the commissioner or com-
missioners in charge thereof, shall require the engineer stationed on the line of the same, once in each
month, or oſtener if necessary, to make an estimate of the work actually performed by each contractor,
and the amount due on each contract for such work, and such engineers shall give to each contractor a cer-
tificate of the work performed under his contract, and the amount due him, and shall sign the same.
SEc. 25. Upon the presentation of such certificate to the commissioner or commissioners having charge of
the work, if he or they shall find the same to be in due form, and shall be satisfied that the sum specified
term is actually due to the contractor, such commissioner or commissioners shall make and sign a certif.
icate thereon to that effect, whereupon the holder thereof may present the same to the auditor general to be
audited.
Sec. 26. If the auditor general shall be satisfied, that the amount specified in such certificate is justly due
to said contractor, or other person holding the same, over and above all claims the state may have against
him, he shall audit and allow the same, and shall draw his warrant therefor, in conformity to the law ma-
king appropriations for such work, which warrant shall be paid accordingly.
SEc. 27. The said board shall possess all the powers necessary for the location, construction, use and main-
tenance of any canal, rail road, or other public work of which they may have charge, and they may re-
ceive, in the name of the people of this state, any cessions or grants of lands or other property, to be oc-
cupied or appropriated in the construction, use or maintenance of any such work.
Sec. 28. It shall be the duty of such board, before contracting for or commencing the construction of any
CHAP. 61.] * - ( 321 ) [Title 18.
2
l
4
such public work, or any portion thereof, or any workshop, depot, or other building or erection, to obtain *
+ - - . . . . Duty of board to
acquire cession
by grant or cession, as far as practicable, or by purchase if they deem it advisable, all the land or other of lands, &c.
*
property on the line of such work, which may be necessary for the construction, use and maintenance of
the same.
Sec. 29. In case of failure to acquire a conveyance of any such lands or property by voluntary grant or
When lands and
damages to be
valued and as-
by purchase as aforesaid, the said board shall cause such lands, or other property, together with all the da- sessed, &c.
mages which will arise from the use or occupation of the same, to be valued and assessed in the manner
provided in this chapter. and the amount so assessed shall be tendered to the owners thereof respestively,
before entering upon, or using such lands or property.
SEC. 30. Upon making such tender, the said board, their agents, or those with whom they may contract
Entry may be
made after ten-
for constructing or repairing such work,shall be authorized to enter upon and use for the purposes aforesaid, *
any such lands or other property.
Sec. 31. All executors, guardians and trustees may sell and convey to the people of this state, such rights when guardian,
&c., may convey
- rights of way.
of way over the lands held by them in trust, as may be necessary for the use of the state in the prosecution
1842, p. 124, sec.
and maintenance of works of internal improvement, provided the judge of probate of the county where the 3.
lands are situated, shall endorse upon such conveyance his approval of the same.
SEC. 32. The governor, by and with the advice and consent of the Senate, shall annually appoint three Appointmentand
qualification of
appraisers.
competent freeholders as appraisers, who shall severally take and subscribe the constitutional oath of office
and cause the same to be filed in the office of the Secretary of state before entering upon their duties, and
who shall have power to administer all oaths necessary to the discharge oftheir duties,
SEC. 33. At the request of the board of commissioners, or of the acting commissioner, said appraisers shall
* When apprais-
erS to a SSes S Vau-
lue of lands, &c.
proceed to assess the value of any land or other property required to be taken by the state for the construc-
tion, use or maintenance of any public work under their or his charge, and also any damages which may
be occasioned by the occupation or use of the same for such purpose.
º
81
Char. 61.] ( 322 ) [Title 13.
certificate of is-
sessment, &&.
Conn pensation of
appraisers.
When board
may allow ſur-
thier damages.
1843, p. 25.
Board togexam-
ine claims, and
may refer same
to appraisers.
*12, p. 123, &c.
1
2
3
1
3
'4
5
Sec. 34. They shall certify to the auditor general the value of such land or other property, and the dama-
ges aforesaid, as assessed by them ; which certificate shall be signed by at least two of such appraisers, and
shall set forth the names of the individual owners, or authorized agents, or other claimants, and the amount
to be paid to each for such land or property, or for such damages, together with all such information as they
may acquire in relation thereto, and which they may deem important to be set forth, and such certificate
- - - - \,
shall be sufficient authority for the auditor general to draw his warrant for the amount of such assessment.
Sec. 35. The said appraisers shall receive the sum of three dollars per day each, for every day necessari-
ly employed in the duties imposed upon them by this chapter, which amount, with the amounts of the sev-
eral assessments by them made, shall be paid out of the appropriation for the particular work upon which
the services were rendered, or for which such property shall be appropriated, if any unexpended balance
shall remain upon such-work, if not, then the same shall be paid out of any moneys belonging to the inter-
nal improvement fund not otherwise specially appropriated.
SEC. 36. Any claimant who shall be dissatisfied with the assessment made by the appraisers, may notify
the board of internal improvement thereof at any time within three months after the making of the same,
and the said board shall thereupon review such appraisal, and if in their opinion the amount so assessed is
not an adequate compensation for such property or damages, they shall allow to such claimant such further
sum as they shall deem just and equitable, and shall certiſy the amount thereof upon the certificate made by
the appraisers, and such certificate shall be sufficient authority for the auditor general to draw his warrant
for such amount, in addition to said original assessment.
SEc. 37. The board of internal improvement shall, upon the application of any claimant, examine, ad-
just and settle all legal and equitable claims properly preſerred against the state, arising or growing out of
: the construction, use or management of any of the works of internal improvement of the state, and the
said board may in their discretion direct the said appraisers to investigate any such claim, and to report their
opinion thereon to said board with the facts and circumstances attending such claim, and the grounds of their
poinion.
CHAP. 61.] ( 323 ) . - [Trix 13,
1 sec. 33. Upon the coming in of such report, the said board shall review the same and make their deter-
Board to review
report 9ſ 9ppygi-
2 mination thereon, which shall be final, and if they shall award any sum to such claimant, they shall eertify were se.
- 1842, p. 124.
3 such award to the auditor general, who shall draw his warrant for the amount thereof.
N
\
1 Sec. 39. The collectors upon the several works of internal improvement, shall collect the fare or tolls
€ollectors to
2 prescribed by the board, from all persons who shall travel on the same, except the commissioners, and the coilect fare, &c.
3 amounts due for all articles of freight according to the toll list, except for property belonging to the state ;
4 and any doubtful cases arising under the provisions of this section shall be referred to, and decided by the
5 acting commissioner.
I
- { e º * © ſº e - º º
SEc. 40. Each collector or other person receiving moneys for freight or fare on any of said works, shall Payment of mo-
xeys by collec-
tions.
2
pay over once in each week, or as often as the board may direct, to the acting commissioner, or super-
3 intendent authorized by the board to receive the same, the same funds received by him, taking dupli- 842, p. 24
1842, p. 24.
4 cate receipts therefor, one of which he shall as soon as practicable, cause to be filed in the office of the au-
5 ditor general.
1 SEc. 41. Such acting commissioner or superintendent shall deposite, once in each month, in the state trea- *
- Acting commis-
- sioner, &c., to
deposite funds
sury, the nett earnings of said works, in the specific funds received, together with the vouchers for the cur- º, in State
1842, p. 24,
3 rent expenses of carrying on the business, and the repairing of said works.
1 Sec. 42. The board shall establish the rate of tolls to be paid, by passengers, and on all articles of freight
Board to esta-
- * tº º º - h I & *
2 to be transported on or over any such work of the state, subject to the revision of the legislature ; and shall blish tolls, &c
make such rules and regulations in respect to the collection of tolls and the payment thereof, and for the
security and preservation of the property of the state connected with such works, as they may deem neces-
:5 sary and expedient.
1 SEc. 43. The acting commissioner shall cause lists of the rates of toll established by the said board to be tºº.º: to
2 printed and posted up in the several offices, depots, and stations connected with the work to which they may
3 refer.
Chap. 61.] ( 324 ) - [TITLE 13.
Running en-
gines, and pay-
ment for ani-
mals killed or
injured by en-
gines. -
When amount
to be deducted
from pay of en-
gineers, &c.
Expenses paid
out of tolls.
How account
certified, vouch-
ers taken, &c.
Security from
persons entrust-
ed with proper-
ty.
I
2
Sec. 44. The said board shall employ skilful and discreet engineers to run the locomotive engines, on the
railroads belonging to this state, and if in running any such engine, any horse, cattle, sheep, swine or oth-
er animal of value shall be killed or injured, the acting commissioner upon such won shall, as soon there-
after as practicable, ascertain the amount of damage so done, and the facts in relation thereto ; and if it
shall appear that such killing or injury was not occasioned by the fault or negligence of the owner or such
animal, he shall pay such damage to such owner out of the moneys received for tolls upon such road.
SEC. 45. If it shall appear to the satisfaction of such commissioner that such damage resulted ſrom the care-
lessness or misconduct of the engineer, in charge of such engine, he shall deduct the amount of such dam-
ages from the pay of such engineer; or if the pay due such engineer shall not be sufficient to cover such
amount, said commissioner may prosecute and collect the balance from such engineer in the name and be-
half of the people of this state.
SEC, 46. The acting commissioner shall pay the expenses of repairs º maintenance of such canal, rail
road or other work, and the expenses of using or running, and damages caused by using or running the
Same, including the pay of collectors, weigh masters, lock tenders, superintendents, engineers, mechanics,
and other persons employed in and about the depots and stations, or in transporting on, or repairing such
canal, rail road, or other public work, out of the moneys collected for tolls thereon.
SEC. 47. Before payment of any expenses mentioned in the preceding section, the accounts therefor shall
be certified by the said acting commissioner; and said accounts shall be kept, and vouchers for such pay-
ments shall be taken and returns thereof made in such form and manner as shall have been prescribed by
the auditor general.
Sec. 48. All persons who shall be employed by said board, and who shall be intrusted with the receiving
or disbursing of any moneys, or with the control, management or care of any public property, may be re-
quired by said board to give security to the people of this state for the faithful execution of their several
trusts, in such form as the board shall direct.
Chap. 61.] - ( 325 ) [TITLE: 18.
1 Sec. 49. The board of internal improvement shall cause a property account to be kept in the office of the
Property ae-,
COIn ºt,
2 board, which shall embrace all materials for construction or use, and all property of every description un-
3 der the control of said board, whether in use or otherwise; and every officer, agent or servant of the state,
4 having charge of anywork, workshop, depot, water station, or working party, receiving for expenditure, or
5 having in use any such property, shall render to said board monthly or quarterly returns of the same as the
6 board may direct, and said board shall render a detailed account thereof in their annual return to the legis-
7 lature.
1 SEc. 50. The said board shall meet annually on the first Monday of December, at the seat of government
Board, when to
meet and pre-
º º - e e - © . report, and
2 of the state, and shall continue in session until they shall have made their annual report to the legislature łºśie.
-*
3 and transmitted a copy thereof to the governor with all the documents having reference thereto, and caused
4 another copy thereof to be furnished to the person doing the state printing, all of which shall be done at
5 least ten days before the annual meeting of the legislature.
82
CHAr. 62.] ( 326 ) º [Title 14.
Examination of
estates in land.
What estate a
ſee simple.
W.states tail abo-
lished, their mu-
ture declured.
Certain remain-
ders valid.
TITLE XIV.
OF REAL PROPERTY, AND of THE NATURE, QUALITIES AND ALIENATION of Estates THEREIN.
CHAPTER 62—Of the nature and Qualities of Estates in Real Property, and the Alienation thereof.
“ 63—Of Uses and Trusts'
“. 64—Of Powers.
“ 65—Of Alienation by Deed; and the Proof and Recording of Conveyances, and the Can-
celling of Mortgages.
CHAPTER 66—Of Estates in Dower, By the Curtesy, and general Provisions concerning Real Estate.
CHAPTER 62.
of THE NATURE AND QUALITIES OF ESTATES IN REAL PROPERTY, AND THE ALIENATION THEREof.
1 SECTION 1. Estates in lands are divided into estates of inheritance, estates for life, estates for years, and
2 estates at will and by sufferance.
1 SEc. 2. Every estate of inheritance shall continue to be termed a ſee, simple or fee; and every such es-
2 tate, when not deſeasible or conditional, shall be a ſee simple absolute, or an absolute fee.
1 SEc. 3. All estates tail are abolished, and every estate which would be adjudged a ſee tail, according to
2 the law of the Territory of Michigan, as it existed before the second day of March, one thousand eight
3 hundred and twenty-one, shall for all purposes be adjudged a ſee simple ; and if no valid remainder be lim-
4 ited thereon, shall be a fee simple absolute.
1 SEc. 4. When a remainder in ſee shall be limited upon any estate which would be adjudged a ſee tail ac-
2 cording to the law of the Territory of Michigan as it existed previous to the time mentioned in the prece-
3 ding section, such remainder shall be valid as a contingent limitation upon a ſee, and shall vest in posses:
4 sidn, on the death of the first taker, without issue living at the time of such death.
1 Sec. 5. Estates of inheritance and for life shall be denominated estates of freehold; estates for years shall
CaAr. 62.] ( 327 ) [TITLE, 14.
2 be denominated chattels real; and estates at will or by sufferance shall be chattel interests, but shall not be ...;
- chattel interests.
3 liable as such to sale on executions.
1 Sec. 6. An estate for the life of a third person, whether limited to heirs or otherwise, shall be deemed a ...,
• when freshold.'
ar - º &c.
2 freehold only during the life of the grantee or devisee, but after his death it shall be deemed a chattel real.
^
1 Sec. 7. Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates Estates in pos-
session, and in
cxpectancy.
2
in expectancy.
1 Sec. 8. An estate in possession, is where the owner has an immediate right to the possession of the land ; befinition of
thosc es’ates.
Q
an estate in expectancy is where the right to the possession is postponed to a future period.
1 SEc. 9. Estates in expectancy are divided into,
Examination of
2 1. Estates commencing at a future day, denominated future estates; and **
3 2. Reversions.
1 SEc. 10. A ſuture estate, is an estate limited to commence in possession at a future day, either without
- Future estates,
2 the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a prece-
3 dent estate, created at the same time.
1 SEc. 11. When a future estate is dependent upon a precedent estate, it may be termed a remainder, and
When they are
remaintiers.
2 may be created and transferred by that name.
1 SEC. 12. A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testa- Reversions.
2 tor, commencing in possession on the determination of a particular estate granted or devised.
1 SEc. 13. Future estates are either vested or contingent:
- Wested and con-
- - . - - • * tingent future:
tº & º º - e * estin (69.
2 They are vested when there is a person in being who would have an immediate right to the possession of
3
the lands, upon the ceasing of the intermediate or precedent estate :
CHAP. 62.] ( 328 ) [TITLE 14,
Void future es-
tates. Suspend-
ing powers of
ulienation.
4
5
How long pow- .
ers of alienation
may be suspend-
cd.
Contingent re-
Inuinder in ſee.
I,imitation of
successive es -
tates for life.
Remainder upon
certain catates
for liſc.
When remain-
tler to tukc effect
in certain cuscs.
/
They are contingent whilst the person to whom, or the event upon which they are limited to take effect,
remains uncertain.
Sec. 14. Every ſuture estate shall be void in its creation, which shall suspend the absolute power of alien-
ation for a longer period than is prescribed in this chapter: Such power of alienation is suspended, when
there are no persons in being, by whom an absolute ſee in possession can be conveyed.
SEc. 15. The absolute power of alienation shall not be suspended by any limitation or condition whatev:
2 er, for a longer period than during the continuance of two lives in being at the creation of the estate, ex-
2
l
cept in the single case mentioned in the next section.
Sec. 16. A contingent remainder in ſee may be created on a prior remainder in ſee, to take effect in the
event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or
upon any other contingency by which the estate of such persons may be determined before they attain their
full age.
Sec. 17. Successive estates for life shall not be limited unless to persons in being at the creation thereof;
and when a remainder shall be limited on more than two successive estates for life, all the life estates sub-
sequent to those of the two persons first entitled thereto, shall be void, and upon the death of those persons,
the remainder shall take effect, in the same manner as if no other liſe estate had been created.
Sec. 18. No remainder shall be created upon an estate for the life of any other person or persons than
the grantee or devisee of such estate, unless such remainder be in ſee; nor shall any remainder be created
Aº
upon such an estate in a term for years, unless it be for the whole residue of the term.
Sec 19. When a remainder shall be created upon any such life estate, and more than two persons shall be
named as the persons during whose lives the estate shall continue, the remainder shall take effect upon the
death of the two persons first named, in the same manner as if no other lives had been introduced.
Sec. 20. A contingent remainder shall not be created on a term for years, unless the nature of the con-
Chap. 62.] - ( 329 ) - t [Tºtle 14
2 .
3
2
tingency upon which it is limited be such that the remainder must vest in interest, during the continuance
. Contingent re-
mainder on a
- - © tº & - e • , - * * - . . . . . . . - term for yearB, .
of not more than two lives in being at the creation of such remainder, or upon the termination thereof.
*
Sec. 21. No estate for life shall be limited as a remainder on a term of years, except to a person in being
Remainder of
estates ſor life.
at the creation of such estate.
Meaning of
Sec. 22. When a remainder shall be limited to take effect on the death of any person without heirs, or ºld "is-
sue,” in certain
reinainders,
heirs of his body, or without issue, the words “heirs” or “issue” shall be construed to mean heirs or issue
living at the death of the person named as ancestor.
SEC. 23. All the provisions in this chapter contained relative to ſuture estates, shall be corstrued to ap- L
imitations on
chuttels real.
ply to limitations of chattels real, as well as of freehold estates, so that the absolute ownership of a term of
years, shall not be suspended for a longer period than the absolute power of alienation can be suspended, in
respect to a ſee.
SEC. 24, Subject to the rules established in the preceding sections of this chapter, a freehold estate as well . . .
“Remainders
how created.
as a chattel real, may be created to commence at a ſuture day ; an estate for life may be created in a term
of years, and a remainder limited thereon.
Sec. 25. Two or more future estates may also be created to take effect in the alternative, so that if the
Two or more
future estates.
first in order should fail to vest, the next in succession shall be substituted for it, and take effect accordingly.
Sec. 26. No future estate, otherwise valid; shall be void on the ground of the probability or improbability
Certain future
est” tes not to be
of the contingency on which it is limited to take effect. void,
SEc. 27. A remainder may be limited on a contingency, which in case it should happen, will operate to
e * Rémuſhder npoh
- e * . - - - e \ * w } . •' et x -” tii g; * * * *
abridge or determine the precedent estate ; and every such remainder shall be construed a conditional lim- a contingency
itation, and shall have the same effect as such a limitation would have by law. .
83
Chap. 62.]
( 330 ) [Title 14.
Heirs of tenant
for life; when
to take us pur-
chasers.
4 Kent's Com.,
224, &c.
Construction of
tertuin remain -
derg.
Posthnmous
children.
Ib.
}
Expectant es-
tates not to be
defeated, &c.
When expcctant
estate may be
defeated.
Rémainder not
to lie defeated in
certain cases.
1
2
l
2
}
Sec. 28. When a remainder shall be limited to the heirs, or heirs of the body of a person to whom a life
estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be
the heirs, or heirs of the body of such tenant for life, shall be entitled to take as purchasers, by virtue of
the remainder so limited to them,
Sec. 29. When a remainder on an estate for life, or for years, shall not be limited on a contingency, de-
ſeating or avoiding such precedent estate, it shall be construed as intended to take effect only on the death
4 -
of the first taker, or the expiration, by lapse of time, of such term of years.
SEc. 30. When a future estate shall be himited to heirs, or issue, or children, pasthumous children shall be
entitled to take, in the same manner as if born before the death of their parents,
Sec. 31. A future estate depending on the contingency of the death of any person without heirs or issue,
or children, shall be defeated by the birth of a posthumous child of such person, capable of taking by de-
SC ent.
Sec. 32. No expectant estate can be defeated or barred by any alienation or other act of the owner of the
intermediate or precedent estate, nor by any destruction of such precedent estate by disseizen, forfeiture,
surrender, merger or otherwise.
Sec. 33. The last preceding section shall not be construed to prevent an expectant estate from being de-
feated in any manner, or by any act or means which the party creating such estate shall, in the creation
thereof, have provided or authorized; nor shall an expectant estate thus liable to be defeated, be on that
ground adjudged void in its creation.
SEC. 34. No remainder, valid in its creation, shall be defeated by the determination of the precedent es-
tate, before the happening of the contingency on which the remainder is limited to take effect ; but should
such contingency aſterwards happen, the remainder shall take effect in the same manner, and to the same
extent, as if the precedent estate had continued to the same period.
CHAP. 62.] ( 331 ) [TITLE 14,
1 Sec. 35. Expectant estates are descendible, devisable and alienable, in the same manner as estates in pos-
Qualities of cx-
pectant C.States.
2 session.
1 Sec. 36. Dispositions of the rents and profits of lards, to accrue and be received at any time subsequent
Future profits of
of lands.
2 to the execution of the instrument creating such disposition, shall be governed by the rules established in
3 this chapter, in relation to future estates in lands.
I SEC. 37. An accumulation of rents and profits of real estate, for the benefit of one or more persons, may flºº of
lands.
2 be directed by any will or deed sufficient to pass real estate, as follows:
3 1. If such accumulation be directed to commence on the creation of the estate out of which the rents and
4 profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at
*
5 the expiration of their minority :
6 2. If such accumulation be directed to commence at any time subsequent to the creation of the estate out
7
of which the rents and profits are to arise, it shall commence within the time in this chapter permitted for
8 the vesting of future estates, and during the minority of the persons for whose benefit it is directed, and
9 shall terminate at the expiration of such minority,
SEc. 38. lf in either of the cases mentioned in the last preceding section, the direction for such accumu- Other directions
when void in
part, when whol-
ly void.
R
2 lation shall be for a longer time than during the minority of the persons intended to be benefitted thereby,
3 it shall be void as to the time beyond such minority ; and all directions for the accumulation of the rents
4 and profits of real estate, except such as are herein allowed, shall be void.
1 SEC. 39. When such rents and profits are directed to be accumulated for the benefit of infants entitled to
Application of
profits, &c., to
e º e º Bupport of in-
2 the expectant estate, and such inſants shall be destitute of other sufficient means of support and education, i.
3 the chancellor upon the application of their guardian, may direct a suitable sum out of such rents and pro-
4 fits to be applied to their maintenance and education.
1 SEC. 40. When in consequence of a valid limitation of an expectant estate, there shall be a suspense of
Who entitled to
e º y g e e g , profits of land in
* the power of alienation, or of the ownership during the continuance of which the rents and profits shall be ſºil.
* ( 332 ) [TITLE 14.
Fxpectantes-
tates, when cre-
ated.
Certain expec-
tant estates abo-
lished,
Estates in seve-is
ralty.joint tenan-
cy and in com-
II].OTl.
Certain grants to
create estates in
COIIMIMOIl.
Application of
last section.
Nominal contli-T
tions unnexed to
grant.
3
4
undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to
the person presumptively entitled to the next eventual estate.
Sec. 41. The delivery of the grant, where an expectant estate is created by grant; and where it is cre.
ated by devise, the death of the testator, shall be deemed the time of the creation of the estate,
Sec. 42. All expectant estates, except such as are enumerated and defined in this chapter, are abolish-
ed.
SEc. 43. Estates, in respect to the number and connexion of their owners, are divided into estates in sev-
eralty, in joint tenancy, and in common ; the nature and properties of which respectively, shall continue to
be such as are now established by law, except so far as the same may be modified by the provisions of this
chapter.
SEc. 44. All grants and devises of lands, made to two or more persons, except as provided in the follow-
ing section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declar-
ed to be in joint tenancy.
SEc. 45. The preceding section shall not apply to mortgages, nor to devises or grants made in trust, or
made to executors as such, or to husband and wife.
SEc. 46. When any conditions annexed to a grant or conveyance of lands are merely nominal and evince
no intention of actual and substantial benfit to the party to whom or in whose favor they are to be perform-
ed, they may be wholly disregarded, and a failure to perſorm the same shall in no case operate as a forfeit"
tire of the lands conveyed subject thereto.
CHAP. 63.] ( 333 ) [TITLE 14.
CHAPTER 63.
- OF USES AND TFUSTS,
I Section. 1. Uses and trusts, except as authorized and modified in this chapter, are abolished, and °Very certa
rtain uses and
trusts abolished
2 estate and interest in lands shall be deemed a legal right, cognizable as such in the courts of law, except
3 when otherwise provided in this title.
1 SEc. 2. Every estate which is now held as an use, executed under the laws of this state as they formerly Executed uses
. -. eonfirined.
2 existed, is confirmed as a legal estate.
I Sec. 3. Every person who, by virtue of any grant, assignment or devise, now is, or hereafter shall be en.
Right to posses-
sion of lands
creates legal
ownership.
2
titled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity
3 shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same
4 conditions as his beneficial interest.
*.
1 SEC. 4. The last preceding section shall not divest the estate of any trustees, in any existing trust, where
Active trusts not
affected by last
2 the title of such trustees is not merely nominal, but is connected with some power of actnal disposition or *
§
3 management, in relation to the lands which are the subject of the trust.
1 SEC. 5. Every disposition of lands, whether by deed or devise, hereaſter made, except as otherwise provi. Trustees of es-
- - ate for use of
*
another take no
interest.
2 ded in this chapter, shall be directly to the person in whom the right to the possession and the profits shall
3 be intended to be vested, and not to any other, to the use of, or in trust for, such person ; and if made to one
4 or more persons, in trust for, or to the use of another, no estate or interest, legal or equitable, shall vest in
5 the trustee.
1 SEc. 6. The preceding sections of this chapter, shall not extend to trusts arising or resulting by implica-
Preceding sec-
tions qualified.
2 tion of law, nor be construed to prevent or affect the creation of such express trusts as are hereinafter au-
3 thorized and defined,
84
CHAP. 63.] ( 334 ) - [TITLE 14.
Grant to one, for
money paid by
another, no trust
to result.
Except for bene-
fit of creditors.
Section Seven
qualificii.
Purchasers pro-
tected.
For what purpo-
ses express
trusts may be
created.
Certain divises
in trust, to be
deemed powers.
2
2
8
2
SEC. 7. When a grant for a valuable consideration shall be made to one person, and the consideration
therefor shall be paid by another, no use" or trust shall result in favor of the person by whom such payment
shall be made; but the title shall vest in the person named as the alience in such conveyance, subject only,
to the provisions of the next section.
SEC, 8. Every such conveyance shall be presumed fraudulent, as against the creditors of the person pay-
ing the consideration; and when a fraudulent intent is not disproved, a trust shall result in favor of such
creditors, to the extent that may be necessary to satisfy their just demands.
*>,
SEC. 9. The preceding seventh section shall not extend to cases, where the alienee named in the convey-
ance shall have taken the same as an absolute conveyance in his own name, without the knowledge or con-
sent of the person paying the consideration, or when such alienee, in violation of some trust, shall have
purchased the lands so conveyed, with moneys belonging to another person.
Sec. 10. No implied or resulting trust shall be alleged or established to defeat or prejudice the title of a
purchase, for a valuable consideration, and without notice of such trust.
SEc. 11. Express trusts may be created for any or either of the following purposes:
1. To sell lands for the benefit of creditors :
2. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge
thereon :
3. To receive the rents and profits of lands, and apply them to the use of any person, during the life of
such person, or for any shorter term, subject to the rules prescribed in the last preceding chapter :
4. To receive the rents and profits of lands, and to accumulate the same for the purposes and within the
limits prescribed in the preceding chapter.
SEC. 12. A devise of lands to executors or other trustees, to be sold or mortgaged, when such trustees are
not also empowered to receive the rents and profits, shall yest no estate in the trustees; but the trust shall
CHAP. 63.] ( 335 ) [TITLE 14.
3 be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testtitor, subject
4
5
2
2
5
to the execution of the power.
SEc. 13. When a trust is created to receive the rents and profits of lands, and no valid direction for accu-
' Profits of land
- liable to credit-
g e e - ors in certain
mulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the edu- cases.
cation and support of the person for whose benefit the trust is created, shall be liable in equity, to the claims
of the creditors of such person, in the same manner as other personal property which cannot be reached
by an execution at law.
SEc. 14. When an express trust shall be created for any purpose not enumerated in the preceding sec- other express
- trusts to be pow-
ers in trust.
tions of this chapter, no estate shall rest in the trustees ; but the trust, if directing or authorizing the per-
formance of any act which may be lawfully performed under a power, shall be valid as a power in trust,
subject to the provisions in relation to such powers contained in the next succeeding chapter.
SEc. 15. In every case where the trust shall be valid as a power, the land to which the trust relates, shall Land to descend,
&c., ºperso IłS
entitled.
remain in, or descend to the persons otherwise entitled, subject to the execution of the trust as a power.
^
Sec. 16. Exery express trust, valid as such in its creation, except as herein otherwise provided, shall Trustees of ex-
- press trusts to
lave whole es-
{{lle.
vest the whole estate in the trustees, in law and in equity subject only to the execution of the trust ; and the
person for whose benefit the trust was created, shall take no estate or interest in the lands, but may enforce
the performance of the trust in equity.
SEc. 17. The preceding section shall not prevent any person creating a trust, from declaring to whom
*. | last section
qualifieth.
the lands to which the trust relates shall belong, in the event of the failure or termination of the trust, nor
shall it prevent him from granting or devising such lands subject to the execution of the trust; and every
such grantee shall have a legal estate in the lands, as against all persons except the trustees and those law-
fully claiming under them.
Sec. 18. When an express trust is created, every estate and interest not embraced in the trust, and not
CHAP. 63.]
( 336 ) [TITLE 14.
Interests remain-
ing in grantor of
eXpress trust.
Powers over
trust of party in-
terestetl.
lºſſect of
omitting trust in
conveyance.
Certain sales,
&c.; by trustees,
void. .."
Other persons
not to be affect-
cd by miscon-
duct of trustees.
When estate of
trustecs to CCºase.
Ot) death oſ Sur-
viving trustees,
trust to he cyc-
cuted under di-
rection of thc
court of chance-
ry.
When and in Uw
trustees may re-
sign.
2 otherwise disposed of, shall remain in, or revert to the person creating the trust, or his heirs as a legal
3
2
l
€State.
Sºc. 19. No person beneficially interested in a trust for the receipt of the rents and profits of lands, can
assign or in any manner dispose of such interest; but the rights and interest of every person for whose
benefit a trust for the payment of a sum in gross is created, are assignable.
SEc. 20. When an express trust is created, but is not contained or declared in the conveyance to the trus-
tees, such conveyance shall be deemed absolute as against the subsequent creditors of the trustees, not hav-
ing notice of the trust, and as against purchasers from such trustees, without notice, and for a valuable con
sideration.
Sec. 21. When the trust shall be expressed in the instrument creating the estate, every sale, conveyance,
or other acts of the trustees, in contravention of the trust, shall be absolutely void.
SEc. 22. No person who shall actually and in good faith make any payment to a trustee, which the trustee
as such is authorized to receive, shall be responsible for the application thereof according to the trust; nor
shall any right or title derived by such person from the trustee, in consideration of such payment, be im.
peached or called in question, in consequence of any misapplication of such payment by the trustee.
SEc. 23. When the purposes for which an express trust shall have been created, shall have ceased, the
estate of the trustee shall also cease.
Sec. 24. Upon the death of the surviving trustee of an express trust, the trust estate shall not descend to
his heirs, nor pass to his personal representatives; but the trust if then unexecuted, shall vest in the court
of chancery, with all the powers and duties of the original trustees, and shall be executed by some person
appointed for that purpose, under the direction of the court.
SEC, 25. Upon the petition of any trustee of an express trust, the court of chancery may accept his reº
signation, and discharge him from the trust, under such regulations as shall be established by the court for
CHAP. 64.] ( 337 ) [TITLE 14.
t
3
4
4
that purpose, and upon such terms as the rights and interests of the persons interested in the execution of
the trust may require.
Sec. 26. Upon the petition or bill of any person interested in the execution of an express trust, and under
When and how
trustees may be
& d.
such regulations as shall be established by the court for that purpose, the court of chancery may remove reill OWe
any trustee who shall have violated or threatened to violate his trust, or who shall be insolvent, or whose
insolvency shall be apprehended, or who, for any other cause, shall be deemed an unsuitable person to ex-
ecute the trust.
SEc. 27. The chancellor shall have full power to appoint a new trustee, in the place of a trustee resigned
Places of trus-
or removed ; and when, in consequence of such resignation or removal, there shall be no acting trustee, the ...'..."
supplied.
court, in its discretion, may appoint new trustees, or cause the trust to be executed by one of its officers,
under its direction. {\
3
2
CHAPTER 64,
OF POWERS,
SECTION 1. Powers, except as authorized and provided for in this chapter, are abolished; and from the powers, except
as provided for
- in this chapter,
* • * ë •. o Y © abolished.
time this chapter shall be in force, the creation, construction and execution of powers, shall be governed
by the provisions herein contained,
Sec. 2. A power is an authority to do some act in relation to lands, or the creation of estates therein, or pelinition of
- power.
of charges thereon, which the owner granting or reserving such power, might himself lawfully perform.
Sec. 3. No person is capable in law of granting a power, who is not at the same time, capable of alien-
Who incapable
of granting a
ing some interest in the lands to which the power relates, - te power.
Sec. 4. Powers, as authorized in this chapter, are general or special, and beneficial or in trust,
Division of
powers.
, 85
Char. 64.] ( 338 ) [Trrle 14.
1
Definition of ge-
neral powers.
2
l
Deſinition of
special powers. 2
Beneficial pow- I
ers.
Powers to mar- I.
ried wouncin.
2
Iº.state of tenant s f
for life, &c.,
when changed
into a fee.
2
1
Certain powers
create a fec, &c.
‘O
A-d
I
Il).
2
SEC. 5. A power is general, when it authorizes the alienation in fee, by means of a conveyance, will or
charge of the lands embraced in the power to any alienee whatever.
SEc. 6. A power is special :
1. When the person or class of persons, to whom the disposition of the lands under the power is to be
made, are designated :
2. When the power authorizes the alienation, by means of a conveyance, will or charge, of a particular
t ...sº
cstate or interest less than a ſee.
Sec. 7. A general or special power is beneficial when no person other than the grantee has, by the terms
of its creation, any interest in its execution.
SEc. 8. A general and beneficial power may be given to a married woman, to dispose during the marriage,
and without the concurrence of her husband, of lands conveyed or devised to her in fee.
SEc. 9. When an absolute power of disposition, not accompanied by any trust, shall be given to the own-
er of a particular estate, for life or years, such estate shall be changed into a fee, absolute in respect to the
rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power should
not be executed, or the lands should not be sold for the satisfaction of debts.
Sec. 10. When a like power of dispositon shall be given to any person to whom no particular estate is li-
mited, such person shall also take a ſee, subject to any future estates that may be limited thereon, but abso
lute in respect to creditors and purchasers.
Sec. 11. In all cases where such power of disposition is given, and no remainder is limited on the
estate of the grantee of the power, such grantee shall be entited to an absolute fee.
Src. 12. when a general and beneficial power to devise the inheritance, shall be given to a tenant ſor
life or for years, such tenant shall be deemed to possess an absolute power of disposition, within the mean-
3 ing, and subject to the provisions of the three last preceding sections.
CHAP. 64.] ( 339 ) [TITLE 14.
i \
1 SEc. 13. Every power of disposition shall be deemed absolute, by means of which the grantee is enabled,
Effect of power
- . - to devise inheri-
e tº sº e e • . g tance in certain
in his life time, to dispose of the entire-ſee for his own benefit. C&Rs6:S.
2
A
1 Sºc. 14. When the grantor in any conveyance, shall reserve to himself, for his own benefit, an absolute .." {O re-
2 power of revocation, such grantor shall still be deemed the absolute owner of the estate conveyed, so far
3
as the right of creditors and purchasers are concerned.
I SEC. 15. A special and beneficial power may be granted,
2 1. To a married woman, to dispose, during the marriage, and without the consent of her husband, of any special and be-
neficial powers,
who may take.
3 estate less than a ſee, belonging to her, in the lands to which the power relates;
4 2. To a tenant ſor life of the lands embraced in the power, to make leases for not more than twenty-one
5
years, and to commence in possession during his life,
1 SEc. 16. The power of a tenant for life to make leases, is not assignable as a separate interest, and will power to make
leases by tenant
for life.
2
pass, unless specially excepted, by any conveyance of such estate; and if specially excepted in any such
3 conveyance, it is extinguished.
I SEc. 17. Such power may be released by the tenant to any person entitled to an expectant estate in the
Relcase of such
power.
2
lands and shall thereupon be extinguished.
1 SEc. 18. A mortgage executed by a tenant for life having a power to make leases, or by a married wo-
Mortgage by
party having
power to leusc,
man by virtue of any beneficial power, does not extinguish or suspend the power; but the power is bound **
2
3 by the mortgage, in the same manner as the lands embraced the rein.
1 SEc. 19. The effects of such a lien b *? O’ºn Orph" () n. &
y mortgage on the power are : Effect of mort-
gage on power.
2 1. That the mortgagee is entitled, in equity, to an execution of the power, so far as the satisfaction of his
3
debt may require ;
4 2. That any subsequent estate created by the owner, in execution of the power, becomes subject to the
5
mortgage, in the same manner as if in terms embraced therein.
CHAP. 64.] ( 340 ) - [TITLE 14.
1
SEC. 20. No beneficial power, general or special, hereafter to be created,'other than such as are enumera-
Future bencfi- i -
claſ powcrs. $ ſ
2 ted and defined in the preceding section of this chapter, shall be valid.
Bencficial pow- 1 SEC. 21. Every special and beneficial poper is liable in equity, to the claims of creditors, in the same
ers liable to cre-
ditors.
2 manner as other interests that cannot be reached by an execution at law, and the execution of the power
3 may be decreed for the benefit of the creditors entitled.
1 SEc. 22. A general power is in trust when any person or class of persons, other than the grantee of such
General powers
when in trust.
2 power, is designated as entitled to the proceeds, or any portion of the proceeds or other benefits to arise from
3 the alienation of the lands, according to the power.
special power, 1 SEC. 28. A special power is in trust,
when in trust.
2 1. When the disposition which it authorizes, is limited to be made to any particular person or class of per-
3 sons, other than the grantee of such power :
4 2. When any person or class of persons, other than the, grantee is entitled to any benefit from the disposi-
True powers
imperative. -
5 tion or charge authorized by the power.
1 Sec. 24. Every trust power unless its execution or non-execution is made expressly to depend on the will
Effect of right of
selection. 2 of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be com-
3 pelled in equity for the benefit of the parties interested.
1 SEC, 25. A trust power does not cease to be imperative when the grantee has the right to select any, and
Construction of -
powers in cer-
t{ll Il CaSeS. gº &
2 exclude others of the persons designated as the objects of the trust.
1 SEC. 26. When a disposition under a power is directed to be made to, or among, or between several per-
Ib,
2 sons, without any specification of the share or sum to be allotted to each, all the persons designated shall
3
be entitled to an equal proportion.
1 Sec. 27. But when the terms of the power import that the estate of fund is to be distributed between the
CHAP. 64.] ( 341 ) [TITLE 14
2
.3
2
2
persons so designated, in such manner or proportions as the trustee of the power may think proper, the Ib
&
trustee may allot the whole to any oné or more of such persons, in exclusion of the others.
Sec. 28. If the trustee of a power, with the right of selectiion shall die leaving the power unexecuted, its Yºlº
CrS.
execution shall be decreed in the court of chancery for the benefit equally of all the persons designated as
objects of the trust.
Sec. 29. When a power in trust is created by will and the testator has omitted to designate by whom the Yb.
power is to be executed, its execution shall devolve on the court of chancery.
. 30. The provisions contained in the next precedi D & *
SEC. 30 pr preceding chapter, from section twentw-two to section Application of
ccrtain sections
of preceding
twenty-seven, both inclusive, in relation to express trusts and trustees, shall apply equally to powers in **
trust, and the grantees of such powers,
*
SEc. 31. The execution in whole or in part, of any trust power, may be decreed in chancery for the ben- Execution of
trust power
when compelled
by creditors, &c.
efit of the creditors or assignees of any person entitled as one of the objects of the trust to compel its exe-
cution, when the interest of the objects of such trust is assignable.
y -
Sec. 32. Every beneficial power, and the interest of every person entitled to compel the execution of a Beneficial pow-
ers, &c., how
affected by cer-
* e -- g * tain assignment
trust power, shall pass to the assignees of the estate and effects of the person in whom such power or inter-
est is vested, under any general assignment of the estate and effects of such person for the benefit of cred-
itors, made pursuant to law.
Sec. 33. The grantor in any conveyance may reserve to himself any power, beneficial or in trust, which
Reservation of
powers in con-
he might lawfully grant to another ; and every power so reserved, shall be subject to the provisions of this “”
chapter, in the same mamer as if granted to another.
SEc. 34. A power may be granted,
}low powers to
he granted.
1. By a suitable clause contained in the conveyance of some estate,in the lands to which the power relates;
2. By a devise contained in a last will and testament.
86
CHAP. 64.] ( 342 ) se [TITLE 14.
Recording pow-
ers, effect, of.
2
When powers
irrevocable.
2
In whom pow- l
ers may be ves-
ted, &c.
Married women.
4.
I
Execution of .
power by survi-
Wors,
2
3
l
How executed.
2
Instrum.cnts
deemed convey-
8. In CCH. 2
3
*
Sec. 35. Every power shall be a lien or charge upon the lands which it embraces, as against creditors
and purchasers in good faith, and without notice, of or from any person having an estate in such lands on-
ly from the time the instrument containing power shall be recorded; but as against all other persons, the
\
power shall be a lien from the time the instrument in which it is contained shall take effect.
SEc. 36. Every power beneficial or in trust, is irrevocable, unless an authhoity to revoke it is reserved or
granted in the instrument creating the power.
SEC, 37. A power may be vested in any person capable in law of holding lands, but cannot be executed
by any person not capable of aliening lands holden by such person, except in the single case mentioned in
the next section.
Sec. 38. A married woman may execute a power during her marriage, by grant or devise, as may be au-
thorized by the power, without the concurrence of her husband, unless by the terms of the power, its exe-
cution by her during marriage is expressly or impliedly prohibited ; but no power vested in a married
woman during her infancy, can be exercised by her, until she attains her full age.
SEc. 39. When a power is vested in several persons, all must unite in its execution ; but if previous
to such execution, one or more of such persons shall die, the power may be executed by the survivor or sur-
, vivors.
Sec. 40. No power can be executed except by some instrument in writing, which would be sufficient in
law to pass the estate or instrument intended to pass under the power, if the person executing the power
were the actual owner.
Sec. 41. Every instrument, except a will, made in execution of a power, whether it be a power of revocation
or otherwise, shall be deemed a conveyance within the meaning and subject to the provisions of the next
succeeding chapter.
CHAP. 64.] ( 343 ) [TITLE 14,
Sec. 42. When a power of disposition is confined to a disposition by devise or will, the instrument
* - • *xcCution of
* g F.".
. e a & wº º - pose by divise.
must be a will duly executed according to the provisions of law relating to wills of real and personal estate.
Sec. 43. When a power is confined to a disposition by grant, it cannot be executed by will, although the s.l.,
power to dis-
posc by grant,
dispositon is not intended to take effect until after the death of the party in whom the power is vested.
Sec. 44. If a married woman execute a power by grant, such grant shall be acknowedged by her on a pri-
How grant to be
acknowledged
e . . º † e & e by in arried wo-
vate examination in the manner prescribed in the next succeeding chapter, in relation to conveyances by men.
married women, and shall not be valid unless so acknowledged.
SEc. 45 When the grantor of a power shall have directed or authorized it to be executed by an instrument
- Directiºns by
grall lor.
not sufficient to pass the estate, such power shall not be void, but its execution shall be governed by the rules
prescribed in this chapter.
SEc. 46. When the grantor shall have directed any formalities to be used in the execution of a power, in Ib
addition to those which would be sufficient by law to pass the estate, the observance of such additional for-
malities shall not be necessary to a valid execution of the power.
&
SEc. 47. When the conditions annexed to a power are merely nominal and evince no intention of actual
Nominal condi-
tions.
benefit to the party to whom, or in whose favor they are to be performed, they may be wholly disregarded
in the execution of the power.
SEc. 48. With the exceptions contained in the preceding sections, the intentions of the grantor of a pow- e … •
When directions
of granter to be
observed.
er, as to the mode, time and conditions of its execution shall be observed subject to the power of the court
of chancery to supply a deſective execution, in the cases hereinafter provided.
Sec. 49. When the consent of a third person to the execution of the power is requisite, such consent shall
Conent of thfrci
© tº * ge s tº e tº . ſº >rSO'ſ) t * & gº
be expressed in the instrument by which the power is executed, or shall be certified in writing thereon ; and Fº
- *
in the first case, the instrument of execution, in the second the certificate, shall be signed by the party whose
Chap. 64.] ( 344 ) [Title 14.
Certain disposi-
tion not void.
Omission to re-
circ power.
Fraud.
Power to devise,
&c.
Certain estates
'o be advance-
! I\elliS.
Computation of
time of suspell-
sion.
Who may not *.
take under pow-
era.
4 consent is required; and to entitle the instrument to be recorded, such signature must be duly proved or
2
3
2
acknowledged, in the same manner as iſ subscribed to a conveyance of lands.
*
Sec. 50. No disposition, by virtue of a power, shall be void in law or equity, on the ground that it is more
extensive than was authorized by the power; but every estate or interest so creatd, so far as embraced by the
terms of the power, shall be good and valid.
Sec. 51, Every instrument executed by the grantee of a power, conveying an estate or creating a charge
which such grantee is authorized by the power to convey or create, but which he would have no right to con-
vey or create, unless by virtue of his power, shall be deemed a valid execution of the power, although
4.
such power be not recited or referred to therein.
Sec. 52. Instruments in execution of a power are affected by fraud, both in law and equity, in the same
manner as conveyances by owners or trustees.
Sec. 53. Lands embraced in a power to devise, shall pass by a will, purporting to convey all the real pro-
perty of the testator, unless the intent that the will shall not operate as an execution of the power, shall ap.
pear expressly, or by necessary implication.
Sec. 54. Every estate or interest given by a parent to a descendant by virtue of a beneficial power, or of
a power in trust with a right of selection shall be deemed an advancement to such descendant, to the same
extent, and under the same circumstances that a gift of real or personal estate would be deemed an advance-
*
ment.
SEc. 55 The period during which the absolute right of alienation may be suspended by any instrument in
execution of a power, shall be computed from the time of the creation of the power, and not ſrom the date
of such instrument.
SEc. 56. No estate or interest can be given or limited to any person, by an instrument in execution of a
power, which such person would not have been capable of taking, under the instrument by which the pow-
er was granted.
CHAP. 64.] ~. ( 345 ) [TITLE 1.4.”
I
2
2
Sec. 57. When a married woman, entitled to an estate in fee, shall be authorized by a power to dispose of Married women
!
- their authority, y
&c.
such estate during her marriage, she may, by virtue of such power, create any estate which she might cre-
ate if unmarried.
º e e e . Defective exceu-
SEc. 58. When the execution of a power in trust shall be defective, in whole or in part, under the provis-àon.
ions of this chapter, its proper execution may be decreed in equity, in favor of the persons designated as
the objects of the trust.
Sec. 59. Purchasers for a valuable consideration, claiming under a deſective execution of any power, lb.
shall be entitled to the same relief in equity, as similar purchasers claiming under a deſective conveyance
3 from an actual owner.
SEc. 60. When a power to sell lands shall be given to the grantee, in any mortgage or other conveyance ºw.
e on mortgages.
intended to secure the payment of money, the power shall be deemed a part of the security, and shall ves
in, and may be executed by any person, who by assignment or otherwise shall become entitled to the mo,
ney so secured to be paid.
Sec. 61. The provisions of this chapter shall not extend to a simple power of attorney, to convey lands in
Application of
this chapter. .
the name, and ſor the benefit of the owner.
Sec. 62. The term “grantor of a power,” is used in this chapter as designating the person by whom a
e - - e - Tcrms “grantor
power is created, whether by grant or devise ; and the term “grantee of a power,” is used as designating of a power.”:
“grantee of a
powcr,” defined,
the person in whom a power is vested, whether by grant, devise, or reservation.
87
Chap. 65.3 ( 346 ) - [TITLE 14.
Conveyances of
land may be
made by decd.
1840, p. 166.
Conveyance by
husband and
wife.
Form of destl.
“Effect of certain
conveyances.
Covenants in
conveyances.
Covenants in-,
mortgages.
Conveyance of
iand adversely
possessed g
*
CHAPTER 65.
of ALIENATION BY DEED ; AND THE PRoof AND RECORDING OF CONVEYANCEs, AND THE CANCELLING
* OF MORTGAGES,
1 SECTION 1. Conveyances of lands, or of any estate or interest therein, may be made by deed, signed and
2 sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his law-
3
ful agent or attorney, and acknowledged or proved and recorded as directed in this chapter, without any oth-
4 er act or ceremony whatever,
| SEC. 2. A husband and wife may, by their joint deed, convey the real estate of the wife, in like manner as
2.
she might do by her separate deed, if she were unmarried; but the wife shall not be bound by any cove-
©
3 nant contained in such joint deed,
1
Sec. 3. A deed of quit claim and release, of the form in common use, shall be sufficient to pass all the es-
2 tate which the grantor could lawſully convey by a deed of bargain and sale,
1 SEc. 4. A conveyance made by a tenant for life or years, purporting to grant a greater estate than he pos-
2 sessed or could lawfully convey, shall not work a ſorſeiture of his estate, but shall pass to the grantee all
8 the estate which such tenant could lawſully convey.
1, Sec. 5. No covenant shall be implied in any conveyance of real estate, whether such conveyance contain
2 special covenants.or not,
I, SEc. 6. No mortgage shall be construed as implying a covenant ſor the payment of the sum thereby inten-
2 ded to be secured ; and where there shall be no express covenant for such payment contained in the mort-
3 gage, and no bond or other separate instrument to secure such payment, shall have been given, the remedies
4 of the mortgagee shall be confined to the lands mentioned in the mortgage.
1 Sec. 7. Every grant of lands shall be absolutely void, if at the time of the delivery thereoſ, such lands
2 shall be in the actual possession of a person claiming the same under a title adverse to that of the grantor.
Chap, 65.] ; ( 347 ) [Title 14
l
5
1
Sec. 8. But every person having a just title to lands of which there shall be an adverse possession, may
- . Mortgages may
- - be given, &c.
execute a mortgage on such lands, and such mortgage, iſ duly recorded, shall bind the lands from the time
the possession thereof shall be recovered by the mortgagor or his representatives; and every such mortgage
shull have preference over any other lien created subsequent to the recording thereof,
SEC. 9. Deeds executed within this state, of lands, or any interest in lands therein, shall be executed in the Exeeution and
acknowledge-
ment of deed.
presence of two witnesses, who shall subscribe their names to the same as such, chd the persons executing
3such deed may acknowledge the execution thereof before any judge or commissioner of a court of recard, 1839, p. 219
w p. • Lo º
1840, p. 160.
or before any notary public, justice of the peace or master in chancery within the state, and the officer ta-
king such acknowledgment, shall endorse thereon a certificate of the acknowledgment thereoſ, under his
hand.
SEc. 10. If any such deed shall be executed in any other state, territory or district of the United States, .."
in other states.
such deed may be executed according to the laws of such state, territory or district, and the execution there-
of may be acknowledged before any judge of a court of record, notary public, justice of the peace, mas-
ter in chancery or other officer authorized by the laws of such state, territory or district to take the acknowl- iso p. 166:
edgment of deeds therein, or before any commissioner appointed by the governor of this state for such pur-
pose.
SEc. 11. In the cases provided for in the last preceding section, unless the acknowledgment be taken be- º
edgement au-
- thenticated.
fore a commissioner appointed by the governor of this state for that purpose, such deed shall have attached
thereto a certificate of the clerk, or other proper certiſying officer of a court of record of the county or
district within which such acknowledgment was taken, under the seal of his office, that the person whose
name is subscribed to the certificate of acknowledgment was at the date thereof such officer as he is therein
1840, p. 166.
represented to be, that he believes the signature of such person subscribed thereto to be genuine, and that * * *
the deed is executed and acknowledged according to the laws of such state, territory or district.
Sec. 12. If such deed be executed in any foreign country, it may be executed according to the laws of
CHAP, 65.]
( 348 ) [TITLE 14,
beeds executed
in forctgn coun-
try. - -
Acknowledge-
ment by married
women residing
in this state.
1840, p. 167, § 4.
Conveyance by
married won an
residing out of
this state.
R.S., p. 264, §8.
Approval of cx-
ecution,. &c.
In case of death
bf subscribing
viiilesses.
2
*
such country, and the execution thereof may be acknowledged before any notary, public therein, or before
any minister plenipotentiary, minister extraordinary, charge des affaires, or consul of the United States,
y minister plenipo y, m r extraordinary, charge a -
4 appointed to reside therein; which acknowledgment shall be certified thereon by the officer taking the same
5 under his hand, and if taken before a notary public, his seal of office shall be affixed to such certificate.
2
2
Proceedings on
refusal of grant-
er residing in
this state, to ac-
knowledge deed.
SEc. 13. When any married woman residing in this state, shall join with her husband in a deed of convey-
ance of real estate, situate within this state, the acknowledgment of the wife shall be taken separately and
apart from her husband; and she shall acknowledge that she executed such deed freely, and without any
fear or compulsion from any one.
SEc. 14. When any married woman not residing in this state, shall join with her husband in any convey-
ance of real estate situated within this state, the conveyance shall have the same effect as if she were sole,
and the acknowledgment or proof of the execution of such conveyance by her, may be the same as if she
were sole.
SEc. 15. When any grantor shall die, or depart from, or reside out of this state, not having acknowledged
his deed, the due execution thereof may be proved by any competent subscribing witness thereto, before
•
any court of record in this state,
..º
Sec. 16. If all the subscribing witnesses to such deed shall also be dead, or out of this state, the same may
be proved before any court of record in this state, by proving the handwriting of the grantor, and of any
subscribing witness thereto.
SEc. iT. If any grantor residing in this state, shall refuse to acknowledge his deed, the grantee or any
person claiming under him, may apply to any justice of the peace in the county where the land lies, or
where the grantor or any subscribing witness to the deed resides, who shall thereupon issue a summons to
the grantor to appear at a certain time and place before the said justice, to hear the testimony of the sub-
scribing witnesses to the deed; and the said summons with a copy of the deed annexed, shall be served at
p
least seven days before the time therein assigned for proving the deed.
Char. 65.] ( 349 ) [TITLE 14.
2
SEc. 18. At the time mentioned in such summons, or at any time to which the hearing may be adjourned,
t Ih.
the due execution of the deed may be proved by the testimony of one or more of the subscribing witnesses;
and iſ proved to the satisfaction of the justice, he shall certiſy the same thereon, and in such certificate he
shall note the presence or absence of the grantor, as the fact may be.
-
When exceution
may be proved
before court of
z - record, in case
witnesses thereto shall all be dead, or out of the state, it may be proved before any court of record in this “"“”
Sec. 19. If any grantor residing in this state, shall refuse to acknowledge his deed, and the subscribing
state, by proving the handwriting of the grantor, or of any subscribing witness; the said court first sum-
moning the grantor for the purpose, in the manner before provided in this chapter.
SEc. 20. The court or justice before whom any deed may be presented to be proved, as provided in the subpoenas for
With CSSéS,
preceding sections, may issue subpoenas to the subscribing witnesses or others, as the case may require, to
appear and testify touching the execution of such deed ; which subpoenas may be served in any part of this . .
State.
SEC. 21. Every person, who being served with such subpoena, shall without reasonable cause, refuse or
- - Punishment for
refusing to ap-
neglect to appear, or appearing shall refuse to answer on oath, touching the matters aforesaid, shall be lia- º {l}}-
-
ble to the injured party in the sum of one hundred dollars damages, and for such further damages as such
party may sustain thereby ; and may also be committed to prison as for a contempt by the court or justice
who issued such subpoena, there to remain until he shall submit to answer upon oath as aforesaid.
SEC, 22. Any person interested in a deed that is not acknowledged, may, at any time before or during
- - Filing copy of
.. decd with regis-
º g º * {º cº - - ter, &c., effect.
such application to a court of record, or such proceedings before a justice, file in the office of the register
of deeds of the county where the lands are situated, a copy of the deed compared with the original by the
register, which shall, for the space of thirty days thereafter in case of proceedings beſore a justice, and in
case of proceedings before a court of record, for the space of ten an after the in day of the next term
of such court, have the same effect as the recording of the deed, if-such deed shall, within that time be du-
ly proved and recorded.
88
Char. 65.] ( 350 . ) - - [TITLE 14.
When cffect of
filing to contin-
ll C.
Oertific:l (c to en-
title deed to be
recovered.
Entry books of
deeds and mort-
gages to be kept
by register.
12ntrics in such
books, how
made.
Itecording of
deeds an e mort-
gūgeš.
1 Sec 23. If at the expiration of the time mentioned in the preceding section for that purpose, such proceedings
º
2 for proving the execution of the deed shall be pending before a justice of the peace, the effect of filing such
3 copy shall continue until the expiration of seven days after the termination of the proceedings, if such deed
4 shall within that time be duly proved and recorded,
1 SEc. 24. A certificate of the acknowledgment of any deed, or of the proof of the execution thereof before
2 a court of record, or justice of the peace, signed by the clerk of such court, or by the justice before whom
3 the same was taken, as provided in this chapter, and, in the cases where the same is necessary, the certifi-
4 cate required by the eleventh section of this chapter, shall entitle such deed with the certificate or certifi-
5 cates aforesaid to be recorded in the office of the register of deeds of the county where the lands lie.
1 SEc. 25. Every register of deeds shall keep an entry book of deeds, and an entry book of mortgages, each
2 page of which shall be divided into six columns, with titles of heads to the respective columns, in the follow-
3 ing form, to wit:

Date of re- Township where the To Whº".delivered
ception. Grantors. || Grantees. | lands i. | º being recor- Fees received.
& ded.
1 SEC. 26. In the entry book of deeds the register shall eneral deeds of conveyance absolute in their terms,
2 and not intended as mortgages or securities, and all copies left as cautions, and in the entry book of mort-
gages he shall enter all mortgages and other deeds intended as securities, and all assignments of any such
4 mortgages or securities ; noting in such books the day, hour and minute of the reception, and the other
5 particulars in the appropriate columns, in the order in which such instruments are respectively received; and
6 every such instrument shall be considered as recorded at the time so noted.
SEC. 27. Different sets of books shall be provided by the registers of deeds of the several counties, for the
2 recording of deeds and mortgages; in one of which sets all deeds required by the preceding section to be
3 entered in the entry book of deeds, shall be recorded at full length, with the certificates of acknowledgment
4 or proof of the execution thereof, and in the other, all such instruments as are required to be entered in
5 the entry book of mortgages, shall in like manner be recorded.
CHAP. 65.] '. ( 351 ) [TITLE 14.
3
3
Sec. 28. The register shall certify upon every instrument recorded by him, the time when it was received.
*
Certificate of re- -
cording. 3
and a reference to the book and page where it is recorded. - ... • ,
Sec. 29. Every register of deeds shall also keep a proper general index to each of said sets of books,
Indcxc3.
in which he shall enter alphabetically the name of every party to each and every instrument recorded by
him, with a reference to the book and page where the same is recorded.
Sec. 30. Every conveyance of real estate within this state, hereafter made, which shall not be recorded
Conveyance not
recorded, void,as
e º e < * * © º - º º inst subse-
as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valua- º;
sers in good
- faith, &c.,
ble cons.deration, of the same real estate or any portion thereof, whose conveyance shall be first duly re-
corded.
Sec. 31. Deeds of pews or slips in any church, may be recorded by the clerk of the township in which
Recording deeds
e Լ - e - of pews and .
such church is situated, or by the clerk of the society or proprietors, if incorporated or legally organized ; ;"""
and such clerks shall receive the same fees as the register of deeds is entitled to for similar services.
SEc. 32. All conveyances and other instruments authorized by law to be recorded, and which shall be ac-
- Effect of certain
Conveyances
& e - & and other instru-
knowledged or proved as provided in this chapter, and if the same shall have been recorded, the record, or ºntº evil
dence.
al transcript of the record, certified by the register in whose office the same may have been recorded, may
be read in evidence in any court within this state without further proof thereof; but the effect of such evi-
dence may be rebutted by other competent testimony,
SEc. 33. When a deed purports to be an absolute conveyance in terms, but is made or intended to be made
When deed not
defeated by de-
... e. - o f º
defeasible by force of a deed of defeasance or other instrument for that purpose, the original conveyance €80.Stu Il Cé
shall not be thereby defeated or affected, as against any person other than the maker of the defeasance, or
his heirs or devisees, or persons having actual notice thereof, unless the instrument of defeasance shall have
been recorded in the registry of deeds of the county where the lands, lie.
Sec. 34. The recording of an assignment of a mortgage shall not, in itself, be deemed notice of such as-
/
Chap. 65.]
( 352 ) [TITLE 14.
2ffect of record-
ing agreement of
Inortgage.
HDefini.ion of
term “purcha-
ser.” as used in
this chapter.
Definition of
term “Convey-
ance,” as used
in this chapter.
Construction of
préceding sec-
tion, letters of
attorney, &c.
How letters of
attorney revo-
kcd.
Traliscribing re-
cords on divisirin
&c., oſ county.
3
2
2
2 signment to the mortgagor, his heirs or personal representatives, so as to invalidate any payment made by
them, or either of them to the mortgagee.
SEc. 35. The term “purchaser,” as used in this chapter, shall be construed to embrace every person to
whom any estate or interest in real estate, shall be conveyed for a valuable consideration, and also every as-
signee of a mortgage, or lease, or other conditional estate.
-
SEc. 36. The term “conveyance,” as used in this chapter, shall be construed to embrace every instrument
in writing, by which any estate or interest in real estate is created, aliened, mortgaged or assigned ; or by
which the title to any real estate may be affected in law or equity, except wills, leases for a term not excee-
ding three years, and executory contracts for the sale or purchase of lands.
SEC. 37. The preceding section shall not be construed to extend to a letter of attorney, or other instrument
containing a power to convey lands as agent or attorney for the owner of such lands; but every such let-
ter or instrument, and every executory contract for the sale or purchase of lands, when acknowledged or
proved in the manner prescribed in this chapter, Inay be recorded in the registry of deeds of any county in
which the lands to which such power or contract relates, may be situated ; and when so acknowledged or
proved, and the record thereof when recorded, or a transcript of such record duly certified, may be read in
evidence in the same manner, and with the like effect, as a conveyance recorded in such county.
SEc. 38. No letter of attorney or other instrument so recorded, shall be deemed to be revoked by any act of
the party by whom it was executed, unless the instrument containing such revocation be also recorded in the
same office in which the instrument containing the power was recorded.
SEc. 39. When a new county shall be organized, in whole or in part from an organized county, or ſtom
territory attached to such organized county for judicial purposes, all the records of deeds and other instru-
ments relating to real estate in such new county, may be transcribed into the proper books by the register
of deeds of such new county ; which records so transcribed, shall have the same effect in all "respects, as
original records, and the register shall be paid for transcribing the same, such sum as the board of supervi.
sors of his county may deem just and reasonable.
CHAP. 65.j - ( 353 ) [TITLE 14.
2
SEC. 40. A scroll or device used as a seal upon any deed of conveyance or other instrnment whatever,whe- S
* croll used as a
Seal.
ther intended to be recorded or not, shall have the same force and effect as a seal attached thereto, or im- ...”
º 1840, p. 107, § 3.
pressed thereon, but this section shall not be construed to apply to such official seals as are or may be pro-
vided for by law.
SEC. 41. All conveyances of real estate heretofore made and acknowledged or proved in accordance with
Effect of deeds,
&c., how ac-
the laws of this state, in force at the time of such making and acknowledgment or proof, shall have the
same force as evidence, and may be recorded in the same manner, and with the like effect, as conveyances
executed and acknowledged in pursuance of the provisions of this chapter.
Sec. 42. Any mortgage that has been, or may hereafter be recorded, may be discharged by an entry in knowledged ac-
{º jºb to law in
OrCe,
the margin of the record thereof signed by the mortgagee, or his personal representative, or assignee, ac-
knowledging the satisfaction of the mortgage, in the presence of the register of deeds or his deputy, who isſo, p. 167,
BeC. 9.
shall subscribe the same as a witness; and such entry shall have the same effect as a deed of release duly
acknowledged and recorded.
SEc. 43. Any such mortgage shall also be discharged upon the record thereof, by the register of deeds in
How mortgage
may be dischar-
whose custody it shall be, whenever there shall be presented to him a certificate executed by the mortgagee, gºd.
his personal representatives or assigns, acknowledged or proved and certified as herein before prescribed to
entitle conveyances to be recorded, specifying that such mortgage has been paid, or otherwise satisfied or
discharged.
SEc. 44. Every such certificate, and the proof or acknowledgment thereot, shall be recorded at full
length, and a reference shall be made to the book and page containing such record, in the minute of the dis- 1889, p. 219.
charge of such mortgage made by the register upon the record thereof.
SEc. 45. If any mortgagee or his personal representative or assignee, as the case may be, after full per-
Liability of mort-
gages, &c., for
neglect to dis-
formance of the condition of the mortgage, whether before or after a breach thereof, shall, for the space charge mortgage.
89
CHAP. 66.] ( 354 ) - - [TITLE 14.
•s of seven days after being thereto requested, and after tender of his reasonable charges, refuse or neglect
4 biºms, the same as provided in this chapter, or to execute and acknowledge a certific ate of discharge,
*** 5 or release thereof, he shall be liable to the mortgagor, his heirs or assigns, in the sum of one hundred dol-
6 lars damages, and also for all actual damages occasioned by such neglect or refusal, to be recovered in an
7 action on the case.
CHAPTER 66.
9.
OF ESTATES IN DOWER, BY THE CURTESY, AND GENERAL PROVISIONS CONCERNING REAL ESTATE,
Estates in Lower.
1 SECTION 1. The widow of every deceased person, shall be entitled to dower, or the use during her natur-
Widow entitled
to dower.
2
al life, of one-third part of all the lands whereof her husband was seized of an estate of inheritance, at
3
any time during the marriage, unless she is lawfull y barred thereof.
1 SEc. 2. If a husband seized of an estate of inheritance in lands, exchange them for otherlands, his widow
Bower in case of #.
exchange of * © -
** 2 shall not have dower of both, but shall make her election to be endowed of the lands given, or of those ta-
3. ken in exchange; and if such election be not evinced by the commencement of proceedings to recover
4 her dower of the lands given in exchange, within one year after the death of her husband, she shall be
5 deemed to have elected to take her dower of the lands received in exchange.
1 SEc. 3. When a person seized of an estate of inheritance in lands, shall have executed a mortgage of
** 2 such estate before marriage, his widow shall be entitled to dower out of the lands mortgaged, as against ev-
3 ery person except the mortgagee and those claiming under him.
Yiortgage to ge 1 SEC. 4. When a husband shall purchase lands during coverture, and shall at the same time mortgage his
iyl ortgage to ge-
cure purchase • . -
money.
estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower
3
out of such lands, as against the mortgagee or those claiming under him, although she shall not have unni.
4 ted in such mortgage, but she shall be entitled to her dower as against all other persons.
Char. 66.] - * ( 355 ) - [TITLE 14.
l
2
3
husband in his life time, and such lands shall have been enhanced in value, after the alienation, such lands
Sec. 5. Where, in either of the cases mentioned in the two last preceding sections, or in case of a mort-
When widow
entitled to inter-
gage in which she shall have joined with her Yusband, the mortgagee, or those claiming under him shall af. º On
ter the death of the husband cause the mortgaged premises to be sold by virtue of such-mortgage, and any
surplus shall remain after payment of the moneys due thereon and the costs and charges of the sale, such
widow shall be entitled to the interest or income of one-third part of such surplus, for her life, as dower.
SEc. 6. If, in either of the cases above specified, the heir or other person claiming under the husband,
- When widow
shall pay and satisfy the mortgage, the amount so paid shall be deducted from the value of the land, and the ..". gº
ter deducting
amount paid on
widow shall have set out to her, for her dower in the mortgaged lands, the value of one-third of the residue monºe.
after such deduction.
SEC. 7. When a widow shall be entitled to dower out of any lands which shall have been aliened by the . i. º
- my hus-
i. €Sti-
mated.
shall be estimated, in setting out the widow’s dower, according to their value at the time when they were
so aliened.
SEC. 8. When a widow is entitled to dower in lands of which her husband died seized, and her right to
When dower
e º º e * - may be assigned
dower is not disputed by the heirs or devisees, or any person claiming under them, or either of them, it by Pro**
may be assigned to her, in whatever counties the lands may lie, by the judge of probate for the county in
which the estate of the husband is settled, upon application of the widow or any other person interested in
the lands; notice of which application shall be given to sach heirs, devisees or other persons, in such man-
ner as the judge of probate shall direct.
Sec. 9. For the purpose of assigning such dower, the judge of probate shall issue his warrant to three dis
Warrant for as-
is: º tº e e e signment of
creet and disinterested persons, authorizing and requiring them to set off the dower by metes and bounds ign
; dowcr.
when it can be done without injury to the whole estate.
Sºo. 10. The commissioners shall be sworn before the judge or a justice of the peace, to the faithful dis.
Com’missioners
to be sworn, &c.;
set off the dower according to the command of such war- É.ºn-
charge of their duties, and shall as soon as may be,
UHAP. 66.] ( 356 ) [TITLE 14.
When estate
consists of niii!,
&v., how dower
‘assigned.
When widow
Inay occupy
with heirs.
How dower mily
be bºrred.
Ilı.
3 rant and make return of their doings, with an account of their charges and expenses, in writing, to the pro-
4 bate court; and the same being accepted and recorded, and an attested copy thereof recorded in the office
5 of the register of deeds of the county where the lands are situated, the dower shall remain fixed and certain,
6 unless such confirmation be set aside or reversed on appeal ; and one half the cost of such proceedings shall
# be paid by the widow, and the other half by the adverse party.
1 SEC. 11. When the estate out of which dower is to be assigned, consists of a mill, or other tenement which
2 cannot be divided without damage to the whole, and in all cases where the estate cannot be divided by metes
3 and bounds, the dower may be assigned of the rents, issues and profits thereof, to be had and received by
4 the widow as a tenant in common with the other owners of the estate.
I SEc. 12. When a widow is entitled to dower in the lands of which her husband died seized, she may con-
2 tinue to occupy the same with the children or other heirs of the deceased, or may receive one-third part of
3 the rents, issues and profits thereof, so long as the heirs or others interested do not object, without having
4 the dower assigned,
1 SEc. 13. A married woman residing within this state, may bar her right of dower in any estate conveyed
2 by her husband, or by his guardian, if he be a minor, by joining in the deed of conveyadce, and acknowledg-
3 ing the same as prescribed in the preceding chapter, or by joining with her husband in a subsequent deed,
4 acknowledged in like manner,
1 SEc. 14. A woman may also be barred of her dower in all the lands of her husband by a jointure settled
2 on her with her assent before the marriage, provided such jointure consists of a freehold estate in lands for
3 the life of the wife at least, to take effect in possession or profit immediately on the death of the husband.
1 Sec. 15. Such assent shall be expressed, if the woman be of full age, by her becoming a party to the con-
2 veyance by which it is settled, and if she be under age, by her joining with her father or guardian in such
3 conveyance,
CHAP. 66.] - - ( 357 ) [Title 14
1 Sec. 16. Any pecuniary provision that shall be made for the benefit of an intended wife, and in lieu of
- lb.
2 dower, shall, if assented to as provided in the preceding section, bar her right of dower in all the lands of
3 her husband.
1 Sec. 17. If any such jointure or pecuniary provision be made before marriage and without the assent of Eleuca in case
of jointure.
2 the intended wife, or if it be made after marriage, she shall make her election after the death of her hus:
3 band, whether she will take such jointure or pecuniary provision, or be endowed of the lands of her hus. .
4 band; but she shall not be entitled to both.
1 SEC. 18. lf any lands be devised to a woman, or other provision be made for her, in the will of her hus- ...”
- of provision by
will.
2 band, she shall make her election whether she will take the lands so devised, or the provisions so made, or
3 whether she will be endowed of the lands of her husband; but she shall not be entitled to both, unless it
4 plainly appears by the will to have been so intended by the testator.
1 Sec. 19. When a widow shall be entitled to an election under either of the two last preceding sections, she when widow
deemed to have
elected, to take
- * tº & tº º & , sº º ionture, &c.
2 shall be deemed to have elected to take such jointure, devise or other provision, unless within one year’ y
3 after the death of her husband, she shall commence proceedings for the assignment or recovery of her
4 dower.
1 Sec. 20. If a woman is lawfully evicted of lands assigned to her as dower, or settled upon her as jointure
When widow to
be endowed
2 or is deprived of the provision made for her by will or otherwise, in lieu of dower, she may be endowed “”
3 anew, in like manner as if such assignment, jointure or other provision had not been made.
1 Sec. 21. A woman being an alien, shall not on that account be barred of her dower, and any woman re-woman being
- . an alien, or resi-
ding out of state,
2 siding out of the state, shall be entitled to dower of the lands of her deceased husdand, lying in this state,”
3 and the same may be assigned to her, or recovered by her, in like manner as if she and her deceased hus-
4 band had been residents within the state at the time of his death.
1 Src. 22. No woman, who shall be endowed of any lands, shall commit or suffer any waste on the same
90
Chap. 66.]
- ( 358 ) * [TITLE 14.
Woman not to
colnmit waste ,
to keep houses,
&c., in repair.
How long widow
may remain in
dwelling house,
and have suste-
Il 8. InCO,
When to reco-
yer damages.
Measure of da-
mages, &c.
Not on improve-
pments.
Damages against
heir ulienating
land, &c.
2
3
but every woman so endowed shall maintain the houses and tenements, with the fences and appurtenences
in good repair, and shall be liable to the person having the next immediate estate of inheritance therein,
for all damages occasioned by any waste committed or suffered by her,
!
SEC, 23. A widow may remain in the dwelling house of her husband one year after his death, without
being chargable with rent therefor, and shall have her reasonable sustenance out of his estate for six
months.
SEC. 24. Whenever in any action brought for the purpose, a widow shall recover her dower in lands of
which her husband shall have died seized, she shall be entitled also to recover damages for the withholding
of such dower.
SEC. 25. Such damages shall be one-third part of the annnal value of the mesne profits of the lands in
which she shall so recover her dower, to be estimated in a suit against the heirs of her husband, from the
time of his death; and in suits against other persons from the time of her demanding her dower of such
persons.
SEC, 26. Such damages shall not be estimated for the use of any permanent improvements made after the
death of her husband, by his heirs, or by any other person claiming title to such lands.
SEc. 27. When a widow shall recover her dower in any lands alienated by the heir of her husband, she
shall be entitled to recover of such heir, in an action on the case, her damages for withholding such
dower, from the time of the death of her husband to the time of the alienation by the heir not exceeding
six years in the whole ; and the amount which she shall be entitled to recover from such heir, shall be de-
ducted from the amount she would otherwise be entitled to recover from such grantee, and any amount re-
covered as damages, from such grantee, shall be deducted from the sum she would otherwise be entitled to
recover from such heir.
Sec. 28. When the widow shall have accepted an assignment of dower, in satisfaction of her claim upon
CHAP. 66.] ( 359 ) [TITLE 14,
2 all the lands of her husband, it shall be a bar to any further claim of dower against the heir of such hus: º when bar-
red by itssign-
lucrlt of dower.
3 band, or any grantee of such heir, or any grantee of such husband, unless such widow shall have been
4 lawfully evicted of the lands so assigned to her as aforesaid,
1 SEc. 29. When a widow not having right to dower, shall during the infancy of the heirs of the
Collusion reco-
very not to pre-
judice infant
2 husband, or any of them, or of any person entitled to the lands, recover dower by the default or col-heirs, &c.
3 lusion of the guardian of such infant, heir or other person, such heir or other person so entitled shall not be
4 prejudiced thereby, but when he comes of full age he shall have an action against such widow, to recover
5 the lands so wrongfully awarded for dower.
Estates by the curtesy:
1 SEc. 30. When any man and his wife shall be seized in her right of any estate of inheritance in lands, Yº.
by the curtesy.
2 and shall have issue born alive, which might inherit the same, the husband shall, on the death of his wife,
3 hold the lands for his life, as tenant thereof by the curtesy; provided, that if the wife, at her death, shall
4 leave issue by any former husband, to whom the estate might descend, such issue shall take the same, dis-
5 charged from the right of the surviving husband to hold the same as tenant by the curtesy.
General Provisions.
SEc. 31. Every person in possession of land, out of which any rent is due, whether it was originally de- Liability of per-
son in posses-
sion of land out
of which rent is
2 mised in fee, or for any other estate of freehold, or for any term of years, shall be liable ſor the amount or reserved.
R
#
3 proportion of rent due from the land in his possession, although it be only a part of what was originally
4 demised.
1 SEC. 32. Such rent may be recovered in an action of debt or assumpsit, and the deed of demise, or other
How rent rc.co-
vered,
2 instrument in writing, if there be any showing the provisions of the lease, may be used in evidence by ei-
3 ther party to prove the amount due from the defendant.
I SEc. 33. Nothing contained in the preceding sections shall deprive landlords of any legal remedy ſor the
- Construction of
preceding sec-
tions.
2 recovery of their rents, whether secured to them by their leases, or provided by law.
- CHA*. ‘88.]
( 360 ) [TITLE ld.
De:erminatiºn of
estates at will,
and by suffer.
& Il CC,
Aliens may hold
lund, &c.
Title to lands
heretofore con-
veyed, not to be
questioned on
account of alien-
agc.
Remainder, &c.,
may sue for in-
juries to inlieri-
R&ill Cé.
When joint (e=
nancy, may
maintain action
against co-te-
310 ſt!.
*.
# SEC. 34. All estates at will or by sufferance, may be determined by either party, by three months’ notice
2 given to the other party; and when the rent-reserved in a lease at will is payable at periods of less than
\
3 three months, the time of such notice shall be sufficient, if it be equal to the interval between the times of
4 payment; and in all cases of neglect or refusal to pay the rent due on a lease at will, fourteen days' no-
5 tice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease.
* -
1 Sec. 35. Any alien måy acquire and hold lands, or any right thereto or interest therein, by purchase, de-
2 wise or descent, and he may convey, mortgage and devise the same, and if he shall die intestate, the same
3 shall descend to his heirs; and in all cases such lands shall be held, conveyed, mortgaged or devised, or shall
4 descend in like manner, and with like effect, as iſ such alien were a native citizen of this state, or of the
5 United States.
1 SEC. 36. The title to any lands heretofore conveyed shall not be questioned, nor in any manner affected, by
2 reason of the alienage of any person from or through whom such title may have been derived.
1 SEc. 37. A person seized of an estate in remainder or reversion, may maintain an action of trespass
2 on the case, for any injury done to the inheritance, notwithstanding any intervening estate for life or
3 years.
1 SEC. 38. One joint tenant or tenant in common, and his executors or administrators, may maintain an ac,
2 tion for money had and received, against his co-tenant for receiving more than his just proportion of the
3 rents or profits of the estate owned by them as joint tenants or tenants in common,
CHAP. 67,1 ( sel ) , ſ'Frrºr 15.
I
10
11
12
13
14
15
16
17
18
19
20
21
22
TITLE xv.
CHAPTER 67.
of TITLE TO REAL PROPERTY BY DESCENT.
Section 1. When any person shall die seized of any lands, tenements or hereditaments, or of any right
thereto, or entitled to any interest therein, in ſee simple, or for the life of another, not having lawſully de-
vised the same, they shall descend subject to his debts, in manner following:
1. ln equal shares to his children, and to the issue of any deceased child by right of representation; and
if there be no child of the intestate living at his death, his estate shall descend to all his other lineal descen-
dants ; and iſ all the said descendants are in the same degree of kindred to the intestate, they shall share
the estate equally ; otherwise they shall take according to the right of reprseentation :
2. If he shall leave no issue his estate shall descend to his father :
3. If he shall leave no issue, nor ſather, his estate shall descend in equal shares to his brothers and sisters,
and to the children of any deceased brother or sister, by right of representation ; provided that if he shall
have a mother also, she shall take an equal share with his brothers and siaen :
4. If the intestate shall leave no issue, nor father, and no brother nor sister, living at his death, his estate
shall descend to his mother, to the exclusion of the issue, iſ any, of deceased brothers or sisters :
5. Iſ the intestate shall leave no issue, and no ſather, mother, brother nor sister, his estate shall descend to
his next of kin in equal degree; excepting, that when there are two or more collateral kindred in equal
degree, but claiming through different ancestors, those who claim through the neares ancestor shall be pre-
ferred to those claiming through an ancestor more remote ; provided however,
6. If any person shall die leaving several children, or leaving one child, and the issue of one or more oth-
ers, and any such surviving child shall die under age, and not having been married, all the estate that came
to the deceased child by inheritance ſom snch deceased parent, shall descend in equal shares to the other
children of the same parent, and to the issue of any such other children who shall have died, by right of
representation:
How land, &c.,
to descend.
91
CHAr. 67.]
( 362 ) [TITLE 15.
Illegitimate chil-
dren to inherit
froun mother.
Estate of illegiti-
mate child, to
whom to de-
scend.
When Uhild to
be considered le-
gitimat3.
Coinputation of
degrees of kin-
dred. Half-
blood
23
24
25
26
27
28
29
7. If at the death of such child who shall die under age, and not having been married, all the other chil-
dren of his said parent shall also be dead, and any of them shall have left issue, the estate that came to said
child by inheritance from his said parent, shall descend to all the issue of other children of the same parent,
and if all the said issue are in the same degree of kindred to said child, they shall share the said estate equal-
ly ; otherwise they shall take according to the right of representation :
8. If the intestate shall leave a widow; and no kindred, his estate shall descend to such widow :
9. If the intestate shall leave no widow nor kindred, his estate shall escheat to the people of this state.
sº
Sec. 2. Every illegitimate child shall be considered as an heir of his mother, and shall inherit her estate,
in like manner as iſ born in lawſul wedlock; but shall not be allowed to claim as representing his mother,
any part of the estate of any of her kindred, either lineal or collateral,
SEc. 3. If any illegitimate child shall die intestate, without lawful issue, his estate shall descend to his mo-
ther ; iſ she be dead, it shall descend to the relatives of the intestate on the part of the mother, as if the in-
testate had been legitimate.
Sec. 4. When, after the birth of an illegitimate child, his parents shall internarry, and his father shall,
after the marriage, acknowledge him as his child, such child shall be considered as legitimate to all intents
and purposes.
Sec. 5. The degrees of kindred shall be computed according to the rules of the civil law ; and kindred of
thé half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance
come to the intestate by descent, devise, or gift of some one of his ancestors, in which case, all those who
are not of the blood of such ancestor, shall be excluded from such inheritance.
Sec. 6. Any estate, real or personal, that may have been given by the intestate in his life time, as an ad-
vancement to any child or other lineal descendant, shall be considered as a part of the estate of the intes-
tate, so far as it regards the division and distribution thereof among his issue, and shall be taken by such
Effect of ad-
Yuncernetlt.
child or other descendant towards his share of the estate of the intestate.
Chap. 67.] ( 863 )
[TITLE 15.
1
l
2
l
Sec. 7. If the amount of such advancement shall exceed the share of the heir so advanced, he shall be € X-
g When heir ad-
§ tº . . . tº s º * vanced to be ex-
cluded from any further portion, in the division and distribution of the estate, but he shall not be required;...”
to refund any part of such advancement, and if the amonnt so received shall be less than his share, he shall
te entitled to as much more as will give him his full share of the estate of the deceased.
SEc. 8. Iſ such advancement be made in real estate, the value thereof shall, for the purposes mentioned in Advancement
how estimated.
the preceding section, be considered a part of the real estate to be divided ; and if it be in personal estate,
it shall be considered as part of the personal estate ; and if in either case, it shall exceed the share of real
or of personal estate, respectively, that would have come to the heir so advanced, he shall not reſund any
part of it, but shall receive so much less out of the other part of the estate, as will make his whole share
equal to those of the other heirs who are in the same degree with him,
Sec. 9. All gifts and grants shall be deemed to have been made in advancement, if they are expressed in
When gifts, &c.,
e tº g tº , e. e to be deemed ad-
the gift or grant to be so made, or if charged in writing by the intestate as an advancement, or acknowl- ****
edged in writing as such by the child or other descendant.
Sec. 10. If the value of the estate so advanced, shall be expressed in the conveyance, or in the charge
Value of ad-
vancement, how
thereof made by the intestate, or in the acknowledgment of the party receiving it, it shall be considered as ascertained,
of that value, in the division and distribution of the estate ; otherwise, it shall be estimated according to its
value when given, as nearly as the same can be ascertained,
SEc. 11. If any child, or other lineal descendant so advanced, shall die beſore the intestate, leaving issue, in case of death
of heir, advanced
amount to be al-
& * & e tº tº gº g & tº * loved by repre-
the advancement shall be taken into consideration, in the division and distribution of the estate, and the ...”
amount thereof shall be allowed accordingly by the representatives of the heir so advanced in like manner
as if the advancement had been made directly to them.
Sec. 12. Nothing in this chapter shall affect the title of a husband as tenant by the curtesy, nor that of a construction of
this chapter.
widow as tenant in dower, nor shall the same affect any limitation of an estate by deed or will.
1 Sec. 13. Inheritance or succession, “by right of representation,” takes place when the descendants of
CHAP. 68.] * ( 864 ) [TIPLE 16.
2 any deceased heir take the same share or right in the estate of another person that their parent would have
Haheritanee, &c., -
by right of rep-
• IrèSeR[ºſion. º e tº sº º e tº gº . } e
3 taken, if living. Posthumous children are considered as living at the death of their parents.
TITLE XVI.
CHAPTER 68.
OF WILLS OF REAL AND PERSONAL ESTATE.
who may devise 1 SECTION 1. Every person, of full age and sound mind, being seized in his own right of any lands, or of any
lands, &c.
2
right thereto, or entitled to any interest therein, descendible to his heirs, may devise and dispose of the same
3
by his last will and testament in writing ; and all such estate not disposed of by the will, shall descend as
4 the estate of an intestate, being chargeable, in both cases, with the payment of all his debts.
1 SEC. 2. Every devise of land in any will hereafter made, shall be construed to convey all the estate of the
Construction of
devise.
*
devisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor in-
2
3
tended to convey a less estate,
1
Estate in land SEc. 3. Any estate, right or interest in lands, acquired by the testator aſter the making of his will, shall
}State ill Hall (18
acquired after - *-*** --
making will. $º-
pass thereby in like manner as if possessed at the time of making the will, if such shall manifestly ap-
2
3
pear by the will to have been the intention of the testator.
1 SEc. 4. Every person of full age and sound mind may by his last will and testament in writing, bequeath
Who may be- * .
queath personal
‘CS late.
2
and dispose of all his personal estate remaining at his decease, and all his right thereto, and interest therein,
3 and all such estate, not disposed of by the will shall be administered as intestate estate.
ºlobe I Sec. 5. No will made within this state, except such nuncupative wills as are mentioned in the following
CXeCul g -
2 section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect
8 the same, unless it be in writing and signed by the testator, or by some person in his presence, and by his
Chap. 68.J ( 365 ) - [TITLE 16.
4.
from subsequent changes in the condition or circumstances of the testator.
express direction, and attested and subscribed in the presence of the testator by three or more competent
witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their sub-
e”
sequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of
the will, if it be otherwise satisfactorily proved.
Sec. 6. Nothing herein contained shall affect the validity of a nuncupative will, in which the value of the
Nuneupative
estate bequeathed shall not exceed three hundred dollars, provided the same shall be proved by two compe- Wills.
tent witnesses; nor prevent any soldier, being in actual military service, nor any mariner, be-
ing at sea, from disposing of his wages and other personal estate by a nuncupative will, as he might here-
tofore have done.
Sec. 7. All beneficial devises, legacies and giſts whatsoever, made or given in any will to a subscribing wit-When legacy;
&c., to subscri-
bing witness
void.
ness thereto, shall be wholly void, unless there be three other competent subscribing witnesses to the same;
*
but a mere charge on the lands of the devisor for the payment of debts, shall not prevent his creditors
from being competent witnesses to his will.
SEc. 8. But if such witness to whom any beneficial devise may have been made or given, would have been
When share of
C8tºute to be sa-
ved to subscri-
entitled to any share of the estate of the testator. in case the will was not established, then so much of the bing witness.
share that would have descended or been distributed to such witness as will not exceed the devise or bequest
made to him in the will shall be saved to him, and he may recover the same of the devisees or legatees named
in the will, in proportion to, and out of the parts devised or bequeathed to them,
SEc. 9. No will nor {l l’ r h Te WOR * * in or # it orn-
N ll nor any part thereof shall be revoked, unless by burning, tearing, canceling or oblitera. Revocation oſ
Wills.
ting the same, with the intention of revoking it, by the testator, or by some person in his presence and
by his direction ; or by some other will or codicil in writing, executed as prescribed in this chapter ; or by
some other writing, signed, attested and subtcribed in the manner provided in this chapter ſor the execution
of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law
92
CHAP. 68.] ( 366 ) - [TITLE 16.
>When will may
be deposited
with judge of
probatc.
IIow such will
lcept and dispu-
sed of.
Judge of pro-T
bate to give two-
tice of his pos-
session of will,
Others having
custody of will,
to ſleliver Saille
in 30 days.
With in what
tiltic executor to
present will to
probate court.
Liability for ne-
glect of duties in
certain cases.
1 Sec. 10. Any will in writing, being enclosed in a sealed wrapper, and having endorsed thereon the name
2 of the teau. and his place of residence, and the day when, and the person by whom it is * may
3 be deposited by the person making the same, or by any person for him, with the judge of probate in the
4 county where the testator lives; and the judge of probate shall receive and safely keep such will and give
a certificate of the deposit thereoſ,
5
1 SEc. 11. Such will shall, during the life time of the testator, be delivered only to himself, or to some per-
2 son authorized by him by an order in writing, duly proved by the oath of a subscribing witness; and after
3 the death of the testator, and at the first probate court after notice thereof, it shall be publicly opened by the
4 judge of probate, and be retained by him.
1 Sec. 12. The judge of probate shah give notice of such will being in his possession, to the executor there-
2 in appointed, if there by one, otherwise to the persons interested in the provisions of the will ; or if the ju-
3 risdiction of the case belongs to any other court, such will shall be delivered to the executor, or to some other
4 trusty person, interested in the provisions of the same, to be presented for probate in such other court.
SEc. 13. Every person other than the judge of probate having the custody of any will, shall within thir-
2 y days after he has knowledge of the death of the testator, deliver the same into the probate court which has
3 jurisdiction of the case, or to the person named in the will as executor.
1 SEc. 14. Every person named as executor in any will, shall within thirty days after the death of the tes-
º
2 tator, or within thirty days after he has knowledge that he is named executor, if he obtains such knowledge
3 aſter the death of the testator, present such will to the probate court which has jurisdiction of the case, un-
4 less the will shall have been otherwise deposited with the judge of probate ; and shall within the period
5 above mentioned signify to the court his acceptance of the trust, or make known in writing to such court his
6 refusal to accept it.
Sec. 15. Every person who shall neglect any of the duties required in the two last preceding sections,
2 without reasonable cause, shall be liable to each and every person interested in such will, in the sum of ten
Cnap. 68.] - - ( 367 ) * - [TrrLE 16.
3 dollars damages for each and every month he shall so neglect, after the thirty days above mentioned, to be
4 recovered in an action on the case with costs.
1 Sec. 16. Iſ any person, having the custody of any will, after the death of the testator, shall, without rea- when person
.* -- - having custody
of will may be
e e * - º e •; ºr w o º º ilt d f
sonable cause neglect to deliver the same to the probate court having jurisdiction of it, aſter he shall have Coſi) iſ illeſl i () r
2
negleet to deliver
samc to probald
CO u fl.
3
been duly notified by such court for that purpose, he may be committed to the jail of the county, by war-
4
rant isued by such court, and there be kept in close confinement until he shall deliver the will as above di-
5 rected.
Notice of time
and place of
proving will.
I SEC. 17. When any will shall have been delivered into or deposited in any probate court having jurisdic-
2
tion of the same, such court shall appoint a time and place for proving it, when all concerned may appear
3 and contest the probate of the will, and shall cause public notice thereof to be given by personal service
4.
l te e * * º e e e -
on all persons interested, or by publication under an order of such court, in such newspaper printed in this
5
state, as the judge shall direct, three weeks successively, previous to the time appointed; and no will shall
6
be proved until notice shall be given as herein provided.
,”
1 Sec. 18. If no person shall appear to contest the probate of a will at the time appointed for that purpose, when prolate
may he granted
2 th º tº -> - - on testimony of
e court may in its discretion, grant probate thereof, on the testimony of one of the subscribing witnesses “ Willº CSS.
3
only, if such witness shall testify that such will was executed in all the particulars as required in this chap-
4 ter, and that the testator was of a sound mind at the time of the execution thereof.
I SEC 19. If none of the subscribing witnesses shall reside in this state, at the time appointed for proving
Whcn other wit–
nesses may be
2 the will, the court may in its discretion, admit the testi º - e º
\-º - * C. eStimon * Y ~ - * admitted to
} y of other witnesses to prove the sanity of the ...".
3
testator and the execution of the will ; and, as evidence of the execution of the will, may admit proof of
4 the hand writing of the testator and of the subscribing witnesses.
1 SEc. 20. N will shall be effectualto pass either real or personal estate, unless it shall have been duly
º * r * * • tº Effect of proof,
proved and allowed in the probate court as provided in this chapter, or on appeal, in the circuit court or su and allowance of
3. º T will in probate
r COurl.
3 preme court ; and the probate of a will of real or personal estate, as above mentioned, shall be conclusive
2
4 as to its due execution.
Chap. 68.] - - ( 368 ) - [TITLE 16.
1 SEC. 21. All wills which shall have been duly proved and allowed in any other of the United 8tates, or in
Vills proved
and allowed in *
other states, &c. tº -
° any foreign state or country, according to the laws of such state or country, may be allowed, filed and re-
3 corded in the probate court of any county, in which the testator shall have real and personal estate on which
4 such will may operate, in the manner mentioned in the following sections.
Vh f - - © e &
**śe 1 SEC. 22. When a copy of such will, and the probate thereof, duly authenticaed, shall be produced by the
. notice Ts)
to be given.
2 executor or other person interested in such will, to the probate court, such court shall appoint a time and
* Place of hearing, and notice shall be given in the same manner as in the case of an original will presented
4 for probate.
...º.º. 1 SEc. 23. If, on hearing the case, it shall appear to the court that the instrument ought to be allowed in
copy to be filed * -
and recordcd.
2 this state, as the last will and testament of the deceased, the copy shall be filed and recorded, and the will
3 shall have the same force and effect as if it had been originally proved and allowed in the same court.
1 Sec. 24. When any will shall be allowed, as mentioned in the preceding section, the probate court shall
Letters testa-
mentary, &c, in
such will. • e º - e
2 grant letters testamentary, or letters of administration with the will annexed ; and such letters testamenta-
3 ry or of administration shall extend to all the estate of the testator in this state ; and such estate, after pay-
4 ment of his just debts and expenses of administration, shall be disposed of according to such will so far as
5 such will may operate upon it; and the residue shall be disposed of as is provided by law in cases of estates
6 in this state, belonging to persons who are inhabitants of any other state or country.
~
Provision of 1 SEC. 25. When any child shall be born aſter the making of his father's will, and no provision shall be
children lorn *
after making of
will.
2 therein made for him, such child shall have the same share in the estate of the testator, as if he had died in-
3 testate ; and the share of such child shall be assigned to him as provided by law in case of intestate estates
4 unless it shall be apparent ſrom the will that it was the intention of the testator that no provision should be
5 made for such child.
1 SEc. 26. When any testator shall omit to provide in his will, for any of his children, or for the issue of
WWhen provision tº º º & - o
ºn 2 any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or
y mistake, &c. *
Chap. 68.] ( 369 ) [Tirls 16.
3
4
accident, such child, or the issue of such child, shall have the same share in the estate of the testator, as if
he had died intestate, to be assigned as provided in the preceding section.
Sec. 27. When any share of the estate of a testator shall be assigned to a child born after the making of
From what es-
- º provision to
a will, or to a child, or the issue of a child omitted in the will, as herein before mentioned, the same shall “”.
first be taken from the estate not disposed of by the will, if any ; if that shall not be sufficient, so much as
shall be necessary, shall be taken from all the devisees or legatees, in proportion to the value of the estate
they may respectively receive under the will, unless the obvious intention of the testator, in relation to some
specific devise or bequest, or other provision in the will, would thereby be defeated; in which case, such
specific devise, legacy or provision may be exempted from such apportionment, and a different apportion-
ment may be adopted, in the discretion of the probate court.
SEc. 28. When a devise or legacy shall be made to any child or other relation of the testator, and the devi-
When the issue
•e’ - ~. of deceased le-
- - º º - º e tee, &c., to
see or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take ...g.
the estate so given by the will, in the same manner as the devisee or legatee would have done, if he had
survived the testator; unless a different disposition shall be made or directed by the will.
SEc. 29. All the estate of the testator, real and personal, shall be liable to be disposed of for the paymentºº-
&ll) Or
- pºlyuicnt of
|. &c., al-
of his debts and the expenses of administrating his estate, and the probate court may make such reasonable ºo:
widow, &c.
allowance as may be judged necessary ſor the expenses of the maintenance of the widow and miner chil
dren, or either, constituting the family of the testator, out of his personal estate, or the income of his real
estate, during the progress of the settlement of the estate, but never for a longer period than until their
shares in the estate shall be assigned to them.
SEC. 30. Iſ the testator shall make provision by his will, or designate the estate to be appropriated ſor ther t
- ºstate approprl-
atcd by will to
lie applied to
p:ly incrit of
payment of his debts, the expenses of administration or family expenses, they shall be paid according toº &c
the provisions of the will, and out of the estate thus appropriated, or so far as the same may be sufficient.
93
Chap. 68.]
( 370 ) [Title 16.
When provision
insufficient, &c.
Estate given by
will, liable to
payment of
debts, &c., when
certajn devises
&c., to be ex-
empted.
Estate given by
will, nnd liable
for payment of
delts, may he
retained by cze-
cutor until as-
signed.
YWhen devised
or legatec to
hold subject to
liability to con-
tribute, &c.
1 SEc. 31. If the provision made by the will, or the estate appropriated, shall not be sufficient to pay the
2 debts, expenses of administration, and family expenses, such part of the estate real or personal, as shall not
3 have been disposed of by the will, if any, shall be appropriated according to the provisions of the law for
4 that purpose.
1 SEC. 32. The estate, real or personal, given by will to any devisees or legatees, shall be held liable to the
2 payment of the debts, expenses of administration and family expenses in proportion to the amount of the
3 several devises or legacies, except that specific devises and legacies, and the persons to whom they shall be
4 made, may be exempted, if it shall appear to the court necessary, in order to carry into effect the intention
5 of the testator, if there shall be other sufficient estate.
I Sec. 33. When the estate, given by any will, shall be liable for the payment of debts and expenses &S
2 mentioned in the pressing section, or is liable to be taken to make up the share of a child born after the
3 execution of the will, or of a child, or of the issue of a child not provided ſor in the will as herein before
4 provided, the executor shall have a right to retain possession of the same, until me liability shall be set-
5 tied by order of the probate court, and until the devises an I legacies so liable, shall be accordingly assign-
6 ed by order of such court; and when the same can properly be done, any devisee or legatee may make his
7 claim to such court, to have such liability settled, and his devise or legacy assigned to him.
I Sec. 34. All the devisees and legatees, who chall, with the conscnt of the executor or otherwise, have pos-
2 cession of the estate given to them by will before such liability shall be settled by the probate court, shall
3 hold the same subject to the several liabilities mentioned in the preceding section, and shall be held to con-
4 tribute according to their respective liabilities, to the executor, or to any devisee or legatee, from whom the
5 estate devised to him may have been taken for the payment of debts or expenses, or to make up the share
6 of a child born aſter the making of the will, or of a child, or the issue of a child omitted in the will ; and
7 the persons who may, as heirs, have received the estate not disposed of by the will as provided in this chap-
8 ter, shall be liable to contribute, in like manner as the devisees or legatees.
1 Sec. 35. If any of the persons liable to contribute, according to the provisions of the preceding section,
Chap. 68.] ( 371 ) [Title ho.
2 shall be insolvent, and unable to pay his share, the others shall be severally liable for the loss occasioned
When liable for
loss in case inf
* & e v. - e g ins.jlvency of
by such insolvency, in proportion to, and to the extent of, the estate they may have received ; and if any person liable to
contribute.
3
4 of the persons so liable to contribute, shall die before having paid his share, the claim shall be valid against
5 his estate, in the same manner as if it had been his proper debt.
1 SEC. 36. The probate court may, by decree for that purpose, settle the amount of the several liabilities,
Settlement of li-
abilities by de-
* e & o tº - ſº f
2 as provided in the preceding sections, and decree how much, and in what manner, each person shall contri-j."”
3 bute, and may issue execution as circumstances may require; and the claimant may also have a remedy,
4 in any proper action or complaint in law or equity.
1 Sec. 37. Every will, when proved as provided in this chapter, shall have a certificate of such proof en- wins and copies
how made evi-
dence.
dorsed thereon or annexed thereto, signed by the judge of probate, and attested by his seal, and every will
2
3 so certified, and the record thereof or a transcript of such resord certified by the judge of probate and at-
tested by his seal, may be read in evidence in all courts within this state, without further proof.
4
1 SEc. 38. An attested copy of every will devising lands or any interest in lands, and of the probate there-Attested cºpy to
be recorded in
registry of
deeds.,
2 of, shall be recorded in the registry of deeds of the county in which the lands thereby devised are situated:
Construction of
& © - * - tº 10 ſerII) •" exe-
1 SEc. 39. The words “executor,” in this and the subsequent chapters, shall be construed to include an ad-jº"
2
ministrator with the will annexed.
cº sal - - ( 372 ) & [Title 17.
Letters, testa-
mentary.
Bond to be given
by exccutor.
: TITLE XVII. ºr
OF THE SETTLEMENT of Estates of DECEASED PERSONs.
CHAPTER 69. Of Letters Testamentary, and other Proceedings on the Probate of a Will.
6 & 70. Of the Administration and distribution of the Estates of Intestates,
46 71. Of the Inventory and Collection of the Effects of Deceased Persons.
{{ 72. Of the Payment of Debts and Legacies of Deceased Persons.
( * 73. Of Rendering Acconnts by Executors and Administrators.
“ 74. Of the Purtition and distribution of Estates.
46 75. Of Probate Bonds, and the Prosecution of them.
$4. 76. Of the conveyance of Real Estate by Executors and Administrators in certain cases.
CHAPTER 69.
of terrers testamentary and other proceedings on the erogate of a WILL,
I Section 1. When a will shall have been duly proved and allowed, the probate courtshall issue letterstes-
2 tamentary thereon, to the person named executor therein if he is legally competent, and shall accept the trust
3 and give bond as required by law.
1 SEC. 2. Every executor, before he shall enter upon the execution of his trust, and before letters testamen-
2 tary shall issue, shall give bond to the judge of probate in such reasonable sum as he may direct, with one
3 or more sufficient sureties, with conditions as follows:
4 1. To make and return to the probate court, within three months, a true and perfect inventory of all the
5 goods, chattels, rights, credits and estate of the deceased which shall come to his possession or knowledge,
6 or to the possession of any other person for him :
7 2. To administer, according to law and to the will of the testator, all his goods, chattels, rights, credits
8 dad estate, which shall, at any time come to his possession, or to the possession of any other person for him,
9 and out of the same to pay and discharge all debts, legacies, and charges, chargeable on the same, or such
10 vidends thereon, as shall be ordered and decreed by the probate court :
CHAP. 69.] ( 373 ) [TITLE 17.
11 3. To render a true and just account of his administration to the probate court within one year, and at
12 any other time when required by such court.
* *
13 4. To perform all orders and decrees of the probate court, by the executor to be performed in the prem-
14 ises.
I SEc. 3. If, however, the executor shall be residuary legatee, instead of the bond prescribed in the prece-
Bond in case ex- .
2 ding section, he may give a bond in such sum and with such sureties as the court may direct, with a condi-;"º"
3 tion only to pay all the debts and legacies of the testator; and in such case he shall not be required to re.
4 turn an inventory.
1 SEc. 4. No person named as executor in any will, who shall refuse to accept the trust, or shall neglect to
Effect of neglect
to give bond.
2 give bond as prescribed in this chapter, for twenty days after the probate of such will, shall intermeddle or
3 act as executor.
1 SEc. 5. If a person, named executor in any will shall refuse to accept the trust, or shall, for the space of
• When exccutor
refuses to ac-
cept, &c., letters
2 twent days after the probate of the same, neglect to give bond as required by law, the probate court mayº: "“”
3 grantletters testamentary to the other executors, if there be any, who are capable and willing to accept the
4 trust, and if there be no such other executor, who will give bond, the court may commit adminisration of
5 the estate with the will annexed, to such person as would have been entitled to the same, if the testator had
Q,
6 died intestate.
1 SEc. 6. When the person named executor in any will, is under full age at the time of proving the will,
Administration
In case of mino-
2 administration shall be granted with the will annexed, during the minority of the executor, unless there shall rity of executor.
3 be another executor who shall accept the trust and give bond; and, in that case, the executor who shall give
4 bond, shall have letters testamentary, and shall administer the estate, until the minor shall arrive at full age
5 when he may be admitted as joint executor, on giving bond according to law.
1 SEc. 7. Every person who shall be appointed administrator with the will annexed, shall, before entering
94
CHAP. 69.]
( 374 ) [TITLE 17.
Administration
with the Will an-
nexed, to give
bond, &c.
Marriage of ex-
ecutrix extin-
guishes her au-
thority.
When execu-
tor may be re-
moved.
When remain- .
ing executor
to effect trust,
&c.
When all eXccu-
tors not authori-
zed, those au-
thorizcd may
execute the Will.
Executor of ex-
ecutor not to ad-
ininister.
2
upon the execution of his trust, give bond to the judge of probate, in the same manner, and with the same
conditions, as is required of an executor, and shall proceed in all things to execute the trust in the same
manner as an executor would be required to do.
M
SEc. 8. When an unmarried woman, appointed an executrix, alone or jointly with an other person, shall
marry, her marriage shall extinguish her authority as executrix, and her husband shall not be executor in
her right.
- O.
SEC. 9. If an executor shall reside out of this state, or shall neglect, aſter due notice given by the judge
of probate to render his account and settle the estate according to law, or to perform any decree of the court,
or shall abscond or become insane, or otherwise incapable or unsuitable to discharge the trust, the probate
court may remove such executor.
SEc. 10. When an executor shall die or be removed, or his authority shall be extinguished, the remaining
executor, if there be any, may execute the trust ; and if there shall be no other executor, administration,
with the will annexed may be granted of the estate not already administered.
SEc. 11. When all the executors appointed in any will, shall not be authorized, according to the provis-
2 ions of this chapter, to act as such, such as are authorized shall have the same authority to perform every
act, and discharge every trust required and allowed by the will, and their acts shall be as valid and effectual
for every purpose, as if all were authorized, and should act together ; and administrators with the will an-
nexed, shall have the same authority to perform every act, and discharge every trust, as the executor named
in the will would have had, and their acts shall be as valid and effectual for every purpose.
SEc. 12. The executor of an executor shall not as such have any authority to administer the estate of the
first testator; but, on the death of the only surviving executor of any will, administration of the estate of
the first testator, not already administered, may be granted with the will annexed, to such person as the pro-
bate court may judge proper.
CHAP. 70.] - ( 375 ) [TITLE 17.
1
2
SEc. 13. When two or more persons shall be appointed executors of any will, the judge of probate may
Separate or joint
bonds may be
take a separate bond from each of them with sureties, or a joint bond from all of them with surelies. taken.
sº
1.
10
11
12
}6
I?
18
19
20.
CHAPTER 70.
bF THE ADMINISTRATION AND DISTRIBUTION OF THE ESTATES of INTESEATEs.
SECTION 1. When any person shall die possessed of any personal estate, or of any right or interest there-
Application and
º distribution of
€StatCS.
in not lawfully disposed of by his last will, the same shall be applied and distributed as follows:
1. The widow, if any, shall be allowed all her articles of apparel and ornament, and all the wearing ap-
parel and ornaments of the deceased, the household ſurniture of the deceased, not exceeding in value two
hundred and fifty dollars; and other personal property to be selected by her, not exceeding in value two
hundred dollars; and this allowance shall be made, as well when the widow waives the provision made for
her in the will of her husband, as when he dies intestate :
2. the widow and children, constituting the family of the deceased, shall have such reasonable allowance
- {º 1842, p. 12.
out of the personal estate, as the probate court shall judge necessary for their maintenance during the pro-
gress of the settlement of the estate, according to their circumstances; which, in case of an insolvent es-
tate, shall not be longer than one year after granting administration, nor for any time after the dower and
---
personal estate shall be assigned to the widow : s
3. When a person shall die, leaving children under seven years of age, having no mother, or when the
mother shall die won the children shall arrive at the age of seven years, an allowance shall be made for
the necessary maintenance of such children, until they arrive at the age of seven years, out of such part
of the personal estate, and the income of such part of the real estate, as would have been assigned to their
mother if she had been living :
4. If, on the return of the inventory of any intestate estate, it shall apear that the value of the whole es.
tate does not exceed the sum of one hundred and fifty dollars, the probate court may, by a decree for that
purpose, assign, for the use and support of the widow and children of such intestate, or for the support of
CHAP. 70.] ( 376 ) * [TITLE 17.
What probate
court to have ju-
risdiction.
Who entitled to
letters of admin-
istration,
21 the children under seven years of age, if there be no widow, the whole of such estate, after the payment
22
23
24
25
26
27
29
I
of the funeral charges, and expenses of administration :
5, If the personal * shall amount to more than one hundred º fifty dollars, and more than the
allowances mentioned in the preceding sub-divisions of this section, the same shall be applied to the pay-
ment of the debts of the deceased, with the charges of his funeral and of settling his estate :
6. The residue, if any, of the personal estate shall be distributed in the same proportions, and to the same
persons and for the same purposes, as prescribed for the descent and disposition of the real estate, except
that the widow, if any, shall be entitled to receive the same share of such residue, as a child of such intes.
tate would be entitled to.
SEC. 2. When any person shall die intestate, being an inhabitant of this state, letters of administration of
his estate shall be granted by the probate court of the county in which he was an inhabitant or resident, at
the time of his death; if such deceased person, at the time of his death, reside in any other state or coun-
try, having estate to be administered in this state, administration thereof shall be granted by the probate
court of the county in which there shall be estate to be administered ; and the administration first legally
granted shall extend to all the estate of the deceased in this state, and shall exclude the jurisdiction of the
probate court of every other county.
Sec. 3. Administration of the estate of a person dying intestate, shall be granted to some one or more of
2 the persons hereinafter mentioned, and they shall be respectively entitled to the same, in the following or-
3 der :
7
8
10
11
1. The widow or next of kin, or both, as the judge of probate may think proper, or such person as the
widow or next of kin may request to have appointed, if suitable and competent to discharge the trust:
2. If the widow or next of kin, or the person selected by them, shall be unsuitable or incompetent, or if
the widow or next of kin shall neglect, ſor thirty days after the death of the intestate, to apply for admin-
istration, or to request that administration be granted to some other person, the same may be granted to one
or more of the principal creditors, if any such are competent and willing to take it:
3. If there be no such creditor competent and willing to take administration, the same may be committed
to such other person or persons as the judge of probate may think proper.
Char. 70.] ( 377 ) [TITLE 17.
1
$Ec. 4. Every administrator, before he enters upon the execution of his trust, and before letters of admin-
Bond to be given
loy administrator.
2 istration shall be granted to him, shall give a bond to the judge of probate, with such surety or sureties as
3
4
5
4
I
he shall direct and approve, with the same conditions as required in the case of an executor, with such vari-
ations only as may be necessary to make it applicable to the case of an administrator.
Sec. 5. When there shall be a delay in granting letters testamentary or of administration, occasioned by an
When special
administrator
appeal from the allowance or disallowance of a will, or from any other cause, the judge of probate may ...” be appoint-
appoint an administrator to act in collecting and taking charge of the estate of the deceased, until the ques-
tion on the allowance of the will, or such other question as shall occasion the delay, shall be terminated,
and an executor or administrator be thereupon appointed ; and no appeal shall be allowed from the appoint-
ment of such special administrator.
Sec. 6. An administrator, appointed according to the pfovisions of the preceding section, shall collect all
Duties of special
administrator.
the goods, chattels and debts of the deceased, and preserve the same for the executor or administrator who
may afterwards be appointed, and for that purpose may commence and maintain suits as an administrator,
and may sell such perishable and other personal estate as the probate court may order to be sold.
- ?
Sec. 7. Such special administrator shall not be liable to an action by any creditor, or to be called upon in Not to pay debts
* &c.
any other way to pay the debts against the deceased.
SEc. 8. Every such special administrator shall, before entering upon the duties of his trust, give a bond to
Bond to be given
& e e e & e e by special udmi-
the judge of probate as he shall direct, with a condition that he will make and return a true inventory of all mistrator.
the goods, chattels, rights, credits and effects of the deceased which shall come to his possession or knowl-
edge, and that he will truly account for all the goods, chattels, debts and effects of the deceased which shall
be received by him, whenever required by the probate court, and will deliver the same to the person who
shall afterwards be appointed executor or administrator of the deceased, or to such other person as shall be
legally authorized to receive the same.
SEc. 9. Upon granting letters testamentary or of administration on the estate of the deceased, the power
95
CHAP. 70.]
( 378 ) [Title 17.
When his pow-
ers to cease, &c.
Liability of
person embez-
ling or alienaling
goods, &c., be-
fore letters
grantcd.
Administrator
with the will an-
nexed, to be
granted on death
of sole executor.
When adtninis-
trator to be re-
Inoved.
Marriage of ad-
ministratrix cx-
linguishes her
authority.
When remain-
ing administra-
tor iO exeCute
tru St.
Powers, &c., of
adminisfrator de
bonis won.
2 of such special administrator shall cease ; and he shall forthwith deliver to the executor or administrator,
3
all the goods, chattels, money and effects of the deceased in his hands; and the executor or administrator
4 may be admitted to prosecute to final judgment any suit commenced by such special administrator,
2.
2
SEc. 10. If any person, before the granting of letters testamentary or of administration, shall embezzle
or alienate any of the moneys, goods, chattels or effects of any deceased person, such person shall stand
chargeable and be liable to the action of the executor or administrator of such estate, for double the value
of the property so embezzled or alienated, to be recovered for the benefit of such estate,
SEc. 11. When any sole executor or administrator shall die, without having fully administered the estate,
the probate court may grant letters of administration with the will annexed, or otherwise, as the case may
require, to some suitable person to administer the goods and estate of the deceased, not already adminis-
tered.
*~~
SEc. 12. If an administrator shall reside out of this state, or shall neglect after due notice by the judge of
probate, to render his account and settle the estate according to law, or to perform any decree of such court,
or shall abscond, or become insane, or otherwise unsuitable or incapable to discharge the trust, the probate
court may, by an order therefor, remove such administrator.
SEc. 13. When an unmarried woman, who is administratrix, alone or jointly with another person, shall
marry, her marriage shall extinguish her autherity as administratrix.
\
Sec. 14. When an administrator shall be removed, or his authority shall be extinguished, the remaining
administrator, if any, may execute the trust ; if there shall be no other, the court of probate may commit
administration of the estate not already administered, to some suitable person, as in case of the death of a
sole administrator.
SEc. 15. An administrator, appointed in the place of any former executor or administrator, for the purpose
of administering the estate not already administered, shall have the same powers, and shall proceed in set-
CHAP. 70.] ( 379 ). [TITLE 17.
3 thing the estate in the same manner, as the former executor or administrator should have had or done ; and
4 may prosecute or defend any action commenced by or against the former executor or administrator, and
5
may have execution on any judgment recovered in the name of such former executor or administrator.
Sec. 16. If after the granting of letters of administration by any probate court, on the estate of any de-
I
Administration
ceased person, as if he had died intestate, a will of such deceased person shall be duly proved and allowed º: O Il
2
3
by such court, the first administration shall, by decree of said court be revoked, and the powers of the ad-
*
4 ministrator shall cease, and he shall thereupon surrender his letters of administration into the probate court,
5
and render an account of his administration, within such time as the court shall direct.
1 SEc. 17. The executor of the will shall, in such case, be entitled to demand, sue for and collect all the
Powers of exe-
t ſº e tº tº to - cutor in such
goods, chattels, rights and credits of the deceased, remaining unadministered, and may be admitted to pros-“*
2
3
ecute to final judgment any suit commenced by the administrator, before the revocation of his letters of ad-
*
4 ministration.
1 SEc. 18. All acts of an executor or administrator as such, before the revocation of his letters testamentary
Acts of executor
2 or of administration, shall be as valid to all interests and purposes as if such executor or administrator had ...”
w
3 continued lawfully to execute the duties of his trust.
1 SEc. 19. When two or more persons shall be appointed administrators on any estate, the judge of probate
Administrators
may give joint or
- e • e e e ie bonds.
2 may take a separate bond from each with sureties, or a joint bond, with sureties from all. separate bonds
1 SEC. 20. When application shall be made to the judge of probate for the appointment of an administrator
Notice of appli-
cation for ap-
2
o tº e e * • int t X-
on an intestate estate, or for letters of administration with the will annexed, he shall cause notice of the same, tºº f ex-
3
and of the time and place of hearing thereof, to be published for three successive weeks in such newspa-
4 as he may direct.
Gºar. Rºj ( 380 ) Title it.
'Making and re-
turn of invento-
*ry.
I
º
tºstate to be ap-]
..praised, &c.
Appointment of
appraiscrs by
justice ºf the
peace.
Appraisal, how
hande and certi-
fiéd.
:2
2
i
2
3
CHAPTER 71.
of the Inventory and collection of the EFFECTS OF ºcean reasons.
Section 1. Every executor or administrator shall, within three months after his appointment, make and
return into the probate court a true enventory of the real estate and of all the goods, chattels, rights and
credits of º decased, which shall have come to his possesion or knowledge ; excepting only that an exec-
utor, who shall be a residuary legatee, and shall have given bond to pay all the debts and legacies, as pro-
-
vided by law, shall not be required to return an inventory.
SEc. 2. The estate and effects comprised in the inventory, shall be appraised by two or more disiterested
persons appointed by the judge for that purpose, who shall be sworn to the faithful discharge of their trust ;
and if any part of such estate or effects shall be in any other county, appraisers thereof may be appointed
either by the judge of probate having jurisdiction of the case, or by a disinterested justice of the peace of
such other county.
SEC. 3. When appraisers shall be appointed by a justice of the peace, he shall issue an order to them in
subtsance as follows:
Courity of SS.
To of ~, , in said county.
You are hereby appointed to appraise on oath, the estate and effects of , late of
, deceased, which may be in said county ; and when you have performed that service, you are
required to deliver this order, and your doings in pursuance thereof, to , (executor or
administrator as the case may be) of said deceased.
Given under my hand this day of in the year
, Justice of the Peace.
Sec. 4. The appraisers shall set down opposite to each item in such inventory, distinctly, in figures, the
value thereof in money, and deliver the same certified by them, together with their appointment iſ made by
a justice of the peace, to the executor or administrator,
Chap. 71.] ( 381 )
[TITLE 17.
I
2
5
Sec. 5. A separate and distinct inventory and appraisement shall be made and returned as aforesaid, of all
Separate inven-
the household furniture and otl broº h ºral-
le household full Illtu l'è Qind Other perSOnal propert º - t * Sºll Of Il OUISC-
p property which may be allowed to the widow, pursuant to the ºld furniture
- C.
provisions of the preceding chapter, but the same shall not be considered assets in the hands of the executor
or administrator.
SEc. 6. The personal estate of the deceased which shall come into the hands of the executor or administra-
\ - Personal estate,
first chargeable
- . & it! t of
tor, shall be first chargable with the payment of the debts and expenses; and if the goods, chattels, rights .*.*.*.
sufficient, real
estate to be sold.
and credits, in the hands of the executor or administrator, shall not be sufficient to pay the debts of the de-
ceased, and the expenses of administration, the whole of his real estate, except the widow’s dower, or so
much thereof as may be necessary, may be sold for that purpse by the executor or administrator, after ob-
taining license therefor in the manner provided by law.
SEc. 7. The executor or administrator shall have right to the possession of all the real as well as personal
Executor, &c.,
to have right to
estate of the deceased, and may receive the rents, issues and profits of the real estate, until the estate shall #ºn.
al estate.
have been settled, or until delivered over by order of the probate court to the heirs or devisees, and shall
keep in good tenantable repair all houses, buildings and fences thereon which are under his control.
- - n drainist - º t e nerson interested in the estate of
Sec. 8. If any executor or administrator, heir, legatee, creditor or other person intereste Proceeding in
case of suspect-
cd embezzle-
any deceased person, shall complain to the judge of probate, on oath, that any person is suspected to have ment, &c.
concealed, embezzled, conveyed away or disposed of any money, goods or chattels of the decased, or that
such person has in his possession or knowledge, any deeds, conveyances, bonds contracts or other writings,
which contain evidence of, or tend to disclose the right, title, interest or claim of the decased, to any real
or personal estate, or any claim or demand, or any last will and testament of the deceased, the said Judge
may cite such suspected person to appear before the court of probate, and may examine him on eath, upon
the matter of such complaint.
1 SEc. 9. If the person so cited shall refuse to appear and submit to such examination, * to answer such
2
Person cited re-
laint, th t may, by warrant ſor º:
e º & e € COUlſ and answer, &c,
interrogatories as may be put to him touching the matter of such complaint, y; ºy be commit:
º te(i.
96
CHAP. 71.j ( 382 ) [TITLE 17.
8 that purpose, commit him to the common jail of the county, there to remain in close custody until he shall
4 submit to the order of the court, and all such interrogatories and answers shall be in writing, and shall be
5 signed by the party examined and filed in the probate court.
1 SEC, 10. The judge of probate, upon the complaint on oath, of any executor or administrator, may cit”
-Procceding to
compel account - e G - - -
by personsen 2 any person, who shall have been entrusted by executor or administrator, with any part of the estate of the
trusted with any
part of estate.
3 deceased person, to appear before such court, and may require such person to render a full account, on oath,
4 of any money, goods, chattels, bonds, accounts or other papers belonging to such estate, which shall have
5 come to his possession, in trust for such executor or administrator, and of his proceedings thereon ; and if
6 the person so cited, shall refuse to appear and render such account, the court may proceed against him as
7 provided in the preceding section.
yº.utor, 1 SEC. 11. When any debtor of a deceased person shall be unable to pay all his debts, the executor or ad-
&C., to COm-
pound with
debtor.
2 ministrator, with the approbation of the judge of probate, may compound with such debtor, and give him a
3 discharge upon receiving a fair and just dividend of his effects.
... 1 SEc. 12. When any mortgagee of real estate, or any assignee of such mortgage, shall die without having
aged premises
#. #. considered
personal assets, º
&c. 2 foreclosed the right of redemption, all the interest in the mortgaged premises conveyed by such mortgage,
3 and the debt secured thereby, shall be considered as personal assets in the hands of the executor or admin-
4 istrator; and he may foreclose the same, and have any other remedy for the collection of such debt which
the deceased could have had if living, or may continue any proceeding commenced by the deceased for that
5
6 purpose,
Wºº, I SEC, 13. In case of the redemption of any such mortgage, or the sale of the mortgaged premises by vir-
&c., may giv
lcasc. If preini- *
ses bid in, ſor iº e - º •
yhoº, 2 tue of a power of sale contained therein or otherwise, the money paid thereon shall be received by the exe-
&c., to be seized.
3 cutor or administrator, and he shall thereupon give all necessary releases and receipts ; and iſ, upon a sale
4 of the mortgaged premises, the same shall be bid in by the executor or administrator for such debt, he shall
5 be seized of the same, for the same persons, whether creditors, next of kin or others, who would have been
CHAP. 71.] . ( 383 ) - [TITLE 17.
6
l
5
entitled to the money, if the premises had been redeemed or purchased at such sale by some other per-
SQIl,
SEC. 14. Any real estate so held by an executor or administrator, or which may be purchased by him as
- Real estate pur-
chased by exe-
such upon a sale on execution for the recovery of a debt due the estate, may be sold for the payment of...?'...}}
- CCI)SC.
sº
debts or legacies, and the charges of administration, in the same manner as if the deceased had died seized
thereof, upon obtaining a license therefor from the probate court in the manner provided by law.
SEc. 15. If any land so held by an executor or administrator as mentioned in the preceding section, shall
- Iſ such land he
not sold, how
not be sold by him as therein provided, it shall be assigned and distributed to the same persons, and in the jº"
same proportions, as if it had been part of the personal estate of the deceased ; and if, upon such distribu-
tion, the estate shall come to two or more persons, partition thereof may be made between them, in like
manner as if it were real estate which the deceased held in his life time.
SEc. 16. When there shall be a deficiency of assets in the hands of an executor or administrator, and
When suit to be
when the deceased shall, in his life time, have conveyed any real estate, or any right or interest therein, !...".
&c., fraudulent
ly conveyed hy
* * * g g re deceased.
with the intent to defraud his creditors, or to avoid any right, debt or duty of any person, or shall have so “”
conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or
administrator may, and it shall be his duty to commence and prosecute to final judgment, any proper action
or suit, at law or in chancery, for the recovery of the same, and may recover, for the benefit of the credi-
tors, all such real estate so ſaudulently conveyed ; and may also, for the benefit of the creditors, sue and
recover for all goods, chattels, rights or credits which may have been so fraudulently conveyed by the de-
ceased in his liſe time, whatever may have been the manner of such fraudulent conveyance.
Sec. 17. No executor or administrator shall be bound to sue for such estate as mentioned in the preceding
ExcCutors, &c.,
not bound to
section, for the benefit of the creditors, unless on application of creditors of the deceased, nor unless the ºp
application
of creditors, &c.
creditors making the application, shall pay such part of the costs and expenses, or give such security to the
executor or administrator thereſor, as the probate court shall judge just and equitable.
g
Sec. 18. All real estate so recovered as provided in the sixteenth section of this chapter shall be sold for
CHAP. 72.] ( 384 ) [Trtle 17.
Disposition of
estate recovercq.
Commissioners
to examine and
adjust claims,
when to be aſ -
pointed.
Commissioners
to appoint time
and place of ince-
ting, and give
notice. -
judge of probatº
to designate pu-
per in which no-
tice to be pub-
lished, &c.
2 the payment of debts, in the same manner as if the deceased had died seized thereof, upon obtaining a license
3 therefor from the probate court, and the proceeds of all goods, chattels, rights and credits recovered as
4 aforesaid, shall be appropriated in payment of the debts of the deceased, in the same manner as other assets
º
*
5 in the hands of the executor or administrator.
CHAPTER 72.
ÖF THE PAYMENT OF DEBTS AND LEGACIES OF DECEASED PERSONS.
1 SECTION 1. When letters testamentary or of administration shall be granted by any was ºn it shall
2 be the duty of such court to appoint two or more suitable persons to be commissioners, to receive, examine
3 and adjust all claims and demands of all persons against the deceased, except in the following cases:
4 1. When it shall appear that there are no debts existing agains such deceased person :
s 2. When the value of the whole estate, exclusive of the ſurniture and other personal property, allowed to
6 the widow, shall not exceed one hundred and fifty dollars, and shall be assigned for the support of the wid-
7 ow and children, as provided by law, in which case, such assignment shall be deemed a ſull and final ad-
8 ministration, and bar to all claims against the estate.
1 SEc. 2. When such commissioners shall be appointed, it shall be their duty to appoint convenient times
2 and places, when and where they will meet for the purpose of examining and allowing the claims; and
3 within sixty days aſter their appointment, they shall give notice of the times and places of their meeting,
4 and of the time limited for creditors to present their claims, by posting a notice thereof in four public pla-
5 ces in the same county, and by publishing the same at least four weeks successively in some newspaper
6 printed in this state, and in any other manner which the court may direct.
1 Sec. 3. The judge of probate, in the commission issued to the commissioners, shall designate the paper in
sº
2 which such notice shall be published, and the number of places in the several townships in which it shall be
3 required to be posted, and any other mode of notifying which he may deem necessary and proper.
CHAP. 72.] ( 385 ) + [TITLE 17.
I
Sºo. 4. If any commissioner, appointed by the probate court, shall at any time die, remove out of the
- When commis-
Sioner shali die,
- º - o º - e e & - - - & • ? -
state, refuse, or become in any other way incapacitated to perform the duties of his appointment, the court jº.”.”
- his place.
2
3
may appoint another commissioner in his place ; and no further notice of the meetings of the commissioners
4
shall be required, in consequence of such appointment.
1 SEC. 5. The probate court shall allow such time as the circumstances of the case shall require, for the cre.
- Time allawed for
\ presenting
- o º º ºg º e º e . claims.
ditors to present their claims to the commissioners for examination and allowance, which time shall not in
2
the first instance, exceed eighteen months, nor less than six months; and the time allowed shall be stated
3
4 in the commission.
SEC. 6. The probate court may extend the time allowed to creditors to present their claims, as the circum-
I
Time may be ex-
tended, not ex-
& -- tº • ceeding two
stances of the case may require ; but not so that the whole time shall exceed two years from the time of j
2
3
appointing such commissioners.
SEC. 7. On the application of a creditor who has failed to present his claim, if made within six months When commis-
Sioner may be
removed, &c.
2 from the time previously limited, the court may for good cause shown, renew the commission, and allow
I
further time, not exceeding three months, for the commissioners to examine such claim ; in which case the
3
4 commissioners shall personally notify the parties of the time and place of hearing, and, as soon as may be,
5
make return of their doings to the probate court.
1 Sec. 8. In the case mentioned in the preceding section, if the judge of probate shall think proper, instead
When court may
examine and ad-
2 of renewing the commission, he may appoint a time and place for examination and adjustment of such claim, just claim.
3 before himself, and cause personal notice thereof to be given to the parties ; and in that case, he shall pro-
4 ceed to examine and adjust such claim, in like manner as the same might have been done by such commis-
5 sioners.
1 Sec. 9. When a creditor against whom the deceased had claims, shall present a claim to the commissioners,
Set-offs.
2 the executor or administrator shall exhibit the claims of the deceased in offset to the claims of the credi-
97
CHAP. 72.] -. - ( 386 ) . * [Title 17.
3. tor, and the commissioners shall ascertain and allow the balance against or in favor of the estate as they
4 shall find the same to be ; but no claim barred by the statute of limitations, shall be allowed by the commis-
5 sióners in ſavor of, or against the estate, as a set-off or otherwise,
*
Commissioners
to be sworn, and
may administer
oaths. 2 rized to administer oaths to parties and witnesses, when the same shall be required or proper for the inves-
1 Sec. 10. The commissioners shall be sworn to the faithful discharge of their duties, and shall be ‘autho-
3 tigation and trial of questions before them,
Report of com-
1 SEC. 11. At the expiration of the time limited, or as soon thereaſter as they shall have time to complete
missioners. --
the hearing of the claims presented, the commissioners shall make a report of their doings to the probate
court, embracing lists of all the claims presented, or exhibited in offset, and stating how much was allowed,
and how much disallowed, together with the final balance, whether in favor of the creditor or the estate;
5 and the report shall state particularly the manner of giving notice to the claimants.
1 SEC. 12. The commissioners shall have power to try and decide upon abl claims, which by law survive
What claims
tºº
may try &Il e- g g * g * tº g º e * g
clae, &c. 2 against or in favor of executors and administrators, except claims for the possession or title of real estate ;
3
and may examine and allow all demands, at their then present value, which may be payable at a future day,
4 including claims payable in specific articles, and may offset such demands in the same manner in favor of
5 the estate.
1 SEC. 13. Nothing in the preceding section shall be construed to prevent any executor or administrator
Debts payable at
a future day. 2 from paying any debt which shall be payable at a future day according to the terms and at the time specified
3 in the contract.
- q, e a sº e g ſº • - ...Tº tº o
remon, aims SEC 14. Every person having a claim against a deceased person proper to be allowed by the commission-
to present claims
to be barred.
2 ers, who shall not, after the publication of notice as required in the second section of this chapter, exhibi
3 his claim to the commissioners, within the time limited by the court for that purpose, shall be forever bar-
4 red from recovering such demand, or ſrom setting off the same in any action whatever,
CHAP. 72.] ( 387 ) fTITLE 17.
1
5
2
4
5
Sec. 15. When commissioners shall be appointed, as provided in this chapter, for examining and allowing
g No suit to be
commenced a-
g º y * * gainst executor
claims against any estate, no action shall be commenced against the executor or administrator, except ac. gº
- ment, &c.
tions of ejectment, or other actions to recover the seizin or possession of real estate, and actions of replevin,
nor shall any attachment or execution be issued against the estate of the deceased, until the expiration of
the time limited by the court for the payment of debts.
*
SEc. 16. All actions and suits which may be pending against a deceased person at the time of his death, Alions ºft
to he prosecuted
to judgment, and
judgment to be
may, if the cause of action survives, be prosecuted to final judgment, and the executor or administrator may ccrtificq, &c.
be admitted to defend the same, and if judgment shall be rendered against the executor or administrator, the
court rendering it shall certify the same to the probate court, and the amount thereof shall be paid in the
same manner as other claims duly allowed against the estate.
SEC. 17. Nothing in this chapter shall be construed to prevent an executor or administrator, when he shall Executor or ad-
* ministrator not
• e - ſe prevented from
think it necessary, ſrom commencing and prosecuting any action against any other person, or from prose- bringing suits.
cuting any action commenced by the deceased in his life time, for the recovery of any debt or claim to final
**
judgment, or from having execution on any judgment.
SEC. 18. In such case, the defendant may set off any claim he may have against the deceased, instead of
Set-offs in suits
g º tº º • * tº © & - tº by execulors,
presenting it to the commissioners, and all mutual claims may be set off in such action; and if final judgment &c.
shall be rendered in favor of the defendant, the same shall be certified by the court rendering it, to the pro-
bate court, and the judgment shall be considered the true balance.
SEc. 19. When two or more persons shall be indebted on any joint contract, or upon a judgment founded
Joint contract.
on a joint contract, and either of them shall die, his estate shall be liable therefor, and it may be allowed by
the commissioners, as if the contract had been joint and several, or as if the judgment had been against him
alone, and the other parties to such joint contract may be compelled to contribute or to pay the same, if they
would have been liable to do so upon payment thereof by the deceased,
Chap. 72.] ( 388 ) - [TITLE 17.
Qf Appeals from the Decision of Commissioners.
*
º how 1 SEC. 20. Any executor, administrator or creditor may appeal from the decision and report of the commis-
2 sioners, to the circuit court for the same county, if application for such appeal be made in writing, filed in
3 the brobate office within sixty days after the returning of the report of the commissioners. * -
1 SEC. 21. In case of an appeal by a claimant against the estate, he shall within the time aſoresaid, and be-
Fº 2 fore such appeal shall be allowed, give a bond to the adverse party, with sufficient surely to be approved by
appeal.
3 the judge of probate and filed in his office, with a condition that he shall prosecute his appeal to effect, and
4 pay all damages and costs which may be awarded against him on such appeal,
1 Sec. 22. No appeal shall be allowed from the decision and report of the commissioners, except in the ſol-
Cases in which tº
uppeal may be 2 lowing C8 SeS:
allowed.
3 1. When such commissioners shall disallow any claim in ſavor of any creditor, or of the estate, in whole
4 or in part, to the amount of twenty dollars:
5 2. When the commissioners shall allow any claim, in whole or in part, and the sum allowed, being ob-
6 jected to, shall amount to twenty dollars; in either of which cases the aggrieved party may appeal.
1
Notice of appeal SEc. 23. In all cases of appeal from the decision of the commissioners, the person appealing shall give
and of hearing.
\
notice of such appeal, and of the hearing thereof in the circuit court, in such manner as the judge of
2
3
probate shall direct, at least twelve days before the next term thereof aſter the appeal is allowed, if there
4
shall be so many days; and if not, as soon as may be.
Party appealing 1 SEc. 24. The party appealing shall procure and file in the circuit court to which the appeal is taken, at or
to procure and .
file copy of re- -
cord.
2 before the next term of such court after the appeal is allowed, a certified copy of the record of the allow-
3 ance or disallowance appealed from, of the application for the appeal and the allowance of the same, to-
4 gether with the proper evidence that notice has been given to the adverse party according to the order of the
5 probate court.
i Sec. 25. When such certified copy shall have been filed in the circuit court, such court shall proceed to the
.*
CHAP. 72.] ( 389 ) t [TITLE 17,
.2
s
2
l
4
trial and determination of the same according to the rules of law, allowing a trial by jury of all questions
Trial of appeal.
of fact in cases where such trial may be proper; and such court may direct an issue to be made up between
the parties in a brief form when it shall be deemed necessary; and questions of law may be carried to the
Supreme court, and costs may be allowed or denied, in the discretion of the court.
SEC, 26. The final decision and judgment in cases so appealed, shall be certified by the circuit court or su- #","...
batc court, &c.
preme court, as the cose may be, to the probate court; and the same proceedings shall be had thereon, as
if such decision had been reported by the commissioners.
SEc. 27. If any claimant, appealing on account of the disallowance of his claim by the commissioners, When claim
- d
barred.
shall ſail to prosecute his appeal in the circuit court to which the appeal is taken, such claim shall be forev-
er barred, and said court may allow costs to the appellee.
SEC. 28. If the person objecting to a claim, and appealing on account of the allowance of such claim,
When circuit
court shall affirm
shall neglect to prosecute his appeal, the court to which the appeal shall be taken, on motion of the adverse *º-
party, and on his producing an attested copy of the record of the probate court showing such appeal, shall
affirm the allowance appealed from, and may allow costs against the appellant,
Sec. 29. When an executor or administrator declines to appeal from the decision of the commissioners, when any per-
son interested in
estate may ap-
e sº º § e tº º e peal, &c.
any person interested in the estate, as creditor, devisee, legatee or heir, may appeal from such decision in the
same manner a the executor or administrator might have done, and the same proceedings shall be had in the
name of the executor or administrator; provided that the person appealing in such case, shall, before the
appeal shall be allowed, give a bond to be approved by the judge of probate, as well to secure the estate
from damages and costs, as to secure the intervening damages and costs to the adverse party.
Sec. 30. When an executor or administrator shall have a claim against the estate which he represents, Nolice in ease of
appeal by execu-
tor, &c., on dis-
e * . . • * º ~ 2: …, , , ; ... allowance of his
which shall be disallowed by the commissioners, and he shall take an appeal thereſtorm to the circuit court, jºin.
notice of such appeal shall be given to all concerned by personal service thereof, or by publication under an
98
Chap. 72.] º ( 390 ) [Title 17.
4 order of the probate court, in some newspaper which circulates in the county, three weeks successively, the
5 last publication of which shall be four weeks before the hearing of the appeal,
Limitation of Time for Paying Debts.
y
1 Sec. 31. The probate court, at the time of granting letters testamentary, or letters of administration, shall
Order allowing
jº", 2 make an order allowing to the executor or administrator, a time for disposing of the estate and paying the
3 debts and legacies Öf the deceased person, which time shall not in the first instance, exceed one year and
4 six months.
Court may ex- 1 SEC. 32. The probate court may, on the application of the executor or administrator, from time to time, as
lcnd time.
2. the circumstances of the estate may require, extend the time for paying debts and legacies, not exceeding
3 one year at a time, nor so that the whole time allowed to the original executor or administrator, shall ex-
4 ceed four years.
Appiaton or " SEc. 33. When an executor or administrator shall make application to have the time for paying debts and
extension and
notice of hear-
ing. a legaciº extended beyond one year and six months from the time of granting letters testamentary or of ad-
3 ministration, the probate court shall appoint a time for hearitg and deciding on such application, and shali
4 cause notice of such application, and of the time and place of hearing, to be given, to all persons interest.
5 ed, by publication, three weeks successively, in some newspaper to be designated by the court; and no such
6 order extending the time, shall be granted, unless such notice shall have been previously given,
1 SEc. 34. When an executor or administrator shall die, or become incapable of discharging his trust, and a
When new ad-
mistrator ap-
pointed, court &
may extend 2
time, &c.
new administrator of the same estate shall be appointed, the probate court may extend the time for the payment
3 of the debts and legacies beyond the time allowed to the original executor or administrator, not exceeding
4 one year at a time, and not exceeding six months beyond the time which the court might by law allow to
5 such original executor or administrator, upon due notice being given as required in the preceding section.
Of the Distribution of assets among the Creditors, and of Insolvent Estates.
1 SEc. 35. If, after the report of the commissioners, and ascertaining the claims against any estate, it shall
-
º
Chap, 72.] ( 891 ) - [TITLE 17.
2 appear that the executor or administrator has in his possession sufficient to pay all the debts, he shall pay when exceuto,
x - * ~ * * &c., to pay "'
debts, &c.
º
3 the same in full within the time limited or appointed for that purpose.
*
-
1 SEC. 36. If the assets which the executor or administrator may have received, and which can be appro-
. Order of pay-
Illent.
2 priated to the payment of debts, shall not be sufficient, he shall, aſter paying the necessary expenses of ad.
3 ministration, pay the debts against the estate in the following order: 1. The necessary funeral expenses;
4 2. The expenses of the last sickness ; 3. Debts having a preference by the laws of the United States; 4.
5 Debts due to other creditors,
I
SEc. 37. If there shall not be assets enough to pay all the debts of any one class, each creditor shall be
When creditors
to be paid divi-
2 paid a dividend in proportion to his claim ; and no creditor of any one class shall receive any payment until” t
3 all those of the preceding class shall be fully paid.
1 SEc. 38. After the return of the report of the commissioners, and at or before the expiration of the time ...
- - - a - order payment
of dcb is and dis-
tribution of as-
2 limited for the payment of debts, the probate court shall make an order or decree for the payment of the *
3 debts, and the distribution of the assets which may have been received by the executor or administrator, at
4 the time for that purpose among the creditors, as the circumstances of the estate shall require, according to.
5 the provisions of this chapter.
1 SEc. 39. If an appeal shall have been taken from the decision of the commissioners as provided in this Court may sus
pend decree in
case of appeal
2 chapter, and shall remain undetermined, the probate court may suspend the decree for the payment of ****
3 debts mentioned in the preceding section, or may order a distribution among the creditors whose claim shall
4 have been allowed, leaving in the hands of the executor or administrator sufficient assets to pay the claim
5 which may have been disputed and appealed.
SEC, 40. When the disputed claim shall have been finally settled, the probate court shall order the same to
When disputed
claim ordered to
be paid.
I
2 be paid out of the assets retained, to the same extent, and in the same proportion as the claims of the other
3 creditors.
Char. 72.] ( 392 ) [TITLE 17.
1 Sec. 41. If the whole of the debts shall not have been paid by the first distribution,and if the whole assels
Further decree
for distribution.
2 shall not have been distributed, or if other assets shall aſterwards come to the hands of the executor or ad-
3 ministrator, the probate court may from time to time, according to the circumstances of the case, make fur-
*
4 ther decree for the distribution of assets.
When executor, SEc. 42. Whenever a decree shall have been made by the probate court for the distribution of the assets
&c., personally
liable to creditor. -
2 among the creditors, the executor or administrator, after the time of payment shall arrive, shall be person-
3 ally liable to the creditors for their debts, or the dividend thereon, as for his own debt; or he shall be liable
4 on his bond, and the same may be put in suit, on the application of a creditor, whose debt or dividend shall
5 not be paid, as above mentioned.
1 SEC. 43. When the time for paying the debts of a deceased person shall be finally limited by order of the
Notice of time -
iimited for pay- o e -> *
ment of defits, 2 probate court, or by the expiration of the time allowed for that purpose, whether the estate shall be insolv.
3 ent or not, the probate court, may, on the application of the executor or administrator, by an order for that
4 purpose, cause notice to be given to the creditors of the time appointed or limited for the payment of such
5 debts; which notice shall be given by publishing the same at least three weeks successively, in some news-
6 paper to be designated by the court, and in such other manner as the court may direct.
creditor neglect. " SEc. 44. If after notice shall have been given as provided in the preceding section, any creditor shall ne-
ing to demand
debt in two
jºy be 2 glect to demand from the executor or administrator his debt,or the dividend thereon,within two years from
' 3 the time so limited for the payment of the debts, or if the notice shall be given aſter such time, within two
/ 4 years from the last publication, the claim of such creditor shall be forever barred.
£ontingent Claims.
1 Sec. 45. If any person shall be liable as security for the deceased, or have any other contingent claim
‘Contingent -
claims may be
presented.
2
against his estate, which cannot be proved as a debt before the commissioners, or allowed by them, the same
4
may be presented, with the proper proof to the probate court, or to the commissioners, who shal lstate the
5
same in their report, if such claim was presented to them.
CHAP. 72.] ( 393 ) [TITLE 17.
1
or such part as he may have assets sufficient to pay, not exceeding the proportion of the other creditors, in
SEc. 46. If the court shall be satisfied from the report of the commissioners, or by the proof exhibited,
When court
may order suffi-
cicht estate re-
said court may order the executor or administrator to retain in his hands sufficint estate to pay such contin-º.
gent claim when the same shall become absolute, or, if the estate shall be insolvent, sufficient to pay a pro-
portion equal to the dividend of the other creditors.
SEc. 47. If such contingent claim shall become absolute, and shall be presented to the probate court or to ãº": in
- COIn lin
ju: may fe
gº tº ë tº º º e tº e presented, &c.
the executor or administrator, at any time within two years from the time limited ſor other creditors to pre-
sent their claims to the commissioners, it may be allowed by the probate court upon due proof, or it may be
proved before the commissioners already appointed, or before others to be appointed for that purpose, in the
same manner as if presented for allowance before the commissioners had made their report, and the persons
interested shall have the same right of appeal as in other cases.
SEc. 48. If such contingent claim shall be allowed, as mentioned in the preceding section or established on when claimant
entitled to pay-
Illent.
appeal, the creditor shall be entitled to receive payment to the same extent as other creditors, if the estate
retained by the executor or administrator shall be sufficient for that purpose ; but, if the claim shall not be
finally established as provided in the preceding section, or if the assets retained in the hands of the execu-
tor or administrator, shall not be wholly exhausted in the payment of such claims, such assets or the resi-
due of them, shall be disposed of by order of the probate court, to the persons entitled to the same accord.
ing to law,
SEc. 49. If the claim of any person shall accrue or become absolute, at any time after the time limited claim accruing
2. after time limited
ſor presenting
claims, º bc
& a . * & e • * g ... . ... g º º * resented to
for creditors to present their claims, the person having such claim may present it to the probate court and ;. Coll rt.
prove the same at any time within one year after it shall accrue or become absolute, and if established in
the manner provided in this chapter, the executor or administrator shall be required to pay it, if he shall
have sufficient assets for that purpose, and shall be required to pay such part as he shall have assets to pay :
and if real or personal estate shall afterwards wn. to his possession, he shall be required to pay such claim,
=<º-
such time as the probate court may prescribe.
99
Chap. 72.] & w ( 394 ) [TITLE 17.
1 SEc. 50. When a claim shall be presented within one year from the time when it shall accrue, and be es-
When creditor
may recovre of - *
heirs. 2 tablished, as mentioned in the preceding section, and the executor or administrator shall not have sufficient
3 to pay the whole of such claim, the creditor shall have a right to recover such part of his chaim as the ex-
$g 4
executor or administrator has not assets to pay, against the heirs, devisees or legatees, who shall have
5 received sufficient real and personal property from the estate.
perence by exe- 1 SEc. 51. If an action shall be commenced against an execntor or administrator on such claim, as is men-
cutor, &c., to ac-
tion.
2 tioned in the forty-ninth section, and for the payment of which sufficient assets shall not have been retained,
3 as before provided in this chapter, the executor or administrator may give notice under his plea to such ac-
4 tion, that he has ſully administered the estate which has come to his possession or knowledge.
Wººl 1 SEc. 52. If it shall appear on the trial of such action that the defendant had fully administered at the
18Charged, &c.
2 time the claim was presented, and had no assets which could be lawfully appropriated for that purpose, he
3 shall be discharged, and shall have judgment for his costs, but if it shall be found that he had assets suffi-
4 cient to pay only a part of such claim, judgment shall be rendered against him for such sum only, as shall
5 be equal to the amount of assets in his hands,
1 SEc. 53. When the heirs, devisees or legatees, shall have received real or personal estate, and shall be lia-
To what extent
heirs liable.
2
ble for any debts as mentioned in this chapter, they shall be liable in proportion to the estate they may have
*
respectively received; and the creditor may have any proper action or suit in law or equity, and shall have
4 a right to recover his claim against a part or all of such heirs,devisees or legatees, to the amount of the es-
gnt 8 p * O
5
tate they may have respectively received, but no such action shall be maintained, unless commenced within
6 one year ſrom the time the claim shall be allowed or established.
1 SEc. 54. If by the will of the deceased, any part of his estate, or any devisees or legatees shall be made
Contribution,
&c. 2
exclusively liable for the debt, the devisees or legatees shall be liable to contribute among themselves only
gº
3 according to the will.
l
SEC. 55. If all the persons liable for the payment of any such debt, shall not be included in the action or
CHAP. 72.] - - ( 395 ) [Title 17.
2
cuting the same against the executor, administrator, heirs, devisees or legatees, as provided by law, and in
suit as defendants, the suit or action shall not thereby be in any way dismissed or barred ; but the court be-
When all per-
* 8On 8 hºle".
& * º * * includcd in suit,
fore which it shall be pending may order any other parties brought in, by any proper process, and may al- |º be
- - rought 111.
low such amendments as may be necessary to make them defendants, on such terms as the court shall pre-
scribe.
Sec. 56. If more than one person shall be liable as aforesaid, and the oreditor shall bring a suit in chan- proceeding in
chancery.
cery against all or a part of the persons so liable, and the persons liable shall dispute the debt or the amount
claimed, the court of chancery may order an issue to be formed, and direct that the amount may be ascer-
tained by a jury in the circuit court of the county in which the estate is settled ; and the court of chance.
ry shall ascertain and determine how much each is liable to pay, and may award execution therefor.
e tº & e * º º & WV)
SEC. 57. If any of the heirs, devisees or legatees shall die without having paid his just share of the debts, Yºr
&c., liable.
his estate shall be liable therefor, as for his own debt, to the extent to which he would have been liable iſ
living.
SEc. 58. When any of the heirs, devisees or legatees shall pay more than his share of such debt, the oth- Contribution.
er persons liable shall be holden and compelled to contribute their just proportion of the same, as is proyi-
ded in the case of devisees and legatees in the preceding sixty-eighth chapter,
SEc. 59. If the appointment of commisioners to allow claims, shall in any case be omitted, no person, hav-
* If appointment
of commission-
ers onlitted,
claimants not
prevented from
suing.
ing any contingent or other lawful claim against a deceased person, shall thereby be prevented from prose-
such case a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his
death may, on obtaining judgment, have execution against such real or personal estate.
SEC. 60. In no other case, except such as are expressly provided for in this chapter, shall any action be
No action to lic
prosecuted n-
gainst exccutors,
&c., except as
provided in this
chapter.
tion issue against such executor or administrator, or against the estate of the deceased in his hands, during
commenced or prosecuted against an executor or administrator; nor shall any writ of attachmen: or execu-
the time allowed him for the payment of debts, except in the case provided for in the preceding section.
CHAP. 73.] ( 396 ) - [TITLE 17.
What executor,
&c., chargable
with.
To account for
personal estate
at appraisal.
Not to profit by
increase, or losc
by destruction,
&c., without his
fault.
When sele of
personal estate
may be evaded.
Fºxecutor, to ac-
count for pro-
Čeeds of sale
CHAPTER 73.
of RENDERING ACCOUNTS EY EXECUTORS AND ADMINISTRATORs.
1 SECTION 1. Every executor and administrator shall be chargeable in his account, with the whole of the
2 goods, chattels, rights and credits of the deceased, which may come to his possession ; also, with all the
&
3 proceeds of the real estate, which may be sold for the payment of debts and legacies, and with all the in-
4 terest, profit and income which shall, in any way, come to his hands from the estate of the deceased.
1 Sec. 2. Every executor and administrator shall account for the personal estate of the deceased as the same
2 shall be appraised, except as provided in the following sections.
1 SEc. 3. An executor or administrator shall not make profit by the increase, nor suffer loss by the decrease
2 Or destruction, without his fault, of any part of the personal estate ; and he shall account for the excess,
3 when he shall sell any part of the personal estate for more than the appraisal, and if he shall sell any for
4 less than the appraisal, he shall not be responsible for the loss, if it shall appear to be beneficial to the es-
5 tate to sell it.
1 SEc. 4. The probate court, on the application of the executor or administrator, may, at any time, order
2 the personal estate to be sold at private sale or at public auction, when it shall appear to be necessary for
3 the purpose of paying debts, or legacies, or expenses of administration, or for the preservation of the pro-
4 perty, or when it shall be requested by all the heirs residing in this state'; or the court may order such per-
5 sonal estate to be sold, either at private sale or public auction, as the executor or administrator may find
6 most beneficial. If the order be to sell at auction, the probate court shall direct the mode of giving notice
7 of the time and place of sale. - *
1 Sec. 5. When the executor or administrator shall sell personal estate, under an order of the probate court,
2 he shall account for the same at the price for which it shall be sold.
CHAP. 73.] ( , 397 ) [TITLE 17.
2
5
5
I
; :
Sec. 6. No executor or administrator shall be accountable for any debts due to the deceased, if it shall ap- When not ac-
countable for
debts due decea-
sed.
pear that they remain uncollected without his ſault.
SEc. 7. The executor or administrator shall also be accountable for the income of the real estate while it
To account for
income of real
- g - e €State.
shall remain in his possession; and if he shall use or occupy any part of it, he shall account for it as may
be agreed upon between him and the parties interested, or adjudged by the probate court with their assent ;
and if the parties shall not agree upon the sum to be allowed, the same may be ascertained by one or more
disinterested persons to be appointed by the probate court, whose award, being accepted by such court, shall
be final.
Sec. 8. When an executor or administrator shall neglect or unreasonably delay to raise money, by collec- *::::::::::::
2000 Ulſit.8D16. IO Y
loss occasioned
by neglect.
ting the debts or selling the real or personal estate of the deceased, or shall neglect to pay over the money
he shall have in his hands, and the value of the estate shall thereby be lessened, or unnecessary cost or in-
terest shall accrue, or the persons interested shall suffer loss, the same shall be deemed waste, and the dama-
ges sustained may be charged against the executor or administrator in his account, or he shall be liable
therefor on his administration bond.
Sec. 9, Every executor or administrator shall render his account of his administration within one year
Accounts, when
to be rendered.
from the time of his receiving letters testamentary or of administration, unless the court shall give permis-
sion to delay it, in consideration that the time for selling the estate and paying the debts shall be extended ;
and he shall render such further accounts of his administration from time to time, as shall be required by
the court, until the estate shall be wholly settled ; and he may be examined on oath upon any matter rela-
ting to his account.
SEC. 10. The executor or administrator shall be allowed all necessary expenses in the care, management, C *
- ; bmpensation,
--- º: €XCCUl-
tors and admi-
and settlement of the estate, and for his services, such fees as the law provides, together with all extra ex-”
penses; provided, that when the deceased shall, by his will, make some other provision for compensation
100
CHAP. 72.] ( 398 ) [TITLE 17.
lb.
Bond may be
put in suit, on
neglect to render
QCCOUl Ilt.
Execution for
costs, when
awardcd against
executor, &c.
Notice of cxami-
ning accounts of
cxccutors and
administrators.
4 to his executor, that shall be deemed a full compensation ſor his serviees, unless, he shall, by a written in-
strument filed in the probate court renounce all claim to the compensation provided by the will.
5
1 SEc. 11. When no such compensation shall be provided by the willor the executor shall renounce all claim
2 thereto, he shall be allowed commissions upon the amount of personal estate collected and accounted for by
3 him, and of the proceeds of real estate sold under an order of the court for the payment of debts, as follows:
4 for the first thousand dollars, at the rate of five per cent. ; for all above that sum, and not exceeding five
5 thousand dollars, at the rate of two and one-half per cent; and for all above five thousand dollars; at the
6 rate of one per cent. ; and the same commissions shall be allowed to adininistrators; and in all cases, such
7 further allowances may be made as the judge of probate shall deem just and reasonable, for any extraordi-
8 nary services, not required of an executor or administrator in the common course of his duty.
SEc. 12. When an executor or administrator, after being duly cited by the probate court, shall neglect to
2 render his account, he shall be liable on his bond for all damages which may accrue, and his bond may be
3 put in suit by any person interested in the estate.
1 SEC. 13. When costs, in any case, are allowed against an executor or administrator, execution shall not
2 issue against the estate of the deceased in his hands therefor, but shall be awarded against him as for his
3 own debt; and the amount paid by him shall be allowed in his administration account, unless it shall ap-
4 pear that the suit or proceeding, in which the cost shall be taxed, shall have been. prosecuted or resisted
5 without just cause.
1 SEC, 14. Before the administration account of any executor or administrator shall be allowed, notice shall
2 be given to all persons interested, of the time and place of examining and allowing the same ; and such no.
8 tice may be given personally, to such persons as the probate court shall. judge to be interested, or by public
4 notice, under the direction of the court,
CHAP. 74.] . ( 399 ) [Trrle 17.
CHAPTER, 74.
OF THE PARTITION AND DISTRIBUTION OF ESTATES.
1 SECTIon 1. Before any partition or division of any estate among the heirs, devisees or legatees, an allow- Provision f
rovision I or
children under 7
years of age.
2 ance shall be made for the necessary expenses of the support of the children of the deceased, under seven
3 years of age ; and the probate court may order the executor or administrator to retain in his hands suffi-
4 cient estate for that puapose; except where some provision shall have been made by will for their sup-
5 port.
I Sec. 2. After the payment of the debts, funeral charges and expenses of administration, and after the al-
After payment
- c º of debts, residue
2 lowances made for the expense of the maintenance of the family of the deceased, and for the support of;...".
persons entitled
thereto.
3 the children under seven years of age, and after the assignment to the widow of her dower and of her share
4 in the personal estate,or when sufficient effects shall be reserved in the hands of the executor or administra-
5 tor for the above purposes, the probate court shall, by a decree for that purpose, assign the residue of the
6 estate, if any, to such persons as are by law entitled to the same.
1 Sec. 3. In such decree, the court shall name the persons, and the proportions or parts, to which each shall
Decree, what to.
specify.
2 be entitled ; and such persons shall have right to demand and recover their respective shares from the exe-
3 cutor or administrator, or any other person having the same.
1 SEc. 4. Such decree may be made on the application of the executor or administrator, or of any person
No person enti-
tled to share of
2 interested in the estate, but no heir, devisee or legatee shall be entitled to a decree for his share, until pay- *::::"wala
(lebts, &c., pald,
unless bond be
given.
3 ment of the debts and allowances and expenses mentioned in the preceding section shall have been made or
4 provided for, unless he shall give a bond to the judge of probate, with such surety or sureties as the court
5, may direct, to secure the payment of his just proportion of such debts and expenses, or such part thereof as
6 shall remain unprovided for, and to indemnify the executor or administrator against the same.
1, SEG, 5. When the estate, real, or persenal, assigned to two or more heirs, devisees or legatees, shall be in
CHAP. 74.] - ( 400 ) [TITLE 17.
W 2 common and undivided, and the respective shares shall not be separated and distinguished, partition and
hen partition
Illuy be inade.
3 distribution may be made by three discreet and disinterested persons, to be appointed commissioners for that
*
4 purpose by the probate court, who shall be duly sworn to the faithful discharge of their duties before the
5 judge of probate or a justice of the peace, and the judge of probate shall issue a warrant to them for that
6 purpose.
1 SEc. 6. If the real estate shall lie in different counties, the probate court may, if it shall be judged proper,
Proceedings - *.
When real estate
lies in different
counties. 2 appoint different commissioners for each county, and, in such case, the estate in each county shall be divi-
3 ded separately, as if there was no other estate to be divided; but the commissioners first appointed shall,
4 unless otherwise directed by the probate court, make division of such real estate, wherever situated within
5 this state.
1 SEc. 7. Such partition and distribution may be ordered on the petition of any of the persons interested ;
Nº. 2 but before any partition shall be ordered, as directed in this chapter, notice shall be given to all persons in-
cation for part-
tion.
3 terested, who reside in this state, or their guardians, and to the agents, attorneys or guardians, if there be
4 any in this state, of such as reside out of the state, either personally or by public notice as the probate court
5 shall direct.
1 SEc. 8. Partition of the real estate may be made, as provided in this chapter, although some of the origi-
Partition when q
Bhares have
been conveyed.
2 nal heirs or devisees may have conveyed their shares to other persons ; and such shares shall be set to the
3 persons holding the same, in the same manner as they otherwise should have been to such heirs or devisees.
shares how set 1 SEC. 9. The several shares in the real and personal estate shall be set out to each individual in proportion
Out. *-
2 to his right, by such metes and bounds, or description that the same can be easily distinguished; unless any
3 two or more of the parties interested shall consent to have their shares set out, so as to be held by them in
<ss
º
4 common and undivided.
when estate 4 Sec. 10. When any such real estate cannot be divided without prejudice, or inconvenience to the owners,
cannot be divia
ded, court may
assign the whole
*:::::::... 2 the probate court may assign the whole to one or more of the parties entitled to shares therein, who will ac-
CHAP. 74.] ( 401 ) [TITLE 17
3
4
I
cept it, always preferring the male to the females, and, among children, preſerring the elder to the younger;
provided, the party so accepting the whöle, shall pay to the other parties interested their just proportion of
the true value thereof, or shall secure the same to their satisfaction, and the true value of the estate shall be
ascertained by commissioners appointed by the probate court and sworn for that purpose.
Sec. 11. When any tract of land, messuage or tenement shall be of greater value than either party’s share
When tract of
greater value
tº º * e e º e & g - than either priy's
in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the com- . º
11 () w
may be sct off to
one of parties,
missioners appointed to make partition, to either of the parties who will accept it, giving preference as pre-
***.
scribed in the preceding section, provided the party so accepting it shall pay or secure to one or more of
the others such sums as the commissioners shall award to make the partition equal ; and the commissioners
shall make their award accordingly ; but such partition shall not be established by the court, until the sums
so awarded shall be paid to the parties entitled to the same, or secured to their satisfaction.
SEc. 12. When partition of real estate among heirs or devisees shall be required, or dower is to be assign-
2.
* * * tº º e When estate of
ed to a widow in the same, and such real estate shall be in common and undivided with the real estate of deceased lies in
common to be
first sevcred,
any other person, the commissioners shall first divide and sever the estate of the deceased from the estate
with which it lies in common, and such division so made, and established by the probate court, shall be bin-
ding on all the persons interested.
SEc. 13. Before any partition siall be made, or any estate divided, as provided in this chapter, guardians .."...a
minors, &c., ant
agents for non-
residents.
shall be appointed for all minors and insane persons interested in the estate to be divided ; and some dis-
creet person shall be appointed to act as agent for such parties as shall reside out of the estate; and notice
of the appointment of such agents shall be given to the commissioners in their warrant; and notice shall be
given to all the parties interested in the partition, their guardians or agents, by the commissioners, of the
time when they shall proceed to make partition.
SEc. 14. The commissioners shall make report of their proceedings to the probate court in writing; and
101
Chap. 74.]
( 402 ) [Title 17,
Report of com-
misssoners and
proceedings
illereon.
When partition
may be dispens-
ed wiih.
Questions rela-
ting to advance-
Inent how deter-
mined.
Appeal.
Partition when
Cunclusive,
When executor,
&c. may pay ex-
penses of parti-
tion.
When expenses
to be paid by
parties interest-
ed.
2 the court may, for sufficient reasons, set aside such report, and commi the same to the same commissioners,
3 or appoint others; and the report, when finally accepted and established, shall be recorded in the records of
4 the pronº court; and a copy thereof attested by the judge of probate under the seal of the court, shall be
\.
5 recorded in the office of the register of deeds of the county where the lands lie.
1 SEc. 15. When the probate court shall make a decree, assigning the residue of any estate to one or more
2 persons entitled to the same, it shall not be necessary to appoint commissioners to make partition or distri-
3 bution of such estate, unless the parties to whom the assignment shall be decreed, or some of them shall re-
4 quest that such partition be made.
SEc. 16. All questions as to advancements made, or alleged to be made by the deceased to any heirs, may
I
2 be heard and determined by the probate court, and shall be specified in the decree assigning the estate, and
in the warrant to the commissioners, and the final decree of the probate court, or, in case of appeal, of the
3
4 circuit or supreme court, shall be binding on all persons interested in the estate.
1 SEC. 17. Any person aggrieved by any order, decree or denial of a probate court, in pursuance of the pro-
2
visions of this chapter, may appeal there from as provided in other cases.
\ -
1 SEc. 18. The partition, when finally confirmed and established, shall be conclusive on all the heirs and de-
2 visees, and all persons claiming under them, and upon all persons interested.
1 SEc. 19. If, at the time of the partition or distribution of any estate as provided in this chapter, the executor.
2 or administrator shall have retained sufficient effects in his hands, which may lawfully be applied for that
*
3 purpose, the expenses of such partition or distribution may be paid by such executor or administrator, when
it shall appear to the court just and equitable, and not inconsistent with the intention of a testator.
4
1 Sec. 20. But if there are no effects in the hands of the executor or administrator which may be lawfully ap-
2 plied to that purpose, the expenses and charges of the partition, being ascertained by the probate court, shall
3 be paid by all the parties interested in the partition,in proportion to their respective shares or interests in the
&
:
Chap. 75.] * * ( 408 ) [TITLE 17.
4
5
premises; and the proportions shall be settled and allowed by the probate court; and if any one shall neg-
w
lect to pay the sum assessed on him by the court, an execution may be issued therefor against him by such
court, in favor of the persons entitled to the same,
Spc. 21. When the term of a widow entitled to dower or other life estate in the lands of a deceased yº partition
- - * * of reversion
may be made.
person, shall expire, the reversion may be assigned to the persons entitled to the same, and partition there-
of be made, in the manner prescribed in this chapter in relation to other estates of deceased persons.
Sec. 22. When any estate shall be assigned by decree of the court, or be distributed by commissioners, as when .
º - may appoin
agent for
non-resident,
provided in this chapter, to any person residing out of this state and having no agent therein, and it shall
be necessary that some person shoald be authorized to take possession and charge of the same for the bene-
f
fit of such abset person, the court may appoint an agent for that purpose, and authorize him to take charge
of such estate, as well as to act for such absent person in the partition and distribution.
Sec. 23. Such agent shall give a bond to the judge of probate, to be approved by him, faithfully to man- Agent, ºv,
bond.
age and account for such estate, before he shall be authorized to receive the same, and the court appointing
such agent, may examine and allow his account, on applicatton made by him, or by any person interested,
and may allow a reasonable sum out of the profits of the estate for his services and expenses.
3
4
CHAPTER 75.
OF PROBATE BONDS AND THE PROSECUTION OF THEMſ.
SECTION 1. All bonds, required by law to be taken in or by order of the probate court, shall be for such
Probate bonds,
d wi - - f how taken.
sum and with such sureties as the judge of probate shall direct, except when the law otherwise prescribes ;
-
and such bonds shall be for the security and benefit of all persons interested, and shall be taken to the judge
of probate, except where they are required by law to be taken to the adverse party.
SEC.2. A suit may be brought on the bond of any executor or administrator by any creditor, when the
Üh AP. 75.] ( 404 ) [Title 17.
When suit may 2 amount due to him has been ascertained and ordered by the decree of distribution to be paid, if the executor
be brought by -
creuitor on bond
of executor. 3 or administrator shall neglect to pay the same when demanded.
When suit may
he brought b g - * & . .
º "y I Sec. 3. Such a suit may be brought by any person as next of kin to recover his share of the personal es:
2 tate, aſter a decree of the probate court declaring the amount due to him, if the executor or administrator
3 shall fail to pay the same when demanded.
^When court I
njay authorize
any person in-
terested to bring
suit. 2
SEc. 4. When it shall appear, on the representation of any person interested in the estate, that the exe-
cutor or administrator has ſailed to perform his duty in any other particular than those before specified, the
3
judge of probate may authorize any creditor, next of kin, legatee or other person aggrieved by such mal-
4 administration, to bring an action on the bond.
1 SEc. 5. Whenever an executor or administrator shall refuse or omit to perform any order or decree made
when executor,
&c., shall refuse
to perform. 2 by a judge of probate having jurisdiction, for rendering an account, or upon a final settlement, or for the
3 payment of debts, legacies, or distributive shares, such judge of probate may cause the bond of such execu-
4 tor or administrator to be prosecuted, and the moneys collected thereon shall be applied in satisfaction of
5 such order or decree, in the same manner as such moneys ought to have been applied by such executor or
6 administrator.
1 Sec. 6. In all suits upon such bonds, the writ and proceedings shall be in the name of the judge of probate,
Suits on bonds
to be in the
º: judge of 2 and when the action is brought for the benefit of any particular person as creditor next of kin or legatee,
3 as provided in this chapter, the execution shall express that it is for tie use of such creditor, next of kin, or
4 legatee, and in such case, the person for whose use the action is brought shall be deemed the plaintiff.
dº
1 Sec. 7. On the application of any person authorized by this chapter to commence a suit on such bond,
When judge gº - - - . . -- e
... . 2 the judge of probate may grant permission to such person to prosecute the same, and shall thereupon ſurnish
ID is S. On to SU C
bond.
3 to the applicant, on his paying the legal fees, a certified copy of the bond, together with a certificate that
4 permission has been granted to prosecute it, and the name and residence of the applicant.
CHAP. 75.] ~. ( 405 ) - [Trris 17.
1 SEc. 8. If judgment shall be rendered for the plaintiff in any suit upon such bond, brought for the benefit
Judgment in
\ suit for benefit
t * * g of particular
2 of any particular person, the court shall award execution for the amount due to such person, with costs of person*
3 suit.
1 Sec. 9. If judgment shall be rendered for the plaintiff in any suit upon such bond brought by the judge of
*
Judgment, &c.,
in other cases.
2 probate for any breach thereof in not performing any order or decree of the judge of probate, as mentioned
3 in the fiſth section of this chapter, execution shall be awarded for the full value of all the estate of the de-
4 ceased that shall have come to the hands of such executor or administrator, and for which he shall not have
5
satisfactorily accounted, and for all such damages as shall have been occasioned by his neglect or mal-ad-
6
ministration, with costs of suit.
SEC. 10. All moneys received on any execution issued on a judgment in favor of the judge of probate as
Disposition of
e e º * º - moneys collect-
mentioned in the preceding section, shall be paid over to the co-executor or co-administrator, if there be any, *
2
3
or to such person, other than the defendant therein, as shall then be the rightful executor or administrator,
4
and such moneys shall be assets in his hands to be administered according to law.
SEc. 11. Any person who may be injured by the breach of the conditions of such bond, may afterwards,
When seire fa-
e e • tº tº & ge º cias may be pro-
from time to time, sue out and prosecute a scire facias in his own name, on the judgment which may have secuted.
2
been rendered for the penalty of such bond; and, in such scire facias, shall assign and set forth the breach-
es on which he relies; and may therein recover such damages as he may prove with costs.
Sec. 12. Claims for damages, on account of the breach of the conditions of any bond, may be prosecuted
tº º - By whom
by any executor, administrator or guardian, in behalf of those he may represent, in the same manner as by:"...."
- of condition may
be prosceuted.
persons living, and of full age; and such claims may be prosecuted against the representatives of deceased
persons in the same manner as other claims against such deceased persons.
4.
*
...t. - 102
Chap. 76.] ( 406 ) . - [TITLE 17.
When court
may decree con-
veyance by exe-
cutor, &c.
#844, p. 113.
Notiee oſ peti-
tion and hear-
ing.
Examination of
petitioner, &c.
When decree.
ior conveyance.
to be made.
Appeal from de-
cree.
chapTER 76,
OF me conveyANCE of REAL ESTATE By Executons AND ADMINISTRATORS IN CERTAIN cases.
SECTION 1. When any person who is bound by a contract in writing to convey any real estate, shall die
before making the conveyance,the probate court may make a decree authorizing and directing the executor
or administrator to convey such real estate to the person entitled thereto, in all cases where such deceased
person, if living, might be compelled to execute such conveyance,
SEC. 2. On the presentation of a petition by any person claiming to be entitled to such conveyance from
any executor or administrator, setting forth the facts upon which such claim is predicated, the judge of pro-
bate shall appoint a time and place for hearing such petition, and shall order notice of the pendney thereof
and of the time and place of hearing, to be published at least six successive weeks before such hearing, in
such newspaper or newspapers in this state as he may deem necessary.
SEc. 3. At the time and place appointed for such hearing, or at such other time as the same may be ad-
2 journed to, upon proof by affidavit of the due publication of the notice, the court shall proceed to a hearing,
3
3.
and all persons interested in the estate may appear before the probate court and defend against such peti.
tion; and the court may examine on oath the petitioner, and all others who may be produced before him
for that purposes
Sec. 4. After a full hearing upon such petition, and examination of the facts and circumstances of such
claim, iſ the judge of probate shall be satisfied that the petitioner is entitled to a conveyance of the real
estate described in his petition, according to the provisions of this chapter he shall thereupon make a decree,
authorizing and directing the executor or administrator to make and execute a conveyance thereoſ to such
petitioner.
Sec. 5. Any person interested may appeal from such decree to the circuit court for the same county, as in
other cases; but if no appeal be taken from such decree within the time limited therefor by law, or if such
CHAP. 76.] ( 407 ) [TITLE 17.
3 decree shall be affirmed on appeal, it shall be the duty of the executor or administrator to execute the
4 conveyance according to the direction contained in such decree, and a certified copy of the decree shall be
5 recorded with the deed, in the office of the register of deeds in the county where the lands lie, and shall be
6 evidence of the correctness of the mºre and of the authority of the executor or administrator to
7 make the conveyance,
^
1 Sec. 6. If, upon a hearing in the probate court as herein before provided, the judge of probate shall
When petition
to be dismissed.
2 doubt the right of the petitioner to have a specific performance of the contract, he shall dismiss the petition
3 without prejudice to the rights of the petitioner, who may at any time thereaſter have a bill in chancery to
4 enforce a specific performance of the contract, as hereinaſter provided.
I SEc. 7. Whenever any person who is bound by a contract in writing to convey any real estate, shall die
Bulls in chance-
f 2cific
• e e - T - #.
2 before making the conveyance, the person entitled thereto may have a bill in the court of chancery, to en-
3 ſorce a specific performance of the contract by the heirs, devisees, or the executor or administator of the
4 deceased party who made such contract
1 SEc. 8. The court of chancery shall hear and determine every such case brought in said court, according
Decree in chan-
- cery.
2 to the course of proceedings in chancery, and shall make such decree therein as justice and equity shall re-
3 quire,
1 SEc. 9. If it shall apppear that the complainant is entitled to have a conveyance, the court may authorize
Who to be au-
2 and require the executor or administrator of the deceased party to convey the estate in like manner as the thorized to make
conveyance.
3 deceased party might and ought to have done,iſ living; and if the heirs or devisees of such deceased person,
4 or any of them, shall be within this state, and competent to act, the court may require them, or either of
5 them, instead of the executor or administrator, to convey the estate in the manner before mentioned, or may
6 require them, or either of them, to join in such conveyance with the executor or administrator.
1 Sec. 10. Every conveyance made in pursuance of a decree of the probate court or the court of chancery
CHAP. 76.] ( 408 ) [TITLE 17.
Eſfect of con-
vey ance.
Certified copy of
decree may be
recorded, effect
‘ef record.
Decree may be
enforced by pro-
CeSS.
In case of death
of person enti-
tled, his heirs,
&c., may cont-
mence or prosc-
cute proceed-
ings.
2 as provided in this chapter, shall be effectual to pass the estate contracted for, as fully as iſ the contracting
3 party himself was still living, and then executed the conveyance.
1 SEc. 11. A copy of the decree ſor a conveyance made by the probate court, and duly certified and recor-
2 ded in the registry of deeds in the county where the lands lie, or a copy of the decree of the court of chan-
3 cery for that purpose, duly certified by the register of said court and recorded as aforesaid, shall give the
4 person entitled to such conveyance, a right to the possession of the lands contracted for, and to hold the
5 same according to the terms of the intended conveyance in like manner as if they had been conveyed in
6 pursuance of the decree. - *
1 SEc. 12. The recording of any decree as provided in the preceding section, shall not prevent the court
2 making such decree from enforcing the same by any proper process,according to the course of proceedings
3 thereon.
1 Sec. 13. If the person to whom the conveyance was to be made, shall die before the commencement
2 of proceedings according to the provisions of this chapter, or before the coveyance is completed, any
3 person who would have been entitled to the estate under him as heir, devisee or otherwise, in case the con-
4 veyance had been made according to the terms of the contract, or the executor or administrator of such de-
5 ceased person, for the benefit of the person so entitled, pnay commence such proceedings, or may prosecute
6 the same if already commenced ; and the conveyance shall thereupon be so made as to vest the estate in
7 the same persons who would have been so entitled to it, or in the executor or administrator for their benefit.
CHAP. 77.] ( 409 ) [TITLE 18.
TITLE XVIII.
OF TITLE TO REAL ESTATE BY SPECIAL PRovisions of Law.
Chapter 77—Of the Sale of Lands for the payment of Debts, by Executors, Administrators and Guardians.
$6 78–Of the sale of Lands of Minors and other Persons under Guardianship, and securing the Pro-
ceeds for their Use.
4 & 79—Of the sale of Real Estate on Executions.
CHAPTER 77.
of THE SALE of LANDS FOR THE PAYMENT OF DEBTs, BY EXECUTORs, ADMINISTRATORS AND GUARDIANS.
1
4
SECTION 1. When the personal estate of any deceased person, in the hands of his executor or administra- When real
€n real CS-
tate may be sold
for payment of
tor, shall be insufficient to pay all his debts, with the charges of administering his estate, his executor or *
administrator may sell his real estate for that purpose, upon obtaining a license therefor, and proceeding 1843, p. 172.
•
therein in the manner hereinafter provided.
SEc. 2. In order to obtain such license, the executor or administrator shall present a petition to the probate Petition to b
l C
presented; what
to set forth.
court from which he received his appointment, setting forth the amount of personal estate that has come to
&
his hands and how much thereof, if any, remains undisposed of, the debts outstanding against the deceased
“e
as far as the same can be ascertained ; a description of all the real estate of which the testator or intestate
- 1840, p. 65.
died seized, and the condition and value of the respective portions or lots, which petition shall be verified
by the oath of the party presenting the same.
Sec. 3. If it shall appear by such petition that there is not sufficient personal estate in the hands of the
Order to show
cause why li-
executor Or administrator to pay the debts outstanding against the deceased, and the expenses of administra: . *.
tion, and that it is necessary to sell the whole or some portion of the real estate for the payment of such.
debts, the judge of probate shall thereupon make an order, directing all persons interested in the * *
103
CHAP. 77.]
( 410 ) [TITLE 18.
Copy of order
to be served or
published.
Hearing.
Petitioner and
witnesses may
be examined.
Probate court
may license
sale of whole or
part of real es-
tile .
Executor, &c.,
$6 give bond in
Certain cases be-
fore sale.
5
appear before him at a time and place therein to be specified, not less than six weeks, and not more than ten
weeks from the time of making such order, to show cause why a license should not be granted to the exe-
cutor or administrator applying therefor, to sell so much of the real estate of the deceased as shall be nec.
essary to pay such debts.
Sec. 4. A copy of such order to show cause shall be personally served on all persons interested in the es-
tate, at least fourteen days before the time appointed for hearing the petition, or shall be published at least
four successive weeks in such newspaper as the court shall order, provided, however, if all persons interes-
ted in the estate shall signify, in writing, their assent to such sale, the notice may be dispensed with.
SEc. 5. The judge of probate, at the time and * appointed in such order, or at such other time as the
hearing shall be adjourned to, upon proof of the due service or publication of a copy of the order, or upon
filing the consent in writing to such sale of all the persons interested, shall proceed to the hearing of such
petition, and if such consent be not filed, shall hear and examine the allegations and proofs of the petitioner,
and of all persons interested in the estate, who shall think proper to oppose the application.
SEc. 6. The executor or administrator may be examined on oath, and witnesses may be produced and ex-
amined by either party, and process to compel their attendance and testimony may be issued by the judge
of probate, in the same manner, and with the like effect as in other cases. * -
•
SEc. 7. If it shall appear to the court that it is necessary to sell a part of the real estate, and that by a sale
of such part, the residue of the estate, or some specific part or piece thereof, would be greatly injured, said
court may authorize the sale of the whole estate, or of such part thereof as may be judged necessary, and
most for the interest of all eoncerned.
SEc. 8. When the executor or administrator is authorized to sell more than is necessary for the payment
of debts, he shall, before the sale, give bond to the judge of probate with sufficient sureties to account for
all the proceeds of the sale that shall remain after payment of the debts and charges, and to dispose of the
same according to law; and in all cases where license is granted for the sale of real estate, the judge of
CHAP. 77.] ( 411 ) [TITLE 18.
5
probate may require a further bond from the executor or administrator, when he shall deem it necessary.
Sec. 9. The proceeds of any real estate sold for the payment of debts, and the charges of administration, º:::::::"
and accounted
for as such. ”
as provided in this chapter, shall be deemed assets in the hands of the executor or administrator, in like
manner as if the same had been originally part of the goods and chattels of the deceased ; and the execu-
tor or administrator, and the sureties in his administration bond, shall be accountable and chargeable there-
for.
Sec. 10. No license to sell real estate shall be granted, if any of the persons interested in the estate shall when no li-
* cense to be
granted on bond
being given.
give bond to the judge of probate, in such sum and with such sureties as he shall direct and approve, with
condition to pay all the debts, and the expenses of administration, so far as the goods and chattels, rights and -
credits of the deceased shall be insufficient therefor, within such time as the judge of probate shall direct.
SEc. 11. The bond mentioned in the preceding section, shall be for the security, and may be prosecuted
For whose be-
nefit bond may
e ‘. © tº * be prosecuted.
for the benefit of the creditors, as well as the executor or administrator. p
SEc. 12. If the judge of probate shall be satisfied, after a full hearing upon the petition, and an examina-
Wheu court
- - may order sule.
tion of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the
real estate is necessrry for the payment of valid claims against the deeeased, and charges of administration,
or if such sale be assented to by all persons interested, he shall thereupon make an order of sale, authori-
zing the executor or administrator to sell the whole, or so much, and such part of the real estate described
*
in the petition, as he shall judge necessary or beneficial.
SEC. 13. The order shal specify the lands to be sold; and the judge of probate may therein direct the or-
Order of sale to
e o tº a tº specify lands to
der in which several tracts, lots or parcels, shall be sold ; and if it appear that any part of such real estate ...º.º.º.
order of the sale,
3 has been devised, and not charged in such devise with the payment of debts, the judge of probate shall or-
4.
der that part descended to heirs, to be sold before that so devised ; and if it appear that any lands devised or
descended, have been sold by the heirs or devisees, then the lands in their hands remaining unsold shall be or.
dered to be first sold.
CHAP. 77.]
( 412 ) [Title is.
Certified º of
order to be deli–
vered to excCu-
tor, &c.
Sale oſ rever-
sion of dower.
Notice eſ sale.
Where, when,
and how sale to
be made.
Executor, &c.,
forbidden to
purchase.
Crcd.it on Salc.
2
$
Sec. 14. Upon the making of such order, and the filing with the judge of probate of such bond as is re-
quired by the provisions of this chapter, a certified copy of the order of sale shall be delivered by the
judge of probate to the executor or administrator, who shall thereupon be authorized to sell the real estate
*
as therein directed, within one year after the making of the order, but not after that period.
Sec. 15. License to sell real estate, as provided in this chapter, may extend to the reversion of the dower
of the widow of a deceased person, and if such reversion be not sold with the other real estate, it may be sold
after the expiration of the widow’s term.
Sec. 16. When a sale is ordered, notice of the time and place of holding the same shall be posted up in
three of the most public places in the township or ward in which the land is situated, and shall be published
in a newspaper, if there be one printed in the same county, and if there be none, then in the state. paper
for six weeks successively next before such sale ; in which notice the lands and tenements to be sold shall be”
described with common certainty.
SEC. 17. Such sale shall be in the county where the lands are situated, at public vendue, between the hours
of nine o'clock in the morning, and the setting of the sun the same day.
SEc. 18. The executor or administrator making the sale, and the guardian of any minor heir of the de-
ceased, shall not directly or indirectly purchase, or be interested in the purchase of any part of the real es-
tate so sold, and all sales made contrary to the provisions of this section shall be void ; but this section shall
not prohibit any such purchase by a guardian for the benefit of his ward.
*y
SEc. 19. On such sale, the executor or administrator may give such length of credit, not exceeding three
years, and for not more than three-fourths of the purchase money, as shall seem best calculated to produce
the highest price, and shall have been directed, or shall be appoved by the judge of probate, and shall se-
cure the moneys ſor which credit is given, by a bond of the purchaser, and by a mortgage of the premises
sol d.
CHAP. 77.] * ( 418 ) x [TITLE. 18.
1 Sec. 20. The executor or administrator shall immediately make a return of his proceedings upon such or-
Return by exe-
2 der of sale, to the judge of probate granting the same, who shall examine the proceedings, and may also #
upon.
3 examine such executor or administrator or any other person on oath, touching the same ; and if he shall be
4 of opinion that the proceedings were unfair, or that the sum bid is disproportionate to the value, and that a
5 sum exceeding such bid, at least ten per cent, exclusive of the expenses of a new sale, may be obtained,
6 he shall vacate such sale, and direct another to be had ; of which notice shaft be given, and the safe shall
7 be in all respects conducted as iſ no previous sale had taken place.
1 Sec. 21. If it shall appear to the judge of probate that the sale was legally made and fairly conducted, and
-- If sale fair, &c.,
g e tº º wº & #: of º :
2 that the sum bid was not disproportionate to the value of the property sold, or if disproportionate, that a ..." to be
IIlºl Cie,
3 greater sum as above specified,cannot be obtained, he shall make an order confirming such sale and direct-
4 ing conveyances to be executed.
1 SEC. 22. Every executor or administrator authorized to sell real estate as provided in this chapter, shall, E &
* Xecutor, &c.,
to take oath be-
(* g e & fore sale,
2 before making such sale, take and subscribe an oath before the judge of probate or some other officer au"
3 thorized to administer oaths, that in disposing of the real estate which he is licensed to sell, he will exert his
4 best endeavors to dispose of the same in such manner as will be most ſor the advantage of all persons inter-
5 ested; which oath shall be filed with the judge of probate before confirmation of the sale.
1 SEc. 23. An affidayit of the executor or administrator, or of some other person having knowledge of the
Affidavit of no-
tice of sale.
2 fact, that notice of any such sale was given as provided in this chapter, being made before the judge of
3 probate or some other officer authorized to administer oaths, and filed and recorded in the probate court,
4 together with a copy of the notice,shall be admitted as evidence of the time place and manner of giving the
5 notice.
1 SEC. 24. If at the time appointed for any such sale, the executor or administrator shall deem it for the in-
g Q Postponement
2 terest of all persons concerned therein, that the sale should be postponed, he may adjourn the same from **
3 time to time, not exceeding in all three months.
104
Char. 77.] ( 414 ) [TITLE 18.
Notice of
adjournment of
ſale,
Sale for pay-
ment of legacies
Inay be authori-
zed.
Interest in land
held under con-
tract may be
sold.
Sale to be made
subject to pay-
ments to become
due, and indem-
nity to be given.
Condition of
bond of indem-
nity.
1 Sec. 25. In case of such adjournment, notice thereof shall be given by a public declaration at the time
2 and place first appointed for the sale; and iſ the adjournment shall be for more than one day, ſurther notice
8 shall be given by posting, or publishing the same, or both, as the time and circumstances may admit,
*
1 SEC 26. When a testator shall have given any legacy, by a will that is effectual to pass, or charge real es-
2 tate, and his goods, chattels, rights and credits, shall be insufficient to pay such legacy, together with his
3 debts and the charges of administration, the executor or administrator, with the will annexed, may be licens-
4 ed to sell his real estate for that purpose, in the same manner and upon the same terms and conditions, as are
\
5 prescribed in this shapter, in the case of a sale for the payment of debts.
1 Sec. 27. If a deceased person at the time of his death, was possessed of a contract for the purchase of
2 land, his interest in such land, and under such contract, may be sold on the appliction of his executor or
3 administrator, in the same cases, and in the same manner, as if he had died seized of such land; and the
4 same proceedings may be had for that purpose as are prescribed in this chapter, in respect to lands of which
5 he died seized, except as hereinafter provided.
1 SEc. 28. Such sale shall be made subject to all payments that may thereafter become due on such contract;
2. and if there be any such payments thereafter to become due, such sale shall not be confirmed by the
3 judge of probate, until the purchaser shall execute a bond to the executor or administrator for his ben-
4 efit and indemnity, and for the benefit and indemnity of the persons entitled to the interest of the deceased
5 in the lands so contracted for, in double the whole amount of payments thereafter to become due on such
6 contract, with such sureties as the judge of probate shall approve.
I Sec. 29. Such bond shall be conditioned that such purchaser will make all payments for such land, that
2 shall become due after the date of such sale, and will fully indemnify the executor or administrator, and
3 the persons so entitled, against all demands, costs, charges and expenses, by reason of any covenant or
4 agreement contained in such contract; but if there be no payment thereafter to become due on such con-
5 tract, no bond shall be required of the purchaser-
Chap. 77.] ( 415 ) [TITLE 18.
l
2
Sec. 30. Upon the confirmation of such sale, the executor or administrator shall execute to the purchaser
Assignment of
.# *
{º} - g - o e tº • ri ltg O Ull Clº -
an assignment of such contract; which assignment shall vest in the purchaser, his heirs and assigns, all guo put
the right, interest and title of the persons entitled to the interest of the deceased in the land sold, at the time
of the sale ; and such purchaser shall have the same rights and remedies against the vendor of such land,
as 'the deceased would have had, if he were living,
*
SEc. 31. The proceeds of every such sale of the interest of the deceased person in lands under contract
Proceeds of
sale, how dispo-
as hereinbefore mentioned, shall be disposed of in all respects in the same manner as the proceeds of the * *
sale of lands of which the deceased died seized, according to the provisions of this chapter.
SEC. 32. All sales and conveyances of land made by executors or administrators, pursuant to the provis.
Sales to be made
subject to incum-
ſº & e - § * - © tº brances.
ions of this chapter, shall be subject to all charges thereon, by mortgage or otherwise, existing at the time
of the death of the testator or intestate, and in case the estate of the deceased shall be in any way liable
for the amount secured by any such mortgage, or for any such charge, such sale shall not be confirmed by
the judge of probate, until the purchaser shall execute a bond to the executor or administrator, as required in.
this chapter in the case of a sale of a contract for the purchase of land, on which payments are to become
*
due.
Sec. 33. When an executor or administrator shall be appointed in any other state, or in any foreign coun-
Foreign execu-
tor, &c., may
try, on the estate of any person dying out of this state, and no executor or administrator thereon shall be # copy of his
appointment,
appointed in this state, the foreign executor or administrator may file an authenticated copy of his appoint-
ment, in the probate court of any county in which there may be any real estate of the deceased.
SEc. 34. Upon filing such authenticated copy of his appointment, such foreign executor or administrator
may be licensed by the same probate court to sell real estate ſor the payment of debts or legacies, and char- May he licensed
to Sell lands for
- ~ . payment of
§ tº e & - & tº g * debts and lega-.
ges of administration, in the same manner, and upon the same terms and conditions, as are prescribed in the cies.
case of an executor or administrator appointed in this state, excepting in the particulars in which a differ.
ent provision is hereinafter made.
GHAp. 57.]
( 416 ) [Title 18
When no fur-
thef bond neces-
sary.' ' ' ' '
When bond re-
quired, and
what to contain.
When licensed
to sell more
than is necessa-
ry to pay debts,
&c., bond to be
given.
Guardian, when
may be licensed,
to sell real es-
tate, of ward,
Court may li-
cense sale of
whole or part of
Ward's estate.
i
3
Sec. 35. When it shall appear to the court granting the license, that such foreign executor or administra.
tor is bound, with sufficient surety or sureties in the state or country in which he was appointed, to account
for the proceeds of such sale, for the payment of debts or legacies, and charges of administration, and a co-
py of such bond duly authenticated, shall be filed in such probate court, no further bond for that purpose
shall be required of him by the court.
SEC. 36. If an authenticated copy of such bond shall not be filed as mentioned in the preceding section,
such foreign executor or administrator, before making such sale, shall give bond with sufficient sureties to
the judge of probate, with condition to account for and dispose of the proceeds of such sale for the payment
of the debts or legacies of the deceased, and the charges of administration, according to the law of the state
or country in which he was appointed.
SEc. 37. When such foreign executor or administrator is licensed to sell more than is necessary for the
payment of debts, legacies and charges of administration, as before provided for in this chapter, he shall,
8 before making the sale, give bond with sufficient sureties to the judge of probate, with condition to account to
4
l
2
him for all the proceeds of the sale that shall remain after payment of the said debts, legacies and charges, and
º
to dispose of the same according to law.
Sec. 38. When the goods, chattels, rights and credits in the hands of the guardian of any minor, or of any id-
iot or insane person, or any person under guardianship on account of excessive drinking, gaming, idleness or
debauchery, shall be insufficient to pay all the just debts of his ward, with the charges of managing his estate,
the guardian may be licensed by the probate court of the county in which such guardian was appointed, to
sell his real estate ſor that purpose, in like manner and upon the same terms and conditions, as are prescribed
in this chapter in the case of a sale by executors or administrators, excepting in the particulars in which a dif-
ſerent provision is hereinaſter made.
Sec. 39. If itshall be represented by the guardian in his petition, and shall appear to the court, that it is ne-
cessary to sell some part of the real estate of the ward, and that by such partial sale the residue of the real es-
Char. 77.j ( 417 ) [TITLE 18.
3
4
5
2
3
4
tate or of some specific piece or part thereof, would be greatly injured, the court'may license a sale of the
whole of the estate, or of such part thereof as the court shall judge necessary, and most for the interest of
all concerned.
SEc. 40. The guardian shall give bond to the judge of probate to account for the surplus of the proceeds ofºlian to give
OI) (
the sale, in like manner as is prescribed in this chapter in the case of a like sale by an executor or administra.
tor.
Sec. 41. No license shall be granted to any guardian, to sell real estate of his ward as provided in this when license
not to be grant-
ed without the
e e o º • , anprobation of
chapter, in any case excepting that of minors, unless the superintendents of the poor of the county of which tºº,
of poor.
the ward is an inhabitant, or in which he resides, shall certiſy to the judge of probate, in writing, their ap-
probation of such proposed sale, and that they deem it necessary.
Sec. 42. All those who are next of kin, and heirs apparent or presumptive of the ward, shall be consider-
Who entitled to
- * notice of hear-
& º e II) e
ed as interested in the estate, and may appear as such and answer to the petition of the guardian ; and when"
personal notice of the time and place of hearing the petition, is required to be given, they shall be notified
as persons interested, according to the provisions respecting similar sales by executors and administrators,
contained in this chapter.
SEc. 43. When any minor, insane person or spendthriſt, residing out of this state, shall be put under guar-
- - - * . - - Foreign guar-
dian #.º.
§ e e e & e - © ë e tº copy of his ap-
dianship in the state or country in which he resides, and shall have no guardian appointed in this state, the poſitiment,
foreign guardian may file an authenticated copy of his appointment in the probate court ſor any county in
which there may be any real estate of the ward.
SEC. 44. Aſter filing an authenticated copy of his appointment, such foreign guardian may be licensed to
. *: *
sell the real estate, for the payment of the debts of the ward, and the charges af managing his estate, in the ...”
same manner, and upon the same terms and conditions as are prescribed in this chapter in the case of a guar-
*
dian appointed in this state, excepting in the particulars wherein a different provision is hereinafter made.
105
C&AP. 77.] ( - 418 ) - [True 18.
When bond 1 SEc. 45. When it shall appear to the judge of probate, that the foreign guardian is bound, with sufficient
º: . wºn *
DOt. tº we e
2 surety or sureties, in the state or country where he was appointed, to account for the proceeds of such sale, and
3 an authenticated copy of such bond shall be filed in the probate court, no further bond shall be required here ;
4 otherwise, he shall give bond, in like manner as is prescribed in this chapter in the case of sales by foreign ax-
. 5 cutors or administrators,
•
when licensed I SEc. 46. When such foreign guardian is authorized to sell more than is necessary to pay the debts and
to sell more than - *
is necessary to
pay debts, bond g * , ~ tº º g º
to be given. 2 charges, he shall, before making the sale, give bond with sufficient surety or sureties, to the judge of probate,
3 with condition to account before such judge, for all the proceeds of the sale that shall remain, after pay-
4 ment of the said debts and charges, and to dispose of the same according to law.
* SEC. 47. En all cases of a sale by an executor, administrator or guardian, of part or the whole of the
Surplus to be.
considered real’ 2.
CState. real estate of his testator, intestate or ward, under a license granted by any probate court, by virtue of the
3 provisions of this chapter, whether such executor, administrator or guardian was appointed in this state or
4 elsewhere, the surplus of the proceeds of the sale, remaining on the final settlement of the accounts, shall
5 be considered as real estate, and disposed of among the persons, and in the same proportions, as the real es:
6 tate would have been by the laws of this state, if it had not been sold.
1 SEC. 48. Every guardian, whether oppointed in this state or elsewhere, when licensed to sell real estate, as
Gun ridian to
take oath before
sale.
2.
provided in this chapter, shall, before making such sale, take and subscribe an oath like that required in the
3 same case of an executor or administrator; and notice shall be given, and the proceedings shall be conduc-
§
4 tej in the like manner as is prescribed in the case of an executor or administrator, and the evidence of giv-
5.
ing such notice may be perpetuated in the same manner. -
1
Sec. 49. If any person shall appear and object to the granting of any license prayed for under the pro-
Whcn court gº tº * tº tº e tº º, . . g
may award 2 visions of this chapter, by an executor, administrator or guardian, and if it shall appear to the court, either
COSld. - -
that the petition, or the objection thereto is unreasonable, the court may, in its discretion, award costs to the
•
4 party prevailing, and may enforce the payment thereof.
CHAr 77.] ( 419 ) - [Tizir 18.
&
1 Sec. 50. No action ſor the recovery of any estate sold by an executor or administrator under the provis-
g- -> Limitation of ae-
tions to recover
estate sold.
2
ions of this chapter, shall be maintained by any heir or other person claiming under the deceased testator
3
or intestute, unless it be commenced within five years next after the sale; and no action for any estate sold
4
in like manner by a guardian shall be maintained by the ward, or by any person claiming under him, un-
5 less it be commenced within five years next aſter the termination of the guardianship, except as hereinaſter
6 provided.
1 SEC. 51. The preceding section shall not apply to persons out of the state, nor to minors, or others under
* * * * * o & $º Mi d oth-
any legal disability to sue, at the time when the right of action shall first accrue; but all such persons may :*:::::::"
bility.
2
3 commence such action at any time within five years aſter the removal of the disability, or their return to
4 this state.
l
SEC. 52. In case of an action relating to any estate sold by an executor, administrator or guardian, in
Sale not avoided
on account i
2 which an heir or other person claiming under the deceased, or in which the ward, or any person claiming ..."...#
contested by
ward.
3 under him shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the
4 proceedings, provided it shall appear :
5
I. That the executor, administrator or guardian was licensed to make the sale by the probate court having
6 jurisdiction :
7 2. That he gave a bond which was approved by the judge of probate, in case a bond was required upon,
8
granting the license :
9 3. That he took the oath prescribed in this chapter:
10 4. That he gave notice of the time and place of sale as in this chapter prescribed : and
11 5. That the premises were sold accordingly, and the sale confirmed by the court, and that they are held
12 by one who purchased them in good faith.
1 SEC. 58. If there shall be any neglect or misconduct in the proceedings of the executor, administrator or ..".
- - VCI'll)|C mis-
{j i.",.
tion to sale.
• *
* 5uardian, in relation to such sale, by which any person interested in the estate shall suffer damages, such
8 aggrieved party may recover the same in a suit on the probate bond, or otherwise, as the case may require,
CHAP. 78.] ( 420 ) [TITLE 18.
sale not avoided
for certain irre-
gularities, when
title contested by
adverse claim-
RRt.
Liability of exe-
cutor, &c., for
fraud.
Whcm guardian
may sell real cº-
tate of ward for
support, &c.
1 SEc. 54. If the validity of a sale made by an executor, administrator or guardian, shall be drawn in ques-
2 tion by any peson claiming adversely to the title of the deceased testator or intestate, or of the ward, or
3 claiming under any title that is not derived from or through the deceased person or the ward, the sale shall
4 not be held void on account of any irregularity in the proceedings, provided it shall appear that the execu-
5 tor, administrator or guardian, was licensed to make the sale by a prºte court having jurisdiction,
6 and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the
7 premises,
1 Snc. 55. Any executor, administrator or guardian, who shall ſraudulently sell any real estate of his tes-
2 tator, intestate or ward, contrary to the provisione of this chapter, shall be liable in double the value of the
3 land sold, as damages to be recovered in an action on the case by the person having an estate of inheritance
4 therein.
CIIAPTER 78.
OF THE SALE OF LANDS OF MINORS AND OTHER PERSONS UNDER GUARDIANSHIP, AND SECURING THE
*. PROCEEDS FOR THEIR USE.
1 SECTION. 1. When the income of the estate of any person under guardianship, whether as a minor, insane
wº
2 person or spendthrift, shall be insufficient to maintain the ward and his family, or to educate the ward when
3 a minor, or the children of such insane person, or spendthiſt, his guardian may sell his real estate for that
4 purpose upon obtaining a license therefor, and proceeding thein as provided in this chapter.
‘A .
1 SEc. 2. When it shall appear satisſactorily to the court upon the petition of any such guardian, that it would
When guardian
may sell and put
out proceeds at
interest.
2 be for the benefit of his ward that his real estate, or any part thereof should be sold and the proceeds there-
3 of put out on interest, or invested in some productive stock, his guardian may sell the same for that purpose,
4 upon obtaining a license ºtherefor, and proceeding therein as hereinafter provided. .
'l Sec. 3. If the estates is sold for the purpose mentioned in the first section in this chapter, the guardian
t
• &
CHAP. .78:J. ( 421 ) - [Title 18.
.2
3
shall apply.the proceeds of the sale to-such purpose so far as necessary, and shall put out the residue if ** Application of
- proceeds of sale
1 or Bupport, &c.,
on interest, or invest it in the best manner in his power, until the capital shall be wanted for the mainten-
ance of the ward and his family, or for the education of the ward when a minor, or the children of such in-
sane person or spendthriſt, in which case the capital may be used for that purpose, as ſar as may be neces-
sary, in like manner as if it had been personal estate of the ward.
SEc. 4. If the estate is sold for the purpose of putting out or investing the proceeds, as provided in the se
º:
• e * o º e © * ... proceeds of salo
cond section of this chapter, the guardian shall make the investmet according to his best judgment, or in for ºnent of
WarC1.
pursuance of any order that may be made by the probate court.
Sec. 5. In every case of the sale of real estate, as provided in this chapter, the residue of the proceeds, if
Residue on final
settlement, con-
any, remaining upon the final settlement of the accounts of the guardianship, shall be considered as real."***
estate of the ward, and shall be disposed of among the same persons, and in the same proportions as the real
estate would have been, if it had not been sold.
Sec. 3. In order to obtain a license for such sale, the guardian shall present to the probate court of the
Petition for 11-
e tº e t e - © e * . * fºr to:
county in which he was appointed guardian, a petition therefor, setting forth the condition of the estate of
his ward, and the facts and circumstances on which the petition is ſounded, tending to show the necessity or
expediency of a sale; which petition shall be verified by the oath of the petitioner.
Sec. 7. If it shall appear to the court from such petition, that it is necessary, or would be beneficial to the
Order to show
Cºll 862.
ward, that such real estate or some part of it should be sold, the court shall thereupon make an order, di-
recting the next of kin of the ward, and all persons interested in the estate, to appear before such court at a
time and place therein to be specified, not less than four nor more than eight weeks from the time of making
such order, to show cause why a license should not be granted for the sale of such estate.
Sec. 8. A copy of such order shall be personally served on the next of kin of such ward, and on all per-
Service, &c., of
order.
sons interested in the estate, at least fourteen days before the hearing of the petition, or shall be published
Char. 78.] * ( 4.22 ) [Trixia.
Winch certificato
of superintend-
ent of poor ne-
cessary.
tion.
\;xamination of
guardian, &c.
When license to
be granted.
JBond to be given
by guardian.
Hearing of peti-
§
4
2
I
5
2
3
at least three successive weeks in such newspaper circulating in the county, as the court shall specify in
such order.
Sec. 9. No such license shall be granted for the sale of any real estate of a ward, excepting that of a mi-
nor, unless the superintendents of the poor of the county in which the ward is an inhabitant, shall certify in
writing their approbation of the proposed sale.
*
Sec. 10. The judge of probate, at the time and place appointed in such order, or at such other time as the
hearing shall be adjourned to, upon proof of the due service or publication of the order, and upon filing the
certificate of approbation of the superintendents of the poor, when necessary, shall hear and examine the
proofs and allegations of the petitioner, and of the next of kin, and all other persons interested in the es-
tate, who shall think proper to oppose the application.
SEc. 11. On such hearing the guardian may be examined on oath, and witnesses, may be produced and ex-
amined by either party, and process to compel their attendance and testimony may be issued by the judge
of probate, in the same manner, and with the like effect as in other cases.
Sec. 12. If, after a full examination, it shall appear to the court, either that it is necessary, or that it
would be for the benefit of the ward, that the real estate, or any part of it should be sold, such court may
grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward
and his family, or ſor the education of the ward or his children, or in order that the proceeds may be put
out or invested as aſoresaid,
Sec. 13. Every guardian licensed to sell real estate as aforesaid, shall, before the sale, give bond to the
judge of probate, with sufficient surely or sureties to be approved by such judge, with condition to sell the
same in the manner prescribed by law for sales of real estate by executors and administrators, and to ac-
count ſor and disposo of the proceeds of the sale, in the manner provided by law.
Sec. 14. Such guardian shall also, before fixing on the time and place of sale, take and subscribe an oath
&Ar. 78.] ( , 438 ). ſºrtiº 18.
*
2 in substance like that required in the preceding chapter, to be taken by an executor, administrºrºor guar. Guardian to
- . take oath before.
fixing time and
... • * .* @ º * • • - r . - 4 l f le.
3 dian, when licensed to sell real estate pursuant to the provisions of that chapter. . . . . . . place of sale
1 Sec. 15. He shall also give public notice of the time and place of sale, and shall proceed therein, in like
Notice of sale,
&c.
•
manner as is prescribed in the case of a sale by a guardian in the preceding chapter, and the evidence of
3 the giving of such notice may be perpetuated in like manner, and with the same effect, as is provided in
4 like cases in that chapter.
1 Sºc. 16. No license granted in pursuance of this chapter, shall be in ſorce more than one year after is
- license not to
be in force more
© - - than One years
2 granting the same. . . - -
1 Sec. 17. When any minor, in ane person or spendthriſt, residing without this state, shall be put under
-- - * * * When foreign
* - guardian may
2
3.x rºck, in 3 º º g fil f hi
guardianship in the state or country in which he resides, and shall have no guardian appointed in this state, jº"
the foreign guardian may file an authenticated copy of his appointment in the probate court, in any county
4 in which there may be any real estate of the ward.
1 SEC. 18, Aſter filing such authenticated copy ºf his appointment, such foreign guardian may be licensed º.
a f e : . . . . . . . s.s - “... . . . . . . dian may be li–
2
2 by the probate court of the same county, to sell the real estate of the yard in this state, in the same manner,
and upon the sºme terms and conditions as are prescribed in this chapter in the case of a guardian ºppoin-
4 ted in this state, excepting in the particulars hereinaſter mentioned.
f
I Sec. 19. Every foreign guardian so licensed to sell real estate, shall take and subscribe the oath required
Manner of con-
ducting sale, &c.
2.
in the like case of guardians appointed in this state, and shall give notice of the time and place of sale, and
3 conduct the same in the manner prescribed for guardians appointed here, and may perpetuate the evidence.
4 of notice in the same manner.
- * - • * * *
} , , , , . . . . ;
1 SEc. 20. Upon every such sale by a foreign guardian, the proceeds of the sale, or as much thereof, as may ºf
residue on final.
8Clt #". ſo-
- º t - reign guardian,
2 remain upon the final settlement of the accounts of the guardianship, shall be considered as real estate of &c.
t
e -
* , f \, -
a ' •, * * |
* ** { . .*
. . . . . . . ... " * . . . . . . . . . . . . is . ' ' ', ...: - ". . . . . . . . . * > * . . . ." . . . f : . . . . ." * . . . . . ... I $.
3 the ward, and shall be disposed of among the same persons, and in the same proportions as the real estate
Char. 78.] - ( 424. ). [Turle 18,
When the court
may award
eosts to prevail-
ing party.
Limitation of
suits by ward,
&c., to recover
estate sold by
guardian.
Sale not avoided
on account of
certain irregula-
If ities.
• * 7.
... 1
2 * ~ * ,
5
l
2
l
38
9
10
- - f º' tº - - s - & • * * - a • * * r w 3 : * - * * , , - - *
--> • A- 2 - . - r * , * ". . . . . . a . . . . x * * ; * : * * * * - " £ " . " ' ' * * * * * * * * *, * - “ . . . . * * * * * * : . : . : , , . . . . . * * - .
- ~. , - . . * * * * . . . . . . , , , , , , ! . . . . . . $ : ". . . . .'; ; * , . ºf . . . . . . • * r * - * . . . . . . . . . . . . . . . -* * *
.4 would have been according to the laws of this state, if it had not been sold ; and such foreign guardian shalt
in every case, before making the sale, give bond with satisfactory surety or sureties, to the judge of pro-
bate, with condition to account for and dispose of the same accordingly.
SEc. 21. If any person shall appear and object to the granting of any license prayed for under the pro-
visions of this chapter, and it shall appear to the court, that either the petition or the objection thereto is
unreasonable, said court may, in its discretion, award costs to the party prevailing, and enforce the payment
thereof.
SEc. 22. No action for the recovery of any estate sold by a guardian under the provisions of this chapter,
shall be maintained by the ward, or by any person claiming under him, unless it be commenced within five
years next after the termination of the guardianship ; excepting only that persons out of the state, and mi-
nors, and others under any legal disability to sue, at the time when the cause of action shall accrue, may
commence their action at any time within five years next after the removal of the disability, or after their
return to the state. -
Sec. 23. In case of an action relating to any estate sold by a guardian under the provisions of this chap-
ter, in which the ward, or any person claiming under him, shall contest the validity of the sale, the same
shall no be avoided on account of any irregularity in the proceedings, provided it shall appear,
1. That the guardian was licensed to make the sale by a probate court of competent jurisdiction :
2. That he gave a bond which was approved by the judge of probate, in case any bond was required by
the court, upon granting the license ; e - * ...”
| “. . .
3. That he took the oath prescribed in this chapter: . . . . . . . . -- - . . . . . . . . . . . " º
1. That he gave notice of the time and place of sale as prescribed by law; and, .
3. That the premises were sold accordingly by public auction, and are held by one who purchased them in
f - * * -- *
- - - - - - º
• , ! * ... • " ... . - - - . . . . ~ I s
- * = * f - - - - • ' ' ' , , , ;
good ſaith.” . . . . . . . . . . . . . . . . . . . . . . . * . . . .
r
• t - - a .
~ * . . . . . ;
- f - * * * * * i . . . & - G S of the
SEc. 24. If, in relation to such sale, there should be any neglect or misconduct in the proceeding -
“. . . . . . . . . . . . . ; cf. ea ºf ri i ::, .ºz.:54: “” is dº ºf . , , ...', . . . . . . . . . . . . . . . . . . . . .
**.
Chap. 79.] ( 425 ) [TITLE 18.
2 guardian, by which any person interested in the estate shall suffer damage, such aggrieved party may re-
Liability of
- #%.
misconduct.
3 cover such damage, in a suit on the bond of such guardian, or otherwise, as the case may require.
1 SEc. 25. If the validity of any sale, made by a guardian under the provisions of this chapter, shall be
When sale not
held void, in
2 drawn in question by any person claiming adversely to the title of the ward, or claiming under any title."”
3 that is not derived from or through the ward, the sale shall not be held void on account of any irregularity
4 in the proceedings, provided it shall appear that the guardian was licensed to make the sale by the proper
5 probate court, and that he did accordingly execute and acknowledge in legal form, a deed for the convey-
6 ance of the premises.
CHAPTR 79.
OF TH SALE OF REAL ESTATE ON EXECUTIONS.
1 SECTION 1. All the real estate of a debtor, whether in possession, reversion or remainder, including lands
What liable to
Bale.
fraudulently conveyed, with intent to deſeat, delay or defraud his creditors, and the equities and rights of
2
redemption hereinaſter mentioned, shall be subject to the payment of his debts, and may be sold on execu-
3
4 tion as hereinaſter provided.
1 Sec. 2. Previously to the sale of any real estate taken in execution, notice of the time and place of hol- Nouse of sale.
2 ding such sale, shall be given as follows: -
3 1. A written or printed notice thereof shall be fastened up in three public places in the township where
4 such real estate shall be sold, six weeks previous to the sale, and iſ such sale be in a township different from
5 that in which the premises to be sold are situated, then such notice shall also be fastened up in three public
6 places in the township in which the premises are situated :
7
2. A copy of such notice shall be published once in each week, for six successive weeks, in a newspaper
printed in the county in which such estate is to be sold, if there be one :
107
CHAP. 79.]
( 426 ) [Title 18.
Description.
Sahe, how, when
and where
made.
Officer liable in
damages for
selling without
notice.
Eamages for de-
facing or , taking
down notice.
Purchaser in
good faith not
uffecteu.
Officer not to,
purchdso.
9 3. If there be no newspaper printed in such county, then such notice shall be published once in each Week,
10 for six successive weeks in the state paper, or in some other newspaper-printed in an adjoining county.
1 Sec. 3. In every such notice, the real estate to be sold shall be described with common certainty, by set-
2 ting forth the name or number of the township in which it is situated, and the number of the lot, or by some
3 other appropriate description of the premises.
1 Sec. 4. The sale of real estate by virtue of any execution, shall be at public vendue, between the hour
2 of nine o'clock in the morning and the setting of the sun, at the court house, or place of holding the circuit
3 court, in the county in which such estate is situated.
1 SEC. 5. Any officer who shall sell any real estate, without the previous notices herein directed, or other-
2 wise than in the manner herein prescribed, shall be liable therefor to the party injured, in the sum of five
3 hundred dollars damages, in addition to any actual damages which such party may prove on the trial of an
4 action brought for the recovery of the same.
i Sec. 6. If any person shall take down or deface any notice of a sale of real estate, put up by any officer,
2 previous to the day of sale therein specified, unless upon satisfaction of the execution by virtue of which
3. such notice shall have been given, or upon the consent of the party suing out such execution, and of the
4 defendant therein, such person shall be liable therefor to the party in whose favor such execution was issued
9
5 in the sum of fifty dollars damages.
1 SEC. 7. The omission of any officer to give the notice of sale required in this chapter, or the taking down
2 or defacing any such notice when put up, shall not affect the validity of any sale made to a purchaser in
3 good faith, without notice of such omission, taking down or defacing.
1 SEC. 8. The sheriff or other officer to whom any execution shall be directed, and the deputies of such of.
2 ficers, shall not, directly or indirectly, purchase or be interested in the purchase of any real estate at any
8 sale by virtue of such execution.
CHAP. 79.] ( 427 ) [Title 18.
1 Sec. 9. When any real estate offered for sale by yirtue of any execution, shall consist of several known
Lots to be sold
separate. "
2 lots, tracts or parcels, such lots, tracts or parcels shall be separately exposed for sale; and no more of such
3 tracts or parcels shall be exposed for sale, than shall appear necessary to satisfy the execution, with the
4 costs and expenses of such sale.
1 SEc. 10. Upon the sale of any real estate by virtue of an execution, theofficer making the same shall
Certificate of
gale,
2 make and subscribe as many certificates as may be necessary of such sale, containing,
3 1. A particular description of the premises sold :
4 2. The price bid for each distinct lot or parcel sold :
5 3. The consideration money paid for each lost or parcel ; and
6 4. The time when such sale shall become absolute, and the purchaser or purchasers will be entitled to a
£e
7 deed, as hereinaſter provided.
1 SEC. 11. One of the said certificates shall, within ten days after such sale, be filed by the officer ma- H e
ºn-
2 king the sale, in the office of the register of deeds of the county in which the sale was made, and one such
3 certificate shall be delivered to each purchaser at said sale.
1 SEc. 12. Such original certificate, or a copy thereof duly certified by the register of deeds in whose of.
Certificate evi-
dence.
2 fice such original was filed shall be received as presumptive evicence of the ſacts therein set forth.
1 SEC, 13. Within one year from the time when such sale shall have been made, the real estate so sold, or
. . . & h
2 any district lot, tract or portion that may have been separately sold,may be redeemed by the payment to the ºz.
deemed-
3 purchaser, his personal representatives or assigns, or to the officer who made such sale, or to the register
4 of deeds in whose office such certificate is filed, for the use of such purchaser, of the sum of money which
5 was bid on the sale of such lot or tract, together with the interest on that sum from the time of sale, at the
6 rate of ten per cent, a year.
1 SEc. 14. Such redemption may be made,
Char. 79.] • - ( 428 ) [TITLE 18.
3By whom re-
demption may be
made.
2.Wend., 507.
2.
Heir or devisee .
may redeem, &
enforce contri-
lution in certain
Cºlºč9.
Undivid’d shares
may be redeem-
ed.
Fale void on re-
deinption.
3
1. By the person against whom the execution was issued, and whose right and title were sold in pursuance
thereof; or,
2. If such person be dead, by his devisee of the premiº sold, if the same shall have been devised ; and
if the same shall not have been devised, by the executor or administrator, with the approbation of the judge
of prone, Or by the heir of such person : or
3. By any grantee of ach person, who shall have acquired an absolute title by deed, sale under mortgage,
or under an execution, or by any other means, to the premises sold, or to any lot, tract, parcel or portion
which shall have been separately sold.
SEC, 15. Any heir, or devisee of the person against whom the execution was issued, and any grantee of
such person who shall have acquired an absolute title to a portion of the estate sold, or to a portion of any
lot, tract or parcel that shall have been separately sold, or the executor or administrator of such person,
sº
4 with the approbation of the judge of probate, may redeem the lot, tract or parcel so sold, on the same terms,
5
5
and in the same manner as if he were grantee of the whole lot, tract or parcel, and shall have the same
remedy to enforce contribution from those who shall own the residue of such lot, tract or parcel, as if the
sum required to be paid by him to effect such redemption, had been collected by a sale of the portion be-
longing to such grantee.
SEc. 16. If there be ºvers persons having undivided shares, as joint tenants, or tenants in common, in
the premises sold, or in any particular º o: tract sold, each person naving such title may redeem the share
or interest belonging to him, by paying to the purchaser, or to the officer, as herein directed, a sum that
will bear the same proportion to the whole purchse money bid for such premises,or for such particular lot or
tract, as the share proposed to be redeemed bears to the whole number of shares of such premises, or lot or
*
6 tract, together with the interest on such sum at the rate of ten per cent a year.
I
***
Sec. 17. Upon such payment being made by any person so entitled to redeem any real estate so sold, as
2 provided in the preceding sections of this chapter, the sale of the premises so redeemed,and the certificates
3 of such sale, to the extent of the premises or shares so redeeemed, shall be null and void.
CHAP 79.] - ( 429 ) * FTirlº.18.
1 Sec. 18. In case the persons entitled as hereinbefore provided, shall omit to redeem the premises so sold,
2
I
2
2
2
Time for acqui-
- ring right of
- * . . . tº e • & purchaser.
or any part of them within the year above prescribed, then the interest vested in the purchaser by such sale
3. Q
may be acquired within three months after the expiration of such year, by the persons, and on the terms
hereinaſter preseribed.
a cli ev e - # * f is ſº & : ~~ e tº iº By wbom right
Sec. 19. Any creditor of the person against whom such execution issued, having in his own name, or as ...}
luuy be acquir'd.
assignce, representative, trustee or otherwise, a decrea in chancery, or a judgment at law rendered at any
time before the expiration of fifteen months from the time of such sale, and which shall be a lien and charge W.";
&
upon the premises sold, by paying the sum of impney which was paid on the sale of such premises, together
with the interest thereon at the rate of seven per cent a year from the time of such sale, shall thereby ac-
quire all the rights of the original purchaser, subject to be deſeated in the manner hereaſier mentioned.
SEC. 20. Iſ such judgment or decree be a lien upon any lot, tract or parcel that shall have boen separate- when judgment
len oil single
lot. -
ly sold, the creditor having the same by paying as before provided, the sum which shall have been bid ſor
such lot, tract or parcel, with interest as above mentioned, shall thereby acquire all the rights of the origi-
nal purchaser to such lot, tract or parcel, subject to be defeated as hereinaſter provided.
Sec. 21. If such judgment or decree be a lien on a specific portion only of any lot, tract or parcel so sold, when on por-
tion of lot.
the creditor having the same may aquire the title of the purchaser to the whole of such lot, tract or parcel,
in the same manner as if such lien extended to the whole.
Sec. 22. Any such creditor having such decree or judgment, which is a lien upon any undivided share or
Whcn on undi-
vided share.
interest in any real estate sold under execution, may, within the same time, on the same terms, and in the
same manner, acquire the title of the original purchaser to such share or interest, by paying such part of
the whole purchase money of such real estate, as shall be in a just proportion to such share or interest.
SEc. 23. Whenever any such creditor shall have acquired the title of the original purchaser, pursuant to
Tcrms of pur-
chiusc by other
tº e g & g fe e ſº, e ‘º g lit gº
the foregoing provisions,any other ereditor who might have acquired such title according to such provisions, CfC (IIUOIS
108
Char. 79.] ( 430 ) [TITLE 18.
3 may become a purchaser thereof from the first creditor who acquired the same, upon the following condi-
YS
4 tions :
1. By reinbursing to such first creditor, his personal representatives or assigns, the sum which may have
6
been paid by him to acquire such title, together with interest thereon at the rate of seven per cent. a year
7 from the time of such payment, to the time of such reimbursement :
8
2. If the judgment or decree by virtue of which the first creditor acquired the title of the original purcha-
9
ser, be prior to the judgment or decres of such second creditor, then such second creditor shall also pay to such
10 first creditor the amount due on his judgment or decree:
11 3. But if such judgment or decree of the first creditor, at the time of his acquiring the title of the origi-
1.
2.
nal purchaser, shall have ceased to be a lien, as against such second creditor, it shall not be necessary to
13 pay the amount thereof.
1.
Third and othſcr
SEC, 24. In the same manner any third or other creditor, who might according to the foregoing provisions,
treditors. *
2
acquire the title of the original purchaser, may become a purchaser thereof, from the second, third, or any
3
other creidtor, who may have become such purchaser from any other creditor, upon the same terms and
4.
conditions specified in the preceding section.
SEc. 25. If the original purchaser of any premises so sold, shall also be a creditor of the deſendant against
Original purcha-. -
ger being credit=.
Oſ.
2
whom the execution issued, and as such might acquire the title of any purchaser, according to the preced-
ing provisions, he may avail himself of his decree or judgment in the same manner, and on the same terms
4
herein prescribed, to acquire the title which any creditor may have obtained.
1
Sec. 20. The plaintiff under whose execution any real ostate shall have been sold shall not be authorized
Plmintiff in exc- *
cution, his right.
2
to acquire the title of the original purchaser, or of any creditor, to the premises so sold, by virtue of the
3 decree or judgment on which such execution issued; but if he have any other decree or judgment, which
4 would entitle him to acquire such title, according to the preceding provisions, he may avail himself of such oth-
5 er decree or judgment, in the same manner, and on the same terms as any other creditor.
Char. 79.] t ( 431 ) [Title 18.
1 Sec. 27. The sums required to be paid by the foregoing provisions, to acquire the title of the original
Payment of
sums requred.
2 purchaser, or to become a purchaser ſrom any creditor, may be paid to such purchaser or creditor, his rep-
3 resentatives or assigns, or to the officer who made the sale, or to the register of deeds in whose office the
4 certificate of sale is ſiled, for the use of the purchaser or creditor entitled to the same.
*
1 Sec. 28. Upon such payment being made, the title of the original purchaser shall be thereby transferred jº of pay-
- Ill Clt.
2 to the creditor acquiring the same pursuant to the ſoregoing provisions, and from such creditor to any other
3 creditor becoming a purchaser thereof as herein before provided.
1 Sec. 29. To entitle any creditor to acquire the title of the original purchaser, or to become a purchaser e. • *
- ...nº º: :-
itor's right to,
-> e © tº e purchase.
2 ſrom any other creditor pursuant to the preceding provisions, he shall present to and leave with such pur.
3 chaser or creditor, or the officer who made the sale, or with said register, the following evidence of his
6 Wend., 526.
4 right:
1. A copy of the docket of the judgment or decree under which he claims the right to purchase, duly cer-
tified by the register of deeds in whose office a copy thereof shall have been filed and entered :
2. A true copy of all the assignments of such judgment or decree, which are necessary to establish his.
8 claim, verified by his affidavit, or the affidavit of some witness thereto:
3. An affidavit by such creditor, his agent or attorney, of the true sum due on such judgment or decree, at
10 the time of claiming such right to purchase.
sº - o 0. e © . . When legal es-
1 Sec. 30. The right and title of the person against whom the execution was issued, to any real estate which tººd,
10 Vegt. º
2
shall be sold thereby, shall not be divested by such sale, until the expiration of ſiſteen months from the time
of such sale; but if such real estate shall not be redeemen as herein provided, and a deed shall be executed
in pursuance of a sale, the grantee in such deed shall be deemed vested with the legal estate from the time
ºf the sale on such execution, for the purpose of maintaining an action for any injury to such real es-
6 tate.
l
Sec. 31. If at any time aſter a sale of real estate on execution, and before a deed shall be czecuted in pur-
Char. 79.] - ( 432 ) [Title 18.
Suits may be
brouglit for . . . .
waiste'diid othèf
injuries.
tº or whose bcres
ilt actions unay
be prosecuted.
Conveyance,
When tº 11d tº
wholil to be
inade.
1 Won I.: 46, 2
tlo., 507, 7 do.,
83, 11 do., 42J.
When to be
inade to CXccu-
tors, &c.
2 suance thereaſ, the defendant in such essiºn or any other person, shall commit any waste thereon, or
3 shall remove therefrom any buildings, fences or other fixtures belonging to the land, and which would pass
4 to the grantee by a deed of conveyance of the ams the purchaser of such real estate, or any creditor or
5 other person having acquired the rights of such purchaser, may have and maintain against the person doing
6 such injury, and against any other person who shall have any such buildings, fences or fixtures in his pos-
7 session after such removal, the same actions which such purchaser, creditor or other person might sustain if
8 he were the absolute owner of the premises so sold.
1 Sec. 32. After the commencement of any such action as ment:oned in the preceding section, if any other
2 creditor shall acquire the rights of the purchaser at such sale in pursuance of the provisions of this chapter,
3 such action shall not thereby be abated or in any way affected; but the same may be prosecuted in the
4 name of the plaintiff therein to final judgment, for the benefit of the person acquiring such rights after
5 the commencement of the action, if he shall choose to prosecute the same, and if not, such plaintiff may
6 continue to prosecute the same for his own benefit.
1 SEC. 33. Aſter the expiration of fiſteen months from the time of the sale of any real estate, if any part
2 of the premises sold shall remain unredeemed by the person against whom the execution issued, or by any
3 person entitled to redeem the same within one year ſrom the time of such sale, according to the provisions
4 of this chapter, the officer making such sale, or his successor in office, shall complete the same by execu-
5
ting, in due ſorm of law, a conveyance of the premises so remaining unredeemed, either to the original pur-
6 chaser, or to the creditor who may have acquired the title of such original purchaser, or to the creditor who
7 may have purchased such title from any other creditor, as the case may be ; which conveyance shall be val-
8 id and effectual to convey all the right, title and interest, which was sold on such execution.
1. SEc, 34. In case the person, who by the provisions of the preceding sections, would be entitled to a con-
2 veyance of any real estate sold by virtue of an execution, shall die before the execution of the conveyance,
3 the officer chall execute and deliver such conveyance to the executor or administrator of the person so de-
4 ceased.
char. 19. ( 438 ) [True le.
&
I
2
Sec. 35. The real estate so conveyed, shall be held in trust for the use of the heirs of such deceased per- Braw &c. 16
- hold same inter-
C8ſ.
son, subject to the dower of his dower, if there be any; but the same may be sold for the payment of debts.
and legacies in the same manner as lands whereof the deceased died seized,
O
• - © • ? e & Surplus to b
SEc. 36. If aſter any sale of real estate made as herein prescribed, there shall remain in the hands of the iºr; º:
ficer.
officer any surplus money after satisfying the writ or writs of execution on which such real estate was sold
with the interest thereon, the cfficer shall pay over such surplus to the judgment debtor or his legal rep,
resentatives on demand.
SEc. 37. All rights of redeeming mortgaged real estate, may be sold on execution in the manner herein Equity of re-l
demption of
mortgaged prem-
º - o © • * te ises unaw be sold
prescribed, for the sale of other real estate on execution, excepting in the case hereinafter specified; and ...'..."
such equity of redemption may be redeemed and the rights of any purchaser may be acquired in the same
4 manner, and upon the same terms and conditions as other real estate sold on execution.
2
3
4
2
2
3
SEc. 38. If the purchaser of any such equity of redemption, or any creditor having acquired the rights ... .
mortgage by
purchaser, to be
paid on redeem-
of such purchaser shall pay the debt due on the mortgage, or any part thereof, the amount so paid on the "***
mortgage shall be paid, with interest, to such purchaser or creditor, in redeeming the premises or purchas-
ing the rights of such purchaser or creditor, as the case may be, according to the provisions of this chapter,
SEC. 39. The lawful fees and charges of the sale upon any execution in the manner prescribed in this
Fee and charges
© to be added to u-
chapter, shall, in all cases, be added to the amount due on the execution, and be considered as a part there--.” "
gr
of for all the purposes mentioned in this chapter.
Sec. 40. When a judgment shall be recovered for a debt secured by mortgage of real estate, or for any
When right of
redenuption not
part of such debt, it shall not be lawful for the sheriff or other officer to sell the equity of redemption of "**
the mortgagor, his heirs or assigns in such estate, by virtue of any execution upon such judgment.
SEc. 41. Whenever any execulion against the property of the defendant shall be issued upon such judg-
º
109
CHAP. 79.]
( 434 ) [TITLE 18,
Description of
mortgaged pre-
mises to be en-
dorsed on execu-
tion with direc-
tion.
When execution
to be returned
unsatisfied.
Assignment to be
executed und re-
corded.
1841, p. 134 $3.
When purchaser
may recover,
5 Cowen, 33.
Remedy of plain-
tifſ.
Judgment, how
cffected tor pur-
pose of remedy.
2 ment as is mentioned in the preceding section, the plaintiff or his attorney shall indorse on such execution,
3.
}
5.
3
l
a brief description of the premises mortgaged, with a direction to the officer not to levy such execution up-
on the said premises or any part thereof.
...”
Sec. 42. If such execution shall not be collected of the other property of the deſendant, the officer shall
return the same unsatisfied, in whole or in part, as the case may require,
SEc. 43. Before any assignee or his personal representative, shall be entitled to a deed under the provisions
of this chapter, every assignment under which he claims title, shall be executed and acknowledged or prov-
ed, in the same manner that deeds are required to be executed and acknowledged or proved, to entitle the
same to be recorded, and such assignee shall cause the same to be recorded in the office of the register of
deeds, in the county where the real estate so sold is situated.
SEc. 44. Iſ the purchaser of any real estate, sold by virtue of an execution, his heirs or assigns, shall be
evicted from the possession of such real estate, or iſ in an action for the recovery thereoſ, judgment shall be
rendered against him or them, in consequence,
1. Of any irregularity in the proceedings concerning such sale ; or
2. Of the judgment upon which such execution issued being vacated or reversed; such purchaser, his
heirs or assigns may recover of the party for whose benefit such real estate was sold, the amount paid on
the purchase thereof, with interest.
Sec. 45. The party for whose benefit such real estate was sold, and his personal representatives, upon
such recovery being had against him in consequence of any irregularity in the proceedings concerning
the sale, may have further exécution upon the judgment, by virtue of which such sale was made, to levy
the amount paid on such sale, with interest.
Sec. 46. Such judgment shall be deemed valid and effectual for the purpose specified in the preceding
section, against the deſendant therein, his personal representatives, heirs and devisees, but not against any
Wº,
-
Cnar. 79.] ( 485 ) - [Title. 18.
3 purchaser in good faith, or any incumbrancer by mortgage, judgment or otherwise, whose title or incum-
4 brance shall have accrued before the levy of such further execution.
1 Sec. 47. When lands and tenements, in the hands of several persons, shall be liable to satisfy any judg-
** Cases for contri-
bution.
2 ment, and the whole of such judgment, or more than a due proportion thereof, shall be levied upon the
3 lands of one or more of such persons, the persons so aggrieved, or their personal representatives, may 5 John. Rep.235
º *- onn. Itep.239,
1, page, 228.
4 compel a just and equal contribution by all the persons whose lands and tenements ought to contribute to the
5 satisfaction of such judgment.
1 Sec. 48. Such lands and tenements shall be liable to contribution in the following order;
2 1. If they were conveyed by the defendant in the execution, they shall be liable in succession, commenc- § of coat-
3 with the lands last conveyed ;
4 2. If they were sold under execution aginst the defendant, they shall also be liable in succession, commen-
5 cing with the lands sold under the last and youngest judgment:
6 3. If there be lands so liable, which were conveyed by the defendant in the execution and also lands
7 which have been sold under execution against such defendant, they shall respectively be laws in success.
8 sion, according to the order hereinbefore prescribed.
1 Sec. 49. If a bill be filed in chancery to enſore such contribution, the person aggrieved shall be entitled to
How contribu-
tº tº º e & e tion , enforced in
2 use the original judgment, and by virtuo thereoſ, to pay the amount which ought to be contributed by the chancery.
3 lands an teneneats subject to such judgment; and for that purpose, such judgment shall remain a lien
4 and charge upon such lands and tenements, for the term of five years after a transcript of the docket
5 thereof shall have been ſiled and entered in the office of the register of deeds in the county where the
6 lands are situated, to the extent of the sum which ought to be so contributed, notwithstanding such sum or
7 any part thereof, may have been paid by the party seeking such contribution.
1 Sec. 50. But such original judgment shall not remain a lien upon any lands, nor shall they be subject to
#. of original
udgment.
2 an execution as herein provided, unless the person aggrieved, within twenty days aſter paymment of any
*
char, 183 ( 488 ) [tirie is.
Entry tole made
in margin of doé-
ket.
Action of us-
sumpsit to re-
cover cout:ibu-
tion.
3 sum of money by him, for which he shall claim a contribution, shall file an affidavit with the register of
4 deeds in whose office a transcript of the docket of such judgment shall have been filed and entered, stating
5 the sum paid, and his claim to use such judgment for the reimbursement thereof, or of some portion of the
6 same.
1 Sec. 51. On the filing of such affidavit, the register of deeds shall make an entry in the margin of the
2 entry of the transcript of the docket of such judgment, stating the sum so paid, and that such judgment is
3 claimed to be a lien to that amount.
1 SEc. 52. Any person upon whose lands and tenements, more than a due proportion of any judgment may
2 have been levied, may in his election, have an action of assumpit against any person whose lands ought to
*
3 contribute as herein before provided, to recover the amount which such person ought to contribute on ac-
4 count of such lands.
Char. 80.] & ( 437 ) . [TITLE 19,
l
TITLE XIX.
tº f
OF FRAUDULENT ConveyANCES AND CoNTRACTs, RELATIVE TO REAL AND PERSONAL ProPERTY.
|
CHAPTER 80—Of Fraudulent Conveyances and Contracts relative to Lands.
& 4 81—Of Fraudulent Conveyances and Contracts relative to Goods, Chattels and Things in
Action. -
it. 82—General Provisions relating to Fraudulent Conveyances and Contracts.
CHAPTER 80.
OF FIRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO LANDS.
SECTION 1. Every conveyance of any estate or interest in lands, or the rents and profits of lands, and ev-
Conveyance
ery charge upon lands or upon the rents and profits thereof, made or created with intent to defraud prior orjºintentio de-
snbsequent purchasers for a valuable consideration, of the same lands, rents or profits, as against such pur-
chasers, shall be void.
Sec. 2. No such conveyance or charge shall be deemed fraudulent, in favor of a subsequent purchaser,
Qualification of
who shall have actual or legal notice of the prior conveyance or charge, at the time of his purchase, unless last section.
it shall appear that the grantee in such prior conveyance, or person to be benefitted by such charge, was
4 privy to the ſraud intended.
I
2
3
4
5
Sec. 3. Every conveyance or charge of, or upon, any estate or interest in lands, containing any provis-
Conveyance
with power of
ion for the revocation, determination or alteration of such estate or interest, or any part thereof, at the will ºf
of grantor void.
of the grantor, shall be void, as against subsequent purchasers from such grantor for a valuable considera-
tion, of any estate or interest so liable to be revoked or determined, although the same be not expressly re.
voked, determined or altered by such grantor, by virtue of the power reserved or expressed in such prior
conveyance or charge.
110
CHAP. 80.] * ( 438 ) - [TITLE 19.
Conveyance by
one authorized
to revoke former
grants.
Ib.
Requisites to
convey certain
interests in
lands.
6 Wend, 461. 10.
do. 436,
Qualification of
last 8ection. ;
Contracts to
lease or sell -
lunds, when void.
Consideration
need not bO SCt
forth.
1.
Sec. 4. When a power to revoke a conveyance of any lands, or the rents and profits thereof, and to re-
2 convey the same, shall be given to any person, other than the grantor in such conveyance, and such person
3
2.
shall thereaſter convey the same lands, rents or profits, to a purchaser for a valuable consideration, such
subsequent conveyance shall be valid, in the same manner, and to the same extent, as if the power of revo
cation were recited therein, and the intent to revoke the former conveyance expressly declared.
Sec. 5. If a conveyance to a purchaser, under either of the two last preceding sections, shall be made be-
fore the person making the same shall be entitled to execute his power of revocation, it shall nevertheless
be valid, form the time the power of revocation shall actually vest in such person, in the same manner and
to the same extent, as if then made.
SEC. 6. No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust
or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted,
assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing,
subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some per-
son thereunto by him lawſully authorized by writing.
Sec. 7. The preceding section shall not be construed to affect in any manner, the power of a testator in
the disposition of his real estate, by a last will and testament; nor to prevent any trust from arising, or be-
3.
ing extinguished, by implication or operation of law.
Sec. 8. Every contract for the leasing for a longer period than one year, or for the sale of any lands, or
any interest in lands, shall be void, unless the contract, or some note or memorandum thereoſ, be in writing,
and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him law-
ſully authorized by writing.
SEc. 9. The consideration of any contract or agreement, required by the provisions of this chapter to be
in writing, need not be set ſorth in the contract or agreement, or in the note or memorandum thereof, but
may be proved by any other legal evidence.
CHAP. 81.] * ( 439 ) [TITLE 1.9
1 Sec. 10. Nothing in this chapter contained, shall be construed to abridge the powers of the court of
Powers of court
: º I, Ot
---" * * - r - .. * Q €05.
2 chancery to compel the specific performance of agreements, in cases of part performance of such agree *
3 ments.
§
CHAPTER 81.
of FRAUDULENT convey ANCES AND CONTRACTs, RELATIVE TO Goods, CHATTELs, AND THINGS IN
ACTION.
1 Secrlos I. All deeds of giſt, all conveyances, and all transfers or assignments, verbal or written, of goods, certain transfer,
of personal pro-
perty, void,
2 chattels or things in action, made in trust for the use of the person making the same, shall be void, as
3 against the creditors existing or subsequent, of such person.
1 SEC. 2. In the following cases specified in this section, every agreement, contract and promise shall be
Certain contracts
to be void, un-
2 void, unless such agreement, contract or promise, or some note or inemorandum thereoſ be in writing, and less in writing.
3 signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that
4 is to say:
.*
5 1. Every agreement that, by its terms, is not to be performed in one year from the making thereof:
6 2. Every special promise to answer for the debt, default, or misdoings of another person :
7 3. Every agreement, promise or undertaking, made upon consideration of marriage, except mutual prom-
8 ises to marry :
9 4. Every special promise made by an executor or administrator, to answer daraages out of his own es-
10 tate.
1 SEC. 3. No contract for the sale of any goods, warcs or merchandize, for the price of fifty dollars or more,
ºl. for *
tº - © • of goods exceed-
2 shall be valid, unless the purchaser shall accept and receive part of the goods so sold, or shall give something ing fifty dollars.
3 in earnest, to "ind the bargain or in part payment, or unless some note or memorandum in writing of the
4 bargain be made, and signed by the Party to be charged thereby, or by some person thereunto by him, law-
5 fully authorized.
Char. 81.] . ( 440 ) gºr {Title 19.
Sales at auction.
Representations
in regard to the
albility &c. of an-
other.
Consideration
need not be set
forth.
When sale &c. to
be presumed
fraudulent, un-
less followed by
change of pos-
session.
12, Vend. 297.
Who deemed
creditors.
Two last sec-
tions qualified.
}
.2
*5
l
l
Sec. 4. Whenever any goods shall be sold at auction, and the auctioneer shall, at the time of sale, enter
in a sale-book, a memorandum specifying the nature and price of the property sold, the terms of the sale,
the name of the purchaser, and the name of the person on whose account the sale is made, such memoran-
- tº , sº tº & . #
dum shall be deemed a memorandum of the contract of sale, within the meaning of the last section.
SEc. 5. No action shall be brought to charge any person, upon or by reason of any favorable representa-
tion or assurance, made concerning the character, conduct, credit, ability, trade or dealings of any other
person, unless such representation or assurance be made in writing, and signed by the party to be charged
thereby, or by some person thereunto by him lawfully authorized.
SEc. 6. The consideration of any contract, agreement or promise required by this chapter to be in writing,
need not be expressed in the written contract, agreement or promise, or in any note or memorandum there-
of, but may be proved by any other legal evidence.
SEC. 7. Every sale made by a vendor, of goods and chattels in his possession, or under his control, and
every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever,
unless the same be accompanied by an immediate delivery, and be followed by an actual and continued
change of possession of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void,
aS against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent
purchasers in good faith, and shall be conclusive evidence of fraud, unless it shall be made to appear, on the
part of the persons claiming under such sale or assignment, that the same was made in good faith, and with-
out any intent to defraud such creditors or purchasers.
SEc. 8. The term “creditors,” as used in the preceding section, shall be construed to include all persons,
who shall be creditors of the vendor or assignor, at any time whilst such goods and chattels shall remain in
his possession, or under his control.
SEc. 9. Nothing contained in the two last sections, shall avoidor defeat any contract of bottomry or
respondentia, nor any transfer, assignment, or hypothecation of any vessels or goods at sea or abroad, if
Fº
CHAP 81.] ( 441 ) [TITLE 19.
3 the assignee or mortgagee shall take possession of such vessels or goods, as soon as may be after the arrival
4 thereof.
1 SEC. 10. Every mortgage, or conveyance intended to operate as a mortgage, of goods and chattels, which
Mortgage of
goods &c., void
2 shall hereafter be made, which shall not be accompanied by an immediate delivery, and followed by an ac-" "
3 tual and continued change of possession of the things mortgaged, shall be absolutely void as against the credi-
4 tors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mort-
5 gage, or a true copy thereof shall be filed in the office of the register of deeds of the county where the
6 mortgagor resides.
I Sec. 11. It shall be the duty of every register of deeds upon the presentation of any such instrument or Reside, ordeen.
to file mortgages.
2 copy for that purpose, and the payment of his fees, to endorse thereon the time of receiving the same, and
3 to deposit such instrument or copy in his office to be kept for the inspection of all persons interested.
1 Sec. 12. Such register shall also enter in a book to be provided by him for that purpose, the names of all
Names of parties
to be entered.
2 the parties to such instruments, arranging the names of the mortgagors alphabetically, and shall note there-
3 in the time of filing each instrument or copy.
1 Sec. 13. Every such mortgage shall cease to be valid as against the creditors of the person making the
Void º: re-
o e e º e I]62WC0. In OIlê
2 same, or subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing year.
*
3 of the same or a copy thereof, unless within thirty days next preceding the expiration of the year, the mort-
4 gagee, his agent or attorney, shall make and annex to the instrument or copy on file as aforesaid, an affida-
5 vit, setting forth the interest which the mortgagee has by virtue of such mortgage, in the property therein
6 mentioned, upon which affidavit the register shall endorse the time when the same was filed.
I Sec. 14. The effect of any such affidavit shall not continue beyond one year from the time when such .
Subsequent re-
newals.
2 mortgage would otherwise cease to be valid, as against subsequent purchasers or mortgagees in good faith;
3 but within thirty days next preceding the time when any such mortgage would otherwise cease to be valid
111
CHAP. 82.] ( 442 ) [TITLE 19.
4 as aforesaid, a similar affidavit may be filed and annexed as provided in the preceding section, and with the
5 like effect.
1 SEc. 15. A copy of any such instrument, or of any copy thereof, so filed as aforesaid, including any affi-
Certified copy \
of evidence of
what facts. 2 davits annexed thereto in pursuance of this chapter, certified by the register, in whose office the same shall
3 be filed, shall be received in evidence, but only of the fact that such instrument, copy or affidavit was re-
4. ceived and filed, according to the endorsement of the register thereon, and of no other fact.
ses of register, 1 SEc. 16. The registers shall be entitled receive the following fees for services under the provisions of this
2 chapter: For filing each instrument, copy, or affidavit, six cents; ſor entering the same in a book, six
3 cents for each party to such instrument; for searching for each paper, six cents, and the like fees for cer-
4 tified copies of such instruments, copies or affidavits, as are allowed by law for copies of records kept by
5 them.
CHAPTER 82.
GENERAL PROVISIONS RELATING TO FRAU DULENT CONVEYANCES AND CONTRACTS.
1 SECTION 1. Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands,
Conveyances to -
i..., 2 or in goods or things in action, or of any rents or profits issuing therefrom, and any charge upon lands,
void.
8 goods or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay or de-
4 fraud creditors or other persons of their lawful suits, damages, forfeitures, debts of demands, and every
5 bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, as
6 against the persons so hindered, delayed or defrauded, shall be void.
1 SEC. 2. Every grantor assignment of any existing trust in lands, goods or things in action, unless the same
Grants of trusts
to be in writing.
2 shall be in writing and signed by the party making the same, or by his agent lawſully authorized, shall be
3 void.
Char. 82.1 ( 449 ) [Trris 19.
I Sec. 3. Every conveyance, charge, instrument or proceeding, declared by law to be void as against cred-
Certain convey-
ances, &c. void
te * & * te as against him,
2 itors or purchasers, shall be equally void as against the heirs, successors, personal representatives or assigns &c.
**.
3 of such creditors or purchasers.
1 SEc. 4. The question of fraudulent intent, in all cases arising under this, or either of the two next prece-
Fraudulent in-
tent a question of
2 ding chapters, shall be deemed a question of fact and not of law. (act.
#
1 SEC. 5. None of the provisions of this, or the two next preceding chapters, shall be construed, in any man"
Purchaser with-
e e º - & & & out notice pro-
2 ner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that he tected.
3 had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the ti-
4 the of such grantor.
1 SEc. 6. The term “conveyance,” as used in this and the preceding eightieth chapter shall be construed to
# Term “convey-
*. - ance” how cod-
2 embrace every instrument in writing, except a last will and testament, whatever may be the form of Bueh "true".
3 instrument, and by whatever name it may be known in law, by which any estate or interest in lands is crea-
4 ted, aliened, assigned or surrendered.
Char. 83. º -
- J ( 444 ) [TITLE 20.
TITLE XX.
OF THE DOMESTIc RELATIONs.
CHAPTER 83.-Of Marriage and the Solemnization thereof.
& 4 84.—Of Divorce.
§ 6 85-9 eneral Provisions concerning Husband and wiſe.
& 6 86.-Of Guardians and Wards.
6 4. 87-Of Masters, Apprentices and Servants.
CHAPTER 83.
OF MARRIAGE AND THE SOLEMNIzATION THEREof.
1 SECTION 1. Every male who shall have attained the full age of seventeen years, and every female who
Who shall be
capable of con-
#;"" 2 shall have attaied the full age of fourteen years,shall be capable in law of contracting marriage, if otherwise
3 competent.
I SEc. 2. Marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of par-
Marriage is a
civil contract.
2
ties capable in law of contracting, is essential.
1 SEC. 3. No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, grandfather's
Who shall not
intermarry. wife, son’s wiſe, grandson's wife, wife's mother, wiſe’s grandmother, wife's daughter, wife's granddaughter,
2
3 nor his sister, brother's daughter, sister’s daughter, father's sister, or mother's sister.
1 Sec. 4. No woman shall marry her father, grandfather, son, grandson, stepfather, grandmother's husband,
Ib.
2
daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, has-
3 band’s grandson, nor her brother, brother’s son, sister’s son, father’s brother, or mother's brother.
1 SEc. 5. No marriage shall be contracted whilst either of the parties has a ſormer wife or husband living,
Who not to mar-
ry.
2 unless the marriage with such former wife or husband, shall have been dissolved.
CHAP. 83.] ( 445 ) [Title 20
1
2
l
2
3
SEc. 6, No white person shall intermarry with a negro, and no insane person or idiot shall be capable of Id
contracting marriage.
2 whom solemn-
Sec. 7. Marriages may be solemnized by any justice of the peace, in the county in which he is chosen ; º;
- ized.
and they may be solemnized throughout the state by any minister of the gospel, who has been ordained ac-
cording to the usages of his denomination, and who resides in this state, and continues to be a preacher of
4 the gospel.
3.
4
bes.examined on
SEc. 8. All justices of the peace and ministers of the gospel, are hereby authorized and required, before º
. Oath.
solemnizing any marriage, to examine at least one of the parties on oath, which oath they are hereby au-
thorized to administer, as to the legality of such intended marriage.
Sec. 9. In the solemnization of marriage, no particular form shall be required, except that the parties shall No parts, lar
form requ. red
solemnly declare, in the presence of the magistrate or minister, and the attending witnesses, that they take
each other as husband and wife; and in every case, there shall be at least two witnesses, besides the minis
ter or magistrate, present at the ceremony.
Sec. 10. Whenever a marriage shall have been solemnized pursuant to the provisions of this chapter, the Certificate of
marriagé,
minister or magistrate who solemnized the same, shall give to each of the parties, on request, a certificate
under his hand specifying the names, ages and places of residence of the parlies married, the names and
residence of at least two witnesses who were present at such marriage, and the time and place of such mar-
riage.
Sec. 11. Every justice and minister shall keep a record of the marriages solemnized before him, and with Record to be
kept and certifi-
cate delivered, to
tº . . . . - * ~ *- : * * -- - --.” . * . . . . *. * * * * * $ ounty clerk.
in three months after the solemnization of any marriage, shall make and deliver to the clerk of the coun- county cler
ty in which the marriage took place, a certificate under his hand containing the particulars mentioned in the
preceding section,
Sec. 12. All such ceritificates shall be recorded by the county clerk in a book to be kept by him for that pur-
112
CHAP. 83.]
( 446 ) er [TITLE 20.
Clerk to record
certificate, his
fee.
Forfeiture of ne-
glect.
Forfeiture for
joining , persons
2
3
I
2
in marriage con-
trary to law.
Puuishment of
persons unauth-
orized, &c.
º
Marriage not
void in certain
CºláCº.,
Marriages a-
mong quakers,
&c.,
3
5
pose ; and for recording the same, the clerk shall receive a ſee of twenty-five cents from such ſhinister or
justice, who shall also be entitled to receive the same from the parties, before the marriage.
•
Sec. 13. Every justice and minister who shall neglect to make and deliver to the clerk such certificate of
sy
marriage, shall forfeit ſor each neglect, a sum not less than twenty nor more than one hundred dollars;
and every clerk who shall neglect to record such certificate, shall forfeit the like penalty.
SEc. 14. If any justice of the peace or minister of the gospel, shall join any persons in marriage contrary
to the provisions of this chapter, he shall forfeit for every such offence, a sum not exceeding five hundred
dollars.
*
Sec. 15. If any person shall undertake to join others in marriage, knowing that he is not lawfully au-
thorized so to do, or knowing of any legal impediment to the proposed marriage, he shall be deemed guilty of
z
a misdemeanor, and upon conviction thereof shall be punished by imprisonment in the county jail not more
than one year, or by a fine not less than fifty nor more than five hundred dollars, or by both such fine and
imprisonment, in the discretion of the court.
Sec. 16. No marriage, solemnized before any person professing to be a justice of the peace, or a minis-
v
ter of the gospel, shall be deemed or adjudged to be void, nor shall the validity thereof be in any way af.
fected, on accCount of any want of jurisdiction or authority in such supposed justice or minister, provided
the marriage be consummated with a full belief on the part of the persons so married, or either of them
}
that they have been lawfully joined in marriage.
Sec. 17. The preceding provisions of this chapter, so far as they relate to the manner of solemnizing
marriages, shall not affect marriages among the people called friends or qmakers; nor marriages among
people of any other particular denomination, having, as such, any peculiar mode of solemnizing marriages;
but such marriages may be solemnized in the manner heretofore used and practiced in their respective so-
cieties or denominations.
Sec. 18. The original certificates and records of marriage made by the minister or justice as prescribed
ear, sº ( 447 ) [Tirus 20.
2 in this chapter, and the record thereof made by the county clerk, or a copy of such record duly certified by
Evidence.
3 such clerk, shall be received in all courts and places, as presumptive evidence of the fact of such marriage.
CHAPTER 84.
OF DIVORCE,
1 SECTION 1. All marriages which are prohibited by law, on account of consanguity or affinity between t
2 parties, or on account of either of them having a former wife or husband then living ; all marriages so- what marriages
p 2 O O . void. without de-
cree of divorce.
3 lemnized when either of the parties was insane or an idiot, and all marriages between a white person and a
4 negro, shall, if solemnized within this state, be absolutely void, without any decree of divorce, or other le-
5 gal process. #
1 SEc. 2. In case of a marriage solemnized when either of the parties was under the age of legal consent,
Ib.
2
if they shall separate during such non-age, and not cohabit together aſter aſterwards, or in case the con-
3 sent of one of the parties was obtained by force or fraud, and there shall have been no subsequent volun-
4
tary cohabitation of the parties, the marriage shall be deemed void, without any decree of divorce or other
5
legal process.
1 SEC. 3. When a marriage is supposed to be void, or the validity thereof is doubted, for any of the causes
Suit may lie
brought in chan-
cery to annul
marriage.
2
mentioned in the two preceding sections; either party, excepting in the cases where a contrary provision is
3
hereinaſter made, may file a bill in the court of chancery for annulling the same, and such bill shall be filed,
4 and proceedings shall be had thereon as in the case of a bill filed in said court ſor a divorce; and upon due.
5 proof of the nullity of the marriage, it shall be declared void by a decree or sentence of nullity.
Amº"
1 SEC. 4. When the validity of any marriage shall be denied or doubted by either of the parties, the other
Suit in chance-
ry to affirm
party may file a bill in the manner aforesaid, for affirming the marriage; and upon due proof of the va. warriage.
2
3
lidity thereof, it shall be declared valid by a decree or sentence of the court; and such decree, unless re-
4.
versed on appeal, shall be conclusive upon all persons concerned.
CHAr. 84.j ( 448 ) [Title 20.
1 Sec. 5. When either party shall be sentenced to imprisonment for life in any prison, jail or house of cor-
Sentence to in-
prisonment for
º 2 rection, the marriage shall be thereby absolutely dissolved, without any decree of divorce or other legal
3 process, and no pardon granted to the party so sentenced, shall restore such party to his or her conjugal
4 rights.
Divorce ſrom 1 SEC. 6. A divorce from the bond of matrimony may be decreed by the court of chancery, on the applica-
bond of matri-
mony, for what
i.”” 2 tion of the aggrieved party, in either of the following cases:
3 1. Whenever adultery has been committed by any husband or wife :
4 2. When one of the parties was physically incompetent at the time of the marriage:
5 3. When one of the parties has been sentenced to imprisonment in any prison, jail or house of correction
6 for three years or more ; and no pardon granted to the party so sentenced, aſter a divorce for that cause
7 shall restore such party to his or her conjugal rights:
8 4. When either party shall desert the other, for the term of five years:
9 5. When the husband shall have become an habitual drunkard.
1 SEc. 7. A divorce from bed and board forever, Cr for a limited time, may be decreed for the cause of ex-
Divorce from
bed and board, -
when inay be & * & *
decreed. 2 treme cruelty, whether practiced by using personal violence, or by any other means; or for utter desertion
3 by either of the parties for the term of three years; and a like divorce may be decreed on the complaint of
1844, p. 74, §2. e e te
4 the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, shall gross-
5 ly or wantonly and cruelly refuse or neglect so to do.
1 SEC. 8. A divorce from the bond of matrimony may be decreed for either of the causes mentioned in the
Divorce from
ºld of nutri. 2 preceding section, whenever, in the opinion of the court, the circumstances of the case shall be such that
mony, for same
CºllSCŞ.
3 it will be discreet and proper so to do.
1 SEC. 9. No divorce shall be granted, unless the party exhibiting the bill of complaint therefor, shall have
In what cases
:*** 2 resided in this state one year immediately preceding the time of exhibiting such bill; or unless the marriage
1844, p. 74, §1. 3 was solemnized in this state, and the complainant shall have resided in this state ſrom the time of such mar-
1842, p. 116-117.
4 riage to the time of exhibiting the bill.
CHAP. 84.] ( 449 ) [TITLE 20.
I
SEC, 10. No divorce shall be decreed in any case, when it shall appear that the bill therefor was exhibited
No divorce when
complainant
by collusion between the parties, nor where the party complaing shall be guilty of the same crime or mis-"
conduct charged against the defendant.
tº e e e o © & Bill | if *
Sec. 11. A bill for a divorce may be exhibited by a wife in her own name, as well as a husband; and in #&n".
answer without
*10s
** * * * * e , p. 1U5.
all cases the defendant may answer such bill without oath or affirmation.
- tº & ſº Suits how con-
SEc. 12. Suits to annul or affirm a marriage, or for a divorce, shall be conducted in the same manner as ducted.
other suits in the court of chancery; and the court shall have the same power to award issues, to decree
*
costs, and to enforce its decrees, as in other cases.
º dº w e e e g e dº C t Iſl TC.-
Sec. 13. In every suit brought, either for a divorce, or for a separation, the court may, in its discretion, ºilo
pay expenses.
require the husband to pay any sums necessary to enable the wife to carry on or defend the suit, during its
pendency, and it may decree costs against either party, and award execution for the same, or it may di.
rect such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a
receiver.
SEc. 14. After the exhibiting of a bill in a suit to annul a marriage, or for a divorce, whether from the Court may pro
hibit restraint of
liberty of wife.
bond of matrimony, or from bed and board, the chancellor may at any time, either in term or vacation, on
the petition of the wife, prohibit the husband from imposing any restraint on her personal liberty during the
pendency of the suit.
SEC. 15. The chancellor may, in like manner, on the application of either party, make such order concer- ...
r C r]]l
care ſand .
tenance of chil-
ning the care and custody of the minor children of the parties, and their suitable maintenance, during the jº"
pendency of such suit, as he shall deem proper and necessary, and for the benefit of the children.
SEC. 16. Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a di-
Order in relation
to case &c. of
vorce, whether from the bond of matrimony, or from bed and board, the court may make such further de-jºº" "
113
CHAP. 84.] ( 450 ) .* [TITLE 20.
3 cree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children
4 of the parties, and may determine with which of the parents the children, or any of them shall remain.
1 SEC. 17. The court may, from time to time aſterwards, on the petition of either of the parents, revise
Decree may be
revised, and
ºecree 2 and alter such decree concerning the care, custody and maintenance of the children, or any of them, and
3 make a new decree concerning the same, as the circumstances of the parents, and the benefit of the chill
4 dren shall require.
When wife en-
titled to her real
€State.
1 SEC. 18. Whenever the nullity of a marriage, or a divorce from the bond of matrimony for any cause
2 excepting that of adultery committed by the wife, shall be decreed, and when the husband shall be sentenc-
3 ed to imprisonment for life, and also upon every divorce from bed and board, the wife shall be entitled to
4 the immediate possession of all her real estate, in like manner as if her husband were dead.
Restoration of
personal estate
to wife, &c.
1 SEC. 19. Upon every such dissolution of a marriage as is specified in the preceding section, and also up-
2 on every divorce from bed and board, the court may make a further decree for restoring to the wiſe the
3 whole, or such part as it shall deem just and reasonable, of the personal estate that shall have come to the
4 husband by reason of the marriage, or for awarding to her the value thereof, to be paid by her husband in
5 money,
Trustees, when 1 SEC. 20. Upon every divorce for adultery committed by the husband, and upon every divorce from bed
ºy be appoint- -
€(I.
2 and board for any cause, when any personal estate of the wife, or money in lieu thereof, shall be awarded
3 to her, as provided in the preceding section, the court instead of ordering the same to be delivered or paid
4 into the hands of the wife, may order it to be delivered or paid into the hands of a trustee or trustees, to be
5 appointed by the court, upon trust to invest the same, and to apply the income thereof to the support and
6 maintenance of the wife, and of the minor children of the marriage, or any of them, in such manner as the
g 7 court shall direct.
ſº 1 SEC 21. Such trustees shall also pay over the principal sum to the wife and children of the marriage,
tees, their bond.
2 when ordered by the court, in such proportions, and at such times as the court shall direct, regard being
Chap. 84.] ( 451 ) [Title 20.
3
4
5
1
had, in the disposition of the said income, as well as of the principal sum, to the situation and circumstan-
ces of the wife and children; and the said trustees shall give such bonds as the court shall require, for the
faithful performance of their trust.
SEc. 22. Whenever the court shall think proper to award to the wife any of her personal estate, or any Husband may be
- required to dis-
close on oath.
2 money in lieu thereof, in pursuance of the foregoing provisions, such court may require the husband to dis-
3
2
2
5
close on oath, what personal estate has come to him by reason of the marriage, and how the same has been
disposed of, and what portion thereof still remains in his hands.
SEC. 23. Upon every divorce from the bond of matrimony for any cause excepting that of adultery com-Court may fur-
ther decree ali-
mony &c.
mitted by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects
restored or awarded to the wiſe, shall be insufficient for the suitable support and maintenance of herself and
such children of the marriage as shall be committed to her care and custody, the court may further decree
to her such part of the personal estate of the husband, and such alimony out of his estate, as it shall deem
just and reasonable, having regard to the ability of the husband, and the character and situation of the par-
ties, and all the other circumstances of the case.
SEC. 24. When the marriage shall be dissolved by the husband being sentenced to imprisonment for life,
When wife en-
& * tled to divorce.
and when a divorce shall be decreed for the cause of adultery committed by the husband, or on account of Uttled to di VOrCe
his being sentenced to imprisonment for a term of three years or more, the wife shall be entitled to her dow-
er in his lands, in the same manner as if he were dead; but she shall not be entitled to dower in any other
case of divorce.
SEC. 25. When a divorce shall be decreed for the cause of adultery committed by the wiſe, the husband
Husband enti-
tled to º: §r
wife, in case of
shall hold her personal estate forever, and he shall also hold her real estate so long as they shall both live; ºr .
dultery by wife.
and if he shall survive her, and there shall shall have been issue of the marriage born alive, he shall hold
her real estate for his own life, as tenant by the curtesy.
Court may al-
low wife part of
her estate, in th9
much of her said personal or real estate, or of the income thereof, as such court shall judge necessary. lºcalonel
- S3,
SEc. 26. In the case last mentioned, the court may, by the decree, allow the wife for her subsistence, as
CHAP. 84.] ( 452 ) ITITLE 20.
Court may re-
quire sectºrity
for payment of
alimony &c.
l
2
SEC. 27. In all cases, when alimony or other allowance shall be decreed for the wiſe or children, the court
may require sufficient security to be given by the husband for the payment thereof according to the terms of
*
, 3 the decree, and upon the neglect or refusal of the husband to give such security, or upon his failure to pay
*.
Court may alfer
decree for alimo-
ny, "Čc. On pe-
tition.
4
5
such alimony or allowance, the court may sequester his personal estate, and the rents and profits of his real
estate, and may appoint a receiver thereof, and cause such personal estate, and the rents and profits of such
6 real estate, to be applied to the payment thereof.
1
2
4
Legitimacy of
children in case
of adultery.
Legitimacy in
cºse of imarriage,
& c.
Legt (imacy in
cage of former
husband or wiſe
living.
4
5
SEC. 28. After a decree for alimony or other allowance, for the wife and children, or either of them, and
also after a decree for the appointment of trustees, to receive and hold any property ſor the use of the wife
or children as before provided, the court may, from time to time, on the petition of either of the parties, re-
vise and alter such decree, respecting the amount of such alimony or allowance and the payment thereof,
and also respecting the appropriation and payment of the principal and income of the property so held in
trust, and may make any decree respecting any of the said matters which such court might have made in
the original suit.
SEc. 29. A divorce for the cause of adultery committed by the wife, shall not affect the legitimacy of the
issue of the marriage, but the legitimacy of such children, iſ questioned, may be determined by the court
upon the proofs in the cause ; and in every case, the legitimacy of all children begotten before the com-
^.
mencement of the suit shall be presumed, until the contrary be shown.
SEC. 30. Upon the dissolution of a marriage on account of the non-age, insanity or idiocy of either par-
ty, the issue of the marriage shall be deemed to be in all respeccts the legitimate issue of the parent who,
at the time of the marriage, was capable of contracting.
Sec. 31. When a marriage is dissolved on account of a prior marriage of either party, and it shall appear º
that the second marriage was contracted in º faith, and with the full belief of the parties that the former
wife or husband was dead, º ne shall be stated in the decree of divorce or nullity ; and the issue of
such second marriage, born or begotten before the commencement of the suit, shall be deemed to be the le-
gitimate issue of the parent who, at the time of the marriage, was capable of contracting.
CHAP 84.] ( 453 ) - [TITLE 20.
1
2
!
2
SEc. 32. Upon the dissolution, by decree or sentence of nullity, of any marriage that is prohibited on ac-
- Illegitimate in
- g certain cases.
count of consanguinity or affinity between the parties, or of any marriage between a white person and a
negro, the issue of the marriage.shall be deemed to be illegitimate.
SEc. 33. If any persons, after being divorced from the bond of matrimony for any cause whatever, shall º:
3.
punished.
cohabit together, they shall be liable to all the penalties provided by law against adultery.
SEc. 34. A bill to annul a marriage on the ground that one of the parties was under the age of legal con- who may exh-
bit bill to annul
... CaSC
sent, may be exhibited by the parent or guardian entitled to the custody of such minor, or by the next friend O
of such minor ; but in no case shall such marriage be annulled on the application of a party who was of the
age of legal consent at the time of the marriage, nor when it shall appear that the parties, after they had
attained the age of consent, had freely cohabited as husband and wife.
Sec. 35. A bill to annul a marriage on the ground of insanity or idiocy, may be exhibited by any person ad-in as -or us,
or lunatic who
may exhibit bill.
mitted by the court to prosecute, as the next friend of such idiot or lunatic.
SEC. 36. The marriage of a lunatic may also be declared void, upon the application of the lunatic, after When l
- - en lunatic
- may *śl,
§ º e e gº tº and when null:-
the restoration of reason ; but in such case, no sentence of nullity shall be pronounced, if it shall appear that gº to be de-
C º
the parties freely cohabited as husband and wife, after the lunatic was restored to a sound mind.
SEC. 37. No marriage shall be annulled on the ground of force or fraud, if it shall appear that, at any
- When nullity
not to be decreed
time before the commencement of the suit, there was a voluntary cohabitation of the parties as husband . .” “
and wife. *
SEC. 38. If there shall be any issue of a marriage, annulled on the ground of ſorce or fraud, the court
Issue of mar-
riage annulled
on account of
shall decree their custody to the innocent parent, and may also decree a provision for their education and §. of ſorce
Or frall (1.
3 maintenance out of the estate and property of the guilty party:
1 SEC. 39. A suit to annul a marriage, on the ground of the physical capacity of one of the parties, shall
114 4
CHAP. 84.] ( 454 ) [TITLE 20.
In case of physi-
cal incapacity,
suit to be brought
within two
years.
Decree not to be
made solely on
confession, &c.
In case of adul-
tery court may
deny divorce in
certain eases.
Court may de-
cree support,
though divorce
from bed and
board be not de-
creed.
Decrees for di-
vorce from bed
and board may
be revoked.
*
2 only be maintained by the injured party, against the party whose incapacity is alleged ; and shall, in all
3 cases, be brought within two years from the solemnization of the marriage.
1 SEc. 40. No decree of divorce, or of the nullity of a marriage, shall be made solely on the declarations,
2 confessions, or admissions of the parties; but the court shall, in all cases, require other satisfactory evi-
3 dence of the facts alleged in the bill ſor that purpose.
1 SEC. 41. In any suit brought for a divorce on the ground of adultery, although the fact of adultery be es-
2 tablished, the court may deny a divorce in the following cases:
3 1. When the offence shall appear to have been committed by the procurement, or with the connivance, of
4 the complainant :
5 2. When the offence charged shall have been forgiven by the injured party, and such forgiveness be
6 proved by express proof, or by the voluntary cohabitation of the parties, with the knowledge of the of
7 fence : -
8 3. When there shall have been no express forgiveness, and no voluntary cohabitation of the parties, but
9 the suit shall not have been brought within five years after the discovery by the complainant of the offence
10 charged.
0.
1 SEC. 42. In case of an application for a divorce ſrom bed and board, although a decree for such divorce
2 be not made, the court may make such order or decree for the support and maintenance of the wife and
3 children, or any of them, by the husband, or out of his property, as the nature of the case may render
4 suitable and proper.
I SEc. 43. When a decree of divorce from bed and board forever, or for a limited time, shall have been
2 pronounced, it may be revoked at any time thereaſter, under such regulations and restrictions as the court
3 may impose, upon the joint application of the parties, and their producing satisfactory evidence of their re-
4 conciliation.
CHAP. 85.1 ( 455 ) [TITLE 20.
CHAPTER 85.
GENERAL PRovISIONS CONCERNING HUSBAND AND WIFE.
1 Sporros 1. When any married man shall absent himself from the state abandoning his wife, and not ma-
When husband
abandons wife,
o iº º O certain powers
2 king sufficient provision for her maintenance, if the wife is of the age of twenty-one years, the probate º granted
3 court of the county in which she resides may, on her petition, authorize her to sell and convey or lease her
4 real estate, or any part thereof, and also to sell and dispose of any personal estate which shall, at any time
5 have come to the husband, or to which he may be entitled, by reason of the marriage, and which may re-
6 main in this state undisposed of.
1 SEc. 2. The probate court may also, upon the petition of the wife, authorize any porson owing or hold- Authority may
be given to deli-
ver property to
ife, &c.
2 ing any money or other personal estate, to which the husband is entitled in her right, to pay and deliver the Wl
3 same to the wife, and may authorize her to give a discharge for the same, which discharge shall be as va-
4 lid as if made by the husband.
1 SEC. 3. All the proceeds of such sales, and all other money and personal estate, which shall come to the
Proceeds of
sales, &c., may
be disposed of
2 hands of the wife by force of this chapter, may be used and disposed of by her, during the absence of her §§
3 husband, as her own property, in the same manner as if she were unmarried.
1 SEC. 4. The said court may further authorize such married woman to make any contract, under seal or Court may au-
- thorize CO IntractS
by married wo—
2 otherwise, in her own name, and also to commence, prosecute and defend any suit or suits in law or equity," &c.
3 to final judgment and execution, in like manner as if she were unmarried.
1 SEC. 5. Every woman so authorized, may make and execute any deeds and other instruments, in her own peeds, &c., may
; executed by
CI's
2 name, and do all other lawful acts, that may be necessary or proper to carry into effect the powers so gran-
3 ted to her.
1 SEC. 6. The power so granted to a married woman, shall continue, and may be exercised, until her hus-
How long pow-
erS to COſ liſh llê.
2 band shall return into this state and claim his marital rights.
CHAP. 85.]
( 456 ) [Trrie 20.
Effect of con-
trac{S.
Liability of mar-
ried women.
Husband may
become party to
suits.
Suit to proceed,
if husband docs
not become a
party.
Petition to pro-
bate Court, no-
tice and hearing.
When husband
scntenced to im-
prisonment, wife
may have cer-
tain powers.
1 SEc. 7. All contracts lawfully made by any married woman, by virtue of such power, shall be binding on
2 her and her husband, in like manner as if their marriage had taking place after the making of such con-
3 tracts; and she shall, during the absence of her husband from the state, be liable to be sued thereon as if
4 she were unmarried.
1 SEC. 8. She shall also be liable to be sued, in like manner, for all other acts done, or liabilities incurred
2 by her during the continuance of the power so granted to her.
1 SEc. 9. No suit wherein such woman shall be a party, under the provisions of this chapter, shall be aba-
2 ted by the return of her husband into the state, but he may, on his application, be admitted to prosecute or
3 defend the suit, jointly with her, in like manner as if they had intermarried after the commencemont of the
4 suit.
1 Sec. 10. If the husband shall not be admitted as a party to the suit, it shall proceed to judgment and exe-
2 cution as if he had not returned to the state ; and any judgment recorded against the wife, may be eniorced
3 against him, in like manner as if it had been rendered against her before their intermarriage.
1 SEC. 11. Every petition of a married woman for the purposes mentioned in the preceding sections of this
2 chapter, shall be verified by the oath of the petitioner, and upon the presentation thereof, the probate court
3 shall appoint a time and place of hearing, and shall cause notice of such hearing to be given, either by
4 publishing the same in a newspaper for three successive weeks, or by posting up copies thereof at least
5 three weeks before such hearing, in such places as the court may direct.
1 SEC. 12. When any married man shall be sentenced to confinement in the state prison, his wife may, on
2 her petition to the probate court of the county in which she resides, be authorized to sell and convey her es-
3 tate and do any or all other acts which may, according to the provisions of this chapter, be done by a married
4 woman, when authorized as before provided, in the absence of her husband, and with the like effect in all
5 respects; and the authority so granted to the wife of a convict, may continue and be exercised until the
6 discharge of her husband from prison.
CHAP. 85.] ( 457 ) ITITLE 20.
1 Sec. 18. The petition of the wife of such convict shall be presented, and the proceedings thereon conduct.
2
Petition by wife
of convict.
* * & is i
self from the state, except that where evidence of the sentence of the husband shall be ſurnisned at the time
of presenting the petition, it shall not be necessary to defer the hearing, or give notice thereof.
sº
Sec. 14. When the guardian of any married man shall be duly licensed to sell the real estate of his ward, wife may join
guardian in con -
veyan ce, &c.
the wife of the ward may, if she thinks proper, join with the guardian in the conveyance, and thereby re-
lease her right of dower in the granted premises, in like manner as she might have done, by joining in a
conveyance thereof made by her husband, if he had been under no legal disability.
Sec. 15. When such guardian shall be licensed to sell the interest of the ward in any real estate of his lb.
wife, the wife may, if she thinks fit, join with the guardian in the conveyance, and thereby sell and convey
all her estate and interest in the granted premises, in like manner as she might have done by joining in a
conveyance thereof made by her husband, if he had been under no legal disability.
SEc. 16. In case of any such release by the wife, of her right of dower, or of any such conveyance of
Release of dow-
cr, &c.
her own estate, the proceeds of the sale may be so invested and disposed of, as to secure to her the same
right, use and benefit of and in the principal sum and the income thereof, that she would have had of and
in such real estate and the income thereof, if it had not been sold.
SEC. 17. Any agreement made between the wife and the guardian of her husband, for Securing and dis- Agreement he-
ſween wife and
wº g guardian.
posing of the proceeds of any such sale, or any part of such proceeds, for the purpose mentioned in the
preceding section, being approved and confirmed by the judge of probate who granted the license to sell,
or by the circuit court on an appeal from the decision of the judge of probate, shall be valid and binding up-
on all persons interested in the estate, and may be enforced by an action at law, or a suit in chancery.
SEc. 18. When the real estate of any married woman shall be taken for any public use, or shall be dam-
When real estate
of married wo-
*ged by the laying ºut and establishing of a highway, railroad, turnpike, or other public work, the dam.;"
115 sº
CHAP. 85.]
( 458 ) [TITLE 20.
Probate court
may make de-
crecs for secur-
ing rights of
wife.
Married woman
coming from an-
Other State or
county without
her husband.
Powers and lia-
bilities of such
married Woman.
Husbands com-
ing into this state
and claiming
marital rights,
effect Of.
Wife of ward
may join in par-
(i.ion of her real
e State.
1839, p. 220, §10.
Ö
3 ages or compensation awarded therefor may be so invested and disposed of, as to secure to her the same
4 right, use and benefit, of and in the sum so awarded, and the income thereof, as she would have had of and
5 in the real estate and the income thereof, if it had not been so taken or damaged,
1
2
3
SEc. 19. On application of any such woman to the probate court of the county in which such real estate
is situated, or of the county in which she resides, such court may hear and determine the case, and may
e”
make all such orders and decrees as shall be necessary and proper to enforce and secure her said rights and
*
interests.
SEC. 20. When any married woman shall come from any other state or country into this state, without her
husband, he having never lived with her in this state, she may transact business, make contracts, and com-
mence, prosecute, and defend suits in her own name, and dispose of her property which may be found in
this state, or which she may acquire, in like manner, in all respects, as if she were unmarried.
SEC. 21. Such married woman shall be liable to be sued as if she were unmarried, upon all contracts, and
for all other acts, made or done by her after her arrival in this state; and she may make and execute any
deeds and other instruments, in her own name, and do all other lawful acts, that may be necessary or proper
to carry into effect the powers herein granted to her.
43
SEC. 22. If the husband of any such woman shall afterwards come into this state, and claim his marital
rights, his arrival here shall have the same effect, with regard to any suit then pending, in which she is a
party, and to any contract made, or business transacted by her under the power granted to her by the pro-
visions of this chapter, as if they had been just married at the time of his arrival here, and shall have no oth-
5 er effect.
1
SEC, 23. The wife of any man who is under guardianship, may join with the guardian in making partition
2 of her own real estate, held in joint tenancy or in common, and may, jointly with such guardian, make any
3 release or other conveyance necessary or proper for that purpose, in like manner as she might have done
4 with her husband, if he had been under no legal disability,
CHAP. 86.] ( 459 ) ... [TITLE 20.
1 SEC. 24. Upon a divorce from bed and board the wiſe shall have the same powers and rights in respect to
Powers of wife
on divorce from
ë e e l,
2 her real and personal estate, and to such as she may afterwards acquire, and shall be subject to the same lia- bed and board
*
3 bilities in all respects, as an unmarried woman, and may sue and be sued in her own name in like manner.
CHAPTER 86.
OF GTARE) IANS AND WARDS.
1 SECTION 1. The judge of probate in each county, when it shall appear to him necessary or convenient,
Judge of pro-
bate may appoint
2 may appoint guardiuns to minors and others, being inhabitants or residents in the same county; and also to guardians.
*
3 such as shall reside without the state, and have any estate within the same.
e : … • *- : + ears, the iudge of pr I & - . &
1 SEC. 2. If the minor is under the age of fourteen years, the j ge of probate may nominate and appoint Who no nomi-
nate guardians.
2 his guardian, and if he is above the age of fourteen years, he may nominate his own guardian, who, if ap-
3 proved by the judge, shall be appointed accordingly.
1 Sce. 3. If the guardian nominated by such minor, shall not be approved by the judge, or if the minor shall In what case
judge to nomi-
- Ilate.
2 reside out of this state, or if, after being cited by the judge, he shall neglect for ten days to nominate a suita-
3 ble person, the judge may nominate and appoint the guardian, in the same manner as if the minor were un-
4 der the age of fourteen years.
1 SEC. 4. When such minor, being above the age of fourteen years, shall reside more than ten miles from When nomia-l
- tion may be cer–
tified by justice
2 the place of holding the probate court, his nomination of a guardian may be certified to the judge of pro- of the peace, &c.
3 bate by a justice of the peace, or by the township clerk, which shall have the same effect as if made in the
4 presence of the judge.
1 SEC. 5. The ſather of the minor, if living, and in case of his decease, the mother, while she remains un- parent,when en-
titled to custody
of minor child.
2 married, being themselves respectively eompetent to transact their own business, and not otherwise unsuita-
1840, p. 139, $2.
3 ble, shall be entitled to the custody of the person of the minor, and to the care of his education.
Chap. 86.] ( 460 ) [TITLE 20.
When guardian
to have custody
of ward, &c.
Powers and de-
crees of guar-
dians.
Bond of guar-
dian.
When expenses
of education to
be defrayed from
income of pro-
perty of minor.
1
2
10
11
12
13 from him on such settlement, to the person or persons who shall be lawfully entitled thereto.
1
2
3
Snc. 6. If the minor have no father or mother living and competent to have the custody, and care of the
education of such minor, the guardian so appointed shall have the custody and tuition of his ward.
|
Sec. 7. Every guardian appointed as aforesaid, shall have the care and management of the estate of the
minor, and shall continue in office until such minor shall arrive at the age of twenty-one years, or until the
guardian shall be discharged according to law.
SEc. 8. Every such guardian shall give bond, with Snrety or sureties, to the judge of probate, in such sum
as the judge shall order, with condition as follows:
1. To make a true inventory of all the real estate, and of all the goods, chattels, rigº and credits of the
ward, that shall come to his possession or knowledge, and to return the same into the probate court at such
time as the judge shall order:
2. To dispose of and manage all such estate and effects according to law, and for the best interest of the
war, and faithfully to discharge his trust as such guardian :
3. To render an account on oath, of the property in his hands, including the proceeds of all the real es-
tate which may be sold by him, and of the management and disposition of all such property, within one
year after his appointment, and at such other times as the judge of probate shall direct; and,
4. At the expiration of his trust to settle his accounts with the judge of probate, or with the ward, or his
legal representatives, and to pay over and deliver all the estate and effects remaining in his hands, or due
SEC. 9. If any minor, who has a father living, has property, the income of which is sufficient for his main-
tenance and education, in a manner more expensive then his father can reasouably afford, regard being had
to the situation of the father’s family, and to all the circumstances of the case, the expenses of the education
4 and maintenance of such minor may be defrayed out of the income of his own property, in whole or in part,
5
as shall be judged reasonable, and shall be directed by the probate court, and the charges therefor may be al-
6 lowed accordingly in the settlement of the accounts of his guardian.
1
SEc. 10. Every father may by his last will in writing, appoint a guardian or guardians for any of his chil-
CHAP. 86.] - ( 461 ) [TITLE 20.
2 dren, whether born at the time of making the will or afterwards, to continue during the minority of the child,
Appointment of
guardian by will.
3 or for any less time; and every such testamentary guardian shall have the same powers, and shall perform
4 the same duties, with regard to the person and estate of the ward, as a guardian appointed by the judge of
5 probate.
1 SEc. 11. Every such testamentary guardian shall give bond in like manner, and with like condition, as is
When testamen-
e * & gº * tary guardian to
2 herein before required of a guardian appointed by the judge of probate ; provided, that when the testator, 4"“”
3 in the will appointing the guardian, shall have ordered or requested that such bond shall not be given, the
4 bond shall not be required, unless from a change in the situation or circumstances of the guardian, or fo
5 other sufficient cause, the judge of probate shall think proper to require it.
1 SEc. 12. Nothing contained in this chapter shall impair or affect the power of any court of common law,
Powers of courts
to appoint guar-
* : & - o ſº ... dians or next
2 probate court, court of chancery, or court of a justice of the peace, to appoint guardians to defend the in- jºo ºse.
or defend suits,
&c.
3 terests of minors impleaded in such court, or interested in any matter there pending, nor their power to ap-
4 point or allow any person as next friend for a minor, to commence, prosecute or defend any suit in his be-
5 half.
1 SEc. 13. When the relations or friends of any in * *
• f any insane person, or of any person who, by reason of extreme Application for
guardian of in-
tº e same person.
2 old age or other cause is mentally incompetent to have the charge and management of his property, shall
3 apply to the judge of probate to have a guardian appointed for him, the judge shall cause a notice to be gi- 1840, p. 65, $19
C+U, p. U9, S18.
4 ven to the supposed insane or incompetent person, of the time and place of hearing the case, not less than
5 fourteen days before the time so appointed.
1 SEC. 14. If after a full hearing and examination upon any such application, it shall appear to the judge
2 of probate that the person in question is incapable of taking care of himself and managing his property, Hearing.
3 he shall appoint a guardian of his person and estate, with the powers and duties hereinafter specified.
1 SEc. 15. Every guardian so appointed as provided in the preceding section, shall have the care and custo-
2 dy of the person of his ward, and the management of all his estate, until such guardian shall be legally dis- iº.
116
CHAP. 86.]
( 462 ) [TITLE 20.
When guardian
may be appoint-
ed for spend.
thrift,
Notice to sup-
posed spend-
thrift.
Copy of com-
plaint may be
filed with regis-
ter of deeds.
Allo Wance for
expense of de-
fending.
Powers and du-
ties of guardian
of spendthriſt.
3
4
l
2
5
charged ; and he shall give bond to the judge of probate, in like manner, and with the like condition, as is
before prescribed with respect to the guardian of a minor.
...A.
SEC. 16. When any person by excessive drinking, or by gaming, idleness or debauchery of any kind,
shall so spend, waste or lessen his estate, as to expose himself or his family to danger of want or suffering,
or the county to charge or expense for the support of himself or his family, any superintendent of the poor
of the county, or director of the poor, or justice of the peace of the township of which such spendthrift is
an inhabitant, or in which he resides, may present a complaint to the judge of probate, setting forth the facts
and circumstances of the case, and praying to have a guardian appointed for him.
SEC. 17. The judge of probate shall cause notice to be given to such supposed spendthrift, of the time and
place of hearing the case, not less than fourteen days before the time so appointed; and if, after a full hear-
ing it shall appear to the court that the person complained of comes within the description contained in the
preceding section, he shall appoint a guardian of his person and estate, with the powers and duties herein-
after specified.
SEc. 18. After the order for notice has been issued, the complainant may cause a copy of the complaint,
with the order for notice, to be filed in the one, of the register of deeds for the county, and if a guardian
shall be appointed upon such application all contracts, excepting for necessaries at reasonable prices, and
all gifts, sales or transfers of real or personal estate, made by such spendthrift after the filing of a copy
of such complaint and order as aforesaid, and beſore the termination of the guardianship, shall be utterly
void.
SEc. 19. When a guardian shall be appointed for an insane person or a spendthrift, the judge shall make
an allowance, to be paid by the guardian, for all reasonable expenses incurred by the ward in defending
himself against the complaint.
SEC, 20. Every guardian appointed for a spendthrift, shall have the care and custody of the person of the
ward, and the management of all his estate, until the guardian shall be legally discharged; and he shall
CHAP. 86. ( 463 ) [TITLE 20.
3
4
|
2
give bond to the judge of probate, in like manner, and with like condition, as is herein before directed with
respect to the guardian of an insane person.
Guardian to pay
debis of ward e.
out of his estat
Sec. 21. Every guardian appointed under the provisions of this chapter, whether for a minor or any other
person, shall pay all just debts due from the ward out of his personal estate and the income of his real es-
tate, if sufficient, and if not then out of his real estate, upon obtaining a license for the sale thereof and
disposing of the same in the manner provided by law.
SEC. 22. Every such guardian shall also settle all accounts of the ward, and demand, sue for and receive
- Guardian to set-
tle accounts and
- t e e - , collect debts of
all debts due to him, or may, with the approbation of the judge of probate, compound for the same, and give ward.
a discharge to the debtor, on receiving a fair and just dividend of his estate and effects; and he shall appear
for and represent his ward, in all legal suits and proceedings, unless where another person is appointed for
that purpose as guardian or next friend.
SEC. 23. Every guardian shall manage the estate of his ward frugally and without waste, and apply the
How estate to be
managed.
income and profits º so far as may be necessary, for the comfortable and suitable maintenance and
support of the ward, and his family, if there be any ; and if such income and profits shall be insufficient
for that purpose, the guardian may sell the real estate, upon obtaining a license therefor as provided by law,
and shall apply the proceeds of such sale, so far as may be necessary, for the maintenance and Support of
the ward, and his family if there be any.
SEC. 24. The guardian may join in and assent to a partition of the real estate of the ward, in the Cases,
Gurdian may as-
sent to partition
and assign dow-
and in the manner provided by law, and he may also assign and set out dower in the said estate to any wid-er.
ow entitled thereto.
SEC 25. Upon the taking of any inventory required by this chapter, the estate and effects comprised there.
Appraisal of es-
tate, and person-
al estate how
in shall be apprised by three suitable persons, to be appointed and sworn in like manner as is required with disposed of.
respect to the inventory of the estate of a deceased testator or intestate ; and every guardian shall account
for and dispose of the personal estate of the ward, in like manner as is directed with respect to executor
and administrators.
- . . . . ) - ¥
Transfer of
stocks, &c.
Removals and
resignations of
gnardians.
Marriage of ſc-
male ward ter-
minutes guar-
dianship. Dis-
charge of guar-
dian in certain
C8 SCS,
When new bond
to be given, &c.
Bond may be
put in suit.
CHAP, 86.] ( 464 ) [TITLE 20.
1 Sec. 26. The judges of probate in their respective counties, on the application of a guardian, or of any
2 person interested in the estate of any ward, after such notice to all persons interested therein as the judge
3 of probate shall direct, may authorize or require the guardian to sell and transfer any stock in public funds,
4 or in any bank or other corporation, or any other personal estate or effects held by him as guardian, and to
5 invest the proceeds of such sale, and also any other moneys in his hands, in real estate, or in any other
6 manner that shall be most for the interest of all concerned therein; and the said probate court may make
7 such further orders, and give such directions, as the case may require, for managing, investing, and dispo-
8 sing of the estate and effects in the hands of the guardian.
1 SEC. 27. When any guardian, appointed either by a testator or the judge of probate, shall become insane,
2 or otherwise incapable of discharging his trust, or evidently * therefor, the judge of probate, after
3 notice to such guardian, and all others interested, may remove him ; and every guardian may, upon his re-
4 quest, be allowed to resign his trust, when it shall appear to the judge of probate proper to allow the same ;
5 and upon every such resignation or removal, and upon the death of any guardian, the judge of probate may
6 appoint another in his place,
1 Sec. 28. The marriage of any female who is under guardianship as a minor, shall terminate such guar.
2 dianship ; and the guardian of any insane person, spendthriſt, or other person, may be discharged by the
3 judge of probate, when it shall appear to him, on the application of the ward or otherwise, that such guar-
4 dianship is no longer necessary.
1 SEc. 29. The judge of probate may require a new bond to be given by any guardian whenever he shall
2 deem it necessary, and may discharge the existing sureties from ſuture responsibility, after due notice given
3 as such court may direct, when it shall satisfactorily appear that no injury can result therefrom to those in-
4 terested in the estate.
1 SEC. 30. Any bond given by a guardian may be put in suit by order of the judge of probate, for the use
3 and benefit of the ward, or of any person interested in the estate; and the proceedings in such suit shall
CHAP 86.] ( 465 ) [TITLE 20.
3
4
1.
l
be conducted in like manner as is provided with respect to suits on the bonds of executors or administra-
torS.
SEc. 31. No action shall be maintained against the sureties in any bond given by a guardian, unless it be
Within what
time action to be
brought against
commenced within four years from the time when the guardian shall have been discharged : provided, that surelies.
if at the time of such discharge, the person entitled to bring such action shall be out of the state, or under
.*
any legal disability to sue, the action may be commenced at any time within ſour years, after the return of
such person to the state, or after such disability shall be removed.
SEc. 32. Upon complaint made to the judge of probate by any guardian, or by the ward, or by any credi-
. tº tº tº & & ... Proceedings in
tor or other person interested in the estate, or by any person having any prospective interest therein, case of embez:
zlement, &c.
as heir or otherwise, against any one suspected of having concealed, embezzled, or conveyed away any of
the money, goods or effects, or any instrument in writing, belonging to the ward, the judge may cite and
examine such suspected person, and proceed with him as to such charge, in the same manner as is provided
with respect to persons suspected of concealing or embezzling the effects of a deceased testator or in-
testate.
SEC. 33. When any minor or other person liable to be put under guardianship, according to the provis-
Guardian for mi-
mors, &c. resi- “l
ions of this chapter, shall reside without this state, and shall have any estate therein, any friend of such jº""
person, or any one interested in his estate, in expectancy or otherwise, may apply to the judge of probate
of any county in which there may be any estate of such absent person; and aſter notice given to all per
sons interested, in such manner as the judge shall order, and after a full hearing and examination, if it shall
appear to him proper, he may appoint a guardian for such absent person,
SEC. 34. Every guardian appointed according to the provisions of the preceding section, shall have the
Powers and du-
ties of such
same powers, and perform the same duties with respect to any estate of the ward that shall be ſound within"
§
this state, and also with respect to the person of the ward, if he shall come to reside therein, as are pre-
4 scribed with respect to any other guardian appointed by force of this chapter.
117
CHAP. 87.] ( 466 ) [TITLE 20.
1 SEc. 35. Every such guardian shall give bond to the judge of probate, in like manner, and with the like
Bond.
2 condition, as is herein before provided with respect to other guardians, excepting that the provisions respec-
3
ting the inventory, the disposal of the estate and effects, and the account to be rendered by the guardian,
4
shall be confined to such estate and effects as shall come to his hands in this state.
1 SEc. 36. The guardianship which shall be first lawfully granted, of any person residing without the state
Extent of guar- y
dianship of ab–
sent minors, &c.
2
shall extend to all the estate of the ward within the same, and shall exclude the jurisdiction of the probate
3 court in every other county.
compensation 1 SEC. 37. Every guardian shall be allowed the amount of his reasonable expenses incurred in the execu-
of guardians. -
2 tion of his trust, and he shall also have such compensation for his services, as the court in which his ac-
3 counts are settled, shall deem to be just and reasonable.
1 SEC. 38. When an account is rendered by two or more joint guardians, the judge of probate may, in his
Account of joint
guardians.
2 discretion, allow the same, upon the oath of any one of them.
1 SEc. 39. The word “spendthrift” in all the provisions relating to guardians and wards, contained in this
Word “spend- 2
thrift” defined. or any other statute, is intended to include every person who is liable to be put under guardianship, on ac-
3 count of excessive drinking, gaming, idleness, or debauchery.
CHAPTER 87.
OF MASTERS, APPENTICES AND SERVANTs.
1 SECTION 1. Every male infant, and every unmarried female under the age of eighteen years, with the con-
Infants may bind e - -
...:"we 2 sent of the persons or officers hereinafter mentioned, may, of his or her own free will, bind himself or her-
appr 3 * ~ v -
for what terms.
self in writing, to serve as clerk, apprentice or servant, in any profession, trade or employment, if a male,
4
until the age of twenty-one years, and if a ſemale, until the age of eighteen years, or until her marriage
5
within that age, or for any shorter time; and such binding shall be as valid and effectual as if such inſant
6 was of full age, at the time of making such engagement.
CHAP. 87.] ( 467 ) [TITLE 20.
I
2
10
SEC. 2. Such consent shall be given,
Consent by .
whom to be giv-
1. By the father of the infant. If he be dead, or be not in a legal capacity to give his consent, or if he"
shall have abandoned and neglected to provide for his family, and such fact be certified by a justice of the
peace of the township, and endorsed on the indenture, then,
•gº
2. By the mother. If the mother be dead, or be not in a legal capacity to give such consent, or refuse,
then,
3. By the guardian of such infant duly appointed. If such infant have no parent living, or none in a le-
*
gal capacity to give consent, and there be no guardian, then,
4. By the directors of the poor, or any two justices of the peace of the township where such infant shall
reside.
tº ſº e & * - & li t
Sec. 3. Such consent shall be signified by the person or officers entitled to give the same, by writing a Hºnº
the end of, or endorsed upon each part of the indentures, signed by such person or officers, and not other-
wise.
SEC. 4. No minor shall be bound as aforesaid, unless by indentures in two parts, sealed and delivered by Indentures,
both parties.
*
SEC. 5. The coun y superintendents of the poor, in the several counties, may bind out any child, under
Wheu county
superintendents
tº e of the poor may
the ages above specified, who shall be sent to any county poor house, or who is or shall become chargeable bind minors.
or whose parent or parents shall become chargeable to such county, to be clerks, apprentices, or servants,
until such child, if a male, shall be twenty-one years old, and if a female, shall be eighteen years old, or
5 until her marriage within that age; which binding shall be as effectual as if such child had bound himself
*~
6 or herself with the consent of his or her father.
l
2
3
SEC. 6. The directors of the poor of any township or city, may also bind out any such child, who, or
When direet Org
of poor may
whose parent or parents shall become chargeable to the county, and who shall be supported in their town- bind.
ship, with the consent in writing of one of the county superintendents of the poor.
CHAP. 87.] ( 468 ) [TITLE 20.
Age of minor to
be inserted in
indentures.
Coututerpart
where to be de-
posited. Pre-
visions to be in-
solted.
Moneys &c. paid
by master to be
for use of minor.
Who to inquire
into treatment of
children, and to
defend them.
Complaint a-
gainst master for
misconduct.
When court may
discharge minor
and award costs
gainst master.
1
2
1
1
SEC. 7. The age of every infant, bound pursuant to the provisions of this chapter, shall be inserted in the
indentures, and shall be taken to be the true age without further proof thereof, and whenever any public
officers are authorized to execute any indentures, or their consent is required to the validity of the same, it
shall be their duty to inform themselves fully, of the infant’s age.
SEc. 8. The counterpart of any indentures executed by the county superintendents of the poor, shall be
by them deposited in the office of the clerk of the county; and the counterpart of any such indentures exe-
cuted by the directors of the poor, shall be by them deposited in the office of the clerk of their township or
city; and provision shall be made in every such indenture for teaching the minor to read, write and cypher,
and for such other instruction, benefit and allowance, as such superintendents or directors may think reason-
able.
SEC. 9. All considerations of money or other things paid or allowed by the master, upon any indenture of
apprenticeship or service, made in pursuance of this chapter, shall be paid or secured to the sole use of the
minor thereby bound.
SEc. 10. Parents and guardians, and superintendents and directors of the poor, shall inquire into the treat-
ment of all children bound by them respectively, or with their approbation, and of all who shall be bound
by their predecessors in office, and defend them from all cruelty, neglect, or breach of the indentures on
the part of their masters.
SEC. 11. In case of any such misconduct or neglect of the master, a complaint may be filed by the parent
or guardian, or by the superintendents or directors of the poor, in the probate court for the county in which
the master resides, setting forth the facts and circumstances of the case, and the court, aſter having caused
such notice as it shall deem reasonable, to be given to the master, shall proceed to hear and determine the
Call IS6,
SEc. 12. After a full hearing of the parties, or of the complainant alone in case the master shall neglect
2 to appear, the court may make an order or decree, that the minor be discharged from his apprenticeship or
CHAP. 87.] ( 469 ) [TITLE 20.
3 service, and for the costs of the proceeding against the master, and may issue execution therefor accordin g-
4 ly, and the minor may be bound out anew, unless such order be reversed on appeal.
1 Sec. 13. If the complaint be not sustained, the court shall order costs to be paid by the complainant to
When costs to
- be awarded a-
. . . e * - 0 o - & e gainst complain-
2 the master, and issue execution therefor accordingly ; excepting, that if such complaint be made by the *
3
superintendents or directors of the poor, the court shall not award costs against them, unless it shall appear
4 that the complaint was made without any just or reasonable cause.
1 SEc. 14. Every master shall also be liable, whether such complaint shall have been filed or not, to an ac-
Master when lia-
ble to action.
2
tion on the indenture, for the breach of any covenant on his part therein contained ; which action shall be
3
brought in the name of the minor by his guardian or next friend, or by himself, after his majority.
1 SEC 15. If such action be brought, and a recovery be had, during the minority of such apprentice or ser- º; i.
- - ered how dispo-
sed of.
2 vant, the damages recovered in such action, after paying the necessary charges of the prosecution, shall
3 be the property of the minor, and may be appropriated to his use, or invested for his benefit in the same
4 manner as any other property belonging to such minor.
1 SEc. 16. No such action shall be maintained by any apprentice or servant, unless it be commenced during within what
time action to be
commenced.
2
the term of apprenticeship or service, or within two years after the expiration thereof.
1 SEc. 17. If judgment in such action shall, upon the final determination thereof, be rendered for the plain-
c e º e - - \, - -
2 tiff, the court in which the same is prosecuted may thereupon, by an order to be entered in its minutes, dis- †.”
plaintiff, minor.
may be dischar-
3 charge the minor from his apprenticeship or service, if it shall not have been already done in the manner *
**
4 before provided, and the minor may thereupon be bound out anew.
1 Sec. 18. If any apprentice or servant bound as aforesaid, shall unlawfully depart from the service of his pºems, it
- * Oce Il tº .
- ;
servant leaves
2 master, any justice of the peace, upon complaint on oath made to him by the master, or by any one in his . º:*
3 behalf, may issue his warrant to apprehend the apprentice or servant, and bring him before such justice.
118
Chap. 87.] ( 470 ) [Trrle 20
Justice may or-
der offender to
be returned, or
may eonmit
him.
Effect of war-
Tallt,
Who to pay
COS18. -
Complaint a-
ainst apprentice
for misbehavior
and proceedingſ
thereon.
When Court
may discharge
master from ob-.
ligation, &c.
Minor dischar-
ged by death of
Inagter.
1 Sec. 19. If such complaint be supported, the justice may order the offender to be returned to his master,
2 or may commit him to the common jail or house of correction, there to remain for a term not exceeding
3 twenty days, unless sooner discharged by his master.
'O. *
1 Sec. 20. The justice's warrant, when directed to any officer or other person by name, shall authorize him
2 to convey the offender to the place of residence of the master, although it may be in any other oounty in
3 the state.
1 SEc. 24. All the costs incurred on any such process against an apprentiee or servant, shall be paid in the
2 first instance by the master ; and if the complaint be supported, the amount of such costs may be recovered
3 in an action against the minor, after he shall arrive at fall age.
.*
* SEc. 22. If any such apprentice or servant shall be guilty of any gross misbehavior, or refusal to do his
2 duty, or wilful neglect thereof, his master may file his complaint in the probate court of the county in which
3 he resides, and the court, after causing such notice as it shall deem reasonable to be given to the parent or
4 guardian who consented to the binding of such apprentice or servant, or to the officers who bound him, or
5, their successors in office, shall proceed to hear and determine the cause.
1 Sec. 23. After a ſull hearing of the parties, or of the complainant, if the adverse party shall neglect to
2 appear, the court may make an order or decree, that the master be discharged from the contract of ap-
3 prenticeship or service, and for the costs of the suit, and the amount of sush costs may be recovered in an
4 action against the minor, with interest thereon, after he shall have arrived at full age, and such minor may
5 be bound out anew.
I Sec. 24. No indenture of apprenticeship or service, made in pursuance of this chapter, shall bind the mi-
2 nor after the death of the master, but the minor shall be thenceforth discharged therefrom, and may be bound
3 out anew.
I Sec. 25. An indenture of apprenticeship or service, made in pursuance of this chapter, by or in behalf of
*
CHAP. 88, J ( 471 ) {Title 21.
2 a minor, may be made either with a woman or man, if capable in law ef contracting, and all the foregoing Preceding pro-
visions apply to
mistresses as
3 provisions shall apply as well to mistresses as to masters. masters.
1 Sec. 26. Nothing contained in this chapter shall prevent, or affect the right of a father, by the common P f
- ...º.
Services of child
2 law, to assign or contract for the services of his children for the term of their minority, or of any part not affected,
3 thereof.
1 Sec. 27. The mother of an illegitimate minor child shall have power to give the consent authorized in this mothe, or mes.
timate child may
consent to bind-
2 chapter, to the binding of such child, during the lifetime of the putative father, as well as after his death. 1g0.
TITLE XXI.
Of CourTs AND JUDICIAL OFFICERs. . .
ChapTER 88.—Of the Supreme Court.
“ 89.-Of the Circuit Courts.
“ 90.-Of the Court of Chancery.
“ 91.-Of the Probate Courts. *
“ 92.-Of the District Courts for the Counties of Wayne, Oakland, Washtenaw
and Jackson. * -
“ 93.−Of Courts held by Justices of the Peace.
“ 94.—Of Courts of Special Sessions. º " A s -
“ 95.—Of Supreme Court Commissioners, Attorneys, and othèr judièial Offi-
CerS.
“ 96–General Provisions concerning Courts, and the powers and duties of
certain Judicial Officers.
CHAPTER 88.
OF THE SUPREME COURT.
1 Secrion 1. The supreme court shall consist of five judges, one of whom shall be styled the chief justice,
* - - -- i. º: .
2 and the other four of whom shall be styled associate justices, who shall be appointed and shall hold their of preme court.
e ë . . tº ſº * * - - Const., art. 6,
3 fices as provided in the constitution of this state. :*:
Char. 81.j - ( 472 ) [Title 21.
Jurisdiction.
Supervision of
inferior courts.
Terms of the
COU rt,
When terms to
be holdcn.
Special terms.
2
2
\
Sec. 2. The said court shall have original and appellate jurisdiction of all such matters and suits at law
and in equity, as may be lawfully brought before it; and shall also have jurisdiction of suits, actions and
matters brought before it by writ of certiorari or writ of error, when the same shall be allowed by law, to
any inſerior court, to magistrates and other officers, as well in cases of prosecution for any offence, mis-
demeanor or penalty, in the name of the people of this state, as in other cases; and shall have authority to
issue writs of error, prohibition, certiorari, mandamus, habeas corpus, procedendo, supersedeas, and all oth-
er process which may be necessary for the due execution of the law, and the administration of justice, and
the full and perfect exercise of its jurisdiction, and to hear and determine thereon, according to the princi-
ples and usages of law and equity.
SEC. 3. The supreme court shall have the general supervision of all courts of law of inſerior jurisdic-
tion, to prevent and correct errors and abuses therein, when no other remedy is expressly provided by law.
Sec. 4. There shall be four several terms of the supreme court held in each year, cominencing as follows
to wit: on the first Mondays, of January, May, and July, and the third Monday of October; which said
terms shall respectively be called the January, May, July, and October terms of said court.
Sec. 5. The terms of said court shall be held as follows:
1. The January and July terms in each year, at the supreme court room in the city of Detroit in the coun-
ty of Wayne :
2. The May term in each year, at the court-house, in the village of Kalamazoo, in the county of Kala-
* Y
Imal2OO :
3. The October term in each year, at the court-house in the village of Pontiac, in the county of Oak-
land.
Sec. 6. The said court may direct a special term thereof to be held at either of the places above named,
whenever they shall deem it necessary, by an order therefor, which they shall cause to be published at least
3 thirty days before the time appointed, in the state paper.
.* *
Chap 88.] ( 473 ) [TITLE, 21.
1 Sec. 7. The several terms may be continued and held from the commencement thereof, until and inclu-
How long terms
to continue.
2 ding the fifth Saturday after the commencement of each term ; but no argument of any cause shall be heard
3 during the fifth week of any term, unless by consent of parties or their counsel.
1 SEc. 8. All process, except where otherwise provided by law, shall be tested on the day when the same
- º and return
of process.
2 shall issue, and if issued in term, may be made returnable on any day in the same or the next term ; and
- 5
3 if issued in vacation, may be made returnable on any day in the next term
1 SEC. 9. For all purposes of returning process, entering rules for judgment, and rules for other proceedings
Calander terms,
2 in th how long to con-
in the Supreme court, the regular calendar terms of said court shall be deemed to continue until and inclu- ºnal
3 ding Saturday of the fourth week of every such term ; but nothing herein contained shall prevent the jus-
4 tices of said court from hearing arguments and motions, and endering judgment at any time aſter such
5 fourth week, nor shall this chapter be so construed as to require the said judges actually to continue such
6 term into or during the fourth week, or for a longer time than they are now required by law
1 Spc. 10. If neither of the said justices shall attend on the first day of any term of said court, it shall be
When clerk to
- - open and ad-
2 the duty of the clerk thereof, at any time after ſour o'clock in the afternoon of such day, to open the said journ ºur
3 court by proclamation, and immediately to adjourn the same to the next day, and so to open and adjourn the
4 said courtſrorn day to day, until the justices thereof, or one of them, shall appear, when the court shall pro-
5 ceed to business, if a quorum be present, as if it had been opened and adjourned by a justice thereof; and
6 any three of said justices shall constitute a quorum for business.
1 SEc. 11. If not more than two of said justices shall attend, the justice or justices attending, may, in their
When justices
attending may
2 discretion, adjourn the said court from day to day, until a quorum shall be present; or, if they shall deem it lºº.
- - ay to day, or
without day.
3 proper, they may adjourn the said court without day.
1 SEc. 12. The sheriff of the county in which any term of the court shall be held, shall, before the com- Auendance of
- • ºgºn*
es, &c.
2 mencement of such term, summon two constables of his county to attend the same ; and the sheriff and
119
Char. 88.] ( 474 ) [Title 21.
8 constables so summoned, shall attend the court during its sitting ; and the compensation allowed by law
4 for such attendance, together with all rooneys paid by such sheriff for fuel and other necessary expenses,
5 which shall be certified by the clerk of the court, and be deemed reasonable by the auditor general, shall
6 be paid out of the treasury of this state.
1 SEc. 13. The justices of the supreme court may from time to time, direct the removal of such records and
Removal of re-
cords and pa-
pers, and de-
... jess 2 papers in any cause, as they may deem proper, from one clerk’s office to another ; and they may also ſrom
pleadings, &c.
3 time to time, by an order to be entered in the minutes of said court, direct either of the clerks of the court
4 to destroy any pleadings or rolls that may be filed in either of the clerks’ offices, which the court shall deem
5 to have become useless.
Establ & 1 Sec. 14. The justices of the supreme court shall have power, and it shall be their duty, within three months
&stablishing
revising rules of
practice.
2 after this chapter shall take effect, by general rules to establish, and from time to time thereafter to modify
3 and amend the practice in said court, in the cases not provided for by any statute ; and they shall, within
4 two years after this chapter takes effect, and once at least in every seven years thereafter, if necessary, re-
5 wise the said rules, with the view to the attainment, so far as may be practicable, of the following improve-
6 ments in the practice :
{
7 1. The abolishing of all fictions and unnecessary process and proceedings :
8 2. The simplifying and abbreviating of the pleadings and proceedings;
9 3. The expediting of the decision of causes : …
E0 4. The diminishing of costs: and
11 5. The remedying of such abuses and imperſections as may be found to exist in the practice.
1 SEC. 15. All writs and process issuing out of said court, shall run into, and may be executed in any coun-
Process to rulſh -
into any county 2 ty in this state; and the seal of said court affixed to, or impressed upon any writ or process in any suit or pro-
3 ceeding therein, shall be conclusive evidence that such writ or process was issued by said court, in all cases
4 where such writ or process may lawfully be issued.
24°
Cuap. 88.] f ( 475 ) * * * [TITLE 21.
1 Sec. 16. The supreme court shall have power, in all such cases as shall be deemed proper, to compel any power to compel
discovery of
books, &c.
2 party to a suit pending therein, to produce and discover books, papers and documents in his possession or
3 power, relating to the merits of any such suit, or of any defence therein.
1 Sec. 17. The court shall by general rules, prescribe the cases in which such discovery may be compelled
* Rules in rela-
ion to discovery.
2 where the same are not herein provided; and the costs of such proceedings shall always be awarded in the
3 discretion of the court.
1 SEc. 18. To entitle a party to any such discovery, he shall present a petition to the court, or to any justice g”
47 Petition . dis-
covery and or-.
º © º e f der thereoil.
2 thereof in vacation, verified by oath, upon which an order may be granted by the court or such justice, for
3 the discovery sought, or that the party against whom the same is sought, show cause why the prayer of such
4 petition should not be granted.
1 Sec. 19. Every such order may be vacated by the justice granting the same, or by the court,
When order
may be vacated.
2 1. Upon satisfactory evidence that the same ought not to have been granted:
3 2. Upon the discovery sought being made :
4 3. Upon the party required to make the discovery, denying on oath, the possession or control of the books
5 papers or documents ordered to be produced.
1 SEc. 20. The court shall provide by general rules, for the staying of the proceedings of any party against
Staying proceed
ings when disco
º - º - dered.
2 whom such discovery shall have been ordered, until the same shall have been complied with or vacated. very ordere
1 SEc. 21. In case of the party neglecting or refusing to obey any such order for a discovery, within such .
Remedies for
& 4-e neglect, &c., to
2 time as may be deemed reasonable, the court may non-suit him, or may strike out any plea or notice he** *
3 may have given, or may debar him from any particular defence in relation to which such discovery was
sought; and the power of the court to compel such discovery, shall be coufined to the remedies herein pro-
vided, and shall not extend to authorize any other proceedings against the person or property of the party
6 so refusing or neglecting,
CAAF, , 88 ..]
( 476 ) [TITLE 21.
Effect of tooká,
&c.; produced.
Court to pre-.
scribe practice,
in Certaill CaSCS.
To prescribe
certain powers
of supreme
court commis-
Sioners.
Salary of judg-
€S. '
Judges not to
practice.
Seals of the
Court.
Arguments in
supreme court
may be submit-
ted in writing.
1
2
2
*
Sec. 22. The books, papers and documents produced under any order made in pursuance of the preceding
sections, shall have the same effect, when used by the party requiring them, as if produced upon notice, ac-
cording to the practice of the court.
Sec. 23. The supreme court, shall, amongst other things, regulate and prescribe the practice therein, when
the same is not prescribed by any statuté, in relation to bills of exceptions taken at the circuits ; cases
made by the parties; special verdicts; granting new trials; motions in arrest of judgment ; taxation of
costs; giving notice of special motions, and of such other proceedings as the court may think proper ;
staying proceedings when necessary to preventiujustice ; and the hearing of motions.
Sec. 24. In cases not otherwise provided for, the supreme court shall have power from time to time, by
general rules, to prescribe the cases in which supreme court commissioners may grant orders to stay pro-
ceedings in causes and matters pending in the said court, and upon process issued thereſrcm; the effect of
such orders; and the terms and conditions on which they shall be granted.
Sec. 25. Each of the justices of the supreme court shall receive an annual salary of two thousand dol-
lars, payable quarter yearly out of any moneys in the state treasury belonging to the general fund, not
otherwise specially appropriated by law.
Sec. 26. No justice of the supreme court shall practice as attorney, solicitor or counsellor, in any court
Öf. this state.
Sec. 27. The seals of the supreme court now in use, shall continue to be used therein, and, with such oth-
er seals as may be devised for that purpose according to law, shall be the seals of the said court.
Sec. 28. All arguments of demurrers, cases, bills of exceptions, appeals, motions and other matters in the
supreme court, may, at the option of the respective parties, be submitted to said court in writing, subject to
such rules as the said court may prescribe, except when such court shall, by general or special rule or order,
4 otherwise direct,
CHAP. 89.] ( 477 ) [TITLE 21,
CHAPTER 89.
OF THE CIRCUIT COURTS.
1 SECTION 1. Thi. state shall be divided into five judicial circuits, to be denominated the first, second, third, Judicial circuits.
2 fourth and fifth circuits respectively, as ſollows:
3 1. The first circuit shall be cºmpº of the counties of Monroe, Wayne, Macomb, St. Clair, Mackinaw,
4 and Chippwa :
5 2. The second circuit shall be composed of the counties of Washtenaw, Jackson, Calhoun, Lenawee, Hills-
6 dale, and Ingham :
7 3. The third circuit shall be composed of the counties of Kalamazoo, Van Buren, St. Joseph, Cass, Ber-
8 rien, and Branch :
9 4. The fourth circuit shall be composed of the counties of Oakland, Livingston, Shiawassee, Saginaw,
10 Genesee, and Lapeer : -
11 5. The fifth circuit shall be composed of the counties of Clinton, Ionia, Kent, Ottawa, Allegan, Barry,
12 and Eaton.
1 SEc. 2. Each of the justices of the supreme court shall, twice in each year, except in the cases hereinaf-
Circuit courts,
how often, and
º e & º o - º e e e e o º e for What ur O -
2 ter otherwise provided, hold a circuit court in each of the counties in the circuit designated in his appoint-ºi.
3 ment, for the trial of all issues to be joined in the supreme court, or in any other court, and brought into the
4 supreme court or such circuit court to be tried, and which are or may be triable in the said respective coun.
5 ties; which courts respectively, shall be called the circuit courts for the respective counties in which they
6 are holden, and shall be held so many days each time, as the justice holding the same shall deem necessary.
1 Sec. 3. The justices of the supreme court respectively shall have power to hold the circuit courts in their
By whom circuit
courts to be
2 respective circuits, either with or without the associate judges of such courts; and the associate judges of *
* the circuit courts for the several counties, shall have power to hold such courts in the abscence of the justice
4 of the supreme court, subject to such limitations and restrictions as are or may be provided by law.
120
CHAP. 89.] ( 478 ) - [TITLE 21.
When justice of
supreme court
muy not attend
Certatiº term S.
When to attend
on receiving no-
11C0.
Appointment of
{CI IIlS.
Place of holding
circuit courts.
Appointment of
circuits to bo
transmitted to
clerks, and pub-
lished.
l
2
I
2
3
4.
5
SEC. 4. No petit jury shall be summoned, nor shall it be necessary for the justice of the supreme court to
attend at the second term of such circuit court appointed to be holden in any year, in either of the counties
g * tº * * & N. \
of Chippewa, Mackinaw, Saginaw, Shiawassee, Clinton, lonia, Barry, Eaton, Ingham, Ottowa, Van Bu-
ren and Allegan, unless the associate judges of any or either of said counties shall, at or before the time
fixed by law for the drawing of jurors, determine that it is necessary.
SEc. 5. In case such associate judges shall deem it necessary that a petit jury be summoned to attend such
second term in any year, they shall make an order that such jury be drawn and summoned, and file the same
with the clerk, and immediately transmit a notice of the making of such order to the justice of the supreme
court appointed to hold the circuit courts in their county, and it shall thereupon be the duty of such justice
to attend such second term.
SEc. 6. Each of the said justices shall, within one month after this chapter takes effect, fix and appoint the
times of holding the several circuit courts within his circuit, for the period of two years; which courts,
when so fixed, shall remain unaltered for two years; and he shall in like manner, at least two months next
º the expiration of the said two years, appoint the said courts for the ensuing two years, and so on, for
every two succeeding years thereaſter.
Sec. 7. The place of holding such circuit courts in each county, shall be the court-house therein, if there
be one, and if there be none, then such courts shall be holden at such place therein as the associate judges
thereof shall order.
Sec. 8. Every justice of the supreme court shall transmit to the clerk of each county within his circuit, a
copy of every appointment of circuits made by him, immediately upon making the same ; which shall be
filed and preserved by such clerk; and every such appointment of circuits shall be published in the state
paper, once in each week ſor four successive weeks, and the last publication thereof shall be at least one
month before the holding of any circuit court in pursuance thereof.
SEc. 9. The publisher of the state paper shall arrange such appointments under one head, and publish in
Chap. 89.] ( 479 ) [Triº 21.
2
S
10
11
12
* & p ſº & * § §§ º -
such paper an abstract thereof, designating the name of each county in each of said circuits, and the times ###i.
p
arranged and
published.
appointed ſor holding the courts therein; and the expense of such publication shall be paid out of the state
treasury.
Sec. 10. The said circuit court courts shall have power, and it shall be their duty, respectively, Powers and du-
tics of circuit
CO UlſtS.
1. To try all such issues, and to take all such inquests, by deſault or otherwise, as are to be tried or taken
therein :
2. To record all non-suits and defaults before them :
3. To return all proceedings had before them upon matters pending in, or directed by any other court, in-
to the court in which the same may be pending, or which directed the same .
4. To inquire by the oath of good and lawful men of the same county, of all crimes and misdemeanors,
committed or triable in such county :
5. To hear and determine such crimes and misdemeanors, and deliver the jail of such county of all pris-
oners therein : and
6. To hear and determine all such matters as may be lawfully brought into said courts by appeal or other-
wise.
SEc. 11. Each iustice of the su - - e * * * § tº $.
J he supreme court shall have power to hold and preside in any circuit court in yºu...r.º.
preme court
may preside in
this state, either for the whole time such court shall continue, or for any part of that time ; and in case ei-” circuit.
ther of said justices shall be incapable for any cause, of holding any of said courts in his circuit, it shall
be the duty of any other of said justices, on being notified thereof, to attend such courts, if he can do so
without interfering with the courts previously appointed by him.
Sec. 12. Whenever the circuit court for any county shall ſail, and the chief justice, or if he be absent or
special terrns to
his office be vacant, the senior justice thereof, shall think the public good requires the holding of a special . .
4 be ordered.
term of such circuit court, it shall be the duty of such justice, by an order under his hand, to appoint the
holding of a special term thereof in such county, at snch time as he may designate in such order, not less
than thirty days from the date thereof, and to assign one of the justices of the supreme court to hold the
Sölſſle.
Char. 89.]
( 480 ) [Title 21.
Notice of eráer,
and drawing ju-
Iſ Or 8.
When clerk or
sheriff to ad-
journ court to
next day.
When clerk,
&c., to adjourn
court without
day.
When recogni-
zances to be
continued.
When associato
Judges to hold
COurt.
Procos.
1
5
Sec. 13. The justice making such order,shall forthwith transmit the same to the clerk of the county with-
in which such court is appointed to be held, who shall file the same in his office, and immediately give no-
tice thereoſ to the sheriff and prosecuting attorney, and juries shall be drawn and summoned to attend such
court as in other cases.
SEg. 14. If no one of the justices of the supreme court shall come to the place where any circuit court is
appointed to be held, and either of the associate judges thereof shall ſail to attend by four o'clock in the af.
ternoon of the day so appointed, the sheriff or clerk of the county shall open such court by proclamation,
and forthwith adjourn the same until nine o’clock in the forenoon of the next day.
Sec. 15. If one of the justices of the supreme court, or both the associate judges of such circuit court
shall attend at such placc, at any time before six o'clock in the afternoon of such second day, the said court
shall be opened and proceed with the business before it; otherwise the said sheriff or clerk shall open such
court as aforesaid, and adjourn the same without day, and the clerk shall note the facts on the journal of the
proceedings of the court.
SEc. 16. All persons bound by recognizance or otherwise, to appear at any circuit court which shall have
failed, either as witnesses, or parties to any proceeding cognizable therein, shall be bound to appear at the
next circuit court appointed to be held in such county, and all such recognizances shall continue in force
and be binding and obligatory upon the parties thereto, unless a new recognizance, approved according to
law, shall be entered into for such appearance.
SEc. 17. If neither of the justices of the supreme court shall attend at the im. and place appointed for
holding any circuit court, it shall be competent for the associate judges of such court to hold the same, and
to dispose of and determine the business pending therein, excepting the trial of issues of fact by a jury;
and they shall have power to try such issues by a jury, if both parties assent thereto. in which case such as:
sent shall be entered upon the journal of the court.
1 Sec. 18. All writs and process issuing out of, and returnable in the said circuit courts, shall be tested on
CHAP. 90.] ‘. ( 481 ) [TITLE 21.
2 the day when the same shall issue, and may be tested either in the name of the justice assigned to hold the
3 same, or in the name of the chief justice of the supreme court, and may be directed into any county of this
4 state, as occasion may require.
1 Sec. 19. The seals now in use in the several circuit courts of this state, shall continue to be the seals of sºrcircul
2 the said courts respectively, until others shall be provided according to law.
CHAPTR 90.
of THE courT CF CHANCERY.
1 SECTION 1. There shall continue to be a court of chancery in this state, the powers of which shall be ves-
Powers of court
vested in. chan-
cellor—his ap-
2 ted in a chancellor, who shall be appointed by the governor, by and with the advice and consent of the se-pº
3 nate, and shall hold his office for the term of seven years,
1 Sec. 2. The chancellor shall receive an annual salary of two thousand dollars, payable quarter yearly,
Salary, &c.
2 out of any moneys in the state treasury belonging to the general fund not otherwise specially appropriated;
3 and he shall not practice as an attorney, solicitor or counsellor in any court of this state.
1 SEc. 3. The clerk of the supreme court in each judicial circuit, shall be, by virtue of his office, the regis-clerks of su-
preme court to
º registers, in
ſº •, © e e e e C ancery.
2 ter in chancery, for the chancery circuit in which his office shall be kept, and shall attend every term of
. . . . e G 1842, p. 172.
3 the court of chancey held within such circuit.
1 SRC. 4. Each of said registers, before entering upon the duties of his office, shall execute a bond to the
Registers to exe-
cute bonds,
2 people of this state, in such sum as the chancellor shall direct, not less than five thousand dollars, with at
3 least two sureties to be approved by the chancellor, conditioned for the faithful performance of the duties of
4 his office.
1 SEC. 5. Such bonds shall be filed with the auditor general, and if either of them shall become forfeited,
121
CHAP. 90.] *. . ( 482 ) [TITLE 21.
Bonds where fi-
led and when
prosecuted.
Registers to have
custody of seals,
&c.
Moneys brought
into court, how
kept.
Registers to ex-
hibit accounts.
Certificate of
cashier to bank
OCCOunt.
Moneys not to
be paid out
without order of
chancellor.
Chancellor may
cause certain
moneys to be in-
vested, &c.
Certain securi-
ties to be taken
in name of regis-
ter, who shall
keep account,
&c.
*
*
2 the chancellor shall direct the same to be prosecuted, and the moneys recovered shall be applied under his
3 direction for the indemnity of the persons aggrieved, in proportion to their respective losses.
1 Sec. 6. The registers shall severally have the custody of the seals of the court, and of all the minutes,
2 books and papers, deposited in their respective offices, and it shall be their duty carefully to attend to the
3 arrangement and preservation thereof.
1 SEC. 7. All moneys brought into the court for or by any suitor, and paid to the register, shall be deposited
2 in such banks, or safely kept in such other manner, as the court shall direct.
1 SEC 8. On the first day of the term of the court, the register at the place where the same is held, shall
2 exhibit the account kept by him of all such moneys, and also his bank account, in case such moneys shall
8 have been deposited in a bank.
1 SEC. 9. Every such bank account shall be accompanied by a certificate of the cashier of the bank in which
2 the deposite is made, that the total amount stated therein to be deposited, is actaally in the bank, placed to
3 the credit of such register, as register of the court of chancery, and not mingled with any other account.
1 SEC. 10. No money brought or paid into the court, and deposited in any bank to the credit of any officer
§
2 of the court, shall be paid out by such bank, without the production of the order of the court, authenticated
3 by the signature of the chancellor,
1 SEC. 11. The chancellor may cause any moneys brought into court pursuant to any order made by him,
2 to be invested or placed at interest, as he shall think proper; and the party bringing money into court pur-
3 suant to any order thereof, shall in all cases be discharged from all further liability to the extent of the mo-
4 ney so brought into court.
! Sºo. 12. All stocks and securities taken by order of the court for the benefit of suitors therein, shall, if di-
* rected to be taken in the name of any officer of the court, be taken in the name of the register of the
CHAP. 90.T e ( 483 ) [TITLE 21.
3
3
4
2
*
court in whose office the bill or petition in the case shall have been filed, and every such register shall
keep just and full accounts of all moneys, stocks and securities, which shall come to his hands by virtue of
A -
his office, and of all payments and investments made by him.
SEc. 13. On the death, removal from office, or resignation of a register, all stocks, mortgages and other on death, &c., -
of register, secu-
rites to Vest in
© ... O º e º . . . • . . º 8 UICCCSSOI •
securities vested in him at the time of such death, removal or resignation, by virtue of any proceedings
of the court, shall vest in his successor in office in like manner as if such register had been a corporation
sole, with right of succession.
SEc. 14. All moneys deposited in any bank, to the credit of such register, shall, upon his death, removal
- - Yºyº
e e - ºr º º carried to credit
from office, or resignation, be carried to the account of his successor in office; and every such bank shall of successor.
take notice thereof, and transfer such accounts accordingly.
Sec. 15. The chancellor may, from time to time, make such rules and regulations concerning such mon-
Rules and regu-
lations concern-
© . tº º o ing moneys, &c.
eys, stocks and securities, as he shall deem just and reasonable; and all such rules and regulations shall be
entered in the minutes of the court. 2
SEc. 16. The sheriffs of the respective counties shall be officers of the court of chancery, for the purpose ...”
ficers of court.
of executing the process of the court; and the sheriff to whom any process of said court shall b2 directed,
shall be amendable to the court in its execution, and may be punished for his disobedience or default there-
in, in the manner prescribed by law.
To attend and
execute Orders
oſ court.
pain of being fined in the discretion of the court, be bound to attend said court during its sitting, in such
SEC. 17. The sheriff of the county in which any stated term may be held by the chancellor, shall, upon
manner as the court shall direct; and the sheriff so attending may execute all the lawful orders and pro-
cess of the court in any county of this state.
SEc. 18. lf an application for an order that an injunction or writ of ne exeat issue,be made to the chancel- Sub
ubsequent ap-
- plication for in-
º o - º e junction not to
lor, or any justice of the supreme court, or any master in chancery authorized to grant the same, and such ººr-
Chap. 90.] ( 484 ) [TITLE 21.
Persons making
application con-
trary to law lia-
ble to fine and
imprisonment,
&c.
Chancellor may
appoint Ser-
geants.
Powers and ju-
risdiction.
What suits to be
dismissed.
Creditor’s bill.
A f
3 order be refused, in whole or in part, or be granted conditionally, or on terms, no subsequent application
4 for the same purpose, and in relation to the same matter shall be made to any other justice of the supreme
*
5 court, or any other master in chancery.
©
1 SEc. 19. If upon any such subsequent application any order be made by a justice of the supreme court,
2 or a master in chancery, it shall be absolutely void, and shall be revoked by such justice or master, or by
3 the chancellor, upon due proof of the facts ; and any person making such subsequent application contrary
4 to the foregoing provisions, shall be liable to be fined or imprisoned by the court, or both, in its discretion.
1 SEC. 20. The chancellor shall have power to appoint sergeants of the court of chancery, who shall attend
2 the court while sitting at the place for which they have been appointed respectively, and shall perform such
3 services in and about the court, as the chancellor shall from time to time require.
Of the General Powers, Duties and Jurisdiction of the Court.
SEc. 21. The powers and jurisdiction of the court of chancery, shall be co-extensive with the powers and
2 jurisdiction of the court of chancery in England, with the exceptions, additions and limitations created and
3 imposed by the constitution and laws of this state.
1 SEc. 22. The court of chancery shall dismiss every suit concerning property, (excepting suits between
2 co-partners, and suits for the foreclosure of mortgages,) where the matter in dispute shall not exceed one
3 hundred dollars, with costs to the defendant.
1 SEc. 23. Whenever an execution against the property of a defendant, shall have been issued on a judg-
2 ment at law, and shall have been returned unsatisfied, in whole or in I art, the party suing out such execu-
3 tion may file a bill in chancery against such defendant, and any other persons, to compel the discovery of
4 any property or things in action belonging to the deſendant, and of any property, money or things in ac-
5 tion due to him, or held in trust º him; º to prevent the transfer of any such property, money or things
6 in action, or the payment or delivery thereof to the defendant, except where such trust has been created by,
7 or the fund so held in trust has proceeded from, some person other than the defendant.
CHAP 90.] ( 485 ) [TITLE 21.
1 sec. 24. The court shall have power to compel such discovery, and to prevent such transfer, payment or
Powers of court
thereon.
2 delivery, and to decree satisfaction of the amount remaining due on such judgment, out of any property,
3
money or things in action belonging to the defendant, or held in trust for him, with the exception above sta-
4 ted, which shall be discovered by the proceedings in chancery, whether the same were originally liable to
be taken in execution at law or not.
.5
1 SEc. 25. In suits for the payment or recovery of money, set-offs shall be allowed in the same manner, and
Set-offs.
2 with the like effect, as in actions at law.
1 SEC, 26. A bill of discovery may be filed, and the defendant shall be compelled to answer such bill, where pm, to discove-
ry of frauds in
confossing judg-
ments, &c.
2
the defendantis charged with having given to another person a warrant of attorney to enter up a judgment,
8 or with having confessed or suffered any judgment, purporting to be for a sum or debt due, when in fact no-
4.
thing, or only a part of the sum mentioned in such warrant of attorney or judgment is due, with intent to
5
defraud the just creditors of such defendant, or to place the property of the defendant out of the reach of
6
his creditors, or to hold the same on Some secret trust or confidence, or for the benefit of such defendant,
1 Sec. 27. No answer to any bill, filed under the provisions of the preceding section, shall be read in evi-
When answer
not to be evi-
dence against such defendant on the trial of any indictment for the fraud charged in the bill. ºn”
2
1 SEC. 28. To render the filing of a bill constructive notice to a purchaser of any real estate, it shall be the
- te $ * * - Notice of pen-
duty of the complainant to file with the register of deeds of the county in which the lands to be affected by * * *
2
3
such constructive notice are situated, a notice of the pendency of such suit in chancery, setting forth the
4 title of the cause, and the general object thereof, together with a description of the land to be affected
5 thereby.
1 Sec. 29. Each register of deeds, shall enter in an index to be kept in his office, such references to the
Register of
* * º g e & e e © deeds to enter
2 said notices, as will enable all persons interested, to search his office for such notices without inconvenience, reference to no-
lices.
• 122
CHAP. 90.] * ( 486 ) [TITLE 21.
1 SEC. 30. When a bill shall be filed in the court of chancery, other than for discovery only, the complain-
When oath of . 4
defendant may
be waived.
ant may waive the answer being made on the oath of the defendant, and in such cases the answer may be
2
3
made without oath, and shall have no other or greater force as evidence, than the bill.
1 SEc. 31. All issues upon the legality of a marriage (except where a marriage is sought to be annulled on
Issues on legali-
ty of marriage,
when to be tried
by a jury.
2
the ground of the physical incapacity of one of the parties,) shall be tried by a jury of the country ; and
3.
the chancellor shall award a feigned issue for the trial thereof.
I
Rules of SEC 32. The chancellor shall have power from time to time, by general rules of the court, to establish,
ules of prac-
tice. c-
alter, modify, or amend the practice of the court of chancery, in the cases not provided for by statute ; and
2
3.
the chancellor shall, as oſten as he may deem it necessary, revise the rules of the said court, with a view to
4 the attainment, as far as practicable, of the following improvements in the practice :
5 1. The abbrieviating of bills, answers and other proceedings :
6 2. The expediting of the decision of causes :
7 3. The diminishing of costs; and
8 4. The remedying of such abuses and imperfections, as may be found to exist in the practice, in any class
9 of suits cognizable in the court of chancery.
1 SEC. 33. The chancellor shall have power to appoint receivers in all cases pending in the court of chan-
Appointment of
fºivº; 18
***** 2 cery, when such appointment is allowed by law, as well in vacation, as during the sessions of the court.
1 SEc. 34. Application for such appointment may be made to the chancellor at chambers, and shall be heard
Application *
* may be ſº ſº tº
i....” 2 under such regulations as he may by general or special rules prescribe.
bers.
Possessor of 1 SEC. 35. Any person having the actual possession, and legal or equitable title to lands, may institute a suit
lands may insti- -
tute suit against
glaimanſ. 2 in the court of chancery against any other person setting up a claim thereto in opposition to the title claim-
3 ed by the complainant, and if the complainant shall establish his title to such lands, the defendant shall be
4 decreed to release to the complainant all claim thereto, and to pay costs, unless the defendant shall, by his
1810, p. 127, § 1 5
answer, disclaim all title to such lands and give a release to the complainant, in which case costs shall be
6 awarded as the court may deem just.
CHAP. 90.] ( 487 ) - [Trris 21.
I
5
2
2
3
2
3
4
Of the Terms of the Court, and the Mode of Proceeding therein.
Sec. 36. There shall be five chancery circuits, corresponding in their numbers, and the territory embra- Number and ex-
tent of chancery
circuits.
ced in each respectively, with the judicial circuits as designated in the preceding chapter.
SEc. 37. The stated terms of the court of chancery shall be holden in the city or village in each circuit,
Stated terms.
*
in which the supreme court clerk’s office therein is required by law to be kept; and such terms shall be ap-
pointed by the chancellor, and may be altered by him from time to time as the public convenience may re-
quire; but two terms, at least, shall be held in the first, two in the second, and two in the third circuit, and
one term, at least, in each of the other circuits, in every year.
Rules in regard
to transferring
papers, &c.
lation to the transferring” of the papers in causes or proceedings in said court, from one register’s
Sec. 38. The chancellor shall have power to make such rules and regulations as he may deem proper, in re-
office to another ,and in relation to the hearing, or any other proceedings in causes or matters in any
circuit other than that in which the bill or petition was filed, in such cases, and under such circumstances .
as he may prescribe.
SEc. 39. The chancellor shall have authority to prescribe from time to time, the forms of all process to
Forms of pro-
cess, &c.
be issued out of the court of chancery, and until other forms are prescribed, those now in use may be con-
tinued.
SEc. 40. Every such process shall be sealed with one of the seals of the court, and shall be tested on the
Registers to fur-
day when the same shall issue; and when from its nature, requiring to be executed by the sheriff of any ... * *
county, shall be directed to such sheriff.
SEC. 41. It shall be the duty of every register in chancery, to furnish any solicitor of the said court, when
When court
may order de-
required, and upon payment of the fees allowed by law, blank process to appear and answer bills, and blank ...”
tered.
process to compel the attendance of witnesses before a master or commissioner, with the seal of the court
impressed thereon, and with the name of such process printed or written on the body of the seal.
Char. 90.]
( 488 ) [TITLE 21.
Rules for taking
bills as confess-
ed, and decrees
by default.
Pleadings, &c.,
when filed.
Service of co-
pies pleadings,
&c., on the part
of complainant.
Service of co-
pies, pleadings,
&c., on the part
of defendant,
When service to
be made on soli-
Cilor.
Commissions to
tuke testimony.
Authority of
Commissioners.
Parties may be
present at exam-
inations, &c.
l
2
2
3
& 4
2
SEC. 42. When a defendant, brought into court by writ of habeas corpus or other process, shall neglect
or refuse to enter his appearance, according to the rules of the court, the court shall order his appearance
to be entered, and the suit shall then proceed, as if the party had actually appeared.
SEc. 43. In all cases not otherwise provided for by law, bills shall be taken as conſessed, and orders and
decrees may be made by default, according to such rules as the chancellor shall, from time to time estab-
lish.
SEc. 44, Answers, demurrers, and all other pleadings and proceedings shall be filed in the office of the
register with whom the bill or petition in the cause was filed, unless otherwise directed by rule or order of
the court; and within such time, and under such regulations as the chancellor shall, by general rule di-
reCt.
SEC. 45. When the appearance of a defendant shall have been entered and notice thereof shall have been
given, according to the practice of the court, it shall be the duty of the complainant to serve on the party
so appearing, copies of the pleadings and proceedings at any time filed in the cause on the part of the com-
plainant.
SEc. 46. It shall in like manner be the duty of the defendant, after appearance, to serve on the complain-
ant, copies of all pleadings and proceedings so filed on the part of such defendant.
SEC. 47. If the complainant or defendant shall have appeared by a solicitor, the service of the pleadings
or proceedings shall be on or by such solicitor.
SEc. 48. The chancellor may direct a commission to be issued to any person or persons, to take testimony
in any cause depending in the court of chancery ; and such commission may also be issued by either of
the registers in chancery, under such regulations as the chancellor may from time to time prescribe.
SEc. 49. The person or persons so commissioned, shall have full authority to administer all necessary oaths
or affirmations, to all witnesses examined under the commission.
Chap. 90.] ( 488 ) [TITLE 21.
I
2
2 jury necessary or proper, said court shall have power to award and direct a feigned issue for the trial there-
4.
5
Sec, 50. The respective parties and their counsel may be present at the examination of any witnesses Parties may be
z present at exam-
inations, &c.
produced before a master, or under a commission; and every such witness may be examined, cross-ex-
amined and re-examined, orally.
SEc. 51. The chancellor shall prescribe rules for the examination of witnesses, and the taking of testi- º
r scribed for ta-
king testimony.
mony so that an order may be entered by either party, requiring the adverse party to proceed and finish
such examination within such time as the chancellor shall by general rule direct.
SEc. 52. The chancellor may, from time to time, make such rules as he shall think proper concerning the Rules concern-
ing examination
e ... of witnesses, &c.
examination of witnesses before masters or commissioners within this state, and concerning the use of writ-
ten interrogatories for the examination of witnesses residing out of this state.
SEc. 53. The testimony of all witnesses shall be reduced to writing, and signed by them, and filed with the
º Testimony to be
- reduced to wri-
e * ting, and filed.
register of the court where the bill and other pleadings in the cause have been filed.
SEc. 54. Every cause in the court of chancery shall be deemed to be at issue on filing a replication, and
When cause to
be lººd at is-
ſº - - g Su e, &c.
it shall not be necessary to issue a subpoena to hear judgment, but all causes shall be brought to a hearing,
under such rules as the chancellor shall, from time to time, prescribe.
SEc. 55. If there be an issue of fact which, in the opinion of the court, shall render the intervention of a
Feigned issue
and verdict
thereon.
of, and the verdict of such jury may be used upon the hearing of the cause.
SEc. 56. After the expiration of thirty days from the time a final decree shall be entered in the minutes
When bill,
pleadings &c. to
of the court, if no appeal therefrom shall have been entered in the minutes of the court, if no petition ..."..."...is.
Uer.
for a re-hearing shall have been presented, upon being required by either party, the register by whom such
final decree shall have been entered, shall attach together the bill, pleadings and such other papers filed in
the cause, as the chancellor shall, from time to time by general rules direct, together with the taxed bill of
123
Char. 30.]
( 496 ) [Title ºf.
Papers to be filed
by register.
Register shall
make and deliver
a statement, &c.
On the filing and
entering state-
ment with regis-
ter of deeds, de-
cree to bind
lands, &c.
When hen to
COD1862,
I)ecree how dis-
charged.
7
I
costs therein, and shali annex thereto a fair engrossed copy of the decretál order, signed by the chancellor,
and countersigned by the register who entered the same,
SEC. 57. The papers so attached, annexed and signed, shall then be filed by the register, and shall remain
of record in his office; and snch filing shall be deemed an enrollment of the decree and proceedings, for
all purposes whatsoever.
SEc. 58. After the enrollment of any final decree, directing the payment of any debt, damages, costs or
other sum of money, the register who entered the same, upon the request of any party thereto, and pay.
ment of the fees allowed therefor by law, shall make and deliver to such party a statement of such decree,
containing,
1. The names at length of all the parties to such decree, designating particularly those against whom it is
rendered :
2. The amount of the debt, damages, costs or other sum of money directed by such decree to be paid ;
and
3. The is when such decree was enrolled.
SEc. 59. Upon the filing and entering of such statement in the office ef the register of deeds of any
county, in the manner provided by law in relation to filing and entering transcripts of the docket of judg-
ments rendered in the supreme court, such decree shall bind and be a charge upon the lands, tenements, real
estate and chattels real of every person against whom such decree shall be rendered, which such person
shall then or at any time thereaſter, have within such county.
Sec. 60. Every such final decree shall cease to be a lien, or to bind such property, against purchasers in
good faith, and against incumbrances subsequent to such decree, by mortgage, judgment, decree or other-
wise, from and after the expiration of five years from the time of enrolling such decree.
Sec. 61. Upon producing and filing with the register with whom any decree may have been entered, a
written acknowledgment by the party in whose favor such decree was rendered, that he has been fully paid
char. 90.1 ( 461 ) [Trºbe 21.
3
l
1
and satisfied the amount of all money directed by such decree to be paid, certified by some officer author-
ized to take the acknowledgment of deeds, tá have been duly acknowledged before him by the party signing
the same, the register shall enter in the docket of such decree, a note of the satisfaction and discharge
thereof, and such decree shall thereupon be discharged, and be of no force or validity.
SEc. 62. The court shall have power to order a decree to be dischargéd upon a hearing 6f the parties; and
- * Ib.
upon satisfrctory evidence that such decree has been fully paid or satisfied.
Sec. 63. Upon any decree being so discharged, and upon any decree being wholly reversed or vaeated,
e ſº - g * * * * * t g * C tific t f di gº
the register with whom the same was entered shall, upon the request of any person against whom the same tº:
tion of decree,
&c.
was rendered, deliver to him a certificate of such fact, and on filing such certificate with any register of
deeds in whose office a statement of the decree was filed and entered, such register of deeds shall note in
the entry thereof, the fact that such decree is discharged, reversed or vacated,
Sec. 64. The court may enforce performance of any decree, or obedience thereto, by execution against how peror.
mance of decree
* . be enfor-
the body of the party against whom such decree shall have been made, or by execution against the goods”
and chattels, and in default thereof, the lands and tenements of such party; but no execution shall be is-
sued on any final decree, until the same shall have been enrolled, as hereinbefore provided.
SEc. 65. When the cause of action shall survive, no suit in chancery shall abate by the death of one or
When suit not
to abate by death
º & to ſº f
more of the complainants or defendants; but upon satisfactory suggestion to the court, the suit shall pro-º;;..."
ceed in favor of, or against the surviving parties.
t
SEc. 66. When one or more of the complainants or defendants shall die, and the cause of action shall
When suit to n-
- º as to party
g e - © & © gº 1ſlº.
not survive, the suit shall abate only as to the person or persons so dying,and the surviving parties may pro- ying
ceed without reviving the suit.
How suit revi-
SEc. 67. No bill of revivor shall be necessary to revive a suit against the representatives of a deceased
defendant, but the court may, by order, direct the same to stand revived upon the petition of the complain-
ved against re-
presentatives.
ant.
Chap. 90.]
( 492 ) [TITLE 21.
Copy of order
to be served on
representatives,
&c.
1
2
When court may
cause uppear-
ance of repre-
sentatives to be
entered.
When bill may
be taken as con-
fessed, or ans-
wer compelled.
How further
answers requi-
, red from repre:
Sentations.
When petition
may be taken as
confessed, or
further answer
compelled.
When represen-
tatives of deceas-
ed complainant
may be made
complainants,
&c.
Defendant com-
pelled to answer
amended bill, &c.
SEc. 68. A copy of such order shall be served on the representatives against whom the revival is ordered,
who shall be allowed sixty days after such service to appear and answer or disclaim.
SEc. 69. If they shall not within that time appear and answer or disclaim, the court, upon due proof of
the service of such order, may cause their appearance to be entered, and in such case the answer of the de-
*
ceased party shall be deemed the answer of such representatives.
SEC. 70. If no answer shall have been filed by the deceased party, the court may, in its discretion, order
the bill to be taken as confessed against such representatives, or compel them to answer, by attachment or
otherwise.
SEC. 71. If the deceased party shall have answered, and the complainant deem it necessary to obtain a
further answer from his representatives, the petition for revival shall state the matters as to which a further
answer is required, and a copy of such petition shall be annexed to a copy of the order to be served on such
representatives.
SEc. 72. In such case, if the representatives shall not appear and put in such further answer or disclaim,
2 within eighty days, or such further time as the court may allow, after the service of the petition and order,
l
2
upon due proof of such service, the court may order the petition to be taken as confessed, or compel such
further answer by attachment or otherwise.
Sec. 73. When a complainaut shall die and the cause of action shall not survive, his representatives may,
on affidavit of such death, and on motion in open court, be made complainants in the suit, and be permitted
to amend the bill, if necessary.
Sec. 74. The defendant shall be compelled to answer such amended bill, and the cause shall proceed to
issue and a hearing, as in ordinary cases.
Sec. 75. When the representatives shall not cause themselves to be made complainants, within eighty days
Chap. '90. J - ( 493 ) [TITLE 21.
2
3
4
' '4
after the death of the deceased complainant, the surviving complainant may proceed to make them defen-when surviving
complainant may
make represen-
tives of deceased
dants in the suit, as in cases where the representatives of deceased defendants are made parties. %. lºans de-
€11010. In 18,
*
Sec. 76. If there be no surviving complainant, or he shall neglect or refuse to proceed against the repre-order to show
cause why suit
- should not staud
revived, or bill
sentatives of the deceased complainant as defendants, the court upon petition of the original defendants, be disinissed.
may order such representatives to show cause at a certain day named in such order, why the suit should not
stand revived in their names, or the bill be dismissed as far as the interests of such representatives are con-
cerned.
As
SEc. 77. Iſ no such cause be then shown, the court upon proof of the reasonable service of a copy of
Proceedings if
Jho callse ShoWn.
the order upon such representatives, may order the revival of the suit in their names, or the dismissal of the
bill with costs or otherwise.
SEc. 78. lf a defendant shall die, and the cause of action shall not survive, and the complainant shall ne-when court may
order suit to
stand ...;
g & * e Yı - titi
glect or refuse to procure an order for the revival of the suit, the court may order it to stand revived, upon ºn.
ant.
the petition of a surviving defendant, against the representatives of the deceased party.
SEC. 79. In such case, the surviving defendant may proceed against such representatives in the same man-
How surviving
defendant to pro-
ner as a complainant, to compel them to appear, abide the answer of the deceased party, or answer, if an ceed in such
C818&.
answer be required, or to have the bill, or his petition taken as confessed against them; and the court may,
in its discretion, stay the suit as against him until such proceedings shall have been had.
zºº
SEc. 80. Whenever a bill shall be filed in the court of chancery, for relief, or for the benefit of the credi-order requiring
creditors, &c. to
exhibit demands,
how published.
tors generally of any person, or of any estate, or for the benefit of any other persons than the complainants,
who will come in and contribute to the expense of such suit, every order which may be made thereon re-
*
quiring such creditors or other persons to exhibit their demands, shall in all cases, be published once in each
week, for at least three weeks, and as much longer as the court may direct, in the state paper, and in any
other newspaper which the court may designate; if such court shall deem it necessary.
124
CHAP. 90.1
( 494 ) HTITLE 21.
In what cases
order for ap-
pearance to be
made, &c.
Within what
time defendants
required to ap-
pear and answer.
Order for ap-
pearance to be
published.)
1842, p. 29, §3,.
no. 24.
Time for appear-
ance may be ex-
tended; &c.
When bill taken
as;confessed,
court may make
reference to take
proofs.
1814, 127, p. §2.
2
5.
6
3
of Proceedings against Absent, Concealed, and Non-resident Defendants.
SEc. 81. After the filing of a bill, the court shall me an order for the appearance of a defendant at a
future day therein to be specified, as hereinafter directed, in the * C0S6S :
1. When the defendant resides out of this state, upon proof by affidavi of that fact:
2. When the defendant is a resident of this state, upon proof by affidavit that process for his appearance
has been duly issued, and that the same could not be served by reason of his absence from, or concealment
within the state, or by reason of his continued absence from his place of residence.
SEc. 82. The order shall require the defendant to appear and answer the bill, as follows :
1. If he be a resident of this state, within three months ſron its date :
2. If he be not a resident of this. State, but of some other of the United States, or one of the territories
thereoſ, or of the province of Canada, within a period not exceeding six months from its date :
3. If he be a resident of any other state or country not before mentioned, within a period not exceeding
nine months from its date.
SEc. 83. Such order shall be published within twenty days after it shall have been made, in such public
newspaper printed in this state, as the court may direct, once in each week for eight weeks in succession;
but such publication shall not be necessary in any case in which a copy of such order shall have been served
on such absent, concealed, or non-resident defendan, personally, at least twenty days before the time pre-
scribed for the appearance of such defendant.
SEc. 84. The chancellor may if necessary, by further order, extend the time for the appearance of such
defendant; and in that case, shall direct the publication of such further order for so long a time as he shall
think proper. gº g
Sec. 85. If the defendant shall not appear within the time limited in the order, upon due proof of such
- * g & 4)
publication as shall have been required, or of the personal service of such order as herein provided, the
complainant’s bill shall be taken as contessed, and the court may in its discretion, direct a reference to a
master to take proof of the facts and circumstances, stated in such bill.
CHAP. 90.] ( 495. ) - e [TITLE 21.
3
4
Sec. 86. The master to whom any such reference may be made, shall take sueh proofs as may be offered;
Master to take.
proofs, &c.
and the bill shall not be considered evidence before the master of any fact stated therein; but when so di-
rected by the chancellor, the master may receive the testimony of the complainant as evidence.
Sec. 87. Whenever the bill shall have been filed for the payment or satisfection of any sum of money, the º
- reference,to pay-
Iſlent S.
court may, in its discretion, direct that the complainant be examined by the master, as to any payments
1840, p. 127, §2,
that may have been made to him, or to any person for his use, on account of the demand mentioned in the
bill, and which ought to be credited on such demand,
SEC 88. The master shall report the proofs and examinations had before him ; and on the coming in of maste, to repon
proofs, &c., and
order thereon.
master’s report, the court shall make such order thereupon as shall be just.
SEc. 89. Process may then issue to compel the performance of such decree, either by sequestration of
Performance of
decrec how en-
- l - - - tº forced, and
the real and personal estate of the defendant, or such part thereof as shall be deemed sufficient; or where ºssion
to be delivered
to complainant.
any specific estate or effects are demanded by the bill, by causing possession of the property so demanded
to be delivered to the complainant.
Slc. 90. Possession in the case last mentioned, shall not be delivered, until the complainant shall have gi-ji.e.
livery of posses-
sion.
ven such security, and in such sum as the court shall direct, to abide the order of the court touching the
restitution of the estate or effects delivered, in case the defendant shall appear and be admitted to defend
the suit.
SEc. 91. Upon like security being given, the court, when a seques' ration shall have issued, may order when decree
may be satisfied
- out of estate se-
tº s e tº º questered, &c.
the decree to be satisfied out of the estate and effects sequestered'; but if such security shall not be given,
the estate and effects sequestered shall remain under the direction of the court, to abide its further order.
SEc. 92. If the defendant against whom such decree shall have been made, or his representatives shall after-
d * When defendant
- &c., to be admit-
* . .e. * - - - * - ſº & . - ... tº - ‘ī. -- e 2d S
wards appear and petition to be heard,the party so petitioning shall be admitted to answer the complainant's;”
º
bill, upon paying or securing to be paid, such cosis as the court shall adjudge ; and the suit shall then Pro-
ceed in likemanner as if such defendant had appeared in due season, and no decree had been made.
Chap. 90.]
( 496 ) [TITLE 21.
Within what
time defendunt,
&c. must appear.
When decree to
be confirmed.
In case of bill for
foreclosure,
court may decree
sale, &c.
Proceedings if
defendant appear
before sale.
Sale not to bo
affected by ap-
pearance of de-
fendant, &c.
1
SEc. 93. The defendant or his representatives, must so appear within one year after notice in writing of
the decree shall have been given to him or them, and within seven years after the making of the decree,
*
when such notice shall not be given.
Sec. 94. If the defendant or his representatives shall not so appear within one year after such notice shall
have been given, and iſ not given, before the expiration of seven years aſter the making of the decree, the
the court shall then, by order, confirm the decree against the deſendant, and against all persons claiming
under him by virtue of any act subsequent to the commencement of the suit, and may make such ſurther
order in the premises as shall be just and reasonable,
1 SEc. 95. If the bill shall have been filed to procure the foreclosure or satisfaction of a mortgage, the court
2 instead of proceeding to a sequestration in the manner herein before directed, may decree a sale of the
mortgaged premises, or of such part therereof as may be necessary to discharge the mortgage, and the costs of
suit, as in other cases.
SEc. 96. In the case mentioned in the last preceding section, if the defendant at any time before the sale
of the mortgaged premises, shall appear and pay to the complainant such costs as the court shall award, the
court shall stay the sale, and the same proceedings shall be thereafter had, as if the defendant had been serv-
ed with process, and had regularly appeared.
\
SEc. 97. No sale and conveyance regularly made under the preceding provisions, upon a bill for the fore.
closure and satisfaction of a mones, shall be affected or prejudiced by the appearance of the defendant
within one year, or the seven years herein before specified, nor by any other proceeding: but such defen-
dant or his representatives, may at any time within seven years after the decree ordering such sale, file a
bill against the complainant or his representatives, to accom for all moneys received by him or them by
virtue of such decree, over and above the amount justly due on the mortgage, and costs of suit; and the
court shall proceed on such bill, according to the equity of the case.
CHAP 99.]
( 497 ) [TITLE 21.
I
2
{" ' ... ºn 2* ºr
Of the granting of Injunctions to stay Proceedings at Law,
. . . . . . .'; W - - , , ;" ..." . . . . . . . . . . . . . . . . . . . . . .
...”. . . . . … • *s ºr
SEc. 98. No injunction shall issue to stay the trial of any personal action at issue in a court of law, until
- * * * * * - . . * : * ~ - . . . . - - - f : . - : ! . . . * , * * ' ' ' ' . . . . t . . . . ; } . . . . . . . . . . . . . . . . . . . .”
tº * * *
e Bond to be given
§ efor, shall execute a bond with one or more s e • * * * * = e º is before injunction
the party applying ther ſo 2 : or more ufficient sureues, to the plaintiff in such . stay trial of
- 3. . . . . f • * ~ : - - . . . , . . . ſº action at issue.
in a court of law.
action at law, in such sum as the chancellor or other officer allowing the injunction shall direct, condition-
t ---
. . . . , ; } ... • -,
ed for the payment to the said plaintiff, or his legal representatives, of all moneys which may be recovered
by such plaintiff, or his representatives, or the collection of which may be stayed by such injunction, in
.* ºr . . s. s - . . . . . . . . . . . . . . . ." . . . . . . . . . . . . . . . . . . ; - • . . . . * . * ::.. . . . . . . . . ; : , , . . .'' . . . * • * > . . . . . . . . .
such action at law, for debt or damages, and for costs therein; and also ſor the payment of such costs as
.* * * * * * *. . . . . . . . . . ~. . . . . • { . . . . ; . . . . . • * > . . ; . . . . . . . . . . . . . . . ; ! s: . . . . . .
may be awarded to them in the court of chancery, in the suit in which such injunction shall issue.
When sum of
money to be de-
posited before in-
fore judgment thereon, unless a sum of money equal to the amount for which the verdict was given, shall!”
SEC. 99. No injunction shall issue te stay proceedings at law in any personal action, after verdict, and be.
be first deposited with the court of chancery, by the party applying for such injunction, or a bond for the
payment thereof shall be given as hereinafter directed.
SEC, 100. N 9 injunction shall issue to stay proceedings at law in any personal action, after judgment,
; :- , , , - . . . . . . ; , . . . ; ; ; ; , " . . . . . . . . ; : : } | . . . . . . , -- . . . . . . , , ; ; ; ; : ** * . . . . . ; . ...; sº, . . . . in tº . •
! t t . . . ; ; ; ; ; ; , , * ... tº
Injunction to.
stay proceedings
s unless, after judgment in
personal action.
1. A sum of money equal to the full amount of such judgment, including costs, shall be first deposited by
. . . . . . . . . . . . . . . . . . . . . . . . .
the party applying for such injunction, or a bond in lieu thereof be given as hereinafter directed ; and,
2. Unless such party, in addition to such deposite or bond in lieu thereof, shall also execute a bond with
one or more sufficient sureties, to the plaintiff in such judgment, in such sum as the chancellor or officer al-
lowing the injunction shall direct, conditioned for the payment to the said plaintiff, and his legal represen-
tatives, of all such damages and costs as may be awarded to them by the court, at the final hearing of the
CăllSe.
SEC. 101. If, after a verdict or judgment at law, any moneys shall be deposited in the court of chancery, When Inoncy's
€n III. On C
deposited ; bc.
- e e © . ...,paid to plantiff
pursuant to either of the two last sections, the same may be paid, on the order of the court, to the plaintiffin “” “.”
in such action at law, upon his executing to the people of this state a bond, in a penalty double the amount
125
Char. 90.1 ( 498 ) [TITLE 21.
Proceedings
when moneys
have been paid
to plaintiff and
decision against
party obtaining
injunction.
Injunctions to
stay proceedings
in actions for re-
covery of lands,
&c.
Damages on dis-
solution of in-
junction, how
ascertained, &c.
Deposite of mo-
neys may be dis-
pensed with, and
bond taken, &c.
4
5
6
7
I
2
l:
2
4.
so deposited, with such sureties as the court shall approve, conditioned that such plaintiff will pay to the re-
gister with whom the bill shall be filed, the moneys which he shall so receive, and the interest thereon, or
any part thereof, according to any order or decree of the court of chancery that may be made in relation
to the same.
$
SEc. 102. Whenever the moneys so deposited shall be paid to the plaintiff in the action at law, if the final
decision of the cause in chancery shall be against the party obtaining the injunction, the emperior may
order the bond that shall have been given to be canceled, and shall continue the injunction to stay the pro-
ceedings at law, or shall compel the plaintiff therein to canse such judgment to be satisfied and discharged
of record.
SEc. 103. No injunction shall issue to stay proceedings at law, in any action for the recovery of lands, or
of the possession thereof, aſter verdict, unless the party applying therofor shall execute a bond, with one
or more sureties, to the plaintiff in such action at law, in such sum as the chancellor or officer allowing the
injunction shall direet, conditioned for the payment to the plaintiff in such action, and his legal representa-
tives, of all such damages and costs as may be awarded to them, in case of a decision against the party ob-
taining such injunction.
©
SEc. 104. The damages to be paid upon the dissolution of such injunction, shall be ascertained by reference
to a master, and shall include not only the reasonable rents and profits of the lands recovered by such ver-
dict, but all waste committed thereon aſter the granting of the injunction.
SEc. 105. The chancellor shall have power to dispense with any deposite of moneys required by either of
the preceding sections, and in lieu thereoſ to direct the execution of a bond, with sureties, conditioned to
pay the amount so required to be deposited, whenever ordered by the court of chancery; or if a bond is
already required in addition to such deposit, then to direct the enlargement of the penalty and condition of
5 such bond as may be requisite; but whenever such deposite shall be dispensed with, the bond so substituted
6 or enlarged, shall be executed by at least two sufficient sureties.
CHAP. 90.] ( 499 ) [TITLE 21.
1 SEC. 106. Whenever an injunction shall be applied for, to stay proceedings at law in an action after
When deposite
and bond may
2 judgment or verdict, on the ground that such judgment or verdict was obtained by actual fraud, the chancel-lºº.”
3 lor or officer granting the injunction shall have power to dispense with the deposite of any moneys, or the
4 execution of any bond.
1 Sec. 107. The sufficiency of the sureties in any bond executed under the provisions of this chapter, rela-
How sufficiency
2 ting to staying proceedings at law by injunction, shall be ascertained, either, gºles are:-
3 1. By the certificate of any master in chancery, stating that he has inquired into the circumstances of such
4 sureties, and is satisfied of their sufficiency : or
5 2. By the affidavit of each surety, stating that he is a house holder, resident within this state, and that he
6 is worth a 'sum equal to the amount in which the bond shall have been required, over and above all debts
7 and demands against him.
1 SEc. 108. Whenever a bond shall be required to be executed as aforesaid, prior to the issuing of an injunc-
Bond, &c. to be.
filed with regis-
ter before deliv-
2 tion, the same, with the certificate or affidavit above required, shall be filed with the register, before the ery ofinjunction.
3 sealing and delivery of the injunction.
1 Sec. 109. The chancellor shall direct the delivery of any such bond to the person entitled to the benefit when chancer.
lor to direct de-
}. of bond
e e - º º - or Drosecution
2 thereof, for prosecution, whenever the condition of such bond shall be broken, or the circumstances of the P
3 case shall require such delivery.
1 SEC. 110. The justices of the supreme court, and each injunction master within the circuit for which he Justices of su-
preme court, &c
to exercise pow-"
e e e º ... e 8 of chancellor
2 may be appointed, may severally exercise the powers of the chancellor, with respect to the granting of in-with respº to
granting injunc-
tions.
3 junctions to stay proceedings at law, and for other purposes, in all cases in which the chancellor may grant
4 injunctions.
of the Powers and Proceedings of the Court, upon Bills for the foreclosure or satisfacſion of Mortgages.
1 SEc. 111. Whenever a bill shall be filed for the foreclosure or satisfaction of a mortgage, the court shall power or court
to decree sale of
mortgaged prem-
2 have power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient to discharge º, p. 22.90.
CHAP. 90.)
( 500 ) [TITLE 21.
Court may com-
pel delivery of
possession, and
direct payment
of balance.
No proccedings
to be had at law
while bill pend-
ing, &c.
* When court may
: ‘decree payment
of balance a-
gainst other per-
son than mort-
gagor.
Bill to state whe-
ther any pro-
ceeding had at
law, &c.
When no pro-
ceeding to be
had, unless exe-
cution returned
unsatisfied.
3
the amount due on the mortgage, and the costs, of suit; but the chancellor shall not by such decree order
any lands to be sold within one year after the filing of the bill of- foreclosure.
Sec. 112. When a bill shall be filed for the satisfaction of a mortgage, the court shall not only have pow-
er to decree and compel the delivery of the possession of the premises to the purchaser thereof, but on the
g
§
coming in of the report of sale, the court shall have power to decree and direct the payment by the mort-
gagor, of any balance of the mortgaged debt that may remain unsatisfied after a sale of the mortgaged
premises, in the cases in which such balance is recoverable at law; and for that purpose may issue the ne-
cessary executions as in other cases, against other property of the mortgagor.
SEc. 113. After such bill shall be filed, while the same is pending, and after a decree rendered thereon,
no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any
part thereof, unless authorized by the court of chancery.
Sec. 114. If the mortgage debt be secured by the obligation or other evidence of debt of any other per-
son besides the mortgagor, the complminant may make such person a party to the bill, and the court may
decree payment of the balance of such debt remaining unsatisfied, after a sale of the mortgaged premises,
as well against such other person as the mortgagor, and may enforce such decree as in other cases.
Sec. 115. Upon filing a bill for the ſoreclosure or satisfaction of a mortgage, the complainant shall state
therein whether any proceedings have been had at law for the recovery of the debt secured thereby, or any
part thereoſ, and whether such debt or any part thereof, has been collected or paid.
Sec. 116. If it appear that any judgment has been obtained in a suit at law, for the moneys demanded by
2 such bill, or any part thereof, no proceedings shall be had in such case, unless to an execution against the
property of the defendant in such judgment the sheriff or other proper officer shall have returned that the
execution is unsatisfied in whole or in part, and that the defendant has no property whereof to satisfy such
execution, except the mortgaged premises.
CHAP. 90.] ( 501 ) - [TITLE 21.
1 Sec. 117. All sales of mortgaged premises, under the decree of the court of chancery, shall be made "saleshow made
2 a master in chancery, in the county where the premises or some part of them are situated, unless otherwise
3 directed in the decree of sale.
1 Sec. 118. Deeds shall thereupon be executed by such master, which shall vest in the purchaser the same Deeds to purcha-
Ser8
2 estate that would have vested in the mortgagee if the equity of redemption had been foreclosed, and no .
3 other or greater; and such deeds shall be valid as if executed by the mortgagor and mortgagee, and shall
4 be an entire bar against each of them, and against all parties to the suit in which the decree for such sale
5 was made, and against their heirs respectively, and all persons claiming under such heirs.
1 SEC. 119. The proceeds of every sale made under the decree of a court of chancery, shall be applied to
& Application of
proceeds of sale.
2 the discharge of the debt adjudged by such court to be due, and of the costs awarded ; and if there be any
3 surplus, it shall be brought into court for the use of the defendant, or of the person entitled thereto, subject
4 to the order of the court.
1 SEC. 120. If such surplus or any part thereof, shall remain in the said court for the term of three months Wºº!",
. . . - • * - - --- - may be put out
at interest.
2 without being applied for,the chancellor may direct the same to be put out at interest, under the direction of
3 the court, for the benefit of the defendant, his representatives or assigns, to be paid to them by the order of
4 such court,
1 SEC. 121. Whenever a bill shall be filed for the satisfaction or foreclosure of any mortgage, upon which when bill to be
r t dismissed on
payment of a-
mount due and
2 there shall be due any interest, or any portion or instalment of the principal and there shall be other por-costs.
3 tions or instalments to become due subsequently, the bill shall be dismissed upon the defendant's bringing in-
4 to court, at any time before the decree of sale, the principal and interest due with costs.
~, r - g * # e * when roceed-
1 SEC. 122. If after a decree for sale entered against a defendant in such case, he shall bring into court the ºd
On payment of
- aulount due, &c.
2 principal and interest due, with costs, the proceedings in the suit shall be stayed; but the court shall enter a
3 decree of foreclosure and sale, to be enforced by a further order of the court, upon a subsequent default in
4 the payment of any portion or instalment of the principal, or of any interest thereafter to grow due.
126
Chap. 90.] ( 502 ) [Triº 21.
1 Sec. 123. If the defendant shall not bring into eourt the amount due, with costs, or if for any other cause,
Reference in
case of payments
to grow due in
#º." 2 a decree shall pass for the complainant, the court shall direct a reference to a master, to ascertain and re-
3 port the situation of the mortgaged premises; and if it shall appear that the same can be sold in parcels,
4 without injury to the interests of the parties, the decree shall direct so much of the mortgaged premises to
5 be sold, as will be sufficient to pay the amount then due on such mortgage, with costs; and such decree shall
6 remain as security for any subsequent default.
Proceedings in
case of default
subsequent to de-
cree.
' 1 SEC. 124. If in the case mentioned in the preceding section, there shall be any default subsequent to such
2 decree, in the payment of any portion or instalment of the principal, or of any interest due upon such
3 mortgage, the court may, upon the petition of the complainant, by a further order founded upon such first
-
4 decree, direct a sale of so much of the mortgaged premises to be made under such decree, as will be suffi-
-
5 cient to satisfy the amount so due, with the costs of such petition and the subsequent proceedings thereon,
6 and the same proceedings may be had, as often as a default shall happen.
when whole of 1 SRC. 125. If in any of the foregoing cases, it shall appear to the court that the mortgaged premises are
premises to be -
sold in the first
instance
*
2 so situated that a sale of the whole will be most beneficial to the parties, the decree shall, in the first instance
3 be entered for the sale of the whole premises accordingly.
1 SEC. 126. In such case the proceeds of such sale shall be applied as well to the interest, portion or instal.
In cssc of Sale -
of whole premi-
ses howiproceeds -
applied. 2 ment of the principal due, as towards the whole or residue of the sum secured by such mortgage, and not
3 due and payable at the time of such Sale, and if such residue do not bear interest, then the court may direct
4 the same to be paid with a rebate of the legal interest, for the time during which such residue shall not be
5 due and payable ; or the court may direct the balance of the proceeds of such sale, after paying the sum due
6 with costs, to be put out at interest, for the benefit of the complainant, to be paid to him, as the instalments,
7 or portions of the principal, or the interest, may become due, and the surplus for the benefit of the defen-
8 dant, his representatives or assigns, to be paid to them on the order of the court.
CHAP. 90.] ( 503 ) . [TIPLE 21.
Of Proceedings in relation to the Conveyanee ºf...; by Infants, and the Sale and Disposition of their
- States. -
1 SEc. 127. Whenever any infant shall be seized or possessed of any lands, tenements or hereditaments, by, f b
Infant may be
compelled to
convey lands
2 way of mortgage, or in trust only for others, the court of chancery, on the petition of the guardian of such ºn in
3 infant, or on the application by bill or petition of any person in any way interested, may order and compel
4 such infant to convey and assure such lands, tenements and hereditaments to any other person, in such man-
5 ner as the said court shall direct.
1 SEC. 128. Every conveyance or assurance, made pursuant to such order, shall be as good and effectual in Conveyance to
be effectual.
2 law, as if the same were made by such infant when of lawful age.
1 SEC. 129. Any infant seized of any real estate, or entitled to any term for years in any lands, may, by ºr
ply 1or sale
lands of which
hc is seized.
2 his next friend, or by his guardian, apply to the court of chancery for the sale or disposition of such prop-
3 erty, in the manner hereinafter directed.
1 SEc. 130. On such application, the court shall, if necessary, appoint one or more suitable persons, to be C &
- - t gº
C.
2 guardians of such infant, in relation to the proceedings on such application.
1 SEC. 131. The guardians shall give bond to such infant, to be filed with the register, in such penalty, with
2 such sureties, and in such form as the court shall direct, conditioned for the faithful performance of the trust º: of guar-
3 reposed; for the paying over, investing and accounting for all moneys that shall be received by such guar-
4 dian, according to the order of any court having authority to give directions in the premises; and for the
5 observance of the orders of the court in relation to the said trust.
! SEG, 182. If such bond be forfeited, the court shall direct it to be prosecuted for the benefit of the party in-
Prosecution of
bond.
2 jured.
1 SEC. 133. Upon the filing of such bond, the court may proceed in a summary manner, by reference to a
Reference to in-
quire into mer-
ſº tº e © * ... e its of application
* master, to inquire into the merits of such application. 118 of applicatio
Chap. 90.] ( 504 ) [TITLE 21.
I Sec. 134. Whenever it shall appear satisfactorily that a disposition of any part of the real estate of such
When court
may order letting
or sale, &c. of e tº gº ſo Q e &
:aisſalºof"in- 2 infant, or of his interest in any term for years, is necessary and proper, either for the support and mainte-
fants.
3 nance of such infant, or for his education ; or that the interest of such infant requires, or will be substan-
4 tially promoted by, such disposition, on account of any part of his said property being exposed to waste or
5 dilapidation, or on account of its being wholly unproductive, or for any other peculiar reasons or circumstan-
6 ces, the court may order the letting for a term of years, the sale, or other disposition of such real estate or
7 interest, to be made by the guardian or guardians of such infants, in such manner, and with such restrictions
3 as shall be deemed expedient.
1 SEC. 135. But no real estate or term for years, shall be sold, leased or disposed of in any manner against
No real estate,
&c. to lye sold a-
#ºn. 2 the provisions of any last will, or of any conveyance, by which such estate or term was devised or granted
3 to such infant.
A tf 1 SEC. 136. Upon an agreement for a sale, leasing or other disposition of such property, being made in pur-
#. º º: -
reported, &c. -
2 suance of such order, the same shall be reported to the court on the oath of the guardian making the same;
3 and if it be confirmed, a lease or conveyance shall be executed under the direction of the court.
1 SEC. 137. All sales, leases, dispositions and conveyances, made in good faith by the guardian, in pursu-
Sales, &c. to be
effectual.
2 ance of such orders,when so confirmed, shall be valid and effectual as if made by such infant when of lawful
3 age.
1 SEC. 138. From the time of such application to the court, the infant shall be considered a ward of the COUrt,
Orders of court
for application
of proceeds, ac- 2
counts by guar-
lians, & So far as relates to such property, its proceeds and income ; and the court shall make orders for the appli-
(l 18 ns, &c.
3 cation and disposition of the proceeds of such property, and for the investment of the surplus belonging to
4 such infant, so as to secure the same for his benefit, and shall direct a return of such investment and dispo- -
5 sition to be made on oath, as soon as may be, and shall require accounts to be rendered periodically by any
6 guardian or other person who may be intrusted with the disposition of the income of such proceeds.
l
SEC. 139. No sale made as aforesaid, of the real estate of any infant, shall give to such infant any other
CHAP. 90.] ( 505 ) *- [TITLE 21.
2 or greater interest or estate in the proceeds of such sale, than he had in the estate so sold; but the said pro-#"::";"
Sale.
3 ceeds shall be deemed real estate of the same nature as the property sold.
1 Sec. 140. If the real estate of any infant, or any part of it, shall be subject to dower, and the person en-
Disposition of
e consent in writing to © & e - proceeds in case
2 titled to such dower shall consent iting to accept a gross sum in lieu thereof, or the permanent invest-º. subject to
dower.
s ment of a reasonable sum, in such manner as that the interest thereoſ be made payable to the person entitled
4 to such dower, during life, the court may direct the payment of such sum in gross, or the investment of such
5 sum as shall be deemed reasonable, and shall be acceptable to the person entitled to such dower, in manner
6 aforesaid ; which sums so paid or invested, shall be taken out of the proceeds of the sale of the real estate
7 of such infant.
1 Sec. 141. Before any such sum shall be paid, or such investment made, the court shall be satisfied that an º
####".
º VeStn lent.
2 effectual release of such right of dower has been executed.
Cases in which a Justice of the Supreme Court may exercise the Powers of the Court of Chancery.
1 SEc. 142. Whenever the chancellor shall be a party to a suit in the court of chancery, or related to any When bills to be
- - Nº. ..
- e e º º e * .. 6 justice of Su-
2 party to such suit, or in any way interested in the event thereof, the bill or petition shall be addressed to preme court.
3 the justice of the supreme court, appointed to hold the circuit courts in the judicial circuit within which the
4 same shall be filed.
1 SEc. 143. In the cases mentioned in the preceding section, and in all cases in which the chancellor shall
When justico of
º º º e e sº º t t
2 have been solicitor or counsel for either of the parties in any cause, the justice of the supreme court ap- ; O
chancery.
3 pointed to hold the circuit courts in the judicial circuit within which the bill or petition shall be filed, shall
4 hold the court of chancery for the trial and determination thereof, and shall have and exercise all the pow-
5 ers of the court of chancery in relation to such causes; and appeals may be taken therein as in cases de-islaº.g
ū termined by the chancellor;
127
CHAP. 90.]
( 506 ) [TITLE 21
Appeat may be a
taken from final
order of court of
chancery.
How appeal per-
ºpp p
On entry of ap-
peal &c. pro-
ceedings stayed.
Copy of bill, &c.
not necessary on
appeal unless
directed by su-
preme court.
Powers of su-
preme court on
appeal. .
Proceedings to,
be remitted to
court of chan-
cery, &c.
I
2
2.
2
3
. Of Appeals to the Supreme Court.
SEC 144. Any complainant or defendant who may think himself aggrieved by the decree or final order of
the court of chancery, in any cause, may appeal therefrom to the supreme court.
Sec. 145. Such appeal shall be claimed and entered within ninety days ſrom the time of the making of
such decree or final order, and the appellant shall, within the said ninety days, file with the register who
entered such decree or order, a bond to the appellee, with sufficient sureties to be approved by the chancel-
lor or a justice of the supreme court, and in such sum as the chancellor or such justice shall direct, condition-
ed to pay, satisfy or perform the decree or ‘final order of the supreme court, and to pay all costs, in case
the decree or order of the court of chancery shall be affirmed.
SEc. 146. Upon the entering of such appeal and the filing of such bond, as directed in the preceding sec-
tion, all further proceedings in the cause in the court of chancery shall be stayed, until otherwise ordered
by the supreme court; but iſ the appeal shall not be entered, and such bond filed within the time above lim-
ited thereſor, no appeal shall be allowed.
SEc. 147. When such appeal shall be perfected, it shall not be necessary ſº the register to make any
copy of the bill, or other pleadings, papers or proceedings in the cause, except in cases where the Supreme
court shall, by general or special rule or order, direct such copy to be made; but the same may be trans-
ferred from one register's office to another, in such cases, and according to such rules as the Supreme court
may prescribe.
*
Sec. 148. Upon any order or decree of the court of chancery being brought by appeal to the supreme
court, that court shall examine all errors that may be assigned or ſound in such order or decree, and shall
hear and determine such appeal, and all matters concerning the same, and shall have power to reverse, af.
4 firm or alter such order or decec, and to make such other order or decree therein, as shall be just.
I
2.
SEc. 149. When an appeal shall have been so heard and determined, all the proceedings, together with the
decree or order of the supreme court therein, and all things concerning the same, shall be remitted to the
CHAP. 91.] ( 507 ) [TITLE 21.
3 court of chancery, where such further proceedings shall be thereupon had, as may be necessary to carry
4 such decree or order into effect.
1 SEc. 150. When such appeal from any order or decree of the court of chancery shall be heard before the
Chancellor may
sit with justices,
2 supreme court, the chancellor, if such order or decree was made by him, shall be authorized to sit with the and inform cuurt
3 justices of the said supreme court, and inform such court of the reasons for his decree or order, but the
of reasons for
decree or order,
&c.
4 chancellor or justice who made such decree or order, shall have no voice in the final determination upon
5 such appeal.
l
2
2
CHAPTER 91.
of THE PROBATE courTs.
udges of pro-
ate to hold
courts, and may
{} * o e e ſº adjourn thc
lished by law, and may adjourn the same from time to time as occasion may require. ſºil. IIlê.
SECTION 1. Every judge of probate shall hold a probate court in his county, at the times and places estab-J
. b
& . - - * * • *. To be a court of
SEc. 2. Every probate court shall be a court of record, and have a seal ; and each judge of probate shall record, and pro-
ceedings to be
recorded, &c.
keep a true and fair record of each order, sentence and decree of the court, and of all wills proved there.
in, with the probate thereof, of all letters testamentary and of administration, and of all other things proper
to be recorded; and, on the legal fees being paid, shall give true copies of the files, records and proceed-
ings of the court, certified by him under the seal of such court.
SEc. 3. All copies so attested, shall be legal evidence in all the courts of law and equity in this state ; and
* º - Effect of attested
tº tº gº ‘. & e g g * ies, us. evi-
certificates of probate of administration, or of guardianship, attested by the judge of probate, may be given º, ºn
in evidence, and have the same effect as any probate, letter of administration, or letter testamentary or of
1842, p. 107.
guardianship, made out in due form of law.
SEc. 4. The probate court shall be deemed open at all times for the transaction of any ordinary business
Court always
open for certain
which may be necessary therein, when previous notice is not required to be given to the persons interested.”
CHAP. 91.] ( 508 ) [Title 21.
Powers and jur- .
isdiction of
judges of pro-
bate.
Ib.
Power of judge
in administering
oaths.
Process.
Orders, &c.,
how enforced.
Who shall serve
process. -
Commissioners
to take testimo-
Ily.
1 SEc. 5. The judge of probate for each county shall have power to take the probate of wills, and to grant
2 administration of the estate of all persons deceased, who were at the time of their decease, inhabitants of, or
3 residents in the same county, and of all who shall die without the state, leaving any estate within such coun-
4 ty to be administered; and to appoint guardians to minors and others in the cases prescribed by law, and
5 shall have and exercise all such other powers and jurisdiction as are or may be conferred by law.
1 SEc. 6. The judge of probate shall have jurisdiction of all matters relating to the settlement of the estates
2 of such deceased persons, and of such minors and others under guardianship.
1 SEc. 7. The judge of probate shall have power to administer all oaths necessary in the transaction of busi-
2 ness before the probate court, and all oaths required by law to be administered to persons executing trusts
3 under the appointment of such court.
I SEc. 8. The several judges of probate shall have power to issue all warrants and processes in conformity
2 to the rules of law, which may be necessary to compel the attendance of witnesses residing in any part of
3 this state, or to carry into effect any order, sentence or decree of the probate courts, or the powers granted
4 them by law.
1 SEc. 9. If any person shall refuse or neglect to perform any order, sentence or decree of a probate court,
2 such court may issue a warrant, directed to any sheriff, constable or other proper officer in this state, re-
3 quiring him to apprehend and imprison such person in the common jail of the county, until he shall perform
4 such order, sentence or decree, or be delivered by due course of law.
1 SEc. 10. All sheriffs, deputy sheriffs, coroners and constables shall serve and execute all legal warrants
2 and processess to them directed by any judge of probate.
1 SEC. 11. When a witness whose testimony is necessary to be used before any court of probate, shall re-
2 side out of this state, or by reason of age or bodily infirmity, shall be unable to attend in person, the court
3 may issue a commission to one or more competent persons to take the testimony of such witness; and de-
Chap. 91.] ( so ) [Title 21.
4 rºom taken according to the provisions of law, for taking depositions to be used on the trial of civ-
5 causes, may be used on the trial of any question before the prºte court, where such testimony may be pro-
6 per.
1 SEC. 12. The judge of probate shall have power to keep order in his court, and to punish any contempt "contempº how
- punished.”
2
his authority, in like manner as such contempt may be punished in the circuit court.
1 SEC. 13. The jurisdiction assumed in any case by a judge of probate, so far as it depends on the place of
When jurisdic-
residence of any person, or the location of his estate, shall not be contested in any suit or proceeding what- §: be
2
3 ever, except in an appeal from the probate court in the original case, or when the want of jurisdiction ap-
4 pears on the same record.
1 SEC. 14. When a case shall be originally within the jurisdiction of the probate court of two or more coun- when court first
taki i-
- ;in
e © e e : jurisdiction.
2 ties, the court which shall first take cognizance thereof by the commencement of proceedings, shall retain
3
the same throughout.
1 SEc. 15. When the validity of any order or decree of a probate court shall be drawn in question in any
Presumption in
favor of orders,
&c., after twen-
2 other suit or proceeding, everything necessary to have been done of proved to render the order or decree years.
3 valid, and which might have been proved by parol at the time of making the order or decree, and was not re-
4 quired to be recorded, shall, after twenty years from such time, be presumed to have been done or proved,
unless the contrary appears on the same record.
5
l
SEc. 16. If a judge of probate shall remove out of his county, or shall die, resign, or otherwise become in-
- When supreme
Court Commis-
sioners to hold
capacitated for executing the duties of his office, the supreme court commissioner for such county shall hold court.
2
3
the court, have all the powers, and perform all the duties of judge of probate therein, until such incapacity
4 shall be removed, or until another judge shall be elected and qualified.
t Sec. 17. When a judge of probate, his wife or child, shall be an heir or legatee, or when such judge shall
128
CHAP. 91.] ( 510 ) [TITLE 21.
2 be an executor or administrator of a deceased person, he shall be deemed to be incapacitated for executing
Ib. -
3 the duties of his office in relation to that estate; and the supreme court commissioner for the same county
4 shall perform such duties.
1 SEC. 18. When the judge, as creditor, or otherwise, shall be interested in any question to be decided by
1b.
2
the court, he shall be deemed to be incapacitated for acting in the decision of that question, and the supreme
*
3
court commissioner for the same county, in such case, shall perform the duties of judge of probate.
... 1 SEC. 19. No judge of probate shall be retained or employed as solicitor, attorney or counsel in any suit
probate not to be *
employed as at- - -
torney, &c. - o te - e
2 or matter which may depend on, or in any way relate to, any sentence or decree made or passed by him;
3 norshall he be solicitor, attorney or counsel, for or against any executor, administrator or guardian appointed
4 within his jurisdiction, in any suit brought by or against the executor, administrator or guardian, as such,
5 nor in any suit relating to the official conduct or duty of such party,
*
::::::::::: 1 SEc. 20. No clerk or other person employed in the office of any probate court, shall be commissioner, ap-
probate office
not to be apprai-
ger, &c., in cer-
tain cases.
2
praiser, or divider of any estate, in any case that is within the jurisdiction of such court.
W hº º SEc. 21. When any executor, administrator, guardian or trustee, who is required to make oath to any ac-
6 a. 1UllStere
by judge out of
court, or by a
lºgº 2 count, is unable, by reason of sickness or otherwise, to attend personally in the probate court for that pur-
I
8 pose, the judge may either proceed himself to administer the oath to the accountant, out of court, or may by
4 his order, authorize any justice of the peace or notary public to administer it, and a certificate of the oath
5 with the account, and the vouchers produced therewith, and the order, if any, shall be returned into the of
6
fice of the judge of probate, and be there filed and recorded.
1 SEC. 22. All other oaths required to be taken, by executors, administrators, guardians and trustees, com-
Other oaths may .
be taken by
judge or justice, tº e t . . . . g * e e
&c. 2 missioners, appraisers and dividers of estates, or by any other persons, in relation to any proceeding in the
3 probate court, may be administered either by the judge of probate, or by any justice of the peace, or notary
4 public, and a certificate thereof, when taken out of court, shall be returned into the probate court, and there
5 be filed and recorded.
CHAP. 91. ( 511 ) *. £ [TITLE 21.
I
2
3
Sec. 23. Any warrant or commission, for the appraisement of any estate, for examining claims against
Certain warrants
© ** - : ºy be re-
0. - e Č(i.
estates, for partition of real estate, or for the assignment of dower, may be revoked by the judge of probate VO
for sufficient cause, and the judge may thereupon issue a new commission, or proceed otherwise therein, as
-*
the circumstances of the case shall require.
Sec. 24. No bond required by law to be given to the judge of probate, or to be filed in his office, shall be
- jº.
deemed sufficient, unless it shall have been examined and approved by the judge, and his approval thereofºº
endersed thereon in writing, and signed by him,
SEc. 25. In all cases not otherwise provided for, any person aggrieved by any order, sentence, decree or Appeal
- ppeals.
denial of a judge of probate, may appeal therefrom to the circuit court for the same county, by filing a no-
tice thereof with the judge of probate within sixty days from the date of the act appealed from, with his rea-
sons for such appeal, together with such bond as is required in the next section.
SEC. 26. The party appealing shall, at the time of filing notice thereof, file with the judge of probate a
Bond on appeal.
1842, p. 107.
bond to the adverse party, in such penalty, and with such surety or sureties as the judge of probate shall ap-
prove, conditioned for the diligent prosecution of such appeal, and the payment of all such damages and
costs as shall be awarded against him, in case he shall fail to obtain a reversal of the decision so appealed
from.
SEC. 27. The appellant shall give notice of such appeal to the adverse party, with his reasons therefor, in
Notice of appeal
to adverse party.
such manner as the probate court shall direct, at least fourteen days before the same shall be entered in the
circuit court.
SEC. 28. The person appealing shall procure and file in the circuit court to which the appeal is taken, a
Appellant to
. * ſº º
tº - tº tº * * CO reCOr(1.
certified copy of the record or proceedings appealed from, of the notice of such appeal filed in the probate.”
court, and the reasons ſor such appeal, together with evidence of the filing of the requisite bond, and that
4 notice has been given to the adverse party according to the order of the probate court.
CHAP. 91.] 3. ( 512 ) [TITLE 21.
On filing copy of
record, circuit
court to try
qucstion.
When circuit
court may allow
appeºl.
Notice of appli-
cation to circuit
court for allow-
ance of appeal.
~,
Time for filing
petition, when
petitioner was
without U. S., at
the passing of
the decree.
Petition may be
filed with clerk
!n vacation.
Proceedings
stayed by ap-
}]eal.
Powers of cir-
cuit court on ap-
peal.
1 Sec. 29. When such certified copy shall have been filed in the circuit court, with the evidence of filing
2 the requisite bond, and of giving notice as aforesaid, such court shall proceed to the trial and determination
3 of the question according to the rules of law ; and if there shall be any question of fact to be decided, is-
4 sue may be joined thereon under the direction of the court, and a trial thereoſ had by jury.
1 SEc. 30. If any person-aggrieved by any act of the judge of probate, shall, from any cause, without de-
2 fault on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall
3 appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon
4 such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if
5 it had been done seasonably.
1 SEC. 31. No such appeal shall be allowed, without due notice to the party adversely interested, nor unless
2 the petition therefor shall be filed within one year after the making of the decree or order complained of,
3 except as provided in the following section.
1 SEC. 32. If the petitioner shall be without the United States at the time of passing the decree or order, he
2 may file his petition within three months after his return, provided it be done within two years after the act
3 complained of
1 SEC. 33. The petition may, in all cases, be filed in the clerk’s office in vacation, as well as in term time,
2 and the clerk shall note upon it the time when it is filed.
1 SEC. 34. After an appeal is claimed, and notice thereof given at the probate office, all further proceedings
2 in pursuance of the sentence, order, decree or denial appealed from, shall cease until the appeal shall be de-
3 termined.
1 Sec. 35. The circuit court may reverse or affirm, in whole or in part, the sentence or act appealed from,
2 and may make such order or decree thereon as the judge of probate ought to have made, and may remit
3 the case to the probate court for further proceedings, or may take any other order therein, as law and jus-
4 tice shall require,
CHAP. 91...] ( 513 ) • [TITLE 21.
*
1 Sec. 36. If the appellant shall fail to prosecute his appeal with reasonable diligence, the circuit court,
2
up gº When circuit
court to affirm
decree, &c.
on evidence that such appeal was taken, and on the motion of any person interested in the case shall affirm
3 the decree or act appealed from, and may allow costs against the appellant.
1 SEC. 37. In all cases that shall be contested, either in the probate court or in the circuit court, such court
Costs in contest-
ed cases.
2 may award costs to either party, in its discretion, to be paid by the other, or to be paid out of the estate
3 which is the subject of the controversy, as justice and equity shall require.
SEc. 38. When costs are awarded to one party, to be paid by the other, the said courts, respectively, may execution for
- costs.
2 issue execution therefor, in like manner as is practiced in the circuit courts in other cases.
Sec 39. Each county shall provide all books necessary for keeping the records, in the office of the judge
Books to be fur-
nished by coun-
2 of probate; but all printed blanks, and other stationary, and all the incidental expenses of the office, shallºs.”.
by judge.
3 be furnished and paid by the judge of probate.
SEc. 40. There shall be a probate court held in each county on the first Monday of each month, and on
Probate courts
2 such other days as the judge of probate shall appoint; and in case any matter shall not be heard at the time "****
3 appointed for hearing the same, such matter shall stand continued until the next stated term of the court,
1845, p. 66.
4 unless the parties interested otherwise agree.
Sec. 41. The chancellor of this state shall have power, from time to time, to make uniform rules for re-chancellor to
make rules.
2 gulating the proceedings in all the probate courts of the state, and to alter, amend or modify the same as he
3 may judge necessary, in all cases not expressly provided for by law.
SEc. 42. The seals of the several probate courts now used by them respectively, shall continue to be the
1 Seals of courts
Il OW II, USC,
2 seals of such courts, until others shall be provided according to law. 1842, p. 107.
1 Sec. 43. In case the probate court of any county shall have no proper seal, the judge of probate shall, at
New seals, how
2 the expense of his county, cause a seal to be made for his office, with such device as he shall think proper, procured, &c.
129
CHAP. 92.]
( 514 ) [TITLE 21
1842, p. 107.
Notice of pro-
ceedings in cer-
taill CúSeS.
1845, p. 66.
Index of records
in probate office.
1845, p. 66.
District courts.
continued.
1840, p. 22, 1840,
p. 141.
Judge of district
courts how ap-
pointed ; his
Salary,
Next term of
office when to
COIll Unell CC,
Associate judg-
€3.
3 and with the words “Probate Seal,” and the name of the county inscribed thereon, and shall deliver a de-
4 scription thereof to the secretary of state to be deposited and recorded in his office,
1 SEc. 44. When notice of any proceedings in a probate court shall be required by law, or be deemed ne-
2 cessary by the judge of probate, and the manner of giving the same shall not be directed by any statute,
3 the judge of probate shall order notice of such proceedings to be given to all persons interested therein in
4 such manner, and for such length of time as he shall deem reasonable.
1 SEC. 45. Each judge of probate shall make an alphabetical index to the records of preceedings in the pro-
2 bate court, and keep the same in his office.
CHAPTER 92.
of THE DISTRICT courTS FOR THE COUNTIES CF WAYNE, OAKLAND, WASHTENAw, AND JACKSON.
1 SECTION 1. The district courts in each of the counties of Wayne, Oakland, Washtenaw, and Jackson, are
2 hereby continued ; and they shall be courts of record, and each of said courts shall be styled respectively,
3 “the district court for the county of ” (The name of the proper county.)
1 SEc. 2. There shall be a presiding judge of said district courts, who shall be appointed by the governor,
2 by and with the advice and consent of the senate for the term of five years, and shall receive an annual
3 salary of one thousand dollars, payable quarter yearly out of any moneys in the state treasury belonging
4 to the general fund, and not otherwise specially appropriated by law.
1 SEc. 3. The next term of said office of presiding judge, shall commence at the expiration of the term of
2 the present presiding judge of said district courts.
1 SEc. 4. The associate judges of the circuit courts in the said counties respectively, shall be associate judg-
2 es of the district court for their respective counties.
Chap. 92.] ( 515 ) °. [TITLE 21.
#.
1 SEC. 5. Any two of the judges of either of such district courts, shall be a quorum for the transaction of
Presiding judges
ſº © may hold court.
2 the business of the court ; but in case of the absence of the associate judges of either of said courts, the
3 presiding judge shall have power to hold the same.
1 SEC. 6. The said district courts, in their respective counties, shall have and exercise original jurisdiction º:
2 of all crimes, misdemeanors and offences committed against the laws of this state, and of all prosecutions
3 in the name of the people of this state for crimes, misdemeanors, offences and penalties; and the said court
4 shall also have and exercise all the powers usually possessed and exercised by courts of record at common
5 law, for the full exercise of the jurisdiction hereby conferred.
1 SEc. 7. There shall be four terms of the district court holden in each year in the county cf Wayne, and
Terms of the
court, and pla-
© . & {} g ces of holding
2 two terms of the district court in each of the counties of Oakland, Washtenaw, and Jackson, at the place the same,
3 appointed for holding the circuit courts for said counties respectively, and at such times as shall be appoin-
4 ted by the presiding judge.
1 SEC. 8. The terms of the said district courts shall continue to be holden as now established, until a new #jºr
terms, how gi-
VCI).
2 appointment thereof shall be made; and whenever a new appointment of such terms shall be made, the
3 presiding judge shall cause notice thereof to be published in the state paper, at least sixty days before hold-
4 ing any term pursuant thereto.
1 SEC. 9. The respective county clerks of the counties of Wayne, Oakland, Washtenaw and Jackson, shall clerk, or dis-
tsict courts.
2 be the clerks of the district courts for their respective counties; and each of said clerks shall keep a jour-
3 nal of the proceedings of such court under the direction of the presiding judge thereof.
I Sec. 10. Such clerks shall sign and seal all process issued out of the district courts for their respective
Powers and du-
ties of clerks.
2 counties; and they shall possess the same powers to administer oaths in all proceedings therein, and do all
3 other acts as clerks of such courts, as the several clerks of the circuit courts have or may exercise in pro-
4 ceedings in such circuit courts respectively.
CHAP. 92.]
( 516 ) [Title 21.
Seals.
Powers of dis-
trict courts to
issue process.
Grand and petit
jurors.
When no grand
jury to be drawn
for circuit court
in certain coun- .
ties.
Compensation
of associate
judges.
Powers of presi-
ding judge on
writs of habeas
corpus.
Complaints, re
cognizahees,
&c., to be re-
turned to dis-
trict courts.
I
2
Sec. 11. The seals of the said district courts now used by them, shall continue to be the seals of such courts
until others shall be provided according to law.
SEc. 12. Each of soid district courts shall have full power and authority to issue all process necessary to
carry into effect the jurisdiction conferred upon it by this chapter; and all laws conferring jurisdiction, pow-
er and authority upon the circuit courts for the respective counties, touching offences again the law. of
this state, or the hearing, th and determination of indictments for crimes, misdemeanors and offences, shall
be applicable to the said district courts.
SEc. 13. Grand and petit juries shall be drawn and summoned to attend the several terms of the said dis-
trict courts, in the same manner as such Jurors are required to be drawn and summoned to attend the circuit
courts for the several counties, and with the same effect; and such petit jurors may be summoned to appear
on such day in term as the presiding judge shall from time to time order and direct.
SEc. 14. No grand jury shall be drawn or summoned to attend any term of the circuit court for either of
2 the counties of Wayne, Oakland, Washtenaw or Jackson, unless by the special order of the justice of the
supreme court appointed to hold the same.
SEc. 15. The associate judges of the said district courts, shall receive the same compensation for their
travel and attendance upon said courts, as they are entitled to for the like services as associate judges of the
circuit courts.
SEc. 16. The presiding judge of the said district courts, shall have power to grant writs of habeas corpus,
returnable before himself, and to proceed thereon, and to do all other acts in vacation touching the matter
whereof jurisdiction is given to the said district courts, which may be necessary and proper to be done du-
ring the vacations of said court.
- *.
Sec. 17. All complaints, recognizances, and proceedings, had or taken before justices of the peace in the
respective counties in which a district court is established, relating to any matter whereof jurisdiction is gi-
CHAP 93.] - ( 517 ) gº [TITLE 21.
3 ven to such district court, and which, in the other counties of this state, are required to be returned to the
4 circuit courts thereof, shall be returnable, and returned, to such district court.
1 SEc. 18. The presiding judge of the said district courts shall have power, and it shall be his duty, to make Rules of prac-
* tice.
2
rules for regulating the practice and conducting the business thereoſ, in all cases not expressly provided for
3 by law ; and to revise, alter and amend the same, from time to time as he shall deem proper.
1 SEc. 19. In the trial of all cases where the presiding judge of the said district courts shall have been en-
When justice of
gaged as counsel, and whenever such judge shall be unable to attend any term of either of said district.
COllrl.
3 courts, it shall be competent for any justice of the supreme court to preside in such courts, and to exercise
2
4
all the powers conferred by this chapter upon such presidin s judge. 1843, p. 232.
CHAPTER 93.
OF COURTS HELD BY JUSTICES OF THE PEACE.
l
SECTION 1. Every justice of the peace elected in any township or city of this state, and duly qualified ac.
Jurisdiction of
Justices of the
cording to law, shall have power to hold a court in his township or city, and shall have original jurisdiction peace.
2
3
of all civil actions wherein the debt or damages demanded do not exceed the sum of one hundred dollars, ex-
1841, p. 81.
4
cept as is provided in the next section, and to hear, try and determine the same according to law,
1 Sec. 2 No justice of the peace shall have cognizance of real actions, actions for a disturbance of a right of
- Actions of
way, or other easement, actions for libel or slander, malicious prosecutions, replevin, assault and battery, jlc-
- tion.
-
2
3
false imprisonment, actions against executors or administrators as such, nor against incorporations, except
4 in the cases specially provided by law, nor when the title to real estate shall come in question.
1 Sec. 3. Such court shall have authority to render judgment upon the confession of any person, made in
2 writing and signed by the person making the same, in the presence of the justice, when the amount shall ºupon
3 not exceed the sum of two hundred dollars,
130
CHAP. 93.] ( 518 ) [Title 21.
*
General powers
of justices
CO UlſtS.
Where actions
to be commen-
ced.
Where action
may be brought
against abscond-
ng defendant.
Action of cove-
nant on bond,
&c. *
Justice not to
hold"court in bar
*OOIO.
Cases of whicl:
justico shall not
take cognizance.
1 SEg. 4. Each of said courts is hereby vested with all sugh powers, for the purpose of exercising the juris-
2 diction conferred by this chapter, as are usual in courts of record, except the power of setting aside a ver-
3 dict, and arresting judgment thereon,
º
i SEc. 5. Every action commenced in such court, shall be brought before some justice of the peace of the
2 township or city where,
3
1. The plaintiff’s, or any of them reside : or
4 2. Where the defendants, or any of them reside ; or
5 3. Before some justice of another township or city, in the same county, next adjoining the residence of the
6
plaintiff or defendant, or one of the plaintiffs or defendants,
|
*ººms.
I
SEc. 6. But if a defendant shall have absconded from his residence, such action may be brought before a
2 justice of the township or city in which such defendant or his property may be ; and if the plaintiffs be all
3 non-residents of the county, or if the defendant be a non-resident of the county, then such action may be
4
brought before any justice of the township or city where such plaintiffs or defendants, or either of them may
5 be.
1 SEC, 6 When there shall be a bond with a penalty exceeding one hundred dollars, with condition for the
2 payment of a sum of money not exceeding one hundred dollars, or for the payment of several sums of mo-
3
ney by instalments, the aggregate of which instalments shall not exceed one hundred dollars, an action of
4 covenant may be maintained, on such condition, in a justices’ court; and a recovery of either of such in-
5 stalments shall not bar a subsequent suit for the other instalments which shall become due after the com-
6 mencement of the former suit.
SEC, 8. No justice of the peace shall hold any court, or hear any examination in any bar-room, grocery,
2 or other room or place where intoxicating liquors shall be sold.
Sec. 9. No justice shall take cognizance of any cause, or do any judicial act, when he shall be related,
within the fourth degree of affinity or consanguinity to either party in any such matter, or shall have been
3
of counsel, or shall be directly or indirectly, interested in such cause or matter.
CHAP. 93.] ( 519 ) [Title 21.
Of the commencement of Suits, and the Service and Relurn of Progess.
* *. s = * gr by Suits how insti-
tuted.
2 process; and when by process, it shall be either a summons, a warrant, or an attachment.
1 SEc. 11. Suits shall be considered as commenced at the times following:
When suit deem-
2 1. Upon process by warrant, at the time of the arrest of the defendant : ... ºom-
3 2. Upon process by attachment or summons, on the day when process shall be delivered to the constable.
4 But if two or more suits be commenced, by summons or attachment, on the same day, the suit in which the
5 process was first served, shall be deemed to have been first commenced :
6
3, When the suit is instituted without process, at the time when the parties shall appear before the justice
7 and cause the same to be entered.
1 SEC. 12. The first process, except as hereinafter directed, shall be a summons, directed to any constable
Summons.
2 of the county in which the justice resides, commanding him to summon the defendant to appear before the
3 justice who issued the same, at a time and place to be named in such summons, not less than six nor more
4 than twelve days from the date of the same, except as hereinafter provided, to answer the plaintiff in a plea
5 in the same summons to be mentioned.
1 SEC. 13. A summons shall in all cases, except as hereinafter otherwise provided, be served at least six days
How summons
Served.
2 before the time of appearance mentioned therein; and if the defendant be found, it shall be served by rea-
8 ding the same to such defendant, and (if required by him) delivering a copy thereof; but if the defendant
4 shall not be found, it shall be served by leaving a copy thereof at the defendant’s last place of abode, in
5 the presence of some one of the family of suitable age and discretion, who shall be informed of its con-
6 tents,
1 SEC, 14. If it appear by the return of the constable that the summons was not personally served, and the
defendant shall not appear on the return day thereof, the plaintiff may thereupon take out a new summons Nº.
in certatn cases.
2
3 against the defendant in continuation of his suit, returnable not less than three, nor more than twelve days
4 from the date thereof, which shall be served at least two days before the time of appearance mentioned there-
CHAP. 93.] ( 520 ) . [Title 21
Attachment
when to issue.
When plaintiff
entitled lo war-
rant.
1839, p. 76, §2.
&b.
- A
5 in, and if such summons be returned that the defendant cannot be found after diligent inquiry, the plaintiff
6 may, in further continuation of his suit, have an attachment against the defendant.
1 SEc. 15. Any plaintiff shall be entitled to an attachment against a defendant, in any action founded Oſl Ol
2 judgment, or on a contract, express or implied, if such plaintiff, or some person in his behalf, shall make
3 and file with the justice, an affidavit, specifying as near as may be the amount due to the plaintiff, and show-
4 ing to the satisfaction of the justice, either,
5 1. That the defendant ** disposed of or concealed, or is about to assign, diº of o: sº
6 any of his property, with the intent to defraud his creditors : or,
7 2. That he is about to remove any of his property from the county in which such application is made, or
8 from the county where the defendant resides, with a like intent : or,
9 3. That he fraudulently contracted the debt, or incurred the obligation, respecting which the suit º brought:
10 or,
11 4. That the defendant has absconded to the injury of his creditors, or does not reside in this state, and has
12 not resided therein for one month immediately preceding the time of making the application.
1 SEC. 16. The plaimir shall be emula to a warrant upon filing with the justice an affidavit, made by such
2 plaintiff or some one in his behalf, showing to the satisfaction of said justice either,
3 1. That the plaintiff has a demand against the defendant for money collected by him as a public officer: or,
4 2. That the plaintiff has a demand agains the defendant for damages arising from the misconduct or neg-
5 lect of the defendant, in any professional employment, or public office : or,
6 3. That the plaintiffs demand is for damages occasioned by a breach of promise to marry.
1 SEC. 17. In actions other than those founded on judgment or contract, the plaintiff shall be entitled to a
2 warrant, if he or some person in his behalf shall make and file with the justice an affidavit, specifying the
3 nature of the demand, and showing to the satisfaction of such justice, either,
4 1. That the asºnian has committed a trespass or other wrong to the damage of the plaintiff; or,
5 2. That the defendant has incurred a penalty or forfeiture, by the violation of some law of this state, for
CHAP. 93.] ( 521 ) [TITLE 21.
6 which the person filing such affidavit has a right to prosecute in the name of the people of this state, or oth-
7 erwise.
1 SEc. 18. In all cases, on application ſor a warrant or attachment, under the provisions of either of the P* Amdavittosh
- º sº 8. Wit (O 8IlOWſ
facts and circum-
Stances,
2 ceding sections, the person applying therefor shall, by affidavit, show the facts and circumstances, within
3 the knowledge of the person making such affidavit, constituting the grounds of the application, whereby the
4 justice may the better judge of the necessity and propriety of issuing such warrant or attachment.
1 SEc. 19. A warrant shall be directed to any constable of the county in which the justice issuing the same
Contents of war-
Yaſh!.
2 resides, and shall command such constable to take the defendant and bring him forthwith before such justice,
3 to answer the plaintiff in a plea to be mentioned therein, and shall require him, after he shall have arrested
4 the deſendant, to notify the plaintiff or prosecutor of the arrest.
1 SEC. 20. A warrant shall be served by arresting the defendant and bringing him ſorthwith before the jus-warrant how
served and re-
turned. .
2 tice issuing the same ; but if such justice on the return thereof, shall be absent, or unable to hear or try the
3 cause, or if it shall appear by the affidavit of the defendant, that such justice is a material witness in his be-
4 half on the trial of the cause, the constable shall take the defendant before some other justice of the same
f
5 township or city, if there be one therein qualified to try the same, and if not, then before some other justice
6 in an adjoining city or township, who shall take cognizance of the cause, and proceed thereon as if the war-
7 rant had been issued by him.
I SEc. 21. When the defendant shall be brought beſore the justice on a warrant, the justice shall then, or
Justice to pro-
º
tº , ſº tº e gº & causes unless
2 within three days thereafter, unless the parties agree to allow a longer time, or there be an adjournment, º:
*-
...”
3 proceed to hear, try and determine the cause,
1 Sac. 22. In all cases of attachment, the plaintiff shall, before the issuing of the attachment, file with the jus.
Bond to be filed
Joefore attach-
2 tice a bond to the defendant, in the penal sum of two hundred dollars, with sufficient sureties to be approved" issues.
8 by the justice in writing thereon, signed by him, conditioned to pay the defendant all damages and costs he
131
CHAP. 93.] ( 522 ) - [TITLE 21.
4 may sustain by reason of the issuing of the attachment, if the plaintiffshall fail to recover judgment in such
Côntënts of at-
tachment.
Attachment,
when and how.
Berved.
Copy to be left if
defendant can-
not be found.
Goods not to bel
removed if bond
given.
Claimant of
goods may give
bond.
5 suit,
1 SEc. 23. Every attachment shall state the amount claimed by the plaintiff, and shall command any consta-
2 wº of the county in which the justice resides, to attach so much of the goods and chattels of the defendant,
3 excepting such as are exempt by law from execution, as will be sufficient to satisſy, such demand,and safely
4 keep the same, to satisfy any judgment that may be recovered by the plaintiff in such attachment, and to
5 return the same at a time therein to be specified, not less than six nor more than twelve days from the date
6 thereof.
1 SEC. 24. The constable serving such attachment, shall execute the same at least six days before the return
2 thereof, by seizing so much of the goods and chattels of the defendant within his county, as shall be sufficient
3 to satisfy the demand and costs, and making an inventory thereof, and serving a copy of such attachment
4 and inventory upon the defendant, if he can be found within the county,
1 SEC. 25. If the defendant cannot be found within the county, the constable shall leave a copy of the attach-
2 ment and inventory, certified by him at the last place of residence of the defendant, if there be any such
3 place within the county, and if not, then by leaving the same with any person in whose possession such goods
4 and chattels, moneys or effects may be found.
1 SEC. 26. No goods or chattels attached, shall be removed by the constable, if a bond be executed and de-
2 livered to him by any person, with sufficient surety, to be approved by such constable, in a penalty at least
3 double the sum stated in the attachment to have been sworn to, conditioned that such goods and chattels shall
4 be produced to satisfy any execution that may be issued on any judgment that shall be recovered by the
5 plaintiff upon such attachment; and thereupon the officer shall deliver the property attached to the person
6 executing such bond.
I Sec. 27. If any person other than the defendant, shall claim any goods or chattels attached by a constable,
2 he may, after such seizure, and at any time before execution shall have been issued upon the judgment ob-
CHAP. 93.] - ( 523 ) [TITLE 21.
3 tained on such attachment, execute a bond to the plaintiff, with sufficient sureties to be approved by the con-
4 stable, or by the justice who issued the attachment, in a penalty double the value of the property attached, -
5 conditioned that in a suit to be brought on such bond, within three months from the date thereof, such claim-
6 ant will establish that he was the owner of the goods seized, at the time of the seizure ; and in case of his
7 failure to do so, that he will pay to such plaintiff the value of the property so attached, with interest.
1 Sec. 28. Upon either of the bonds aforesaid, being executed and delivered to the constable, he shall deliver ºn the delivery
of bond property
to delivered to
obligor.
2 up the property seized by him, to the obligor, in such bond.
1 SEc. 29. If the attachment be returned personally served upon any of the defendants, the justice shall pro-ºw justice to
4, proceed in case
of personal ser-
Vice of attach-
Iſlent.
2 ceed therein in the same manner as upon a summons returned personally served.
1 SEc. 30. If the attachment shall not be personally served upon any of the defendants, and none of the de- if atchment not
personally ser-
ved cause to be
continued.
2 ſendants shall appear on the return day thereof, the justice shall continue the cause for three months ; and
3 in such case no hearing shall be had, or judgment rendered thereon until the expiration of that time, un-
4 less the defendant shall sooner appear and request a trial, in which case the justice shall appoint a day for
5 the trial of such suit, and cause notice thereof to be given to the plaintiff.
..Q.
1 SEc. 31. In case of such continuance, the plaintiff shall, within ten days thereafter, unless the deſendant Notice I
Otice in case of
continuunce.
2 shall sooner appear, cause notice to be published in some public newspaper, printed in the county, if there
3 be one, of the issuing of the attachment by such justice in favor of the plaintiff against the defendant, and of
4 the time and place of trial; which notice shall be published for five successive weeks; but if no newspaper
5 be published in the county, such notice shall be posted up in three of the most public places in such county.
1 SEC. 32. If at any time before judgment, the defendant shall appear and answer to the action, and shall give
- If defendant ap-
* * y - - pear before judg-
- . tº a º tº - zºw sº, ſº I’ * , * * -, * ~ * : * * g Intº nt and give
2 bond to the plaintiff in a penalty double the amount claimed by the plaintiff, with one or more sureties to º º;
to be discharged.
3 be approved by the justice, conditioned to pay any judgment the plaintiff may recover against him in the ac-
4 tion, within thirty days after the rendition thereoſ, the justice shall thereupon make an order discharging
5 the property attached
Char. 93.]
( 524 J [Title 21.
Constable to re-
turn time and
munner of serv-
ing process.
Copy of inven-
tory, &c. to be
returned.
When process
not to issue, &c.
until next friend
appointed.
Appointment of .
next friend for
infant plaintiff.
Guardian for in-
fant defendant.
When guardian
for defendant to
he appointed on
motion of plain-
tiff.
• Congcnt of next
friend, &c. to be
fl led.
1
Sec. 33. The constable serving a summons, warrant, attachment or other process, shall. return thereon in
writing, signed by him the time and manner of executing the same 3 and in case of a warrant, he shall in
such return state the fact whether he has or has not notified the plaintiff.
Sec. 34. In case of an attachment, the officer shall also return a copy of the inventory of the property at-
tached, certified by him, and any bond which may have been executed and delivered to him, pursuant to the
foregoing provisions.
Of the Appearance of Parties.
SEc. 35. No process shall be issued for an infant plaintiff, nor shall any issue joined by such plaintiff with-
Out process, be heard, until a next friend for such plaintiffshall be appointed.
- Af
SEc. 36. Whenever requested the justice shall appoint some suitable person to be named by such plaintiff,
who will consent thereto in writing, to act as his next friend in such suit, who shall be responsible for the
costs therein.
S. Ec 37. After the service and return of process against an infant defendant, the suit shall not be any ſur-
• e º © º - º
ther prosecuted until a guardian for such defendant be appointed ; and the justice, upon the request of such
defendant, shall appoint some person who will consent thereto in writing, to be guardian of the defendant, in
the defence of the suit.
SEc. 38. If such defendant shall not appear on the return day of the process, or if he neglect or refuse to
nominate such guardian, the justice may, on motion of the plaintiff, appoint any discreet person to be such
guardian,
Sec. 39. The consent of every such next friend or guardian, shall be filed with the justice; and the guar.
dian for the defendant shall not be liable for any costs in the suit.
Sec. 40. Every plaintiff and defendant of full age, may appear and conduct his suit or defence, either in
CHAP 93.] ( 525 ) - [TITLE 21.
2 person or by attorney; but the constable who served either the original or jury process in the cause, shall Parlies of fun
age may conduct
suit or defence,
* e when constable
3 not appear and advocate for either party at the trial. not to act for
party.
1 Sec. 41. The authority to appear as attorney for any party, may be either written or verbal, and such au.
When attorney
to prove his au-
e * thority.
2 thority shall be proved by the attorney, or other competent testimony, in all cases when requested by the
8 opposite party, or when the opposite party shall not appear, unless the person so appearing be an attorney
4 of a court of record of this state.
Of Pleadings and Set-offs.
1 Sec. 42. At the time of the first appearance of the parties before the justice, either upon the return of pro-
Pleadings when
2 cess, or their voluntary appearance to join issue, the pleadings of the parties shall be made, unless the jus-É.
issue to be join-
ed.
3 tice shall allow further time, upon cause shown ; and when both parties have appeared, an issue shall be
4 joined before an adjournment shall be had, except as aforesaid; and when the defendant shall have appear-
5 ed upon a warrant, the pleadings shall be made within such reasonable time as the justice shall allow for
6 that purpose.
1 SEc. 43. The pleadings in a suit before a justice of the peace may be either written or verbal, at the dis- Pleadings h
- cadings now
- made.
2 cretion of the party making the same, except in a case of plea or notice of title to land. When written
3 they shall be filed and remain with the justice, when verbal, the justice shall enter in his docket the sub-
~~~~
4 stance thereof.
I SEc. 44. In the following cases, and under the following circumstances, a defendant may set off demands
2 which he has against the plaintiff:
Set-offs.
3 1. It must be a demand arising upon judgment, or upon contract express or implied, whether such contract
4 be written or unwritten, sealed or without seal ; and if it be founded upon a bond or other instrument hav-
5 ing a penalty, the sum equitably due by virtue of its condition only shall be set off:
6 2. It must be due to him in his own right, either as being the original creditor or payee, or as being the
7 assignee or owner of the demand :
I32
..CHAR. 93.] ( 526 ) [TITLE 21.
\
8 3. It must be a demand for real estate sold, or for personal property sold, or "for money paid, or services
9 done; or if it be not such a demand, the amount must be liquidated, or be anº of being ascertained by
10 alalain :
11 4. It must have existed at the time of the coinmencement of the suit, and must then have belonged to the
12 defendant :
13 5. It can be allowed only in actions founded on demands which could themselves be the subject of set-off
14 according to law:
15 6. If there be several defendants, the demand set off must be due to all of them jointly, unless the defen-
16 dants shall prove an agreement of the plaintiff or plaintiffs, that the demand proposed to be set off, should
17 apply as payment upon his or their claim :
18 7. It must be a demand existing against the plaintiff in the action, unless the suit be brought in the name
19 of a plaintiff who has no real interest in the contract upon which the suit is ſounded, in which case no set-
20 off of a demand against the plaintiff shall be allowed, unles as hereinafter specified :
21 8. If the action be founded upon a contract, (other than a negotiable promissory note or bill of exchange,)
22 which has been assigned by the plaintiff, a demand existing against such plaintiff or any assignee of such
23 contract, at the time of the assignment thereof, and belonging to the deſendant in good faith. before notice
24 of *mem. may be set off to the amount of the plaintiff’s debt, iſ the demand be such as might
25 have been set off against such plaintiff, or such assignee, while the contract belonged to him :
26 9. If the action be upon a negotiable promissory note or bill of exchange, which has been assigned to the
27 plaintiff aſter it become due, a set-off to the amount of the plaintiff’s debt, may be made of a demand exis
28 ting against any person or persons, who shall have assigned or transferred º note or bill aſter it became
29 due, iſ the demand be such as might have been set off against the assignor, while the note or bill belonged
so to him:
31 10. If the plaintiff be a trustee for any other, or if the suit be in the name of a plaintiff who has no real
32 interest in the contract upon which the suit is fºunded so much of a demand existing against those whom
33 the plaintiff represents, or for whose benefit the action is brought, may be set off, as will satisfy the plain-
34 tiff’s debt, if the same might have been set off in an action brought by those beneficially interested.
&
Chap. 93.] ( 527 ) [Title 21.
1.
2
1
Sec.45. To entitle a defendant to a set off, he must give notice of the same ; specifying the nature of f
. Noti re of set off.
his claim with reasonable certainty, at the time of joining issue on a question of fact upon the merits of the
GàUS6,
Sec. 46. Iſ the amount of the set off duly established, be equal to the plaintiff’s debt, judgment shall be
gº e º - e & e ty
entered for the defendant,with costs; if it be less than the plaintiff’s debt, the plaintiff shall have judgment ;.
cases of set off.
for the residue only, with costs; if it be more than the plaintiff’s debt, and the balance ſound due to the de-
*
ſendant from the plaintiff in the action, be one hundred dollars or under, judgment shall be rendered for the
defendant for the amount thereof with costs; and execution shall be awarded 6s upon a judgment in a suit
brought by him ; but no such judgment shall be rendered against the plaintiff when the contract, which is
the subject of the suit, shall have been assigned before the commencement of such suit, nor ſor any balance
/
due from any other person than the plaintiff in the action,
SEC. 47. Iſ the balance ſound due to the defendant, exceed one hundred dollars, the justice shall set off so Judgment in
case of balance
of inore than one
hundred dollars
much of the deſendant’s demand against the plaintiff's debt, as shall be sufficient to satisfy it, if requested to duo defendant.
do so by the defendant, and shall render judgment for the deſendant for his costs; but if the defendant shall
not require such set off, the justice shall render judgment of discontinuance against the plaintiff, with costs
to the defendant ; and the defendant may thereafter sue for and recover his demand in any court having Cog-
nizance thereof.
SEc. 48. If upon the trial of a cause, it shall appear that the amount of the plaintiff’s claim, together with
When judgment
t of discontinu-
the demand set off by the deſendant, according to the preceding provisions, exceed five hundred dollas, judg-..." "“”
ment of discontinuance shall be rendered against the plaintiff, with costs to the defendant.
Sec. 49. Whenever a set-off is established in a suit brought by executors or administrators, and the defend-
Judgment for
-- set-uſ º:
ant shall be entitled to judgment, such judgment shall be rendered against the plaintiffs in their representa- * *
tive character, and shall be evidence, of a debt established, to be paid in the course of administration, but no
execution shall issue thereon. .
CHAP, 93.] ( 528 . )
[TITLE 21
Defendant ne-
glecting to set-
off demand pre-
cluded from re-
covering costs.
Notice showing
that title will
come in ques-
tion.
Plea and notice
to be in writing,
&c.
Bond to be given
by defeadant.
Action to be dis
coutinued on dc-
livery of bond.-
Aetion to be dis-
continued on de-
livery of bond.
I Sec. 50. If a defendant neglect to set off any demand, which, according to the preceding provisions, might
2 have been allowed to him on the trial of the cause, he shall w forever thereafter precluded from recovering
3 costs in any action brought to recover such demand or any part thereof, which might have been set off; and
4 if the demand which might have been set off consisted of a negotiable promissory note, or bill of exchange,
5 no person who shall derive title thereto, aſter the amount thereof might have been set off as aſoresaid, shall
6 recover costs in any action thereon.
1 SEC, 51. In every action where the title of lands shall in anywise come th question, the defendant, at the
2 time he is required to join issue, and not aſter, may give a notice under the general issue, showing that the
3 title to lands will come in question, and may also give notice of any other matter of defence to the action.
1 Sec. 52. Such plea and notice shall be in writing, and signed by the defendant or his attorney, and deliv-
2 ered to the justice, who shall then countersign the same and deliver them to the plaintiff.
l
dº
1 SEc. 53. At the time of tendering such plea and notice, the deſendant with at least one sufficient surety, to
2 be approved by the justice, shall enter into a bond to the plaintiff, in a penalty of at least two hundred dol-
3 lars, conditioned, if such plaintiff shall commence a suit in the supreme court, within thirty days thereaſter,
4 ſor the same cause * whereon he relied before the justice, that such defendant will appear and plead
5 to such action, and pay any judgment that may be rendered against him in such action.
1 SEc. 54. Such bond shall be delivered to the justice at the time of tendering such plea and notice, and on
2 payment of costs by the defendant, the action shall be discontinued ; and the costs so paid by the defendant,
3 an be allowed to him, if he recover costs in the action brought in the supreme court, if any be brought
4 within the time aforesaid; iſ no suit be brought in the supreme court within thirty days after the delivery of
5 the bond, the defendant may recover of the plaintiff the costs so paid by him as aforesaid, together with his
6 own costs in the suit before the justice.
l R Sec. 55. It such bond be not delivered as herein directed, the justice shall have jurisdiction of the cause,
2 and shall proceed therein, and the deſendant shall be precluded in his defence from all evidence drawing in
Chap. 93.] ( 529 ) [TITLE 21.
3 question the title to lands, and any claim of title to lands made by the plaintiff in his declaration, and therein in... ..., deli-
vered. justice to
proceed, &c.
4 described, shall be deemed to be admitted by the defendant,
© * the trial, from the plaintiff’s own showing, that it tº e * -
l Sec. 56. If it appear on lūl, ll le p ing, the title to land is in question, When justice to
dismiss cause,
2 which title shall not be admitted by the defendant, the justice shall dismiss the cause, and the defendant shall
3 recover costs.
1 SEC. 57. When a suit is discontinued before a justice by the delivery of a plea and notice, and a bond as Yºº-
plea and notice,
plaintiff may
2 above provided, the plaintiff may prosecute in action for the same cause in the supreme court; and the cºmmence in
. supreme court.
3 plaintiff in such suit shall declare only for the same cause of action whereon he relied before the justice,and
4 the plea and notice of the defendant shall be the same which he tendered before the justice.
1 Sec. 58. If the judgment in such suit in the supreme court shall be for the plaintiff, he shall recover costs; cºnn.
preme court,
2 if it be for the defendant, (other than judgment of non-suit or non pros,) and the presiding judge of the court
3 beſore which the issue is tried, shall not certiſy that the title to lands did come in question, the deſendant
4 shall not recover costs, but shall pay costs to the plaintiff.
1 SEC. 59. If the plaintiff’s declaration in a suit before a justice, shall contain several counts or causes of when suit dis-
continued for
- - One cause of ac-
& & º tº * @ e $ º tion, and con-
2 action, to one or more of which a defence bringing in question the title to lands shall be interposed by the linued ºn-
- er S.
3 deſendant, and he shall tender a plea and notice to such court, and deliver a bond as above provided, the jus-
4 tice shall discontinue proceedings for such cause of action, and the plaintiff may commence a suit in the
5 supreme court therefor; and for the other causes of action the justice may continue his proceedings.
Of Adjournments,
1 Sec. 60. If the plaintiff or defendant shall make it appear to the satisfaction of the justice, by his oath, or
Adjournments,
how obtained,
2
the oath of his attorney, that he cannot safely proceed to trial for the want of some material testamony or
3 witness, the justice shall postpone the trial for such reasonable time, and so often as he shall deem it proper,
not exceeding in all, three months; provided, that a party claiming an adjournment after a former adjourn-
4
133
CHAr. 93.] ( 530 ) [TITLE 21.
5 ment has been had, shall ſurther make it appear to the satisfaction of the justice, that he has used reasona-
6 ble diligence to procure such testlmony or witness since the last preceding adjournment,
i SEC. 61. No party shall be entitled to an adjournment aſter he shall have seen the account or demand of
When party not
cntitled to ad-
łºś 2 the adverse party, unless he shall exhibit his account or demand, iſ any he has to be litigated or passed upon
his account, &c.
3 in the suit, or shall state the nature thereof as far forth as may be in his power, to the satisfaction of the -
4 justice.
# SEc. 62. If a cause commenced by warrant, be adjourned upon the application of the deſendant, he shall
Defendant on
warrant olotain
ing adjournment
º givºl. 2 continue, during the time of aijournment, in the custody of the constable, unless he shall give bond to the
and be dischurg-
ed. *
3 plaintiff, in the sum of two hundred dollars, with sufficient surety or sureties, to be a proved by the justice,
4 conditioned that such defendant will render himself in execution, in case judgment shall be rendered against
5 him in the suit, and that no part of his property liable to execution shall be removed, secreted, assigned or
6 disposed of except for the necessary support of himself and family, until any judgment the plaintiff may
7 obtain against him shall be satisfied, or until the expiration of ten days aſter the plaintiff shall be entitled to
* t
8 execution thereon.
1 SEC, 63. If such cause be adjourned on the consent of bo:h parties, or if it be adjourned on the application
If cause adjour-
ned by consent,
&c., defendant to
be discharged, 2 of the plaintiff, the defendant shall be discharged from custody; but the cause shall not be discontinued by
3 such discharge, and at the adjourned day,the same proceedings shall be had,as in case of a summons return-
4 ed personally served.
Of Compelling the attendance of Witnesses.
Justice may SEc. 64. Any justice of the péace may issue subpoenas, to compel the attendance of witnesses to give evi.
sue subpoenas,
&c.
2 dence in any cause or matter depending before himself or any other justice or court, and such subpoena shall
3 be valid to compel the attendance of a witness being in the same county where the cause or matter is to be
4 tried, or being in any other county, and within thirty miles of the place of trial.
*
*
1 SEC.65. A justice shall not issue any subpoena to compel the attendance of witnesses before any other
Chap. 93.] - - ( 531 ) § [Title 21.
2 justice or court, or before arbitrators or referees, unless the person so applying shall show by his own oath, sº
- site subpoena
in certain caseg
3 or the oath of some other person, that such suit or matter is actually depending before such justice or court. without oath.
1 SEc. 66. A subpoena may be served either by a constable or any other person; and it shall be served by
Subpoena, by
whom and how
2 reading the same, or stating the contents to the witness; and by paying or tendering the ſees allowed by law; as $5.
3 for travelling, and one-half day’s attendance.
1 Sec. 67. Whenever it shall appear by the affidavit of the party in the suit, or by other competent testi-
When justice
- may issue at-
© © tº , º, . . . tachment for
2 mony, to the satisſaction of the justice, that any person duly subpoenaed to appear before him in any cause, witnesses.
3 shall have refused or neglected, without just cause to attend as a witness in conformity to such subpoena, and
4 that the testimony of such witness is material, the justice shall have power to issue an attachment to com-
5 pel the attendance of such witness.
I Sec. 68. Every such attachment shall be executed in the same manner as a warrant, and the fees of the
Attachment
#. *
& © • © e OW execute
2 officers ſor issuing and serving the same, shall be paid by the person against whom the same shall have and rºy
8 5 2 p y p h id
WDom paid.
3 been issued, unless he shall show reasonable cause to the satisfaction of the justice, for his omission to at-
4 tend; in which case, the party requiring such attachment, shall pay all costs of such attachment and the
5 service of the same.
1 SEC, 69. Every person duly subpoenaed as a witness, who shall not appear, or who appearing, shall refuse
Penalty for refu-
fling to appear
2 to testiſy, shall forfeit ſor every such non-appearance or refusal, (unless some reasonable cause or excuse ***
8 shall be shown on his oath, or the oath of some other person) a sum not less than one dollar, nor more than
4 ten dollars.
1 Sec. 70. Such fine may be imposed by the justice, upon the witness being brought before him on attach-
How fine impo-
sed, &c.
2 ment, and the justice shall thereupon make and enter in his docket, a minute of the conviction, and the y
3 cause thereof, and the same shall be deemed a judgment, in all respects, at the suit of the people ef this.
4 state.
Chap. 93.]
( 532 ) [TITLE 21.
When execution
to issue, and
how éxecuted.
Money collected .
to he returned
and paid over.
Witness neglect-
ing to appear, or
refusing to testi-
fy, liable for da-
‘mages, &c.
Issues how tried
by justice, &c,
When justice to
proceed to hear
proofs of plain-
tiff, &c. iſ defen-
dant fails to ap-
pear.
When party may
demand jury.
1 Sec. 71. Upon the imposition of such fine, and in default of payment thereof, with costs, the justice shall
2 forthwith issue an execution to any constable of the county, commanding him to levy such fine, with costs,
5
6 ceed thirty days.
2
of the goods and chattels of the delinquent, and for want thereof, to take and convey him to the jail of the
county, there to remain until he shall pay such fine and costs; and the keeper of such jail shall keep such
delinquent in close custody in such jail, uhtil the fine and costs be paid; but such imprisonment shall not ex-
1 SEC. 72. When money shall be collected on such execution, the constable shall return the same to the jus-
tice, and such justice shall pay over the amount to the county treasurer, to be distributed according to law.
I Sec. 73. Every person subpoenaed as aforesaid, and neglecting or refusing to appear or testify, shall also
2 be liable to the party in whose behalf he shall have been subpoenaed, for all damages which such party shall
3 sustain, by reason of such non-appearance or refusal; and in all cases when any fees shall be paid to any
4 person for attendance or travel as a witness, and such person shall ſail to attend, he shall refund the a-
5 mount paid.
Of the Trial of Issues of Fact, and the Incidents thereto.
1 SEC. 74. Whenever issue shall have been joined in a suit before a justice, if no jury shall have been de-
2
manded by either party, the justice shall proceed to try such issue, to hear the proofs and allegations of the
3 parties, and to determine the same according to law, as the very right of the case may appear.
.# SEc. 75. Whenever a defendant who has been personally served with a summons or attachment, or who
2
shall have procured an adjournment, without having joined issue, shall neglect to appear and join issue, the
3 justice shall proceed to hear the proofs and allegations of the plaintiff, and determine the same as above
4. prescribed.
I SEc. 76. After an issue of factjoined, and before the justice shall proceed to an investigation of the mer-
2 its of the cause, by an examination of a witness, or the hearing of any other testimony, either of the par-
CHAP. 93.] - ( 533 ) [TITLE 21.
3 ties, or the attorney of either of them, may demand of the justice that the cause be tried by a jury, and pay
4 to the justice the lawful fees of the jurors.
1 SEc. 77. Upon such demand and payment of such fees to the justice, such justice shall direct some disinter-
. Constabl
gº *ś to
- * e w - º e” ... make list.
2 ested constable or other proper person of the county, to write down a list of the names of eighteen inhabi-
3 tants of the county qualified to serve as jurors in courts of record, who shall be in no wise of kin to the plain-
4 tiff or defendant, nor interested in such suit.
1 SEc. 78. The constable or other person directed to make such list, shall before making the same, be sworn
- Person making
list 10 be SWOrns
2 by the justice, to select such persons according to his best judgment, and without favor or partiality to either
3 party.
1 SEC. 79. From such list each party may strike off six names, and in case of the absence or refusal of Striki €S
|K In Italin
- - from #. and
& º e © e tº º sº e * , e. summoning Ju-
2 either party to strike out, the justice shall strike out for him six names from said list; and the justice shall Fors.
3 thereupon issue a venire, directed to any constable of the county, requiring him to summon the six persons
4 whose names shall remain upon the list, to appear at a time and place to be named therein, to make a jury
5 for the trial of the action between the parties named in such venire 3 and the constable shall serve such ve-
6 mire personally on each juror named therein, if to be found within his county.
1 SEc. 80. The parties may agree upon six, or any less number of jurors to try the cause; and in such case
- - * * . Parties may a-
gree upon jury,
* , º * * . e who shall
2 the justice shall direct in the venire, the summoning of the persons so agreed upon, who, when summoned and summoned, &c.
3 appearing, shall compose the jury; and the justice shall make a minute of such agreement in his docket.
1 SEC. 81. lf any of the jurors named in the venire shall not be found, or shall ſail to appear according to When talesmen
to be summoned
to supply defi-
2 the summons, or if there shall be any legal objection to any one who shall appear, it shall be the duty of *
3 the constable, on being thereunto directed by the justice, to summon a sufficient numberof talesmen to sup-
4 ply the deficiency.
134
CHAP. 93.]
( 534 ) [TITLE 21.
*
Oath to jurors.
Jury to hear
proofs, &c.
Ex parte affida-
vit not to be re-
ceived unless
parties consent.
When parties
may he examin-
ed in relation to
aCCOUl Int.
Party may be
witness to prove
death &c. of sub-
scribing witness,
or loss of instru-
Inent.
Objection to
competency of
witness to be
tried by justice.
Oath of witness.
1.
2
H
2
3
4
1
2
3 plaintiff, and
Sec. 82. To each juror the justice shall administer an oath or affirmation, well and truly to try the mat-
t
ter in difference between plaintiff, and defendant, and unless dis-
charged by the justice, a true verdict to give, according to law and evidence.
Sec. 83. After the jury shall be duly sworn, they shall sit together and hear the proofs and allegations of the
parties, which shall be delivered publicly, in their presence.
SEc. 84. No ea parte affidavit of any person shall be allowed or given in evidence on any trial, either
with or without a jury, unless the parties agree to allow the same.
Sec. 85. In any action brought before a justice of the peace on a book account, or where any book ac-
count shall be offered as a set-off, if the party claiming the same shall make oath that there is no disinter-
ested witness whose attendance he could procure, by whom he can prove the facts relating to such account,
the parties to such action and any other persons interested in the event of the suit, may be examined on oath
in relation to such account, or any item thereof.
SEC, 86. A party in a suit, or having an interest in the event thereof, may be a witness to prove the death
or absence beyond the reach of a subpoena of the justice, of a subscribing witness to, or the loss of, any in-
strument which shall come in question on the trial, in order to introduce other proof of the excution or con-
tents of such instrument.
SEC, 87. If a witness, on being produced, shall be objected to as incompetent, such objection shall be tried
and determined by the justice; and evidence may be given in support of, or against such objection, as in
other cases; or the proposed witness may be examined on oath by the party objecting, and if so examined,
no other testimony shall be received, from either party, as to the competency of such witness.
SEc. 88. Every person offered as a witness, before any testimony be given by him, shall be duly sworn or
affirmed, that the evidence he shall give relating to the matter in difference between
defendant, shall be the truth, the whole truth and nothing but the truth.
CHAP. .93.] * ( 585 ) [TITLE 21.
1 Sec. 89. After hearing the proofs and allegations, the jury shall be kept together in some convenient place,
- Oath be admin-
4. istered to consta-
i . - * & - - ble attending ju-
2 under the charge of a constable, until they shall agree upon their verdict, and for that purpose, the justice ** *
3 shall administer to such constable the following oath :
4
“You do swear, (or affirm as the case may be) that you will, to the utmost of your ability, keep the per-
5 sons sworn as jurors on this trial, in some private and convenient place, without meat or drink, except such
6 as shall be ordered by me; that you will not suffer any communication, orally or otherwise, to be made to
7 them; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to
8 ask them if they have agreed on their verdict, until they shall be discharged; and that you will not, before
*
9 they render their verdict, communicate to any person the state of their deliberations, or the verdict they
10 have agreed on.”
SEC, 90. When the jurors have agreed upon their verdict, they shall deliver the same to the justice public-X. º.
ivered publicly,
and entered, and
judgment ren-
ly, and thereupon the justice shall enter the same in his docket, and render judgment thereon. dered thereon.
SEC. 91. Whenever a justice shall be satisfied that a jury sworn in any cause before him, cannot agree on
When jury may
* ſº * e * e - * be discharged,
2 their verdict, after having been out a reasonable time, he may discharge them, and thereupon a new jury ºry
w *º SUlDIIIIlOIl C(l.
3 shall be selected and summoned as hereinbefore directed, within forty-eight hours, unless the parties agree
4 upon a longer time, or consent that the justice may render judgment on the evidence already before him,
5 which, in such case, he may do.
1 SEc. 92. Every person who shall be duly summoned as a juror, and shall not appear, nor render a reason-
Penalty on juror
for not appear-
2 able excuse for his default; or appearing, shall refuse to serve, shall be subject to the same fine, to be im-º." ing
3 posed and collected with costs, in the same manner, and paid over for the same use, as hereinbefore provi-
4 ded in respect to a person subpoenaed as a witness, and not appearing, or appearing, and refusing to testify.
1
Sec. 93. If before joining issue in any cause, the defendant or his attorney, shall make affidavit that the
When justice a
justice before whom the same is pending, is a material witness for such defendant, without whose testimony witness, suit to
2
be transferred,
&c.
8 he cannot safely proceed to trial, the justice shall make an entry of the filing of such affidavit in his docket,
4 and an order that the suit, and all the papers relating there to be transferred to some other justice of the
*~
Chap. 93.] ( 536 ) - [TITLE 21.
When judgment
of non-suit to be
rendered against
plaintiff.
When judgment
to be rendered
for defendant.
Costs on rendi-
tion of judgment.
Proceedings in
case of process
against two or
more, and ser-
vice on either.
Effeet of judg-
ment in such
CºSQ.,
5
same township or city, to be named in such order, who may thereupon proceed to hear, try and determine
6 the cause, in the same manner as if the suit had been originally commenced before him, and with the like
7 effect.
Of Judgments, and Filing Transcripts thereof.
1 SEc. 94. Judgment of non-suit, with costs, shall be rendered against a plaintiff prosecuting an action before
2 a justice of the peace, in the following cases :
3 1. If he discontinue or withdraw his action:
4 2. If he ſail to appear on the return of any process, within one hour after the same was returnable :
5 3. lf after an adjournment, he fail to appear within one hour after the time to which the adjournment shall
6 have been made :
7 4. If he become non-suited on the trial.
1 Sec. 95. Judgment for the defendant, with costs, shall be rendered, whenever a trial has been had, and it
2 be found by verdict, or by the decision of the justice, that the plaintiff has no cause of action against the de-
3 fendant.
1 SEC, 96. Whenever a judgment shall be rendered by a justice against any party, unless herein otherwise
2
provided, it shall be with costs of the suit; but the whole amount of all the items of such costs shall not in
any case, exceed five dollars.
SEc. 97. If process shall have issued against two or more persons, jointly indebted, ſand shall have been per-
sonally served upon either of the defendants, the defendant who may have been served with process, shall
answer to the plaintiff; and the judgment in such case, if remiere in favor of the plaintiff, shall be against
all the defendants in the same manner as if all had been served with process; but execution shall issue only
in the manner hereinafter directed,
Sec. 98. Such judgment shall be conclusive evidence of the liability of the defendant who was personally
served with process in the suit, or who appeared therein ; but against every other defendant, it shall be evi.
gº
CHAP 93.] ( 537 ) * [TITLE 21.
3 dence only of the extent of the plaintiff’s demand, after the liability of such defendantshall have been es-
4 tablished by other evidence.
1 SEC. 99. A judgment obtained before a justice in any suit commenced by attachment, in which the defend-
Judgment upon
- . not
te & e ſº ſº e personally ser-
2 ant was not personally served, and did not appear, shall be only presumptive evidence of indebtedness in any ved.presumptive
evidence only.
3 suit which may be brought thereon, or in which the same may come in question, and may be repelled by the
4 defendant.
1 SEC, 100. In cases where a plaintiff shall be non-suited, discontinue or withdraw his action, and where a
When judgment
to be rendered.
2 judgment shall be confessed, and in all cases where a verdict shall be rendered, or the defendant shall be in
3 custody at the time of hearing the cause, the justice shall forthwith render judgment, and enter the same in
4 his docket; in all other cases, he shall render judgment and enter the same in his docket, within four days
5 after the cause shall have been submitted to him for his final decision.
1 SEC. 101. When a balance shall be found in favor of a party, either by the verdict of a jury, or upon a ...
- *- . - cess, and take
judgment for
2 hearing before the justice, exceeding the sum for which the justice is authorized to give judgment, such party”
3 may remit and release the excess, and may take judgment for the residue.
1 SEC. 102. It shall be the duty of a justice of the peace having the control of any judgment rendered by Justice to give
transcript of
dockect, &c. on
- º tº . º e demand.
2 himself or any other justice, for twenty dollars or over, exclusive of costs, on the demand of any person in
3 whose favor the same shall have been rendered, or his attorney, to give a certified transcript of such judg-
4 ment, and of the proceedings in the case so far as they appear upon the docket, together with the original
5 security for stay of execution, if any such security shall have been given.
Sec. 103. It shall be the duty of the clerk of the circuit court for the county in which such judgment shall Clerk to file
transcript and
docket judgment.
have been rendered, to file such transcript and security for stay of execution in his office when requested,
and to enter and docket the judgment in a book to be by him kept for that purpose, noting therein the time
4 of receiving it,
135
Char. 98.] ( 538 ) [TITLE 31.
Fffect of judg- "
ment so dockct-
ed,and execution
thereo R.
When no trail-
seript to be filed.
Party may cause
transcript to be
filed with regis-
ter of deeds; ef-
fect thereof.
1 SEc. 104. Such judgment shall have the same effect as a judgment rendered in the circuit court,and may in
2 the same manner be enforced, discharged and canceled; but in case security for the stay of execution shall
3 have been given, no execution shall be issued thereon until the expiration of sixty days from the time of ren.
4 dering the judgment, when execution may be issued against both the surety and the person against whom the
5 judgment was rendered.
1 SEC. 105. No transcript of any judgment shall be filed pursuant to the foregoing provisions, when an ex-
2 ecution shall have issued thereon from the justice, until after the return day of such execution, nor until such
3 execution shall have been returned unsatisfied, in whole or in part.
1 SEC. 106. The party in whose favor such judgment was rendered, may cause a transcript of the docket
2 thereof, contaiaing the title of the suit, with the amount of the debt or damages and costs, and the date of
3 the judgment, certified by the clerk, to be filed and docketed in the office of the register of deeds of the same
4 county, and such judgment, from the time of such docketing, shall be a lien upon all the real estate of the
5 person against whom the same was rendered, within the county, in the same manner and with the like ef-
1.xecution, whens
to be issued and
made returnable.
Contents of exe-
cution and how
directed.
6 fect, as in case of a judgment rendered in the supreme court, and a transcript thereof filed and docketed in
7 Such register’s office.
Of Evecutions and Proceedings thereon.
1 Sec. 107. Upon any judgment being rendered before a justice of the peace, he shall issue execution there.
2 on, if requested, at the time and in the manner hereinafter prescribed ; which shall be dated on the day
3 when it actually issued, and be made returnable in sixty days thereafter.
I Sec. 108. Such execution shall be directed to any constable of the an. county, and shall command him,
2 in the name of the people of the state of Michigan, to levy the debt or damages, with interest and costs, of
3 the goods and chattels of the person or persons against whom the same shall be issued, excepting such
at the
4 goods and chattels as are by law exempted from execution,] and bring the money before such justice,
5 time and place therein to be mentioned, to render to the party who recovered the same.
CHAP. 93.] - ( 589 ) [TITLE 21.
1 SEC. 109. In all cases where, by the provisions of this chapter, an execution may issue against the body of
When execution
to command
2 any person, it shall, if the judgment creditor require it, contain a further command to the constable, that if..." "
3 no such goods or chattels can be found, or not sufficient to satisfy such execution, he shall take the body of
4 the person against whom the same shall be issued, and convey him to the common jail of the county, there
5 to remain until such execution shall be paid and satisfied, or he be discharged by due course of law.
1 SEC. 110. In all cases when security shall have been given for the stay of execution, as hereinaſter provi-
- - - when º
to issue agains
† tº a tº * e • . . . . tº tº e principal and Su-
2 ded, if the debt or damages with interest and costs shall not be paid within the time limited by law therefor, fety.
3 execution shall be issued by the justice on application of the judgment creditor, his agent or attorney, against
4 both principal and surety, with the same effect as if the judgment had been rendered against both such prin.
5
cipal and surety upon a joint liability, after the return of process personally served ; except that no such ex-
6 ecution shall be issued against the body of the surety.
1 SEc. 111. An execution issued by a justice of the peace may authorize the arrest and imprisonment of in what cases.
execution may
authorize arrest.
of defendant.
2
the person against whom the judgment is rendered in the following cases:
3 1. When the action in which such judgment was rendered, shall have been commenced by warrant:
4 2. When the plaintiff, or some one in his behalf, shall at or after the time of rendering the judgment,
5
make and file with the justice an affidavit, setting forth the facts and circumstances which would have enti-
6
tled him to a warrant against the defendant, according to the provisions of this chapter.
1 SEC. Flº. In the cases mentioned in the preceding section, and also in suits commenced by attachment, ex-
Execution when
o issue forth-
e * * * is to.
2 ecution shall, on application of the person in whose favor the judgment was rendered, his agent or attorney, wºn unlessley-
3 be issued forthwith after the rendition of the judgment, unless such execution be stayed as hereinafter pro-
4 vided.
to issue in eer-
1 SEc. 113. Upon all judgments rendered by justices of the peace, except in the cases mentioned in the two when execution
- tain cases.
lºst preceding sections, executions shall issue as ſollows:
2
3 1. If the amount recovered, exclusive of costs, does not exceed fifty dollars, at the expiration of three
months from the entering of the judgment:
4
CHAP. 93.] - ( 540 ) - - [TITLE 21
When execution
to be issued on
oath of party.
When applica-
tion for execu-
tion may be
In ade.
How party a-
gainst whom
judgment is re-
covered, may
stay execution,
&c,
Execution may
be recalled on
giving security,
&c.
5
6
l
2. If the amount recovered exclusive of costs, exceed fifty dollars, at the expiration of six months from
the entering of the judgment:
And executions, in such cases, shall not issue sooner, without the consent, in writing, of the person against
whom the judgment was obtained, or the proof in the next section specified.
SEC. 114. If the party obtaining such judgment, shall make it appear by his own oath, or other competent
testimony, to the satisfaction of the justice, that such party will be in danger of losing the amount recover.
ed by him, unless execution issue sooner than is prescribed in the last preceding section, such justice shall
issue execution immediately ; unless the same be stayed by the party against whom the same was rendered,
sº
as hereinafter provided.
*
SEC. 115. Application for such execution may be made at the time of rendering the judgment ; or if rea-
Sonable notice be given to the adverse party of the intention to apply for such execution, such application
may be made at any time after the judgment shall have been rendered.
SEC. 116. The party against whom any judgment shall be recovered, may stay the execution thereon un-
til the expiration of the time herein before prescribed, by giving to the party in whose favor judgment was
obtained, and filing with the justice within five days after the justice shall be authorized to issue execution
thereon, security in wing with one or more sufficient sureties, satisfactory to the judgment creditor Or
the justice, for the payment of the money, with interest and costs, at or before the expiration of three months
from the time of rendering such judgment, if such money shall not exceed fiſty dollars, exclusive of COstS ;
and at or before the expiration of six months, if such money exceed fifty dollars, exclusive of costs.
SEc. 117. In all cases where execution shall have issued within the five days herein before specified, if the
2 judgment debtor shall within that time, give security for the stay of execution as aſoresaid, the justice shall
4
5
6
make an order recalling the execution; and if the same has been levied upon property, such property shall
upon the production of such order to the constable, be forthwith released therefrom, and returned to the per-
son from whom it was taken; and if the judgment debtor be in custody thereon, the officer in whose custo-
dy he may be, upon the production of such order, shall forthwith discharge him therefrom.
Caar. 93.] ( 541 ) ... [Trrºr 21.
I Sec. 118. When a judgment shall be obtained against joint debtors, upon process which was not served . . . .
ºn v e i s , , ºf e “º Executiºn on. ,
- - - g e e wº * I • • . . . . . . . * * * * . Joint deptors,
2 upon all the defendants, execution may be issued in form against all ; but the justice shall endorse thereon Yºu,
- justice to en-
dorse the names
3 the names of such of the defendants who did not appear in the suit, as were not served with process of war-ºl.” “
4 rant, summons or attachment.
1 SEc. 119. Such execution shall not be served upon the persons of the defendants whose names are endorsed
How such cxe-
cution may be
2 thereon ; nor shall it be levied upon the sole property of any such defendant, who neither appeared in *
3 the suit nor was served with such process; but it may be collected of the personal property of any such
4 defendant as a partner of the other defendants, appearing or served with process, or with any of them.
1 SEc. 120. If any execution be returned unsatisfied, in whole or in part, a further execution for the amount.
Further execu-
-- tº & © § - tº e tº OI!.
2 remaining due, may be issued upon the request of the plaintiff, or party interested therein.
1 SEC. 121. An execution may be issued upon any judgment recovered before a justice of the peace, at any
Execution may
* & wº gº : be issued at any
2 time within two years after such judgment shall have been rendered, or after the issuing of a former execu-ºº. wºn tWO
* ~~ - - - * * years, &c.
3 tion which shall have been returned unsatisfied, in whole or in part.
1 SEC. 122. The constable, after taking goods and chattels into custody, by virtue of an execution, shall en-
Endorsement of
wº . • levy, and notice
2 dorse thereon the time of levying the same, and immediately give public notice, by advertisement, signed of sale.
3 by himself and put up at three public places in the city or township where such goods and chattels shall be
4 taken, when and where they will be exposed ſor sale.
1 Sec. 123. Such notice shall describe the goods and chattels, and shall be put up at least five days before the
* - Netice *::s
2 time appointed for the sale. - “neº-sac.
1 SEc. 124. At the time and place so appointed, or at such other time as the sale may be adjourned to with-
Goods to be ex-
posed to sale at
endue, 10, high-
$ -
2 in the life of the execution, the goods and chattels being present, and pointed out to the inspection and ex- ..".
3 amination of the bidders, the constable shall expose them to sale at vendue to the highest bidder.
136 - . . . .
CMAP.93.] ( 542 ) - {Title 21.
1 Sec. 125. The constable shall return the execution, and pay the debt or damages and costs levied, to the
iº execu-
lon and pay- © § º o
*: gºam 2 justice who issued the same, or in case of his death, absence or removal from office, then to the justice hav-
3 ing the custody of his docket, returning the surplus, if any, to the person against whom the execution issued.
1 SEc. 126. No constable shall, directly or indirectly, purchase any goods or chattels, upon any sale made
Constable not to -
purchase at salo. - º º
2 by him upon execution; and every such purchase shall be absolutely void.
1 SEc. 127. For want of sufficient goods and chattels whereon to levy, the constable shall, in the cases author-
When constable
to take body of e e . . - .
** 2 ized by law, if the execution require it, take the body of the person against whom the execution shall have
3 issued, and convey him to the common jail of the county, the keeper whereof is hereby required to keep
4 such person in safe custody in jail, until the debt or damages and costs shall be paid, or he be thence dis-
sº
5 charged by due course of law,
No female to be 1 SEc. 128. No female shall be arrested or imprisoned upon any execution issued by a justice of the peace.
arrested on exe-
CUlt iOn.
1 Sec. 129. If a constable shall neglect to return an execution and pay over the moneys by him collected
If constable ne-
glect to return
:::::::::::: 2 thereon within five days after the return day thereof, or shall neglect to levy an execution, or otherwise ex-
maintained a-
ainst him and
18 sureues.] 3 ecute the same according to law, the party in whose favor such execution was issued, or who shall be enti-
4 tied to such moneys, may maintain an action of assumpsit in his own name upon the instrument of security
5 given by such constable and his sureties; and in such suit the amount of the execution, with interest from
6 the time of the rendition of the judgment upon which the same was issued, shall be recovered; and execution
7 shall issue forthwith, and no stay of execution shalf be allowed.
1 Sec. 130. No constable shall levy upon, or sell any property, or imprison a defendant upon any execu-
Constable not to
levy, &c, after
return day. 2 tion, after the time limited therein for its return.
1 SEc. 131. Whenever a transcript of a judgment rendered by a justice of the peace, shall have been filed
When transcript -
filed and docket- c e o .1 •
ed, º 2 and docketed by the clerk of the circuit court for the county, all executions thereon shall be issued out of,
ISSUE OUlt. Ot Clife * * * - - - -
cuit Court, &c. - - . - - - 4 - - -
3 and under the seal of such circuit court, and the power and authority of the justice in respect to such judg-
4 ment shall cease. -
Cnap. 93.] ( 548 ) [TITLE 21.
l
2
Sec. 132. Whenever an execution shall be issued out of the circuit court on a justice's judgment, it shall
Contents of exe-
cution ſrom cir-
be in the same form, as near as may be, as other executions issued out of such court, against the goods and **
chattels, lands and tenements, of the person against whom it shall issue; and in cases where execution
again the body of any person against whom the judgment was rendered, might have been issued by the ius-
tice thereon, such execution shall command the sheriff, for want of goods and chattels, lands or tenements,
to satisfy such execution, to take the body of such person and commit him to the jail of the county, there to
remain until discharged by due course of law; and to make return of his proceedings thereon to the said
court, within ninety days from the date thereof,
SEc. 133. Executions between the same parties, upon judgments recovered in their own right, ma t
- - p , upon Judg - ght, may be se Setting off of ex-
- s €Cutlon 8 .
off, one against another, if required by either party, in the following manner: When one of the executions
is delivered to a constable to be served, the person who is the debtor therein, may deliver his execution to
the same constable, and such constable shall apply the amount thereof, so far as it will extend, or so far as
may be necessary, to the satisfaction of the first execution; and the balance due on the larger execution
shall be collected and paid in the same manner as if there had been no set-off.
Of Appeals.
SEc. 134. Any party to a judgment rendered by a justice of the peace, conceiving himself aggrieved there- Any party may
appeal to circuit
COUlrt.
2 by, may appeal therefrom to the circuit court for the county where the same was rendered.
2
3
SEc. 135. Within ten days after the rendering of a judgment, the party intending to appeal shall serve on Notice of appeal.
the justice a notice of his intention to appeal from such judgment to the circuit court for the county, which
notice shall be in writing, and signed by the party appealing, or his attorney.
SEc. 136. Such appellant shall also, at the time of serving such notice, deliver to the justice a bond to the Appeal bond.
adverse party, in conformity to the following provisions :
1. It shallbe in a penalty not less than fifty dollars, and not less than double the amount of the judgment,
4 including costs: .
CHAP. 98.] ( 544 ) Ifnir 2i.
Appellant to pay
justice for ma-
king return.
Proceedings on
judgment sus-
pended by ap-
peal,’ &c.
VVhen property
&c. to be releas-
ed.
§ 2. It shall recite the judgment so far wo exhibit the names oran the parties, the character in when they
6 prosecuted or defended before the justice, the amount recovered, and the name of the justice:
7 3. It shall contain a condition, that the appellant will prosecuts his appeal with all due diligence to a decis.
8 ion in the circuit court; and that if a judgment be rendered against him in such court, he will pay the
9 amount of such judgment, including the costs of the appeal, with interest thereon, within thirty days after
10 such judgment rendered ; or if his appeal shall be discontinued or dismissed, that he will pay the costs of
11 such appeal :
12 4. In case the judgment rºle from was rendered against the party appealing, the bond shall contain a
13 further condition, that if his appeal be discontinued or dismissed, he will pay such judgment and interest
14 thereon within thirty days after such discontinuance or dismissal :
15 5. It shall be executed by the appellant, with one or more sufficient sureties, or by two or more sufficient
16 sureties, without the appellant, which sufficiency shall be certified by the justice on the bond.
1 SEc. 137. The appellant shall also, at the time of serving the notice of intention to appeal, pay to the
2 justice the sum of one dollar for making and filing his return.
1 SEc. 138. Upon an appeal being made according to the following provisions, all further proceedings on
2. the judgment before the justice shall be suspended; and if in the meantime, execution shall have been is-
3 sued, the justice shall give to the party, against whom the judgment was rendered, a certificate that an ap-
4 peal in the cause has been duly made.
1 SEC, 139. On such certificate being presented to the officer holding the execution, he shall ſorthwith re-
2 lease the property, or the body of the party against whom the same was issued, which may have been ta-
3 ken ; and if such party shall have been committed to prison, upon service of the like certificate upon the
4 jailor, he shall release him from imprisonment.
Returnof jus-
lice to appeal.
1 SEC, 149, Within ten-days after any appealshall have been made, the justice shall make aireturn of the
2 proceedings had before him to the circuit court for the county, in which shall be stated,
3 1. The title of the cause, and the character in which the parties prosecuted or defended beſore him :
Chap. 93.] * ( 545 ) - [TITLE 21.
* 2. The demand of the plaintiff, and if his declaration was in writing, a copy thereof shall be set forth :
&
5 3. The plea of the defendant, and any notice of set-off or matter of defence given by him, and all other
6
proceedings of the parties upon which an issue was formed; and if in writing, copies thereof shall be set
7
forth.
8
4. If the trial was by jury, the names of the jurors and their verdict:
9 5. The judgment rendered, and the time of rendering the same : and,
10 6. The time when the notice of appeal and bond hereinbefore required were delivered to the justice, and
11 the ſees of the justice were paid.
1 Sec. 141. The appellant or his attorney, may, within the time hereinbefore limited for taking his *PPºal, Appalan, may
file affidavit with
justice.
2 file with the justice an affidavit, specially setting forth the facts and circumstances, which constitute the
3 grounds of his objection to, or complaint of, the proceedings before the justice.
1 SEc. 142. Within ten days after the appeal shall be duly made, the justice shall file with the clerk of the jº. i.
within ten days
after appeal
made.
2 circuit court, his return made as above directed; together with all papers filed with him by either party re-
3 lating to the cause, and the bond delivered to him, by or on behalf of the appellant; and in case of the
4 filing of an affidavit as provided in the preceding section, the justice shall add to his return, and file there-
\ -
5 with, a special return as to all the facts set forth in such affidavit.
1 SEc. 143. If a return shall not be made by a justice, according to law, either party, upon filing with the
2 clerk of the circuit court, an affidavit stating that such appeal has been duly made, and that the justice has º j"
3 failed to make his return to such court according to law, may enter a rule in the book of common rules
4 kept by such clerk, in vacation or in term, requiring the justice to make such return within ten days after
5 notice of such rule, or show cause to the court on the first day of the next term thereaſter, why an attach.
ar
6 ment should not be issued against him.
1 Sec. 144. The circuit court to which the appeal shall have been taken, upon evidence being given that an
2 appeal has been duly made, may, by rule and attachment, compel a return by the justice of his proceedings
137
CHAP. 93.] ( 546 ) [TITLE 21.
Compelling a-
mendment of er-
roneous return.
Disobedience of
justice how pun-
ished.
When court to
determine ap-
peal. --
When appeal to,
be tried by jury.
Court to Cºlliš6
parties to pro-
ceed with dili-
gence.
Notice of trial,
&c,
3 and of all papers and matters required to be returned by him, during the same term, or at a subsequent term
4 and if a rule shall have been entered requiring such return, as hereinbefore authorized, and shall have
5 been served tendays previously, the court shall issue an attachment against such delinquent justice, unless
6 good cause to the contrary be shown by such justice.
l
3
l
8
SEc. 145. Upon satisfactory evidence that the return of a justice is substantially erroneous or defective,
the court may in like manner, compel him to amend the same.
*.
SEc. 146. Upon an attachment being issued against a justice pursuant to either of the foregoing sections,
the court may punish the disobedience of the justice, by imprisonment until he submit, and may adjudge
that he pay the costs of the proceedings against him; and such order shall be enforced as other orders of
the court.
SEc. 147. Upon the return of the justice being made and filed, if the appeal be not dismissed, and the na-
ture and circumstances of the case, and of the questions presented by the return, are such as not to require
a trial by jury, the circuit court shall have power to examine and determine the same, and to give such judg-
ment, or make such order in the case, as law and justice between the parties shall require.
Sec. 148. All cases brought into the circuit court by appeal, as provided in this chapter, which cannot
otherwise be properly determined or disposed of by the court, shall be tried by a jury.
Sec. 149. Upon the return of the justice being filed. and perfected, the court shall cause the parties to pro-
ceed therein with all due diligence; but no proceeding shall be compelled at any term, unless such return
shall have been filed at least ten days before the first day of such term.
Sec. 150. If the return of the justice be filed, the appellant may serve notice of trial for the next term of
the court, eight days before the first day of such term ; and the appellee may in like manner serve such
notice of trial; and he may give the like-notice of a motion to dismiss the appeal, or he may give either no-
-4 tice. • * ~.
Chap. 93.] ( 547 ) . [TITLE 21.
:*
2
2
Sec. 151. No appeal shall be dismissed, on account of any informality or imperfection in the bond, execu-
Appeal not to be
dismissed in
ted by or on behalf of the appellant, if he and his sureties consent to amend the same, or if another sufficient **
bond, to be approved by the court, shall be filed ; and in such case the court shall amend or receive such
bond accordingly.
SEc. 152. No appeal shall be dismissed, on the ground that the fee of the justice has not been paid, nor up-Not to pedia.
missed because
fees not paid,
on any other ground than such as shall have been expressed in the notice; but in all cases, the fact of a re-
*
turn having been made by a justice, shall be conclusive evidence of such fees having been paid.
*
« , , a r s , Motion to dis-
miss not to be
heard without
excuse be allow-
* ed, &c.
such motion shall have been given, or some reasonable and satisfactory excuse for not having given such . .
notice be allowed by the court, and no such motion shall be heard after the first term at which the same
might have been made.
*
*
SEc. 154. If an appeal be dismissed or discontinued, the court shall award costs to the appellee, and may When costs t
I). COSUS to
- - - - * be awarded, to
e appeller and
enforce payment of the same by rule and attachment. '-- *ºnent
SEc. 155. Hſ an appeal be not prosecuted within such time as shall be prescribed by the general rules of the when appeal to
- be discontinued
º
court, the court shall order the same to be discontinued with costs.
s - , sº * * ..]" * § º * in - - & ºt. * * * - * & l --
Sec. 156. Upon an appeal being dismissed or discontinued, and a certified copy of the order of dismissal when justice to
& proceed as if no
e e ë, e tº tº appeal had been
or discontinuance, being served upon the justice, he shall proceed thereon, as if no appeal had been made, made.
Sec. 157. The appellee, in whose favor a judgment shall have been rendered, shall not be entitled to pros:
When appeal
bond not to be
ecute the bond given on an appeal which shall have been dismissed or discontinued, until an execution on the ...".
cution returned
unsatisfied.
3 judgment appealed from shall have been returned that sufficient goods and chattels of such appeliant cannot
4
Sºc. 158. If the appeal be not dismissed, the circuit court shall proceed to the hearing of the cause or the
be found to satisfy the same.
Powers of circuit
court in allow-
ing amendments,
trial thereof by jury as the case may require, and shall have power to allow all necessary amendments to &
CHAP. 93.] ( 548 ) [TITLE 21.
Costs how a-
warde J in cer-
tain cases, tried
by jury.
When party re-
covering judg-
ment entitled to
cQS (8,
Costs in cases
heard and deter-
limined by court.
What costs par-
tics allowed to
tax in certain
CaSCs.
8
the pleadings, or the filing of new pleadings in the cause, as right and justice between the parties may re-
4 quire, and upon such terms as the court shall deem equitable; and the court shall have the same power
5
2
10
11
12
2
over the verdict of a jury, and shall render judgment thereon in the same manner as in other suits in such
COUrt.
SEc. 159. When the cause is tried by jury in the circuit court upon the same pleadings upon which it
was tried in the court below, without amendment, costs shall be awarded as follows, in the following cases :
1. If a defendant, against whom judgment was rendered before the justice, shall appeal, and judgment
thereon be rendered in his favor, or the amount recovered before the justice be reduced ten dollars or more,
full costs shall be awarded to the appellant :
2. If a defendant in whose favor a judgment was rendered before the justice, shall appeal, and he shall not
recover at least five dollars more than the amount recovered before the justice, full cost shall be awarded
to the appellee:
3. If the plaintiff in whose favor judgment was rendered before the justice, appeal, and he shall not reco.
ver at least five dollars more than the amount recovered be fore the justice, full costs shall be awarded to the
appellee :
4. In all other cases specified in this section, the party recovering any sum shall be entitled to costs.
f
SEc. 160. When the issue is substantially varied, or a new issue is formed in the circuit court, the party.
recovering judgment on the trial, shall be entitled to costs.
er
SEC, 161. In all cases heard and determined by the court, without trial by jury, if the judgment appealed
2 ſrom be affirmed, costs shall be awarded to the appellee ; if the judgment appealed from be reversed, costs
shall be awarded to the appellant; if judgment be affirmed in part, the costs, or such part thereof as to the
court shall seem just, may be awarded to either party.
SEc. 162. Whenever costs are awarded to the appellant he shall be allowed to tax, as part thereof, the fee
2 paid to the justice, and the costs, if any, which he ought to have recovered in the cause before the justice ;
Chap 93.] - ( 549 ) [Title. 21.
3
4
5
2
and when costs are awarded to the appellee upon a hearing or trial of the cause in the circuit court, he
shall be allowed to tax as a part thereoſ, the costs, iſ any, which he ought to have recovered in the cause
before the justice.
SEc. 163. If, upon an appeal, a recovery for any debt or damages be had by one party, and costs be awar-when court to
set ºff costs
". - - guinst debt or
- - º - . | e
ded to the other party, the court shall set off such costs against such debt or damages, and render judgment tſutluges
3 ſor the balance.
2
5
2
Sec. 164. In all cases where judgment shall be rendered against the appellant in the circuit court, the when judgment.
11, l.c. cII tº red in-
guinst tippellunt
* & * - º tuid surely.
same may, on motion of the appellee, be entered, as well against the surety on the appeal, as against the ap-
pellant, and execution may issue against them jointly; but in such case the surety shall be discharged ſrom
such judgment, iſ no execution be issued thereon within thirty days aſter the rendition thereoſ, unless such
surety consent to ſurther delay.
SEC. 165. If the judgment be rendered against the appellant alone, execution shall be issued thercon with. Escrution to is.
- - stle against tip-
- - - pellant in thirty
o hi • º & e g © l © tl lys if er. or
in thirty days atter the rendition of the same, or the sureties in the appeal bond shall be discharged. ...”
churged.
Sec. 166. No action shall be brought on any i ºr : ) -- ~ ~ -- -
vº) n any bond given by or on behalf of the appellant, until *0.9XCCU- No action to be
brought on liond
º o e until execution
tion shall have been issued against him as aforesaid, and duly returned unsatisfied in whole or in part. fººled unsue
choral Provisions concerning Justices’ Courts, and Proceedings therein.
Sec. 167. All process issued by a justice of the peace shall be signed by him, and may be under seal or
All process to
. . . . { - be signcil, &c.
without seal. -
Sec. 168. No constable shall ask or receive any money or valuable thing from a defendant or other per-
son, as a consideration, reward or inducement for omitting to arrest any delinquent, or to carry him before ...'....”
for omitting to
arrest, &c.
any justice; or ſor delaying to take any party to prison; or for postponing the sale of any property
under any execution; or ſor omitting or delaying the execution of any duty pertaining to his office.
138
Char. 93.] . ( 550 ) , - [Title 21.
Justice or con-
stable not to levy
claims for thic
purposc of su-
ing, &c.
N6 justice to
purchase judg-
ment rendered
sº by bim, &c.
Tunishment for
violution of three
last scCtions.
What to be crl-
tered in justice's
docket,
1. Sec. 169. No justice of the peace or constable shall, directly or indirectly, buy or be interested in buy-
2 ing, any bond, note or other demand or cause of action, for the purpose of commencing any suit thereon
3
before a justice; nor shall any justice or constable, either before or aſter suit brought, lend or advance, or
4
agree to lend or advance, or procure to be lent or advanced, any money or valuable thing, to any person, in
5,
consideration of, or as a reward for, or inducement to, the placing or having placed in the hands of such
6 justice or constable, any debt, demand or cause of action whatever, for prosecution or collection
1 SEC. 170, No justice of the peace shall purchase, directly or indirectly, or be interested in the purchase of
-
2 any judgment rendered by him,
1 Sec. 171. Every justice or constable, offending-against either of the provisions of the three last preceding
2
sections shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not
3 exceeding five hundred dollars, or imprisonment in the county jail not exceeding six months, or both such
4 fine and imprisonment, in the discretion of the court; and every such conviction shall operate as a ſorſeit-
5 ure of the office of the justice or constable so convicted.
1 SEc. 172. Every justice of the peace shall keep a docket, in which he shall enter,
2. l. The title of all causes commenced before him:
3 2. The time when the first and any subsequent process was issued against the deſendant, and the particular
‘4 process issued :
§ 3. The time when the parties appeared before him, either without process, or on the return of process :
6 4. When the pleadings are made orally, a concise statement of the declaration of the plaintiff, the plea of
7 the defendaw, the further pleadings of the parties, if any, and the issue joined :
8 5. Every adjournment, stating on whose motion, and to what time and place :
9 6. The issuing of a venire, stating at whose request, and the time and place of its return : .
-
10 7. The time when a trial was had, the names of the jurors returned summoned, who did not appear, and
11 the fines imposed on them, if any : -
12 8. The names of the jurors who appeared and were sworn, the names of the witnessessworn at the request
Cuar 93.] *
- ( 551 ) [Triº al.
is of eitherparty, stating at whose reques; the objections. if any, **** of a witness, an
14 the decision thereon:
15 9. The verdict of the jury, and when received:
10 10. The judgment rendered by the justice, and the time of rendering the same :
17 11. The time of putting in any stay of execution, and the name of the surety or sureties therefor:
18 13. The time of issuing execution, and the name of the afficer to whom delivered :
19 13. The return of every execution, and when made :
*.
20 14. The fact of an appeal having been made from any judgment rendered by him, and the time when
21 made :
22 15. The fact of his having given a transcript of the judgment to be filed in the clerk's office, and the time
23 when the same was given.
Items to be en-
tered under title
of cause to
2 cause to which they respectively relate; and in addition thereto,the justice may enter any other proceedings ...:”
1 Sec. 173. The several items in the preceding section enumerated, shall be entered under the title of each
3
had beſore him in such cause, which he shall think it useful to enter in such docket. - -
1 Sec. 174. Whenever it shall become necessary in any action or other proceeding before a justice of the
Original entry,
- . ; evidence bc-
-> º * - : sº © • * e bro same jud-
peace, to give evidence of a judgment, or other proceeding had before him, the original entry of such judg-º. Juß- .
2.
. I
f)
J}
3 ment or other proceeding, or a transcript thereof certified by him, shall be good evidence thereof before J3
*
4 such justice.
1 Sec. 175. A transcript from the docket of any justice of the peace, of any judgment had before him; of
tioſ; Vy
2 the proceedings in the cause previous to such judgment; of the execution issued thereon, if any, and of the ::::::::
- €Il Ce.
3 return to such execution, if any ; when certified by the justice having control of such docket, shall be evi-
4 dence to prove the facts stated in such transcript.
º
1 Sec. 176. The proceedings in any cause or matter, had before a justice, may also be proved by the oath of
Oher proof of
... proceedings be-
the justice; and in case of the death or absence of the justice, they may be proved by producing the original ºrejustices.
2
3 minutes of such proceedings, entered in a book kept by such justice, accompanied by proof of his hand wri-
Char. 93.] ( .552 ) [Trrle 21
!
4 ting, or they may be proved by producing copies of such minutes, sworn to by a competent witness, as havº
.. §: * * * : . . … 3. º - - - - º - - . . * * { - e - - - * *
*
*
5 ing been compared by him with the original entries, with proof that such entries were in the hand writing of
§
6 the justice.
Justice to file 1 SEG. 177. Every justice shall carefully preserve and file all affidavits and papers delivered to him to be filed
and preservc pa"
pers.
*:
2 in any cause.
l Sec. 178. Every justice shall keep an alphabetical index of all judgments entered in his docket book, in the
Index of judg-
inents, &c.
: 2 course of any judicial proceedings had before him, in which shall be inserted the names of the parties to
3 each judgment, and the page of his docket where such judgment is entered.
- 1 SEC. 179. If any justice of the peace shall be absent, when there shall be pending before him any matte
When justicc - o “. tº *&
may deliver pu- º *
pers, &c. to an-
º t * & ti * ge * e & & * © e -
...” 2 or suit undetermined, he may deliver over all the papers relatirg to such matter or suit, with a minute of
tucreon, &c.
. . . . . . . . .' 3:his proceedings therein, to some heighboring justice of the same city or township, who may thereupon pro.
1
4 ceed to hear, try and determine such matter or suit, in the same manner as if such matter or suit had been
tºy
5 commenced before him, and with like effect; but the parties to such matter or suit, their 'agents or attor.
6 neys, shall be notified of such transfer, previous to any hearing or trial of such matter or suit
- * * , - * ſº f
* . . . . . g * < * *. g * . * * * - -
• 1 SEc. 180. When the term of office of a justice'shall expire, if his successor shall be elected and qualified,
When justice to * - - -
deliver books
.** 2 he shall forthwith deliver over to such successor all the books and papers relating to his office as a justice of
3 the peace.
1: SEc. 181. Whenever any justice shall be removed from office, or shall remove out of the township or city
Whcn books
: to be ºver- *
We to cler * , = * gº º s e f y tº - * º & &
-- 2 in which he was elected, or his office shall in any way become vacant, except by death, iſ his successor in
3 office be not elected and qualified, such justice, or the person in whose possession the same may be, shall
4 within ten days aſter such vacancy shall happen, deliver to the township or city clerk, all the books and pa-
5 pers in his custody relating to his office as a justice of the peace.
rº
- * & - - -
t - - - f : - - *
e
&
i Sec. 182. In case any justice shall die, and any books or papers belonging to such justice in his official ca.
. . * & **.
Carr. 93.] * ( 553 ) [Turen, 21.
* pacity, shall come to the hands of any person, the township or city elerk, may demand, and receive such
§: ".
3 books and papers from the person having the same in his possession; and it shall be the duty of every such;" |
4 person, within ten days after any such books or papers shall come to his possession, whether demanded or
f
5 not, to deliver the same to the township or city clèrk.
I Sec. 183. Whenever any township or city-clerk shalſ receive the books and papers of any justieeef the §: º:
f some justicc of
- º º: or
2 peace, as hereinbeſore provided, he shall within ten days from the time he received the same, deliver them ...”
3 over to some other justice of the same township or city, and give notice thereoſ.
1 SEc. 184. Such notice shall specify the name of the justice whose books and papers shalf have been so de-
Notiºi is
- - - - - specify:
2 livered, and to what justice, and when the same were delivered by such clerk, and shall be posted up in
3 three of the most public places in such township or city.
*
l, SEc. 185. Whenever the office of any justice shall, become vacant, by resignation, removal or otherwise, when justice
receiving books,
&c. to proceed to
tº tº • * e - hearing, &c. of
2 and there shall be pending before him any matter or suit undetermined, and the books, and papers of such ºff'...a...
3 justice shall be delivered over to any other justice of the city or township, pursuant to the foregoing provis.
4 ions, the justice to whom such books and papers shall be so delivered, shall proceed to hear, try and deter.
5 mine such matter or suit, and to issue execution thereon, in the same manner and with the like effööt as he
6 might have done iſ such matter or suit had been originally commenced before him.
1 SEC. Ib5. All suits and proceedings pending before any justice of the peace; and undetermined when. his, disg be
uits pending be-
- F. jº. §:
* ~ * * g - $ - ~ a 4 W. A. W. -- . . . ." . . .” . . . . . his office be-
2 office shall becomic vacant, shall be continued as of course until the expiration of ten days from the time .."ºr
course, and jus-
tice to give no-
3 when the books and papers of such justice are delivered over to another justice of the township, or city as tice,
4 hereinbefore provided, of which time the justice to whom such books and papers shall be delivered, shall
5 cause at least three days notice to be gtven to the parties to such suit or proceeding, or such of them as shall
6 be within the county.
1 SEc. 187. The justice to whom the bookständipapers of another justiceshall have been transferred; as here-
139
Char.93.] ( 554 ) [Title 21.
Justice receiving
books and pn-
pers may issuo
execution.
When justice
going out of of.
fice to make re-
turn to appeal,
When justice to
whom hooks,
&c. transferrott
to make return
!o uppeal.
Parties to have
five days to ap-
peal in certuin
cases, after
C.
Proceedings in
CàSC rºll r1) [.().
uppeal cunnot
be compelled.
transfer of books'
&
.*
2 in before provided, may issue execution upon any judgment appearing upon the books so transferred, in the
3 same manner, and with like effect as if such judgment had been rendered by him.
1 Sec. 188. Whenever an appeal shall be duly made from a judgment rendered by a justice while in office,
2 either before or aſter the justice shall have gone out of office, and before his books and papers shall have
3 been delivered to the clerk of the township or city, or to his successor in oſtice, it shall be the duty of such
4 justice to make return to such appeal in like manner as if he were in office at the time of making such re-
5 turn.
1 SEC. 189. If a justice to whom a notice of appeal and bond shall have been duly delivered as hereinbefore
2 provided, shall die, become insane, remove out of the state, or abscond, so that the return of such justice to -
3 the appeal cannot be compelled, the justice to whom his books and * shall have been transferred, shall
4 make and file with the clerk of the circuit court, a transcript of the docket of the cause, together with all
5 the papers relating thereto, and the circuit court shall proceed thereon in the same manner as if return had
6 been made by the justice who rendered the judgment therein.
1 SEC. 190. If before the espiration of the time limited for appealing from any judgment rendered by *
2 of the peace, the term of office of such justice shall expire, or his oſfice otherwise become vacant, either party
3 conceiving himself aggrieved by such judgment, may within ſive days aſter the books and papers of such jus.
4 tice shall have been transferred to another justice pursuant to the foregoing provision.s, deliver a notice of
5 appeal and bond to the justice having control of such judgment, and pay him the ſee he reinbeſore provided,
6 and such justice shall, within ten days thereaſter, make return to such appeal in the same manner, and with
7 the like effect, as if the judgment appealed ſrom had been rendered by him.
1 . Sec. 191. If ſor any cause a return to an appeal cannot be compelled, the court to which such appeal shall
2 be made, may receive the affidavits of witnesses and of the parties, to the ſucts and circumstances of the
3 proceedings, and of the judgment appealed from ; and shall proceed thereon in the came manner as if such
4 facts had been returned by the justice whose duty it was to make return to such appeal.
caar. 93.] ( 555 ) [Tirle 21.
*1 Sec. 192. If any Justice whose duty it shall be to make return to any appeal, shall, before making such
Compelling re-
turn in case of
- © - - ºte º & s º º | f *
.2 return according to law, remove out of the county into any other county in this state, the court to which ºf
county.
3 such appeal shall be made, shall have power to compel a return to such appeal in the same manner as if
4 such justice had not removed.
^.
1 Sec. 193. Every justice who shall issue any process authorized by this chapter, whenever he shall judge -
2 it expedient, on the request of a party, may, by written authority endorsed on such process, empower any ºy;
per person to
serve process. .
3 proper person, being of lawſul age, and not a party or interested in the suit, to execute the same.
1 SEc. 194. The person so empowered shall possess all the authority of a constable in relation to the execu-
º - s. .e. tº . * * * Authority of per-
2 tion of such process, and shall be subject to the same obligations, but shall not receive any ſee or reward for . ºw-
- € C.
" J.
3 his services thereon.
-
1 Sec. 195. In the following cases, a justice of the peace may punish, as for a criminal contempt, persons
In what cases s
. justice inay pun-
uilty of the following incts : - * ' ' ' - isli as for a crim-
2 8 y vº) inal contempt. ... "
3 1. Disorderly, contemptuous or insolent behavior towards such justice, while engaged in the trial of a
tº-
4 cause, or in the rendering of any judgment, or in any judicial proceedings, which shall tend to interrupt
5 such proceedings, or to impair the respect due to his authority:
6 2. Any breach of the peace, noise or other disturbance, tending to interrupt any official proceedings of a . . "
-
7 justice :
8 3. Resistance wilfully offered by any person in the presence of a justice, to the execution of any lawful
9 order or process made or issued by him.
1 Sko. 196. Punishment for contempts, in the ſoregoing cases, may be by fine not exceeding twenty-five
Whnt punish-
ment inay be in-
2 dollars, or by imprisonment in the county jail not exceeding five days, or both in the discretion of the jus- flicted.
3 tice, but no person shall remain imprisoned for the non-payment of such fine, more than ten days.
y w
1 SEc. 197. No person shall be punished for a contempt before a justice, until an opportunity shall hays.
- * - - - - w - - º -
- . . . " - - e • - ! , & r t. * * * - - º * * . . *
- - - - • - ? - Y- -
Cºas 93.t *
( 556 ). [Title ar,
º
2 been given kim to be heard in his defence; and for that purpose, a justice may issue a warrant to bring the
Person to hasa. . . . . . t - -
§ * . . . . . - p º - - * - e.
*:::::::: § offender beſore him; or, if the comtempt was committed in the presenge of the justice, he may cause the of .
4 fender forthwith to be arrested therefor without issuing any process in the first instance.
Record of con: 1 SEC. 198. Upon convicting any person of a contempt, the justice shall make up a record of such convic-
viction and war- • *
rant of commit-
JIl CIlt, to Stat6
ºunces of 2 tion, stating therein the particular circumstances of the offence; and the warrant of commitment for any
ORICInce, - -
3 contempt shall also state the circumstances of the offence, or it shall be void.
1 SEc. 199. When a witness attending before any justice, in any cause, shall reſuse to be sworn in the
When justice to
commit witness º e º
.###". 2 form prescribed by law, or to answer any pertinent and proper question, and the party at whose instance he
tify. - & -
3 attended, shall make oath that the testimony of such witnesss is so far material, that without it he cannot
4 safely proceed to the trial of such cause, such justice may by warrant commit such witness to the jail of the
5 county.
1 Sec. 200. Such warrant shall specify the cause for which the same is issued, and if it be for reſusing to
warrant what -
to specify. º e º - e
2 answer any question, such question shall be specified therein; and such witness shall be closely confined
3-
pursuant to such, warrant, until he submit to be sworn, or to answer, as the case may be.
1 SEc. 201. The justice shall thereupon adjourn such cause at the request of the party in whose ſavor such
Cause to be ad-
journed until
witness shall
testify, or be in-
tapuble, &c.
2
witness attended, from time to time, until such witness shall testiſy in the cause, or be dead, or otherwise
3 incapable of testifying as a witness.
1 Sec. 202. When the name of any defendant shall not be known to the plaintiff, he may be described in
When defendant
mily be prosecu-
...” 2 the process and proceedings by a fictitious name; and if a plea in abatement be interposed by such deſendant,
3 or his name be otherwise ascertained, the justice before whom the suit is pending shall amend the pro-
4 ceedings according to the truth of the matter, and shall thereafter proceed therein in like manner as if the
5 defendant had been sued by his right name.
I SEC, 293. Every, constable to whom any execution shall have been delivered, and whose term of office
Caar. 94.] ( 557 ) [TITLE 21.
2 shall expire before the time within which the return or collection of such execution is required by law,
Constable may
proceed on exe-
cution after ex-
iration of his
3 shall proceed thereon in the same manner, and shall have the same powers in relation thereto, as if his ºf
- 3 ****
s term of office had not expired ; and such constable and his sureties shall be liable for any neglect of duty,
*.
5 and for moneys collected upon such execution, in the same manner, and to the same extent as if the term
6 of office of such constable had not expired.
1 Sec. 204. Any justice of the peace may, in his discretion, require security of the plaintiff for costs in any tº us.
tice may require,
&c.
.2 action, either before or aſter the issuing of process; and the person becoming security therefor shall sign
3 a memorandum to that effect, which the justice shall file and preserve; and in all cases, plaintiffs who are
4 not residents of this state, shall give such security before process shall issue.
CHAPTER 94.
UF COURTS OF SPECIAL SESSIONS,
1 SECTION 1. Courts of special sessions shall have power, subject to the provisions hereinafter contained, to
Powers and ju-
- ...; l
º e tº © . * tº tº º e courts of specia
2 hear and determine charges for offences arising within their respective counties, as follows: O p
sessions.
3 1. All cases of larceny, not charged as a second offence, when the value of the property stolen shall not
4 exceed twenty-five dollars:
s 2. Cases of assault and battery, not charged to have been committed riotously, or upon any public officer
6 in the execution of his duties, or with intent to commit any other offence :
7 3. Charges for wilfully destroying, removing, injuring or defacing any mile-stone or mile-board, or inju-
8 ring or defacing any inscription or device upon any guide-post or guide-board on any highway, or remo-
9 ving, destroying or injuring any guide-post or guide-board.
10 4. Charges for wilfully and maliciously killing, maiming or disfiguring, any horses, cattle or other beast
Il of another person, or for willfully and maliciously destroying or injuring the personal property of another,
12 by any other means, where the value of the beasts killed, or the injury done, shall not exceed twenty-five
13 dollars :
140
CHAP. 94.] ( 558 ) [TITLE 21.
14 5. Charges for wilfully and maliciously breaking down, injuring, removing or destroying any monument
15 erected for the purpose of designating the boundaries of any township, or any tract or lot of land, or any
16 tree marked for that purpose; or for wilfully and maliciously marring or defacing any building, or any sign
17 board ; or wilfully and maliciously extinguishing any lamp, or breaking, destroying or removing any lamp,
18 or any lamp post, or any railing or post erected on any bridge, side walk, street, highway, court, or pas-
19 sage:
20 6. Charges against any person for wilfully committing any trespass, by cutting down or destroying any
22 timber or wood, standing or growing on the land of another, or by carrying away any kind of timber or
23 wood, cut down or lying on such land; or by digging up or carrying away any stone, ore, gravel, clay,
24 sand, turf or mould from such land, or any roots, fruit or plant there being, or by cutting down or carrying
25 away any grass, hay, or any kind of grain, standing growing, or being on such land, or by carrying away
26 from any wharf or landing place, any goods whatever, in which he has no interest, of the value of five
27 dollars or more :
28 7. Charges against any person for willfully committing any trespass, by entering upon the garden, or or-
29 chard or other improved land of another, without permission of the owner thereof, with intent to cut, take,
30 carry away, destroy or injure the trees, grain, grass, hay, fruit or vegetables there growing or being.
1 SEC. 2. When any person charged with any such offence, shall request to be tried by a court of special
When person
harged IS g e o * * = e e . * -
::::::::" 2 sessions, it shall be the duty of the magistrate, if he be a justice of the peace, or an associate judge of the
. sessions,
charge &c. to be
certified.
3 circuit court, before whom such person shall have been brought, to certify such request with the general.na
4 ture of the charge, to any two justices of the peace of the same county, and to require them to associate-
5 with him to try the person so charged.
1 Sec. 3. When any person charged with any such offence shall not make such request, and after having
When facts to
be certified with-
#: #1. 2 been required by the magistrate, shall omit for twenty-four hours to give bail for his appearance at the next
3 criminal court having jurisdiction, the said justice of the peace or judge may certify the facts to two justices
4 of the same county, and require them to associate with him to try such offender.
Chap. 94.] - ( 559 ) - [TITLE 21.
2
4
Sec. 4. If the person making such request or refusing to give bail, shall have been brought before a mag-
When facts to
be certified to
istrate not being a justice of the peace or associate judge of the circuit court, such magistrate shall certify *Justice
the facts to three justices of the peace of the same county, and require them to meet and try such offender ;
and it shall be the duty of such three justices to meet for that purpose, at such time and place as shall be
5 specified in the certificate.
Sec. 5. During the twenty-ſour hours allowed to a person to give bail as herein before provided, and during When person
charged to re-
main in custody
e e - in or * § o of officer, or be
the time which shall elapse between the calling of any court of special sessions, and the convening of such ...?.
court, the person charged may be committed to jail for safe keeping, or he shall continue in the custody of
the officer arresting him, as the magistrate issuing the warrant of arrest shall direct.
SEc. 6. After the court of special sessions shall have convened, the prisoner charged shall be brought be- After court con-
vened, person
charged to con-
- § e e tº e * . . . . tinue in custody
fore such court, and shall continue in the custody of the officer having him in charge, until the termination of officer until
termination of
proceedings.
of their preceedings; and such court shall thereupon proceed, as soon as may be, to the trial of such pris.
One fº
SEC, 7. The charge made against such prisoner, as stated in the warrant of arrest or commitment, shall be
Charge to be
read and plea en-
* = & ered.
distinctly read to such defendant, who shall be required to plead thereto, which plea the court shall enter in' re
their minutes; but if the defendant refuse to plead, the court shall enter the fact with a plea of not guilty in
behalf of such defendant in their minutes.
w
SEC. S. If the plea of the defendant be not guilty, and no jury be demanded by him, the said court shall
When issue to
be tried by court.
proceed to try such issue, and to determine the same according to the evidence which may be produced
against and in behalf of such defendant.
SEC. 9. If the defendant shall plead guilty to such charge, the court shall thereupon convict him of the
w If defendant
- - * gº- lead guilty,
offence charged, and render judgment thereon. #"; we
rendered.
Sec. 10. After the joining of issue, and before the court shall proceed to an investigation of the merits of
CHAP. 94.] ( 500 ) [TITLR 21.
If defendant de-
mand trial by
jury, list to be
made, &c.
Proceedings if
parties neglect
to strike out
names, venire
for jury, &c.
Service and re-
turn oſ venire.
Talešinen.
When new jury
to be summoned,
&c.
Oath to be ad-
ministered to
jurors.
2
3
4.
the cause, the defendant may demand of such court that he be tried by a jury; whereupon the court shall
direct the sheriff or any constable of the county to make a list in writing, of the names of eighteen inhabit-
ants of the county qualified to serve as jurors in the courts of record of this state, from which list the com-
plainant and defendant may each strike out three names.
SEc. 11. In case the complainant or the defendant shall neglect to strike out such names, the court shall
direct some suitable disinterested person to strike out the names for either or both the parties so neglecting;
and upon such names being struck out, the magistrates constituting the court shall issue a venire, directed
to the sheriff or any constable of the county, requiring him to summon the twelve persons whose names shall
remain upon such list, to appear before such court at the time and place to be named therein, to make a jury
for the trial of such offence.
Sec. 12. The officer to whom such venire shall be delivered, shall summon such jurors personally, and shall
make a list of the persons summoned, which he shall certify and annex to the venire, and return the same
with such venire to the court within the time therein specified.
SEc. 13. If any of the jurors named in such venire shall ſail to attend in pursuance thereoſ, or if there
shall be any legal objection to any that shall appear, the court shall supply the deficiency by directing the
sheriff or any constable who may be present and disinterested, to summon any of the bystanders or others
who may be competent, and against whom no cause of challenge shall appear, to act as jurors in the cause.
SEC, 14. If the officer to whom the venire shal have been delivered shall ſail to return the same as there-
by required, or if the jury shall fail to sº and shall be discharged by the court, a new jury shall be se.
lected and summoned in the same manner, and the same proceedings shall thereupon be had, as herein pre-
scribed in respect to the first jury, unless the defendant shall consent to be tried by the court, in which case
the court shall proceed to the trial of the issue, as if no jury had been demanded.
SEc. 15. To each juror one of such justices shall administer the following oath or affirmation :
“You do solemnly swear (or “You do solemnly and sincerely declare and affirm,” as the case may be,)
that you will well and truly try this cause between the people of the state of Michigan and
Chap 94.J ( 561 ) - [TITLE 21.
4
5
defendant, and a true verdict give according to law and the evidence given you in court, unless discharged
by the court.”
f
SEc. 16. After the jury shall have been sworn, they shall sit together and hear the proofs and allegations
Jury to sit to-
e º e - e º gether and hcar
in the case, which shall be delivered in public and in the presence of the defendant; and after hearing such ºf tier
together until
they agree or are
proofs and allegations, the jury shall be kept together in some convenient place, until they agree on a ver- discharged, &c.
dict, or are discharged by the court, and a sheriff or constable shall be sworn to take charge of the jury, in
W
like manner as upon trials in justices’ courts,
SEc. 17. When the jurors have agreed on their verdict, they shall deliver the same to the court, publicly,
Verdict how de-
livered and en-
who shall enter it in the minutes of their proceedings to be kept by them. tered.
SEC, 18. Whenever a defendant shall be tried under the preceding provisions of this chapter, and found
- Punishment to
- be inflicted on
guilty either by the court or by a jury, or shall be convicted of the charge made against him upon a plea of conviction.
guilty, the court shall render judgment thereon, and inflict such punishment, either by fine or imprisonment,
or both, as the nature of the case may require ; but such punishment shall in no case exceed the limit fix-
ed by law for the offence charged.
SEc. 19. Whenever a deſendant tried under the preceding provisions of this chapter, either by the court
or by a jury, shall be acquitted, he shall be immediately discharged ; and if the court before whom the trial Wº:
and complainant
to pay costs, &c.
is had, shall certify in their minutes, that the complaint was wilful and malicious, and without probable
cause, it shall be the duty of the complainant to pay all the costs that shall have accrued to the court and
sheriff or constable, and jury, in the proceedings had upon such complaint, or to give satisfactory security
by bond to the people of this state, with one or more sureties, to pay the same in thirty days after the said
trial.
SEc. 20. If the complainant shall refuse or neglect to pay such costs, or to give such security, the court
When judgment
to be rendered
may forthwith enter judgment against him for the amount of such costs, and forthwith issue execution there- ;:
ecutiºn isſued.
141
Char. 94.] * . ( ,562 ) [TITLe 21.
Judgments of
courts of special
sessions by
whom and how
exeeuted.
Fines to whom
paid, &c., before
committal.
To whom fines
paid after com-
mittal.
Suit to be prose-
cuted by county
tréasurer if fine
mpt paid over.
Subpoenas for
witnesses, &c.
Proceedings as
gainst jurors and
witnesses' failing
to appear, &c.
3 on in the same manner, and with the like effect as in case of an execution issued by a justice of the peace,
4 on a judgment in an action for a trespass or other wrong; and such moneys, when collected, shall be paid
5 over to one of the justices who constituted such court, and be applied by him to the payment of the costs for
6 which the judgment was rendered.
H Sec. 21. The judgment of every court of special sessions shall be executed by the sheriff or any constable
2 of the county, where the conviction shalfbe had, by virtue of a warrant under the hands of the magistrates
3 who held the court, or of a majority of them, to be directed to such officers, and specifying the particulars
4 of such judgment.
1 SEC. 22. All fines imposed by any such court, if paid before the defendant is committed, shall be received
2 by one of the magistrates who constituted the court before which the defendant was convicted, and by such
3 magistrate paid over to the county treasurer, within thirty days after the receipt thereof, to be distributed
4 according to law.
*…
I Sec. 23. If the defendant be committed, payment of any fine imposed on him, shalf be made to the sheriff
2 of the county; who shall, within thirty days after the receipt thereof, pay over the same to the county trea-
3 surer for the purpose aforesaid.
1 SEC, 24, 1ſ any person who shall have received any such fine, or any part thereof, shallineglect to pay over
2 the same pursuant to the foregoing provisions, it shall be the duty of the county treasurer immediately to
3 commence a suit therefor, and to prosecute the same diligently to effect.
1 SEc. 25. Any justice of the peace may issue subpoenas to compel the attendance of witnesses before any
2 court of special sessions, and either of the persons composing such court may administer all necessary oaths
3 in proceedings before such court.
1 SEG.26. In case any person summoned to appear before any court of specialsessions, as a juror or witness,
2 shall fail to appear, or if any witness appearing shallurefuse to be sworn or to testify, he shall be liable to
CaAp. 94.] ( 563 ) ETITLE 21.
3
4
the same penalties, and may be proceeded against in the same mántier, as provided by law in respect to ju-
rors and witnesses in justices’ courts.
Sec. 27. Whenever any conviction shall be had before a court of special sessions, the magistrates by whom
Certificate of
conviction, &c.
such court shall have been held, shall make a certificate of such conviction under their hands, or under the
hands of any two of them, in which it shall be sufficient briefly to state the offence charged, and the con-
viction and judgment thereon, and if any fine has been collected, the amount thereof, and to whom paid.
Sec. 28. Within twenty days after such conviction, the said magistrates shall cause such certificate to be ceñidate ;
filed with clerk
of county.
filed in the office of the clerk of the county in which the conviction shall have been had.
SEC. 29. Every certificate of conviction, made and filed under the foregoing provisions, or a duly certified Certificate or
copy thereof evi-
© e denice.
copy thereof, shall be evidence in all courts and places of the facts therein contained.
Of Writs of Certiorari to Courts of Special Sessions.
SEc. 30. A writ of certiorari, to remove into the supreme court a conviction had before a court of special
Certiorari by
§ed: -
sessions, may be allowed on the application of the party convicted, by any justice of the supreme court, or
by any officer authorized to perform the duties of such justice in vacation.
Sec. 31. The party desiring such certiorari, or some one in his behalf, shall apply for the same within ten application for
allowance of
Certiorari.
days after such conviction shall have been had, and shall make an affidavit specifying the supposed errors
in the proceedings or judgment complained of.
SEc. 32. If the officer to whom application for such certiorari shall be made shall be satisfied that any er-
Allowance and
service of certio-
* . rari
ror has been committed in the judgment or proceedings, injuriously affecting the rights of such applicant, he
shall endorse upon the writ his allowance thereof, and shall certify such allowance upon the affidavit; and
4 such writ and original affidavit shall be delivered to the magistrates, or one of them, before whom the con-
5.
viction was had, within ten days after such allowance.
CHAP. 94.]
( 564 ) [TiTLE 21.
Return to certio-
rari.
Power of su-
preme court to
compel return.
Copy of certiora-
ri &c. to be ser-
ved on attorney
general.
Party need not
appear in su-
preme court, nor
assign errors, &c'
When judgment
to be suspended
and prisoner
discharged, on
recognizance.
Recognizance to
be filed with
county clerk.
Court may con-
tinue reeogni-
zance, or re-
quire new one,
&c.
I
2
Sec. 33. The magistrates to whom the certiorari shall be directed, shall make a special return to all the
matters specified in the affidavit accompanying the writ, and shall cause such writ, affidavit and return, to
3 be filed in the office of the clerk of the supreme court in the proper circuit, within twenty days aſter the
4
2
l
2
service of such writ.
Sec. 34. The supreme court shall have power to compel the making of such return, and the amending and
perfecting the same, by rule and attachment as in other cases.
SEc. 35. A certified copy of every such certiorari, affidavit and return, shall be served by the party pro-
secuting the writ, upon the attorney general, with at least four days’ notice of the argument thereof.
SEc. 36. It shall not be necessary for the party convicted to appear in the Supreme court upon the prose-
cution of such certiorari, nor shall any assignment of errors or joinder in error be necessary, but the su-
preme court shall proceed to hear the parties and give judgment on the return of such writ,
SEc. 37. After the allowance and service of the certiorari, if the person convicted shall enter into a re-
cognizance with sufficient sureties to the satisfaction of us magistrates or an y two of them, who constitu-
ted the court before which he was convicted, to appear at the next term of the circuit or district court (as
the case may be,) to be held in the same county, and to abide the judgment or order of that court in the
premises, it shall be the duty of such magistrates to suspend the execution of the sentence ; and if the de-
fendant shall have been committed to Jail pursuant to any such sentence, the said magistrates shall make an
order directing the jailor to discharge such prisoner from his imprisonment, and such jailor, upon the service
of such order upon him, shall discharge such prisoner accordingly.
SEC. 38. The magistrates by whom any recognizance under the preceding section shall be taken, shall im-
mediately cause the same to be filed with the clerk of the county.
SEc. 39. The court in which the party so convicted and recognized, shall be bound to appear, shall have
power to continue such recognizance, or to require a new recognizance with further or other sureties until
Char. 94.] . ( 565 ) [Title 21.
3
4
the decision of the supreme court shall be had in the premises; and in default of compliance with any such
requisition, such court may commit the party so convicted to close custody.
SEc. 40. If the conviction be reversed, and the defendant be in prison by virtue thereof, the supreme court
* When supreme
e e º e e * court to award
shall award a writ of supersedeas for his discharge; but if the defendant shall have been let to bail as herein ..."
judgment to
cuit or district
before provided, the judgment of the supreme court, whether the conviction be reversed or affirmed, shall be *
remitted to the court in which the defendant shall have been recognized to appear, to be by that court car-
ried into effect.
SEC. 41. Upon such judgment being received, the court to which it shall be remitted, if the conviction be &
- Proceeding of
circuit or district
reversed, shall discharge the defendant; if the conviction be affirmed, such court shall order that the sen-ji,
C Oul rt.
tence of the court of special sessions be executed ; and if the defendant shall have been let out of prison as
herein provided, he shall be remanded to such prison for the remainder of the term for which he was sen.
tenced.
SEc. 42. If it shall appear to the supreme court that the person prosecuting such certiorari, has unreason-
ably delayed to notice, or bring on for argument, the return to such writ, the court may enter a rule to
quash such certiorari; and upon the same being certified to the court in which the person prosecuting such
writ shall be bound to appear, such court shall proceed thereon in the same manner as if the judgment of
the court of special sessions had been affirmed by the supreme court.
144
Cirap.95.] ( 566, ) [Tiple 21.
When certiorith:
ºy be quashed,
.C. -
Supreme court
commissioners'
hºw appoitiled;
Must be an attor
ney and counsel-
lor of supreme
COUlrt.
Oath of office.
General powers
and duties.
when commis-
SiOThorS not to
exercise power.
CHAPTER 95.
6 F SUPREME court commission ERs, ATTorn EYS AND OTHER JUDICIAL of FICERs.
Supreme Court €ommissioners.
1 SECTION I. A commissioner to perförtm'the duties of a justice-of the supreme court at chambers, to be de-
2 nominated a “supreme court ******** this state, shall be appointed
3 by the governor, by and with the advice and consent of the senate; and shall hold his office for the term of
4 four years.
1 SEC. 2. No person shall be appointed a supreme court commissioſier, unless hebgiat the time an attorney
2 and counsellor at law of the supreme court.
1 SEC. 3. Every supreme court commissioner, within fifteen days aſter notice of his appointment, and before
2 he shall enter upon the duties of his office, shall take and subscribe the oath of office prescribed by the con-
3 stitution of this state, before some judge or clerk of a court of record, and transmit the same to the secretary
4 of state; to be filed in his office.
1 SEC. 4. Supreme court commissioners appointed and qualified according to law, shall severally be author-
2 ized and required to perform all the duties, and to execute every act, power and trust, which a justice of the
3 supreme court may perform and execute out of court, according to the rules and practice of such court, and
4 pursuant to the provisions of any statute, in all civil cases, except as herein otherwise provided.
1 SEC. 5. But when any power is given in express terms by any statute, to the justices of the supreme court,
2 without naming supreme court commissioners or officers authorized to perform the duties of justice of the su-
3 preme court at chambers in such statute, such commissioners shall not be authorized to exercise any such
4 power.
1 SEC. 6. No supreme court commissioner shall be authorized to grant any order to stay proceedings before
Chap. 95.] ( 567 ). - [TITLE 21.
2 judgment in any cause in which a verdict shall have been rendered; nor any order to stay proceedings on
* * Not to grant "or-
ders to stay pro-
ceedings in cer-
3 any capias ad respondendum. tain cases.
g º & Effect of order
1. Sec. 7. When an execution shall have been issued, an order to stay proceedings thereon, granted by a su- granted by a su-
preme court
.# to
© tº te & * stav nroeeedings:
2 preme court commissioner, shall not prevent a levy on property by virtue of such execution ; but shall only º: "º
3 suspend a sale thereon, until the decision of the supreme court upon the matter.
1 SEc. 8. Nor shall any such commissioner grant any order to stay proceedings on any execution against the
- Such order not
to stay proceed-
© . e. e ingº on exº-.
2 body of a defendant, unless such defendant shall have executed to the plaintiff, and delivered to such com-º.ºy
executed, &c.
3 missioner, a bond for the use of such plaintiff, in a penalty double the amount required to be collected by
4 such execution, with two sufficient sureties, who shall swear that they are each worth the amount of such
5 penalty, over and above all debts; conditioned that such defendant shall be found within the county to which
6 such execution was directed, so as to be arrested upon any execution that may be issued against his body up-
7, on the same judgment, within six months from the date of such bond.
1 SEC. 9. Such bond shall be filed by the commissioner, in the office of a clerk of the supreme court, within Bond to be filed
with clerk,. &c.
2 twenty days after the same shall have been taken; and shall be delivered by such clerk to the person in
3 whose' favor the execution was issued; whenever the condition thereof shall be broken.
1 SEC. 10. In every order to stay proceedings on an execution against the body, the fact of a bond having
Order to state
giving of bond.
2. been given according to law, shall be stated; and iſ not so stated, such order shall be void.
dº
1 SEC. 11. Where the supreme court shall have made any order in reference to a matter, such order shall
Order made by
supreme court
* 1. -- ~~ *** - - - , * * * * t * : tº-- - ----> --> - - ºw ºf nº cºin in as - – º – . . 4 sº a " not to be affected
2 not be suspended, or in any manner affected; by any order granted by a supreme court commissioner. by order of com-
n1issioners
1 SEC. 12. lf an application for any order be made to any justice of the supreme court, or supreme court
ge e g & & e When subse-
2 commissioner, and such order be refused, in whole or in part, or be granted conditionally, or on terms, no *nºtion
for order not to
be made, and or-
der granted
3. subsequent application in reference to the same matter, and in the same stage of the proceedings, shall be ºn to be re-
4 made to any other supreme court commissioner; and if upon a subsequent application, any order be made
Char. 95.]
[Title 21.
( 568 )
Person violating
last section, how
punished.
Commissioner
not to act when
partner interest-
ed.
Supreme court
authorized to
make rules re-
lating to grant-
ing orders, &c.
by commission-
€rS.
Records of judg-
ments in Su-
preme court, by
whom to be sign-
ed.
Clerks of su-
preme court.
where clerks to
rcside and keep
office.
5
3
I
2
4
by a supreme court commissioner, it shall be revoked by such commissioner, or by any justice of the su-
preme court, upon due proof of the facts.
SEc. 13. Every person making such subsequent application contrary to the foregoing provisions, with
knowledge of any previous application and refusal, shall be liable to be punished by fine and imprisonment
by the supreme court.
SEc. 14. No supreme court commissioner having a law partner in whose name the business of the co-
suit or proceeding in which such partner shall be in any wise interested.
partnership shall be carried on, shall be competent to perform any act authorized in this chapter, in any
SEc. 15. The supreme court shall have power, by general rules, to prescribe any other cases in which su-
preme court commissioners shall not be authorized to grant any orders in relation to suits pending in such
court, and to prescribe the terms and conditions upon which orders may be granted in any specified, class
of cases; and also by order in any particular case, to forbid the interference of any such commissioner.
Sec. 16. Records of judgments in the supreme court, shall be signed, and the costs in that court shall be
Clerks of Courts.
taxed, by one of the justices thereof, by a clerk of such court, or by a supreme court commissioner.
SEc. 17. There shall be five clerks of the Supreme court, to be appointed by the justices thereof, who shall
severally hold their offices during the pleasure of the court.
SEc. 18. One of the said clerks shall reside and keep his office in the city of Detroit, in the county of
Wayne; one of said clerks shall reside and keep his office in the village of Kalamazoo, in the county of
Kalamazoo; one of said clerks shall reside and keep his office in the village of Pontiac, in the county of
Oakland; one of said clerks shall reside and keep his office in the village of Jackson, in the county of Jack-
5 son, and one of said clerks shall reside and keep his office in the village of Grand Rapids, in the county of
6
Kent.
Chap. 95.] i. ( 569 ) [TITLE 21.
d
I
2
4
Sec. 19. Each clerk of the supreme court, before entering upon the duties of his office, shall give bond to Clerks to file
4. bond and take
the people of this state, in such sum, and with sureties as the justices of the supreme court shall direct and oath.
approve, conditioned for the faithful discharge of the duties of his office, and deposite the same with the
treasurer of this state, and shall also execute and file the bond required of him as a register in chancery, ac-
cording to law, and shall take and subscribe the oath of office prescribed in the constitution, and cause the
same to be filed in the office of the secretary of state.
SEc. 20. The oath required by the preceding section may be administered and certified by the chancellor, Before whom
oath may be ta-
ken.
Or any justice of the supreme court, supreme COurt COmmlSSloner, Or master in chancery.
Sec. 21. At each term of the Supreme court, it shall be the duty of the clerk residing in the place where Clerk º officiate
- at each terſIls
the same is held, to attend and officiate as clerk thereof, and to keep accurate minutes of its proceedings un-
der the direction of the court.
SEc. 22. Each clerk of the supreme court shall have the care and custody of all the records, seals, books
Clerks to have
custody of books
and papers appertaining to his said office, and filed or deposited therein; and shall perform all such other Seals, &c.
duties relating to his office as are required of him by law, or by the rules and practice of the court.
SEc. 23. Each of the clerks of the supreme court shall appoint some suitable person to be his deputy, by Deputy clerks.
H - -
writing under his hand and seal, to be filed in his office ; and every person so appointed deputy, shall take
and subscribe the constitutional oath of office, before the clerk, or a justice of the supreme court, supreme
court commissioner or master in chancery, and cause the same to be filed in the office of such clerk, and
such deputy clerk shall by virtue of such appointment, be a deputy register in chancery.
SEC. 24. Whenever a clerk of the supreme court shall be absent from his office, or from the place where
When deputy
any official duty is required to be perſormed by him, or shall be incapable of performing the duties of his tººl-
office, and whenever his office shall be vacant, his deputy so appointed and qualified may perform the duties
of such office, during such absence, inability or vacancy.
A - 143
CHAP. 95.] ( 570 ) [Titus 21.
1 Sec. 25 The county clerk of each county shall be the clerk of the circuit court for such county, and shall
Clerks of circut
COUlrtS. -
*
attend every term thereof, and shall have the care and custody of all the records, seals, books and papers,
8 pertaining to the office of clerk of such court, and filed or deposited therein.
clerk, to pro. 1 SEC. 26. The clerks of the supreme court, and the clerks of the several circuit courts, shall respectively
vide books.
2
provide such books for entering proceedings in the courts of which they are such clerks, as the justices or
3 judges thereof shall direct.
Attorneys, Solicitors and Counsellors.
1 SEC. 27. No person shall practice as an attorney or counsellor at law, or as a solicitor or counsellor in
No person to
practice as attor-
ney, &c. unless
approved and
admitted.
2
chancery within this state, unless he shall be approved by the court for his good character and learning, and
w
3 duly admitted pursuant to the provisions of this chapter.
• 1 SEC 28. The Supreme court may grant to any citizen of this state of good moral character, and of the age
Supreme court º
may grant licensc
§: "* 2 of twenty-one years, a license to practice as an attorney and counsellor at law, upon an examination at a
p. e
3 stated term of such court, in the presence of the justices thereof, when satisfied that the applicant possesses
sufficient legal learning and ability to discharge the duties of such office.
4
. SEC. 29. Every person hereafter admitted to practice as an attorney and counsellor in the supreme court,
H
Admission fees.
\
shall at the time of his admission, pay to the clerk the sum of five dollars as an admission fee.
2
1 SEC. 30. All moneys received for admission fees, shall be applied by or under the direction of the justices
\ºved
Or £1000. 1SSIOI). º s
ºf how appli. 2 of the supreme court, in the purchase of a library for the use of the supreme court and the chancellor, to be
©(i.
3 kept in the city of Detroit.
I
SEc. 31. Every person admitted to practice as an attorney and counsellor at law shall take the constitution-
Oath of office.
al oath of office in open court, and subscribe the same in a roll or book to be kept by the clerk for that pur-
2
3 pose.
Cuap. 95.]
( 571 ) [TITLE 21.
1 SEC. 32. Every person licensed to practice as an attorney and counsellor in the supreme court, shall be personnensed
*
2 authorized to practice in every court of law in this state.
1 SEC. 33. The chancellor may license any attorney and counsellor at law of this state, to practice as a so-
2 licitor and counsellor in chancery, under such rules and regulations as he shall prescribe.
1 SEc. 34. Attorneys, solicitors and counsellors may be removed or suspended by the several courts in which
2 they shall be authorized to practice, but subject to such removal and suspension, they hold their offices du-
8 ring life.
2^
.1 SEc. 35. Any attorney, solicitor or counsellor, may be removed or suspended, who shall be guilty of any
2 deceit, mal practice, crime or misdemeanor; but not until a copy of the charges against him shall have been
3 delivered to him by the clerk or register of the court in which the proceedings shall be had, and an oppor-
4 tunity shall have been given to him to be heard in his defence.
- 1 SEc. 36. The removal or suspension of any attorney, solicitor or counsellor, by the chancellor, or the
2 supreme court from their respective courts, shall operate as a removal or suspension in every court in the
3 state ; but in every other case, the removal or suspension shall be confined to the court in which it shall be
4 declared.
I SEc. 37. When any attorney or solicitor shall die, be removed, or suspended, or cease to act as such, the
in supreme court
may practice in
all courts of law
in this state.
Chancellor may
license attorney
to practice as so-
licitor, &c.
Tenure of office,
For what causes
attorney, &c may
be removed or
suspended.
Effect of remo-
val or suspension
by chancellor or
supreme court,
Party to be noti-
2 person for whom he was acting, shall be notified to appoint another attorney or solicitor, at least thirty days fied io appoint
3 before any proceeding shall be had against such person, in the matter wherein such attorney or solicitor
2 was acting for him.
another attorney,
&c. in Certain
C:\SČ8,
, 1 SEC. 38. Any attorney, solicitor or counsellor, who shall be guilty of any deceit or collusion, or shall
2 consent to any deceit or collusion, with intent to deceive the court or any party, shall be deemed guilty of a
3 misdemeanor, and on conviction shall be punished by fine not exceeding one thousand dollars, or imprison-
4 ment in the county jail not exceeding six months, or both in the discretion of the court, and shall also be
t
Beceit or collu-
sion by attorney,
&c. how punish-
ed.
Chap. 95.] ( 572 ) [TITLE 21.
Attorney, &c.de-
laying suit, &c.
liable in trêble
damages.
Liability of at-
torney, &c. for
permitting pro-
cess to be made
out in his name.
Attorneys &c.
not to buy claims
for purpose of
Su íng.
Attorney, &c.not
to advance mo-
Iney, &c. for cer-
tain purposes.
Penalty for vio-
lating two last
BCCtion 8,
5 liable to the party injured by such deceit or collusion, in treble the damages sustained, to be recovered in a
6 civil action.
Sec. 39. If any attorney, solicitor or counsellor, shall wilfully delay his client's suit, with a view to his
2 own gain, or shall wilfully receive any money or allowance, for, or on account of any money which he has
not laid out or become acccountable for, he shall be liable to the party injured in treble damages.
SEc. 40. If any attorney or solicitor shall knowingly permit any person, not being his general law part-
ner or a clerk in his office, to sue out any process, or to prosecute or defend any action in his name, such
attorney or solicitor, and every person who shall so use the name of any attorney or solicitor, shall sever-
ally be liable to the party against whom such process was sued out, or such action prosecuted and defended,
in the sum of fifty dollars damages.
SEC. 41. No attorney, solicitor or counsellor, shall, directly or indirectly, buy, or be in any manner inter-
2 ested in buying, any bond, promissory note, bill of exchange, book debt or other thing in action, with the
intent and for the purpose of bringing any suit thereon.
1 SEc. 42. No attorney, solicitor or counsellor, by himself, or by or in the name of any other person, shall
lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money, or any bond,
bill of exchange, draft or other thing in action, to any person, as an inducement to the placing, or in con-
sideration of having placed, in the hands of such attorney, solicitor or counsellor, or in the hands of any
other person, any debt, demand, or thing in action, for collection.
1 Sec. 48. Every attorney, solicitor or counsellor, who shall violate either of the two last preceding sections,
shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceed.
ing one thousand dollars, or by imprisonment in the county jail not exceeding six months, or both, in the
3.
discretion of the court; and he shall be removed from office in the several courts in which he is authorized
5
to practice.
SEc. 44. Nothing contained in either of the three last preceding sections, shall be construed to prohibit
char 95.] , ( 373 ) . [TITLE 21.
2
3
2
the receiving in payment, by any attorney, solicitor or counsellor, any bond, promissory note, bill of ex- -
The preceding
sectionsqualificd
change, book debt, or other thing in action, for any estate, real or personal, or for services actually render-
gº
e
ed, or for a debt antecedently contracted; or from buying or receiving any bill of exchange, draft, or oth-
er thing in action, for the purpose of remittance, and without any intent to violate either of the three last
preceding sections.
SEg, 45, The defendant in any suit to be brought upon any demand which shall have been bought, sold or
*
Notice by defen-
received in violation of the foregoing provisions, may give notice with his plea, in addition to any other mat- º
bought and sold
contrary to law,
ter of defence, that on the trial of the cause, he will insist and prove that the demand on which such action
*...
is founded, has been bought and sold, or received, for prosecution, contrary to law, without setting forth any
other particulars.
Defendant Ina
require plaintiff
or his attorney to
testify.
SEc. 46. On the trial of the cause in which such notice shall have been given, if the defendant shall re-
quire it, the plaintiff, and his attorney and counsel, and any other person who may be interested in the re-
covery in such cause, shall be examined on oath touching the matters set forth in such notice.
SEc. 47. The deſendant in such suit may cause the persons mentioned in the preceding section, to be sum.
Defendant may
cause plaintiff,
moned as witnesses, to attend the trial ; and if the plaintiff, or any other person interested in the recovery in j.".
- InešSCS.
such cause, and duly served with a subpoena for that purpose, snall fail to attend, unless such failure shall
be accounted for to the satisfaction of the court; or shall refuse to answer on oath, such questions as shall
be pertenent to show a violation of the provisions of this chapter ; or if, on such examination, itshall appear
that the cause of action on which such suit is founded, has been bought or procured contrary to the true in-
tent of the provisions of this chapter, the plaintiff in such action shall be non-suited.
Evidence not to
be admitted in
be admitted i f tº tº e {º - criminal prose-
e admitted in proof on any criminal prosecution against him; for violating any of the provisions of this ºut”
Sec. 48. No evidence derived ſrom the examination of any such attorney, solicitor or counsellor, shall
3 chapter.
144
CHAP. 95.] ( 574 ) * [Tirls 21.
Masters in Chancery.
1 Sec. 49. There shall be appointed by the governor by and with the advice and consent of the Senate, one
Masters in chan-
#º - 2 master in chancery in each county in this state, and one additional master to every fifteen thousand inhabi-
number in each
COW!\ty.
3 tants therein, according to the census which shall have been last taken ; but there shall not be more than
4 four masters in chancery appointed for any county.
1 Sec. 50. Masters in chancery shall hold their offices for the term of four years, unless sooner removed by
Term of Office. -
2 the governor.
1 Sec. 51. No person shall be appointed a master in chancery, who shall not be, at the time of his appoint-
Person appoint-
ed must be a 80-
lsº and coun. 2 ment, a solicitor and counsellor in the court of chancery.
1
Each master to Sec. 52. Each master in chancery, before entering upon the duties of his office, and within thirty days
take oath and - - -
give bond. *
2 after notice of his appointment, shall take and subscribe the constitutional oath of office, and cause the same
3 to be filed in the office of the secretary of state; and shall also execute a bond to the people of this state
- * }
4 with sufficient surety or sureties, to be approved by the chancellor, or a register of the court of chancery
3.
5
and conditioned for the faithful performance of the duties of his office, and cause the same to be filed with a
6
register of said court; and such master shall renew his bond whenever required by the chancellor.
Penalty of bonds., I SEc. 53. The bonds to be executed by the several masters in chancery of each county which shall con-
2 tain, according to the last census which shall have been taken, a population of thirty thousand or more, shall
- 3.
each be in the penal sum of five thousand dollars; and the bonds to be executed by the masters in chance-
4.
ry of every other county shall be in the penal sum of three thousand dollars.
1 SEc. 54. Every person appointed a master in chancery, who shall neglect for more than thirty days after
When nagler
deemed to baves
lººſappºint- 2 notice of his appointment, to take the oath of office and file the bond required by this chapter, or to renew
3 any bond, within thirty days after being required so to do by the chancellor, shall be deemed to have declined
4 the appointment, and the office shall be deemed vacant.
Chap. 95.] ( 575 ) * [Tirls 21.
3
SEc. 55. If any such bond shall become forfeited by a breach of its condition, the chancellor shall direct
When chnncel-
- - lor to direct .
& -- e tº ſº - to be prosecuted;
it to be prosecuted, and the moneys recovered shall be applied, under the direction of the court of chancery, &c.
- /
for the indemnity of the persons aggrieved by such breach, in proportion to the amount of their respective
gº
losses,
Sec. 56. Masters in chancery shall, within their respective counties, possess all the powers and authority General
eneral powers
- of masters in
chancery.
usually exercised by masters and examiners in chancery, according to the practice of that court, and all
such other powers as shall be conferred upon them by the court according to law, or by any statute ; and
shall be amenable to the couri for the correct discharge of such duties.
SEc. 57. Masters in chancery may be suspended by the chancellor from the exercise of the powers and du- When master
may be suspend-
ed by chancellor.
ties of their office, in cases of gross misconduct therein, after due notice and a full opportunity of making
a defence shall have been given to them ; and the chancellor shall immediately report such suspension,
with the reasons therefor to the governor, to the end that such master may be removed from office by him.
Chancellor may
appoint person
to act as ID 8Ster
any county who is not solicitor or counsel, or otherwise interested, or unable to act in any suit or matter, in certaine”.
SEc. 58. Whenever there shall be no master in chancery in any county, or if there shall be no master in
the chancellor may appoint some suitable person to perform the duties of a master in chancery in all things
concerning such suit or matter,
SEc. 59. When the term of office of any master in chancery shall expire while a reference is pending be.
Court may auth-
te e e ter t
fore him, or after he shall have advertized any real or personal property or other thing for sale, under a #:::::::::-
ences, after his
office expires.
decree or order of the court of chancery, that court may, by a special order, authorize him to proceed in
4 such reference.
1 Sec. 60. The chancellor shall designate one of the masters in chancery in each circuit, to be an injunc-
- - One master in
* • • e tº a e § * & a ſº t each cireuit to be
2 tion master, who shall have power to grant injunctions within his circuit in the cases provided by law. designated as an
injunction mag-
º ter. -
CHAP. 95.] ( 576 ) . . [TITLE 21.
Designation to
be in writing and
filed with regis-
16Iſ,
Chancellor may
authorize injunc-
tion master to
hear motions, &c.
Fees for servi-
CCS .
State reporter,
how appointed.
1844, p. 19.
Oath of Office.
Chancellor and
ustices to detiver
notes of deci-
sions to reporter.
Reporter to pre-
pare decisions
for publication.
l
2
I
2
3
Sºº. 61. Such designation shall be in writing, under the hand of the chancellor, and shall be filed in the
office of the register in chancery of the circuit for which such injunction master shall be designated.
SEC 62. The chancellor may, by general rules, authorize and empower the injunction masters, or any of
them, in their respective circuits, to hear and determine all such motions, and to make all such orders in
suits and proceedings pending in the court of chancery, as he shall deem proper, and subject to such regula-
*
4_tions as he shall prescribe.
/
I
2
3
4
I
2
3
2
2
SEc. 63. For all services rendered by an injunction master under the provisions of the preceding section,
and such rules as shall be made by the chancellor in pursuance thereof, he shall receive such ſees as shall
be prescribed by the chancellor, to be paid by the party requiring such services, and taxed as costs in the
suit.
State Reporter.
SEc. 64. A reporter of the decisions of the supreme court, and of the court of chancery, to be called the
state reporter, shall be appointed by the justices of the supreme court and the chancellor, as often as a vacan-
cy shall occur, who shall hold his office during the pleasure of the said justices and chancellor.
SEC, 65. The state reporter, before entering upon the duties of his office, and within thirty days after no-
tice of his appointment, shall take and subscribe the constitutional oath of office before the chancellor or
one of the justices of the supreme court, and cause the same to be filed in the office of the secretary of
State.
SEe. 66. It shall be the duty of the justices of the supreme court, and of the chancellor, to prepare and
deliver to the reporter, full notes of all decisions made by them in their respective courts, which they shall
deem of sufficient importance to be published.
Sec. 67. The state reporter shall faithfully and truly prepare all such decisions for publication; and
when it shall be necessary to a proper understanding of the decision, he shall report therewith a brief state-
ment of the case, and of the arguments of the counsel therein.
Char. 95.] ( 577 ) [TITLE, 21,
1.
2
1
2
SEc. 68. As often as the decisions of either of said courts, shall be sufficient to constitute a volume of con-
- Publication of
reports.
venient size, it shall be the duty of the reporter to procure to be printed and published, in a neat and sub-
stantial manner, and upon the most advantageous terms practicable, an edition of one thousand copies of
of such reports ; and upon the completion of such publication, the auditor general shall draw his warrant
upon the state treasurer, in favor of the reporter, for the cost of publication.
SEC, 69. Two hundred copies of said reports shall be deposited by the reporter with the secretary of state,
Two hundred
g * - ...” º de-
tº g tº e - e 86-
to be distributed as follows: two copies to the library of the Congress of the United States; one copy to ºt.
sº and distributed.
the library of each of the states and territories; one copy to be kept in the office of the county clerk of
each county in this state; two copies to the library for the use of the supreme court and the chancellor; 1845, p. 113,51.
and the remainder of said two hundred copies to be deposited in the state library.
A
SEC. 70. The secretary of state may exchange any chancery or law reports deposited in the state library Reports may be
exehanged for
other works, for
tº g e © e º * use of supreme
in pursuance of the preceding section, after reserving therein at least ten copies of each, for such other ºur and hº
cellor.
reports or other works on law or equity, as the justices of the supreme court and the chancellor shall desig-
nate ; which reports or other works procured by such exchange, shall be deposited in the library for the 1845, p. 119, $2,
use of the Supreme court and the chancellor.
SEC. 71. The remaining eight hundred copies of said reports shall be offered for sale, by the reporter, at Residue of re-
ports to be offer-
ed for sale, &c.
a price not exceeding three dollars and fifty cents for each copy sold to and for the use of residents of this
state, and five dollars for each copy sold to or for the use of persons residing out of this state.
SEc. 72. The reporter may, in his discretion, exchange any number of copies of said reports, not exceed-
Reporter may
exchange for
ing five hundred, for the reports of the decisions of courts of other states, and sell the reports received in other reports.
exchange, if he shall deem it advantageous to do so.
Sec. 78. The state reporter shall receive an annual salary of five hundred dollars, payable quarter-year-
Salary of repor-
ter, &c.
ly, out of any moneys in the state treasury, belonging to the general fund, not otherwise specially appro-
145
Chap.96.] ( 578 ) [TITLE 21.
3 propriated by law ; and shall also be entitled to all the profits arising from the sale of the reports, after re-
4 funding to the state treasury, the cost of publishing the same.
* 1 SEC. 74. Upon the publication of each and every edition of reports, pursuant to the foregoing provisions,
Bond to be filed - - -
by reporter be-
fºrtant 2 and bfore any warrant shall be drawn by the auditor general for the cost of such publication, the reporter
3 shall execute and file with the secretary of state, a bond to the people of this state, in the penal sum of five
4 thousand dollars, with sufficient sureties to be approved by the said secretary, conditioned to account to the
5
auditor general for, and to pay over to the state treasurer all such moneys as he shall receive for the state
6 on account of the sale of said reports,
CHAPTER 96.
GENERAL PROVISIONS CONCERNING COURTs, AND THE POWERS AND DUTIES of CERTAIN JUDICIAL,
OFFICERS.
1
& SECTION 1. The several courts of this state having a seal, are courts of record, and they shall respectively
Certain, powers
of courts of re-
cord,
2 have power :
3 1. To issue process of subpoena, requiring the attendance of any witness residing or being in any part of
4 this state, to testify in any matter or cause pending or triable in such court:
5
2. To administer oaths to witnesses in any such matter or cause, and in all other cases where it may be
6 necessary in the exercise of the powers and duties of such courts:
7 3. To devise and make such new writs and forms of proceedings as may be necessary to carry into effect
8 the powers and jurisdiction possessed by them.
1 SEC, 2. No process, proceeding or suit, civil or criminal, before any of the said courts, shall be discontin-
Suits &c.not dis-
continued by a
vacancy. 2 ued by the occurrence of any vacancy in the office of any judge, or of all the judges of such court,
3
nor by the issuing of any new commission to any judge or judges of any such court, but the persons ap-
pointed in any such new commission shall have power to continue, hear and determine such process, pro-
4
ceeding or suit, as their predecessors might have done if no new commission had been issued.
#5
CHAP. 95.] ( 579 .) -- [TITLR 21.
1 SEG, 3. No process issued, or suit or proceeding pending in any court of record, shall be discontinued by
Proceedings not
discontinued by
2 reason of such court not having been held at any stated term thereof, or by reason of any term of such #.
8
court having been altered; but such process shall be deemed returnable at the term which shall be held next
4 after such failure, or at the term established by such alteration, and such suit or proceeding shall be contin,
5 ued to such next term or to the term established by such alteration, as the case may be.
SEc. 4. No omission to adjourn any such court from day to day, previous to the final adjournment thereof,
1.
Omission to ad-
te tº º e & ... journ &c. not to
without day, shall vitiate any proceedings in such court; and the adjournment of any court before the expi-vitiate proceed.
*Re. - -- ingS.
2
3
ration of its term shall not affect the return or service of any writ issued prior Or subsequent to such ad-
4 journment.
1 SEC. 5. Whenever the seal of any court shall be so injured that it cannot conveniently be used, the court
When court may
cause seal to be
2 shall cause the same to be destroyed; and whenever the seal of any court shall be lost or destroyed, such #####.
red.
3 court shall cause a new seal to be made, similar in all respects to the former seal, which shall become the
4 seal of the court.
1 SEC 6. The expense of a new seal for any circuit court, district court, or court of probate, shall be paid by
Expenses of
seals how paid.
the county in which such courts are held ; and the expense of new seals for other courts shall be paid from
3.
3
the state treasu ry.
1 Sec. 7. Every court of record shall have power to punish as for a criminal contempt, persons guilty of
Powers of courts
& - © to punish as f
either of the following acts, and no others: tºº.”
tempt.
2
3 1. Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and
4 presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority :
5 2. Any breach of the peace, noise or disturbance, directly tending to interrupt its proceedings :
6 3. Wilful disobedience of any process or order, lawmily º or made by it:
7 4. Resistance wilfully offered by any person to the lawful order or process of the court :
s. 5. The contumacious and unlawful refusal of any person to be sworn as a witness; and when so sworn,
9
the like refusal to answer any legal and proper interrogatory :
Chap: 96.]
( 580 ) [Title 21.
Punishment for
contempts.
When contempts
may be punished
summarily, and
when party to be
notified.
Circumstances
of offence to be
set forth in War-
rant, &c.
Construction of
p.eceding sec-
tions.
When person
may be indicted
for contempt, &c.
When judges,
&c. may appoint
another place for
holding court.
l:0
II
12
i
I
2
6. The publication of a false, or grossly inaccurate report of its proceeding ; but no court can punish as
a contempt, the publication of true, full and fair reports of any trial, argument, proceedings, or decision
had in such court.
SEc. 8. Punishment for contempts may be by fine, or by imprisonment in the jail of the county where the
court may be sitting, or both in the discretion of the court; but the fine shall in no case exceed the sum of
two hundred and fifty dollars, nor the imprisonment thirty days; and when any person shall be committed
to prison, for the non-payment of any such fine, he shall be discharged at the expiration of thirty days.
Sec. 9. Contempts committed in the immediate view and presence of the court, may be punished sum-
marily ; in other cases the party shall be notified of the accusation, and have a reasonable time to make
his defence.
SEc. 10. Whenever any person shall be committed for any contempt specified in this chapter, the particu-
lar circumstances of his offence shall be set forth in the order or warrant of commitment.
SEc. 11. Nothing contained in the preceding sections, shall be construed to extend to any proceeding
against parties or officers, as for a contempt, for the purpose of enforcing any civil right or remedy.
SEc. 12. Persons punished for a contempt under the preceding provisions, shall notwithstanding be liable
to indictment for such contempt, if the same be an indictable offence; but the court before which a convic-
tion shall be had on such indictment, shall, in forming its sentence, take into consideration the punishment
before inflicted.
SEc. 13. Whenever it shall be deemed unsafe or inexpedient by reason of war, pestilence, or other pub-
lic calamity, to hold any court at the time and place appointed therefor, the justices or judges of the court
may appoint any other place within the same county, and any other time for holding the same.
SEc. 14. Every such appoiniment shall be made by an order in writing, signed by the justices or judges
CHAP. 95.] ( 581 ) [TITLE 21.
• * –-1-? r . - e - * • . - - a > & Appointment
2 making the same, and shall be published by advertisement in such newspaper, or in such other manner as º.º.d
pubished.
3 shall be required in the order.
1 Sec. 15. Whenever there shall be no court-house in any county, or the court-house shall for any cause be . .".
court may ap-
point place ſor
e • * - sº - * & - . . . . holding court.
2 unsafe, inconvenient, or unfit for the holding of any court, the associate judges of the circuit court for such
3 county may appoint some other convenient building, at, or in the vicinity of, the seat of justice for such
4 county, as a temporary place for holding such court.
1 SEC. 16. The place so appointed shall be deemed the court-house of the county for the time being, for all
. Place appointed
to be deemed
court-house.
2 purposes.
1 Sec. 17. The sittings of every court within this state shall be public, and every citizen may freely attend Sittings of courts
to be public.
2 the same.
.*
1 SEc. 18. No judge of any court can sit as such, in any cause to which he is a party, or in which he is in-
In what cases
- - ~ ; e - - e . . g tº ſº & judge cannot sit
2 terested,or in which he would be excluded from being a juror by reason of consanguinity or affinity to either ..."; part in
decision.
3 of the parties; nor can any judge decide or take part in the decision of, any question which shall have
4 been argued in the court, when he was not present and sitting therein as a judge.
I SEc. 19. No judge of an appellate court, or of any court to which a writ of certiorari or of error shall be
Ib.
2 returnable, shall decide, or take part in the decision of any cause or matter which shall have been determin-
3 ed by him when sitting as a judge of any other court.
1 SEc. 20. No judge can practice or act as a counsellor, solicitor or attorney, in the court of which he is a Jud
- - - udge cannot
wº practice in court
of which he is
2 judge, except in those suits in which he shall be a party, or in the subject matter of which he shall be inter- ; sºles a
3 ested.
I Sec. 21. No judge shall have any partner practicing in the court of which he is a judge ; nor shall any
146
CHAP. 96. - ( 582 ) TITLE, 24.
Judgenotto have.
partier pragº. "
ticing in his
court, or be inter-
cstcd in costs,
&c.
In; whalicuscs;
judge, &c., not
to receive fees, or
compensation.,
Court not to be
opened on first
day of week, ex-
cept for certain
purposes.
Process, &c. to
be in the English
language, &c.
Persons of ſull
age and sound
mind may pro-
secule or defend
in person or by
attorney &c.
Privilege of of.
ficers of courts
from arrest du-
ring sitting of
COurts
2 judge be directly or indirectly interested in the costs of any suit that shall be brought in the court of which
3 he is a judge, except in those suits in which he shall be a party, or be interested, as above provided.
1. Sigg, 22. No, judge, commissioner, or other judicial officer, shall demand or receive any fees or other com-
2 pensation for giving his advice in any matter or suit pending before such judge or officer, or which he has
3 reason to believe will be brought before him for decision; or ſor draſting or preparing any papers or other
4 proceedings relating to any such matter or suit; except in those cases where ſees are expressly given by
5 law to such judge or officer, for services perſormed by him,
1 SEc. 23. No court shall be opened, or transact any business on the first day of the week, unless it be for
2 the purpose of instructing or discharging a jury, or of receiving a verdict; but this section shall not pre-
3 went the exercise of the jurisdiction of any single magistrate, when it shall be necessary in criminal cases,
4 to preserve the peace, or to arrest offenders,
* Sec. 24. All writs, process, proceedings and records in any court within this state, shall be in the Eng.
2 lish language (except that the proper and known names of process, and technical words, may be express:
3 ed in the language:heretofore and now commonly used,) and shall be made out on paper or parchment, in a
4 fair, legible character, in words at length, and not abbreviated ; but such abbreviations as are now com-
5 monly used in the English language, may be used, and numbers may be expressed by Arabic figures, or
6 Roman numerals, in the customary manner.
*.
1 SEc. 25. Every person of ſull age and sound mind, may appear by attorney or solicitor, as the case may
2 require, in every action or plea by or against him, in any court, or may at his election, prosecute or defend
3 such action or plea, in person; but this provision shall not extend to criminal cases, nor shall any person be
4 permitted to appear on the record in any civil cause in person, whilst he has an attorney or solicitor in
5 such case.
1 Sec. 26. All officers of the several courts of record shall be liable to arrest, and may be held to bail in the
2 same manner as other persons, except during the actual sitting of any court of which they are officers; and
Cºar. 96.] ( 583 ) ge [Tiris' 22.
3 when sued with any other person, such officers shall be liable to arrest, and may be held to bail as other per-
4 sons, during the sitting of the court of which they are officers; but no attorney, solicitor or counsellor shall
5 be exempt from arrest during the sitting of the court of which he is an officer, unless he shall be employed
&
6 in some cause pending and then to be heard in such court.
1 SEc. 27. No person shall be employed or allowed to appear as counsel, solicitor or attorney, before any
No person al-
lowed to appear
- * -" • - as attorney, &c.
2 court, in any suit which shall have been previously determined before himself, as a judge or justice of the ...;
- - - - him as a magis-
Tºtò.
3 peace.
Char. 97.] º: ( 584 ) [Tirls 22.
OF
Proeess from
courts of record,
its style teste, &c.
2
3
4.
Const. Art. 6,
sec. 7. 5
*I
Actions for debt
or damages, how 23
commenced.
TITLE XXII.
OF PRocKEDINGs. IN PERsonAL Actions.
CHAPTER 97.-Of the ºmen of Suits, of Process, and the service and return of Origi-
Inal VW r1 (S. -
C & 98.-Of Bail in Civil Actions, and Proceedings connected therewith.
$6 99.—Of Pleadings and Set-offs.
“ 100.—Of Consolidating and Referring Causes.
101.—Of Dºgº. or other Disability occurring after the Commencement of
the Sult.
“ 102.-Of Evidence.
“ 103. –Of the Trial of Issues of Fact. -
“ 104.--Of Amending Pleadings and Proceedings.
“ 105.—Of the Assessment of Damages.
“ 106.—Of Judgments and Executions.
“ 107.-Provisions concerning Actions and Proceedings in certain cases.
CHAPTER 97.
THE COMMENCEMENT OF SUITs, OF PROCESS, AND THE SERVICE AND RETURN of origiNAL writs.
SECTION 1. The style of all process from courts of record in this state, shall be “In the name of the peo-
ple of the state of Michigan;” and such process shall be tested in the name of the chief justice, or presi-
ding justice or judge, or one of the associate justices or judges of the court from which the same shall issue,
be sealed with the seal of the court, and before the delivery thereof to any officer to be executed, shall be
subscribed or endorsed with the name of the attorney, solicitor, or other officer by whom the same shall be
issued.
Sec. 2. Actions brought for the recovery of any debt, or for damages only, may be commeaced, either,
1. By original writ: Or,
2. By filing in the office of one of the clerks of the supreme court, a declaration, entering a rule in the
minutes kept by such clerk, requiring the defendant to plead to such declaration within twenty days aſter
service of a copy thereof and notice of such rule, and serving a copy of such declaration and notice of
such rule personally on the defendant; which mode of commencing an action may be adopted against any
person, whether privileged from arrest or not.
CHAr 97.] ( 585 ) [TITLE 22. On proofof ser-
- vice of copy of
declaration, &c.
1 SEc. 3. Upon due prooſ of the service of a copy of a declaration, and notic ; :"...a
- e l S II] e
EC. pon proo the Ser py eclaration, and notice of rule to plead personally †
had appeared,
2 on the defendant, his appearance shall be entered in the same manner as if process had been duly served
3 and returned; and his default may be entered for not pleading,and the same proceedings may be had
4 against such defendant, in all respects, as if he had appeared.
1 Sec. 4. When a copy of a declaration and notice of rule to plead shall be delivered to any sheriff to serve, ...
- O Serve a r
turn declaration.
2
it shall be the duty of such sheriff to serve the same, with all convenient speed, and to return the same with
3 his certificate endorsed thereon, of the time and manner of such service, either to the office of the proper
4 clerk of the court in which such suit may be pending, or to the attorney, whose name shall be endorsed on
5 the declaration.
Sheriff’s certiſi-
1 SEc. 5. Such certificate of service, signed by the sheriffor his deputy, shall be as effectual to authorize the :::::::::::::::
e r
may be enſorced.
2 entry of the defendant's deſault for not pleading, as if the same had been sworn to by such officer; and the
3 return of any declaration delivered to a sheriff, may be enforced by rule and attachment, in the same man-
" *-
4 ner as the return of a capias.
1 SEC. 6. The original writ in personal actions, shall be a summons or a capias ad respondendum, in the
- - - Original writs. .
2 form heretofore in use in this state, unless the form thereof shall be altered by rule of court.
1
Sec. 7. All original writs, and all declarations in cases where suit shall be commenced by declaration, in
º tº . º zºº º & * e - te - & Indorsement of
which the plaintiff is not an inhabitant of this state, shall, before the service thereof, be indorsed by some wis, §º
- Cºl. 80. Of I1 OI! - re-e
sident plaintiff.
sufficient person, who is an inhabitant of this state ; and if any plaintiff, after the commencement of his
2
3
suit, shall remove out of the state, he shall, on the motion of the defendant, be required to procure such in-
4
dorser, but no indorsement shall be required when any one of several plaintiffs is an inhabitant of the state.
5
1 SEc. 8. Every such indorser shall be liable to pay all such costs as shall be awarded against the plaintiff, Liability of in-
dorser.
2
provided the suit therefor be brought against the indorser within one year aſter final judgment in the origi-
3
nal suit,
147
CBAP. 97.] -- ( 586 ) - [TITLE 22.
Court may re-
quire security
for costs in all
C&SCŞ.
When court may
require new se-
rity.
writs of sum-
mons how ser-
wed.
Writa of capins
how served.
In what cases
capias may is-
suc, on affidavit.
1839, p. 76, §2.
Service of capias
on defendant in
custody.
In what cases.
capias may is-
sue, on order of
udge, &c.
1 SEC. 9. The court in which any civil action shall be pending, may, in all cases, when it shall appear rea-
2 sonable and proper, require the plaintiff to give sufficient security for all such costs as may be awarded
3 against him therein.
1 SEC, 10. If any indorser of a writ or declaration shall remove out of the state, or be deemed by the court
° insufficient, such court may require the plaintiff to give new security to the satisfaction of the court, for the
8 payment of all such costs as may be awarded against him in the suit; and every person becoming such
4 surety, shall be liable for all costs from the commencement of the suit, in like. manner as if he had been
5, the original indorser.
1 SEC. 11. Writs of summons shall be served by showing the original writ to the deſendant, and delivering
2 to him a copy thereof; and on the return of the writ personally served, the defendant shall be considered in
3. court, and may be proceeded against accordingly.
1 SEC. 12. Writs of capias ad respendendum shall be served by the sheriff, or other officer, by arresting the
2 body of the defendant, and keeping him in his custody until discharged according to law.
1 SEC, 13. Personal actions arising upon contract, express or implied, may be commenced by capias ad res-
2 I endum only to recover damages for any breach of promise to marry, or for moneys collected by any pub-
3. lic officer, or for any misconduct or neglect in office, or in any professional employment, when the plain-
4 tiff, or some one in his behalf, shall make and attach to such writ an aſſi 'avit, stating therein that the plain-
5 tiff has a claim for damages against the defendant for the cause of action stated in the writ, and upon which
***
6 he believes that the plaintiff is entitled to recover a certain sum, being more than one hundred dollars.
*
1 SEc. 14. If the defendant in any action commenced by capias ad respondendum, shall be in custody, such
2 writ may be served upon him in like manner, and with the same effect, as, if he were at large.
1 SEC, 15. Personal actions may be commenced by capias ad respondendum, in cases of claims for damages
2 other than those arising upon contract express, or implied, where an order for bail shall be endorsed on
char. 97.] ( 587 ) [TrTLE 22.
2
3
4
5
l
2.
3.
the writ by a judge of the court from which the writ issues, or a supreme court coinmissioner, directing the
the amount in which bail is to be taken.
SEc. 16. Such order shall be made only upon the affidavit of the plaintiff or some person in his behalf,
Order to be made
only on affidavit,
showing the nature of the plaintiff's claim, and such affidavit shall be annexed to, and returned and filed &c.
with the writ, and the defendant shall be held to bail in the amount specified in such order; and the court in-
to which such writ is returnable may, on motion of either party, diminish or increase the amount for which
bail shall be so ordered.
Sec. 17. Every deſendant arrested upon a capias ad respondendum, shall be entitled to be discharged from Defendant to b
Cien (lant (O be
discharged from
arrest Oil CXecul-
such arrest, upon executing to the officer making the same, with the addition of his name of office, a bond, ting bond.
in a penalty equal to the amount specified in the order for bail, or in double the amount specified in the affi-
davit attached to the writ, as the case may be, with two sufficient sureties, conditioned that such defendant
will appear in the action commenced by such writ, by putting in special bai within twenty days after the
run by specified in such writ, and by perſecting such bail, if required, according to the rules and prac-
tice of the court.
Sec. 18. The officer taking such bail, shall give to the sureties a bail piece in substance as follows:
Ball piece to be
delivered to su-
e - • * * * . * * * reties.
County, ss. On this day of one thousand eight hundred and
A. B. is bailed by C. D. and E. F. of the county of , upon a capias ad respondendum, re-
turnable in the supreme court on the day of , at the suit of , in a plea
of trespass, (or as the case may be,) which bail piece shall be signed by such officer.
SEc. 19. When the name of any defendant shall not be known to the plaintiff, the writ may be issued when defendant
“sº may be sued by
fictitious name,
against him by a fictitious name, and if duly served, it shall not be abated for that cause, but may be amen-
ded on, such terms as the court shall think reasonable.
Sec. 20. An Indians shall be capable of suing and being sued, in any of the courts of this state, in like
CHAP. 97.] - ( 588 ) [Tirle 22.
º
judicial mºnt, 2 manner and with the same effect, as other inhabitants thereof, and shall be entitled to the same judicial
and privileges of
Indians.
**** 3 rights and privileges.
~ 1 SEC, 21. If a defendant arrested on process on which he is required to be held to bail, shall be committed
When defendant - º
imprisoned for
want of bail, fact t ison for t g & • * . º • • * --
Yºlº 2 to pr or the want of such bail, the sheriff or other officer making the arrest shall specially return upon
3 such process, the fact that the defendant is imprisoned for want of bail.
Within What § tº a $ ©
. i. to 1 SEc. 22. Upon such return being made, the plaintiff shall declare against the defendant before the end of
§'.
pears. e º
2 the term next after such process was returnable, and shall deliver a copy of the said declaration to such
3 prisoner, or to the sheriff or keeper of the jail in whose custody such prisoner shall be ; and if such dec-
4 laration be not served as herein prescribed, the defendant shall be discharged from his imprisonment, and
5 shall be entitled to judgment of discontinuance against the plaintiff.
1 Sec. 23. When a defendant shall have appeared in any cause, by causing his appearance to be entered, or
If plaintiff fail to - - . . . . . ~ : t - -
declare, judg- g tº e tº © . . . : I H S tº e r tº , º * >
jººn. 2 by putting in and perfecting special bail, where such bail is required; the plaintiff shall declare against
tinuance may be -
entered.
3 such defendant, by the end of the next term after the return of the writ by which such suit was commanced.
1 Sec. 24. If a plaintiff fail to declare, as in the last section prescribed, judgment of discontinuance may
2 be entered against him, according to the course and practice of the court.
\ Warrant of at-
t, wriley not ne-
essary, except
º, 2 any court, for either party to an action brought therein, except in cases where it shall be specially required
1 Sec. 25. It shall not be necessary to file any warrant of attorney, to authorize any attorney to appear in
3 by law; nor shall any entry of any warrant of attorney in any record or other proceeding, be necessary,
4 but the plaintiff in his declaration, and the defendant in his plea, shall state the name of the attorney, or
5 attorneys by whom they respectively appear.
1 Sec. 26. All process issued out of the supreme court, except attachments and writs of habeas corpus, shall
To what officers
process to be re-
turned, 2 be returned by the several sheriffs and other officers to whom the same may be delivered, to the office of the
3 clerk of the supreme court in the judicial circuit in which such sheriff or other officers respectively reside.
Tº.
CHAP. 98.] ( 589 ) [TITLE, 22.
1 SEc. 27. No return of any such process made to any other office than that required in the last preceding
Other returns
- In Ot to excuse
2 section, shall excuse any sheriff or other officer from the liabilities, penalties, fines or proceedings prescri-**
3 bed by law, or by the rules and practice of the supreme court, for a neglect to make a return according
4 to law.
CHAPTER 98.
OF BAIL IN CIVIL ACTIONS, AND PROCEEDINGS CONNECTED THEREwiTH.
e s T \ g g g
1 SECTION 1. In all cases where special bail shall be required to be put in, a recognizance thereof may be Recognizances
special bail, be-
fore whom may
† e tº g be taken.
2 taken before any justice of the supreme court, supreme court commissioner, clerk of any court of record,
3 notary public, or justice of the peace, and shall be filed in the office of a clerk of the court in which the
tº
&
4 action is pending
*
1 SEc. 2. The recognizance of special bail shall be in substance, in the following form, to wit:
. - Form of recog-
nizance.
2. Supreme Court,.
3. A. B. - - - *
4 VS. In trespass, (or as the action may bes).
5 C. D.
6: county. ss.: Be it remembered that on this day of
7 in the year eighteen hundred and , E. F., and G. H., of
8 the county of , personally appeared before J. K., (describing the officer) and se-
9 verally acknowledged themselves to owe A. B.", the above named plaintiff, the sum of (the sum for which
10 bail is required) each, to be levied upon their several goods and chattels, lands and tenements, upon condi-
11 tion that if C. D., the defendant, shall be condemned in this action, at the sult of A. B., the plaintiff, he, the
12 said C. D., shall pay the costs and condemnation of the court, or render himself into the, custody of the
13 sheriff, of the county of , (the county in which the defendant was arrested,) for the
14 same, or if he fail so to do, that the said E. F. and G. H., will pay the costs and condemnation for him.
15 - E. F. -
16 G. H.
148
CHAP. 98. ( 590 ) [Triº 22.
Ball piece to be
delivercq to per-
sons becoming
special bail.
Exception to
special bail, how
taken, &c.
How bail may
justity.
When plaintiff
take assignment
of bail bond and
Bue thereon.
Setting aside or
staying proceed-
ings on bail
bond,
17 Taken and acknowledged the day
18 and year above written, before me, ;
19 J. K., Clerk, &c.
1 Sec. 8. Upon entering into any such recognizance, the persons becoming special bail, shall be entitled to
2 a bail piece from the officer taking the recognizance, in substance as follows, to wit:
3 Supreme Court, *-
4 county, ss : On this a- day of • . , eighteen hundred and 9.
5 C. D. is delivered to bail in a cessi corpus, unto E. F. and G. H., of the county of , at
6 the suit of A. B., in a plea of trespass, (or as the action may be.)
7. * J. K., Clerk, (or Judge, &c.)
1 SEC. 4. Exceptions to special bail may be taken by an endorsement to that effect upon the recognizance on
2 file, within twenty days after notice of putting in such bail, and bail shall be perfected within ten days af.
3 ter notice of such exception,
I SEc. 5. Special bail may justify by affidavit, before any officer authorized to take a recognizance of spe.
2 cial bail; and such affidavit shall set forth the township, or city, and county, in this state, in which the bail
3 reside, and that they are severally worth the sum in which the defendant is held to bail, after all their debts
4 are paid.
Proceedings. on Bail Bond.
1 SEc. 6. If special bail be not put in and perfected within the time limited by law, according to the rules
2 and practice of the court, and the plaintiff be satisfied with the bail taken by the officer serving the writ, he
3 may take an assignment of the bail bond from the officer to whom the bond was given, and may sue there-
4 on in his own name.
1 SEC. 7. The proceedings in the suit on the bail bond may be set aside if irregular, or stayed on terms, in
2 order that a trial may be had in the original action.
CHAP. 98.] ( 591 ) [TITLR 22.
1 Sec. 8 where the plaintiff has not lost a trial in the original action, by reason of default in not filing and
Terms on which
court may stay
º OIA
ail bond.
2 perfecting special bail, the court may stay the proceedings on the bail bond, upon the putting in and perfec.
3 ting special bail, paying the costs of assigning the bail bond, and of the proceedings thereon, receiving a de-
4 claration in the original action and pleading issuably to the merits, and taking short notice of trial, if neces-
sary; and if the plaitiff has lost a trial by reason of such default, jndgment shall also be entered on the
5
6
bail bond to stand as security.
Proceedings against the Sheriff or other Officer.
2.
1 SEc. 9. If special bail shall not be put in and perſected within the time limited therefor, upon filing an af.
fidavit that such bail is not put in and perfected, and that the writ has been returned served, a rule may be :* º,
tall.
2
3 entered with the clerk of the court, in vacation or in term, requiring the sheriff or other officer making the
4 arrest, to put in and perfect special bail within twenty days after service of notice of such rule,
1 Sec. 10. If such bail be not put in and perfected within the time specified in such rule, upon filing an affi-
On filing affida-
Vit of failure to
e & º e º e º COIſl I ith
2 davit of the service of notice thereof, a rule may be entered with such clerk, in vacation or in term, that an ºnent
* may issue.
3 attachment issue against the sheriff, or other officer who may have made the arrest, and such attachment
4 may be issued accordingly.
1 SEc. 11. Upon the sheriff or other officer being brought into court on such attachment, for not putting in,
Proceedings on
officer being
brought in on at-
2 bail to the action, the court may, by summary proceedings, ascertain the amount due to the plaintiff in tachment.
3 the action, in the same manner as if interlocutory judgment had been entered against the defendant, and
4 may render a judgment against such sheriff or other officer for the amount so ascertained to be due, with the
*
5 costs of the suit and proceedings.
&
1 Sec. 12. If the court shall determine that the amount so ascertained ought to be paid by such sheriff or
Ib.
w
2 other officer, and such sheriff or other officer shall confess a judgment to the plaintiff, for the amount so as-
3 certained, with the costs of suit and the proceedings, the court shall thereupon stay all other proceedings
4 against him,until he shall have had a reasonable time to obtain judgment on the bond taken on the arrest of
the defendant, and to collect the amount so acertained to be due to the plaintiff.
5
( 592 ) [TITLE 22.
Ib.
Officer who
made arrest may
put in special
bail, &c.
NoTsuit to be
commenced a-
gainst special
bail, until execu-
tion against de-
fendant returned
&c.
Sheriff to endear.
vor to serve ex-
ecution, &c.
When bail enti-
tled to verdict in
their favor.
1
SEg, 13. If in any such action, aſter a reasonable time, the sheriff or other officer shall not satisfy the
2 plaintiff in the action the amount due him, with costs and interest, the court shall award execution on the
3
judgment against such sheriff or other officer; and if such execution be returned unsatisfied, in part or in
4 whole, the same proceedings shall be had on the official bond of such sheriff or other officer to collect such
5
2
I
º
deficiency, as in other cases of delinquency. ,
Sec. 14. The sheriff or other officer who shall have made an arrest, may, for his own indemnity, put in
and perfect special bail to the action when such bail shall have been required as herein directed, at any
time before judgment rendered against him, on payment of the costs of the proceedings against him; and
the putting in of such bail by such officer shall not be deemed a performance of the condition of the bond
taken on the arrest; but such officer may, notwithstanding, prosecute such bond, and recover the amount of
all damages he may have sustained by the neglect of the defendant to put in such, bail.
Actions against Special Bail.
SEc. 15. No suit shall be commenced upon any recognizance of special bail, until an execution against the
body of the defendant, having at least fiſteen days between the teste and return thereof, shall have been is-
sued to the sheriff of the county in which such defendant was arrested, and by him returned that the defend-
ant could not be found within his county,
Sec. 16. Upon any such execution being issued and delivered to the sheriff, it shall be his duty to use all
reasonable endeavors to execute the same, notwithstanding any directions he may receive from the plaintiff,
or his attorney.
SEc. 17. If it appear on the trial of any such action against bail, that an execution against the body of the
O
defendant, was not issued as herein directed, or that it was not issued in sufficient time to enable the sher-
iff to execute the same, or that directions were given by the plaintiff or his attorney, to prevent the service
of such execution, or that any other fraudulent or collusive means were used to prevent such service, the
-bail shall be entitled to a verdict in their favor.
SEc. 18. When the defendant in a suit.shall die after, the return of the execution against his body, and be:
§
CHAP 98.] ( 593 ) [Tirix 22,
2 fore the expiration of eight days.ſrom the return of the process served on his bail, the court shall relieve
- - - t - Court may re-
- . ºffeath
3 such bail on the same terms as if they had surrendered their principal at the time of his death. of principal.
1 SEc. 19. In all cases in which proceedings shall be had against bail, by scire facias, it shall be necessary,
- - . .” In case of Sciro
facias against
2 t h writ l] the defendant, and to have th dul |...}.
& O Ser We SUICI) Wrl € TSOIla. U. OOI) tile Clel G. In Old Ints alſ) O Ila. We € S º ing to be had un-
p y up y ame duly returned that it has been so; (returned
* personally ser-
ved.
8 served ; and no further proceedings shall be had until such writ shall be so returned.
Surrender of Defendant. f :
1 SEC. 20. The special bail of any defendant may surrender him, or such defendant may surrender himself ;...,
be surrendered
- ; ‘....".
e ë & * tº g tº º ... of special ball.
2 in exoneration of his bail, before any justice of the supreme court, supreme court commissioner, or associ-
3
ate judge of a circuit court.
1 SEc. 21. The proceedings to effect such surrender, shall be as follows:
Yi e - . . . . . . . . . . . . . . . . . Proeeedings t
2, 1. There shall be produced to the officer authorized to accept the same, two copies of the bail piece, upon jºr.
2
gone of which such officer shall endorse an order that the defendant be committed to the custody of the she-
3
riff, in exoneration of his bail, which shall be delivered to such sheriff, and shall: authorize him to commit
4
and detain such defendant, until he shall be duly discharged: .
5 2. Upon producing to such officer the certificate of the sheriff, that the defendant has been committed to,
6 and remains in, his custody, by virtue of such order of commitment, acknowledged before such officer by
7 the sheriff, or proved by a subscribing witness thereto, an ordershall be made by such officer, requiring the
8 plaintiff to show cause before him, at such time and place as he shall appoint, why the bail of such defen-
9 dant should not be exonerated from their liability :
10 3. Upon producing proof of the due service of such order, on the plaintiff or his attorney, such officer
11 shall proceed to hear the allegations and proofs of the parties; and if no good cause to the contrary appear,
12 shall endorse an order on the second copy of the bail piece briefly reciting the proceedings had before him,
13 and thereby declaring that the bail of such defendant are discharged from all liability as such bail, in the
14 suit in which such bail piece was taken :
149
CHAP. 99.] ( 594 ) [TITLR 22. &
15 4. To such copy of the bail piece shall be attached the certificate of the an: herein before required,
16 with the acknowledgment or proof thereof, the order to show cause and the proof of the service thereof;
17 which papers shall be immediately filed in the office of a clerk of the court; and until so filed, the liability
18 of the bail shall continue.
surrender orde. I Sec. 22. When a bail bond shall have been taken on the arrest of a defendant, the bail therein may sur-
fendant on bail
bond.
2 render their principal, or he may surrender himself in exoneration of his bail, in the same manner, before
3 the same officers, and with the like effect as provided in the preceding section with respect to special bail.
CHAPTER, 99.
OF PLEADINGS AND SET-OFFS,
-1
1 SECTION 1. When any officer or agent of this state, either by his name, or the name of his office, is or
When bond &c.
execution by of
ficer or agent of 2
the state, suit
may be brought
thereon in the
name of the peo-
plc. tract, promise or agreement, in a matter concerning the people of this state, and in which the said people
shall be one of the parties to, or shall have executed, or shall hereafter execute any bond, covenant, con-
4 and not such officer or agent, is or shall be the real party in interest, it shahl be lawful to maintain an action
5 against the other party to any such bond, covenant, contract, promise or agreement for the breach or non-
6 performance of the same, in the name of the people of this state , in the same manner and with the like eſ:
ſect as if the said people ma of such officer or agent, had been named as a party to, and had executed
8 such bond, covenant, contract, promise or agreement, but no such action shall be brought, except by the
9 attorney general, on behalf of the people,
1 SEc. 2. In actions of debt, brought to recover any money, goods or other things received by any person
Statute how re-
ferred to, in ac- 2
tion of dcbt on contrary to the provisions of any statute, it shall be sufficient for the plaintiff without setting forth the spe-
islatu (C. • -
3 cial matter, to allege in his declaration that the defendant is indebted to the plaintiff in the sum so received,
4 or in the value of the goods or other things so received, whereby an action hath accrued to the plaintiff,
2 according to the provisions of such statute, naming the subject matter thereoſ, in the following form : “no-
6 cording to the provisions of the statute regulating the rate of interest on money,” or “according to the
Char. 99.] - ( 595 ) [TITLE 22.
7 provisions of the statute against betting and gaming,” as the case may require, or in some other general
8 terms referring to such statute.
- How to declare
1 Sec. 3. If an action of assumpsit be brought for any money received contrary to the provisions of any stat-j"**
2 ute, it shall be sufficient for the plaintiff, without setting forth the special matter to allege in his declaration
3 that the same was received contrary to the provisions of such statute, referring to the same, as prescribed in
4 the preceding section.
g º e e e How to declare
1 Sec. 4. If an action of trover be brought for any goods or other things received contrary to the provisions;... .
tulò.
2 of any statute, the plaintiff shall set forth in his declaration that such goods or other things were converted
s by the defendant, contrary to the provisions of such statute, refering to the same as prescribed in the pre-
4 ceding sections.
1
Sec. 5. The assignee for a valuable consideration of any bond, note or other chose in action, which has
When asslgned
of chose in uc-
º © © s: e & ; r tion may sue in
2 been or hereaſter may be assigned, if the assignor be dead and there be no executor or administrator appoin-º. Cº.,
&c.
3 ted upon his estate, or if such executor or administrator have no interest in the thing so assigned, or shall
4 refuse to prosecute for the same, may sue and recover in his own name upon such bond, note or other chose
5 in action, and the deſendant in all such suits, until due notice of such assignment shall have been given, may
6 set up and avail himself of any defence he may have in such action, in the same manner and with the hke
7 effect as if the assignor had been living, and the action had been prosecuted in his name.
1 SEc. 6. It shall be lawful for the holder of any bill of exchange or promissory note hereafter to be made,
Action against
* r st © º e e e makers, indor-
2 instead of bringing separate suits against the drawers, makers, endorsers and acceptors of such bill or note, ...'.
tors of bill of ex-
change, &c.
3 to include all or any of the said parties to the bill or note in one action, and to proceed to judgment and ex-
4 ecution in the same manner as though all the defendants were joint contractors.
1 SEC. 7. The plaintiff in any such action, and in all other actions on bills of exchange or promissory notes, Y’laintiff may d
• alniifſ may de-
clare on money
e counts, and give
2 may declare upon the money counts alone; and any such bill or note may be given in evidence under the noisiºidence,
8 money counts in all cases where a copy of the bill or note shall have been served with the declaration.
CHAP. 99.1 ( 595 ) [Tirle 22.
Judgment may
be rendcred a-
gainst some of
defendants, and
in favor of oth-
Cſ.S.
A -
*$
1 SEC. 8. In any such action judgment may be rendered for the plaintiff against some one or more of the de-
* - - - ... " . . . . . . . . . . . . . . . . . . . . . . •: . . . . . . . . . . . . . . . . . : * t . . . tº, . “. . ; ; ; ; ; ; ; ; ; ‘. . . . . . . .” (; ,
* *
2 fendants; and also in favor of some one or more of the deſendants against the plaintiff, according as the
8 rights and liabilities of the respective parties shall appear, either upon confession, deſault, by pleading Ot
4 on trial; and where judgment shall be rendered in favor of any defendant, he shall recover costs against the
How defendants
may set off de-
mands,
When verdict or
report to be in
favor of defend-
ants generally,
and when to spe-
cify set off al-
lowed each de-,
ſendant.
Rights, &c. of
parties to bill or
In Ote.
When defend-
ant entitled to
testimony of co-
defendant. ”
Separate actions
may be brought
as now author-
sº
6 plaintiff, in the same manner as though judgment had been rendered for all the defendants.
1 SEC. 9. In any such action, any person or persons sued, shall be entitled to set off his or their demands
2 against the plaintiff, in the same manner as though such defendant or defendants had been sued in the form
3 heretoſore used.
i see 10. If upon the trial of any such action 3. the whole amount of the demands set of by any or all of the .
2 defendants, and allowed by the jury or referees, shall be equal to, or shall exceed the amount of the plain-
3 tiff’s demand as proved on the trial, the jury or referees shall find a verdict or make a report in favor of
4 the defendants generally; but if the jury or referees shall allow any demand as a set off, and shall still find
5 or report a balance in favor of the plaintiff, they shall state in their verdict, or certify in their report, the
6 amount which they allow to each defendant as a set off against the plaintiff’s demand.
1 SEc. 11. The rights an responsibilities of the Several parties to any such bill or note, as between each
2 other, shall remain the same as they now are by law; saving only the rights of the plaintiff, so far as they
3 shall be determined by the judgment,
1 Sec. 12. In every suit brought in pursuance of this chapter, any one or more of the defendants shall be
2 entitled to the testimony of any co-defendant as a witness in all cases where the defendant or defendants
3 calling the witness would have been entitled to his testimony, had the suit been brought in the form here:
4 tofore used, and in no other case.
1 SEc. 13. Nothing in this chapter shall be construed to prevent the holder of any bill or note from bring-
2 ing separate actions against the parties to any such bill or note, in the manner now authorized by law.
• * - a
- * * ~ *
1 Sec. 14, in any action brought upon a bill of exchange or promissory note pursuant to the provisions of this.
- - - * : “. . . . . . . . . . . . 1 . . . . . . . . . . . ~ * * * ... ." . . . . . . . . . . . . . . . " * - ºr ºr " '
Chap. 99.] ( 597 ) [TITLE 22.
2
3
4
2
chapter, any joint drawer, maker, endorser, or acceptor, may plead in abatement the non-joinder of any ...,
Pléas in abaté:
- *. ment by joint
ë g º e º - drawer, &c.
other joint drawer, maker, endorser or acceptor, in the same manner as iſ such action had been brought in
the form heretoſore used.
Sec. 15. No judgment shall be rendered, or record made up against any several drawer, maker, endorser No judgment to
be rendered a-
guinst several
- - & e & e & k ** * & &
or acceptor, not served with process or with a copy of the declaration, when the suit is commenced by dec- jºi. º:
- - z’ cess, &c.
laration; but judgment may be obtained against joint contractors, some of whom only have been served
with process, or with a copy of the declaration when the suit is commenced by declaration, and such judg-
ment shall have the same effect against the joint contractors, as if the action had been brought in the form
heretofore used.
SEc. 16. It shall not be necessary for the plaintiff to include in the same record, a judgment against all *
How ačtion may
be severed.
the parties to such bill or note, but judgment may be entered against any of the parties thereto, whenever
the plaintiff would be entitled to the same if the suit had been commenced against such parties only ; and
if the trial or hearing of such cause be put off by any of the parties to such bill or note, or if a default shall
have been obtained against part of the deſendants, the plaintiff may proceed to the hearing or trial against
the other parties, in the same manner as if the suit had been commenced against the other parties only, and
the action shall thereby be severed.
Sec. 17. In every suit brought upon a bill or note pursuant to the provisions of this chapter, the plaintiff
In what cnses
plaintiff entitled
shall be entitled to the testimony of any defendant as a witness, in cases where the plaintiff would have been ºy of•
entitled to his testimony against the other parties to such bill or note, had the suit been brought in the form
heretofore used, and in no other case.
* e § - is chapte
SEc. 18. One or more of the deſendants in any suit brought upon a bill or note pursuant to this chapter, One or more of
- - defendants may
move for judg-
may move for judgment as in case of non-suit, although the other defendants shall not unite in the motion ; * *
but one of several joint makers, drawers, endorsers or acceptors shall not make such motion, unless the oth-
4 er joint contractors with him shall unite in the motion.
150
CHAP. 99.] ( 598 ) [Tirlº. 22.
Judgment upon
dcmûrror,
What defects to
be amendcd by
court aſler issue
on demurrer.
When judgment
for plantiff on
demurrcrto bo
absolute,
•º
Plea in abate-
ment not to be
received without
proof of its truth.
No special plca.
in bar to be
pleaded.
what general
issuo to consist
of.
Notice of special
matter of de-
ſence.
1 Sec. 19. When any demurrer shall be entered in any action, and issue be joined thereon, the court shall
2 proceed and give judgment according as the very right of the case and matter in law shall appear, without
3 regarding any defect or other imperfection in any process or pleading, so as sufficient matter appear in the
4 pleadings, to enable the court to give judgment according to the very right of the case, unless such defect
5 or other imperſection be specially expressed in the demurrer.
1 Sec. 20. After issue shall be joined on any demurrer, the court shall amend every such defect or other
2 imperſection in any process or pleading, in the last section mentioned, other than those which the party de-
8 demurring shall specially express in his demurrer.
I Sec. 21. When a defendant shall demurr to any pleading of the plaintiff, on account of some defect or
2 other imperfection, which the court is by the two last sections authorized to disregard and amend, in case.
8 the same had not been specially expressed; iſ judgment be rendered on such demurrer for the plaintiff, it
4 shall be absolute, as if the deſendant had confessed the pleading so demurred to, and the defendant shall
5 not be allowed to withdraw his demurrer, or to plead any other matter of law or ſact.
1 SEC. 22. No plea in abatement, or other dilatory plea, which does not involve the merits of the action, shall
2 be received by any court, unless the party offering such plea shall prove the truth thereof by affidavit, or by
3 some other evidence.
i Sec. 23. No special plea in bar shall be pleaded in any civil action hereafter to be commenced; but all
2 matters of defence to any such action, may be given in evidence under the general issue.
1 SEc. 24. In all civil actions hereaſter to be commenced, the general issue shall consist of a demand by the
2 defendant, of a trial of the matters set forth in the plaintiff’s declaration.
1 Spc. 25. To entitle a defendant to avail himself of any matter of defence, which, according to the practice
2 as it has heretofore existed, was required to be pleaded specially, or of which a special notice was required
t s t
e * ant shall annex to his plea of the
3 to be given under the ge:eral issue or other general plea, such defendant shal p
4 gencral issue, a notice to the plaintiſſ, briefly stating the general nature of such matter of defence.
|
CºA:s: 99.] ( 509 ) [TPFL; 22,
! -
3 evidence by either party, as shall be necessary to: prevent surprise, and to afford opportunity for prepara.
*—º º - * t - i. g , a ſº & - e Rules in regard.
SEC. 26. The supreme court may make such rules in relation-to-notice of matters intended to be given in tºº j
º - made by su-
preme court.
3 tion for triad .
10
11
12
13
14
16
17
18
19
20
21
22
23
24
SEc. 27. In the following cases, and under the following circumstances, a defendant may set-off demands
which he has against the plaintiff;
In what case,
* - G -º * Gº * - tº ſº - and under what
1. It must be a demand arising upon judgment, or upon contract expressor implied, whether such con- circumstances
t - demands may bo
set off.
tract be written or unwritten, sealed or without seal; and if it be founded upon a bond, or other contract
having a penalty, the sum equitably due, by virtue of its condition, only, shall be set off:
2. It must be a demand for real estate sold, or for personal property sold, or for money paid, or money
had and received, or services done; or if it be not such a demand, the amount must be liquidated, or be
capable of being ascertained by calculation :
3. It must be due to him in his own right, either as being the original creditor or payee, or as being the
assignee or owner of the demand:
4. It must have existed at the time of the commencement of the suit, and must then have belonged to a.
defendant :
5. It ean be allowed only in actions founded upon demands which could themselve be the subject of set-
off according to law : wº
6. If there be several defendants,the demand set off must be due to all of them jointly, except where oth:
er provision is expressly made by law º
7. It must be a demand existing again the plaintiff in the action, unless the suit be brought in the name
of a plaintiff having no real interest in the contract upon which the suit is founded ; in which case no set-
off of a demand against the plaintiff shall be allowed, unless as heroinaſer specified:
8. If the action be founded upon a contract, other than a negotiable promissory note, or bill of exchange,
which has been assigned by the plaintiff, a demand existing against such plaintiff, or any assignee of such
contract, at the time of the assignment thereof, and belonging to the defendant in good fiſh before notice of
such assignment, may be set-off to the amount of the plaintiff's debt, if the demand be such as might have
been set off against such plaintiff orsnch assignee, while the contract belonged to him :
CHAP. 99.] ( 600 ) [Tirls 22.
as 9. If the action be upon a negotiable promissory note, or bill of exchange, which has been assigned to
26 the plaintiff after it became due, a set-off to the amount of the plaintiff’s debt, may be made of a demand
27 existing against any person or persons who shall have assigned or transferred such note or bill, aſter it be-
n
28 came due, if the demand be such as might have been set off against the assignor, while the note or bill be.
29 longed to him :
30 10. If the plaintiff be a trustee for another, or if the suit be in the name of a plaintiff who has no real
81 interest in the contract upon which the suit is founded, so much of a demand existing against those whom
32 the plaintiff represents, or for whose benefit the action is brought, may be set off, as will satisfy the plain-
33 tiff’s debt, if the same might have been set off in an action brought by those benificially interested.
1 SEc. 28. To entitle a defendant to a set-off he must annex a notice thereof to his plea of the general
Notice of sct-off. e
2 issue.
1 SEc. 29. If the amount of the set off duly established, be equal to the plaintiff’s debt or demand, judgment
When plaintiff .*
to take nothing tº a tº & $º * e ºne g * , º
by hºactionid 2 shall be entered that the plaintiff take nothing by his action ; if it be less than the plaintiff’s debt or demand
when to have
judgment for re- -
sidue.
i
3 the plaintiff shall have judgment for the residue only.
1 SEc. 30. If there be found a balance due from the plaintiff in the action to the defendant, judgment shall
When judgment
d f d p º *
. * * 2 be rendered for the defendant for the amount thereof; but no such judgment shall be rendered against the
3 plaintiff, when the contract, which was the subject of the suit, shall have been assigned before the com-
4 mencement of such suit, nor for any balance due from any other person than the plaintiff in the action:
1 SEc. 31. In suits brought by executors and administrators, demands existing against their testators or in-
Set-offs in suit & * * o tº
iºnº, 2 testates, and belonging to the defendant at the time of their death, may be set off by the defendant in the
3 same manner as if the action had been brought by and in the name of the deceased.
wº
1 Sec. 32, When a set-off is established in a suit brought by executors or administrators, and a balance found
Judgment n-
*...*:: _º
e V * g ë & ſº te 49
3.jūei, 3 due the defendant, the judgment shall be against them in their representative character, and shall be evi-
4 dence of a debt established, to be paid in the course of administration.
Shkr. 100.] - ( “801 ) ºf Tºrtº22.
.1
Sto. 6. The referees appointed pursuant to the foregoing provisions, shall proceed with diligence to hear
º sº
CHAPTER 100.
OF CONSOLIDATING AND REFERRING CAUSES,
Section 1. Whenever several suits shall be pending in the same court, by the same plaintiff against the
When court may
order several
uits to be con-
º - - , . . . e. . . e . ~ : s : ... ?_ !! - - - . . . . . ', S g &
same defendant, for causes of action which may be joined, the court in which the same shall be prosecuted solidated into
One.
thay, in its discretion; if it slińll appear expedient, order the several suits to be consolidated into one action.
Sec. 2. When several suits shall be commenced against joint and several debtors, in the same court, the ...º.e,
eral suits against
joint and scvercl
& , . - . . . . *. . . . . . . ~ 1: 4-, ---- *-* - - - - - -** - debtors.
plaintiſſ may, in any stage of the proceedings, consolidate them into one action.
SEc. 3. When a cause shall be at issue in any court of record, and it shall appear that the trial of the same W
- * When court
may order cause
& * > e & º e ºf e to be referred.
will require the examination of a long account, on either side, the court may, upon the consent of both par-
ties in writing, signed by them or their attorneys, and filed with the clerk, order such cause to be referred to
three impartial and competent persons,
SEc. 4. If the parties agree on three persons as referees, such persons shall be appointed by the court, if
Referces how
selected, &c.
they disagree, each party shall be entitled to name one, and the court shall appoint the persons so nomina-
ted, iſ they are free from all exceptions, and such other person as the court shall designate.
SEc. 5. When a cause shall be noticed ſor trial at any circuit court, and it shall appear that the trial of the when judge
holding circuit
- court may order
* e * * e e e e causc referred.
same will require the oxamination of a long account on either side, the judge holding such court, may, upon
the consent of the parties thereto being filed with the clerk of such court, order such cause to be referred
with the like effect as if made by the supreme court.
Referees to pro-
ceed with dili-
g e gence.
and determine the matters in controversy,
Sec. 7. They shall appoint a time and place for the hearing, and shall adjourn the same from time to time
151
Char, 100.
[TITLE 22.
To appoint time
and place for
hearing, and
may postpone
!earing.
. Rcfcrees to oo
first sworn.
Witness may be
Compellcd to ut-
tend.
Oath to witness-
ČS. All thc re-
ferecs inus inect
and lear prooſs
but mujority may
report.
• *
Referecs may ho
connipelled to re-
pori. anti may be
require:l to re-
Port preceedings
&c.;
Fºntry upon the
record, an judg-
lucºl on report.
Whcºn court
mily appoint au-
dilurs.
*
2
3
4 :
5
2.
&T)
ºf
as may be necessary ; and on the application of either party, and for good cause they may postpone such
hearing to a time not extending beyond the next term of the court in which the suit is pending.
**
SEC. 8. Before proceeding to hear any testimony in the cause, the reſerees shall be severally sworn, faith-
fully and fairly to hear and examino the cause, and to make a just and true report according to the best
of their understanding, which oath may be administered by any judge, clerk of a court of record, justice of
the peace, or notary public,
SEC. 9. Witnesses may be compelled to appear before such reſerees, by subpoenas issuing out of the court
in which the cause is pending, in the same manner, and with the like effect as in cases of trials in such
Collrt.
SEC. 10. Any one of the reſerees may administer the necessary oath to the witnesses produced before them
for examination. All the referees mºst meet together and hear all the proofs and allegatlons of the parties,
but a report by any two of them shall be valid.
SEC. I 1. The rºle. may be compelle, by the order of the court in which the cause is pending, to pro-
ceed to the hearing thercoſ, and to make report of the amount thcy ſind dac to either party ; and the court
may require them to report their decision in admitting or rejecting any witness, in allowing or overruling
any question to a witness, or the answer thcreto, and all cther proceeding by them, together with the testi-
mony before them, and their reasons for allowing or disallowing ºy claim of cither party.
Sec. 12. An entry of Sach reference shall be made upon the record, and day shall be given to the parties
Iſ the report of the referees be
ſrom time to time, until the referees report, or they be thereoſ discharged.
confirmed by the court, judgment shall be entered thereon in the same manner, and with the like effect, as
upon the verdict of a jury.
Sec. 13. Whonever a cause is at issue, and it shall appear that the trial will require tho investigation of
accounts, or the cyamination of vouchers, the court in which such issue is to be tried, may appoint one or
*
3 more auditors to hear the parties, and examine their vouchers and evidence, and to state the accounts, and
f
& make report thereof to such court,
1 SEc. 14. Before proceeding to hear any evidence in the cause, the auditors shall be severally sworn, in
Auditors to be
- sworn. and to
º tº - e sº tº e t give notice of
2 the same manner as referees are herein required to be sworn, and they shall in like manner give notice to jº.
3 the parties of the time and place appointed ſor their meeting; and they may adjourn from time to time, as
4 may be necessary.
1 SEc. 15. All the auditors must meet and hear the cause, but a report by a majority of them shall be valid; An º sº
in ust illeet, Oti
report of majori-
ty valid, &c.
2 and such report may be compelled by the court in like manner as in the case of reſerees.
1 SEC. 16. Witnesses may be summoned and compelled to attend and testify before the auditors, in the same
--- Witnesses may
- bc compelled to,
attend, &c.
2 manner as before referees; and either of the auditors may administer the necessary oath to such witnesses.
º
1 SEc. 17. The court may, for any sufficient reason, discharge the auditors and appoint others, and they
Court may dis-
- charge additors,
g * . . o º © and recomit re-
2 may also re-commit the report for revision or further examinations to the same, or to other auditors port.
I SEc. 18. The report of the auditors, if there be no legal objection to it, may bo used by cither party as ...,
on trial,
2
evidence on the trial before the jury, but it may be impeached and disproved by other evidence produced on
*
3 the trial by either party.
\
1 SEC. 19. The court shall award a reasonable compensation to the auditors or reſerees, as tho case may be, Compensation.
5 5 of auditors and
rclerc.cs.
2
which shall be paid by the plaintiff, and shall be taxed in his bill of costs, if he shall be entitled to costs in
3 the suit.
Gaar, 101.] ( 604 ) [TITEeeºz.
If sole plaintiff
or defendant in
personal action
dic, suit may be
prosecuted by or
against execu-
tor, &c.
Saggestion Ön
record and coll-
ductiligot suit,
&c.
Ordcr for ap-
pearance of ex-
cculor or admin-
isirator.
If cxccutor, &c.
do not appear
judgiment to be
rendered Jgainst
him.
What actions
survive.
When plaintiff
entitled to recov-
cr only the actu-
ml damages Eus-
mined, &c.
CHAPTER 101.
OF DEATH, MARRIAGE, OR OTHER DISABILITY OCCURRING AFTER THE commeNCEMENT OF THE SUIT.
$1 SECTION 1. In all personal actions, the cause of which, does by law survive, if there is onl y one plaintiff,
2 or one defendant, and the sole plaintiff or deſendant shall die aſter the commencement of the action, and
3 before the final judgment, the action may proceed and be prosecuted by or against the surviving party, and
4 by or against the executor or administrator of the deceased party, in the manner provided in this chapter.
J SEc. 2. The death of the party shall be suggested on the record, and his executor or administrator may,
2 thereupon appear and take upon himself the prosecution or deſence of the suit, as the case may be ; and it
3 shall be thenceſorth conducted in the same manner as if it had been originally commenced by or against the
4 same Cxecutor or administrator.
1 SEC. 3. If the executor or administrator does not voluntarily appear on or beſore the first day of the next
2 term after the death of such party, the surviving party may have an order of course, that the executor or
3 administrator appear and take upon himself the prosecution or defence of the suit, within thirty days after
4 service of notice of such order.
1 SEc. 4. If the executor or administrator shall not appear within the time limited by such order, or within
2 such further time as the court shall allow for that purpose, he shall be non-suited or defaulted, and judgment
3 shall be rendered against him in his representative capacity, and shall be evidence of a debt established to
4 be paid in the course of administration.
1 SEc. 5. In addition to the actions which survive by the common law, the following shall also survive, that
2 is to say: actions of replevin and trover, actions for assault and battery ; or falso imprisonment, or for
a goods taken and carried away, and actions for damage done to real or personal estate.
1 Sec. 6. When any action mentioned in the preceding section, shall be prosecuted to judgment against the
2 executor or administrator, the plaintiff shall be entitled to recover only for the value of the goods taken, or
Char 98.] ( 605 ) [TITLE 22.
3 for the damage actually sustained, without any vindictive or exemplary damages, or damages for any alleged
4 outrage to the feelings of the injured party.
1 Sec. 7. When the executor or administrator of a trustee, carrier or other person who claimed only a spe-
\When goods&e.
recovered by ex-
ecutor, &c. uot
2 cial property in any goods, to hold them for the use and benefit of another, shall recover such goods, or ***.
3 the value thereof, or damages for the taking or detention thereof, or for any injury done to the same, the
4 goods or money so recovered shall not be considered assets in his hands, but shall, after deducting the costs
5 and expenses of the suit, be paid over and delivered to the person for whose use or benefit they were so
º
6 claimed or held by the deceased person.
1 Sec. 8. When judgment for a return, in an action of replevin, shall be rendered against an executor or ad-
Goods returned
by executor, &c.
purstlant to a
2 ministrator, the goods returned by him shall not be considered assets in his hands; and if they shall have ####".
€ Considere
QSBéUS,
3 been included in the inventory, it shall be a sufficient discharge for the executor or administrator, to show
4 that they have been returned in pursuance of such judgment.
1 SEc. 9. When there are several plaintiffs or deſendants in any personal action, the cause of which sur-
When suit to
º: in favor
3 vives, either by the common law, or by the provisions of this chapter, and any of them shall die before fi- ;
w tifſ or defendant.
8 nal judgment, the action shall proceed at the suit of the surviving plaintiff or against the surviving defendant
4 as the case may be.
When action to
1 SEC. 10. 1ſ, in such case, all the plaintiffs or all the defendants shall die before final judgment, the action be º:::::g
g or ugainst excc-
utor, &c. of last
Surviving pluin-
2 may be prosecuted or defended by or against the executor or administrator of the last surviving plaintiff or * *****
S defendant, respectively, in the same manner as iſ such last survivor had originally been the only plaintiff
4 or deſendant.
If demandant in
1 SEc. 11. In all real and mixed actions, if the demandant shall die before final judgment, his heir, within . .”.
action die. his
heir, or §4.
tor &c. may pro-
2 such time as the court shall allow, may appear and prosecute the suit, in the same manner as if the action secute.
a had been originally commenced by him, or the action may be prosecuted by the executor or administrator
4 for the benefit of the heir, or of the creditors of the deceased.
152
CHAP. 99.]
( 606 ) [TIPLu 22.
In case of the
deutin of one of
several demand-
ants, lais heir, &c.
muy be admitted.
When surviving
demandunts may
prosecute suit.
When suit may
be prosecutc l in-
gainst surviving
tlefend:lnts in
Jeal or mixed ac-
tiou.
Same procced-
ings to be had in
actions, &c. for
partition.
when Íñtercst
of deceſ:sed
laintiff in parti-
iton piusSCs to
person not a
party, such per-
son may he
made defendant,
&c.
Whèh suit th:
proceed against
surviving de-
ſendants without
new process,
. I
: 2
2
2
2
i
SEc. 12. If there are several demandants in such action, and any of them shall die beſore final judgment,
the heir, executor or administrator of the deceased party may be admitted, on motion, to prosecute the suit
jointly with the survivors, in the same manner as if he had joined with them in commencing the suit,
SEc. 13. If the interest of the deceased party passes to the surving demandants, or if there be no motion
for the admission of another person as heir, executor or administrator, within the time allowed by the court
for that purpose, the surviving demandants may prosecute the suit ſor so much of the premises in question
as may be claimed by them.
SEc. 14. When there are several defendants in any real or mixed action, and any of them shall die beſore
final judgment, the action may be prosecuted against the surviving defendants, for so much of the premises
as they shall hold or claim,
Sec. 15. The same proceedings as are prescribed in the preceding sections, in relation to real and mixed
actions, shall be had in all petitions and actions for partition of lands, in case of the death of any of the par
ties, except as is provided in the two ſollowing sections.
Sec. 16. If upon the death of either of several plaintiff's or petitioners, is a suit for partition, the interest
of the deceased party shall pass to the surviving plaintiffs or petitioners, or to any person who shall be ad-
mitted to join them in the suit, it shall be prosecuted accordingly, in the manner beſore provided respecting
real actions, but if the interest of the decoased party shall pass to any person who is not so admitted as a
plaintiff of petitioner, such person may by order of the court, be made a defendant or respondent, and the
same proceedings may be had against him, as would have been necessary to make him an original defend-
ant or respondent.
Sec. 17. If upon the death of either of several defendants or respondents, the interest of the deceased party
shall pass to the surviving defendants or respondents, the suit may proceed against them without any new
process, but if the interest of the deceased party shall pass to any other person, such person may be made a
defendant or respondent, by order of the court, in the manner prescribed in the preceding section.
CHAP. 99.] ( 607 ) [Turls. 22,
i
Sec. 18. When any action is brought by an unmarried woman, either alone or jointly with others, and she
When husband
- may bc admittcd
a * . . 1. • 0. e to prosecute)
shall be married before ſinal judgment, her husband may on his own motion, be admitted as a party to prose-º:
- commenced by
her when un-
- e - a. * * * * * * : * ſº. * *. e © © © tº II) itd.
cute the suit with her, and with the 9ther plaintiffs, if there be any, in like manner as if he had originally {\rflº
4 joined in the suit,
2
3
3.
Sec. 19. If a female defendant marry at any time before final judgment,her husband may, on his own ap- when husband
Inay be mudc co-
deſent!...int in suit
commenceſ! a-
plication, or on the application of the plaintiff, be made a co-defendant in the suit; but if such husband be ºc-
- forc marriagc.
made a defendant on the application of the plaintiff, he shall have the same right to contest the ſuct of his
marriage, as if the suit had been originally brought against him as husband of such female defendant.
Sec. 20, when an action is authorized or directed, by law, to be brought by or in the name of a public of
Death of publix
officer not to a-
- - º & e e bate suit, &c.
ficer, or by any trustee appointed by virtue of any statute, his death or removal shall not abate the suit, but
the same may be continued by his successor, who shall be substituted for that purpose by the court, and a
suggestion of such substitution shall be entered on the record.
Sec. 21. If during the pendency of any action, either party shall become insane, the action may be pro.
When party be-
coines insane,
w º - e © e Zºo - e suit triay be pro-
secuted or defended by his guardian, in like manuer as if it had been commenced after the appointment of ºcuſeſ or dé.
fonticil by guar-
dian.
the guardian, or the court may appoint a guardian to prosecute or defend the suit as the case may require.
SEc. 22. In all cases provided for in this chapter, when any change of parties in the suit shall happen af.
º º º Amendments.
ter its commencement, the court may allow amendments of the declaration and other proceedings, and such ºne
change 98.
parties,
suggestions to be entered on the record, as the circumstances of the case shall require.
Q
Char. 99.1 ( 608 ) r w [Tirlº 2x.
CHAPTER 102.
OF EVIDENCE,
Of taking Testimony conditionally, within this State.
1 Section 1. Whenever any action pending in any court of law, being a court of record, shall have been
When deposi- - º - - -
ºney be e- 2 commenced by the actual service of process, or where the defendant shall have appered in the action, either
3 party may have the testimony of any witness taken conditionally, to be used in the cases and under the cir-
4 cumstances hereinaſter prescribed.
*
1 Sec. 2. The party desiring the examination of a witness, may apply to any judge of a court of record,
2 or supreme court commissioner, upon an affidavit which shall state,
†: to be
III ; its COll- º tº , º
ºn."" " 3 1. The nature of the action, and the plaintiff’s demand:
4 2. If the application be made by the defendant, the nature of his defence:
5 3. The name and residence of the witness:
6 4. That the testimony of such witness is material and necessary for the party making such application, in
7 the prosecution or defence of such suit, as the case may be ; and
8 5. That the witness is about to depart from this state, or that he is so sick or infirm, as to afford reasonable
9 grounds for apprehension, that he will not be able to attend the trial of such suit.
1 SEc. 3. The officer to whom such application is made, shall be satisfied that the circumstances of the case
Order for exam- - - e
* * 2 require the examination of such witness, in order to attain justice between the parties, he shall make an or-
3 der requiring the adverse party to appear before ºim, and attend the examination of such witness, at such
4 time and place as shall be therein specified; which time shall not exceed twenty days from the date of such
6 order, and shall be as much shorter as the exigency of the case may require, and the residue of the adverse
6 party, or his attorney will allow, in order to afford sufficient opportunity to attend such examination.
lica- \ º e s - © - -
Nº. 1 Src, 4. The adverse party may show cause against proceeding in such examination, by proof that such
missed. - *
2 witness is not about to depart from this state, or that he is not sick or infirm, or that the application for his
CHAP. 102.] ( 609 ) - [TITLE 22.
3
4.
examination is made collusively, to avoid his being examined on the trial of the cause; and upon any such
cause being shown, the officer shall dismiss such application.
Sec. 5. If no sufficient cause be shown, upon due proof of service of such order, and a copy of the affi.”
davit upon which the same was founded, the officer granting the same shall proceed to the examination of
such witness, and shall take his deposition, in which deposition shall be inserted any answer or declaration
of such witness, which either of the parties shall require to be included therein.
Sec. 6. Such deposition shall be carefully read to and subscribed by such witness, shall be certified by ther, signed and
- filed.
officer taking the same, and within ten days thereafter, shall be filed with the clerk of the court in which
such action shall be pending.
SEc. 7. Such deposition, or a certified copy thereof, may be given in evidence by either party, on the trial
When deposi-
, tion to be read
of the cause, or upon the assessment of damages therein by the clerk or a jury, or by virtue of any writ of" evidence.
inquiry of damages after it shall have been satisfactorily proved that such witness is unable to attend such
trial or assessment of damages personally, by reason of his death, insanity, sickness or settled infirmity, or -
that he has continued absent out of this state, so that his attendance at such trial or assessment could not be
compelled by the ordinary process of law.
SEc. 8. But the pārty against whom such deposition is to be used, may prevent the reading thereof by sat-
- How reading
& © * wº º g • & IIl 8 be reven- º
isſactory proof that sufficient notice was not given to enable him to attend the examination of such witness, ºf "" .
*
or that such examination was not in all respects fair, and conducted as herein prescribed.
SEc. 9. Such deposition shall have the same effect, and no other, as the oral testimony of the witness would
Effect of deposi-
tion,
have if given on such trial or assessment, and every objection to the competency or credibility of such wit.
ness, and to the competency or relevancy of any question put to him, or of any answer given by him, may
be made in the same manner as if such witness were personally examined on such trial or assessment.
Sec. 10. The officer granting such order upon the application of the party desiring “” examination of t
153
CHAP. 102.] ( 610 ) [TITLE 22.
Witness how
compelled to at-
tend.
Taking testimo-
ny of witness
out of county te
prove will.
Who may apply;
affidavits.
*
Order to take
testimony before
another judge of
probate.
Authority of
such judge'
2.
2 witness, may compel the attendance of such witness by issuing a summons for that purpose, and enforcing
*º-
3 the same in the manner prescribed in this chapter.
of taking the testimony of certain Witnesses, to prove Wills.
1 Src. 11. Whenever all or any of the subscribing witnesses to any will heretofore executed, or hereafter to
2 be executed, shall reside within this state, and out of the county, to the judge of probate of which exclusive
3 power is given to take the proof of such will, and cannot, by reason of infirmity or sickness attend before
4
such judge of probate to prove such will, the testimony of such witness may be taken in the manner herein-
after prescribed.
5,
I Sec. 12. Any person interested in the proof of such will, may, on the day specified in the notice required
2
by law, on which the proof of any such will is to be taken, present to such judge of probate an affidavit,
3
stating the names and residence of the subscribing witness or witnesses, to such will, whose attendance can-
not be procured before such judge of probate, by reason of infirmity or sickness, accompanied by the affida-
vit of some disinterested person, of the sickness or infirmity of such witness or witnesses.
I
SEc. 13. If such judge of probate shall be satisfied that any such witness is so sick or infirm, that it is not
probable his attendance could be procured within a reasonable time before such judge, he shall make an or-
:
3 der directing the testimony of such witness to be taken before the judge of probate of the county in which
4
the witness resides, at such time, and at such place, within such county, as shall be specified in such order,
5
and may annex the will to such order; and notice of such examination shall be given to all persons inter-
6 ested, in such manner as shall be specified in such order.
SEc. 14. The judge of probate before whom such testimony shall be directed to be taken, shall have power
to take the same, and may issue subpoenas under his seal of office to compel the attendance of such witness,
3 and enforce obedience thereto, and may adjourn the taking of such testimony, if necessary, from the day
4 and place appointed in said order to such other day, and such other place in such county, as he shall appoint;
5 - but such judge shall not take such testimony until it be proved to his satisfaction, that notice of the exami-
6 nation has been given as directed in the order.
Char. 102.] sº - ( 611 ) [Title 22.
1 SEc. 15. The testimony so taken shall be reduced to writing by such judge of probate, and be carefully
Testimony how
authenticated,
2 read to, and subscribed by such witness; and when so subscribed shall be certified by such judge, under his &c.
a hand and seal of office, and forthwith transmitted to the judge of probate who made the order for taking the
4 same.
*.
*
1 SEc. 16. Such testimony so certified, shall be filed by the judge of probate authorized to take the proof of . filed; evi-
2 such will, and shall be received by him as evidence on proving the same, subject to all legal objection.
1 SEC. 17. The jadge of probate taking such testimony, shall be entitled to the like fees therefor, as for
Focs for taking
testimony.
2 similar services in causes pending before him, to be paid by the person requiring such testimony to be taken,
3 and to be allowed by the judge of probate taking the proof of such will, in the same manner as if such tes-
4 timony had been taken before him.
Of taking the Testimony of Witnessess out of this State
1 SEc. 18. Whenever any action shall be pending in a court of law, being a court of record, and an issue Wh e
- - CIA COMINIſl?S-
sion to issue, &c.
2 of fact shall have been joined therein,and it shall appear on the application of either party, that any witness
3 not residing within this state, is material to the prosecution or defence of such action, the court may, upon
# 4. such terms as it shall think proper, award a commission to one or more competent persons, authorizing them
5 or any of them, to examine such witness on oath, upon the interrogatories annexed to such commission ;
6 to take and certify the deposition of such witness; and to return the same according to the directions given
7 with such commission.
&
1 SEc. 19. If such action be pending in the supreme court, any justice of that court, or supreme court com-
May be ordered
by justice of su-
2 missioner may, either in term or vacation, grant an order that such commission issue, upon proof that due * *
3 notice of application for such order has been served on the adverse party, at least ten days before the ma-
4 king of such application.
1 SEc. 20. Such order shall be filed in the office of the clerk of the court, and shall be granted only in the
Order to be filed
subject to con-
2 like cases, and upon the same terms, that the supreme court would award such commission, and shall be sub-trol of court.
3 ject to the control of the court in all respects,
CHAP. 102] w ( 612 ) [TITLE 22.
who to settle
interrogatories.
To be annexed
to connulission.
Directions on
commission.
How commis-
sion to be exe-
cutteſ!.
2
10
11
12
13.
14
15
SEc. 21. The interrogatories to be annexed to such commission, shall be settled by a judge of the court at
chambers, or by a supreme court commissioner, and upon such notice as shall be established by the practice
of the court. f
sº
Sec. 22. In settling such interrogatories, either party shall be allowed to [insert any question pertinent
to the cause which he shall propose, and the officer settling the same, shall endorse his allowance thereof,
and annex them to the commission.
SEc. 23. Upon the commission, the officer settling the interrogatories shall direct the manner in which it
shall be returned, and may in his discretion, direct the same to be returned by mail, addressed to the clerk of
the court out of which it shall issue; or if issued out of the supreme court, addressed to the clerk of the
*
county in which the venire in such action shall be laid, designating the name of such clerk, and his resi-
dence.
*...*
SEc. 24. The persons to whom such commissions shall be directed, or any one of them, unless otherwise
expressly directed therein, shall execute the same as follows:
1. They or any one of them shall publicly administer an oath to the witnesses named in the commission,
that the answers given by them to the interrogatories proposed to them, shall be the truth, the whole truth,
and nothing but the truth.
2. They shall cause the examination of each witness to be reduced to writing, and to be subscribed by him,
and certified by such of the commissioners as are present at the taking of the same.
3. lf any exhibits are produced and proved before them, they shall be annexed to the depositions to which
they relate, and shall in like manner be subscribed by the witness proving the same, and shall be certified
by the commissioners,
4. The commissioners shall subscribe their names to each sheet of the depositions taken by them ; they
shall annex all the depositions and exhibits to the commission, upon which their return shall be endorsed ;
and they shall close them up under their seals, and address the same when so closed, to the clerk of the court
from which the commission issued, or to the clerk of the county in which the venire shall be laid, as shall
have been directed on the commission, at his place of residence.
Char 102.] ( $18 ) [Tiruz 22.
16 5. If there shall be a direction on the commission to return the same by mail, they shall immediately deposit
17 the packet so directed, in the nearest post office.
18 6. If there be a direction on the commission to return the same by an agent of the party who sued out the
19 same, the packet so directed shall be delivered to such agent.
Return by agent.
1 SEc. 25. If such packet be delivered to an agent, he shall deliver the same to the clerk to whom it shall be
2 directed, or to one of the judges of the court in which the action is pending, who shall receive and open the
3 same, upon such agent making affidavit that he received the same from the hands of one of the commission-
4 ers, and that it has not been opened or altered since he so received it.
1 SEC. 26. If such agent be dead, or from sickness or other casualty, unable to deliver such packet person-
If agent be siek
or dead, &c.
2 ally, as in the last section directed, the same may be received by the clerk or judge from the hands of any
3 other person,upon such person making affidavit that he received the same from such agent; that such agent
4 is dead or otherwise unable to deliver the same; that it has not been opened or altered since such person re-
5 ceieved it; and that he believes the same has not been opened or altered since it came from the hands of the
6 commissioners.
I Sec. 27. The clerk or judge receiving and opening such commission and return, shall immediately file the
Filing commis-
sion and return.
*.
2 same in the office of the clerk of the court from which it issued, or if the action be pending in the Supreme
3 court, in the office of the clerk of the county in which the venue in the action is laid.
1 SEc. 28. If the packet containing such commission and return be transmitted by mail, the clerk to whom
Return by maſl.
2 the same shall be addressed, shall receive the same from the post-office, and open and file it in his office. p
1 SEc. 29. The parties, or their attorneys may, in writing, agree on the manner in which a commission for
Parties may a-
2 the examination of witnesses may be returned; and on fillng such agreement with the clerk of the court, the fºr mode"
3 attorney for the party sueing out the same, may endorse thereon a direction according to such agreement;
+ . . . . . . . - . . . . . . .
4 and such commission shall be returned accordingly,
154
Gºak:198] (; 514 ) [Trrls 32,
Return &c.
where to be
kept.
Deposition &c.
evidec.ne.
1 sco. 30. The commission, returns, deposition, and exhibits thereo annexed, shall remain on file in the
2 office of the clerk to whom the same were addressed, unless the court, by a special order, shall direct them
3 to be filed with some other clerk ; and they shall at all times be open to the inspection of the parties, who
4 shall be entitled to copies of the same, or of such parts thereoſ as they may desire, on payment of the fees
wº
5 allowed by law.
I Sec. 31. The examinations and depositions taken under a commission issued, executed and returned, as
2 herein directed, or a certified copy thereof when the originals are filed in any other county than that in
3 which the cause shall be tried, may be offered and used in evidence on the trial of the cause, by either par-
4 ty; and every objection to the competency or credibility of a witness so examined, or to the competency or
5 relevancy of any question put to him, may be made in the same manner, and with the like effect, as if such
Commissions (to
issue after in-
terlocutory
Judgment.
Authentication
of affidavits in
other states, &c.
6 witness were personally examined at such trial.
1 Sec. 32. If an interlocutory judgment shall have been obtained in any action, a commission may be awar-
2 ded on the application of the plaintiff in the like cases, and in the same manner, as if an issue of fact had
,”
3 been joined ; and the depositions thereon may be used in evidence on any proceeding to assess the plaintiff’s
4 damages, with the like effect as herein provided in case of a trial.
of Affidavits taken, and other Judicial Proceedings had in other States and F.oreign Countries.
1 SEc. 33. In cases where by law the affidavit of any person residing in another state of the United States,
2 or in any foreign country, is required, or may be received in judicial proceedings in this state, to entitle the
3 same to be read, it must be authenticated as follows :
4 1. It must be certified by some judge of a court having a seal, to have been taken and subscribed before
5 him, specifying the time and place where taken :
6 2. The genuineness of the signature of such judge, the existence of the court, and the ſact that such judge
7 is a member thereof, must be certified by the clerk of the court, under the seal thereof; or,
& 3. If such affidavit be taken in any other of the United States, or any territory thereof, it may be taken
Citar. 102.] “ (: 615 ) [Trrle 22.
, , 10.
10
11
8
2
3.
*
before a commissioner duly appointed and commissioned, by the governor of this state to take affidavits to
be used therein.
&
Sec. 34. The records and judical proceedings of any court in a foreign country, shall be admitted in evi- Records, &c. of
foreign courts.
dence in the courts of this state, upon being authenticated as ſollows:
1. By the attestation of the clerk of such court, with the seal of such court annexed, or of the officer in
whose custody such records are legally kept, with the seal of his office annexed:
2. By a certificate of the chief justice or presiding magistrate of such court, that the person attesting such
record is the clerk of the court, or that he is the officer in whose custody such record is required by law to
be kept ; and in either case, that the sigmºre of such person is genuine; and,
3. By the certificate of the officer of the government under whose authority such court is held, having the
custody of the great or principal seal of such government, purporting that such court is duly constituted,
specifying generally the nature of its jurisdiction, wrigins the seal of the court, or of the officer having the
custody of such record, and the signature of the chief justice or presiding magistrate.
Sec. 35. Copies of such records and proceedings, in the courts of a foreign country, may also be admitted
Copies thercof.
in evidence, upon due proof,
1st. That the copy offered has been compared by the witness with the original, and is an exact copy of the
whole of such original:
2d. That such original was in the custody of the clerk of the court, or other officer legally having charge
of the same: and,
3d. That such copy is duly attested by a seal, which shall be proved to be the seal of the court in which
such record or proceeding shall be.
Sec. 36. The preceding sections shall not prevent the proof of any record or judicial proceeding of the
gº Construction of
courts of any foreign country, according to the rules of the common law, in any other manner than that pºlius e-
w - I *
herein directed, nor shall they be construed as declaring the effect of any record or judicial proceeding, & U-
4 thenticated as therein prescribed.
Char. 102.] (, 616 . ) [Tirls 21.
5 [See act of Congress of 26th May, 1790, in regard to authentication of records of courts, &c.; in any other
6 state of the United States, and supplementary act of 27th March, 1804.] *
*
+ Qf depositions taken in this State, to be used in Courts of other States and countries.
Tcstimony of , ,
witnesses in this
state, to be used
1 SEC. 37. Any party to a suit d ding i O - o
h e ependling in any COurt * - L. - - "
º y party p g y f any other state of the United States, or of any for-
may be obtained.
2 eign country, may obtain the testimony of any witness residing in this state, to be used in such suit.
1 SEC. 38. If a commission to take such testimony shall have been issued from the court in which such suit is
Summons (O
Witnc88.
2 pending, on producing the same to any judge or justice of a court of record, or supreme court commissioner;
3 such officer shall issue a summons to such witness, requiring him to appear before the commissioners nam-
4 ed in such commission, to testify in such suit.
º
coºl, of 1 SEC. 39. Such summons shall specify the time and place within the county, where the witness resides, at
9tlin Dºlou5. - * - -
2 which such witness is required to attend.
1 Sec. 40. If a suit be pending in any court of any other state of the United States, or of any foreign coun-
Proof required
to obtain Suln-
.." 2 try, and it shall satisfactorily appear by affidavit to any officer named in the preceding thirty-eighth section,
sued.
3 or to any justice/Of the peace,
4 1. That any person residing in this state is a material witness for either party to such suit:
5 2. That no commission to take the testimony of such witness has been issued ; and,
, ºr ,
6 3...That according to the course and practice of the court in which the suit is pending, the deposition of a
7 witness taken without the presence or consent of both parties, will be received on the trial or hearing of such
8 suit : r
9 such officershall issue his summons requiring such person to appear before him, at a place within the */
10 in which such witness resides, at some reasonable time, to testify in such suit.
© -
** *
" ; "
1 Sec. 41. The officer before whom such witness shall appear, shall take down his testimony in writing, and
Officer to take - r - - • * * * . . . . . . . . - - -
and certiſy testi- e ... " º - - - -- - * , . . . . . . . . . tº -
" mony, &c. 2 shall certify and transmit the same to the court before which such suit is pending, in such manner as the
... . . . . .”
. . b.
3 practice of the court may require.
car. 102.] * ( 615 ) [TITLE 32.
i Sao. 42. If any person shall reſusa or neglect to appear at the time and place mentioned in any sum-
tabili y!!-
####.
2 mons issued in aggordance with the foregoing provisions, or if on his appearange, he shall refuse to testify,
3 he shall be liable to the same penalties as would be incurred for a like offence on the trial of a suit in a
4 justice's court.
i SEc. 43. Every witness who shall appear and testiſy in manner aforesaid, shall be entitled to receive from e f wit
• CC QI. Witneſſ-
CD,
2 the party at whose instance he shall have been summoned, the same ſees as are allowed to witnesses for
8 travel and attendance in the circuit court.
Of Proceedings to perpetuate Testimony.
* * * * ** © * g tº º º hen testi
1. Sec. 44. Any person who is a party to a suit pending in any court of this state, or who expects to be a Wºº:
to be perpetua-
ted.
2 party to any suit to be thereaſter commenced, may cause the testimony of any witness material to him in
3 the prosecution or defence of such suit, to be taken conditionally, and to be perpetuated.
1 Sec. 45. Upon producing to any justice of the supreme court, supreme court commissioner or master in § "***
& A
2 chancery, due proof by affidavit,
3 1st. That the applicant is a party to a suit actually pending in some court of record in this state, or that
4 such applicant has good reason to expect to be made a party to a suit in such court of record; and
5 2d. That the testimony of any witness within this state, is material and necessary to the prosecution OT
6 defence of such suit: and sº
‘7 8d. If such suit be not actually commenced, that the party expected to be adverse to the applicant, resides
8 within this state, and is of full age, or has a guardian within this state: Such officer shall appoint a place
9 within the county where such witness resides, and a time not less than fourteen days from the date of such
10 order, for the examination of such witness.
1 Sec. 46. Upon the application of the party desiring such examination, such officer shall issue a summons
Summons to
witness.
2 to the witness designated in the original affidavit, requiring him to appear and testify at the time and plage
* appointed.
155
CHAP, 102. * ( 618 )
[TITLR 22.
Testimony when
tº be taken. “
How testimony
tobe taken, &c.
Original affida-
Wits evidence.
When deposſ-
tions may be
read in evidence.
* 1
2
6
l
2
1
2
3
4
6
7
8
1
Effect of deposi-
tion. -
SEc. 47. After satisfactory evidence shall be given to such officer, that the order directing such examina-
- & *
tion has been duly served on the adverse party to such suit, if one be pending, or on the persons named in
the original affidavit, or their guardians, if no suit be pending, at least ten days before the time appointed
for such examination, he shall proceed on the day so appointed, or on such other days to which the matter
shall be from time to time adjourned, as may be necessary, to take the deposition of such witness condition-
ally,
&
Sec. 48. The officer using such deposition, shall insert therein every answer or declaration of the wit-
ness examined, which either party shall require to be included therein, and the deposition, when completed,
shall be carefully read to and mºcribed by the witness, and shall be certified by the officer taking the same,
and within ten days thereafter, shall be filed in the office of the clerk of the county in which i. S{\me Was
taken, together with the original order for the examination of the witness, and the affidavits on which the
same was ſounded, and that proving the service of such order,
SEc. 49. The original affidavits filed with such deposition, or a certified copy thereof, shall be presumptive
.**
evidence of the facts therein contained, to prove a compliance with the foregoing provisions.
SEc. 50. In case a trial shall be had between the persons named in the original aſidavit as parties, or
name therein as expected parties, or between any persons claiming under such persons or either of them,
upon due proof of the death or insanity of the witness examined pursuant to the foregoing provisions; or
of the inability of such witness to attend such trial, by reason of old age, sickness or settled infirmity, or
that he has continued absent out of the state, so that his attendance at such trial could not be compelled by
the ordinary process of law, the deposition of such witness or a certified copy thereoſ, may be given in ev-
dence by either party,
SEc. 51. The deposition so taken and read in evidence, shall have the same effect, and no other, as the ora
2 testimony of the witness would have, if given on such trial ; and every objection to the competency or cre-
3 dibility of such witness, or to the relevancy of any question put to him, or of any answer given by him,
4 may be made in the same manner as if such witness were personally examined on such trial.
CHAr. 102.] ( 619 ) - [TITLE 22.
*
1 Sec. 52. Any officer authorized to take such examination under the preceding provisions to whom appli-
- - - . . . e Other officer
may be substitu-
e - © ted.
2 cation may be made for that purpose, may order such examination to be had before any officer to whom such
3.
application might have been originally made, residing in the same county with the witness to be examined,
and such officer shall proceed in the premises in the same manner and with the like power, as if the order
4
5 for the examination had been made by him.
Of Wilnesses, their privileges, and compelling their attendance.
Mode of servtng
I Sec. 53. The service of a subpoena issued out of any court, to compel the attendance of any witness, jºin.
2 shall be made as ſollows : *
3 1. The original writ under the seal of the court, shall be exhibited to the witness:
4 2. A copy of such writ, or a ticket containing its substance, shall be delivered to the witness:
5 3. The fees allowed by law to such witness for traveling to and returning from the place where he is re-
6 quired to attend, and the ſees allowed for one day's attendance, shall be paid or tendered to such witness.
1 SEc. 54. Every person who shall be duly subpoenaed to attend as a witness, any court within this state, Liability for dis
e º r -
obedience.
2 or to attend any officer of a court of record empowered to receive evidence, or any commissioner appoin-
3 ted by such court to take testimony, or any referees or auditors appointed according to law to hear any cause
4 or matter, shall be bound to attend according to the command of such subpoena ; and for every failure so to
5 attend, without a reasonable excuse, shall be deemed guilty of a contempt of the court out of which such sub-
6 poena issued, shall be responsible to the aggrieved party for the loss and hundrance sustained by such fail-
7 ure, and for all other damages sustained thereby ; and shall be further liable to the aggrieved party in the
8 sum of fifty dollars, as additional damages, to be recovered in the same action.
1 Sec, 55. In all cases where by the provisions of law any judge or other officer is authorized to summon
Mode of serving
- e - - º + - e º w * z º IIlO
2 any person to appear as a witness, either before such judge or officer, or any othel Judge or officer, to give tº on
3 testimony, or to have his deposition taken, or before any person named in any commission issued by a court
4 of any other state or country, to take testimony, such summons shall be served by
5
1. Showing to the witness the original summons, under the hand of the judge or officer issuing the same.
6 2. Delivering to such witness a copy of the summons, or a ticket containing its substance; and
º Char, 102.] (, 620 ) [Title. 28. * -
7. 3. Paying or tendering to such witness the fees allowed by law for travelling to, and returning from the
8 place where he is required to attend, and the fee allowed for one day's attendance.
Sec. 56. Every person who shall be dul y summoned to attend before any judge or officer, or before any
1
Liability for dis-
obedience.
2 commissioner as above provided, shall be bound to attend according to such summons; and for every ſailure
3 so to attend, without a reasonable excuse, shall be responsible to the aggrieved party for the loss and hin-
4 drance sustained by such failure, and for all other actual damages sustained thereby; and shall be further
-
f
5 liable to the aggrieved party, in the sum of fifty dollars, as additional damages.
I
When \varrant
to issue for wit-
Il CS8.
SEc. 57. In case of the air. of any witness so to attend as above provided, the judge or officer issuing .
2 the snmmons, upon due proof of the service thereof, and of the failure of such witness, shall issue his war-
3 lant to the sheriff of the county, to apprehend such witness and bring him before such judge or officer to be .
4 examined, or to bring him before any persons named in a commission issued by a court of any other state
5 or country to take testimony, for the like purpose.
l
SEG, 58. If any witness attending before any judge, officer or commissioner, pursuant to a summons,
When witness
to be iumprison-
ed.
2 or brought before them, or either of them, shall, without reasonable cause, refuse to be examined, or to
3 answer any legal and pertinent question, or to subscribe his deposition after the same has been reduced to
4 writing, the officer issuing such summons shall, by warrant, commit such witness to the common jail of the
county in which he resides, there to remain, until he submits:to be examined; or to answer, or to subscribe
6
his deposition, as the case may be, or until he be discharged according to law.
R
Contents of war- Sec. 59, Every warrant of commitment issued by any judge or officer, pursuant to the provisions of this,
railte
chapter, shall speciſy therein particularly the cause of such commitment, and if such commitment be for re-
2
43
refusing to answer any question, such question shall be stated in the warrant.
1 SEc: 60. Every warrant to apprehend or commit any witness, authorized by this chapter, shall be directed
To whom war-
rant to be directe
ted, L&c. 2 to the sheriff of the county where such witness may be, and shall be executed by him in the same manner
3 as process issued by courts of record.
Char. 102] ( 621 ) - [TITLE 22.
1
Qualification of
preceding provi-
SEc. 61. The preceding provisions in relation to the apprehension and commitment of witnesses, shall not
-- Bions.
apply to any case where other special provision is made by law for compelling the attendance of witnesses.
*..
SEC. 62. Every person duly and in good faith subpoenaed as a witness to attend any court, officer, com. Wººmp!
roln arrêSt.
missioner, auditors or reſerees, or summoned to attend any judge, officer or commissioner, in any case where
the attendance of such witness may by law be enforced by attachment, or by warrant, shall be exonerated
from arrest in any civil suit, while going to the place where he shall be required to attend, while remaining
in attendance as such witness, and while returning therefrom,
SEc. 63. The court or officer before whom any person shall have been subpoenaed in good faith to attend Toſhe disch
o, he discnar-
ged from arrest
by court, &c.
as a witness, shall discharge such witness from any arrest made in violation of the last section; and if such
gº
court shall have adjourned before such arrest, or before application for such discharge was made, any judge
of such court shall have the same power to discharge such witness.
Sec. 64. Every justice of the supreme court, and supreme court commissioner, shall have the like authority in
to discharge any witness arrested contrary to the foregoing provisions.
SEc. 65. Every arrest of a witness made contrary to the foregoing provisions, shall be absolutely void,
Arrest to be
void. Penalties
and shall be deemed a contempt of the court issuing the subpoena; and every person making or procuring ºresunswik
such arrest, shall be responsible to the witness arrested for three times the amount of damages which shall
be found by the jury, and shall also be liable to an action at the suit of the party who subpoenaed such wit-
ness, for the loss, hindrance and damage sustained by him, in consequence of such arrest.
SEc. 66, But no sheriff or other officer or person shall be so liable, unless the person claiming an exemp-
No Liability un-
. sºil be
* - e eve tº t - o d Iſla(162, &C.
tion from arrest, shall, if required by such sheriff or officer, make an affidavit, stating : y
1. That he has been legally subpoenaed as a witness, to attend before some court, officer, auditors, refer.
ees, or commissioners, specifying such court, officer, auditors, referees, or commissioners, the place of at
tendance, and the cause in which he shall have been subpoenaed ; and,
156
CHAP. 102.] - ( 622 ) [TITLE 22.
Affidavits of
publishing no-
tices of applica-
tions.
Affidavits of
publishing salcs
of real estate.
Original affida-
vits, and certified:
copies, to be evi-
dence.
Affidavit of
printer &c. of
publication of
notices.
6 2. That he has not been subpoenaed by his own procurement, with intent to avoid the service of any pro-
7 cess :
8 Which affidavit may be taken by such officer, and when so taken, shall exonerate such officer ſrom all lia-
9 bility for not making such arrest.
se Of Documentary Evidence, and the preservation thereof.
t
1 Sec. 67. When notice of any application to any court or judicial officer for any proceeding authorized by
2 law, is required by law to be published in one or more newspapers, an affidaivt of the printer of any such
3 paper, or of his foreman or principal clerk, annexed to a printed copy of such notice taken from the paper
4 in which it was published, and speciſying the times when, and the paper in which such notice was publish-
5 ed, may be filed with the proper officer of the court, or with the judicial officer before whom such procee-
6 ding shall be pending, at any time within six months after the last day of the publication of such notice.
*
*
1 SEC. 68. When any notice of a sale of real property is required by law to be published in any newspaper,
2 an affidavit of the printer of such paper, or of his foreman, or principal clerk, annexed to a prime copy
3 of such notice taken from the paper in which it was published, and specifying the times when, and the pa-
4 per in which it was published, may be filed at any time within six months after the last day of such publi-
5, cation, with the county clerk of the county in which the premises sold are situated, or if such sale were
6 made in pursuance of the order of any judge of probate or court of chancery, such aſſidavit may be filed
7 with such Judge of probate, or with a register of such court of chancery, as the case may be.
1 SEC, 69. The original affidavit so filed pursuant to the two last sections, and copies thereof duly certified
2. by the officer in whose custody the same shall be, shall be presumptive evidence in all cases, of the facts
3 contained in such affidavits.
1 Sec. 70. The affidavit of the printer, or foreman or clerk of any printer of a public newspaper, published
° in this state, of the publication of any notice or advertisement, which by any law of this state shall be re-
9 quired to be published in such newspaper, shall be entitled to be read in all courts of justice in this state, and
arºs.
Chap. 102.] ( 623 ) [TITLE 22.
4 in all proceedings before any officer, body or board in which it shall be deemed necessary to refer thereto,
and shall be prima facie evidence of such publication, and of the ſacts therein stated.
5
1 Sec. 71. Whenever a certified copy of any aſfidavit, record, document or paper, is declared by law to be
Coples of pro-
ceedings &c.
- e © º ë how certified.
2 evidence, such copy shall be certified by the clerk or officer in whose custody the same is by law required
3 to be, to have been compared by him with the original, and to be a correct transcript therefrom, and of the
4 whole of such original; and if such officer have any official seal by law, such certificate shall be attested by
5 such seal; and if such certificate be given by the clerk of any county, in his official character as such clerk,
6 it shall be attested by the seal of the circuit court for the county of which he is clerk.
1 SEC. 72. But the preceding section shall not be construed to require the affixing of the seal of any court
Last section
qualified.
to any certified copy of any rule or order made by such court, or of any paper filed therein, when such
4 copy is used in the same court, or before any officer thereof; nor to require the seal of the Supreme court
5 to be affixed to a certified copy of any rule or order of that court, when used in any circuit court.
1 SEc. 73. Every written instrument, except promissory notes and bills of exchange, and except the last
All instruments
except wills,
º - e º * . t - º º e notes, &c. may
2 wills of deceased persons, may be proved or acknowledged in the manner now provided by law, for taking ...d
or proved like
deeds.
3 the proof or acknowledgment of conveyances of real estate, and the certificate of the proper officer endors-
4 ed thereon, shall entitle such instrument to be received in evidence on the trial of any action, with the same
5 effect and in the same manner, as if such instrument were a conveyance of real estate.
1 SEC. 74. Copies of all papers, records, entries and documents, required by law to be filed by any public
- - Certified copies
2 officer in his office, or to be entered or recorded therein, and duly filed, entered or recorded according to gº..."
dence.
3 law, certified by such officer to be a true transcript compared by him with the original in his office, shall be
4
evidence in all courts and proceedings in like manner as the original would be if produced.
i SEc. 75. Whenever any officer to whom the legal custody of any paper, document or record shall belong;
2 shall certify that he has made diligent examination in his office for such paper, document or record, and Wº..."
- that document,
&c. cannot be
3 found, evidence
&
that it cannot be found, such certificate shall be presumptive evidence of the facts so certified, in all causes ***
Char. 102.] ( 624 ) [TITLR 22,
4 matters and proceedings, in the same manner and with the like effect as if such officer had personally testi-
*
5 fied to the same in the court, or before the officer, before whom such cause, matter or proceeding may be
6 pending.
*Cer, iff f 1 SEC. 76. The official certificate of any justice of the peace within any other state of the United States, of
jº.
peace of other
stal CS. 2
the proceedings and judgment in any case before him as such justice, with the certificate of the clerk of any
3
court of record in the county or district in which such justice has executed his office, attested by his official
4 seal, setting ſorth that the signature to the certificate of the justice is genuine, and that he was such justice
5 at the date of such proceedings and judgment, shall be sufficient evidence of such proceedings and judg-
6 ment.
1 SEC, 77. The printed copies of all statutes, acts and resolves of this state, whether of a public or private
Printed copics
of staatutes of
this state cvi- 2
dence. nature, which shall be published under the authority of the government, shall be admitted as sufficient evi.
3 dence thereof in all courts, and in all proceedings within this state,
1 SEC. 78. Printed copies of the statute laws, and resolves of any other of the United States, or of any terri-
Printed copies
of laws, &c. of
other 8tutes. 2
tory thereof, if purporting to be published under the authority of the respective governments, or if common-
3 ly admitted and used as evidence in their courts, shall be admitted in all courts, and in all proceedings with-
4 in this state, as prima facia evidence of such laws and resolves.
1 SEc. 79. The unwritten or common law of any other of the United States, or of any territory thereof, or
Common law of
other states, how
provgd. 2 of any foreign state or country, may be proved as facts by parol evidence ; and the books of reports of
3 cases adjudged in their courts, may also be admitted as evidence of such law.
1 SEc. 80. Any device affixed to any deed or instrument in writing by way of seal, by any person signing
When device by
way of seal, suf- 2
ficient Sealing.
the same, executed since the thirty-first day of December, eighteen hundred and twenty-seven, or hereafter
3 to be executed, shall be received in all courts, and upon all occasions, as evidence that the same deed or in-
4 strument was duly sealed, and equally valid and effectual, as if the same had been actually sealed; but this
5 section shall not apply to official and corporate seals, in cases where, according to law, an actual sealing may
6 be required.
CHAP 102.] ( 625 ) [TITLE 22.
Examination of Witnesses, and Evidence in Certain Cases.
I Sec. 81. In all cases in which any county, city, township, village, or school district, shall be, in its corpo-
Members of cor-
© º & ſe g porations not in-
2 rate capacity, a party to, or interested in, any suit or proceeding, any member of such corporation may be competent as
witnesses.
3 admitted as a competent witness therein, if there be no other sufficient objection to his competency.
1 SEC, 82. In suits by or against an aggregate corporation, the admission of any member thereof not named
*
Confessions by
* e e g corporations .
2 on the record as a party to such suit, shall not be received as evidence against such corporation, unless such
3 admission was made concerning some transaction, in which such member was the authorized agent of such
4 corporation.
1 Sec. 83. Any member of a corporation aggregate, not named on the record as a party to a suit brought by Corporators wit-
liesses in certain
C2868.
2 or against such corporation, not otherwise incompetent, shall be received as a competent witness to testify
3 to any matter against the interest of such corporation.
1 SEC. 84. Any competent witness in a cause, shall not be excused from answering a question relevant to
sº Witness not ex-
2 the matter in issue, on the ground merely that the answer to such question may establish, or tend to estab- ºr ..."
wering certsin
questions.
3 lish, that such witness owes a debt, or is otherwise subject to a civil suit; but this provision shall not be con-
4 strued to require a witness to give any answer which will have a tendency to accuse himself of any crime or
5 misdemeanor, or to expose him to any penalty or forfeiture, nor in any respect to vary or alter any other
6 rule respecting the examination of witnesses.
1 SEC, 85. No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose, *
Confessions to
ministers, &c.
2 any confessions made to him in his professional character, in the course of discipline enjoined by the rules
3 or practice of such denomination.
1 SEC, 86. No person duly authorized to practice physic or surgery, shall be allowed to disclose any infor-
Information to
physicians and
tº * tº e tº t g * ſº ë * , , Surgeons.
* mation which he may have acquired in attending any patient, in his professional character, and which
° information was necessary to enable him to prescribe for such patient as a physician, or to do any act for
f
4 him as a surgeon.
157
CHAP, 102.] ( 626 ) [Title 22.
*
d 1 SEc. 87. Whenever a party to any instrument,shall have been permitted to prove by his own oath, the loss
Evidence of lost
notes, &c.
2 of any instrument, in order to admit other proof of the contents.thereof, the adverse party may also be ex-
3 amined by the court on oath, to disprove such loss, and to account for such instrument.
Recover on lost 1 SEC. 88. In any suit founded upon any negotiable promissory note or bill of exchange, or in which such
notes, &c.
note, if produced, might be allowed as a set off in the defence of any suit, if it appear on the trial that such
2
3
note or bill was lost while it belonged to the party claiming the amount due thereon, parol or other evidence
4 of the contents, thereof may be given on such trial, and notwithstanding such bill or note was negotiable,
5
such party shall be entitled to recover the amount due thereon, as if such note or bill had been produced.
Bond to be giv- 1 SEC. 89. But to entitle a party to such recovery, he shall execute a bond to the adverse party, in a penalty
en. -
2
at least double the amount of such note or bill, with two sureties, to be approved by the court in which the
3.
trial shall be had, conditioned to indemniſy the adverse party, his heirs and personal representatives, against
4 all claims by any other person on account of such note or bill, and against all costs and expenses by rea-
5 son of such claim.
1 SEC. 90. In any action upon a sealed instrument, and where a set offis ſounded on any sealed instrument,
Effect of 8cal 3 to
instrumentS.
2
the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in
3
the same manner, and to the same extent, as if such instrument were not sealed.
I SEc. 91. The defence allowed by the last section shall not be made, unless the defendant shall have given
Notied of do-
Il CC,
2 notice thereof with his plea of the general issue.
1 SEC. 92: Every variance between process, pleadings, or any instrument in writing, recited or referred to
- istak º e tº g
º: 2 in any other process, pleading or record, and every mistake in the name of any officer or other person, or
cd.
&
3
in stating any day, month or year, or in the description of any property, in any pleading or record, shall be
4 disregarded upon the trial of such cause, and aſter a verdict therein, unless such variance or mistake be cal-
5 culated to surprise and mislead the adverse party, and to prevent his making due preparation for a full an-
6
swer on the merits, to the matter concerning which such variance or mistake shall have been made.
Cuap. 102.] ( 627 ) [TITLE 22.
Administering Oaths and Affirmations.
1. Sec. 93. The usual mode of administering oaths, now practiced in this state, by the person who swears, general modeot
swearing.
2 holding up the right hand, shall be observed in all cases in which an oath may be administered by law, ex-
3 cept in the cases herein otherwise provided.
F SEC 94. When the court, magistrate or other officer before whom any person is to be sworn, shall be sat- WVI lia.
- men pecuitar
mode of swcar-
. ing to be udopt-
2 isfied that such person has any particular mode of swearing, which is, in his opinion more solemn or obliga-*
3 tory than holding up the hand, such court or officer may adopt that mode of administering the oath.
1 . 95. 3, Vier V. ** , (e *ienti : Vº : altino, hiri , a ºf hailſ. < A. - *A* Aºt -, - a ‘ * … a--a
SEC, 95. Every person conscientiously opposed to taking an oath, shall, when called on to take an oath, ..º.
tion to be made.
2 be permitted, instead of swearing, solemnly and singerely to affirm, under the pains and penalties of per-
3 jury.
1 Sec. 96. No person shall be deemed incompetent as a witness, in any court, matter or proceeding, on ac-
RCligious belief.
e tº e & tº º p ſº ſº te tº of witness, not
count of his opinions on the subject of religion; nor shall any witness be questioned in relation to his opin- genuired in-
3
4 ions thereon, either before or after he shall be sworn, - #. p. 21, (No.
1 SEc. 97. Whenever any oath or affidavit is or may be required or authorized by law, in any cause, matter
Officers author-
e g te - & - ized to adiuinis-
or proceeding, except oaths to witnesses and jurors in the trial of a cause, and such other oaths as are or "oin.
2
e
may be required by law to be taken before particular officers, the same may be taken before any justice,
3
1339, p. 221, $20.
4.
judge or clerk of any court of record, supreme court commissioner, notary public or justice of the peace;
5
or before the chancellor, or any register or master in chancery.
Sec. 98. Oaths, affidavits and depositions, in any cause, matter or proceeding in any court of rocord, may
Coin mission crs
np?ointcd ly
also be taken before any commissioner apppointed by such court for that purpose, iº.s.l., 25.
2
Competency of Witnesses, and Eramnation of Parties in Certain Cases.
1 SEC. 99. No person shall be excluded from giving evidence in any matter, suit or proceeding, civil or
Certain pcrsons
not c Xcluded
- e & g º ge g © © from giving cyl-
2 criminal, by reason of Crime, or of any interest of such person in the matter in question, or in the cyent dence,
CHAP. 102.] ( 628 ) [Title 2x
When parties,
&c. may be ex-
amined as wit-
The SSCS.
How compelled
to appear and
testify.
VV hat issues of-
fact to be tried in
circuit court.
©
2 of the suit or proceeding in which his testimony may be offered, unless such person be individually a party,
4 named in the record, to such matter, suit or proceeding, or unless such matter, suit or proceeding be prose
5 cuted or defended, either wholly or in part, in the immediate and individual behalf of such person, or un-
6 less such person be the husband or wife of such party.
1 SEc. 100. Whenever any action, suit or proceeding, shall be pending in any court of law, and either par-
2 ty shall make and file with the clerk of such court, or with the clerk of the court in which any issue joined
3 therein shall be triable, an affidavit, setting forth that any facts, material to the issue or question to be tried,
4 are within the knowledge of any other party to such suit or proceeding, and that there is no competent wit-
5 ness whose testimony he can procure, by whom such facts can be proved, the parties to such suit or procee-
6 ding, and any other persons interested in the event thereof, may be examined on oath, in relation to such
7 facts.
1 SEc. 101. Upon the filing of such affidavit, such party or person interested, may be compelled to appear
2 and testify in relation to the facts set forth in such aſſidavit, in the same manner that other persons may be
3 compelled to appear and testify as witnesses.
CHAPTER 103.
OF THE TRIAL OF ISSUES OF FACT.
General provisi ons cºncerning Trials, and the roceedings preparatory thereto.
1 SECTION 1. All issues of fact which shall be joined in the court of chancery, or in any probate court, and
2 which shall be sent to the supreme court for trial, and all issues of fact joined in the supreme court, shall be
3 tried at a circuit court, in the proper county; unless the supreme court shall, on the motion of either party,
4 in cases of great difficulty, or which require great examination, order such trial to be had at the bar of the
5 said supreme court.
1 SEC. 2. Issues of fact joined in such actions, shall be tried in the proper county, as follows:
Char. 103.] - ( 629 ) [Title 22.
gº
2
10
11
2
1. Actions for the recovery of any real estate, or for the recovery of possession of real estate, actions for
In what couri-
; . #.
. . - e tº ſº - e * act to be tr
trespass on land, and action for trespass on the case ſor injuries to real estate, shall be tried in the county,
where the subject of the action shall be situated:
W
2. Actions of trespass for injuries to the person ; and actions on the case for injuries to the person, or per-
sonsonal property, shall be tried in the county where the cause of action arose :
3. Actions of slander, for libels, and all other actions ſor wrongs, and upon contracts, shall be tried in the
county where one of the parties shall reside, at the time of commencing such action: unles the court shall
deem it necessary for the convenience of parties and their witnesses, or ſor the purposes of a fair and im-
partial trial, to order any such issues to be tried in some other county; in which case the same shall be tried
in the county so designated.
Sec. 3. The supreme court shall have power to change the venue in any of the actions specified Mººrem.
change venue.
in the preceding section, when it.shall appear that a fair and impartial trial cannot be had in the county in
which such venue is laid.
Sec. 4. In suits against public officers, or against any person specially appointed to execcte the duties of
In certain suits
. public
e º g Q * e f , judg-
such officers for any act done by them by virtue of their offices respectively, and in suits against other per- jºšn-
tinuance to be
rendered.
sons, who, by the command of such officers, or in their aid or assistance, do any thing touching the duties
of such office, which are required by law to be laid in the county where the fact happened, iſ it shall not
appear on the trial, that the cause of such action arose within the county where such trial is had, the jury
4:
shall be discharged, and judgment of discontinuance shall be rendered against the plaintiff. .
SEc. 5. All issues of fact joined in any court proceeding according to the course of the common law, shall
All issues of
ſact to be tried
be tried by a jury, except in those cases where a reſerence shall be ordered, or where the parties agree up- ####".
CIICC,
on a case, and submit the facts to the court.
SEc. 6. The party entitled to bring any cause to trial at a circuit court, shall make out a transcript of the
e ſº g © © tº e gº Party entitled to
pleadings in the cause relating to such issue, which shall be called the circuit roll, with an entry thereon ; ...”
* . - t tria), to make
transcript of
pleudiugs, &c.
158
Clar. 108. ( 630 ) * [Title 22,
Transcript
where filed, &c'.
Notice of trial,
Notice of issue
to hº served on
cferk,
Venire for jury
not necessary.
Assessors, &c.
to make lists of
persons 10. SCTWC
as Jurors.
1840, p. 49, 50.
1841, p. 55.
Selection how
Inade.
Nuñiffer to "bé
selected.
3 that the issue so joined is ordered by the court to be tried at the circuit court, at which the same may be tria.
4 ble; without any respite of the jury, or award of process for their appearance at the next or any other term
5 of the supreme court,
1 Sec. 7. Such transcript shall be filed with the clerk of the court at which such issue is to be tried; but no
2 such transcript shall be necessary, unless the cause is to be tried at a circuit court, nor shall a seal to such
3 roll be necessary in any case.
|
1 Sec. 8. Written notice of trial of every issue of fact shall in all cases be served at least fourteen days be-
2 fore the first day of the court at which such trial shall be intended to be had.
1 Sec. 9. A note of the issue joined in any cause, shall be served on the clerk of the court in which the same
2 is to be tried, at least ſour days before the opening of such court.
1 SEc. 10. It shall not be necessary, in any case, to issue or award any venire for the summoning of jurors,
2 to attend any circuit or district court,
Of the Return ind Sumiñóning of Jürörs.
* & è . * : ºn . . . . . . . . i . . . . . . '• * : A - . . . . . . . . • - 'a - - - - - • • - - . . & • { tº - Yºſ
g in the city of Detroit, shall, at the time appointed by law ſor said assessors to review their assessment roll
à in each year, make a list of persois to servo as grand jurors for the ensuing year.
1 SEc. 12. The said officers shall proceed to select from those assessed on the assessment roll of the town-
2 ship or ward ſer the same year, suitable persons, having the qualifications of electors, to serve as jurors;
8 and in making sueh selection, they shall take the haihës of Sãeh only as are not exempt from serviñg on ju-
4 rios; who are in possession of their natural faculties, and not infirrá or decripit; of fair character, of ap-
5 proved integrity, of sound judgment, and well informed, and free from all legal exceptions.
i Sâc. 18. Such lists shall contain not less than one for every one hundred inhabitants of such township or
2 ward, computing according to the last preceding census, and having regard to the population of the county,
€war. 103.] ( 631 ) $ [Title 22.
s so that the whole number of jurors selected in the county shall amount at ieast to one hundred, and not ex-
4 ceeding four hundred, one half of whom shall be designated as petitjurors, and one half as grand jurors.
1 Sec. 14. In making such selection, the said officers shall avoid, as far as practicable, selecting any of the
Officers to avoid
. sclecting per-
g & e sons who served
2 same persons who were actually drawn, and who served as jurors, during the preceding year. the preceding
year.
1 SEc. 15. Duplicate lists of the persons so selected, shall be made out and signed by the officers making such puplicate list, to
be inade, and
how disposed of.
2 selection, or the major part of them, and within ten days thereafter one of each of said lists shall be trans-
3 mitted to the county clerk, and the other shall be filed with the clerk of the township or assessor of the ward,
4 as the case may be,
1 SEC. 16. On receiving such lists, the county clerk shall file the same in his office, and shall write down the County clerk to
- deposite names
in jury boxes.
2 names contained therein, on separate pieces of paper, of the same size and appearance, as nearly as may
3
be, and shall fold up each of such pieces of paper so as to conceal the name thereon, and deposite those on
the lists of petit jurors in a box to be kept by him for that purpose, to be labelled “petit jury box,” and
4
5 those on the lists of grand jurors in a separate box, to be labelled “grand jury box,”
1 SEC. 17. The persons whose names shall be so returned, shall serve as such jurors ſor one year, and un-
*- Persons return-
wº º * g c ... * * * ed to serve one
til other lists from their respective townships or wards, shall be returned and filed. - ... ."
turned.
2
*
1 SEc. 18. Upon receiving such new lists, the county clerk shall destroy the ballots deposited in the jury On receiving
new lists, clerk
to destroy bal
boxes for the year preceding, and deposit the ballots containing the names entered on such new lists in the * *
2
3 same manner as above required.
1 Sec. 19. At least fourteen days before the holding of any circuit court or district court at which such ju- Juries when to
bo drawn, &c.
2 ries shall be required by law, the clerk of the county where such court is to be held, shall draw from the
3 petit jury box the names of twenty-four persons, and any additional number that may have been ordered by
* the court, to serve as petit jurors, and from the grand jury box, the names of twenty-three persons to serve
§ us grand jurors.
car. 108.] ( 632 ) [Titls 24.
1 Sec. 20. At least three days before the drawing of such jurors, the clerk shall give notice to the sheriff
'Clerk to give no-
tice of drawing
to sheriff, &c.
2 and the associate judges of the circuit court of the county, of the day and hour when such drawing will
3 take place.
puty of sheriff. 1 SEC, 21. At the time so appointed, it shall be the duty of the sheriff of the county in person, or by his un-
l associt .*
fººd .
drawing, &c. * e & º de } e *
2 der sheriff, and of the associate judges, to attend at the clerk's office of the county to witness such drawing;
3 and if any two of said officers shall attend at the time and place appointed, the clerk shall proceed in their
4 presence to draw the jurors.
1 Sec. 22. If two of the officers so notified do not appear, the clerk shall adjourn the drawing of such ju
If two of the of.
ficers notified do
Il ()t intº , C ſº ſº ſº tº - ſº © -
§. d.º.º. 2 rors until the next day, and shall, by written notice, require any two justices of the peace of the county, to
ing, &c.
3 attend such drawing on the adjourned day.
1 SEc. 23. If at the adjourned day, any two of the officers notified to attend the drawing of such jurors shall
Jury to he drawn
**ś. 2 appear, but not otherwise, the clerk shall proceed, in the presence of the officers so appearing, to draw the
day, if two of— O
ficers attend.
3 jurors.
1 SEc. 24. The clerk shall conduct such drawing as follows:
Drawing how
conducted. 2 1. He shall shake each of the boxes containing the names of jurors returned to him, ſrom which jurors
3 are required to be drawn, so as to mix the slips of paper upon which such names were written, as much as
4 possible : - -
5 2. He shall then publicly draw out of the said boxes, respectively, as many of said slips of paper contain-
6 ing such names of grand or petit jurors, or both, as shall be required by law, or specially ordered for
7 such court :
8 3. A minute of the drawing shall be kept by one of the attending officers, in which shall be entered the
9 name contained on every slip of paper • drawn, won any other such slip shall be drawn :
10 4. If, aſter drawing, the whole number required ſor grand or petit jurors, the name of any person
• 11 shall appear to have been drawn who is dead, or become insane, or who has permanently removed from the
Chap. 103] * ( 633 ) - w [Trrls 22.
*
12 county, to the knowledge of the clerk or any other attending officer, an entry of such fact shall be *
13 in the minute of º drawing, and the slip of paper containing such name shall be destroyed, -
i4 5. Another name shall then be drawn in place of that contained on the slip of paper so destroyed, which
15 shall, in like manner, be entered in the minutes of the drawing :
16 6. The same proceedings shall be had as often as may be necessary, until the whole number of jurors re.
17 quired shall have been drawn:
18 7. The minute of the drawing shall then be signed by the clerk and the attending officers and filed in the
19 clerk’s office :
20 8. Separate lists of the names of the persons so drawn for petit jurors, and of those drawn for grand ju-
21 rors, with their places of residence, and specifying for what court they were drawn, shall be made and cer-
32 tified by the clerk and the attending officers, and shall be delivered to the sheriff of the county.
1 SEC. 25. The sheriff shall summon the persons named in such lists respectively,to attend such court, at least
Jury how sºtº-,
moned,
2
six days previous to the sitting thereoſ, by giving personal notice to each person, or by leaving a written no-
3
tice at his place of residence, with some person of proper age ; and shall return such lists to the court, at
4 the opening thereof, specifying those who were summoned, and the manner in which each person was no-
5 tified.
I
SEC. 26. It shall be the duty of the county clerk to furnish any person applying therefor, and paying the copy of lºst,
be furnished by
olerk on applica-
tion, &c.
2
fees allowed by law for the same, a copy of the lists of jurors drawn to attend any court.
1 SEC, 27. The court to which any list of jurors shall be returned by the sheriff, shall impose a fine, not ex-
Fines to be im-
posed on jurors
ceeding twenty dollars, for each day that any person duly summoned as a juror shall, without reasonable.”* *
2
3 cause neglect to attend ; but if it appear by such return, that any person was notified by leaving a written
4
notice at his place of residence, the court shall suspend the imposition of such fine until the defaulting juror
5 shall be notified to appear and show cause why the same should not be imposed,
1 Sec. 28. The following persons shall be exempt from serving as jurors, to wit: the governor, lieutenant
159
Caar. 108.] ( 634 ) [TITLE 22.
What persons
exempted from
serving as ju-
IOf U.
When court
shall excuso
person for ser-.
ving as a juror.
Ballot containing
name of person
excused how
disposed of.
2 governor, secretary, treasurer and auditor general of the state, the justices of the supreme court, chancel.
3 lor, all judges of courts of record, acting commissioner of internal improvement, commisioner of the land
4 office, superintendent of public instruction, clerks of cours registers in chancery, registers of deeds, sher-
5 iffs and º deputies, coroners, constables, criers of courts, all officers of the United States, attorneys and
6 counsellors at law, and solicitors and counsellors in chancery, officers of the university, officer of colleges,
7 settled ministers of the gospel, preceptors and teachers of incorporated academies,all superintendants, engi,
8 neers and collectors of any canal or rail road authorized by the laws of this state, any portion of which shall
0 be actually constructed and used, constant ferrymen, all members of any company of firemen organized ac-
10 cording to law, all persons more than sixty years of age, and all other persons exempted by any law of this
11 state from serving on juries.
1 SEC, 29. The court to which any person shall be returned as a juror, shall excuse such juror from serving
2 at such court, whenever it shall appear,
3 1. That he is exempt from serving onjuries by the provisions of the preceding section; or,
4 2. That he is a practicing physician or surgeon, and has patients requiring his attention ; or
5 3. That he is a justice of the peace, or executes any other civil office, the duties of which are, at the time,
6 inconsistent with his attendance as a juror; or
7 4. That he is a teacher in any school, actually employed and serving as such ; or
s 5. When for any other reason, the interests of the public, or of the individual juror, will be materially in-
9 jured by such attendance, or his own health, or that of any member of his family requires his absence from
sº
10 such court.
1 Sec. 30. When any person shall be so excused from serving, on the ground that he is exempt by law
2 ſtom serving on juries, the clerk shall destroy the ballot containing the name of such person; and when any
3 person shall be so excused from serving for any other cause, the ballot containing his name shall be return-
4 ed to the box from which it was drawn.
1 Sec. 31. After the adjournment of any court at which any jurors shall have been returned, as herein pro-
Char. 103.] ( 635 ) [Title 22.
2
i
2.
vided, the clerk shall enclose the ballots containing the names of those who attended and served as jurors,
in an envelope under seal,or deposit the same in a separate box; and the ballots containing the names of those º of
- ~ allot after ad-
jourument of
COUlrt.
who did not appear and serve as jurors, which shall not have been destroyed, shall be returned to the box
from which they were taken.
Sec. 32. If at the time of drawing any jury by the clerk, as herein provided, there shall not be a sufficient º
ciency of names
in box at draw-.
number of ballots remaining in the boxes in which they were originally deposited, after drawing all that "º
may be therein, the clerk shall return to such boxes the ballots containing the names of those who have pre-
viously attended and served as jurors during the same year, and shall then draw from such boxes the num-
ber of jurors required, in the same manner and with the like effect, as if such jurors had not been previous.
ly drawn.
SEc. 33. Whenever in the opinion of the presiding judge of any circuit or district court, more than twen-
- - When order" for
additional num-
ber of petit ju-
ty-four petit jurors shall be necessary to attend any such circuit or district court, he may, by an order un- ºny be
der his hand, direct such additional number of jurors as he shall deem necessary, not exceeding twenty-four,
to be drawn.
O ruler to be filed
with clerk, and
additional num-
k bcr drawn,
SEC. 34. Such order shall be served on, and filed with the clerk of the county in which such court is to be
held, at least twenty days previous to the day appointed for the commencement thereof; and the said cler
shall thereupon draw the number specified in such order, in addition to the number otherwise required by
law, and shall proceed therein in all respects, in the same manner herein prescribed.
SEC. 35. Whenever, for any cause grand or petit jurors shall not have been drawn and summoned to at-
When court
IIlay order party
tend any circuit or district court, or a sufficient number of qualified jurors shall fail to appear, such court.”"
forthwitn. &c.
-*
3 may, in its discretion, order a sufficient number of grand or petit jurors, or both, to be forthwith drawn and
4 summoned to attend such court; or such court may, by an order to be entered in the minutes of such court,
5
6
direct the sheriff of the county forthwith to summon so many good and lawful men of his county to serve as
such jurors, as the case may require.
Cwar. 10s.] - ( 836 ) ** [Triº 2.
1 Src. 36. The sheriff, on receiving a list of jurors drawn pursuant to the preceding section, or a copy of
Duty of sheriff - -
on receiving list,
or copy ot order.
2.
the order therein mentioned, shall proceed as soon as practicable, to summon such jurors in the manner
3 aforesaid, forthwith to attend such court; and shall in like manner return the names of those summoned by
* him to the court, specifying in such return the manner in which each person was notified.
I Sec. 37. When there shall not be jurors enough present to form a pannel in any cause, the circuit or dis-
2
Talcsmen, when
trict court may direct the sheriff or other pro * sº •
to be ordcred and y other proper officer, to summon a sufficient number of persons having
summon cd.
3 the qualifications of jurors, to complete the Pannel, from among the by-standers, or from among the neigh-
* boring citizens, and the sheriff shall summon the number so ordered accordingly, and return their names to
5 the court.
.. 1 Sec. 38. Every person summoned pursuant to the provisions of the three last sections, shall attend forth-
II) º
. ". .*
tend subject to ‘. s' e - -
fine. 2 with, and serve as a juror, unless excused by the court; and for every neglect or refusal so to attend, shall
be subject to fine, in the same manner as jurors regularly drawn and summoned, as hereinbefore provided.
4
Special Juries.
I Sec. 39. When it shall appear to the supreme court, that a fair and impartial trial will be more likely to
When ºr. - *
court may order º º e • * º * - tº” ºr º
special jury. 2 be obtained in any cause pending therein, by having a struck jury, such court shalſ order a special jury to
3 be struck for the trial of such cause.
Notice of Stri 1 Src. 40. The party obtaining such order, shall give notice, eight days previously, of the time when he
N Otice of 8tri- tº - -
king jury.
2 will attend before the clerk of the county in which the venue in such action is laid, for the purpose of hav.
3 ing such jury struck.
1 SEC, 41. At the time appointed, the clerk of the county shall attend at his office, with the original lists of
--tº-
Special jury
how struck, &c.
2
grand and petit jurors returned to him by the officers of the several townships and wards, who are then lia-
3 bla to serve, and in the presence of the parties or their counsel, shall proceed to strike a jury as follows:
4 1. The clerk shall select ſrom such lists the names of ſorty-eight persons, whom he shall deem most indiſ.
5 ferent between the parties, and best qualified to try the cause:
Cuar. 103.1 ( 637 ) * [Tirin º.
6 2. The party on whose application such struck jury was ordered, or his attorney, shall then first strike out
&
7 one of said names, and the opposite party or his agent or attorney, shall strike out another of such names,
8 and so alternately until each party shall have stricken out twelve names :
9 3. If either party shall ſail to attend at the time and place of striking such persons, or shall neglect to
/
10 strike out any names according to the foregoing provisions, the clerk shall strike out such names for such
11 party :
12 4. The clerk shall therenpon make out a list of the names of the twenty-four persons not stricken out, and
13 certiſy the same to be the persons drawn to serve as jurors, pursuant to the order of the court, and shall de-
14 liver such list so certified, to the sheriff of the county,
1 SEC. 42. The sheriff shall summon the persons whose names are contained on the list so delivered to him
Sheriff to stim.
mon jury.
2 by the clerk, in the same manner as other jurors are required to be summoned, and shall return the names
3 of those summoned to the court, at which they are required to appear as jurors.
1 Sec. 43. A jury shall be ſormed in the manner directed by law in respect to other juries, from the persons
Jury to be form-
from persons
*2 ed • * ~~~ *; * - . - º ...-- © summoned and
so summoned and appearing, who shall try the cause in which such struck jury shall have been ordered; attending.
3 but the court shall have the same power to excuse or discharge any such juror, as in other cases.
1 Sec. 44. If it shall appear to the court to which any application for a struck jury shall be made, that the proceeding, is
case clerk is in .
terested.
2 clerk of the county is interested in the cause, or related to either of the parties, or not indifferent between
3 them, such court shall appoint two proper persons to strike such jury; and the persons so appointed shall
4 have the same powers herein conferred upon the clerk,in relation to the striking, certifying and delivering
5 to the sheriff the names of the persons struck as jurors, and the sheriff shall in like manner summon the
6 porsons so selected.
1 Sec. 45. The expense of striking a jury shall be paid by the party applying for the same, and shall not be Espers, or tº:
king jury by
whom paid, &c.
a taxed in the costs of the suit, and the struckjurors shall be paid as in other cases.
160
Char. 103.]
( 638 ) [TITLE 22.
Trials of fact to
be had by jurors
summoned. &c.
as herein direct-
*
Clerk being in-
teresled. &c.
not a cutuse of
challenge.
When intercst
of sheriff not a
cause of chal-
lengo.
Liability to pay
taxes in Ot a CullSO
of challenge.
On return of
jurors, clerk to .
Write names, &c. .
Of Trial and its Incidents.
1 Sec. 46. Trials of fact, by jury, in every court of record of common law jurisdiction, shall be had by ju-
2 rors drawn or ordered, summoned and returned, in the manner herein beſore directed ; and no alien shall
3 be entitled to a jury of part aliens or strangers, in any case whatever,
1 SEc. 47. It shall not be a cause of challenge to any pannel or array of jurers, in any cause that the clerk
2 of the county who drew them, was a party or interested in such cause, or was counsel or attorney for, or
3 related to either party therein,
1 SEc. 48. It shall not be a good cause of challenge to the pannel or array of jurors in any cause, if such ju-
2 rors shall have been drawn, in the manner herein before provided, that they were summoned by the sheriff
3 who was a party, or interested, in such cause, or related to either party therein, unless it be alleged in such
4 challenge, and be satisfactor:ly shown, that some of the jurors drawn by the clerk were not summoned, and
5 that such omission was intentional.
1 SEc. 49. In penal actions, for the recovery of any sum, it shall not be a good cause of challenge to the ju-
2 rors summoned, or to any officer summoning them, that such juror or officer is liable to pay taxes in any
3 county, city, village, township or district, which may be benefitted by such recovery.
1 Sec. 50. On the return of every list of petit jurors summoned by the sheriff to attend any court, at
2 which issues of fact arc to be tied the clerk of º court shall cause the names of the several persons so
3 returnct, and who shall not be discharged or excused by the court, to be written on several and distinct
4 piccos of paper : and shall roll or ſold such pieces of paper, each in the same manner, as near as may be,
5 and so as to resemble each other as much as possible, and so. that the name written thereon shall be con-
6. cealed.
1 SEc. 51. The said pieces of paper shall be deposited in a sufficient box, from which they shall be drawn,
pieces 6f paper
containinghamcº
to bo deposited
lp box.
2. as hereinafter provided.
CHAP 103.] ( 639 ) [TITLE 22.
2
5
2
openly draw out of the box in which they were deposited, so many of the ballots containing the names of
Sec. 52. When an issue shall be brought on ſor trial, the clerk of the court, under its direction, shall
Jury for trial of.
issue how *
drawn,
the petit jurors returned, one after another, as shall be sufficient to form a jury,
Sec. 53. The twelve first persons who shall appear as their names are drawn and called, and shall be ap-ºn,
C3 U1862,
proved as indifferent between the parties, shall be sworn, and shall be the jury to try.the CauSe..
}
Sec. 54. The ballots containing the names of the jurors so sworn, shall then be deposited in another box,
- . - Namcs of jurors
sworn how dis-
posed of.
and there kept apart ſrom the ballots containing the names of the other jurors until such jury be discharged.
SEc. 55. After such jury shall have been discharged, the ballots containing their aames shall be again roll-
g 4. When names of
jurors sworn to
t e e & e lie returned to
ed or ſolded up, in the same manner as herein before directed, and shall be returned to the box from which tºº, wll sh
drawn,
they were first taken ; and the same course shall be pursued, as often as any issue shall be brought on to
be tried.
SEc. 56. If any issue shall be brought on to be tried, while there shall be a jury empanneled in another cause
Whcra courſ.
* g º * g may or (lcr jury
in the same court, and not then disscharged; the court may order a jury to be drawn in the manner above to º:
front, hox coin-
taining ballo:s
º º tº ... undrawn, &c.
directed, out of the box contáining the ballots then undrawn ; but in all other cases the ballots contain-
ing all the names of jurors returned, and appearing at such court, and not discharged or excused from
serving, shall be placed together in the same box, before any jury shall be drawn therefrom.
Sec. 57. If by reason of there being one or more juries impannelled, or for any other reason, there shall WY hon co-l:t
In:ly tº jūry
to lic stºm ºld.ncil
; : tº gº tº ſº g g jº te froi:1 by 8t.; tıders.
not remain any ballots undrawn, or iſ in consequence of jurors being set aside, no juror can be obtained “”
from the list of those returned by the sherifſ, for the trial of any issue, the court may, as in other cases, or-
der the sheriff, or if he be a party or interested in the cause, some other person to be appointed by tho
court, to summon jurors ſtom the by-standers, or other persons, who shall be returned and sworn as herein
before directed, and shall be a competent jury ſor the trial of such issue, notwithstanding there may be none
of the panel of jurors returned by the sheriff, upon such jury.
CHAP. 103.]
( 640 ) [Title 22.
Rox to he sha-
ken beſore . .
drawing jurors,
&c.
Proceeding if
juror be absent
when called, &c.
Jury may find
speciul verdivi.
Challenges.
Jurors not to bo
question ed ſor
verdict, &c.
Liability of ju-
rors for tuking
giſt, &c., from
any party.
I
Sec. 58. Before any jury shall be drawn, the box containing the ballots of the names of the jurors shall be
2 closed, and shall be well shaken, so as to intermingle such ballots; and the clerk shall draw such ballots with-
3
2
3
3
4
out seeing the names written on them, through a hole in the top or lid of such box, so large only as con-
*
veniently, to admit his hand.
Sec. 59. If any juror be absent at the time his name is drawn, or be set aside or excused from serving on
the trial of any issue, the ballot containing his name shall be rolled up or folded again, in the same manner
as before, and returned to the box containing the undrawn ballots, so soon as the jury shall be sworn to try
such cause.
SEc. 60. No jury shall be compelled in any case, to give a general verdict, so that they find a special
verdict showing the facts respecting which issue is joined, and therein require the judgment of the court up-
on such facts.
SEc. 61. In all civil cases, each party may challenge, peremptorily, two jurors, and in all prosecutions in
the name of the people of this state, the deſendant and the attorney appearing ſor the people, may each
challenge two jurors peremptorily; but in all cases of challenge for cause, such cause shall be immediately
assigned, and the truth thereof shall be determined by the court.
SEC, 62. No juror shall be questioned for any verdict rendered by him, nor shall he be subject to any ac-
tion, civil or criminal, on account of such verdict, except to indictment for corrupt conduct in rendering
such verdict, in the cases prescribed by law.
&
• *
* *
SEc. 63. If atly person drawn or summoned as a juror, shall take any thing to give his verdict, or shall
reeceive any gift or gratuity whatever, from any party to a suit, for the trial of which such person shall be
drawn or summoned, in addition to any criminal punishment to which he may be subject by law, he shall
be liable to the party aggrieved thereby, in ten times the amount or value of the thing which he has taken
5 or received, in addition to the actual damages sustained thereby.
Caar. 103.1 ( 641 ) [TITLE 22.
-
1 sec. 64. Every embraceor who shall procure a person drawn or summoned as a juror, to take gait ºr pro-. * r *
###
Biàgéði.”
2 fits contrary to the provisions of the preceding section, shall be liable in ten times the amount or valus of -
3 the thing so taken in addition to the actual damages sustained thereby.
1 Sec. 65. When a verdict shall have been rendered in any circuit court, in any cause pending in the su-
Clerk of circuit
çogrt to deliver
2 preme court, or sent to the supreme court for trial, the clerk of the circuit court shall deliver to the attorney "“” trial.
3 of the party in whose favor such verdict was réndered, the circuit roll filed in the cause, and a certified copy
4 of the minutes of the trial, and if the plaintiff shall have been non-suited, such roll and minutes shall be de-
5 livered to the defendant’s attorney.
when to he un-
nexed to unin.
utes.
1 Sec. 66. If any papers shall have been filed with the clerk, he shall annex a copy thereof to the minutes ºpy ºf papers
2 if required by the party to whom such minutes are to be delivered.
1 SEc. 67. Any party aggrieved by any opinion, direction or judgment of any circuit court in any civil suit *
Exceptions to
- opinion, &c. of
• e g tº , º e e e * * * * º • . circuit court.
2 or action, may allege exceptions thereto in writing at the time such opinion or direction is given, or such
3 judgment pronounced, or if such exception be to the charge given to the jury, it shall be made before the
4 jury shall have delivered their verdict.
1 SEc. 68. The court may allow such time as shall be deemed reasonable to settle such exceptions, and re-
Court may allow
time to settle ex-
ceptions, &c.
2 duce the same to ſorrm.
1 SEC, 69. If the truth of the case be fairly stated in such exceptions, it shall be the duty of the judges com-
Fºxcepti
- .
2 posing such court, or the presiding judge thereof, if he was present when the exception was taken, to sign Sigt, ed., &c.
3 such statement, and they may be compelled to do so by the court to which any writ of error may by law be
1844. p. 45, $1.
4 brought, upon the judgment rendered in such cause, or which shall have authority to decide on such excep-
5 tions when returned by them.
1 Sec. 70. If a bill of exceptions be signed in a cause, it shall not prevent the argument of a motion to set
161 .
CHAP. 103.
[Title 22.
Exceptions not
to prevent urgu-
mcnt of minolion
to set asidc ver-
dict, &c.
When bill of ex-
ceptions to lic
filcd with clerk
of circuit court.
When bill to bo
delivered to ut-
torney of party
alleging ex-
ceptions, &c.
When judgmcnt
as in case of
non-suit may be
rendered.
Ib.
Eſſect of judg.
incut for neglect
to l; ring cuuse to
trial, &c.
Hſ catise not tried
nt circuit utter
issue, ſitcl 10 he
stated on circuit
Toll, &c.
* aside the verdict in such cause, on the ground that such verdict was against evidence; but such motion
3
I
2
2
•)
**
2
shall be argued, either before or after the decision of the court on the bill of exceptions, as the court shall
direct,
Sec. 71. If such bill of exceptions be taken in any case pending in any circuit court, it shall be filed with
the clerk of such court, who shall return the same, together with the record and other proceedings, in any
cause which shall be removed by writ of error, or otherwise.
SEc. 72. If such bill be taken in any circuit court in a cause pending in the supreme court, it shall be filed
with the clerk of such circuit court, and shall e delivered by such clerk to the attorney of the party al-
leging such exceptions, and shall be returned to the supreme court, at its next term, who shall proceed there-
on, and may grant a new trial in such cause.
SEc. 73. When an issue of ſact shall be joined in any cause, and the plaintiff shall neglect to bring such
2 issue to trial, according to the course and practice of the court, such court, on the application of the defen-
dant, may give the like judgment for the defendant as in cases of non-suit, or may, upon just terms, allow
a ſurther time ſor the trial of such issue.
SEc. 74. If further tºmo ſor the trial of such issue be allowed by the court, and the plaintiſſ shall neglect
to try the same within the time so allowed, the court shall give judgment for the deſchdant, as in cases of
non-suit.
Sec. 75. All judgments given ſor a neglect to bring a cause to trial, shall have the like ſorce and eſſect as
judgments upon non-suits, and no other; and cos;s shall be awarded upon such judgments, in the same cases
as on judgments upon non-suits, and in no other case.
Sec. 76. Iſ a cause be not tried at any circuit court, after issue shall have bech joincid therein, it shall be
a sufficient continuance on the circuit roll, and on the record of judgment, to state the fact that such cause
3 was not tried, and that the process between the parties is continued until the circuit when such issue shall
Char. 104.] ( 643 ) [TITLE 22.
4 be tried, or until the term when some judgment of the court shall be given, or some order made concerning
5 such suit.
1 Sec. 77. When any court of record in which an issue of ſact is tried by a jury, shall deem it necessary that
View of promi-
e o gº ºn e * & . . scs, &c. by jury.
2 the jury view the place or premises in question, or any property or thing relating to the issue between the
3 parties, such court may, on the application of either party, and the advancement of a sufficient sum to pay
4 the expenses of the jury and officers attending them, in taking such view, order such view to be had, and
3 direct the manner of effecting the same.
1 Sec. 78. The expenses advanced by any party pursuant to the provisions of the preceding section, shall Estºne, e.
view when to bo
taxed as costs.
2 be taxed like other disbursements in the suit, if the party advancing them shall prevail therein, and be en-
3 titled to costs.
CHAPTER 104.
OF AMENDING PLEADINGS AND PR CCEEDINGS.
1 Secrlos I. The court in which any action shall be pending,shall have power to amend any process,
- - Court may n-
º pleadings,
2 pleading or proceeding in such action, either in ſorm or substance, for the ſurtherance of justice, on iº.
e
3 such terms as shall be just, at any time before judgment rendercd therein.
1 SEC. 2. If such amendment be made to cvery pleading in matter of substance, the adverse party
When opposito
Iy: rſy lil:ly tºlls-
wer in incr:ded
shall be allowed an opportunity, according to the course and practice of the court, to answer the icº.
2
pleading so amended.
3
- e. - - * * * * * r * * ~4 © Q = • ſº. 4.- :- te $. fº, as ſº
1 Sec. 3. After judgment rendered in any cause, any defects or imperſections, in matter of form, pººl.
ter of form 'm y
i.c atmenticit i. (...
judgiuchi,6&c.
2
& * * • * ~ ; ; fl. t 3:
contained in the record, pleadings, process, entries, returns, or other procceedings, maybe rectifical
- g e - • o * ! - :^es.
3 and amended by the court; in affirmance of the judgment, so that such judgment shall not be re
4 versed or annulled; and any variation in the record, from any process, pleading, or proceeding
‘CHAP. 104.] ( 644 ) [Title 23.
Amendment of
returns made by
sheriffs, &c.
When judgment
not to be stayed
or affected by
reason of cer-
tain defects, &c.
19 could have been maintained :
5 had in such cause, shall be reformed and amended according to such original process, pleading or
6 proceeding.
I Sec. 4. All returns made by any sheriff or other officer, or by any court or subordinate tribunal, to
2 any court, may be amended, in matter of form by the court to which such returns shall be made,
3 in their discretion, as well before as after judgment.
1 SEc. 5. When a verdict shall have been rendered in any cause, the judgment thercon shall not be
2 stayed, nor shall any judgment upon confession, default, nihil dicit, or non sum informatus, be re-
8 versed, impaired, or in any way effected, by reason of the following imperfections, omissions, de-
4 fects, matters or things, or any of them, in the pleadings, process, record, or proceedings, namely:
5 1. Foray default or defect in process; or ſor misconceiving any process, or awarding the
6 same to a wrong officer; or for the want of any suggestions for awarding process, or for any in-
7 sufficient suggestion :
8 2. For any imperfect or insufficient return of any sheriff or other officer, or that the name of such
9 officer is not set to any return actually made by him :
10 3. For any variance between the original writ, bill, plaint and declaration, or between either of
11 them :
12 4. For any mispleading, mºnume or discontinuance, insufficient pleading, or misjoining of
13 issue :
14 5. For the want of any warrant of attorney by either party, except in cases of judgment by con-
15 fession, where such warrant is expressly required by law;
16 6. For any party under twenty-one years of age, having appeared by attorney, if the verdict or
17 judgment be for him :
18 7. For the want of any allegation or averment, on account of which omission a special demurrer
Char. 104] ( 645 ) - [TITLE 22.
o . 8. For omitting any allegation or averment of any matter, without proving which the jury ought
21 not to have given such verdict:
22 9. For any mistake in the name of any party or person, or in any sum of money; or in the des-
23 cription of any property; or in reciting or stating any day, month or year, when the correct name.
24 time, sum or description shall have been once rightly alledged, in any of the pleadings or proceed-
26 10. For a mistake in the name of any juror or officer:
27 11. For the want of a right venue, if the cause was tried by a jury of the proper county . . .
28 12. For any informality in entering a judgment, or making up the record thereof; or in any con-
20 tinuance or other entry upon such record :
30 13. For any other default or negligence of any clerk or officer of the court, or of the parties, or
31 their counsellors or attorneys, by which neither party shall have been prejudiced.
l Sec. 6. The omissions, imperfections, variances and defects in the preceding sections of this
2 chapter enumerated, and all others of the like nature, not being against the right and justice of the
3 matter of the suit, am not altering the issue between the parties, or the trial, shall be supplied and
4 amended by the court where the judgment shall be given, or by the court into which such judg-
5 ment shall be removed by writ of error.
1 Sec. 7. No process, pleading or record, shall be amended or impaired by the clerk or other offi-
2 cer of any court, or by any other person, without the order of such court, or of some other court”
3 of competent jurisdiction.
1 SEc. 8. The provisions of this chapter shall cxtend to all actions in courts of law, and to all suits
2 for the recovery of any debt due to the people of this state, or for any debt, duty or revenue be-
3 longing to them ; and to all actions for penalties and forfeitures; to all writs of mandamus and pro-
4 hibition; to all informations in the nature of a quo warranto; to writs of scire facias; and to the
5 proceedings thereon. -
. . . . +. 162
Omissions &c.
before enumera-
ted, to be sup-
plied and amend
ed by court,
. Process, ºc. not
to be ancinded
without order of
Provisions of
this chapter, to
what actions and
writs to extend.
Char. 105.1 - ( 646 ) - [TITLE 22.
Assessment of
damnges by
clerk.
Contracts upon
which clerk muy
tºlſ SC3,
When eopy noto
&c. is filed and
served.
Notice of assess-
D]eills
Evidenoc to be
produced,
CHAPTER 105, - *
of THE Assessy ENT of DAMAGES,
1 SECTION 1. In every suit brought in a court of record, wherein any written obligation or contract
2 specified in the next section, shall be set forth in the declaration as the cause of action, if interlo-
3 cutory judgment be rendered for the plaintiff by default, or upon demurrer, or upon confession, the
4 court shall direct the clerk thereof to examine, ascertain and report, what sum the plaintiff ought
5 to recover for his damages.
1 SEC. 2. The obligations or contracts upon which such assessment may be made, must be in wri-
2 ting, and must be, either
3 1. A bill of exchange, promisory note, order or draſt for the payment of money; or, j
4 2. Some contract for the absolute payment of money only; or,
5 3. Soma contract for the payment of a sum certain, though payable in specific articles; or,
6, 4. Some contract for the delivery of specific articles, at a value or price stipulated in the same
7 contract,
1 Sec. 3. In all actions in promissory notes or bills of exchange, where the plaintiff shall file and serve
2 with his declaration, a copy of such promissory note or bill of exchange, the damages may be as-
3 sessed as though such note or bill had been set out specially in said declaration.
1 Sec. 4. If the defendant shall have appeared in the cause by attorney, or shall have given notice
2 of his intention to appear and defend the action, the like notice of assessment of damages by the
3 clerk shall be given, as is required of the trial of a cause; but in all other cases, no notice shall be
4 necessary, and the clerk shall proceed therein in the entry of the rule requiring such assessment.
F Sec. 5. In assessing such damages, the production to the clerk of the bill of exchange, promissory
2 note or contract, specially set forth in the declaration, or a copy of which bill of exchange or pro-
cº, º - - ( 647 ) [TITLE 22.
.3 minery note has been filed and served with the declaration, shall be sufficiefitevidence of the execu- -
• tion of the same, without any other proof; and such assessment shall be made notwithstanding
5 there may be general or other counts in the declaration, besides those in which the note, bill or
6 contract shall be specially set forth.
1 Sec. 6. Any clerk authorized by the provisions of this chapter to assess damages, may administer Alºy of
2 oaths to witnesses, and take their testimony, whenever it may be nccessary ; and if the instrument
3 declared on be lost, the clerk may take proof thereof, and of the contents of such instrument, which
4 proof shall be stated in his report; and whenever required by either party, he shall reduce to wri-
5 ting the testimony taken by him, and include the same in his report.
1 Sec. 7. The clerk shall report to the court the sum ascertained by him to be due to the plaintiff, i.
port and cer-
tificate of clerk,
2 and shall certify under his hand, upon such original bill, note or contract, the amount of damages
3 assessed thereon, or shall annex a certificate thereof to such bill, note or contract.
1 Sec. 8. Either party may except to such report, and on such exceptions being made and filed, the Exceptions to
report; judg-
º t e II, CIII.
2 court shall hear and examine the matter, and cause justice to be done between the parties; and
3 shall give judgment for the sum reported, or for such sum as the court, upon hearing the exceptions,
4 if any, shall have ascertained to be due to the plaintiff.
1 SEC. 9. The judgment so rendered shall be entered on the record, without stating any reference
- .# of judg-
eily.
2 to the clerk, or any proceedings in consequence thereof, and the damages shall be stated as having
3 been assessed by the court.
I Sec. 10. The clerk of the county in which the venue shall be laid in causes pending in the su-
Assessment by
county clerks,
2 preme court, shall have the same authority to assess the damages, as any clerk of such court, and
3 shall in all respects proceed therein in the like manner.
1 Sec-11. If a bond taken on the arrest of a defendant, in any action in which an assessment might
Chap. 105.] ( 648 )
[Title 22.
Damagcs in suſts
on bal bonds.
Proceedings to
*SSČSS.
Writs of inquiry
in suits on buil
bonds.
Dcclaration in
original suit to
betorc assess-
lucill.
Amount to be
cindorsed ant!
collected on ex-
ceutiun.
Writ of iuquiry.
2 be made by the clerk, shall have been prosecuted by the plaintiff in such action, and judgment ren-
3
4
dered thereon, the court shall in like manner direct the clerk to examine, ascertain and report what
sum the plaintiff ought to recover for the damages upon his original cause of action.
- ê
Sec. 12. The same proceedings in all respects shall be had in ascertaining such damages as are
herein provided, in case interlocutory judgment had been rendered in such original action.
Sec. 18. When a bond taken on the arrest of a defendant, in other causes than those provided for
in the two last sections, shall have been assigned to the plaintiff, and judgment shall be rendered
thereon in his favor, a writ of inquiry shall issue in the original action, in the same manner as
if the defendant had appeared therein, and interlocutory judgment had been obtained against him.
Sec. 14. In all cases in which a judgment shall be rendered for the plaintiff on a bond taken upon
the arrest of a defendant, no damages shall be assessed until a declaration in the original action
shall have been filed.
Sec. 15. The damages so assessed, either by the clerk, or upon a writ of inquiry, with the interest,
2 the costs in the original suit, and in the suit on such bond, shall be endorsed upon the cxecution
1
s
issued won such judgment, as the amount to be collected, with sheriff’s ſecs, and no more shall i.
collected on such execution.
SEC. 16. In all other suits wherein by the preceding provisions, the clerk is not alloºd to as-
scss the damages, f interlocutory judgment bo ºrd for the plaintiff by default, or upon demur-
or, or upon conſession, the court may award a writ of inquiry of damages, to be directed to the
sheriff of the county in which the venue is laid, directing him to inquire by the oath of twelve good
and lawful men of his county, what damages tº ºr hath sustained by reason of the matters
set forth in the plaintiff’s declaration, and return the inquisition into court on a day to be named in
such writ.
Char, 105.] ( .. 649 } ITITLE22.
1 SEc. 17. If the defendant shall have appeared in the cause by attorney, or shall have given notice
Notice of execu-
ting writ.
2 of his intention to appear and defend the action, the like notice of executing the writ shall be given
3
as is required of the trial of a cause; but in all other cases, no notice shall be necessary,
f
I SEc. 18. The sheriff to whom any writ of inquiry shallbe directed and delivered pursuant to the Duties of sheriff
thereon.
2
provisions of this chapter shall, on or before the return day thereof, proceed to execute the same
3 pursuant to the command therein contained, and shall make a return of the inquisition made in pur-
4 suance thereof, under his hand and the hands of those by whom the same shall have been made.
1 SEc. 19. On the return of such writ, with the inquisition made in pursuance thereof annexed, judg- jºº
2
ment shall be entered for the plaintiff for the damages which shall be so ascertained, unless the
* *3
court for sufficient cause shown shall otherwise order.
I
SEC. 30. Whenever a writ of inquiry may be issued to assess damages, pursuant to the provisions
Assessment of
damages at the
of this chapter, instead of issuing such writ, the plaintiff may make up a circuit roll of the pleadings"
2
and proceedings with an entry of an order therein, that such damages be assessed at the next cir-
3
4 cuit court to be held in the county in which the venire is laid; and such court shall proceed there-
* 5 on pursuant to such order, in the same manner as in other cases sent to that court to be tried, and
6
shall in like manner return the verdict of the jury thereupon.
(163
car. 106. ( 650 ) .* [Titus 23.
After verdict,
plaintiff not to
be non-suited.
Sitting aside.
judgments on ,
motion,
Real cstate
wheu bound by
judgments.
Lien to eease
after;five years.
When certain
time to be de-
ducted.
CHAPTIR 106. --sº
of JudgMENTS AND Executions.
of Judgments.
1 SECTION 1. When a verdict shall have been rendered in any action, the plaintiff shall not thereafter be
^
2 non-suited, but judgment shall be rendered upon the matter found by such verdict.
° N -
1 SEC. 2. No judgment in any court of record, shall be set aside for irregularity on motion, unless such mor
2 tion be made within one year after the time such judgment was rendered.
1 SEC. 3. All judgments hereafter rendered in any court of record, shall bind and be a charge upon the lands,
2 tenements, real estate, and catch real of every person against whom such judgment shall be renderº,
3 which such person may have at the time of filing a transcript of the docket of such judgment with the reg
4 ister of deeds of any county in this state, as hereinaſter provided, or which such person shall asure at any
5 time thereaſter, within any such county,
1 Sec. 4. From and after five years from the time of docketing every such judgment, it shall cease to bind
2 or be a charge upon any such property, as against purchasers in good faith, and as against incumbrances
3 subsequent to such judgment, by mortgage, judgment, decree or otherwise,
1 Sec. 5. The time during which the party recovering such judgment shall be restrained from proceeding
2 thereon by any injunction, or by the operation of any writ of error, shall not constitute any part of the five
3 years in the last section specified, if the party entitled to such deduction shall, within five years ſrom the
* ſ?
4 docketing of such judgment, file with the register of deeds with whom a transcript of the docket of such judg-
5 ment shall have been filed and entered, a notice specifying the injunction or writ of error by which proceed-
6 ings on such judgment shall have been restrained, and the time of service thereof, and if such restraint shall
7 have ceased, the duration thereof. .
1 SEc. 6, Each register of deeds with whom such notice shall be filed, shall enter in the margin of the trans-
*
Čuar 106.] * ( 651 ) * * [Trris 22.
2 cript of the docket of such judgment entered by him in his office, a minute stating that an injunction or writ #º
docket.
3 of error, as the case may be, has been issued, relating to such judgment.
*
1 Sec. 7. The day and year of signing any record of judgment, shall be stated in the margin thereof, by the . signing
2 judge or other officer signing the same, * - * --
.*
1 SEc. 8, Judgments may be entered in the supreme court, or in any circuit court, in vacation as well as in
Judgment by
confession.
2 term, upon a plea of confession, signed by an attorney of such court, although there be no suit then pending
gº
3 between the parties, if the ſollowing provisions be complied with, and not otherwise :
4 1. The authority for conſessing such judgment, shall be in some proper instrumeut, distinct from that con-
5 taining the bond, contract or other evidence of the demand for which such judgment was conſessed:
6 2. Such authority shall be produced to the officer signing such judgmént, and shall be filed with the clerk
7 of the court in which the judgment shall be entered, at the time of the filing and docketing of such judg-
.8 ment.
- - * tº . Clerk to mark
I SEc. 9. The clerk of every court of record, shall mark upon the back of every record of judgment filed in iné º,”
*- - record of judg-
Inênt.
Asºº
2 his office, the time of filing the same ; and no judgment shall be deemed valid, so as to authorize any pro-
3
ceedings thereon, until the record thereof shall be signed and filed.
*
1 SEC, 10. No judgment shall affect any lands, tenements, real estate or chattels real, until the record there-
**
* * | •o: i is * e * te & Judgments not
2 of be filed and docketed as herein directed, nor shall it have any preference, as against other judgment cre-º"...'...u.
docketed &c.
3
ditors, Purchasers or mortgagees, until a transcript of such docket be filed and entered in the office of the
4 register of deeds of the county where such lands, tenements, real estate or chattels real are situated, as,
5 herein provided.
1 SEC. 11. At the time of filing a record of judgment, the clerk shall enter in an alphabetical docket, in
Docket how en-
- tered.
2 books to be provided and kept for that purpose, a statement of such judgment, containing, . gº
3 1. The names at length of all the parties to such judgment, designating particularly those against whom
4
it is rendered :
• * *
- s
* . .
• *
ºw
5 2. The amºunt ºf the deº, damages, or ºther sum ºf mºney resºyers; with ſhe cºsts;
6 8. The hour and day of entering such docket: . . - . . . . .
7 4. If such judgment be rendered against several persons, such statement shall be repeated under the name
8 of each person against whom the judgment was recovered, in the -alphabetical order of their names respec-
Transcripts of
dock cl be deliv-
ered. . • *
Register of deeds
to file and enter
transcript.
*
9 tively.
1 SEC. 12. At any time within five years after any judgment shall have been docketed as herein before pro-
3. vided, the clerk shall, upon request, and payment of the fees allowed by law, deliver to the party in whose
8 favor the same shall have been rendered, so many certified transcripts of such docket as may be required
1 SEC. 13. It shall be the duty of the register of,deeds,of each cognty to whom any such certified trans-
2. cript'shall be delivered for that purpose, to file the same in his office, and to transcribe the same in an al-
*
3 phabetical dogkat book to be kept by him, in the same-manner as such, docket is required to be made by the
*.*
Liability of clerk
for mègiectºº.
Cancelling dock-
4 clerk of the court in which the judgment shall have been rendered,
‘i Sec. 14. Every clerk who shall neglect to docket any judgment assoon as practicable affer the filing of
2 the record thereof, or who shall refuse to deliver certified transcripts of such docket on request and payment
3 of the fees therefor; and every register of deeds who shall neglect, to file and transcribe the same assoon as
4 practicable aſter such transcript shall have been delivered to him for that purpose, shall be liable to the par.
15 ty aggrieved in the sum of two hundred and fifty dollars damages, in addition to all damages which such
*
6 party may prove he has sustained by such omission or neglect.
1 SEc. 15. The docket of a judgment rendered in any court of record, may be cancelled and discharged by
2 the clerk thereof, upon filing with him an acknowledgement of satisfaction, signed by the party in whose
8 favor such judgment was obtained, or by his executors or administrators, which acknowledgement may be
.4, taken, and ertified Joy, any officer authorized by the laws of this state to take the acknowledgement of deeds,
5 whether in or out of the state,
i SEc. 16. Such acknowledgement may also be made by the attorney on record, of the party in whose fayor

& the samá was fenlared, within two years after the fiting of the record of such judgment, in the same mah.
- When incknow.
ledgincint may bo
. - , , tº * tº ic. ... ...ºts 2-usic.cº. -tail ºn to ~~~Anºise "" “”
3 ner, and with the like effect as if mix by the party himself; but súč satisfactići shall not be cofºcłsive ". y
§ against the party in whose ſavor the judgment was rendered, in respect to any person to whom actual notice
º: - -: - . * . . . . . . . !
6 of the revocation of the authority of such attorney shall have been given, before payment of such judgment.
*
7 or before any purchase of property bound by such judgment.
* * * • * . . . . . . . . . . º tº .Acknowledg-
4 SE& 17. When payment of the judgment is inade; satisfaction thereof shall be acknowledged by the attor- ºn pay-
tº
-2 ney or party receiving the amount'ºhereof.
1. Sec. 18. When an execution isssued upon any judgment shall be returned satisfied, in whole or in part,
Return of cxe-
cution sutisfied,
* 2 * * * * d * * * : *** - r -> w-...-- " ---> --nº- &c.
2 such judgment shall be deemed satisfied to the extent of the amount so returned as having been collécted on
3 such execution, unless such return be vacated by the court; and upon any execution being so returned, the
4 clerk shall enter in the docket of such judgment, the fact that the amount stated in such return has been col-
5 lected.
t Sec. 19. Upon any judgment in the supreme court, or any circuit court, being discharged or satisfied, the psalargest
judgments, to
iščrtified:
2 clerk of such court shall, on request and payment of his ſees, deliver to any party thereto; his agent or at-
3 torney, so many certificates thereof as may be necessary; and upon filing any such certificate in the office
4 of any register of deeds where a transcript of the docket of the judgment has been filed and entered, such
5 register shall make a minute in the entry of such transcript, of such satisfaction or discharge.
1 SEC. 20. When a judgment shall be rendered in any action ſounded upon a judgment rendered in the same §º
* former judg-
- : * Iſlent.
2 or any other court, whether of record or not, such subsequent judgment shall operate as an extinguishment
3 of the former judgment upon which such action was ſounded.
Of Ea:ecutions,
1 Sec. 21. Whenever judgment shall be rendered in any court of record, for any debt, damages, sum of
When execſ.
tions may §fº
sued.
2
money or costs, the party in whose favor judgment was rendered, upon the filing of the record thereof, and
164
CHAr. 106. ( 654 ) [Tirle 22.
3 within two years thereafter, may have execution to the sheriff or other proper officer of any county in this
4 state, to collect the amount of such judgment. * * - * g.
1 Sec. 22. Successive executions may be issued, one after the other, upon the return of any former execu-
Successive exe-
cutions, when
In ºl bo issued. we ſº *. g tº tº e • * - * -
y 2 tion unsatisfied, in whole or in part, for the amount remaining unpaid upon any judgment, except as herein
3 otherwise provided; but no second or subsequent execution shall issue, except within two years after the re-
4 turn day of the preceding execution, unless the court or some judge or justice thereof, or supreme court
*.
1841, p. 134, §2. e g tº a 9 - . . . - gº
" "" 5 commissioner, in vacation, upon a special application for that purpose, and due notice to the opposite par-
6
ty, shall make an order, granting leave to issue the same. *
Kinds of execu- 1 SEc. 23. Such execution may be either,
tions .
8 1. Against the goods and chattels, lands and tenements of the party against whom such judgment was re-
4 covered : or,
5 2. Against the body of such party, in the cases authorized by law. -
1 Sec. 24. But such execution shall not issue against the body, nor against the goods and chattels, lands and
Exception of ex-
ecutors, &c. , *. - j gº tº * e e * & e. {
2 tenements, of any executor, administrator, heir, devisee or legatee, unless in those cases specially provided
2 by law,
1 Sec. 25. In those cases in which bail shall have been taken on the arrest of a defendant, and the bail bond
Fºxecutions 2 shall have been assigned to the plaintiff; and in those cases in which special bail shall have been ſiled; no
where louil has -
been given, &c.
2 execution shall issue against the body of the defendant in such action, until an execution against the goods
/
* 3 and chattels, lands and tenements of such deſendant, shall have issued to the sheriff or other proper officer
4 of the county in which such defendant was arrested, and shall havo been returned unsatisfied, in whole or
5 in part.
1 SEc. 26. But if the defendant be imprisoned on execution in another cause, or upon process in the same
Ixceutjong -
where defendan tº ſº ſº * † e e • gº
juprisoned, 2 action, or upon the surrender of such defendant in exoneration of his bail in such action, or if an execution
&C. * T ~ * - * : * ~ * -
- 3 shall have been returned unsatisfied in the cases mentioned in the last section, an execution may in cither
4 case, issue against the body of such defendant.
ear. 106.] - * . ( 655. ) - [Title 22.
1 Sec. 27. Executions, whether against the body, or against the property of any party, may be issued at the
* . .” . . Like executions
l & . . > , - to sheriffs of dif.
2 same time, to sheriffs of different counties, but no execution against the body of any party shall issue, while *
&
3 there is an execution against his property not returned, nor shall an execution against the property of any
4 party be issued, while there is an execution against his body unreturned, unless by order of the court.
*When body ta-
ken in cxecu-
tion,
1 SEC. 28. When the body of a party shall have been taken on an execution issued for that purpose, no oth-
2 er execution can be isssued against him or his property, except in cases specially provided for by law.
Execution after
1 Sec. 29. But if any person who shall have been taken on an execution shall escape, he may be retaken
: cscape.
2 by a new execution against his body, or an execution against his property may be issued, in the same man-
3 ner as if no execution had been previously issued against the body or the property of such person.
1 SEc. 30. When execution shall be issued upon any judgment, it shall b2 lawſul to direct, upon such execu- Collection of in-
terest on judg-
In CInts,
2 tion, the collection of interest on the amount of the judgment, from the time of docketing the same, until
3 such amount shall be paid, and such interest shall be collected accordingly.
Time of receiv-
tng, to be endor-
Bed on execu-
tion.
1 Sec. 31. Upon the receipt of any execution, it shall be the duty of the sheriff or other officer, to endorse
2 thereon the year, month, day, and hour of the day, when he received the same.
\
1 SEC. 32. In all cases where a judgment shall be obtained against the sheriff of any county, either alone or
- Executions on
º s &. - e © , i. ** • & *- * & tº - * ig t tº-
2 with others, instead of directing the execution thereon to the coroner of the county, it may be directed and ...i.
3 delivered to any person, (except a party in interest in the suit,) who shall be designated by the court in term
4 by an order to be entered in the minutes; or by any judge thereof, or supreme court commissioner in
5 vacation, by an order to be endorsed on such execution.
wº
& - * tº º * g º e
1 SEC. 33. The person so designated and receiving such execution, shall, in respect to such execution, be
4. - Authority, &c, of
person receiving
CXCCUltion.
2. deemed a coroner of the county, and shall be liable in all respects to all the provisions of law respecting
# * *
3 sheriffs, so ſar as the same may be applicable.
1 Sec. 34. Whenever an execution shall be issued against the property of any person, his goods and chat-
car. 106.1 & as y Pritte 22.
is bound.
$oºd *
£rgº delivery of
*xecutions:
Priority of exe-
cutions.
*riority of at-
tachments, &c.
Priority of exe-
cutions, &c., is-
sued by justices.
Purchasers tic-
forc levy with-
... out notic.c.
Levy’on current
coin.
Levy on bank
bills, &c.
ar
3 tº, intº within the jurisdiction of the officero whom such executionshan be delivered shall be wº *
: 3 Rºmusum, of is diver, of the same to w executed.
I Sec. 35: Iſ there be several executions: issued out of a court of record; against the same deſendant, that
2 which shall have been first delivered to the officer to be executed, shall have preference, notwithstanding a
3. levy may be first made under another execution, but if s levy and sale of any goods or chattels shall have
4 been made under such other execution, before an actual levy under the execution first delivered, such good.
5 or chattels shall not be levied upon or sold by virtue of such ſirst execution.
i ŠEc. 36. If there be one or more executions; and one or more attachments against the property of the
2 same person, or if there bé several attachments, the same rule prescribed in the last section shall prevailin
3 determining the preference of such execution or attachment.
i SEC. 37. But any execution or attachment issued out of any court, not being a court of record, if actual-
2 ly levied, shall have preſerence over any other execution or attachment issued out of any court, whether of
3 record or not, which shall not have been previously levied.
1 Sec. 38. The title of any purchaser in good faith, of any goods or chattels, acquired prior to the actualle-
2 vy of any execution, without notice of such execution being issued, shall not be divested by the fact that
3 such execution had been delivered to an officer to be executed, before such purchase was made.
I Sec. 39. Current gold or silver coin may be taken in execution, and paid to the creditor as money collée-
2 ted, and shall not be exposed to sale thereon.
1 SEC. 40. Any bills or other evidences of debt, issued by any monied corporation, and circulated as money,
2 maybe taken in execution and paid to the creditor at their par value as money collected, if he will accept
3 them, otherwise they shall be sold as other chattels.
1 Sec. 41. When goods or chattels shall be pledged by way of mortgage or otherwise, for the payment of
Char. 106] ( 657 ) [TITLE 22.
2 money, or the performance of any contract, or agreement, the right and interest in such goods, of the per-
g º: º
© * e e e - e in goods pledg
3 son making such pledge, may be sold on execution against him, and the purchaser shall acquire all the right mayº siliºn
- CXCCUlli O11.
4 and interest of the defendant, and shall be entitled to the possession of such goods and chattels, on comply-
5 ing with the terms and conditions of the pledge.
1 SEc. 42. No sale of any goods or chattels shall be made by virtue of any execution, unless at least ten . .
Notice of sale of
goods and chat-
tels.
2 days previous notice of such sale shall have been given, by fastening up written or printed notices thereof,
3 in three public places in the township where such sale is to be had, and specifying the time and place where
4 the same is intended to be had.
1 SEc. 43. All chattels real or personal, and all other goods liable to execution by the common law, may be "What chattel
t t
º: #: "on
€XCCUltiCIl.
2 taken and sold thereon, except as is otherwise provided by law.
1 Sec. 44. When a levy shall be made upon grain while growing, or any unharvested crops, by virtue of any
2 execution, no sale thereof shall be made, until the same shall be ripe, or fit to be harvested, and any levy Unharvested
- - crops.
3 thereon by virtue of an execution issued by a justice of the peace, shall be continued beyond the return day
4 thereof, if necessary, and remain in life, and the execution thereof may be completed at any time within § }. ...;
y 1, • *w ya e
5 thirty days after such grain or other unharvested crops shall be ripe or fit to be harvested.
1 SEC. 45. The following property, when owned by any person having a family, shall be exempt from levy jº.
empt from sale
on executions.
2 and sale under any execution :
3 1. All spinning wheels, weaving looms and stoves put up or kept for use in any dwelling house :
4 2. The family bible, family pictures, and school books used by or in the family of such person ; and books
5 not exceeding fifty dollars in value, which are kept and used as part of the family library :
6 3. A seat or pew occupied by such perfion or his family in any house or place of public worship :
7 4. All sheep to the number of ten, win their fleeces, and the yarn or cloth manufactured from the Same; 1842, p. 70, 71.
8 two cows, four swine, and the necessary food for them for three months; all necessary pork, beef, flour,
9 vegetables and other provisions and fuel, actually provided for family use, for the use of the family for six
10 months :
165
Carr. 106.1 ( 658 ) [TITLE 22.
11 5. All necessary wearing apparel, beds, bedsteads and ibedding for the use of such person and his family;
12 arms and accoutrements required by law to be kept by such person; necessary cooking utensils and other
13 household furniture not exceeding in value one hundred dollars:
14 6. The tools, implements, stock, team, vehicle, harness or other things necessary to enable such person to
15 carry on the trade or business in which he is wholly or principally engaged, not exceeding in value one
16 hundred and fifty dollars:
17 7. All cemetaries, tombs, and rights of burial, while in use as repositories of the dead.
*…
Necessary 1 SEC, 46. The necessary wearing apparel of all persons shall be exempt from levy and sale under any exe-
wearing apparel
of all persons
exempt. 2 cution. -
~.
1 SEC. 47. When a levy shall be made upon property of any class or species which is exempt by law from
Inventory and
appraisal.
2 execution to a specified amount or value, the officer levying such execution may make an inventory of the
1843, p. 21 3 whole of such property belonging to the person against whom the execution shall be issued, and cause the
4 same to be appraised at its cash value by two disinterested freeholders of the township where the property
5 may be, on oath to be administered by him to such appraisers.
Defendant may 1 SEc. 48. Upon such inventory and appraisal being completed, the defendant in the execution, or his author-
select from in-
ventory foun
exempted. 2 ized agent, may select from such inventory an amount of such property not exceeding, according to such
3 appraisal, the amount or value exempted by law from execution ; but if neither such defendant nor his
1843 p. 21, 22.
4 agent shall appear and make such selection, the officer shall make the same for him.
1 Sec. 49. The appraisers mentioned in the forty-seventh section of this chapter, shall be entitled to fiſty
Fees of apprai-
SOI8. 2 cents each for their services, and six cents per mile for traveling, in going only, for which the plaintiff in
3 the execution shall be liable to them, and the amount of their travel and fees shall be collected upon the
1843, p. 22, $7.
4 execution.
1 Sec. 50. Whenever the defendant in an execution shall have cows, sheep, swine or other articles, some of
Chap. 106.1 ( 659 ) [TITLE 22.
2 which are exempt by law from sale on execution, and some of which are not so exempt, the officer may
| - - -
Selection in,
4. - cases where a
- º e © o & e º certain number
3 take all of such cows, sheep, swine or other articles into his possession, and the defendant or his authorized : animals, &c.
e exempt.
4 agent, may, immediately on being notified of the levy, select so many thereof as are exempt by law from
& e © 1843, p. 21, $6.
5 execution, but if the defendant be absent, or neglect to make such selection on being notified, the officer
6 shall make the same for him.
sales bow to be
1 SEC. 51. No personal property shall be exposed for sale on execution, unless the same be present and with- conducted.
2 in the view of those attending such sale; and it shall be offered for sale in such lots and parcels as shall be
3 calculated to bring the highest price.
Form of execti-
^1, . . ~ * * - . . - a tion for sale of
1 SEC, 52. Executions, to authorize the sale of real estate, shall command the officer to whom they are di-ºº:
2 rected, that of the goods and chattels of the person against whom such execution shall issue, in the county of
3 such officer, he shall cause to be made the debt, damages or other sum of money, and costs, for which the
g
4 judgment was rendered ; and if sufficient goods and chattels cannot be found, that then he cause the amount
5 of such judgment to be made of the real estate of the person against whom such judgment was rendered with-
6 in such county, or which he shall have had within such county at the time when such judgment became a
7 lien thereon, specifying such time, or at any time afterwards, in whose hands soever the same may then be.
- If defendant die
• * & w tº - * * * * * & e * - - & while charged in
1 SEc. 53. If any person taken in execution against his body, shall die while so charged, the judgment upon tº judg:
- * - - - #. gº CCI -
... * t C • *
2 which such execution issued shall not be deemed to be extinguished, but may be certified to the judge of pro-
3 bate, and shall be paid in the course of administration, in like manner as if no execution had issued, on such
4 judgment.
1 SEc. 54. If at the time appointed for the sale of any real or personal property on execution, the officer ºf
sale On CXCCUl-
iiOn.
2 shall deem it expedient, and for the interest of all persons concerned, to postpone the sale, for want of pur-
3 chasers or other sufficient cause, he may postpone the same from time to time until the sale shall be com-
4 pleted; and in eaery such case he shall make public declaration thereof at the time and place previously ap-
- . . . . . . . . - 1841, p., 1834, §1.
5 pointed for the sale, and if such postponement be for a longer time than twenty-four hours, notice thereof
6 shall be given in the same manner as the original notice of such sale is required to be given.
Char. 106. ( 660 ) [Title 22.
1 SEC. 55. When an officer shall have begun to serve an execution, and shall die, or be incapable of comple-
On the death of
officer having
execution, ser- 2
vice may be
completed by
&nother.
ting the service and return thereof, the same may be completed by any other officer who might by law have
3 executed the same if originally delivered to him, and the first officer shall not have made a certificate of his
4 doings, the second officer shall certify whatever he shall find to have been done by the first, and shall add
5 thereto a certificate of his own doings in completing the service.
W.” 1 SEC. 56. When an officer shall have begun to serve an execution issued out of any court of record, on or
COIn mell Ce(1 De- - -
fore return day
may be comple-
ted afterwards, 2 before the return day of such execution, he may complete the service and return thereof after such return
3 day.
I
Interests of SEC. 57. Any share or interest of a stockholder in any bank, insurance company, or any other joint stock
stockholders in
corporation may
be taken in exe- 2
cution. company that is or may be incorporated under the authority of this state, may be taken in execution, and
3 sold in the following manner.
I SEc. 58. The officer shall leave a copy of the execution certified by him, with the clerk, treasurer or cash-
Copy of execu-
tion to be left
with cashier, &c. 2 ier of the company, if there be any such officer, and if not, then with any officer or person who has, at the
3 time, the custody of the books and papers of the corporation ; and the property shall be considered seized
4 on execution when such copy is left.
1 SEc. 59. The officer of the company who is appointed to keep a record or account of the shares or inter-
Officer of com-
pany bound to
give eertificate. est of the stockholders therein, shall upon exhibiting to him the execution, be bound to give a certificate of
2
3 the number of shares or amount of the interest held by such judgment debtor.
1 SEc. 60. A copy of the execution and the return thereon, certified by the officer executing the same, shall
Copy of execu-
tion to be left,
€tC. 2 within fourteen days after the sale, be left with the officer of the company whose duty it may be to keep a
3 record of the transfer of shares; and the purchaser shall thereupon be entitled to a certificate or certifi-
4 cates of the shares bought by him, upon paying the fees therefor, and for recording the transfer.
1 SEc. 61. If the shares or interest of the judgment debtor shall have been attached in the suit, in which the
Char. 106.] - ( 661 ) [TITLE 22.
When purcha-
#er entitled to
dividends.
2 execution issued, the purchaser shall be entitled to all the dividends which shall have accrued after the le-
3 vying of the attachment.
1 SEC, 62. Executions against corporations, when levied upon any corporate property, shall be levied in the How execution,
levied upon cor-
porate property.
2 same manner as other executions are levied, except in cases otherwise provided by law.
I SEc. 63. If an execution shall be returned satisfied, in whole or in part, by the sale of any property which when court
may ordcr new
- execution, after
- * execution re-
shall aſterwards appear not to have belonged to the judgment debtor,'or not to have been liable to execution turned satisfied.
2
3
and if any damages shall be recovered against the judgment creditor, or the officer who served the execution,
4 on account of the seizure and sale of the property, the court may on the application of such judgment credi-
tor, order a new execution to be issued on such judgment, for the amount then remaining justly and equita-
5
g
bly due thereon.
1 SEc. 64. No female shall be imprisoned on any process in any civil action.
- No female to be
imprisoned in
civil action.
SEc. 65. If any officer shall unreasonably neglect to pay any money collected by him on execution, when Liability of om
d *
. º nº 3.
* g & * & {º e to pay over mo-
2 demanded by the creditor therein, he shall be liable to such creditor in five times the lawful interest there-neys collected.
l
3 on from the time of the demand until it is paid.
I Sec. 66. Whenever any person shall be arrested by virtue of any execution issued upon any judgment, pººl......
ecutiou how
kept.
2
he shall be safely kept in secure custody, in the manner prescribed by law, at his own expense, until he
3
shall satisfy the execution, or be discharged according to law.
I
SEc. 67. Every person surrendered in exoneration of his bail, shall be kept in like manner, until he shall
Persons surren-
dered by bail. .
2.
satisfy the judgment rendered against him, or be discnarged according to law.
1 SEC, 68. Executions between the same parties may be set off one against another, if required by either par-
Fºxecutions may
be set off.
2 ty, in the manner, and subject to the provisions mentioned in the following sections.
166
CHAP. I06. ( 662 ) [TITLE 22.
1 Sec. 69. When one of the executions is delivered to an officar to be served, the person who is the debtor
How executions
set off. -
2 therein may deliver his execution to the same officer, whether the second execution is directed to the same,
8 or any other officer, and the officer shall apply it, as far as it will extend, to the satisfaction of the first exe-
4 cution, and make an endorsement of such application on each of said executions ; and the balance due on
5 the larger execution may be collected and paid, in the manner as if there had been no set off.
Cascs where 1 Sec. 70. Such set offshall not be allowed in the following casess
ºfor not ullow- -
€UI,
2 1. When the creditor in one of the executions, is not the debtor in the other in the same capacity and trust:
3 2. When the sum due on the first execution, shall have been lawſully, and in good faith, assigned to ano-
4 ther person, beſore the creditor in the second execution became entitled to the sum due thereon:
5. 3. When there are several creditors in one execution, and the sum due on the other is due ſrom a part of
6 them only:
7 4. When there are several debtors in one execution, and the sum due on the other is due to a part of them
8 only;
t
9 5. Nor shall it be allowed as to so much of the first execution, as may be due to the attornoy in that suit,
10 for his taxable ſees and disbursements.
when ºfficer, 1 SEC. 71. Whenever thero shall be any reasonable doubt as to the ownership by a judgment debtor, of any
mily require in- º
demnity.
2 goods or chattels, or as to their liability to be taken upon an execution, the officer holding such execution
3 may require of the judgment creditor sufficient security to indemnify him ſor taking such goods and chattels
4 thereon; and if such security be refused, such officer shall not be liable for omitting to take such goods or
5
chattels.
1 SEC, 72. If the highest bidder for any article at any sale on execution, shall refuse to take and pay for it,
Proceeding if
bidder trefuse to
pay. the officer shall sell the same again at the same time, or within ten days thereafter, giving notice of the se-
2.
3 cond sale, and he shall account for what he shall receive on the second sale, and ſor any damages that may
be recovered of the first bidder, for any loss on the re-sale, as for so much received on the execution.
4
Chap. 107.] ( 663 ) [TITLE 22.
*
1 Sec. 73. The officer who shall make any sale on execution, shall, in his return on the execution, specify P ld
roperty sold to
-- be ºft :d in
return. Liability
2 the articles sold, and the sum for which each article or parcel was sold; and if he shall be guilty of any ..."
sº
3 fraud in the sale, or in the return, he shall be liable to an action on the case, at the suit of the party injured,
4 ſor five times the amount of the actual damages sustained by reason of such ſraud.
CHAPTER 107.
PROVISIONS CONCERNING ACTIONS AND PROCEEDINGS IN CERTAIN CASES.
g ... • gº º e tº g o * * Form of judg-
1 SECTION I. In actions against two or more persons jointly indebted upon any joint obligation, contract or ºf
joint debtors,
2 liability, if the process issued against all the defendants shall have been duly served upon cither of them,
3 the defendant so served shall answer to the plaintiff; and in such case, the judgment, iſ rendered in ſavor of ºğ,"
‘V ejl (J. O.) *
do. 630 11 do.
612.
4 the plaintiff, shall be against all the defendants in the same manner, as if all had been served with process.
1 SEc. 2. Such judgment shall be conclusive evidence of the liability of the defendant who was personally
Effect of judg-
inent as evidence
2 served with process in the suit, or who appeared therein; but against every other defendant, it shall be evi-
1839, p. 22, §1.
tº 6 Wend. 205,
3 dence only of the extent of the plaintiff’s demand, after the liability of such defendant shall havo been es- 6:1]
Af
4 tablished by other evidence.
1 SEc. 3. Execution upon every such judgment shall be issued in form against all the defendants, but the
- . I'orm of execul-
2 attorney issuing the same shall endorse thereon the names of such of the deſendants as were not sorved with *, *.
3 the process by which tho action was commenced, and shall direct such execution to be served as provided in
4 the next section.,
1 SEc. 4. Such execution shall not be served upon the person of any defendant whose name is so endorsed
Proceedings on
€X& Cullo Il.
2 thereon; nor shall it be levied upon the sole propriety of any such defendant; but it may be collected of the
3 personal property of any such defendant and owned by him as a partner with the other defendants served 1839, p. 22 $2.
4 or with any of them
CHAP. 107.] ( 664 ) Y [TITLR 22.
Declaration ser-
ved on one joint
debtor, etc. same
proceedings.
1839, p. 22–3, §3.
When plaintiff
may llave scire
ſueias.
1839, p. 23, §4.
Proceedings on
Bcirc facias.
When breaches
to be assigncd.
I
2
3
5
2
SEc. 5, Where an action against two or more persons upon any joint obligation, contract or liability, shall
be commenced by the filing and service of a declaration, and it shall appear by the certificate of a sheriff,
or by due proof, that the same has been served upon either of such persons, the defendant so served shall
answer to the plaintiff, and the judgment in such action, if rendered in favor of the plaintiff, shall be against
all the defendants, in the same manaer as if all had been served with such declaration; which judgment
shall have the like effect, and execution thereon shall be issued as if process had been served on one of
them.
Sec. 6. In either of the cases mentioned in the preceding sections, the plaintiff in the judgment may sue .
out a writ of scire facias against the defendants therein who were not served with the process or declaration
by which the suit was commenced, by which the sheriff shall be commanded to summon the parties against
whom it is issued, to appear before the court in which such judgment shall have been rendered, to show, if
they have any thing to say, why the plaintiff ought not to have execution against them upon such judgment,
6 in the same manner and with the like effect as if they had been served with the process or declaration by
2
2
3
which the suit was commenced.
SEc. 7. If any such defendant, after being duly summoned, shall fail to appear within twenty days after the
return day of the writ of scire facias, or if he shall appear and show no sufficient cause to the contrary, the
court shall make an order that execution issue against such defendant in the same manner, and with the like
effect, as if he had been served with the process or declaration by which the suit was commenced, and there-
fore execution may be issued and served accordingly.
SEC, 8. When an action shall be prosecuted in any court of law, upon any bond ſor the breach of any
condition other than for the payment of money, or shall be prosecuted for any penal sum for the non-per-
formance of any covenant or written agreement, the plaintiff, in his declaration shall assign the specific
4 breaches for which the action is brought.
1 Sec. 9. Upon the trial of such action, if the jury find that any assignment of such breaches is true,and that
Chap. 107] ( 665 ) [TITLE 22.
2 the plaintiffshould recover damages therefor, they shall assess such damages, and shall specify the amount º º:.
- º scgRed.
2 thereof in their verdict, in addition to their finding upon any other question of 'ſact submitted to them.
1 SEc. 10. If in such action, the plaintiff shall obtain judgment upon demurrer, or by confession, or by de-
When writ of
e e - º - e o e º º º e e inquiry may 1ſt-
2 fault, a writ of inquiry may be issued to the sheriff of the county in which the venue is laid, to inquire into sue.
3 the truth of the breaches assigned, and to assess the damages of the plaintiff sustained thereby; which shall
.4 be executed and relurned as other writs of inquiry.
l
Sec. 11. Instead of issuing a writ of inquiry as provided in the last section, the plaintiff may make up a
Damages may bo
assessed at cir-
circuit roll of the pleadings and proceedings in such action, with an entry of an order therein that the truth *
2
3 of the breaches assigned be inquired into, and the damages sustained thereby be assessed, at the next circuit
A.
court to be held in the county in which the venue in such action is laid ; and such circuit court shall pro-
, n - ?
5
C
6
e
d
t
h
e
T
€
o
Il;
p
u
r
S
Ul
a.
n
t
t
O
S.
Ul
C
h
O
r
d
G
T;
in
t
h
e
S
{ll
J)
G
a
Il
1e
r.
d
S
in.
G
t
h
e
r
C
d
u
S
e.
S.
n
t
t
O
h
à
t
Ç
O
u
r
t
t
O
b
e
...t
r
l
e
d,
6 and shall in like manner return the verdict of the jury thereupon.
Sec. 12. In every such action, iſ the plaintiff recover the verdict of the jury assessing the plaintiff’s dam-ºn.
ages.
1
2 ages, shall be entered on the record, and judgment shall be rendered for the penalty of the bond, or for the
penal sum forfeited, as in other actions of debt, together with the costs of suit, and with a further judgment
3
4
that the plaintiff have execution to collect the amount of the damages so assessed by the jury; which dama-
5
ges shall be specified in such judgment.
1 SEC. 13. The executicn upon such judgment shall be in the usual form in actions of debt, but shall have en- Execution on
judgment: direc-
tions.
dorsed thereon by the attorney issuing the same, a direction to the sheriff to collect the amount of the dama-
2
3 ges so assessed, which amount shall be stated, with interest thereon from the time of such assessment, and
the costs of such suit.
4
I
Sec. 14. If the amount so authorized to be levied, shall be collected, or the plaintiff shall be fully paid and
Judgment how
affected by col-
lection of dama.
2 satisfied for the same, the real and personal estate of the defendant shall be discharged from any further li. *
167
Char. 107.] ( 666 ) "[TITLE 22.
3 ability for the damages so assessed ; but the judgment rendered in such action shall remain as a security o
4 any damages that may be thereaſter sustained by the further breach of any condition of such bond, or by the
5 non-performance of any other covenant or written agreement, by the defendant, the perſormance of which
6 was secured by such penal sum.
. . 1 SEc. 15. Whenever such further breaches shall occur, the plaintiff, or his personal representatives, may
Scire facias in * * “
case of further
breaches.
2 have a scire facias upon such judgment, suggesting such breaches, against the deſendant and all parties bouud
3 thereby, and commanding that they be summoned to show cause why execution should not be had upon
* &l -
4 such judgment, for the amount of tho damages sustained by such further breaches,
Proceed i Sec. 16. The like proceedings to ascertain such damages, shall be had upon such writ, as are herein pro-
roceedings on
scrio facias.
2 vided in the first instance, and if the plaintiff recover, judgment shall be rendered that tho plaintiff have ex-
3. ecution to collect the amount of the damages that may have been assessed by the jury.
l
SEc. 17. Upon payment or satisfaction of the amount of damages so found, with interest, and the costs and
Judgment on
sc ire facias, how
affected by pay-
tº 2 charges of the proceedings, the defendant and his real and personal estate shall in like manner be discharg-
GS, e
3 ed from any liability for the damages so assessed, but such judgment shall remain as security for further
4 breaches as hereinbefore provided.
p
*.
1 SEC, 18. Whenever, in any action, brought according to the foregoing provisions, the jury shall find that
Effect of verdict 2
for deſeudant. any assignment of breaches is not true, the same shall be a bar to any other or further suit, by scire facias
3 or otherwise, for the recovery of any damages alledged to have been sustained by occasion of the same
4 breaches so assigned.
suit for damages 1 SEC. 19. Nothing herein contained shall prevent any person from bringing an action for the breach of any
instead of penal-
Wy. .
2 covenant or other contract, instead of suing ſor the penalty by which the performance of the covenant or
3 contract may have been secured.
1 Sec. 20. Every person who shall, for vexation and trouble, or maliciously, cause or procure any other
Chap. 107.] - - ( 667 ) - [Title 22.
2 to be arrested, attached, or in any way proceeded against, by any process or proceeding at law, or in equity,
Suing &c. In
name of anoth-
3 or in any other manner prescribed by law, to answer to the suit or prosecution of any person, without the *
4 consent of such person, or where there is no such person known, shall be liable to the person so arrested, at-
- tached or proceeded agains, in table the amount of the dams. an expenses which by tiny verdict, shall
- e be found to have been sustained and incurred by him; and shall be liable to the person in whose name such
7 arrest Of rººms WaS had in. the m of wo hundred dollar. damages, and shall be deemed guilty of a
8 misdemeanor, punishsble on conviction by imprisonment in the county jail ſor a term not exceeding six
9 months.
-
I,ial:ility of sher-
iffs, &c. in spe-
1 SEC. 21. Every sheriff, constable, or other officer, to whom shall be diretced and delivered any attach- ******
2 ment, summons, precept to summon a jury, warrant to apprehend a witness or any other person, or any
3 other process authorized to be issued by any judge, supreme court commissioner, or justice of the peace in
4 any special proceeding or matter beſore such judge, commissioner or justice, except civil suits before justices
s of the peace, shall execute ºuch process as therein commanded, and ſor any wilful neglect so to do, may be.
6 fined by the officer issuing the same, in a sum not exceeding twenty-five dollars.
§ - Penalty on Ju-
rors for default.
1 Sec. 22. When any person shall have been personally summoned to attend as a juror, to inquire into any
2 matter or thing, or to hear and try any controversy,in any special proceeding or matter specified in the last
3 section, and shall will ſully neglect to attend in pursuance of such summons, he may be fined by the officer
4 issuing the same, in a sum not exceeding twenty-five dollars; but this section shall not extend to any case
5 where other special provision is made by law, * running the deſault of any juror.
Sheriffº, &c. to
- 4.) º a ri - * y y º * ºr ; ; ; ; ºr . . attend juries in
1 Sec. 23. When any sheriff, constable or other officer, who shall have summoned any jury, in the cases...}.
2 mentioned in the two last sections, shall be required by the officer issuing such summons, to atteud such ju-
2 ry and take charge of them, he shall be bound to do so; and for any wilful neglect to obey such order, or
3 for any misconduct while attending such jury, by which the rights or remedies of any party to such pro-
4 ceeding may be impaired or prejudiced such sheriff, constable or other officer, shall be liable to be fined by
5 the officer before whom such jury shall have appeared, in a sum not exceeding twenty-five dollars.
1 SEC. 24. Upon any fine being imposed in any of the cases herein before specified, notice thereof shall be
chap. 107.] ( 668 )
[Title 22.
Notice offine.
Fines to be cer-
tified to circuit
COll ſt.
How such fines
collected.
Oaths in certain
Wººd.SCS,
Certain oaths by
pubtic officers,
&c.
Suits by the peo-
plc.
2 given to the person fined, to the end that he may render any excuse to the officer imposing such fine, or
3
show cause why such fine should be remitted. * *
SEC. 25. If no such excuse be rendered, or cause shown, within thirty days after service of such notice,
and such fine shall not have been remitted by the officer imposing the same, such officer shall make
a special return of the delinquency or misconduct for which such fine was imposed, with the amount there-
of, to the next circuit court for the county in which said delinquent shall reside.
SEC. 26. The clerk of the court to which such return shall be made, shall deliver a copy thereof to the
prosecuting attorney of the county, with copies of the minutes of fines imposed by such court, and in the
same manner; which shall be collected, and may be remitted or mitigated, in the same manner as fines im-
posed by courts of record, upon deſaulting jurors.
Sec. 27. Whenever any officer is authorized to take any sureties or bail, he shall be authorized to admin-
*
ister an oath to every person who shall be offered as such bail or surety, to ascertain his sufficiency.
SEC, 28. Whenever any application shall be made to the commissioner of the land office, the acting com-
missioner of internal improvement, or to any other public officer, or board of officers, to do any act in an
official capacity, and such officer or board shall require information or proof, to enable him or them to de-
cide on the propriety of doing such act, such information or proof may be required to be given by affidavit,
and such officer, or any number of such board, may administer all necessary oaths for that purpose,
SEc. 29. Every suit or proceeding in a civil cause instituted in the name of the people of this state, by any
public officer duly authorized ſor that purpose, shall be subject to all the provisions of law respecting similar
3 suits or proceedings, when instituted by or in the name of any citizen, except where provision is or shall be
4
5
otherwise expressly made by statute; and in such suits and proceedings, the people of this state shall be li-
able to be non-suited, and to have judgment of non-pros or of discontinuance entered against, them, in the
same cases, in like manner and with the same effect, as in suits brou ght by citizens, except that no execu-
7 tion shall issue thereon,
Char. 107.] **. ( 669 ) [TITLE 22.
l
2
5
SEC. 30. Whenever costs shall be adjudged against the people of this state, in any civil suit or proceeding
Costs therein
liow paid.
instituted by any officer duly authorized ſor that purpose, it shall be the duty of the auditor general to draw
on the treasurer for the amount thereoſ, upon the production of an authenticated copy of the record of judg-
\ -
ment, or if the order adjudging such costs, with a taxed bill thereof, and upon the certificate of the attorney
general that such suit or proceeding was duly instituted, as by law required.
Sec. 31. The action of detinue is hereby abolished, and all process and proceedings to out law any defen-
Delinue and out-
© . tº º e - law ry. -
dant in a civil action, are also hereby abolished.
SEC. 32. Where by the wrongful act of any person, an injury is produced, either to the person, personal
Trespass on the
CàSC,
property, or rights of another, or to his servant, child or wiſe, for which an action of trespass may by law º
be brought, an action of trespass on the case may be brought to recover damages for such injury, whether
it was wilful, or accompanied by force or not ; and whether such injury was a direct and immediate conse-
quence from such wrongſul act, or whether it was consequential and indirect.
f
SEc.33. Words imputing to any female a want of chastity, shall be deemed to be actionable in themselves
Certain Words
actionable.
and shall subject the person who shall utter and publish such words, to an action on the case for slander, in
the same manner as the uttering and publishing of words imputing the commisssion of a criminal offence.
Sec. 34. Whenever a suggestion shall be made upon the record, or in any stage of the proceedings in any
Certain sugges-
tions to be scr-
cause, which the adverse party shall have a right to controvert, a copy of such suggestion shall be served "*
upon the adverse party or his attorney, in the same manner as other pleadings, and such party may plead
thereto, according to the practice of the court, in the same manner, and within the same time, as to a dec-
laration.
Sec. 45. If an issue of fact be joined upon any such suggestion, the same shall be tried, and judgment
- Trial thereon,
rendered thereon, as on other issues; and if a default be taken against the party who ought to have pleaded &c. -
to the same,or if judgment upon demurrer or otherwise be rendered against such party,a writ of enquiry shall
168
CHAP. 107.] ( 670 ) - [Title 22.
Otl:er proceed-
ings on sugges-
tion.
Cases for tender
of uept or dama-
gCS.
Effect if tender
be sufficient.
Testimony on
motion, &c. in
supreme court.
Testimony of
witness how
procured.
4 issue to ascertain the truth of such suggestion, unless otherwise ordered by the court, upon which the same
5 proceedings and judgment will be had, as upon writs of inquiry in personal actions to assess damages.
1 SEc. 36. The party making such suggestion may be non-suited, and may have judgment of non-pros, or
2 discontinuance entered against him, for the same causes, and in the same cases as in suits at law.
1 SEc. 37. When any action at law shall be commenced, for the recovery of a sum certain, or which may
2 be reduced to certainty by calculation, or ſor a casual or involuntary trespass or injury, the defendant, in
3 any stage of the proceedings before trial in such causes, or before such damages shall have been assessed,
*
4 or beſore judgment rendered in an action of debt, may tender to the plaintiff or his attorney, any sum of mo-
§ ney which such defendant shall conceive sufficient amends for the injury done, for which such action or pro-
6 ceeding was instituted, or sufficient to pay the plaintiff's demand, together with the costs of such action or
T proceeding, to the time of making such tender.
1 SEc. 38. If it shall appear upon the trial of the cause, or upon the assessment of damages, that the amount
2 so tendered was sufficient to pay the plaintiff’s demand, or was a sufficient amends for the injury done, and
3 the costs of the suit or proceeding up to the time of such tender, the plaintiff shall not be entitled to recover
4 or collect any interest on such demand from the time of such tender, or any costs incurred subsequent to that
5 time, but shall be liable to the defendant for the costs incurred by him subsequent to such time.
1 SEc. 39. When there shall be a motion or other proceeding in the Supreme court in which it shall be ne-
2 cessary for either party to have the deposition of any witness who shall have refused voluntarily to make
3 his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the
4 county in which such witness resides, to take his testimony.
1 SEc. 40. Such witness may be subpoened to attend and testify before such commissioners,in the same man-
2 ner as before referees, and with the like effect; and obedience tosuch subpoena shall be enforced in the
3 same manner.
CHAP. 107.] ( 671 ) [TITLE 22
1 SEc. 41. When any jury shall be empannelled to try any issue,to make any inquiry, or to assess any dam-
Discharging ju-
ries upon disa-
2 ages,if they cannot agree aſter being kept together for such time as shall be deemed reasonable by the court”
3 or officer before whom they shall have appeared and been impanneled, such court or officer may discharge
4 them, and issue a precept ſor a new jury, or order another jury to be drawn, as the case may require; and
5
the same proceedings shall be had before such new jury,as might have been had before the jury so discharged.
1 Sec. 42. It shall not be necessary to have any particular number of days intervene between the teste and
Process; time.
hetween teste
we * & and return.
2 return day of any process, except in cases otherwise expressly provided by law.
1 Sec. 43. Whenever a bond is or shall be required by law to be given by any person, in order te entitle
Certain bonds
when sufficient.
2 him to any right or privilege conferred by law, or to commence any proceeding, it shall not be necessary
3 for such bond to conform in all respects to the form thereof prescribed by any statute, but the same shall be
4 deemed sufficient if it conform thereto substantially, and do not vary in any matter to the prejudice of the
5 rights of the party to whom or ſor whose benefit such bond shall have been given,
i Sec. 44. Whenever such bond shall be defective in any respect, the court, officer or body who would be
Amending de- .
tº p & $ tº e fects in bond, and
2 authorized to receive the same, or to entertain any proceedings in consequence of such bond, if the same had ..";
On 6.
3 been perſect, may, on the application of all the obligors therein, amend the same in any respect, or may, on
4 the application of the person required to give such bond, allow a new one to be substituted in the place
5 thereof, bearing date at the time when such bosd was required to be given,and such bondshall thereupon be
6
deemed valid from the time of the execution of such deſective bond.
1 SEC. 45. When any deſendant, at the time judgment shall be rendered against him, in any court of
- Pcrsons when
to be charged in
r) § * . e - *- . & g - ~~~~ * ~ * l- > ---> * : hicl | executic n.
2 record, shall be in the custody of a sheriff or other officer, either upon process in the suit in which such
3 judgment shall have been rendered, or upon being surrendered in discharge of his bail in such suit, the
4 plaintiff in such judgment shall charge such defendant in execution thereon, within three months aftef the
5 last day of the term next following that at which such judgment shall have been obtained.
1 SEC, 46. When any defendant shall be in custody upon a surrender in discharge of his bail, made after a
CHAP. 107.] ( 672 ) - [TITLE 22.
Ib.
When prisoner
discharged by
auperSedas.
Submiss Ion of
causc upon a
call made by the
parties.
1840, p. 19, §5.
Notice of justifi-
cation in slander
or libel, no proof
of malice.
£ntitling dcclar-
ations, &c.
Assumpsit may
be maintained ou
sealed instru-
Ilićll IS, Ctc.
2
3
4
5
2
3
5
6
l
2.
3
l
2
2
•r
l
judgment obtained against him, and such bail shall be thereupon exonerated, the plaintiff in such judgment
shall charge such defendant in execution thereon, within three months after such surrender, or iſ an execu-
tion against the property of such defendant shall have been issued, within three months after the return day
of such execution.
SEc. 47. Iſ any plaintiff shall neglect so to charge any defendant in execution, as required by the two last
preceding sections, such defendant may be discharged from custody by a superselas to be allowed by any
judge of the court in which such judgment shall have been obtained, unless good cause to the contrary be
shown; and aſter being so discharged, such defendant shall not be liable to be arrested, upon any execution
which shall be issued upon such judgment.
SEc. 48. The parties to any civil cause depending in the supreme court, may agree upon a case containing
*
the facts relating thereto, and submit the same to said court; and the court shall thereupon determine and
render judgment in such cause, in the same manner as upon a special verdict ſinding such facts.
SEC. 49. If the defendant in any action for slandre, or for publishing a libel, shall give notice in his justifi-
cation, that the words spoken or published were true, such notice, though not maintained by the evidence,
shall not in any case be of itself proof of the malice charged in the declaration.
SEc. 50. It shall not be necessary to entitle any declaration or other pleading, of any term of the court, or
of any day in term or vacation, nor shall it be necessary to mention the name of the state, in the statement
of the venue in any case.
SEc. 51. In all cases arising upon contracts under seal, or upon judgments, when an action of covenant or
of debt may be maintained, an action of assumpsit may be brought and maintained, in the same manner in
all respects, as upon contracts without seal; and no bond, deed of conveyance or other contract in writing,
signed by any party, his agent or attorney, shall be deemed invalid for want of a seal or scroll affixed there-
to by such party.
Sec. 52. It shall not be necessary in any action on the case for seduction hereaſter to be brought, to allege
CHAP. 107.] ( 678 ) ['Pirle 22.
2 in the declaration, or to prove on the trial, any loss of service in consequence of such seduction; but if the
In action for see
- duction, allega-
- * - tion of loss of
3 female seduced be a minor at the time of the seduction, the action may be brought by her father, mother, or:::::::::::
4 guardian ; and if such female be of full age, the action may be brought by her father, or any other relative
5 who shall be authorized by her to bring the same.
1 SEc. 53. It shall not be necessary in any such action to allege or prove that the person seduced was the proof that per-
son seduced was
servant of plain-
2 servant of the plaintiff, but instead thereof, it shall be sufficient to set forth in the declaration the relation-tir unnº.
e
*
3 ship of such person to the piaintiff, or that such person is the ward of the plaintiff, as the case may be.
1 SEC. 54. The two last sections shall not be so construed as to prevent any person entitled to the services construction of
two last sections:
2 of the person seduced, from maintaining an action for the loss of service or other damage sustained by him
3 in consequence of the seduction.
169
CHAP. 108.] - ( 674 ) [TITLE 33.
Electment YC-
tained,
Extended to.
other casese.
Who to be .
plaintiffs.
Who to be de-
ſendants.
TITLExxIII.
OF SUITS RELATING To REAL ProPERTY.
CHAPTER 108.-Of the Action of Ejectment. *
“ 109.--Of the Partition of Lands owned by several person
** 110.—Of Waste. y p S.
“ 111.-Of Trespass on Lands.
“ 112.-Of Actions for Private Nuisances.
“ 113–General Provisions concerning Actions relating to Real Estate.
CHAPTER 108. .
of THE ACTION of EJECTMENT.
1 SECTION 1. The action of ejectment is retained, and may be brought in the cases and in the manner here.
2 tofore accustomed, subject to the provisons hereinafter contained.
1 SEC. 2. The action of ejectment may also be brought,
2 1. In the same cases in which a writ of right may now be brought by law to recover lands, tenements, or
3 hereditaments, and by any person claiming an estate therein, in fee or for life, either as heir, devisee or
4 purchaser:
5 2. By any widow entitled to dower, or by a woman so entitled and her husband, aſter the expiration of six
6 months from the time her right accrued, to recover her dower of any lands, tenements or hereditaments.
1 SEc. 3. No person can recover in ejectment, unless he has at the time of commencing the action, a valid
2 subsiting interest in the premises claimed, and a right to recover the same, or to recever the possession there.
3 of, or of some share, interest or portion thereoſ, to be proved and established at the trial.
º
1 SEC. 4. If the premises for which the action is brought, are actually occupied by any person, such actual
2 occupant shall be named a defendant in the declaration ; if they are not so occupied, the action must be
3 brought against some person exercising acts of ownership on the premises claimed, or claiming title there-
Char. 108.] ( 675 ) [Trrºr 23.
*
5
to, or some interest therein at the commencement of the suit; and all persons claiming any title to the pre-
mises adverse to that claimed by the plaintiff, may in all cases be made defendants in such action,
Sec. 5. The suit shall be commenced by the filmg of a declaration, entering a rule to plead, and serving Of
How commen-
s • º . e ced, cte.
a copy of the declaration and notice of the rule to plead, in the same manner as in personal actions, except
as hereinaſter provided; and in such declaration the names of the real claimants shall be inserted as plain-
tiffs, and all the former provisions of law concerning lessons of a plaintiff shall apply to such plaintiffs.
Sec. 6. The use of fictitious names of plaintiffs or defendants, and of the names of any other than the real
Fictitious partics
... C{C. Q-
º º º e SIMC (!.
claimants and the real defendants, and the statement of any lease or demise to the plaintiff, and of an eject- Oll
ment by a casual or nominal ejector, are abolished.
SEc: 7. It shall be sufficient for the plaintiff to aver in his declaration, that on some day therein to be spe-Contents of de-
- - claration.
ciſied, and which shall be aſter his title or right accrued, he was possessed of the premises in question, de-
scribing them as hereinafter provided, and being so possessed thereof that the defendant aſterwards, on some
day to be stated, entered into such premises, and that he unlawfully withholds from the plaintiff the posses-
sion thereof, to his damage, any nominal sum the plaintiff shall think proper to state.
SEc. 8. In such declaration the premises claimed shall be described with such convenient certainty, by Premises claim-
ed how descri-
bed.
setting forth the section or part of a section, township and range, or the number of the lot, or otherwise,
that ſrom such description possession of the premises claimed may be delivered.
Sec. 9. If such plaintiff claims an undivided share or interest in any premises,he shall state the same parti-
Undivided
cularly in such declaration. shares.
SEc. 10. If the action be brought for the revovery of dower, the declaration shall state that the plaintiff
was possessed of the one undivided third part of the premises, as her reasonable dower as widow of her;" " "
husband, naming him. . In every other case the plaintiff shall state whether he claims in fee or whether he
claims for his own life, or ſor the life of another, or for a term ofyan or otherwise, speciſying such lives,
or the duration of such term.
Char. 108.] ( 676 ) [TITLE 23.
Several counts
and plaintffs,
Security for
COStS.
Service of decla-
ration, etc. on Oc-
cupant.
Service of decla-
ration etc. when
premises unoc-
cupied.
Special order of
court when ne-
cessary.
When and how
appearance and
default may be
entered .
Authority of
plaintiff’s attor-
ney.
1
2
3
2I
3
l
2
SEc. 11. In any case other than where the action is brought for the recovery of dower, the declaration
may contain several counts, and several parties may be named as plaintiffs, jointl y in one count, and sepa-
rate in others.
SEc. 12. All the provisions of law relating to the endorsement of declarations as security for costs, and
the liability of endorsers in cases of personal actions, commenced by declaration, shall be applicable to
the action of ejectment.
SEc. 13. If the premises are actually occupied, the declaration shall be served by delivering a copy there.
of, with the notice above prescribed, to the defendant named therein, who shall be in the occupation there-
of, personally, or by leaving the same with some person of proper age, at the dwelling house of such de-
fendant, if he be absent.
SEc. 14. If any defendant named in such declaration shall not occupy the premises claimed, the declara-
tion and notice shall be served on such defendant personally, or if he cannot be found, by leaving the
same with some person of proper age, at the residence of such defendant.
SEc. 15. But when the declaration shall have been served in any other manner than upon the defendant
personally, no default for not pleading shall be entered without the special order of the court.
SEc. 16. Upon filing the certificate of the sheriff, or an affidavit of the due service of a copy of the decla-
ration and notice of the rule to plead personally on the defendant, his appearance shall be entered; and in
case he shall neglect to plead within the time prescribed by such rule, his default for not pleading may be
entered in like manner as in personal actions.
SEc. 17. A defendant in ejectment may at any time before pleading, apply to the court, or to any judge
thereof, or supreme court commissioner in vacation, to compel the attorney for the plaintiff to produce to
such court or officer, his authority for commencing the action in the name of any plaintiff therein.
SEc. 18. Such application shall be accompanied by an affidavit of the defendant, that he has not been
CHAP. 108.] * ( 677 ) [TITLE 23.
3
2 served with proof in any way, of the authority of the attorney to use the names of the plaintiffs stated in the * to be
- made.
declaration.
SEc. 19. Upon such application, the court or officer shall grant an order requiring the production of such order on appli-
. - - - . cation.
authority, and shall stay all proceedings in the action, until the same be produced.
SEc. 20. Any written request of such plaintiff or his agent, to cominence such action, or any written re-
• * Evidenee of au-
cognition of the authority of the attorney to commence the same, or any verbal authority, duly proved by thority.
the affidavit of such attorney or other competent witness, shall be sufficient presumptive evidence of such
authority.
Sec. 21. If it shall appear that previous to such application by any deſendant, he was served with the aff-
When applica-
tion to be dis-
davit of the plaintiff’s attorney, showing his authority to commence such action, such application shall be #:...";
costs, &c.
dismissed, and such deſendant shall be liable for the costs of resisting such application ; the payment of
which may be compelled by attachment as in other cases, which may be issued upon proof of disobedience
to the order of the court or officer directing the payment of such costs.
SEc. 22. The defendant may demur to the declaration as in personal actions; or he shall plead the gener-
Pleadings &c-
al issue only, which shall be the same as in personal actions, and the filing and service of such plea or de-
murrer shall be deemed an appearance in the cause, and upon such plea the defendant may give the same
matter in evidence, and the same proceedings shall be had, as upon the plea of not guilty in the present ac-
tion of ejectment.
SEc. 23. Upon such plea, the defendant may give in evidence any matter which if pleaded in the present
Evidence under
plea.
writ of right or action of dower, would bar the action of the plaintiff.
SEC, 24. It shall not be necessary for the plaintiff to prove an actual entry under title, nor the ac-
Right to posses-
sion sufficient,
tual receipt of any profits of the premises demanded; but it shall be sufficient for him to show a right to the *.
170
Char. 108.] - ( 678 ..) [TITLE 23.
3 possession of such premises, at the time of the commencement of the suit, as heir, devisee, purchaser or oth-
\
4 erwise.
1 SEc. 25. It shall not be necessary on the trial for the defendant to confess, nor for the plaintiff to prove,
Lease, entry and
ouster, &c.
2 lease, entry and ouster, or either of them, except as provided in the next section; but this section shall not
3 be construed to impair, nor in any way to affect, any of the rules of evidence now in force, in regard to the
4 maintenance and defence of the action.
Ouster to be 1 Sec. 26. If the action be brought by one or more tenants in common, or joint tenants, against their co-
roved in cer .
|ain cases.
2 tenants, the plaintiff, in addition to all other evidencá which he may be bound to give, shall be required
3 to prove on the trial of the cause, that the defendant actually ousted such plaintiff, or did some other act
4 amountinng to a total denial of his right as such co-tenant.
Verdict upon SEC, 27. If the action be brought against several defendants, and a joint possession or claim of title of all
joint possession,
&c.
2 be proved, the plaintiff shall be entitled to a verdict against all, whether they shall have pleaded separately
3 or jointly.
I SEc. 28. When the action is against several defendants, if it appear on the trial that any of them at the
Several and dis-
tinct posscssions.
2 commencement of the suit occupied or claimed distinct parcels in severalty or jointly, and that other
3 defendants possessed or claimed other parcels, in severalty or jointly, theplaintiff shall elect at the trial,
4 and before the testimony shall be deemedclosed, against which he will proceed; and a erdict shall there-
5 upon be rendered for the deſendants not proceeded against.
Verdict how
rondercq in cer- 1
tain cases. SEC, 29. In the following cases the verdict shall be rendered as follows:
2 1. If it be shown on the trial, that all the plaintiffs have a right to recover the possession of the premis.
3
es, the verdict in that respect shall be for the plaintiffs generally:
4
2. If it appear that one or more of the plaintiffs have a right to the possession of the premises, and that
5
one or more have not such right, the verdict shall specify for which plaintiff the jury find, and as to which
6 plaintiff they find for the defendant:
CHAP. 108.] - ( 679 ) [TITLE 23.
7
8
10
11
12
13
14.
15
I6
17
18
e 19
20
21
2
1
/
2. If the verdict be for any plaintiffs and there be several defendants, the verdict shall be rendered against
such of them as were in possession of the premises, or as claimed title thereto, at the commencement of the
action :
4. If the verdict be for all the premises claimed, as specified in the declaration, it shall in that respect be.,
for such premises generally. -
5. If the verdict be for a part of the premises described in such declaration, the verdict shall particularly
speciſy such part as the same shall have been proved, with the same certainty herein before required in the
declaration, in the description of the premises claimed:
6. If the verdict be for an undivided share or interest in the premises claimed, it shall specify such share
or interest ; and if for an undivided share in a part of the premises claimed, it shall specify such share, and
shall describe such part of the premises as herein before required:
7. The verdict shall also specify the estate or right which shall have been established on the trial, by the
plaintiff in whose favor it shall be rendered, whether such estate be in fee, or for his own life, or for the
life of another, stating such lives, or whether it be a term for years, or otherwise, and specifying the dura-
tion of such term.
SEc. 30. If the right or title of a plaintiff in ejectment expire aſter the commencement of the suit, but
Expiration of
plaintiff’s litle
before trial, the verdict shall be returned according to the fact, and judgment shall be rendered that he re-" "
cover his damages by reason of the withholding of the premises by the defendant, to be assessed, and that
as to the premises claimed, the defendant go thereof without day.
Sec. 31. The action of ejectment shall not be abated by the death of any plaintiff, or of one of the sev-
eral defendants after issue and before verdict or judgment ; but the same in re- :r, Abatement of
or Judg 3 proceedings may be had as in;".
other actions, to substitute the narmes of the executors or administrators, or of those who may succeed to
the title of the plaintiff so dying, in which case the issue shall be tried as between the original parties;
2.
and in case of the death of a defendant, the cause shall proceed against the other defendants.
SEC. 32. In cases where no other provision is made, the judgment in the action, if the plaintiff prevail;
. jºr
Char. 108.] ( 680 ) [TITLE 23.
fºr of judº- 2 shill be, that the plaintiff recover the possession of the premises according to the verdict of the jury, if
men g
3 ºthere was such verdict; or if the judgment be by default, according to the descrption thereof in the de-
*
4 claration, with costs to be taxed.
tº
Form of writes, 1 SRC. 33. The plaintiff recovering such iudgment shall be entitled to a writ of possession, which shall be
posscssion.
2 substantially in the following form :
- 3 “In the name of the people of the State of Michigan :
4 To the sheriff of the * of
j whereas A. B. has lately, in our supreme court of judicature, by the judgment of said court, recovered
t; against C. D. the following described premises, to wit: (describing the premises recovered with the like
7 certainty as above provided,) which said premises have been, and are still unjustly withheld from the said
‘8 A. B. by the said C. D. whereof he is convicted, as appears to us of record; and forasmuch as it is ad-
9 judged in the said court that the said A. B. have execution upon his said judgment against the said C. D.
10 according to the force, form and effect of his said recovery ; therefore we command you, that without de-
11 lay, you deliver to the said A. B. possession of the said premises so recovered, with the appurtenances;
12 and º you certify to our said court, at &c., on &c. in what manner you shall have executed this writ. (If
13 there be costs to be collected, the proper clause may here be inserted.)
14 Witness, &c.”
1 Sec. 34. Upon a judgment against the plaintiff, or one or more plaintiffs, in cases when they shall be lia-
Costs how tol- * gº g ; , , rº o
jected offilaintiff. 2 ble for costs, exccution for the collection of the same shall be issued, as upon judgmunts in personal
3 actions.
1 Sec. 35. Every judgmeat in the action of ejectment, rendered upon a verdict, shall be conclusive as to
Effeet of judg-
ment on verdict.
2 the title established in such action, upon the party against whom the same is rendered, and against all per-
3 sons claiming from, through or under such party, by title accruing after the commencement of such action,
4 subject to the exceptions hereinafter contained.
1 Sec. 36. The court in which such judgment shall be rendered, at any time within three years thereafter,
CHAP. 108.T ( 681 ) [TITLE 22.
2 upon the application of the party against whom the same was rendered, his heirs, executors, administrators
New trial, how
granted.
3 or assigns, and upon payment of all costs and damages recovered thereby, shall vacate such jndgment and
4 grant a new trial in such cause ; and the court upon subsequent application made within two years after the
5 rendering of the second judgment in said cause, if satisfied that justice will be thereby promoted, and the
6 rights of the parties more * ascertained and established, may vacate the judgment and grant an-
7 other new trial; but no more than two new trials shall be granted under this section.
(2
1 SEC. 37. Every judgment in ejectment rendered by default, shall, from and aſter three years from the ºf .
ment by default;
* new trial.
2 time of rendering the same, be conclusive upon the defendant, and upon all persons claiming from or
3 through him by title accruing after the commencement of the action; but within five years after the render-
4 ing of such judgment, on the application of the defendant, his heirs, executors, administrators or assigns,
5 the court may vacate such judgment and grant a new trial, if such court shall be satisfied that justice will
6 thereby be promoted, and the rights of the parties more satisfactorily ascertained and established.
N. s
1 SEC. 38. The supreme court may make such rules in relation to staying proceedings upon the judgment, Rule, in rela-
tion to staying
proccedings.
tº . e. g g g 1841, p. 53, §1.
2 on application being made for a new trial under the two last sections, as such court may deem necessary to “” , §
3 protect the rights of the parties thereto.
1 SEC. 39. If the defendant in an action of ejectment, at the time of docketing the judgment therein by de-
Time of dissibili-
ty not to be in-
luded.
2 fault, be either *
3 1. Within the age of twenty-one years : or,
4 2. Insane : or,
5 3. Imprisoned on any criminal charge, or in execution upon conviction of a criminal offence, for any term
6 less than for life : or,
7 4. A married woman :
8 The time during which such disability shall continue, shall not be deemed any portion of the said three years;
9 but any such person may bring an action for the recovery of such premises after that time, and within three
10 years after such disability shall be removed, but not after that period,
171
CHAP. 108.] ( 682 ) [TITLE 23,
Death of person
during continu-
ance of disabili-
ty.
Possession aſter
recovery on new
trial.
Evidenee Oll
new trial.
Damages to be
recovered.
Mode of recov-
ery; suggestion.
Form of sugges-
tion, &c.
l
2
3
4
l
4
I
SEc. 40. If the person entitled to commence such action, shall die during the continuance of any disability
specified in the preceding section, and no determination or judgment be had of or upon the title, right or ac-
tion so to him accrued, his heirs, executors or administrators may commence such action, aſter the time
above limited for that purpose, and within three years after his death.
SEc. 41. If the plaintiff shall have taken possesion of the premises by virtue of any recovery in ejectment,
such possession shall not in any way be affected by the vacating of any judgment, as herein provided ; and
if the defendant recover on any new trial hereby authorized, he shall be entithed to a writ of possession, in
the same manner as if he were plaintiff.
Sec. 42. Upon any new trial granted as herein provided, the defendant may show any matters in bar of a
recovery, which he might show to entitle him to the possession of the premises if he were plaintiff in the
action.
SEC. 43. The plaintiff recovering judgment in ejectment in any of the cases in which such action may be
maintained, shall also be entitled to recover damages for rents and profits of the premises recovered ; but if
such action be brought for the recovery of dower, the plaintiff shall be entitled to recover such damages on-
ly in the cases, and to the extent prescribed in the preceding sixty-sixth chapter.
SEc. 44. The plaintiff seeking to recover such damages, shall, within one year after the docketing of the
2 Judgment, make and file a suggestion of such claim, which shall be entered, with the proceedings thereon,
3
I
2
3.
4.
upon the record of such judgment, or be attached thereto, as a continuation of the same.
SEC. 45. Such suggestion shall be substantially in the same form, as is now in use for a declaration in an
action of assumpsit for use and occupation, as near as may be, and may be against the defendants liable
for such rents and profits, omitting those not so liable; and a rule to plead thereto shall be entered, and a
,”
copy thereof, with a notice of such rule, shall be served on the defendants named therein, in the same man-
5, ner as in cases of declarations in personal actions.
CHAP. 108.] - - ( 683 ) [TITLE 23.
1 SEC. 46. Such defendants may plead to such suggestion, and give notice of any special matters in bar of
Pleadings of ide-
fendant, &c,
2 such claim, except such as were or might have been controverted in such action of ejectment, in the same
º
3 manner as in personal actions; and such defendants may show on the trial, in bar or in mitigation of the
4 damages claimed by the plaintiff, a recovery by such defendants, or by any other person, of the same pre-
5 mises, or of part thereof, subsequent to the verdict in such action of ejectment.
1 SEC. 47. If any issue of fact be joined on such suggestion, it shall be tried as in other causes, and if such
Trial of Issues,
2 issue be found for the plaintiff, the same jury shall assess his damages, to the amount of the mesne profits re-“
3 ceived by the defendant, since he entered into the possession of the premises, subject to the restrictions here-
4 inaſter contained.
1 Sec. 48. On the trial of such issue, the plaintiff shall be required to establish, and the defendant may con-
Facts to
tablished
2 trovert the time when such defendant entered into the possession of the premises; the time during which he plaintim.
3 enjoyed the mesne profits thereof; and the value of such profits; and the record of the recovery in the ac-
4 tion of ejectment shall not be evidence of such time.
1 SEC. 49. On such trial, the defendant shall have the same right to set-off permanent improvements made
Set-off by de-
2 on the premises, to the amount of the plaintiff’s claim, as is now allowed by law; and in estimating the *
8 plaintiff’s damages, the value of the use by the defendant, of any improvements made by him, or purchased
4 Gºwens Rep.
4 by him in good faith from any person from whom he derives color of title thereto, shall not be allowed to
5 the plaintiff.
1 SEC, 50. The plaintiff shall not be entitled to recover the rents and profits of the land so recovered, for any
Extent of reco-
2 longer term than six years immediately preceding the time when such suggestion shall be served on the de-".
3 fendant.
1 SRC. 51. If no issue of fact be joined on such suggestion, and judgment be rendered thereon. against the de-
2 fendant by default, on demurrer, or otherwise, the value of such mesne profits shall be assessed, and the jºr.
- &c. 3.
3 Plaintiff's damages ascertained in the same manner as in other cases.
Chap. 108.] - - ( 684 ) . . [TITLE 23.
Proceedings on
asscssing dama-
ges.
Judgment.
Proceedings to
recover Ill CSTC
profits on death
of plaintiſſ.
Proceedings on
recovery of
dower, not pre-
viously adminis-
tered,
I
2
SEc. 52. Upon such assessment, the plaintiff shall be required to establish the same matters herein before
required, in the case of an issue being joined, and the defendant may in like manner, controvert the same,
and make any set-off to which he shall be entitled, and the jury shall assess the damages in the same man-
SEc. 53. Upon the return of an inquisition of damages, or upon the verdict of the jury in case of an issue
being joined, the court shall render judgment as in actions of assumpsit, for use and occupation, which shall
have the like effect in all respects.
SEC. 54. If the plaintiff in ejectment shall have died aſter issue joined, or judgment therein, his personal
2 representatives may enter a suggestion of such death, and of the granting of letters testamentary or of ad-
2
7
ministration to them, and may suggest their claim to the mesne profits of the premises recovered, in the
same manner and with the like effect as the deceased might have done if still living ; and the same pro-
ceedings in all respects shall be had thereon.
SEc. 55. If the action be brought to recover the dower of any widow, which shall not have been admeas-
ured to her before the commencement of such action, instead of a writ of possession being issued, such
plaintiff shall proceed to have her dower assigned to her in the manner following:
1. Upon the filing of the record of judgment, the court, on the motion of the plaintiff, shall appoint three
discreet and disinterested freeholders, commissioners, for the purpose of making admeasurement of the dow-
er of the plaintiff, out of the lands described in the record ; and the commissioners so appointed shall pro-
ceed in like manner, possess the like powers, and be subject to the like obligations as commissioners ap-
8 pointed by the judge of probate to set off dower :
9 2. The commissioners shall make a report of their doings to the court in writing, as soon as may be after
º e º * •
10 their appointment, which report shall be confirmed by such court, unless good cause to the contrary be
11 shown, and shall be entered at large in the minutes of such court :
13 8. Upon the confirmation of the report of the commissioners, a writ of possession shall be issued to the
14 sheriff of the proper county, describing the premises assigned for the dower, and commanding the sheriff
5 to put the plaintiff in possession thereof.
CHAP. 109.] ( 685 ) [TITLE 23.
© e º e & Costs?of admea-
1 SEc. 56. The costs and expenses incurred in such admeasurement, shall be subject to the same provisions iºn ºf
- dower.
f
2 as in cases of admeasurement of dower by commissioners appointed by the judge of probate,
ſº
1 SEC. 57. No action of ejectment shall hereafter be maintained by a mortgagee, or his assigns or represen-Ejectment by
- - mortgagee, etc.
- #;";
Wend. rep. 538.
2 tatives, for the recovery of the mortgaged premises, until the titlé thereto shall have become absolute upon
3 a foreclosure of the mortgage.
CHAPTER 109.
*
OF THE PARTTITION OF LAND'S OWNED BY SEVERAL PERSON S.
1 SECTION 1. All persons holding lands as joint tenants or tenants in common, may have partition thereof, in Who may have
partition.
2 the manner provided in this chapter.
*
1 Sec. 2. Any one or more of the persons so holding lands, may institute a suit in the court of chancery by
Sults how insti-
bill, for a division and partition thereof according to the respective rights of the parties interested therein,”
2
3
and for a sale of such premises, if it shall appear that a partition thereof cannot be made without great
4 prejudice to the owners.
1 SEC. 3. Such suit may be maintained by tiny person who has an estate in possession in the lands of which By whom suit
- tºº W
may be main-
tained.
2
Partition is sought, but not by one who has only an estate therein in remainder or reversion.
1 Sec. 4. The bill for a partition or sale of any such lands, shall be verified by oath, and shall particularly
2
describe the premises sought to be divided, and shall set forth the rights and titles of all persons interested ºil,
set forth.
3
therein, so far as the same are known to the complainant, including the interest of any tenant for years, for
4
life, by the curtesy or in dower, and the persons entitled to the reversion, remainder or inheritance aſter the
5
termination of any particular estate therein, and every person who, by any contingency contained in any
6
devise, grant or otherwise, may be or become, entitled to any beneficial interest in the premises.
1 SEC.5. Every person having any such interest as aforesaid, whether in possession or otherwise, and every
- Char. 109]
( 686 ) [Title 23.
Who may be
made parties.
Unknown par-
and uncertain
interests.
Creditors having
lien need not be
made parties in
first instance.
Effect of parti-
tion upon lien
on undivided
sharc.
Creditor having
specific lien may
be made a party.
Subpoena to ap-
pear and ans-
wer.
Unknown and
non-resident
parties how no-
tified.
2 person entitled to dower in such premises, if the same has not been admeasured, may be made a party to
t
3 such suit.
2
SEo. 6. In case any one or more of such parties, or the share or quantity of interest of any of the parties
be unknown to the complainant, or be unce.tain or contingent, or the ownership of the inheritance shall de-
pend upon an executory devise, or the remainder shall be a contingent remainder, so that such parties can-
not be named, the same shall be set forth in the bill.
SEc. 7. It shall not be necessary in the first instance, to make any creditor having a lien on the premi-
ses in question, or any part thereof, by judgment, decree, mortgage or otherwise, a party to the proceedings
nor shall the partition of the premises alter, affect or impair, the lien of any such creditor, except in the ca-
ses provided for in the next section. 6,
SEc. 8. When the lien is on the undivided interest or estate of any of the parties, such lien, if partitition
be made of the premises, shall thereafter be a charge only on the share assigned to such party, and such
share shall be first charged with its just proportion of the costs of the proceedings in partition, in preference
to any such lien.
SEc. 9. But the complainants may, at their election, make every creditor having a specific lien on the un-
divided interest or estate of any of the parties, by mortgage or otherwise, a party to the proceedings; and
in such case the bill shall set forth the nature of every such lien or incumbrance.
SEC. 10. Upon filing a bill in the court of chancery for the partition or sale of any lands pursuant to the
provisions of this chapter, the defendants, or such of them as reside in this state and can be ſound therein,
shall be served with a subpoena to appear and answer the bill, and the same may be taken as confessed, ac-
cording to the practice of the court of chancery.
Sigc. 11. If any parties having an interest in such lands are unknown, or if either of the known parties
reside out of this state, or cannot be found therein, and such facts be made to appear to the court by affida-
Char. 109.] ( 687 ) [TITLE 23.
3
5
vit an order may be made by the court containing a sufficient description of the premises whereof partition
is sought and requiring all parties interested to appear and answer the bill by a day in such order to be speci-
fied, which order shall be published for three months, once in each week successively in the state paper.
SEc. 12. The publication of such order shall authorize an order of the court for taking the bill as confes- Order to tak
r t O
w bill : £ºsed
º e o º p º - against un-.
sed against all such unknown parties, and persons not resident in this state, or not found therein, as shall not known parties.
e’
appear and answer by the day mentioned in the order, or on such further day as the court may appoint ; and
all such unknown parties as may appear, shall be entitled to be made parties to the suit. and the bill may be
amended accordingly.
SEc. 13. The general guardians residing in this state, of all minors and other persons undergdardianship,
Guardians for
Iminors, etc.
who should be parties to such proceedings for partition, upon giving bond as hereinafter directed, shall rep-
resent their respective wards therein, whether such wards shall reside in or out of this state, and the court
shall appoint guardians for all such minors who shall be interested in the premises, as have no general guar-
|
dians in this state, ſor the special purpose of taking charge of the interests of such minors, in relation to
the proceedings; and the acts of all such guardians of minors, or others under guardianship, shall be bin-
ding on their respective wards, and shall be as valid as if done by them respectively when of full age, or
under no legal incapacity.
SEc. 14. Every such guardian shall give bond to the people of this state, to be filed with the register, in
Bond to be given
by guardian.
such penalty,and with such surety as the court shall direct ; conditioned for the faithful performance of the
e”
trust reposed in such guardian, and to render a just and true account of his guardianship in all courts and
places when thereunto required, and ſor the observance of the orders of the court in relation to the said
5 trust.
SEc. 15. When a bill shall be filed for the partition or sale of any lands in pursuance of this chapter, and
On failure of
guardian to give
any of the defendants therein are minors, cr other persons under guardianship, and the general guardian, j. iO
or person appointed guardian by the court, shall ſail to give the security herein before required, it shall be
the duty of the court, on the application of the complainants, to appoint one of the registers of said court,
Char: 109.] ( 688 ) [TITLE 23.
Wheu issue of
fact to be tried
by jury.
Court may per-
mit bill and pro-
ceedings to be
amended.
Rights of parties
affecled by a-
mendment.
Roference to . .
take proof of
title of complain-
*In 18.
“how-ascertained,
and decreethere-
Oſºv,
5 the guardian of such minors or other persons, for the purpose of such partition, and to dispense with the
6 securities herein before required.
1 SEc. 16. Any defendant may deny the joint tenancy, or tenancy in common, of any co-defendant; and
2 whenever the court shall deem it, necessary, for the purpose of determining the rights of any of the parties
3 in the premises of which partition shall be sought, that any issue of fact between the parties or any of them,
4 should be tried by a jury, such court may award a ſeigned issue for that durpose, which shall be tried by a
5 jury, and the verdict thereon be returned as in other cases, and with the like effect.
SEC. 17. Either beſore or after the trial of such issue, the court may permit the bill and all subsequent
proceedings to be amended so as to represent truly the rights claimed by any party; or so as to make any
3
person a defendant who shall have appeared in the course of the proceedings to be interested in the premi-
ses, and who might originally have been made a defendant if his interest had then existed or been known;
5
but no person shall be so made a defendant unless by his consent, without forty days’ notice of the motion
6
to that effect being personally served on him, or published once in each week successively for three months
in the state paper.
1
SEC. 18. After any such amendment, any party whose rights are affected thereby, and who has not had
an opportunity to sustain his claim, shall have the right to answer the bill, or to put in a further answer
3
thereto, and to maintain his claim, as the circumstances of the case may render proper.
1 SEC. 19. If the bill shall be taken as confessed by any of the defendants, whether known or unknown,
2. the court shall order a reference to a master to take proof of the title of the complainants, and report the
3 same to the court; and the complainants shall exhibit before such master, proof of their title, and an ab-
4 stract of the conveyances by which the same is held.
1 SEC. 20. Upon the hearing of the cause, the court shall ascertain from the proofs so taken, in case of the
*:
2 bill being taken as confessed ; or from the bill and answer, or pleadings and proofs, if the defendants ap-
3: peared and answered, and shall declare the rights, titles and interests: of the parties to such proceedings, com-
Chap. 109.] e - ( 689 ) - [TITLE 28.
4.
5
6
I
I
Sec. 21. If upon the hearing of the cause, the part or interest of any parties who shall not have appeared
\
plainants as well as defendants, so far as the same shall have appeared ; and shall determine the rights of
the said parties in such lands, and shall decree that partition be made between such of them as shall have
any right therein, according to such rights. - ... " |
- . . Decree in case
& • - • - - r - . . . the right of some
and answered the bill, whether known or unknown, in and to such premises, shall not have appeared by the ...hº...” “
- - not appear.
º ,’ve
proofs in the cause, then the court shall decree that partition be made, so far as the rights or interests of the
parties who are known, and who have appeared in the cause, have been ascertained, and the residue of the
premises shall remain for the parties whose interests have not been ascertained subject to division between
them at any ſuture time. -
SEc. 22. Upon making a decree for partition as provided in the two last preceding sections, an order shall Reference to in-
- - - ... quire into situa-
, tion of premiseg.
be entered reſerring it to a master to inquire into the situation of the premises, and to report whether such
premises, or any part of them are so circumstanced that a partition and division thereof amongst the par-
ties interested cannot be made without great prejudice to the owners.
SEc. 23. If upon the coming in of the report of the master, the gourt shall be satisfied that partition of the
r - f - When and how
£ommissioners
appointed to
premiº between the parties interested therein can be made without prejudice to the owners, such court make partition.
shall by an order to be entered in its minutes, appoint three discreet and disinterested freeholders, commis.
sioners, to make the partition so decreed, according to the respective rights and interests of the parties, as
the same were ascertained and determined by such court, and in such order the court shall designate the
pait or shares, if any, which shall remain undivided, for the owners whose interests shall be unknown or -
not ascertained.
SEc. 24. If the persons so appointed commissioners, or either of them shall die, resign, or neglect to serve, -
w } - O tº Vacancies.
the court may, ſrom time to time, appoint others in their places.
Sec. 25. The commissioners, before proceeding to the execution of their duties, shall severally be sworn
173
Char, 109.] ( 690 ) [TITLE 23.
Oath of com-
missioners.
2 beſore any officer authorized to administer oaths, honestly and impartially toexecute the trust reposed in them,
3 and to make partitition as directed by the court; which oath shall be filed with the register of the court, a
4 or before the coming in of the report of such commissioner.
How partition to 1 - SEC. 26. In making partition, the commissioners shall divide the said real estate, and allot the several por-
be made.
Report of com-
missioners.
All to meet, etc.
; and expen-
Bes,
Setting aside re-
port, etc. .
2 tions and shares thereof to the respective parties, quality and quantity relatively considered, according to
3 the respective rights and interests of the parties so adjudged and decreed by the court, designating the seve-
4, ral shares and portions by posts, stones or other permanent monuments; and they may, iſ necessary, employ
5 a surveyor with the necessary assistants, to aid them therein.
tº *s, * * $ . . . . ; -- * . . . - * - * > . - - - v.
1 SEc. 27. The commissioners shall make an ample report of their proceedings, under the hands of any two.
2 of them, specifying therein the manner of executing their trust, and describing the land divided, and the
.*.*
**-
3 shares allotted to each party, with convenient certainty, and the items of their charges.
1 SEc. 28, All the commissioners must meet together in the performance of any of their duties, but the acts
2 of a majority so met, shall be valid.
1 SEc. 29. The expenses of the commissioners, including the expenses of a surveyor and his assistants, when
2 they shall be employed, shall be ascertained and allowed by the court ; and the amount thereof, together
3 with such compensation as shall be allowed to the commissioners by the court for their services, shall be
4 paid by the complainants, and shall be allowed to them as part of the costs to be taxed.
1 SEC. 30. On, good cause shown, the court may set aside the report, and commit the case to the same, or
2 appoint new commissioners, as often as may be necessary, who shall proceed in like manner as herein be-
3 fore directed,
1 SEc. 31. Upon the confirmation of the report of any commissioners by the court, a decree shall thereupon
2 be entered, that such partition be firm and effectual forever, and such decree shall be binding and conclu-
Y)ecree on COIl-
firmation of re-
port.
3 sive,
Char, 109] ( 691 ) [Trris 23.
4, 1. On all parties named therein, and their legal representatives, who shall at the time, * tiriy interest
5. in the premises divided, as owners in ſee, or as tenants for years, or as entitled to the reversion; remainder
(6 or inheritance of such premises, aſter the termination of any particular estate therein; or who, by any doñ-
7 tingency contained in any will or grant, or otherwise, may be or become entitled to any beneficial interest
8 in the premises; of who shall have any interest in any undivided share of the premises, as tenant for years
9 for life, by the curtesy, or in dower : - - * &
10 2. On all persons interested in the premises, who may be unknown, to whom notice shall have been, giv-,
11 en by publishing the same as is herein before directed ; and
12 3. On all other persons claiming from such parties or persons, or either of them.
1 SEC 32. But such decree and partition shall not affect any tenants, or persons having claims as tenants,
Persons and
2 in dower, by the curtesy or for life, to the whole of the premises which shall be the subject of such parti-ś"” affect-
3 tion ; nor shall any such decree and partition preclude any person, except such as are specified in the last
'4 preceding section, from claiming any title to the premises in question, or from controverting the titles or in-
5 terest of the parties, between whom such partition shall be made.
1 SEC. 33. Iſ the master to whom reference shall be made as herein before provided, shall report to the court
When sale may
bc ordered.
2 that the lands or tenements of which division and portition is sought, are so situated, or that any distinct.
3 tract, lot or partion thereoſ, is so situated, that a partition and division thereof amongst the persons interest-
4 ed therein, cannot be made without great prejudice to the owners; and if the court shall be satisfied that.
5, such report is just and correct, the court may thereupon make an order that the master sell the premises so.
6 situated, at public auction, to the highest bidder.
1 SEc. 34. The court shall direct, iu such order, the terms of credit which may be allowed, for any portions
2 of the purchase money of which it shall think proper to direct the investment, and for such portions of such §§§.
rms of credit,
&c.
4 purchase money, as are required by the provisions herein after contained, to be invested for the benefit of
5 any unknown owners, any infants, any parties out of the state, or any tenants for life, in dower, or by the
1
6. curtesy.
CHAP. 109.]
( 692 ) [TITLE 23.
Credits how sc-
eured.
Separate securi-
ties
. To whom to bo
deliverca. -
Creditors having
specific liens to
bc made parties
before order for
s:ulc. Gencral
licns to bo ascer-
tained.
Noticc to credi-
tors having gen-
eral liens, &c,
1.
2.
I
Sec. 35. The portions of the purchase money for which credit shall be allowed, shall always be secured
at interest, by a mortgage of the premises sold, by a bond of the purchaser, and by such other security as
the court shall prescribe.
Sec. 36. The master may take separate mortgages and other securities, for such convenient shares or por,
tions of the purchase fºoney, as are directed by the court to be invested, in the name of the register of the
court in whose office the original bill for a partition was filed, and his successors in office ; and ſor such
shares as any known owner of full age shall desire to have so invested, in the name of such owner.
SEc. 37. Upon such sales being confirmed, as hereinaſter mentioned, the said master shall deliver such
mortgages and other securities, to the register of the court, or to the known owners whose shares were so
invested.
SEc. 38. Before making any order for the sale of the said premises, where the creditors having specific
liens shall not have been made parties, the court shall direct the complainant to amend his bill, by making
every creditor having a specific lien on the undivided interest or estate of any of the parties, by mortgage
or otherwise, a party to the proceedings; and shall direct a master of the court to ascertain and report whe-
ther the shares or interesis in the premises, of the parties in such suit, or any of them, are subject to any
general lien or incumbrance, by judgment or decree.
*
Sec. 39. The master to whom such reference shall be made, shall immediately cause a notico to be pub-
lished once in each week for six weeks successively, in such newspaper or newspapers as the court shall
direct requiring all persons having any any general lien or incumbrance on any undivided share or interest
therein, by judgment or decree, to produce to the said master, on or before a certain day to be named in such
tice, proof of all such liens and incumbrances, together with anayo. evidence of the amount due there-
on ; and the Inaster shall report with all convenient speed the names of the creditors, the value of the in-
cumbrances, the dates thereof, and the several amounts appearing to be due thereon.
Sec. 40. If it shall appear by the proceedlngs on such bill, or by such report, that there are any existing
Char. 109.] - ( 693 ) * [TITLE 22.
2
3
10
incumbrances upon the estate or interest in the premises, of any party named in the proceedings in the suit,
Certain moneye
to be brought in-
to COut!,
the court shall, in the order of sale, direct the master to bring into court and pay to the register, the portion
of the moneys arising ſrom the sale of the estate and interest of such party, after deducting the portion of
*
the costs, charges and expenses to which it shall be liable.
SEc. 41. Such party may apply to the court to order such moneys, or such part thereof, as he shall claim,
Application for
moneys brought
ſe & & te & & lſ).
to be paid to him; which application shall be accompanied,
1. By his own affidavit, stating the true amount asually due on each incumbrance, the owner of such in-
cumbrance, and his residence, as ſar as known to such party:
2. By proof by affidavit, of the due service of a notice on each owner of any incumbrance, of the inten-
tion to make such application, at least fourteen days previously. If such owner reside in this state, such
notice shall be served ºnly or if he be absent ſrom his ºne, by leaving a copy there, with wn.
person of proper age. If such owner reside out of this state, such notice may le served on him personally,
thirty days previously, or by publishing the same in the state paper six weeks successively, once in each
week. -
SEc. 42. Upon such application and proof of notice, the court shall proceed to hear the proofs and allega-
Proceedings on
application.
tions of the parties: and if any question of ſact shall arise, which, in the opinion of the court, cannot be sa-
tisſactorily determined without a trial by jury, the court shall award a ſeigned issue, to be tried as in other
cases, and the costs of such trial shall be paid by the party ſailing, which payment shall be enforced by at-
tachment, as in other cases.
SEC. 43. When the amount of existing incumbrances shall have been ascertained, the court shall proceed
Distribution of
* * * & gº e • * o te Inoncys amon
to order a distribution of the moneys so brought into and remaining in court, among the several creditors creditors. {
having such incumbrances, according to the priority thereoſ respectively,
174
CHAP. 109.] ( 094 ) [TITLE 23.
Register to pro-
cure discharge
of incumbran-
ces.
Other parties not
to be delayed,
Sale of dower or
other life estate
in premises.
Ib.
Payment to
owner of life es-
tate, &c. with
his assent,
I SEC. 44. The register of the court by whom any such incumbrance shall be paid off, shall procure satisfac-
2 tion thereof to be acknowledged, in the form required by law, and shall cause such incumbrance to be duly
3 satisfied or canceled of record, and shall defray the expenses thereof, out of the portion of the moneys in
4 court belonging to the party by whom such incumbrance was payable.
1 SEC. 45. The proceedings to ascertain and settle the amount of incumbrances as herein provided.
2 shall not affect any other party in such suit for partition, nor delay the paying over or investing of moneys
3 to or for the benefit of any party, upon whose estate in the premises there shall not appear to be any exist-
4 ing incumbrances.
1 Sec. 46. Whenever the estate of any tenant in dower, or by the curtesy, or for life, in the whole or any
2 part or share of the premises in question, has been admitted by the parties, or ascertained by the court, to
3 be existing at the time of the order ſor such sale, and the person entitled to such estate has been made a
4 party to the proceedings, the court shall first consider and determine under all the circumstances of the case,
5 whether such estate ought to be excepted from such sale, or whether the same should be sold, and in making
6 such determination, regard shall be had to the interests of all the parties.
1 Sec. 47. If a sale of the premises, including such estate shall be ordered, the estate and interest of every
2 such tenant or person, shall pass thereby, and the purchaser, his heirs and assigns, sholl hold such premises
3 free and discharged from all claims by virtue of any such estate or interest, whether the same be to any un-
4 divided share of a joint tenant, or tenants in common, or to the whole or any part of the premises sold.
1 Sze. 4s. Upon such sale being made of any such interest or estate, the court shall direct the payment of
2 such sum in gross, out of the proceeds thereof, to the person entitled to such estate in dower, tenancy by the
3 curtesy, or tenancy for life, as shall be deemed upon the principles of law applicable to annuities, a rea-
4 sonable satisfaction for such estate or interest, and which the person so entitled shall consent to *P* in
5 lieu thereof, by an instrument under seal, duly acknowledged or proved in the manner that deeds are re-
6 quired to be acknowledged or proved, to entitle them to be recorded.
CHAP. 109.] v ..? ( 695 ) [TITLE 23.
1
2
10
H -
Sec. 49. In case no such consent is given at or before the coming in of the report of sale by the master,
Pleadings if con-
ser:t be not giv-
then the court shall ascertain and determine what proportion of the proceeds of such sale, after deducting all en
expenses, will be a just and reasonable sum to be invested ſor the benefit of the person entitled to such es-
tate or interest in dower, by the curtesy or ſor life, and shall order the same to be brought into court for that
O
purpose.
SEc. 50. The proportions of the proceeds of such sale to be invested, shall be ascertained and determined, Proportions to
be invested.
in the several cases, as follows:
1. If an estate in dower shall have been included in such order of sale, its proportion shall be one-third of
the proceeds of the sale of the premises, or of the sale of the undivided share in such premises, upon which.
In case of dow-
er...
such claim of dower existed:
2. If an estate by the curtesy, or other estate for life, shall be included in the order of sale, its proportion
shall be the whole proceeds of the sale of the premises, or of the sale of the undivided share thereof, in
- Estate for lifo.
which such estate shall be:
And in all cases, the proportion of the expenses of the proceedings shall be deducted from the proceeds of
such sale.
SEc. 51. If the persons entitled to any such estate in dower, by the curtesy, or for life, be unknown, the Rights of un
known owners.
to be protected.
court shall take order for the protection of the rights of such persons, in the same manner, as far as may be,” “”
as if they were known and had appeared.
Sec. 52. The master shall give notice of any sale to be made by him, for the same time, and in the same Neuscrºl, by
ImaSier.
manner as is required by law on Sales of real estate by sheriffs in execution.
SEG. 53. The terms of such sale shall be made known at the time; and if the premises consist of distinct
How conducted.
lots, tracts or parcels, they shall be sold separately.
SEc. 54. No such master, nor any person for his benefit, shall be interested in the purchase, nor directly ...”
- - guardians not to.
g purchase.
2 or indirectly purchase, any of the premises sold; nor shall any guardian of any infant party in such suit,
Chap. 109] ( 696 ) [Title 23.
Report of sale.
Order for con-
veyances.
Conveyances to
be recorded;their
effect.
Effect of con-
veyances upon
rights of credi-
\OIS 4
Costs and cz-
penses of pro-
ceedings.
Distribution of
proceeds of sale
among parties.
3
4
purchase, or be interested in the purchase of any lands being the subject of such suit, except for the benefit
or in behalf of such infant; and all sales contrary to the provisions of this section shall be void.
Sec. 55. After completing such sale, the master shall report the same to the court, with a description of
the different parcels of land sold to each purchaser, the name of such purchaser, and the price bid by him
which report shall be filed in the court.
*
SEc. 56. If such sales be approved and confirmed by the court, an order shall be entered directing the
master to execute conveyances pursuant to such sales; which such master shall be authorized to do upon
the entry of such order.
SEC. 57. Such conveyances so executed, shall be recorded in the county where the premises are situated;
and shall be a bar, both in law and equity, against all persons interested in any way, who shall have been
named as parties in the said proceedings, and against all such parties as were unknown if notice of the or-
der to appear and answer shall have been given by such publication as is herein before directed; and against
gll other persons claiming from such parties, or either of them.
Sec. 58. Such conveyances shall also be a bar against all persons having general liens or incumbrances,
by judgmen: or decree, on any undivided share or interest in the premises sold, in all cases where the no-
tice to such creditors hereinbefore prescribed, shall have been given ; and also against all persons having
specific liens on any undivided share or interest therein, who shall have been made parties to the proceed.
& sº g * g - y * - Gºs
ings; but no creditor having any such specific lien shall be affected by such sale or conveyance, unless he
shall have been made a party to the proceedings.
Soc. 59. The costs and expenses of the proceedings shall be deducted from the proceeds of every sale
made by the master, and shall be by him in the first instance, paid to the complaints or their solicitor.
Sec. 60. The proceeds of every sale, aſter deducting the costs shall be divided among the parties whose
rights and interests shall have been sold, in proportion to their respective rights in the premises; and the
CHAP. 109.] ( 697 ) ITITLE 23.
3
4
shares of such of the said parties as are of full age, shall be paid to them or their legal representatives by
the master, or shall be brought into court for their use.
SEC. 61. When any of such known parties are infants, the court may in its discretion, direct the shares of
Shares of
* known infants,
*
such inſant to be paid over to the general guardian, or to be invested in permanent securities at interest, in
the name and for the benefit of such infant.
SEC, 62. Where any of the parties whose interests have been sold are absent from the state, without legal
Shares of un-
º sº known and ab-
*Presentatives in this state, or are not known or named in the proceedings, the court shall direct the shares ****
of such parties to be invested in permanent securities at interest, for the benefit of such parties, until claim.
ed by them or their legal representatives.
SEc. 63. Where the proceeds of a sale belonging to any tenant in dower, or by the curtesy, or for life,
Tenants in dow-
er for life,
shall be brought into court as hereinbefore directed, the court shall direct the same to be invested in perma-
nent securities at interest, so that such interest shall annually be paid to the parties entitled to such estate,
wº
- ,’
during their lives respectively.
SEc. 64. The court may, in its discretion, require all or any of the parties, before they shall receive any S
ecurity to re-
fund.
share of the moneys arising from such sales to give security to the satisfaction of such court, to refund the
said share with interest thereon, in case it shall thereaſter appear that such party was not entitled thereto.
1n what names
Securitics to be
aken.
SEC. 65. When any security is directed to be taken by the court, or any investment to be made, or any
- º $ º t
Security shall be taken by a master on the sale of any real estate as hereinbefore directed, except where
provision shall be made for taking the same in the name of any known owner, the bonds, mortgages, or
other evidences thereof shall be taken in the name of the register of the court in whose office the original
bill was filed, and his successors in office, who shall hold the same by virtue of his office, and shall deliver
them to his successor.
175
Cääß, ióð.] ( 698 ) [TifLE 23.
Register to re-
ceive and apply
moneys and
render account,
Invcstment how
inade, &c.
Suits on securi-
tics.
Costs of partition
how assessed
and collected.
1 SEC. 58. Such register shall receive the interest or principal of any suñs as they become due, and apply
2 or re-invest the same, according to the circumstances of the case, as the court shall direct ; and shall oncé
8 in every year, render to the court an account in writing, and on oath, of all moneys received by him, and
4 of the application thereof.
1 Sec. 67. All investments, or re-investments, under the provisiens of this chapter, shall be made on bond
2 and mortgage upon unincumbered real estate, of at least double the value of such investment, exclusive of
3 buildings, or in other equivalent security; and no such security, bond, mortgage or other evidence of such
4 investment, shall be discharged, transferred or impaired, by any act of the register without the order of the
5 court entered in the minutes thereof.
1 SEC. 68. Any person interested in sucn investments or securities, may, with the leave of the court, prose-
2 cute the same in the name of the existing register, and no suit shall be abated by the death, removal from
3 office, or resignation of the register to whom such securities or evidences were executed, or of any of his
4 successors.
1 SEC. 69. When a decree confirming the partition made by any commissioners, shall be entered as provi-
2 ded in this chapter, the court shall also adjudge and decree that each of the parties concerned therein, other
3 than the complainants, pay to such complainants, a proportion of the costs and charges of the proceedings,
4 to be ascertained by the court, according to the respective rights of the parties, and the proportion of such
5 costs and charges assessed upon the unknown owners, to be chargeable on the part remaining undivided ;
6 and upon such decree execution may issue as in other cases, and may be levied on the property of the par-
7 ties respectively charged with such costs, and upon any share or part of the premises allotted on any such
8 division to any owner unknown, or not named, and upon every portion remaining undivided, for the propor-
9 tion adjudged to be paid by such owners, or chargeable to the part remaining undivided.
1 SEC. 70. A sale of the premises of such owner unknown, upon such execution, shall be as valid as if such
CHAP, 109.] . ( 699 ) ITITLE 23.
2
3
5
the same had been executed by such infant aſter arriving at full age; and in case of the sale of any part of .
owner had been named in the proceedings, and in such execution ; but no such execution shall issue against Execution a-
** gainst premises
of unknown
e owner, &c.
the premises of such unknown owner, until after two years from the entry of such decree. &
* Costs against
Sec. 71. If a bill for partition shall be dismissed, or the suit shall be discontinued, the complainants shall;";
etC,
pay costs, to be collected as in other cases.
Sec. 72, Any of the parties to a suit for the partition or sale of any premises under the provisions of this
chapter, and any party interested in the premises, though not named in the proceedings, may, jointly or Appeal,
separately, and without the consent of any co-complainant or co-defendant, appeal from any decree or order
of the said court, upon any such proceedings, within the same time, and under the like regulations, as in oth-
er Cases.
SEc. 73. Whenever it shall appear satisfactorily to the court of chancery, by due proof, or on report of a
e § * - e ‘º e • * • , ~ | :al, Partition or sale
master, that any infant holds real estate in joint tenancy, or in common, or in any other manner which . . .
ſants by guar-
dians.
would authorize his being made a party to a suit in partition, and that the interest of such inſant, or of any
other person concerned therein, requires that partition of such estate should be made, such court may di-
rect and authorize the general guardian of such infant to agree to a division thereof, or to a sale of such
premises, or of such part thereoſ, as in the opinion of the court shall be incapable of partition, or as shall
be most for the interest of such inſant to be sold,
SEC. 74. Such guardian shall report to the court, on Oath, the partition or sale so made by him, and if the Report of guar-
dian and order
for conveyan-
same be approved and confirmed by the court, an order shall be entered authorizing such guardian to exe-”
cute conveyances of the right of such inſant to such part of the said estate as shall have been sold, to the
purchaser thereof; or to execute releases of the rights of such Infant to such part of the said estate, as in
the division falls to the sharers of the other joint tenants, or tenants in common.
SEc. 75. Such deeds shall be as valid and effectual to convey the share and interest of such infant, as if Emei ordeed,
infants wards of
COUlrt.
such estate, the infant shall be deemed a ward of the Court, and such order shall be taken as the court may
CHAP: 109.] X. ( 700 ) [TITLE 23.
If infant a mar-
ried woman, hus-
band to be guar-
dian.
Partition by
guardians of lu-
natics, etc.
Releases when
to be authorized.
Effect of releas-
CS,
Partition when
state is interest-
ed.
4, direct, for security, investing and applying the proceeds of the sale, and for requiring security from the
5
2
2
5
guardian for that purpose.
SEC. 76. Whenever such infant shall be a married woman, the court of chancery may, upon petition, ap-
point her husband as her guardian, and in case of the appointment of the husband, the provisions of the three
last preceding sections shall apply to such husband.
SEc. 77. Whenever it shall appear to the court of chancery, on the application of the guardian of any
idiot, lunatic, spendthrift, or person mentally incapable of managing his affairs, holding any estate in joint
tenancy, or in common, or in any other manner to authorize his being made a party to a suit in partition,
that the interest of such idiot, lunatic, or other person aforesaid, or of any of the parties interested in such
estate, requires a partition thereof, it shall be referred to a master in chancery to inquire into and report up"
on the circumstances.
SEc. 78. Upon the coming in of the report, and a hearing and examination of the matter, the court may
authorize such guardian to agree to a partition of such estate, and to execute releases of the right of such
idiot, lunatic, or other person as aforesaid, in and to the shares of such estate falling to the other joint te
nants, or tenants in common.
SEc. 79. Such releases shall be as valid and effectual to convey the share of such idiot, lunatic, or other
person as aforesaid,as if the same had been executed by them respectively, when of sound mind and under-
standing, and not snbject to guardianship, and for a valuable consideration.
SEc. 80. When any lands shall be held by the people of this state, and by any individuals, as tenants in
common, proceedings for the partition thereof may be had against the people of this state in the court of
chancery in the same manner as against individuals, and the like orders and decrees shall be had therein,
and the proportion of the costs and expenses of such partition, adjudged to be paid by the people of this
state, shall be certified by the attorney general, and paid out of the state treasury on the warrant of the au-
ditor general.
Chap. 110.] ( 701 ). LTITLE 23.
l
2
4
l
2
3
mit waste, the party entitled to the reversion of the tenements, may maintain his action on the case for su
SEc. 81. The subpoena to answer, and all notices required to be served in other cases, shall be served on :::::::.
torney general.
the attorney general who shall appear in behalf of the state, and attend to its interests,
SEc. 82. The authority given by this chapter to proceed for the partition of real estate, shall not author- claims barred by
- " . limitutions, etc.
ize the revival or prosecution of any claim to lands which would, or otherwise might be barred by the sta-
tute of limitations, or by the acquiesence of any party having any such claim.
SEc. 83. Whenever partition shall be decreed by the court of chancery, if it shall appear that it cannot C
Xompensation
e for equality of
partition.
be made equal between the parties, without prejudice to the rights and interests of some of them, the court
may decree compensation to be made by one party to the other, for equality of partition, according to the
equity of the case.
CHAPTER 110.
OF WASTE.
Who liable to
Section 1. If any guardian, or any tenant by the curtesy, tenant in dower, or for term of life or years,
- - - - - action for waste,
or the assigns of any such tenant, shall commit or suffer any waste during their several terms or estates, of
the houses, gardens, orchards, lands or woods, or of any other thing belonging to the tenements so held,
without having a lawful license in writing so to do, they shall respectively be liable to an action on the case
for such waste.
Sec. 2. ln case any such tenant shall let or grant his estate, and still retain possession thereof, and com-
Where tenant
liable after grant-
ch ing his estate.
*
waste against such tenant.
Sec. 3. lf one joint tenant, or tenant in common, shall commit waste of the estate held in joint tenancy
Joint tenants,
and tenants in
or in common, he shall be subject to an action on the case for such waste, at the suit of his co-tenant or ten common.
ants.
176
Char. 110.] ( 702 ) [Title 23.
- Suit by heirs.
By whom action
may be brought.
Judgment.
Staying the com-
mission of waste
by defendants,
Staying waste
after uttachment
or exccution le-
vied. -
1 SEC. 4. An heir, whether of full age or not, aſter coming into possession of the inheritance, may maintain
# .
2 an action on the case for waste done in the time of his ancestor, as well as in his own time, unless a recov-
. . .
3 ery shall have been had therefor by the executor or administrator of such ancestor.
1 Sec. 5. Such action may be brought by the person having the next immediate estate, in ſee, or ſor life or
2 years in the premises in question ; or by any person who has the remainder or reversion in ſee, or for life,
. . . • • . . . . . . . . . ; - ! . . . . . . . . . . . * - -
3 after an intervening estate for life or years, and each of them shall recover damages according to his estate
4 in the premises,
1 SEc. 6. If the plaintiff in such action prevail therein, he shall have judgment for three times the amount
t
. . . ( . - - - # : , . . • . . . . .
2 of damages ſound by the jury.
1 SEC.7. Aſter the commencement of any action on the case for waste, or ofanyºn for the recovery of
2 land, or of the possession of land, the defendant shall not make any waste of the land in demand or premi-
3 ses in question, during the pendency of the suit ; and if such defendant shall commit any waste thereon, or
4 shall threaten or make preparations to commit waste thereon, the court in which the suit is pending, or any
5 justice thereof or supreme court commissions, either in term time or vacation, shall have power, on the ap-
6 plication of the plaintiff, to make an order restraining the defendant from the commission of any waste, or
7 further waste thereon,
1 SEc. 8. If any person shall commit, or threaten, or moke preparations to commit any waste on any real
2 estate which shall be attached, or levied upon by execution in any civil action, the court from which such
3 execution or attachment shall have issued, or any one of the justices thereof, or a supreme Court commission-
Action for waste'
of land sold by . . .
cxcCution.
4 er may, on the application of the plaintiff, either in term time or vacation, make an order restraining such
5 personſtom committing any waste, or further waste thereon.
1 SEc. 9. Whenever any lands or tenements shall be sold by virtue of an execution, issued upon any judg:
2 ment or decree, the person to whom a conveyance may be executed by the sheriff pursuant to such sale,
CHAP, 110.] ( 703 ) . [Trrº, 23.
- Q.
3 may maintain an action on the case ſor waste against any person, for any waste committed by such person
4 on the premises aſter such sale,
*
1 SEc. 10. But no person lawfully entitled to the possession of any premises so sold, shall be liable to any ºf".
2 such action for doing either of the acts authorized in the next section.
1 Sec. 11. Any person entitled to the possession of lands or tenements sold under execution, may, until the ceasinae, not
Wagte,
2 expiration of fifteen months ſrom the time of such sale, use and enjoy the same, as follows, without being
3 deemed guilty of waste :
4 I. He may, in all cases, use and enjoy the premises sold, in like manner, and for the like purposes, in and
5 ſor which they were used and applied prior to such sale, doing no permanent injury to the freehold:
fi 2. If the premises sold were buildings, or any other erections; he may make necessary repairs thereto, but
7 he shall make no alterations in the form or structure thereof:
8 3. If the premises sold were land, he may use and improve the same, in the ordinary course of husbandry;
f ,-
9 but he shall not be entitled to crops growing any thereon at the expiration of the said fifteen months;
10. 4. He may apply any wood or timber on such land to the necessary reparation of any ſences, buildings Of
11, erections which may have been thereon at the time of the sale:
12 5. If the land sold is actually occupied by such person, he may take necessary firewood therefrom for the
13 use of his family.
1 SEc. 12. If the person against whom any order shall be made to restrain waste, as provided in this chap- Violation of
folation of or-
der how punish-
2 ter, shall, after the service of a copy thereoſ, commit any waste in violation of the said order, he shall be.”
t
3 liable to be proceded against and punished in the same manner as for a violation of an injunction to stay
4 waste, issued out of the court of chancery; and for that purpose the court or officer making such order, shall
5 possess the same power, and jurisdiction as the chancellor.
1 SEC. 13. When complaint shall be made of the violation of any such order to restrain waste, the court or Notice to show
• Cºllº &.
*officer may order notice to be given to the person complained of, to show cause why he should not be com-
8 mitted, if from the circumstances of the case they shall judge such order expedient.
CHAP. 111.] - ( 704 ) [TITLE 23.
O
1 Sec. 14. Upon satisfactory proof of such violation, such court or officer shall issue a warrant to the sheriff
Form º COIn-
mitment.
2 of the county, reciting such order and the violation thereof, and thereby commanding such sheriff to com-
Ye
3 mit such person to close confinement, for such term of time, not more than one year, as shall be deemed
4 expedient.
1 Sec. 15. The sheriff shall execute such warrant accordingly, and shall commit the person named therein,
How warrant to
be exccuted.
2 without allowing him the liberties of the jail.
1 Sec. 16. Such warrant may be superseded, and such person may be discharged by the court or officer com-
When defendant - -
#. * * 2 mitting him, upon receiving a bond, in such penalty, and with such sufficient sureties, as such court or offi-
3 cer may approve, to the person appplying for the warrant of commitment, conditioned that such prisoner.
4 shall not commit any waste on such premises; which bond shall be delivered to such applicant for his use,
5 and to be prosecuted by him ſor any breach of the condition thereof.
1 SEC. 17. The court of chancery shall have jurisdiction of all matters concerning waste, in which there is
Jurisdiction of
...
cery. o - • . . . -
2 not a plain, adequate and complete remedy at law ; and may grant injunctions to stay or prevent waste;
3 and whenever it shall be necessary or proper to have any fact in such a case tried by a jury, such court
4 may award a feigned issue for that purpose, as in other cases.
CHAPTER, 1 II. -
OF TRESPASSES ON LANDS,
1 SECTION 1. Every person who sh * * * ſº º
Treble damages y p - o shull cut down or carry off, any wood, underwood, trees or timber,"or shall.
in certain cases.
2 girdle or otherwise despoil or injure any trees on the land of any other person, without the leave of the
3 owner thereof, or on the lands or commons of any city, township, village or other corporation, withont li-
4 cense therefor given, shall be liable to the oner of such land, or to such corporation, in three times the
8 amount of damages which shall be assessed wreſor in an action of trespass, by a jury, or by a justice of:
6
the peace in the cases provided by law.
CHAP. 112.] - ( 705 ) [TITLE 22.
1
2
Sec. 2. If upon the trial of any such action, it shall appear that the trespass was casual and involuntary,
Exceptions of
eertain cases.
or that the defendant had probable cause to believe that the land on which such trespass was committed was
his own; or that such wood trees or timber were taken for the purpose of making or repairing any public
road or bridge; judgment shall be given to recover only the single damages assessed.
.”
SEc. 3. If any person shall be ejected or put out of any lands or tenements in a forcible and unlawful man- forciy entry
- on detainer.
ner, or being put out, be aſterwards holden and kept out by ſorce, or with strong hand, he shall be enti-
tled to maintain an action of trespass, and shall recover therein three times the amount of damages assess-
ed by the jury, or by a justice of the peace in the cases provided by law.
2
CHAPTER ( 12.
of Actions FoR PRIVATE NUIsANCEs.
SECTION 1. In actions on the case for a private nuisance, when the plaintiff prevails, he shall, in addition
Judgment In ac-
tion ſor nui-
to the usual judgment for damages and costs, also have judgment that the nuisance be abated and removed, “"“”
unless the justice holding the circuit court at which any issue of ſuct joined therein shall be tried, shall cer-
tify in the minutes of such trial, that the abatement thereof is unnecessary.
*
SEc. 2. In case of a judgment that the nuisance be abated and removed, the plaintiff shall have execution
Execution and
warrant in case
e • la tº g ... of judgment that
in the common form for his damages and costs, and a separate warrant to the proper officer, requiring him j
ted.
to abate and remove the nuisance, at the expense of the defendant, in like manner as public and common
nuisances, are abated and removed.
SEc.3 The court or any justice thereof may,on the application of the defendant, order a stay of such war-
How Warrant
may be stayed,
ant for such time as may be necessary, not exceeding six months, to give him an opportunity to remove the
3 nuisance, upon his giving satisfactory security to do so within the time specified in the order.
17?
Char. 118.] ( 706 ) [Title 23.
1 SEc. 4. The expense of abating and removing the nuisance pursuant to such warrant, shall be collected
Expense of re-
moving nuisance
.." how 2 by the officer in the same manner as damages and costs are collected upon execution, excepting that the
3 materials of any buildings, fences, or other things that may be removed as a nuisance, may be sold by the
4 officer, in like manner as goods are sold on execution for the payment of debts; and the officer may apply
5 the proceeds of such sale to defray the expenses of the removal, and shall pay over the balance thereof,
6 if any, to the defendant upon demand ; and if the proceeds of the sale are not sufficient to defray the said
7. expeses, he shall collect the residue thereof as before provided.
When chancery 1 SEc. 5. The court of chancery shall have jurisdiction in all matters concerning nuisances, where there is
to have jurisdic-
fion in case of
*** ** 2 not a plain, adequate and complete remedy at law,and may grant injunctions to stay or prevent nuisances.
CHAPTER 113.
GENERAL PROVISIONS CONCERNING ACTIONS RELATING TO REAL ESTATE.
1 SEC. I. If any tenant for life, in dower, or by curtesy, or any tenant for years, be impleaded, and the per-
Reversions, &c.
when to be ad-
mitted. son to whom the reversion or remainder appertains, shall come into court before any trial shall be had in
2
3 such action, or before judgment by default therein, and pray to be reccived to defend his right, he shall be
4 received for that purpose, and shall be permitted to plead to the action, upon such terms as the court may
5
deem just.
1 Sec. 2. If any tenant for life or years, make default or give up any lands demanded, so that judgment be
When to sue aſ-
ºul of te- 2 given on such default or surrender, the person to whom the reversion or remainder of such lands appertains,
! &
3
may after the termination of the estate of such tenant, have an action of ejectment to recover the same
4 lands.
when wiſe toba | * * When a husband and wiſe shall be impleaded, if the husband absent himself, or will not defend the
admitted to d2-
fend.
2 rights of the wiſe, if she apply before judgment, she shall be admitted by the court to defend without her
i
3 husband.
Caar. 113.] ( 707 ) [TITLE 23.
1
2
2
4.
SEc. 4. If the husband lose by default, any land which was the right of his wife, the wife after the death
Wife may reco-
.. ver, aſter default
of her husband, may have an action of ejectment to recover the same, and the judgment by default shall be “”
no bar to such action.
Sec. 5. All recoveries had by agreement of parties, or by fraud, against any tenant for liſe, in dower or certain recover-
- ies void as to re-
versioners, &e.
by the curtesy, of any lands, tenements or hereditaments, shall be void as against all persons to whom any
reversion or remainder of such lands shall appertain, and as against their heirs, unless the appearance of
the person having sueh reversion or remainder shall have been duly entered in the court where such reco.
very shall be had.
Sec. 6. No execution shall be avoided by means of any feigned recovery, but all persons entitled to have
Feigned recov-
execution of the lands, tenements or hereditaments, shall have the like means to avoid and falsify the same eries,
recoveries, as a tenant of the freehold, who was neither party nor privy to such recovery, has by the course of
the common law.
Sec. 7. A lessee for years may falsify for his term only, recoveries, in the same manner as a tenant of the
Rights of lessees.
for years.
freehold, who was neither party nor privy to the recovery, may do by the course of the common law ;
and such lessees, and their personal representatives and assigns, notwithstanding any recoveries that may
be so falsified, shall hold their terms according to their demises, as if such recovery had not been had.
SEc. 8. After any recovery had, the recoverers, their heirs and assigns, shall have the like remedies Rights of parties.
recovering.
*
against any lessees for years, their representatives and assigns, for any rents or services reserved, coming
due after such recoveries, and also like actions for waste done afier such recoveries, as the lessors might
have had, if such recoveries had not been made.
SEc. 9. When any person shall die, leaving heirs either in the same or in different degrees; and where º ºver-
aſ actions by
irhes, &c.
several persons shall be, in any other way, entitled to real estate as tenants in common, or as joint tenants,
they may bring a joint action for the recovery thereof, or may bring several actions for their respective
sharcs or interests.
Chap. 118.] sº
- ( . 108 ) [Title 23.
Guardians for in-
fant defendants.
Order for sur-
vey of lands.
Copy of order,to
be served.
Authority of
party under or-
der.
Imparlance, etc.
abolished. Land-
lords, etc. may
defend.
l
2
2
I
4
5
Sec. 10. Actions relating to real property,shall not be delayed, nor shall the remedy of any plaintiff be su-
perseded, by reason of the infancy of any defendant therein; but guardians to defend the rights of inſant de-
fendants, shall be appointed as in personal actions; and in all such actious against an infant, if he do not
procure the appointment of a guardian within the time required for his appearance therein, the plaintiff may
proceed to have such guardian appointed as in personal actions.
Sec. 11. whenever the court in which any action relating to real property shall be pending, shall be
satisfied that any survey of any premises in the possession of either party, or of any boundary line between
the lands of the parties, or between the lands of either of them and the lands of other persons, is necessa-
ry or expedient to enable either party to declare, plead or prepare for trial, or for any other proceeding in
such action, it may, by rule of court, upon the application of either party, order that such party have leave
to make such survey.
SEc. 12. Such order shall specify the premises or bouhdary line to be surveyed, by a description as defi-
nite as may be ; and a copy of the same shall be sesved previous to such entry, on the owner or occupant
of the premises upon which it may be necessary to enter, to make such survey.
SEc. 13. The party obtaining such order, his necessary surveyors, assistants and agents, may enter upon
any premises necessary for the purpose of making such survey, and may there make the same, after ha-
'ving served a copy of such rule, as hereinbefore directed; and for so doing, no person acting under such
shall be liable to any action of trespass or other action ; but every such person shall be responsible in an
tion on the case, for any unnecessary injury caused by him.
SEc. 14. No imparlance, voucher, aid-prayer or receipt, shall be allowed ; but whenever any action shall
be brought against any tenant, to recover the land held by him, or the possession of such land, the landlord
**
of such tenant, and any person having any privity of estate with such tenant, or with such landlord, in the
prenises in question, or in any part thereof, may be made defendant with such tenant, in case he shall ap-
pear for that purpose.
CHAP: 113.] -- ( 709 ) [TITLE 23.
1
1
Sec. 15. Whenever any action for the recovery of any lands or tenements, or for the recovery of the pos-
Alienation by
defendants.
session thereoſ shall be commenced against any person in possession of the premises in question, or in the
receipt of the profits thereof, such action shall not be barred or delayed by reason of any alienation or con-
veyance made by such person to any other, either before ar after the commencement of such action.
SEc. 16. If the defendant in any action for the recovery of land, or the possession of land, shall alien the Liability of I
- ability O Ulr-
;d.º.
Su it. .
land in question, pending the suit, and shall have no property whereof the damages for the issues and prof-
its of such land recovered against him may be levied, every person to whose hands such land shall have
come, shall be liable to an action for such damages for the time that he shall have possessed the premises.
SEc. 17. Whenever by the provisions of law, any writ of inquiry may be issued to assess damages in any
Assessing dama-
ges at circuit
action relating to real estate, instead of issuing such writ, the plaintiff may have such damages assessed at COUlrtS.
a circuit court to be held in the county where the venue in the action is laid.
SEs. 18, For that purpose, the plaintiff may make up a circuit roll of the pleadings and proceedings, with
Proceedings for
an entry of an order therein, that such damages be assessed at such circuit court, and such court shall pro."”
ceed thereon pursuant to such order, in the same manner as in other cases sent to that court to be tried, and
the verdict of the jury thereupon shall be certified and returned in like manner.
SEc. 19. Whenever a writ of possession shall be issued upon a judgment in any action relating to real
Execution for
costs or dama-
property, the plaintlff may include in the same process, an execution against the property of the defendant, *
to collect the costs or damages, which may be due, in the same cases in which he would be authorized to is-
Sue such execution separately.
SEc. 20. The practice in actions relating to real estate, shall be the same in all respects, as in personal ac-
Practice, etc. in
e ***** º e :tions relati
tions, czcept whero otherwise specially provided by law; and rules to plead may be entered, and may be ºut."
enlarged, and proceedings may be stayed in the like cases, and all the provisions of law respecting plead-
ings, process, records and judgments, in personal actions, shall, so far as the nature of such actions will ad-
mit, apply to actions relating to real estate.
178
CHAP. 118.] ( 710 ) . * - ITITLE 23. -
1 Skc. 21. All writs of right, writs of dower, writs of entry, and writs of assize, all fines and common re-
Certain actions s
tº- - &
boilshe 2 coveries, and all other real actions known to the common law, not enumerated and retained in this title, and
*
3 all writs and other process heretofore used in real actions, which are not specially retained in this title, are
4 abolished.
CHAP. 114.]
( 711 ) [TITLE 24.
sº
TITLE XXIV.
OF PRoceFDINGS IN SPECIAL CASEs.
&
CHAPTER 114—Of Proceedings against Debtors by attachment.
& 6
& 6
é &
6 &
1 SECTION 1. Any creditor shall be entitled to proceed by attachment in the supreme court against the pro
115.-Of Proceedings by and against Infants. -
116,-Of Proceedings by and against Corporations in Courts of Law.
117. –Of Proceedings against Corporations in Chancery.
118.-Of the Voluntary Dissolution of Corporations; and of the Abatement of Suits
by and against them.
119.-Of Proceedings by and against Public Bodies, having certain Corporate Powers,
and by and against Officers representing them.
120.-Of Suits against Sheriffs and other Officers, on their Official Bonds.
121.-Of Proceedings as for Contempts, to enſorce Civil Remedies, and to Protect the
Rights of Parties in Civil Actions,
122.-Of Proceedings for the Collection of Demands against Ships, Boats and Vessels.
123.−Of Proceedings to recover the Possession of Land in certain cases. -
124.—Of the Action of Replevins.
125.—Of Distraining and Replevying Beasts.
126.—Of the Lien of Mechanics and others.
127.—Of the disposition of Unclaimed Property in certain cases.
128.—Of the Collection of Penalties, Forfeitures and Fines, and of Forfeited Rec-
ognizances.
129.-Of Arbitrations. *
130.-Of the Foreclosure of Mortgages by Advertisement.
131. –Of the Draining of Swamps and other Low Lands.
132.-Of the Support and Regulation of Mills:
133.-Proceedings to compel the Delivery of Books and Papers by Public Officers, to
their Successors.
CHAPTER 114.
of PROCEEDINGS AGAINST DEBTORS BY ATTACHMENT.
2 perty of his debtor, in the cases, upon the conditions, and in the manner provided in this chapter.
1 Sec. 2. Before any such writ of attachment shall be executed, the plaintiff, or some person in his behalf,
2 shall make and annex thereto an affidavit, stating that the defendant therein is indebted to the plaintiff, and
specifying the amount of such indebtedness as near as may be, over and above all legal set-offs, and that
5 the deponent knows, or has good reason to believe, either,
-1. That the defendant has absconded, or is about to abscond from this state, or that he is concealed therein
7 to the injury of his creditors : or, ſº
In what cases
credi, ºr may
proceed by at-
tachment.
Contents of afi-
davit to be an-
nexed to Writs.
the same is due upon contract express or implied, or upon judgment, and containg a further statement that
Char. 114.] ( 712 ) • [TITLE 24.
8 2. That the defendant has assigned, disposed of or concealed, or is about to assign, dispose of or conceal
9 any of his property, with intent to defraud his creditors : or,
10 3. That the defendant has removed, or is about to remove any of his property out of this state, with intent
11 to defraud his creditors : or,
12 4. That he fraudulently contracted the debt,or incurred the obligation respecting which the suit is brought: or
1839, p, 228, $36, Q.
1842, p. 118, §1.
13 5. That the defendant is not a resident of this state, and has not resided therein for three months immedi-
14 ately preceding the time of making such affidavit; or,
15 6. That the defendant is a foreign corporation.
1 SEC 3. Such writ of attachment shall be indorsed in the same cases and in the some manner, as original
Indorsement of • e - & º
Writ. 2 writs are required by law to be indorsed, by some person as security for costs, and with the like effect.
1 SEC. 4. No writ of attachment shall be issued under the provisions of this chapter, unless the amount stated
Writ not to issue -
unless one hun- e º tº a tº
joiârsăue. 2 in such affidavit as due to the plaintiff, over and above all legal set-offs,shall exceed the sum of one hundred
3 dollars.
Contents of Writ I SEC. 5. Such writ shall command the sheriff, or other officer to whom it may be directed, to attach so much
2 of the lands, tenements, goods, chattels, moneys and effects of the defendant, not exempt from execution,
3 wheresoever the same may be found within this state, as will be sufficient to satisfy the plaintiff’s demand,
4 and safely keep the same, to satisfy any judgment that may be recovered by the plaintiff in such attachment;
5 and also to summon the defendant, if to be ſound within this state to appear before the justices of the supreme
court, at the time and place to be specified in such writ to answer the plaintiff; and such writ shall be test-
7 ed and made returnable in the same manner as other writs issuing out of the supreme court.
1 SEc. 6. The sheriff or other officer to whom such writ shall be directed, shall execute the same on or be-
ºw writer* 2 fore the return day thereof, by seizing so much of the lands, tenements, goods and chattels, moneys and
3 effects of the defendant, wheresoever the same may be found in this state, as will be sufficient to satisfy the
4 demand, and costs, and by making an inventory thereof, and serving a copy of such attachment and inven-
5 tory, certified by him, upon the defendant, if he can be found within this state.
CHAP, 114.] ( 718 ) [TITLE 24, *
5
Sec. 7. All the property so attached, shall be appraised by two disinterested freeholders, who shall be first
Appraisement of
property attach-
sworn by the officer to make a true appraisement thereof; which appraisement shall be signed by such free-* .
holders and returned with the writ; but in case the property attached shall be situated in several counties,
that portion thereof in each of such counties may be separately appraised by two disinterested freeholders
thereof, who shall be sworn, and whose appraisement shall be signed by them, and returned as aſoresaid.
SEc. 8. ln attaching real estate, or any right or interest in land, it shall not be necessary that the officer Not necessary to
enter upon land.
should enter upon the land, or be within view of it.
Sec. 9. Such attachment shall bind the goods and chattels so attached, from the time they were attached. Attachment to
bind goods and
chattels.
SEc. 10. Real estate shall be bound, and the attachment shall be a lien thereon from the time when it was
When real es-
tate bound by at-
attached, if a certified copy of the attachment, with a description of such real estate, shall be deposited in tachment.
the office of the register of deeds in the county where the same is situated, within three days after such
real estate was attached, otherwise such attachment shall be a lien thereon only from the time when such
certified copy shall be so deposited.
SEc. 11. Each register of deeds shall note on every such certified copy, the day, hour and minute, when Duty of registe,
- - of deeds on filing
copy of attach-
ment, &c.
he receives it ; and shall also enter in a book to be kept by him for that purpose, the names of the parties
in such writ, designating who is plaintiff and who defendant, the time when the land was attached, and
*
the time when such copy was deposited.
SEc. 12. The register of deeds shall be entitled to a fee of twenty-five cents for his services in each case,
Fees of register
and appraisers.
to be paid on the delivery of such copy; and the appraisers of property attached pursuant to the provisions
of this chapter, shall each be entitled to receive one dollar for each day, and fifty cents for each half day
necessarily occupied by him in the appraisal, and six cents per mile for travelling one way, to be paid on
the rendition of the services; which ſees and compensation may be taxed for the plaintiff in his bill of costs.
SEc. 13 The property attached shall remain in the hands of the officer serving the attachment, unless the
179
CHAr. 114.J ( 714 ) [Title 24.
Property to re-
main in hands of
officer, unless .
bond be given.
Contents of
bond.
Release of prop-
2
defendant, or any other person in whose possession such property may have been found, shall, before judg-
ment in such suit, deliver to the officer a bond, executed to him by two or more sufficient sureties, being
4 freeholders within this state, either with or without such defendant or other person, to the satisfaction of
5
erty on delivery
of bonuſ.
When and how
bond may be su-
ed.
Proceedings on
return of Writ
personally ser-
ved.
Proceedings on
return of writ
not personally
served.
3.
such officer, as hereinafter provided,
Sec. 14, Such bond may be in a penalty double the amount specified in the affidavit amº to the writ,
as due to the plaintiff, conditioned for the payment of any judgment which may be recovered by the plaintiff
in the suit commenced by such attachment, within sixty days after such judgment shall be rendered; or in a
penalty double the appraised value of º property, and wine that such property shall be produced to
satisfy any execution that may be issued on any judgment to be recovered by the plaintiff upon such attach-
, ments
SEc. 15. Upon the execution and delivery ofsuch bond as provided in the preceding sections, the property
attached shall be delivered by the officer to the defendant or person th whose possession the same shall have
been found, but the suit shall not be discontinued or in any way affected by such delivery.
SEc. 16. In case of a failure to perform the condition of any such bond, the plaintiff in such attachment may
- &
prosecute a suit thereon for his benefit, in the name of such officer, or his successor in office, or may take
an assignment of such bond and sue thereon in his own name; and shall be entitled to recover thereon the
full value of the property attached, or so much thereof as shall be sufficient to satisfy the judgment rendered
on such attachment, with interest and costs.
Sec 17. Upon the return of such writ, if it appear that a copy thereof has been personally served on the
defendants, or either of them, or if either of the deſendants shall appear in the suit, the same proceedings
may be thereupon had in such suit, in all respects, as upon the return of an original writ of summons per-
4 sonally served; in a suit commenced by such summons.
1 SEc. 18. Iſ it appear by the return of such writ that any property has been attached thereon, and that nei-
2.
ther of the defendants could be found, the plaintiff shall, within thirty days after such return, unless the de-
Chap. 114.] - ( 715 ) [TITLE 24.
3 fendants or some of them shall sooner appear in the suit, cause a notice to be published in some newspaper
4 printed in the judicial circuit in which such writ shall be returned; which notice shall state the names of the
5 parties, the time when, from what conrt, and for what sum the writ was issued, and when the same was re-
6 turnoble, and shall be published ſor six successive weeks, and if any plaintiff shall neglect to cause such
7 notice to be so published, as required in this section, the attachment shall be dismissed with costs.
1 SEc. 19. If any bond shall have been given to the sheriff or other officer serving the writ as herein be- *::::::::::
- Ulr Iłę(1 Oll) (1 died .
by officer.
2 fore provided, he shall state the fact in his return to the attachment, and return and file such bond therewith:
3 and if any such bond shall be given after the return of the writ, and before judgment, such sheriff or other
4 officer shall immediately cause the same to be filed in the clerk's office to which such writ was returned, and
*
5 give notice thereof to the plaintiff or his attorney.
1 SEC. 20. If a copy of the attachment shall not have been served upon any of the defendants, and none of When plaintiff
may file declara-
tion &c. on filing
2 them shall appear in the suit, the plaintiff, on filing an affidavit of the publication of the notice herein be-...?.
3 fore required for six successive weeks, may file his declaration in the suit, and proceed therein as if a copy
4 of such attachment had been served upon the defendants.
*
1 SEC. 21. HF any defendant not served with a copy of the attachment, shall appear at any time before judg- when defendant
- d,
jºy
º e admitted to de-
2 ment, he may be admitted by the court to defend the suit, upon such terms as such court uay deem rea-fend.
3 sonable.
1 Sec. 22. When a copy of the attachment shall have been personally served on the defendent, or such de-
Judgment and
2 fendant shall have appeared in the suit, judgment shall be rendered, and execution shall issue thereon, in the sº º
vice, or appear-
ance of defend-
3 same manner, and with the like effect as in a suit commenced by summons, in which the summons shall have ""
4 been returned personally served, except that by virtue of such execution, the officer to whom the same shall
5 be directed and delivered, may sell any property attached in the suit, and remaining in, the hands of the
6 officer who served the attachment, wherever the same may be in this state.
1 Sec. 23. When a copy of the attachment shall not have been served, and the defendant shall not have ap-
Char. 114.]
( 716 ) [TITLE 24.
Judgment and
execution in case
attachment is not
personally ser-
ved, and defend-
ant does not ap-
pear. -
Indorsement Oil
CXCCution in
such case.
When not necess.
Sáry to issue ex-
ecution, to entitle
plainriff to sue
be d.
Perishable pro-
perty may be or-
dered to be sold,
Officer to make
sale, and deposit
proceeds with
clerk.
To whom pro-
ceeds to be paid.
Practice in at-
tachment Suits.
2 peared in the suit, judgment shall be rendered, and execution may issue in the same form as if such copy
3 had been personally served, but such judgment shall not be conclusive against the defendant, and such exe-
4 cution shall only authorize the owner to whom it is directed, to sell the property attached in such suit.
l
2
l
2
f
SEC. 24. In the case specified in the last section, the attorney issuing the exccution, shall indorse thereon
or annex thereto, a description of the property so attached, with a direction to the officer to sell the same,
or so much thereof as may be sufficient to satisfy the execution, and not to levy the same or any part there-
of upon any other property.
SEC. 25. If a bond shall have been given to the officer, conditioned for the payment of the judgment, as
provided in the thirteenth and fourteenth sections of this chapter, and judgment be rendered in favor of the
plaintiff, it shall not be necessary to issue any execution upon such judgment, to entitle such plaintiff to sue
on such bond.
Sec. 26. When any of the property taken in attachment shall consist of animals or perishable property,
the court, or any justice thereof; may make an order, directing such property to be sold, and the money ari-
sing from such sale to be brought into court, to abide the order of such court.
SEc. 27. Upon such order for a sale being made, the officer having such property, shall advertise and
sell the same, in the same manner that personal property is required to be advertised and sold on execution
and shall deposit the proceeds thereof with the clerk to whose office the attachment is required to be re-
turned.
SEc. 28. If the plaintiff recover judgment, the court may order such money to be paid to the plaintiff
thereon ; but if judgment be rendered against the plaintiff, or the suit be discontinued, or the attachment dis-
missed, the court shall order such money to be paid to the defendant, or person entitled thereto.
SEc. 29. The practice in actions commenced by attachment, shall be the same in all respects, as in per-
sonal actions commenced by summons; as near as may be, except as otherwise provided by law.
CHAP. 115.J ( 717 ) [Title 24.
1 SEC. 30. When two or more persons are jointly indebted as joint obligors,partners, or otherwise,the attach-
- Attachments a.
tº - • * * * - gainst property
2 ment may be issued against the separate or joint estates or property of such joint debtors, or any of them, ***
3 and the same proceedings shall be had as hereinbefore prescribed.
1 SEC, 31. If any estate which shall be attached shall be subject to a mortgage, or other incumbrance, and sº of ºne in
case of incum-
brance removed
- - e - before Sale.
the mortgage shall be redeemed, or the incumbrance removed before the sale on the execution, such es-
2
3
tate may be sold on such execution in the same manner and with the same effect as if the mortgage or oth-
4
er incumbrance had never existed.
CHAPTER, 1 15.
OF PROCEEDINGS BY AND AGAfNST INFANTS,
1 SEC. 1. Whan an infant shall have any right of action, to recover any real property or the possession
Right of infant
& ſo º g to bring suit.
2 thereof, or to recover any debt or damages, he shall be entitled to maintain a suit thereon; and the same
3 shall not be deferred or delayed, on account of such infant not being of full age.
1
SEc. 2. Before any process shall be issued in the name of an infant who is sole plaintiff in any suit, a
- Next friend to be
2 competent and responsible person shall be appointed to appear as next friend for such infant in such suit, appointed.
3
who shall be responsible for the costs thereof.
1 SEc. 3. Such appointment shall be made as follows:
- - -- By whom ap-
2 1. If the suit is intended to be brought in chancery, by the chancellor, or any register or master in chan...” “*
3 cery:
4 2. lf intended to be brought in the supreme court, by a justice thereof, or supreme court commissioner,
1 SEC. 4. It shall be made on the petition of the infant, and the written consent of the person proposed to
- Upon what pa-
2 be next friend to such infant, duly acknowledged before, or proved to the officer making the appointment. pers.
180
CHAP: 115.] ( 718 ) ITITLE 24.
When bond may
be required of
next friend,
When bond to
be filed, &c.
Order to be filed
Guardian for de-
fendant.
How appointed.
Proceedings to
compel appoint-
Inent of gnar-
dian.
1 Sec. 5. Before any person shall be appointed next friend for an infant in any suit to recover any debt or
2 damages, ** if reviº by the officer to whom main for such appointment shall be made, exe-
3 cute a bond to such infant, in a penalty at least double the amount claimed in such suit, with such sureties
4 as shall be approved by such officer, conditioned that such next friend shall duly account to such infant for
*
5 all moneys which may be recovered in such suit.
1 SEc. 6. Such bond shall be delivered to such officer before the appointment shall be made, and shall be by
2 him filed in the office of the judge of probate of the county in which such inſant resides; and such officer
3 shall be entitled to receive from such next friend, the fee allowed by law to such judge of probate for filing
\
4 such bond, to be paid by him.
1 SEc. 7. The order for the appointment of a next friend shall be filed in the office of a clerk or register of
2 the court, before any declaration or bill shall be filed in such cause.
1 SEC. 8. After the issuing and service of process against any infant defendant, or the service of a declara-
2 tion, if the suit be commenced by declaration, the suit shall not be any further prosecuted, until a guardian
3 for such infant shall have been appointed.
1 SEC. 9. Such appointment shall be made upon the request of such defendant, and upon the written.consent
2 of any competent person proposed as guardian by the chancellor or any register or master in chancery, if
3 the suit be commenced in the court of chancery, or by any justice of the Supreme court, or supreme court
4 commissioner, if the suit be commenced in the supreme court; and shall be filed in the office of a register or
5 clerk of the court before any plea or answer be put in.
1 SEC. 10. If such infant defendant neglect, for twenty days after the return day of the process, or service
2. of the declaration by which the suit was commenced, to procure the appointment of a guardian to defend
3. the suit, the plaintiff may obtain an order from any judge or officer of the court mentioned in the prece.
4 ding section, requiring such infant to procure the appointment of a guardian, within ten days after the ser-
5 vice of such order.
CHAP. 116.] ( 719 ) [TITLE 24.
2
SEc. 11. If a guardian be not appointed within the time specified in such order, the judge or officer gran-
r Ib.
ting the same, shall appoint some discreet person to be guardian for such infant, in the defence of such suit.
+ SEC. 12. No person appointed guardian for the purpose of defending a suit against an infant, shall be lia- Liability f
- - iability for
2
i
2
2
t - * - COSts.
ble for the costs of such suit, unless specially charged by the order of the court for some personal miscon-
duct in such cause.
CHAPTER 116.
OF PROCEEE).INGS BY AND AGAINST CORPORATIONS IN COURTS OF LAW.
SECTION 1. A foreign corporation created by the laws of any other state or country, may prosecute in the Foreign corpor-
ations may sue
in this state on
© * e - e o e $º te it
courts of this state, in the same manner as corporations created under the laws of this state, upon giving ſºunty
security for the payment of the costs of suit, in the same manner that non-residents are required by law to do.
SEC. 2. But when, by the laws of this state, any act is forbidden to be done by any corporation, or by any
Exceptions
association of individuals, without express authority by law, and such act shall have been done by a foreign
corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability
or obligation, express or implied, arising out of, or made or entered to, in consideration of, such act,
Sec. 3. Suits against corporations may be commenced by original writ of summons, or by declaration, in
Suits against
corporations
the same manner that personal actions may be commenced against individuals, and such writ, or a copy of ...ced.
such declaration, in any suit against a corporation, may be served on the presiding officer, the cashier, the
secretary, or the treasurer thereof; or if there be no such officer, or none can be ſound, such service may
be made on such other officer or member of such corporation, or in such other manner, as the court in which
the suit is brought may direct.
Sec. 4. When such process, or a copy of such declaration with a notice of rule to plead, shall have been
returned duly served, the appearance of the corporation shall be entered, and the plaintiff may proceed ::::::::::::.
duly served.
thereupon in such suit, in the same manner as in personal actions against natural persons.
CHAP. 116.] - ( 720 ) [TITLE 24,
Measure of da-
mages in certain
CàSCS.
Proof of domes-
tic_corporation.
*
Reciting acts of
incorporation.
Mistake in nam-
ing corporations
Attachmenta-
gainst foreign
corporation.
Double costs, &c.
! SEG, 5. When judgment shall be rendered against any incorporated bank, for the amount of any bills or
2 other evidences of debt, payable absolutely, the payment of which shall have been refused by such bank,
3 and no measure of damages shall be specified in the act incorporating such bank, the plaintiffshall recover
4 interest on such amount from the time of such refusal, at the rate of ten per cent, a year, instead of the rate
5 established by law.
1 Sec. 6. In suits brought by a corporation created by or under any statute of this state, it shall not be neces-
2 sary to prove on the trial of the cause, the existence of such corporation, unless the defendaat shall have
3 pleaded in abatement, or given notice under his plea to the action, that the plaintiffs are not a corporation.
\,
1 SEc. 7. In actions by or against any corporation created by or under any law of this state, it shall not be
2 necessary to recite the act or acts of incorporation, or the proceedings by which such corporation was cre-
3 ated, or to set forth the substance thereof, but the same may be pleaded by reciting the title of such act, and
4 the date of its approval.
1 SEC. 8. In suits or proceedings by or against any corporation, a mistake in the naming of such corpora-
2 ration shall be pleaded in abatement; and if not so pleaded shall be deemed to have been waived.
1 SEc. 9. In suits commenced by attachment in the supreme court in favor of a resident of this state,
2 against any corporation created by or me * laws of any other state, government or country, if a copy
3 of such attachment, and of the inventory of property attached, shall have been personally served on any
4 officer, member, clerk or agent of such corporation within this state, the same proceedings shall be there-
5 upon had, and with the like effect, as in case of an attachment against a natural person, which shall have
6 been returned served in like manner upon the defendant.
1 SEc. 10. If it shall appear to the court that any such suit against a foreign corporation, was brought vexa-
2 tiously and without just cause,they shall award double costs against the plaintiff, and such plaintiffs shall be
8 liable to the defendants for all damages which they may sustain by such proceedings.
CHAP. 117.] . ( 721 ) - [Title 24.
5
10
11
12
13
CHAPTER 117.
asº
OF PROCEEDINGS AGAINST CORPORATIONS IN CHANCERY.
SECTION 1. Upon a bill being filed by the attorney general in the court of chancery, the chancellor shall
•. - - Injunctions a-
. * gainst corpora-
* © º te © * © * - e w tº e tº e ti - º t{ &
have power to restrain by injunction, any corporation from assuming or exercising any franchise, liberty or ºncertain
privilege, or transacting any business not authorized by the charter of such corporation; and in the same
tº º * * - 1837, p. 306, &c.
manner to restrain any individuals from exercising any corporate rights, privileges or franchises, not grant- 1889, p. 94, &c,
ed to them by any law of this state.
SEc. 2. Such injunction may be issued before the coming in of the answer, upon satisfactory proof that the tº
Issuing and con-
tinuance of in-
junction.
defendants complained of, have usurped, exercised or claimed, any franchise, privilege, liberty or corporate
right not granted to them, and after the coming in of the answer, such injunction may be continued until
sº
judgment at law shall have been had.
SEc. 3. The chancellor shall have jurisdiction over directors, managers, trustees and other officers of cor-
Jurisdiction of
chancellor over
e officers, &c.
porations,
1. To compel them to account for their official conduct in the management and disposition of the funds
and property committed to their charge:
2. To decree and compel payment by them to the corporation whom they represent, and to its creditors, of
all sums of money, and of the value of all property which they may have acquired to themselves, or trans-
ferred to others, or may have lost or wasted, by any violation of their duties as such directors, managers,
trustees or other officers:
3. To suspend any such trustee or officer from exercising his office, whenever it in appear that he has
abused his trust:
4. To remove any such trustee or officer from his office, upon proof or conviction of gross misconduct.
5. To direct new elections to be held by the body or board duly authorized for that purpose, to supply any
vacancy created by such removal
_*
181
CHAP. 117.] - ( 722 ) 4 ITITLE 24.
Construction of
last Section.
Proceedings to
cxecute powers.
Sequestrating
corporate pro-
perty.
Distribution up-
on decree.
14 6. In case there be no such body or board, or all the members of such board be removed, then to report
15
16
17
18
19
20
3
the same to the governor who shall be authorized with the consent of the senate, to fill such vacancies:
7. To set aside all alienations of property made by the trustees or other officers of any corporation, con-
trary to the provisions of law, or for purposes foreign to the lawful business and objects of such corporation,
in cases where the person receiving such alienation knew the purpose for which the same was made; and.
8. To restrain and prevent any such alienation in cases where it may be threatened, or there may be good
reason to apprehend that it is intended to be made.
SEc. 4. When any of the visitatorial powers enumerated in the preceding section, over any corporation,
are or shall be vested, by statute, in any corporate body or public officer, the provisions of that section shall
not be construed to divest or impair the powers so vested.
SEc. 5. The jurisdiction conferred by the third section of this chapter, shall be exercised as in ordinary
cases, on bill or petition, as the case may require, or as the chancellor may direct, at the instance of the at-
torney general prosecuting in behalf of the people of this state, or at the instance of any creditor of such
corporation, or at the instance of any director, trustee or other officer of such corporation, having a gen.
eral superintendence of its concerns.
Sec. 6. Whenever a judgment at law, or a decree in chancery, shall be obtained against any corporation,
incorporated under the laws of this state, and an execution issued thereon shall have been returned unsatis-
fied in part or in whole, upon the petition of the person obtaining such judgment or decree, or his represen-
tatives, the court of chancery may sequestrate the stock, property, things in action and effects of such cor-
*…
poration, and may appoint a receiver of the same.
Sec. 7. Upon a final decree on any such petition, the court shall cause a just and fair distribution of the
property of such corporation, and of the proceeds thereof, to be made among the fair and honest creditors
of such corporation in proportion to their debts respectively, who shall be paid in the same order as provi-
4 ded in the next succeeding chapter, in the case of a voluntary dissolution of a corporation.
CHAP. 117.] ( 723 ) [TITLE 24.
1
2
1
SEc. 8. Whenever any incorporated company shall have remained insolvent for one whole year, or for
Sürrender of
w ſº e e *::::::::mu.
one year shall have neglected or refused to pay and discharge its notes or other evidences of debt; or for As
one year shall have suspended the ordinary and lawful business of such eorporation ; it shall be deemed to.
have surrendered the rights, privileges and frahchises granted by any act of incorporation or acquired under
the laws of this state, and shall be adjudged to be dissolved.
SEc. 9. Whenever any corporation having banking powers, or having the power to make loans, on pledges
. 8-
• g e ** . . . . . * e - tº * ~ * gainst certain in-
or deposites, or authorized by law to make insurances, shall become insolvent or unable to pay its debts, or ºniº.
tions.
shall have violated any of the provisions of its act or acts of incorporation, or of any other aet binding on such
corporation, the court of chancery may by injunction, restrain such corporation, and its officers, from exer-
cising any of its corporate rights, privileges or franchises, and from collecting or receiving any debts or de-
mands, and from paying out, or in any way transferring or delivering to any person, any of the moneys,
property or effects of such corporation, until such court shall otherwise order.
Sec. 10. Such injunction may be issued on the application of the attorney general in behalf the people of
Who may ap-
e e tº e I f e & sº
this state, or on the application of any creditor or stockholder of such corporation, upon bill or petition, filed Fºunt
for that purpose, and upon due proof of any of the facts in the last section required, to authorize the issuing
of the same.
Court may ap-
Sec. 11. Upon such application being made, and in any stage of the proceedings thereupon,the court may
- point receivers.
appoint one or more receivers, to take charge of the property and effects of such corporation, and to collect,
N
sue for and recover the debts and demands that may be due, and the property that may belong to such cor-
poration who shall, in all respects, be subject to the control of the court.
SEc. 12. Such receivers shall possess all the powers and authority conferred, and be subject to all the ob-
Powers and ob-
e tº tº º e o * * & ligations of re-
ligations and duties imposed in the next succeeding chapter, upon receivers appointed in case of the volunta-ceivers.
ry dissolution of a corporation.
SEc. 13. If such application be made by a creditor of any corporation, whose directors or stockholders are
Chap. 117.] ( 724 ) [TITLE 24.
When stockhol-
ders &c. may be
made parties.
Making direc-
tors, &c. parties
after decree.
Bill against
stockholders, &c.
Proceedings
thereon.
Proceedings if
corporation be
insolvent.
I)istribution of
property,
2.
3
2
made liable by law for the payment of such debt in any event or contingency, such directors or stockholders
may be made parties to the bill or petition, either on the filing thereof, or in any subsequent stage of the
proceedings, whenever it shall become necessary to enforce such liability.
SEC. 14. If any creditor of a corporation desire to make such directors or stockholders parties to the suit,
after a decree therein against the corporation, he may do so, on filing a supplemental bill against them,
founded upon such decree, and if such decree was rendered in a proceeding instituted by the attorney gener-
al, such creditor may, on his application, be made complainant therein, with or instead of the attorney gen-
eral, and may, in like manner, make the directors and stockholders sought to be charged, defendants in such
suit.
SEc. 15. Whenever any creditor of a corporation shall seek to charge the directors, trustees or other su-
perintending officers of such corporation, or the stock-holders thereof, on account of any liability created by
law, he may file his bill for that purpose in the court of chancery, which shall possess jurisdiction to enforce
such liability.
SEc. 16. The court shall proceed thereon as in other cases, and when necessary, shall cause an account to
be taken of the property and debts due to and from such corporation, and shall appoint one or more receiv-
ers, who shall possess all the powers conferred, and be subject to all the obligations imposed on receivers,
by the next succeeding chapter, in case of the voluntary dissolution of a corporation.
SEc. 17. But if, on the coming in of the answer, or upon the taking of any such account, it shall appear
that such corporation is insolvent, and that it has no property or effects to satisfy such creditor, the court
may proceed, without appointing any receiver, to ascertain the respective liabilities of such directors, and
stock-holders, and enforce the same, by its decree, as in other cases.
Sec. 18. Upon a final decree being made upon any such application to restrain a corporation, or upon any
such bill filed against directors or stock-holders, the court shall cause a just and fair distribution of the pro-
3 perty of such corporation, and of the proceeds thereof, to be made among its fair and honest creditors, in
Char. 117.] - ( 725 ) [TITLE 24.
4 the order and in the proportions prescribed by the next chapter, in the case of a voluntary dissolution of a
5 corporation.
1 Sec. 19. In all cases in which the directors or 6ther officers of a corporation, or the stockholders thereof,
When stockhol-
ders compelled
2 shall have been made parties to a suit in which a decree shall be rendered, if the property of such corpora-º,+...”
3 tion shall be insufficient to discharge its debts, the court shall proceed to compel each stockholder to påy in
&
4 the amount due and remaining unpaid on the shares of stock held by him, or so much thereof as shall be
5 necessary to satisfy the debts of the company.
1 SEC. 20. If the debts of the company shall remain unsatisfied, the court shall proceed to ascertain the re- Enforci
ntorcing pay-
ment by direc-
* & * * * ... • , o -- - - - - - - - . * , ºf * - t s, , . . . . . . , * ~. • . . . * * * * * * * * *-* * * . . . t , & y
2 spective liabilities of the directors or other öfficers, and of the stockholders, and to decree the amount paya- OI8, & C
3 blé by each, and enforce such decree as in other cases.
1 SEc. 21. Upon any application to the court of chancery, in any of the cases provided in this chapter, such piscovery by
- corporation.
*e
2 court may compel such corporation to discover any stock, property, things in action or effects alleged to
3 belong, or to have belonged to it, the transfer and disposition thereof, and the consideration, and all the cir.
4 cumstances of such disposition.
1 SEC. 22. Every officer, agent or stockholder of any corporation, against which proceedings shall be insti-
Discovery by oſ-
ficers, &c. ~
2
tuted, according to the provisions of this chapter, and every person to whom it shall be alleged that any
3 transfer of any property or effects of such corporation has been made, or in whose possession or control any
4 such property or effects shall be alleged to be, may be compelled in the discretion of the court, to answer a
5 bill filed to obtain any discovery in the preceeding section specified, notwithstanding such answer may ex-
6 pose the corporation of which he is a member, to a forfeiture of its corporate rights, or any of them.
1 SEC. 23. The answers of the officers and agents of any corporation, shall be evidence against the corpo-
2
ration in the same manner and to the same extent as if such answers had been given upon an examination ãº
-- ar evidence, ant
how compelled.
3 of such officers or agents, as witnesses in the cause, and such officers or agents may subsequently be exam"
182
CHAP... 117.] ( 726 ) [TITLE 24,
Answer, &c, not
to be used on in-
dictment.
Staying proceed-
ings at law.
certain corpora-
tions excepted.
4
8
2
ined as witnesses by either party, under the order of the court, but no such answer shall be compelled, un-
less by special order of the chancellor.
SEc. 24. Neither the answer of any such officer or agent, nor his testimony upon any such subsequent ex-
amination, shall be used as evidence upon any indictment, or other criminal prosecution or proceeding
against him.
SEC. 25. whenever any bill shall be filed, or any application made * any corporation, its directors
or other superintending officers, or its stockholders, according to the provisions of this chapter, the court may
by injunction, on the application of either party, and at any stage of the proceedings, restrain all pro-
ceedings at law, by any creditor against the defendants in such suit; and whenever it shall appear necessa-
ry or proper, may order notice to be published in such manner as the court shall direct, requiring all
the creditors of such corporation to exhibit their claims and become parties to the suit, within a reasonable
time, not less than six months from the first publication of such order, and in default thereof, to be precluded
from all benefit of the decree which shall be made in such suit, and from any distribution which shall be made
under such decree.
SEC, 26. The provisions of this chapter shall not extend to any incorporated library or lyceum society ;
to any religious corporation, or any incorporated academy or select school; nor to the proprietors of any bu-
3 rying ground incorporated under the laws of this state,
CHAP, 118.J - ( 727 ) [TITLE 24.
CHAPTER is
of THE volunTARY DISSoLUTION of corporations, AND OF THE ABATEMENT OF SUITS BY AND AGAINST
THEM, -
1 SECTION 1. Whenever the directors, trustees or other officers having the management of the concerns of wº . ºy
Or Uliss Olut! O D.
2 any corporation, or the majority of them, shall discover that the stock, property and effects of such corpora.
3 tion have been so far reduced by losses or otherwise, that it will not be able to pay all just demand. to which
4 it may be liable, or to afford a reasonable security to those who may deal with such corporation, or when-
5 ever such directors, trustees or officers, or a majority of them, shall for any reason, deem it beneficial to the
6 stockholders that such corporation should be dissolved, they may apply to the court of chancery, by petition
for a decree dissolving such corporation, pursuant to the provisions of this chapter.
|
SEc. 2. Every such application shall contain a statement of the reasons which induce the applicants to de-
1839, 94, &c.
Contents of ap-
plication. &c.
2 sire a dissolution of the corporation; and there shall be annexed thereto,
1. A full, just and true inventory of all the estate, both real and personal, in law and equity, of such cor-
4 poration, and of all the books, vouchers and securities relating thereto :
2. A full, just and true account of the capital stock of such corporation, specifying the names of the stock-
holders, their residence when known, the number of shares belonging to each; the amount paid in upon such
7 shares respectively, and the amount still due thereon :
3. A statement of all incumbrances on the property of such corporation by judgment, mortgage, pledge or
9 otherwise:
10 4. A full and true account of all the creditors of such corporation, and of all engagements entered into by
11 such incorporation, which may not have been fully satisfied and cancelled, specifying the place of residence
12 of each creditor and of every person to whom such engagements were made, if known, and if not known,
13 the fact to be so stated; the sum owing to each creditor; the nature of each debt or demand; and the true
14 cause and consideration of such indebtedness in each case.
1 SEc. 3. To every such petition there shall also be annexed an affidavit of the applicants, that the facts sta-
Affidavit
CHAP. 118.] ( 728 ) [TITLE 24.
Order to show
CaulS62,
Notice how pub-
lished.
Proceedings of
mastër.
Master ſo have
petition, etc.
When corpora-
tion to be dissoh.
ved.
Directors etc.
may be appoint-
2
3
2
©
cd receivers, and
to give security.
*
‘ed in such application, and the accounts, inventories and statements contained therein or annexed thereto,
are just and true, so far as the applicants respectively know or have the means of knowing.
SEc. 4. Upon such petition, accounts, inventories and affidavits being filed, an order shall be entered re-
quiring all persons interested in such corporation, to show cause, if any they have, why such corporation
should not be dissolved, before some master of the court, to be named in such order, at some time and place
to be therein specified, not less than three months from the date thereof.
SEc. 5. Notice of the contents of such order shall be published, once in each week for three weeks suc-
cessively, in the state paper, and in a newspaper published in the county where the principal place of con-
ducting the business of such corporation shall be situated, if any newspaper be published in such county.
Sec. 6. On the day appointed in such order, such master shall proceed to hear the allegations and proofs of
the parties, and shall take testimony in relation thereto, and shall, with all convenient speed, report the same
to the court, with a statement of the property, effects, debts, credits and engagements of such cofforation,
and of all other matters and things pertaining to such corporation,
SEc. 7. Such master shall be entitled to the use of the original petition, and schedules annexed thereto, iſ
2 he require the same, by an order on the register of the court with whom they may be deposited, and shall re-
turn the same with his report.
SEc. 8. Upon the coming in of the report of the master, if it shall appear to the court that such corpora-
tion is insolvent, or that for any reason, a dissolution thereof will be beneficial to the stockholders, and not
injurious to the public interest, a decree shall be entered, dissolving such corporation, and appointing one or
more receivers of its estates and effects; and such corporation shall thereupon be dissolved, and shall
cease.
SEc. 9. Any of the directors, trustees or other officers of such corporation, or any of its stockholders, may
be appointed receivers, who upon entering upon the duties of their appointment, shall give such security to
Caar. 118.] ( 729 ) [TITLE 24.
3 the people of this state, and in such penalty as the court shall direct, conditioned for the faithful discharge
4 of the duties of their appointment, and for the due accounting for all moneys and effects received by them
5 as such receivers.
1
2
5
2
5
Sec. 10. Such receivers shall be vested with all the estate, real and personal, of such corporation, from the Riº, or ºf
P VCrS,
time of their having filed the security hereinbefore required, and shall be trustees of such estate for the bene-
fit of the creditors of such corporation, and of its stockholders.
SEc. 11. Such receivers shall have all the power and authority conferred by law upon trustees to whom an Th h
Their authority.
º
assignment of the estate of an insolvent debtor may be made, pursuant to the provisions of the one hundred
and ſorty-fifth chapter of these revised statutes.
wº
Sºc. 12. If there shall be any sum remaining due upon any share of stock subscribed in such corporation when reecivers
-* . ~. to prosecute for
arrcars of stock.
the receiver shall immediately proceed and recover the same, unless the person so indebted shall be wholly
insolvent; and for that purpose may file their bill in the court of chancery, or may commence and prose-
cute an action at law for the recovery of such sum, without the consent of any creditors of such corpora-
tion.
SEC, 13. The receivers, immediately on their appointment, shall give notice thereof, which shall contain
Receivers to
give notice of
the same matters required by law in notices of trustees of involvent debtors; and in addition thereto, shall."º"
require all persons holding any open or subsisting contract of such corporation, to present the same in wri-
ting, and in detail, to such receivers, at the time and place in such notice specified; which shall be published
once in each week for six successive weeks in the state paper, and in a newspaper printed in the county
where the principal place of conducting the business of such corporation shall have been situated, if such
newspaper be there published.
SEC, 14. All sales, assignments, transfers, mortgages and conveyances of any part of the estate, real or
º te º e e e º e e - Certain sales,
personal, including things in action, of every such corporation, made aſter the filing of the petition for a *.c. void.
183
CHAP. 118.] & ( 730 ) - [Title 24.
3.
4
5
I
Debtors to ac-
count to recei-
vers. Power of 2.
receivers.
3
4
Referring con-
troversies.
dissolution thereof, in payment of, or as security for, any existing or prior debt, or ſor any other considera-
tion, and all judgments confessed by such corporation after that time, shall be absolutely void as against the
receivers who may be appointed on such petition, and as against the creditors of such corporation.
Sec. 15. After the first publication of the notice of the appointment of receivers, every person having
possession of any property belonging to such corporation, and every person indebted to such corporation shall
account and answer for the amount of such debt, and for the value of such property to the said receivers; and
all the provisions of law in respect to trustees of insolvent debtors, the collection and preservation of the pro-
perty of such debtors, the concealment and discovery thereof, and the means of enforcing such discovery,
shall be applicable to the receivers so appointed, and to the property of such corporation.
SEC 16. Such receivers shall have the same power to settle any controversy that shall arise between them
and any debtors or creditors of such corporation, by a reference, as is given by law to trustees of insolvent
debtors, and the same proceedings shall be had for that purpose, and with the like effect; and application
may be made to any officer authorized to appoint such referees on the application of the trustees of insolvent
5 debtors, who shall proceed therein in the same manner; and the referees shall proceed in like manner and
6
1
Duties and obli-
gations of recei- 2
vers, meetings
of creditors to be
called
3
Open and sub-
sisting contracts. 2
file their report with the like effect in all respects.
SEC. 17. The receivers shall be subject to all the duties and obligations imposed by law on trustees of in-
solvent debtors, so far as they may be applicable, except where other provisions are herein made, and they
shall call a general meeting of the creditors of such corporation within four months from the time of their
appointment, when all accounts and demands in favor of and against such corporation, and all its open and
subsisting contracts shall be ascertained and adjusted, as far as may be, and the amount of moneys in the
hands of the receivers declared.
Sec. 18. If there shall be any open and subsisting engagements or contracts of such corporation, which
are in the nature of insurances or contingent engagements of any kind, the receivers may, with the consent
of the party holding such engagement, cancel and discharge the same by reſunding to such party the pre-
mium or consideration paid thereon to such corporation, or so much thereof as shall be in the same propor-
t
Chap. 118.] ( 731 ) [TITLE 24.
5
6
2
4
5
6
I
tion to the time which shall remain of any risk assumed by such engagement, as the whole premium bore to
the whole term of such risk; and upon such amount being paid by such receivers to the person holding or
being the legal owner of such engagement, it shall be deemed cancelled and discharged as against such re-
ceivers.
Commissions of
SEc. 19. Such receivers shall in addition to their actual disbursements, be entitled to such commissions as
- receivers.
the court shall allow, not exceeding the sum allowed by law to executors and administrators.
!
Qº
SEC. 20. The receivers shall retain out of the moneys in their hands, a sufficient amount to pay the sums ºn certain
oneys.
which they are hereinbefore authorized to pay for the purpose of cancelling and discharging any open or
subsisting engagements.
SEC. 21. If any suit be pending against the corporation, or against the receivers, for any demand, the re-
Ib. to meet de-
mands in suit.
ceivers may retain the proportion which would belong to such demand, if established, and the necessary costs
in their hands, to be applied according to the event of such suit, or to be distributed in a second or other di.
vidend.
SEC. 22. The receivers shall distribute the residue of the moneys in their hands, among all those who
Order of pay-
tº gº e e º º - º - ment of debis.
have exhibited their claims as creditors, and whose debts have been ascertained, as follows :
1. All debts entitled to a preference under the laws of the United States:
2. Judgments actually obtained against such corporations, to the extent of the real estate on which they
shall respectively be liens:
3. Creditors having made special deposites, if such deposites remain in kind :
4. All other creditors of such corporation, in proportion to their respective demands, without giving any
preference to debts due on specialties. gº
Sec. 23. If the whole of the estate of such corporation be not distributed on the first dividend, the recei-
Second dividend
* vers shall, within one year thereaſter, and within sixteen months after their appointment, make a second
3 dividend of all the moneys in their hands, among the creditors entitled thereto ; of which, and that the same
4 will be a final dividend, notice shall be published once in each week for three weeks successively in the state
CHAP. 118.] - ( 732 ) - [TITLE 24.
Proceedings
thereon.
Debts not exhi-
bited.
Distribution of
surplus to stock-
holders.
Disposition of
moneys return-
ed.
**.
5 paper, and in a newspaper printed in the county where the principal place of business of such corporation
6
I
2
2
2
was situated, if there be such newspaper.
Sec. 24. Such second dividend shall be made in all respects in the same manner as herein prescribed in re-
lation to the first dividend, and no other shall be made therafter among the creditors of such corporation, un-
less ordered by the court, except to the erºſion having suits against it, or against the tºwn pending at
the time of such second dividend,and except of the moneys which may be retained to pay such creditors; but
every creditor who shall have neglected to exhibit his demand ww. the first dividend, and who shall deliver
his account to the receivers before such second dividend, shall receive the sum he would have been entitled
to on the first dividend, beſore any distribution be made to the other creditors.
SEC. 25. Aſter such second dividend shall have been made, the receivers shall not be answerable to any -
creditor of such corporation, or to any person having claims against such corporation, by virtue of any open
or subsisting engagement, unless the demand of such creditor shall have been exhibited, and the engage-
ments upon which such claims are founded, shall have been presented to the said receivers, in deal and in
writing, before or at the time specified by them in their notice of a second dividend.
SEC. 26. After a final dividend is made, and the debts of any such corporation are paid, if there shall re-
main any surplus in the hands of the receivers, they shall distribute the same among the stockholders of
such corporation, in proportion to the respective amounts paid by them, severally, on their shares of stock.
Sec. 27. When any suit pending at the time of the final dividend, shall be terminated, they shall apply the
2 moneys retained in their hands for that purpose, to the payment of the amount recovered, and their neces-
1
sary costs and expenses; and if nothing shall have been recovered, they shall distribute such moneys, after
deducting their expenses and costs, among the creditors and stockholders of the corporation, in the same man-
ner as herein directed in respect to a second dividend.
Sec. 28. The receivers shall be subject to the control of the court of chancery, and may be compelled tº
CHAP, 118.] ( 233 ) [TITLE 24.
2
3
account at any time ; they may be removed by the court, and any vacancy created by such removal, or by
Receivers sub-
- ject to control of
court, &c.
death or otherwise, may be supplied by the court.
SEc. 29. Within three months after the time herein prescribed for making a second dividend; the receivers
Account by re-
ceivers.
shall render a full and accurate account of all their proceedings to the court of chancery, which shall be re-
ferred to a master to examine and report thereon.
SEc, 30. Previous to rendering such account, the receivers shall insert a notice of their intention to present
Previous notice
€reOI.
the same, once in each week, for three weeks successively, in the state paper, and in a newspaper of the coun-
ty in which notices of dividends are herein required to be published, if there be one, specifying the time and
place at which such account will be rendered.
SEC. 31. The master to whom such account shall be referred, shall hear and examine the proofs, vouchers
Duty of master
on reference to
and documents offered for or against such account, and shall report thereon fully to the court. him.
*
SEC. 32. Upon the coming in of such report, the court shall hear the allegations of all concerned therein
Settlement of ac-
and shall allow or disallow such account,and decree the same to be final and conclusive upon all the creditors, * * *
of such corporation, upon all persons who have claims against it upon any open or subsisting engagements
and upon all the stockholders of such corporation.
SEc. 33. Such receivers shall also account from time to time in the same manner, and with the like effect
Further ac-
counts to be ren-
for all moneys which shall come to their hands after the rendering of such account as hereinbefore provided, dered.
and for all moneys which shall have been retained by them for any of the purposes herein before specified,
and shall pay into court all unclaimed dividends.
SEc. 34. The provisions of this chapter shall not extend to any incorporated library or lyceum society; to
Corporations ex-
tº e tº e - e cepted.
any religious corporation, or any incorporated academy or select school; nor to the proprietors of any bury-
ing ground incorporated under the laws of this state.
184
Chap. 118.] ( 734 ) [TITLE 24.
1 SEC. 35. The dissolution of a corporation by a decree of the court of chancery, or by the expiration of its
Dissolution of
corporation not
O abate Suit, &c.
2 charter, or otherwise, shall not abate any suit or proceedings in favor of such corporation which shall have
3 been pending at the time of such dissolution; but all such suits or proceedings may be continued by the receiv-
4 ers who shall have been appointed for such corporation by the court of chancery, or by the trustees on whom
5 the estate and effects of such corporation shall have devolved, in the name of such corporation, or in the names
6 of such receivers or trustees, who may be substituted as plaintiffs under the direction of the court in which
7 the suit shall be pending, and subject to such order as the court may deem expedient, in relation to the pay
8 ment or security of costs.
1 Sec. 36. Whenever a receiver of the property and effects of a corporation has been appointed before its dis-
New suits by re-
CelVOr8. 2 solution, or afterwards, new suits may be brought and carried on by any such receivers, either in their own
3 names, or in the name of the corporation for which they shall have been appointed.
1 SEc. 37. No suit commenced in the name of any such receiver, shall be abated by his removal or death ;
Suit commenced 5
by 1eceivers, not
to abate by death
&C. 2 but the same may be continued in the name of the remaining receiver, if there be one, or in the name of the
3 successor of the receiver so removed or deceased, or of the corporation, as may be directed by the court in
4 which the suit may be pending.
1 Sec. 38. The court in which any suit or proceeding against a corporation which shall have been dissolved
Suits against
corporations dis-
.." 2 by a decree of the court of chancery or otherwise, shall be pending at the time of such dissolution, shall have
£OIlli ſe
3 power, on the application of either party thereto, to make an order for the continuance of such suit or pro-
4 ceeding, and the same may thereafter be continued until a final judgment or decree shall be had therein.
CHAP. 119.J ( 735 ) [TITLE 24.
CHAPTER 119.
of PRoceedings BY AND AGAINST PUBLIC BODIES, HAVING CERTAIN CORPORATE Powers, AND BY AND
I
2
5
2
* AGAINST OFFICERS REPRESENTING THEM.
SECTION. 1. In all cases not otherwise provided by law, actions may be brought by the board of supervisors
of a county ; by county superintendents of the poor ; by supervisors of townships; by directors of the poor o
Actions by cer–
tain public offi-
the several townships; by inspectors of primary schools, and commissioners of highways of the several town- *
ships, and by assessors of school districts, upon any contract lawfully made with them or their predecessors
in their official character, or to enforce any liability, or any duty enjoined by law, to such officers or the
body which they represent, and to recover damages for any injuries done to the property or rights of such or.
cers, or of the bodies represented by them.
Sec. 2. Such actions, when brought by any board of supervisors, shall be in the name of such board as pro-
vided by law; when brought by any supervisor in Lehalf of his township, they shall be brought in the name
In what names
actions to be
brought.
of such township ; when brought by superintendents of the poor, inspectors of primary schools, commissoners
of highways, or directors of the poor, or by any other officers authorized to sue in their name of office, they
shall be brought in the name of their * offices, without naming the persons holding the same, and
when brought by the assessor or other person representing a school district, they shall be brought in the name
of such district.
SEc. 3. Such actions may be brought by such officers, notwithstanding the contract or obligation on which
the same is founded, may have been made with or to any predecessors of such officers, and notwithstanding § *::::::
W predeces-
SOr 8.
any right of action may have accrued previous to the time when the officers commencing such suit entered
upon the execution of the duties of their office.
Sec. 4. Actions against any of the officers or bodies named in the second section of this chapter, shall be
brought against them by the same name in which such officers or bodies are respectively authorized to sue, actions agains,
certain officers
and bodies.
and such actions may be commenced and prosecuted to final judgment, in the same manner, as near as may be
as actions against individuals, except as otherwise is or shall be provided by law.
CHAP. 120.] 73.6 - [TITLE 24.
1 SEC. 5. When any contract shall have been entered into, or any liability incurred, by or in behalf of any
On contracts of
predecessors.
2 county or township, by any officer thereof, within the scope of his authority, the same remedies may be had
3 after the termination of his office, and process may be served in the same manner upon any successor of such
4 officer, as if he had continued in office.
1 SEc. 6. No suit commenced by or against any officers named in this chapter, or the bodies represented by
Not abated by
death. &c. of of.
ficers. 2 them, shall be abated or discontinued by the death of such officers, their removal from, or resignation of their
3 offices, or the expiration of their term of office; but such suit shall be prosecuted or defended by their succes-
4 sors in such office, in the same manner as if no such change had taken place.
1 Sec. 7, When a judgment shall be recovered, against any township, or against any township officers in an
Judgment a-
gainst to winships º ſº º t e
# how collet-2 action prosecuted by or against them in their name of office, no execution shall be awarded or issued upon such
tel.
3 judgment, but the same, unless reversed, shall be levied and collected as other township charges; and when
4 so collected, shall be paid by the township treasurer to the person to whom the same shall have been adjudged
5 upon the delivery of a proper voucher therefor.
CHAPTER 120.
OF SUITS AGAINST SHERIFFS AND OTHER OFFICERS ON THEIR OFFICIAL BONDs.
1 SECTION 1. Whenever a sheriff shall have become liable for the escape of any prisoner committed to his
Action on offi- -
tººd of 2 custody, or whenever he shall have been guilty of any deal or misconduct in his office, the party injured
3 thereby may prosecute an action therefor, upon the official bond of such sheriff, in the Supreme court, in the
4 name of the people of this state, stating in the process, pleadings, proceedings and record in such action, that
5 the an. is brought for the use or benefit of such party; and such party shall be deemed the plaintiff in such
6 action.
*-*. - 1 SEc. 2. In such action the same pleading and proceedings shall be had, as are provided by law in the case
lºgº, sº
2 of suits upon bonds with other conditions than for the payment of money, except as herein otherwise provid-
gº
3 ed., and judgments shall be rendered for the deſendants in the like cases.
CHAP. 120.] ( 237 ) [TITLE 24.
I
2
Sec. 3. But such judgment shall not be a bar to any other suit that may be brought on the same official Other deli
† at
ſected.
bond by the same plaintiff, or by any other plaintiff for any other delinquency or default of such sheriff, than
such as was assigned as a breach of the condition of such bond, in the action in which such judgment was
rendered.
Sec. 4, During the pendency of any suit upon such official bond, or after judgment rendered in such suit,
Other parties
may sue.
any other party aggrieved by the default or delinquency of such sheriff, may, in like manner, prosecute an
&
action upon such official bond; and the pendancy of any other suit on the same bond, or a judgment recover-
*
ed by or against any other person on such bond, shall not abate, or in any manner affect such suit, or the
proceedings therein, except as hereinaſter provided.
SEC. 5. Any person who may have recovered any judgment upon such official bond, may, in like manner, W}
- len Sanne
plaintiff may
prosecute upon such bond, whenever he is aggrieved by any other default or delinquency than such as shall SUle.
have been the subject of the former action, and shall proceed therein in like manner as hereinbefore pro-
vided.
Sec. 6. No scire facias shall be brought upon any judgment rendered upon such official bond, by the party
iºns
for whose use such judgment was obtained, or by any other person, for any breach of the condition of such
bond.
SEC. 7. Every suit brought upon such official bond, and every judgment rendered therein, shall be deemed
-> Such actions to
* º g - b d d i-
the private suit and judgment of the Party for whose use the same shall be brought or obtained; and such suit tiºn
may be di & e * g. tº
Y be discontinued, and such person may be non-suited as in Private suits; and the judgment therein may
be cancelled and discharged by such Person, in the same manner as if he were the nominal plaintiff, and
shall be deemed satisfied in the same cases as judgments by individuals.
SEC. B. If the suit be discontinued, or the person for whose use the same was brought be non-suited, or
Judgment a-
gainst plaintiff in
2 judgment be rendered for the defendants, upon Verdict, demurrer or otherwise, costs shall be awarded against"“
185
CHAP. 120.] ( 738 ) - [Tirle 24,
* such person as if he were the nominal plaintiff, and judgment shall be rendered for such costs, and execution
4 awarded against him thereon in the same manner.
Wººnºtice of 1 SEC. 9. No such suit shall be barred, nor shall the amount which the plaintiff may be entitled to recover
judgment recov- - -
ered not availar
ble.
2 therein, be affected by any notice given by any surety in such bond, of a judgment recovered thereon, un-
8 less it be accompanied by an allegation that the suretics in such bond, some or one of them, have been obliged
4 to pay the damages assessed by such judgment, or some part thereof, for the want of sufficient property of
5 such sheriff whereon to levy the same, or that they will be obliged to pay the same, or some part thereof, for
9 the same reason; nor unless such notice be verified by the oath of the defendant giving the same.
1 Sec. 10. If it shall appear that the amount of any damages so recovered, which such surety has been
Wº tº A
2 obliged to pay, or will be obliged to pay, as specified in the last section, is equal to the amount for which
3 such defendant shall be liable, by virtue of the bond, he shall be acquitted and discharged of all further lia-
---
4 bility, and judgment shall be rendered in his favor.
Allowance to su- 1 SEc. 11. If it shall appear that the amount of any damages so recovered, and which such surety has been
rety in estima-
ting liability. -
2 obliged to pay, or which he will be obliged to pay, is not equal to the liability of such surety, the amount
3 thereof shall be allowed to such defendant, in estimating the extent of his liability in any such action.
1 SEc. 12. Whenever a judgment shall be obtained against a sheriff and his sureties, a direction shall be en-
Directions on
€X&CUltion.
2 dorsed on the execution issued thereon, by the attorney issuing the same, to levy the amount of such execu-
3 cution, in the first place, of the property of such sheriff, and if sufficient property of such sheriff cannot be
4 found to satisfy such execution, then to levy the deficiency of the property of the sureties.
- 1 SEc. 13. Whenever several judgments shall be obtained at the same temr, upon any official bond of a she-
Several iudg-
i. dºu-
tion. 2 riff, for damages amounting in the whole to more than the sums for which the sureties therein shall be liable,
3 the supreme court shall order the moneys levied upon such judgments, from the property of the sureties, to
4 be distributed to the persons for whose use such judgments were recovered respectively, in proportion to the
5 amount of their respective recoveries,
Char. 121. ( 739 ) [TITLE 24.
1 Sec. 14. If executions be issued upon several judgments obtained at the same term, upon any such official
Distribution of
moneys collect-
. & tº º e • ed.
bond, and sufficient moneys shall not be raised to satisfy all of the said executions, the supreme court shall dis-"
2
3 tribute the moneys collected on such executions, to the persons, respectively, for whose use such judgments
4 were recovered, in proportion to the amount of their respective recoveries,
I Sec. 15. Suits upon the official bonds of registers of the court of chancery, clerks of the supreme court,
Suits º
borlds of other
2 clerks of counties, registers of deeds of counties, coroners, masters in chancery, notaries public, and of all officers.
3 other officers required to give bond to the people of this state, in relation to which no other provision of law is
4 or shall be made, may be prosecuted in the supreme court, by any person aggrieved by any delinqnency or
5 misconduct of such officers respectively, and such suits shall be prosecuted, and judgments rendered therein,
6 in the same manner herein prescribed in relation to suits on the official bonds of sheriffs, and with the like
7 effect.
1 SEC. 16. All the provisions of this chapter, relating to suits upon the official bonds of sheriffs, and to the
- Same proceed-
ings as on offi-
e tº tº g tº . & sº - & e Q cial b
2 proceedings, pleadings, judgments, executions, and distribution of monies collected therein, shall apply to ºn of
3 suits upon the official bonds mentioned in the preceding section, so far as the same may be applicable thereto.
CHAPTER 121.
OF PROCEEDINGS As For contempts, TO ENFORCE CIVIL REMEDIES, AND TO PROTECT THE RIGHTS OF
PARTIES IN CIVIL ACTIONS.
I SECTION 1. Every court of record shall have power to punish by fine and imprisonment, or either, any ne-
Cases in which
courts of record
* º g e e e & - e i h f
2 glect or violation of duty, or any misconduct, by which the rights or remedies of a party in a cause or mat ...”
3 ter depending in such court, or triable therein, may be defeated, impaired, impeded or prejudiced in the fol-
4 lowing cases:
5 1. All attorneys, counsellors,solicitors, clerks, registers, sheriffs, coroners and all other persons in any man-
6 ner duly selected or appointed to perform any judicial or ministerial services, for any misbehavior in such of
7 fice or trust, or for any wilful negleet or violation of duty therein; for disobedience of any process of such
CHAP. 121.] [( 740 ) - - [TITLE 24.
When may be
punished sum-
marily.
8 court, or of any lawful order thereof, or of any lawful order of a judge of such court, or of any officer autho
9 rized to perform the duties of such judge: - ... sº
10 2. Parties to suits for putting in fictitious bail or sureties, or for any deceit, or abuse of the process or pro-
11 ceedings of the court:
12 3. Parties to suits, attorneys, counsellors, solicitors, and all other persons, for the non-payment of any sum
18 of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the col-
14 lection of such sum; and for any other disobedience to any lawful order, decree or process of such court :
is 4. All persons for assuming to be officers, attorneys,solicitors or counsellors of any court, and acting as such
15 without authority; for rescuing any property or persons, which shall be in the custody of any officer by vir-
16 tue of process issued from such court; for unlawfully detaining any witness or party to a suit, while going
17 to, remaining at, or returning from the court where such suit shall be noticed for trial; and for any other
.*
18 unlawful interference with the process or proceedings in any action:
19 5. All persons summoued as witnesses, for reſusing or neglecting to obey such ammon. or to attend, or
20 to be sworn, or answer as such witness :
31 6. Persons summoned as jurors in any court, for improperly conversing with any party to a suit to be tried
22 at such court, or with any other person in relation to the merits of such suit; for receiving communications
23 from any suca party, or from any other person in relation to the merits of such suit, without immediately
24 disclosing the same to the court .
26 7. All inferior magistrates, officers and tribunals, for disobedience of any lawful order or process of a su-
27 perior court, or for proceeding in any cause or matter contrary to law, after such cause or matter shall have
28 been removed from their jurisdiction: and,
29 8. All other cases where attachments and proceedings as for contempts have been usually adopted and
30 practiced in courts of record, to enforce the civil remedies of any party, or to protect the rights of any such
31 party.
1 SEC. 2. When any misconduct punishable by fine and imprisonment as declared in the last seetion, shall be
2 committed in the immediate view and presence of the court, it may be punished summarily, by fine or im-
3 prisonment, or both, as hereinafter prescribed,
*
CHAP. 121.] - ( 741 ) [TITLE 24.
*
1 SEC. 3. When such misconduct is not so committed, the court shall be satisfied by due proof, by affidavit of
When notice,
, &c. to be given. .
s 2 the facts charged, and shall cause a copy of such affidavit to be served on the party accused, a reasonable time
3 to enable him to make his defence, except in cases of disobedience to any rule or order requiring the payment
4 of money, and of disobedience to any subpoena.
1 SEc. 4. When any rule or order of the court shall have been made for the payment of costs, or any other When attach-
- - ment perempto-
- ry.
2 sum of money, and proof by affidavit, shall be made of the personal demand of such sum of money, and of a
3 refusal to pay it, the court may issue a precept to commit the person so disobeying, to prison, until such sum,
4 and the costs and expenses of the proceeding shall be paid.
1 SEC. 5. ln all cases, other than that specified in the last section, the court shall either grant an order on thew,
ſº d
Yº..."
e * e e nSWer,
2 accused party, to show cause at some reasonable time to be therein specified, why he should not be punished an 8Wer
§ for the alleged misconduct, or shall issue an attachment to arrest such party, and to bring him before such
4 court, to answer for such misconduct,
1 SEC. 6. When a rule shall have been entered in any court, according to the practice thereof, requiring any
Attachment to
answer, without
2 officer or other person, to whom any process of such court may have been directed and delivered, to return special order.
3 the same, an attachment for disobedience of such rule may issue according to the practice of the court, to ar-
4 rest such officer or person, to answer for such disobedience, without special application to the court.
*
1 SEc. 7. If the party charged with misconduct, be in the custody of any officer, by virtue of an execution
When court
* º * *. * may award ha-
2 against his body, or by virtue of any process for any other contempt or misconduct, the court may award a jº.
3 writ of habeas corpus, to bring up the body of such person, to answer ſor such misconduct.
1 SEc. 8. In cases where a party is entitled to an attachment against any person, without the special order of
When habeas
corpus may be
2 the court, and such person shall be in custody, as specified in the last section, a writ of habeas corpus, to bring.”.”
3 up such person, may be allowed by any judge of the court, or by any officer authorized to perform the duties
4 of such judge in vacation.
186
CHAP. 121.] ( 742 ) [TITLE 24,
1 SEC. 9. Such writ shall authorize the sheriffin whose custody such person shall be, to remove and bring him
ºwers of Sher- • * - - - >.
2 before the court to which the same shall be returnable, and to detain him at the place where such court shall
3 be sitting, until some order be made by the court for his deposition.
Whcn penalty of 1 SEC. 10. When an attachment shall be issued according to the provisions of this chapter, by the special or-
º to be direc- -
ted. -
2 der of any court, such court shall direct the penalty in which the deſendant shall give bond for his appearance
3 to answer,
*
1 SEC. 11. In all other cases, when a party shall be entitled to an attachment, without the special order of the
When penalty
to be directed by
ingle i . &c. - & • º e th .
*** 2 court, he shall make application to a judge of the court, or to some officer authorized to perform the duties of
3 such judge, who upon due proof of the facts and circumstances, shall direct the penalty in which the defendant
4 shall give bond for his appearange to answer the matters alleged against him, and shall endorse such order on
5, the attachment.
.# persons 1 SEC. 12. Upon arresting any defendant upon an attachment, to answer for any alleged misconduct, the
arreSted.
2 sheriffshall keep such person in his actual custody, and shall bring him personally before the court issuing the
8 attachment, and shall keep and detain him in his custody, until such court shall have made some order in the
4 premises, unless such defendant shall entitle himself to be discharged, as prescribed in the next section.
sº
To be discharged 1 SEC. 13. In cases where a sum shall have been endorsed on any attachment issued by the special order of
on giving bond.
2 the court, and where any sum shall have been so endorsed by any judge or other officer, as hereinbefore pre-
8 scribed, the defendant shall be discharged from arrest on such attachment, upon exeuting and delivering to
4 the officer making the same, in his name of office, and to his assigns, at any time beſore the return day of
5 such writ, a bond with two sufficient surities, in the penalty endorsed on such attachment, with a condition
6 that the defendant will appear on the return of such attachment, and abide the order and judgment of the
7, court thereupon.
1 SEC. 14. When on attachment shall be issued by the special order of the court, a certificate to that effect
When to be dis-
charged on or-
º: ***2 shall be endorsed thereon by the clerk of such court; and iſ no sum be specified in which the defendant shall
Chap. 121.J ( 743 ) ITITLE 24.
3 be held to bail on such writ, he shall not be entitled to be discharged from the arrest thereon, upon executing
4 any bond, or in any other manner, unless upon the special order of the court issuing the attachment.
I Sec. 15. When an attachment shall be issued without the special order of the court, and an order specify-whº penalty to
be one Hundred
dollars. -
2 ing the sum in which the defendant is to be held to bail, is not endorsed thereon, the defendant shall be dis-
3 charged from the arrest thereon, on executing a bond il, the penalty of one hnndred dollars, with surities, in
*.
4 the same manner, and with the like condition as hereinbefore specified.
1 SEC. 16. Upon returning any attachment, the officer executing the same, shall return the bond, if any, ta- Bonds to be re
turned,
2 ken by him of the deſendant, which shall be filed with such attachment.
1 SEc. 17. The sheriff or other officer to whom any attachment shall be delivered, shall return the same by Negl
eglect to re-
turn attachment.
2 the return day specified therein, without any previous rule or order for that purpose, and in case of default,
3 an attachment may be issued against him of course, upon being allowed by a judge of the court, or by an
4 officer authorized to perform the duties of such judge, upon proof of such default; and in such allowance; the
5 cause of issuing the same shall be stated, and that the deſendant is not to be disenarged. upon bail, or in any
/*
6 other manner but by order of the court.
1 SEc. 18. The officer to whom such last mentioned attachment shall be delivered, shall, execute the same
Defémdānī liow”
kept.
2 by arresting and keeping the deſendant in his custody, bringing him personally before the court, and detain-
3 ing him in such custody, until the order of the court.
I SEc. 19. When any defendant arrested upon an attachment, shall, have been brought into court, or shall
Interógãtions;
evidence, &c.
2 have appeared therein, the court shall cause interrogatories to be filed, specifying the facts and circumstan-
3 ces alleged against the defendant, and requiring his answer thereto; to which the defendant shall make writ-
4 ten answers on oath, wiihin such reasonable time as the court shall allow; and the court may receive any af.
5 davits or other proofs, contradictory of the answers of the defendan, or in confirmation thereof; and upon
6 the original affidavíts, such answers and such subsequent proof, shall determine whether the défèndánthas
7 been guilty of the misconduct alleged.
CHAP. 121.] ( 744 ) [Trrºr 24
1 SEC. 20. If the court shall adjudge the defendant to have been guilty of the misconduct alleged, and that
º: &
2 the misconduct was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies
3 of any party, in a cause or matter depending in such court, it shall proceed to impose a fine, or to imprison
4 him, or both, as the nature of the case shall require.
When sum to be I
paid to indemni-
fy party injured.
see 21. lf an actual loss or injury has been produced to any party, by the misconduct alleged, the court
2 shall order a sufficient sum to be paid by the defendant to such party, to indemnify him, and to satisfy his
3 costs and expenses, instead of * a fine upon such defendant; and in such case, the payment and ac-
4 ceptance of such sum shall be an absolute bar to any action by such agrieved porty, to recover damages for
5 such injury or loss.
Fine In oth SEc. 22. In all cases other than that specified in the last preceding section, the fine shall not exceed two
in 6. In Oliler
C&SC8.
2 hundred and fifty dollars, over and above the costs and expenses of the proceedings.
Time of impris- I SEc. 23. When the misconduct complained of consists in the omission to perform some act or duty, which
Onment.
2 it is yet in the power of the defendant to perſorm, he shall be imprisoned only until he shall have performed
3 such act or duty, and paid such fine as shall be imposed, and the costs and expenses of the proceedings.
Order what to SEc. 24 In such case the order and process of commitment, shall specify the act or duty to be performed,
rder l *
specify.
2 and the amount of the fine and expenses to be paid.
1 SEc. 25, In all other cases where no special provision is otherwise made by law, if imprisonment be ordered,
When to be im- - • e e
Fººd; 2 it shall be for some reasonable time, not exceeding six months, and until the expenses of the proceeding are
months, etc.
3 paid; and also if a fine be imposed, until such fine be paid; and in the order and process of commitment, the
4 duration of such imprisonment shall be expressed.
1 SEC, 26. Persons proceeded against acoording to the provisions of this chapter, shall also be liable to indict-
#. "“ 2 ment for the same misconduct, iſ it be an indictable offence; but the court before which a conviction shall be
3 had on such indictment, shall take into consideration the punishment before inflicted, in forming its sen-
4 tence.
CHAP. 121.] ( 745 ) [TITLE 24.
*
1 Sec. 27. If the defendant against whom an attachment shall have been issued and returned served, do not
Default of de-
fendant.
2 appear on the return day thereoſ, the court may either award another attachment, or may order the bond ta-
3 ken on the arrest to be prosecuted, or both.
1 Sec. 28. Such order shall operate as an assignment of the bond to any aggrieved party who shall be au- ****
2 thorized by the court to prosecute the same, and such party may maintain an action thereon in his own name,
3 as assignee of the sheriff or officer to whom the same was given, in the same manner as in other actions on
4 bonds with condition to perform covenants other than the payment of money.
pamages there-
Il.
1 SEC. 29. The measure of the damages to be assessed in such action, shall be the extent of the loss or injury
2 sustained by such aggrieved party, by reason of the misconduct for which the attachment was issued, and his
3 costs and expenses in prosecuting such attachment.
1 SEC, 30. lf there be no party aggrieved by the misconduct for which the attachment was issued, the court,
When bond to
be sued by attor-
2 in case the defendant shall ſail to appear according to the condition of the bond taken on the arrest, shall or- §§."
torney.
2 der the same to be prosecuted by the attorney general, or by the prosecuting attorney of the county in which
4 the bond was taken, in the name of the officer who took such bond.
1 SEc. 31. In such case the whole penalty of the bond shall be forfeited and recovered, and from the moneys
Recovery; ap-
plication thereof.
2 collected thereon, the court shall order such sum to be paid to the party prosecuting the attachment, as the
3 court ordering the prosecution shall think proper, to satisfy the costs and expenses incurred by him. and to
4 compensate him for any injury he may have sustained by the misconduct for which such attachment was is-
5 sued; and the residue of such moneys shall be paid into the treasury of the county, in which the bond was
6 taken, to the credit of the library fund.
1 SEC. 32. If on the return of an executien, duly issued upon any judgment obtained on such bond, it shall ap-
* tº © - * • © tº º Taking insuffi-
2 pear that the sureties taken therein were at the time of taking them insufficient, and that the officer receiving cientsüreties.
3 them had reasonable ground to doubt their sufficiency, he shall be liable in an action on the case to the party
4 aggrieved, who may have prosecuted such suit, for the amount of the judgment recovered by him, and for
187
CHAP. 122.] ( 746 ) [TITLE 24.
5 his costs and expenses in such suit; or if such suit was brought by the attorney general or a prosecuting attor-
6 ney, an action on the case may in like manner be brought by them,in the name of the people of this state, for
7 the amount of the judgment so recovered ; and the same disposition of the moneys collected in such action on
8 the case against such officer, shall be made, as directed in the last preceding section,
1 SEc. 33. Whenever by the provisions of this chpater, an officer is required to keep any person arrested upon
2 an attachment in actual custody, and to bring him personally before any court, the inability, from sickness or
2 otherwise, of such person to attend such court personally, shall be a sufficient excuse for not bringing him.
3 before such court; nor shall any officer be required, in any case, to confine any person arrested upon an at-
4 tachment to answer for misconduct, in any prison, or otherwise to restrain him of his personal liberty, except
5 so far as shall be necessary to secure his personal attendance,
CHAPTER 122.
of PROCEEDINGS For THE collecTION OF DEMANDs. AGAINST SHIPs, BoAT's AND VEssELs.
1 SECTION 1. Every ship, boat or vessel used in navigating the waters of this * shall be subject
2 to a lien thereon, -
3 1. For all debts contracted by the master, owner, agent or consignee thereof, on account of sup-
4 plies furnished for the use of such ship, boat or vessel; on account of work done, or materials fur-
5 nished by mechanics, tradesmen or others, in or about the building, in repairing, fitting, furnishing
6 or equipping such ship, boat or vessel :
7, 2. For all sums due for wharfăge or anchorage of such ship, boat or vessel within this state :
8 3. For all damages arising from the non-performance of any contract of affreightment, or of any
9 contract touching the transportation of persons or property, entered into by the master, owner,
10, agent or consignee of such ship, boat or vessel :
11 4. For al damages arising from injuries done to persons or property by such ship, boat or vessel,
12 where the same shall have occurred through the negligence or misconduct of the master or hands
13 employed thereon.
Chap. 122.] - ( 747 ) [TITLE 24.
1.
2
Sec. 2. Any person having any such claim or demand as is specified in the preceding section, may
© . § o - iac of a $17 c fi - : Applicati
make application to any officer authorized to perform the duties of a justice of the supreme court §ºn for
whom made.
at chambers, or to any associate judge of a circuit court, in the county within which such ship, boat
f
or vessel shall then be, for a warrant to enforce the lien of such claim or demand, and to collect the
amount thereof.
SEC. 8. Such application shall be in writing, and shall specify the particulars of such demand,
and in whose favor the same accrued, and the amount due the creditor or claimant, over and above What applica
tion to specify.
all payments and discounts, as near as may be; and shall be verified by the affidavit of such credi-
tor or claimant, or of some other credible person having knowledge of the facts.
A
Sec. 4. The officer to whom such application shall be made, shall thereupon issue his warrant to
the sheriff of the county, commanding him to attach, seize and safely keep such ship, boat or ves-
- Warrant to be
" . º º e e issued; contcints
sel, her tackle, apparel and furniture, to answer all such liens as shall be established against it accor-thereof.
• * > , w "
ten days after such seizure,
SEc. 5. The sheriff to whom any such warrant shall be directed and delivered, shall forthwith ex-
ecute the same, and shall keep the boat or vessel and other property seized by him, to be disposed
To be executed.
of as hereinafter directed.
SEC. 6. Such sheriff shall also, within ten days after such seizure, make a return to the officer who
issued the warrant, stating therein particularly his doings in the premises; and shall make out, sub- Return.
scribe, and annex thereto, a just and true inventory of all the property so seized.
SEC. 7. Whenever any such warrant shall be issued, no other warrant shall issue against the same
When no other
warrant to be is-
ship, boat or vessel, unless the first warrant be suspended. sued.
SEc. 8. Upon return being made to such warrant, the officer issuing the same shall thereupon
Char. 122.] . ( 748 ) [Title 24.
Notice on re- .
immediately cause the notice hereinafter specified, to be published in a newspaper printed in the
2
turn of warrant.
3 county in which the warrant shall have been issued, if there be one ; and if there be none
4
printed in such county, then in a newspaper printed nearest to such county, or in the state paper,
5 once in each week for twelve weeks successively.
Contents of no-
tice.
How other
claimants may
become attack-
ing creditors.
10 CO880,
1 SEC. 9. Such notice shall contain the following matters:
2
1. It shall state the issuing of such wrrrants, and the name of the ship, boat or vessel seized, or a
3
description of it; and, if known to such officer, the port or place to which she belongs, and the name
4 of her last commander:
2. It shall require all persons who claim to have any demands against such ship, boat or vessel,her
5
tackle, apparel or furniture, under the provisions of this chapter, to deliver an account of their re-
6
7
spective claims or demands to such officer, within three months from the first publication of such
notice, or that their remedy against such boat or vessel will be forfeited:
s
9 3. It shall state that such ship, boat or vessel, her tackle, apparel and furniture, will be sold for the
10 payment of the claims against it, unless the owner, consignee or commander thereof, or some per-
11 son interested therein, appear and discharge such warrant according to law, within three months
12 from the first publication of such notice.
1 Sec. 10. Any person having any lien under the provisions of this chapter, upon the property so
2 seized, may deliver to the said officer, an account in writing of his demand accompanied by such
4 affidavit as is hereinbefore prescribed in rélation to the first application for a warrant; and he shall
5 thereupon be deemed an attaching creditor, and be entitled to the same benefits, and subject to the
6 same responsibilities, as the claimant at whose instance such warrant originally issued.
Liens presented 1 Sec. 11. All liens under this chapter, upon the property so seized, an account of which shall not
2 be presented to the said officer within the time limited in the notice, shall cease,
1 Sec. 12. The owner, consignee, agent or commander, of any ship, boat or vessel seized by virtue
CHAP. 122.] tº - ( 749 ) - [TITLE 24.
2
of any warrant issued pursuant to the provisions of this chapter, and any person interested in such
- - Application for
- ºrge of
e * * > º VC SSCI.
ship, boat or vessel, may, at any time before an order of sale shall be made, as hereinafter mention- .
ed, apply in person or by attorney, to the officer who issued such warrant, for an order to discharge
the same.
SEc. 13. Such person shall execute and deliver to the officer to whom such application is made, a
- Bond on such
application.
bond to the creditors or claimants prosecuting such warrant, in a penalty at least double the amount
of debts and claims sworn to as aforesaid, with such security as shall be approved by such officer,
conditioned that the obligors therein will pay the amount of all such claims and demands as shall
have been exhibited, which shall be established to have been subsisting liens upon such ship, boat or
vessel, pursuant to the provisions of this chapter, at the time of exhibiting the same respectively.
Sec. 14. Upon such bond being executed and delivered, the said officer shall thereupon grant his possing to
- j on giving
OIl Ol.
order, discharging the warrant issued by him; and no further proceedings against the ship, boat or
vessel so seized, shall be had under the provisions of this chapter, founded upon any demands in-
^
cluded in said bond.
Sec. 15. Every such bond shall be held for the common benefit of all the attaching creditors, and
By whom bond
º be prosecu-
may be prosecuted by any of them jointly, or by any one of them separately, in respect to his sepa- te(i.
rate demand.
SEC, 16. In the suit upon such bond, the attaching creditors respectively shall state in their decla-Averments inde.
claration.
ration their respective demands, averring that the claim therefor was a subsisting lien on such ship,
boat or vessel, at the time of the exhibition thereof, as hereinbefore provided; and shall assign as a
breach of such bond, the non-payment of the claim of such creditor.
Sec. 17. To such declaration the defendant may plead as in other actions on bonds, and may plead
Pleadings and
proceedings,
to such assignment of breaches; and the same proceedings shall be had on such bond, as provided
188
CHAP. i22.] ( 750 ) [TITLE 24,
3 by law on bonds with other conditions than for the payment of money; and the damages may be
3 assessed, and judgment rendered, and execution be had thereon for such damages, in the same man-
4 ner.
1 SEC. 18. If the creditors who shall have exhibited their claims as herein provided, shall not have
When vessels, - ~.'
etc. to be order-
ed sold.
2 been satisfied, and if such warrant shall not have been discharged as before provided, within the time
3 for that purpose limited, the officer who issued the same, within one month after the * of
4 the time so limited, upon due proof of the publication of the notice hereinbefore required, shall issue
6 his order to the sheriff who siezed the ship, boat or vessel under such warrant, directing such sher-
7 iff to proceed and sell the boat or vessel so seized, her tackle, apparel and furniture, and shall state
8 in such warrant the amount necessary to be raised to satisfy such claims and expenses.
I Sec. 19. If it shall appear to such officer, that the claims exhibited before him, and the expenses of
When order of
Sale to be modi-
fied. 2 of the proceedings, can be satisfied by a sale of the tackle, apparel and furniture of such ship, boat
3 or vessel, or some part thereof, without selling such vessel, he shall modify his order accordingly.
tº
sale by sheriff. 1 SEC. 20. Within twenty days after the service of such order, the sheriff shall proceed and sell the
2 ship, boat or vessel so seized by him, her tackle, apparel and furniture, or such part thereof as shall
3 he sufficient to satisfy the claims exhibited, and the expenses incurred, upon the same notice, in the
4 same manner, and in all respects subject to the provisions of law in case of the sale of personal pro-
5
perty upon execution.
Return of sheriff
I Sec. 21. The sheriff shall return to the officer granting such order, his proceedings under the samc;
after sale. -
2 and the proceeds of such sale, after deducting his fees and expenses in seizing, preserving, watching
3 aud selling such ship, boat or vessel, shall be retained by such sheriff in his hands, to be distributed
* 4 and paid as hereinafter directed.
1 SEc. 22. At the time of issuing any such order of sale, the officer granting the same shall order a
Char. 122.J ( 751 ) [TITLE 24.
2
*
notice to be published in the same newspaper in which the notice of seizure was published, as here-
Order for pub-
- lishing notice of
. o e tº distribution,
inbefore directed, once in each week, ſor three successive weeks, requiring all persons who have
exhibited any claims against such ship, boat or vessel, and the owner, agent, consignee, master, and
all other persons interested in such ship, boat or vessel, to appear before him at a day therein to be
specified, not less than thirty days, nor more than forty days from the first publication of such no-
tice, to attend a distribution of the proceeds, arising from the sale of such ship, boat or vessel, her
tackle, apparel and furniture.
Sec. 23. On the day appointed in such notice,the officer shall hear the allegations and proofs of the
Proceedings on
parties, and make distribution of the proceeds arising from such sale, after deducting the expenses of.” "
the proceedings, among the creditors who shall have exhibited their claims as herein provided; un-
less the claims of such creditors, or some of them, be contested by the owner, agent, consignee or
master of such ship, boat or vessel, or by some other of such creditors.
SEC. 24. in case of such contest, the party making the objection, shall file with the officer a writ-
Procedings if
claim contested.
ten statement thereof, and his request that the claims so objected to, be tried.
Sec. 25. Upon such objection and request being filed, such officer shall possess all the powers ne-
Powers of offi-
cessary for the trial and determination of such claim, and shall proceed to hear and determine the . . .ºn-
ing contested
claim.
same; and for that purpose may issue subpoenas, and compel the attendance of witnesses, in the same
manner as justices of the peace are authorized by law to do in cases within their jurisdiction.
Sec. 26. If, before proceeding to the trial of any such contested claim, either party shall request
Proceedings if
jury requircd.
that the same be tried by a jury, such jury shall be selected and summoned, and the same proceed-
ings shall be had in all respects as upon the trial of a cause by a jury in a justice's court, except that
the sheriff, if present, may perform the same duties in selecting, summoning, and keeping of the ju-
ry in such case, as constables are authorized to perform in cases in justices’ courts, and the venire
shall be directed to the sheriff or any constable of the county.
Chap. 122.J ( 752 ) [TITLE 24
1 Sec. 27. The determination of the officer, or the verdict of the jury, upon such trial, as the caso
Effect of verdict,
etc.
2 may be, shall be final and conclusive between the parties, unless all appeal shall be taken therefrom
3 to the circuit court for the same county, as hereinafter provided.
Appeals how ta- 1 SEc. 28. Either party considering himself aggrieved by the determination of such officer, or the
€I] . -
2 verdict of such jury, may appeal therefrom to the circuit court for the same county, within the same
3 time, in the same manner, and a return may be compelled, and the same proceedings shall be there-
4 upon had as near as may be, and with the like effect in all respects, as in cases of appeals from
5 judgments rendered before justices of the peace, and costs shall be awarded and collected in such
6 circuit court in the same manner.
I SEc. 29. Upon the final determination of such claim, the officer before whom the proceedings were
Distribution af-
ter determina -
.**2 pending, shall proceed to make distribution of the proceeds of such ship, boat or vessel, her tackle,
3 apparel and furniture, after deducting the expenses of the proceedings before him, among the at-
4 taching creditors, according to the amount due to each.
I Sec. 30. When a distribution shall be made by such officer, pursuant to either of the foregoing
Order for pay-
.# 2 provisions, he shall make an order on the sheriff having such proceeds in his hands, directing him to
3 pay the same to the several attaching creditors entitled thereto, according to such distribution, and
4 the same shall be paid accordingly; and all moneys remaining in the hands of such sheriff, after such
5 payment, shall be paid to the owner, agent, consignee or master of such ship, boat or vessel.
1 SEC. 31. If the proceeds arising from the sale of any ship, boat or vessel, shall not be sufficient,
Apportionment
of proceeds if
insufficient to
jºicinº. 2 after deducting all legal charges, to satisfy all the claims against it, exhibited and established as
3 herein provided, the officershall order a fair and just distribution of such proceeds among the credit.
4 ors, whose claims shall have been ascertained as provided in this chapter, in a just and equal pro-
5 portion to the amount of such claims respectively,
I Sec. 32. Every officer who shall issue any warrant pursuant to the foregoing provisions, shall
Chap. 122.] - ( 753 ) [TITLE 24.
2
5
1
cause the application, affidavits and proofs presented to him by the attaching creditors, and copies
Officer issuing
warrant to file
of all warrants issued, and of all orders made by him, with a list of the fees and expenses allowed §§
clerk of supreme
CO urt.
by him, and a report of all the proceedings had or done by him, to be filed in the office of a clerk
of the supreme court.
SEc. 33. Such report, and a copy thereof duly certified by the clerk, shall be conclusive evidence ºffee of repon
etc. as evidence.
that the proceedings stated therein were had before such officer.
Sec. 34. Upon such report being made, the court may correct any errors that shall appear to have sºrºr;
may correct er-
rors in proceed-
ings.
been committed in the proceedings, and make such order as shall be just, and may remit the pro-
ceedings to the officer who issued the warrant, or the court may proceed to do such acts and things
as shall be necessary in the premises.
SEc. 35. Every sheriff to whom a warrant may have been delivered, may be compelled by the
How sheriff may
be compelled to
return inventory
officer having jurisdiction of the proceedings thereon, to return the inventory required to be taken etc.
by him, and to pay over moneys in his hands, pursuant to any order for that purpose, by an or
der of such officer, and by process of attachment for disobedience thereto, on the application of any
creditor.
Sec. 36. No proceedings under this chapter, to enforce the liens authorized by the provisions h
en no pro-
ceeding to be had
under this chap-
thereof, shall be had against any vessel which shall have been seized by virtue of process issuing"
from any court of the United States having admiralty jurisdiction, while such vessel is actually
held under snch seizure; nor against any vessel which shall have been sold by order of such court,
except for debts contracted, or damages sustained after such sale; but nothing in this section con-
tained shall be construed to impair the validity of any liens created by this chapter, the payment of
º
which shall be decreed in any court of the United States.
SEC. 37. Every person summoned as a juror, or subpoenaed as a witness, who shall not appear, of
189
Chap. 123.] ( 754 ) [TITLE 24.
Penalties upon
defaulting jurors
and witnesses.
2 appearing shall refuse to serve or to testify, in any proceeding had by virtue of this chapter, shall
3 forfeit any pay for every such refusal, unless some reasonable excuse be shown, such fine, not ex-
4 ceeding ten dollars, as the officer before whom the proceedings are had shall think proper to im-
5 pose; and such officer is authorized and empowered to issue an execution for the collection thereof,
6 directed to the sheriff or any constable of the county, in the same manner, and with the like effect,
7 as justices of the peace are authorized to do in cases of similar fines imposed by them.
In what cases 1
entry not to be
made, etc.
2
Restoration of l
possession, in
case of forcible
entry or detain-
tºr, 2
l
Complaint may
be mude.
Froccas upon
coin plaint,
CHAPTER (23.
raoceedings To Recover THE Possession of LAND IN CERTAIN CASEs. ''.1
Of Forcible Entries and Detainers.
SECTION 1. No person shall make any entry into lands, tenements, or other possessions, but in cases where
entry is given by law; and in such cases, he shall not enter with ſorce, but only in a peaceable manner.
SEc. 2. When any forcible entry shall be made, or when an entry shall be made in a peaceable manner,
and the possession shall be unlawfully held by force, the person entitled to the premises may be restored to
the possession thereof, in the manner hereinaſter provided.
Sec. 3. The person entitled to the possession of the premises, may make complaint in writing, and on oath,
and deliver the same to any supreme court commissioner or associate judge of the circuit court for º County,
setting forth that the person complained of, is in possession of the lands or tenements in question, describing
them, and that he entered into the same with force, or that he unlawfully holds the same by force, as the case.
may be.
SEc. 4. Upon receiving such complaint, the officer to whom the same is delivered, shall issue his warrant,
directed to the sheriff or any constable of the same county, commanding him to apprehend the person named
in such complaint, and to bring him forthwith before such officer, to answer such complaint ; or such officer
may, at the option of the complainant, issue a summons against the defendant, as hereinafter provided, in ca-
Chap. 123.] w ( 755 ) [TITLE 24. ,
5
6
I
2
}
I
ses of tenants holding over after the expiration of their term, and the same proceedings may be thereupon
had as in cases of a tenant holding over after the expiration of his lease,
º
Sec. 5. The sheriff or constable to whom any such warrant shall be delivered, shall execute the same by
Warrant how
executed.
arresting the defendant, and bringing him forthwi h before the officer issuing such warrant, and shall there-
upon notify the complainant of such arrest.
Sec. 6. Upon the defendant being brought before such officer, on such warrant, he may plead not guilty to Pleading to com-
plaint.
the complaint, or if he neglect or refuse to plead thereto, such officer shall enter such plea for him:
SEc. 7. On such issue being joined the officer issuing the warrant shall possess all the power necessary for
Powers of offi-
the trial and determination thereof, and shall proceed to hear and determine the same; and for that purpose ...” ”
may issue subpoenas for witnesses, and compel their attendance in like manner as justices of the peace are
authorized to do in cases within their jurisdiction.
SEc. 8. If before proceeding to the trial of such issue, either the complainant or the deſendant shall re-
When issue to
be tried by jury.
guest that the same be tried by a jury, such jury shall be selected and summoned, and the same proceedings
shall be had in all respects as upon the trial of a cause by a Jury in a justice’s court, except that the sheriff
if present, may perform the same duties in the selecting, summoning, and keeping of the jury in such case
as constables are authorized to perform in cases in justice's courts, and the venire shall be directed to the she
riff or any constable of the county.
SEc. 9. If such deſendant small be convicted upon a trial before such officer, or by the verdict of such jury, What officer t
render.
or upon a plea of guilty, to such complaint, the officer who issued the warrant shall thereupon enter a judg-
ment that the complainant have restitution of the premises; and shall tax the costs and expenses for the com-
plainant.
SEc. 10. He shall thereupon issue his precept, commanding the sheriff or any constable of the county
Precept and ex-
ecution to gher-
to cause the complainant to be restored and put into full possession of the said premises; and shall also, in the iſ
CHAP. 123.] ( 756 ) [TITLE 24.
3 same precept, or in a separate execution, direct the costs and expenses so taxed, to be levied and collected of
4 the defendant, in the same manner as costs are or may be collected on judgments before justices of the peace,
5 in personal actions.
when judgment 1 SEc. 11. If the complainant shall fail to prosecute his complaint, or if on such trial the defendant shall be
for defendant.
Other cases in
which posses-
sion may be re-
covered.
Complaint may
be made.
• *
2 fonnd not guilty, judgment shall be rendered for the defendant for his costs, which shall be taxed and collected
3 of the complainant, in the manner hereinbefore provided for the collection of costs in favor of a complainant
4 recovering judgment.
Summary Proceedings to recover the possession of Land in other cases.
1 SEc. 12. The person entitled to any premises, may recover possessisn thereof in the manner hereinaſter pro-
2 vided, in the following cases :
3 1. When any person shall hold over any lands or tenements after the time for which they are demised or
4 let to him, or to the person under whom he holds, or contrary to the conditions or covenants of any lease or
5 agreement under which he holds:
6 2. When any rent shall have become due on any such lease or agreement, and the tenant or person in pos-
7 session shall have neglected or refused, for fourteen days after demand of the rºwn made in writing, to de-
8 liver up possession of the premises, or pay the rent so due:
9 3. When any person shall continue in posesion of any premises sold by virtue of any mortgage or execu-
10 tion, after the expiration of the time limited by law for the redemption of such premises:
11 4. When any tenant at will or by sufferance, shall hold over after the determination of his estate by a no
12 tice, to quit, as provided by law.
1 SEc. 13. In the cases specified in the preceding section, the person entitled to the possession of the premises
2 may make complaint in writing, and on oath, and deliver the same to any supreme court commissioner, or as-
3 sociate judge of the circuit court for the county, setting forth that the person complained of, is in possession of
4. the lands or tenements in question, describing them, and that such person holds the same unlawfuliy, and
5 against the right of the complainant:
CHAP. 123.] ( 757 ) [TITLE 24.
1 SEc. 14. Upon receiving such complaint, the officer to whom the same is delivered shall issue a summons
Summ o ns to
issued.
° directed to the sheriff or any constable of the same county, commanding him to summon the defendant to be
* and appear before such officer, at a time and place therein to be specified, not less than three nor more than
4 six days from the issuing thereof, to answer such complaint.
* Sºc. 15. The officer to whom such summons shall be delivered, shall serve the same at least two days be-
Service of sum-
2 fore the return day thereof, by reading the same to the defendant, if to be ſound within the county, and de- Iſl O Il S.
8 livering to him a copy thereof, if required, or by leaving a true copy thereof certified by him, at the usual
4 place of abode of such defendant, with some person of suitable age, to whom he shall explain the contents
5 thereof.
f SEC, 16. Upon the return of such summons, if the same be returned duly served, and the defendant appear Proceedings on
- - I'Cluſ Il,
2 such defendant moy plead not guilty to the complaint ; or if he neglect or refuse to plead thereto, such officer
3 shall enter such plea for him, and such issue shall be tried, and judgment shall be rendered, and the same pro-
4 ceedings shall be had thereon in all respects, and the costs shall be taxed and collected, in the same manner
5 as in cases of forcible entry or detainer, and with the like effect.
1 SEC. 17. If the defendant fail to appear on the return of such summons, and the same be returned duly served, hengoſli
Ingoſtic
may º:
hearing.
2 the officer issuing such summons may, in his discretion, adjourn the hearing, not more than six days from the
3. return of such summons, and on the day to which the hearing shall be adjourned, if the defendant appear, the
4 same proceedings shall be had as if he had appeared at the return of the summons.
1 SEc. 18. If the defendant fail to appear on the return of the summons, and there be no adjournment, or iſ
- e e - - Hearing and
2 the defendant fail to appear on the day to which the hearing may be adjourned, the officer shall note such judgmºh.
3 failure in the minutes of his proceedings, and proceed to hear the complaint, and to enquire into the truth there
4 of ; and if such officer shall be satisfied that such complaint is true, and that the complainant is entitled to
5 restitution of the premises, he shall render judgment accordingly, and tax the costs for the complainant, and
190
Chap. 123.] ( 758 ) -. [TITLE 24,
6 issue a writ of restitution, and process for the collection of the costs, as in other cases, and with the like effect.
General Provisions.
Adjournments
.." "" jº"- 1 SEC. 19. Aſter an issue shall be joined upon any complaint in pursuance of the provisions of this chapter,
2 the hearing may be adjourned from time to time, as may be necessary, upon sufficient cause being shown,
3 not exceeding thirty days in all.
1 SEC. 20. If such hearing be adjourned on the application of a deſendant, proceeded against by warrant
When defendant -
to continne in
custody or give 2
loond. for a forcible entry, or ſorcible detainer, and the complainant shall not consent thereto, such defendent
. - ſº
3 shall continue, during the time of the adjournment, in the custody of the sheriff or constable, unless he shall
4 give bond to the complainant, in the penal sum of fifty dollars, with sufficient surety to be approved by the
5 officer issuing the warrant, conditioned to pay all such costs as shall be awarded against him in such cause.
when restitution 1 SEC. 21. No restitution shall be made under the provisions of this chapter, of any lands or tenements, of
not to be made.
2 which the party complained of, or his ancestors, or those under whom he holds the premises, shall have been
_º
3 in the quiet possession thereoſ for three years next beſore the filing of the complaint, unless his estate therein
4 be ended.
1 SEC. 22. The officer before whom any proceedings shall be had ſor recovering the possession of lands in
Powers of offi-
cer in enforcing
:*.*P*2 pursuance of this chapter, shall possess all the necessary powers for issuing subpoenas, and compelling the
3 attendance of witnesses, and enforcing obedience to all orders and process lawſully made or issued by him.
1 SEc. 23. Every person summoned as a juror, or subpoenaed as a witness, who shall not appear, or appear-
Penalties on ju-
rors and wit–
nesses making 2
detault, etc. ing, shall refuse to serve or testify in any cause prosecuted by virtue of this chapter, shall forfeit and pay for
3 every such refusal, unless some reasonable excuse be shown, such fine not exceeding ten dollars, as the offi:
4 cer before whom the proceedings are instituted shall think proper to impose; and such officer is authorized and
5 required to issue an execution for the collection thereof, directed to the sheriff or any constable of the coun-
*
6 ty in the same manner, and with the like effect, as justices of the peace are authorized to do in cases of simi-
7 lar fines imposed by them.
CHAP. 123.J ( 759 ) ITITLE 24.
1
2
1
SEC. 24. The complainant obtaining restitution of any premises under the provisions of this chapter, shall
- * Assº Complainant ob-
* • taining restitu-
be entitled to an action of trespass, or trespass on the case against the defendant, and may recover treble.”
damages from the time of the forcible entry, or forcible detainer, or of the notice to quit, or demand of pos-
session, as the case may be; and all other damages to which he may be entitled.
São, 25. Either party conceiving himself aggrieved by the determination or judgment of the commis-
- • * Appeal.
sioner or judge, made or rendered under the provisions of this chapter, may appeal thereupon to the circuit
court for the same county, within the same time, in the same manner, and a return may be compelled, and
the same proceedings shall be thereupon had, as near as may be, and with the like effect, as in cases of ap-
peals from judgments rendered before justices of the peace, and costs shall be awarded and colleced in the
circuit court in the same manner.
SEc. 26. No writ of restitution shall be issued under the provisions of this chapter, until the expiration of
When writ of
restitution not to
issue on judg-
ten days after the entry of judgment of restitution, and in case of an appeal within that time, no writ of men.
gº
restitution shall issue until such appeal be determined in the circuit court.
When restitution
to be inade after
determination of
ant, upon delivering a certified copy of the entry thereof to the officer before whom the proceedings were appeal.
SEc. 27. If upon the trial of an appeal in the circuit court, judgment be rendered in favor of the complain-
2.
commenced, he shall issue his precept for restoring to the complainant the possession of the premises in the
manner hereinbefore provided.
Char. 124.] ( 760 ) [TITLE 24
When action of
replc v in may be
brought.
When executors
etc. may bring
'."“” 2 ized to maintain actions of trespass or trover, for any personal property, unlawfully taken or unlawfully de-
Win.
Venue.
When replevin
shall not lie.
lb.,
Form of writ.
CHAPTER 124.
OF THE ACTION OF REPLEVIN.
1 SECTION 1. Whenever any goods or chattels shall have been unlawfully taken, or unlawſully detained, an
2 action of replevin may be brought for the recovery thereof, and for the recovery of the damages sustained by
3 such unlawful taking or detention, except in the cases hereinaſter excepted.
1 SEC. 2. Whenever by any statute, executors or other persons, suing in the right of another, are author-
8 tained, such persons may maintain actions of replevin for such property.
1 SEC. 3. Actions of replevin shall be laid and tried in like manner as actions of trespass for injuries to per-
2 sonal property.
1 SEC. 4. No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax,
2 assessment or fine, in pursuance of any statute of this state,
Q
1 SEC. 5. No replevin shall lie at the suit of the defendant in any execution or attachment, to recover goods
2 or chattels seized by virtue thereof, unless such goods or chattels are exempted by law from such execution
3 or attachment; nor shall a replevin lie at the suit of any other person, unless he shall, at the time, have a
4 right to reduce into his possession the goods taken or detained.
1 SEC. 6. Actions of replevin shall be commenced by writ, which shall be substantially in the ſollowing
2 form :
3 “In the name of the people of the State of Michigan ;
4. To the sº of the county of
5 We command you that you do forthwith take into your custody the following goods and chattels, to
6 wit: (describing the goods and chattels to be replevied,) and deliver the same to A, B , plaintiff here.
7 in, if he shall give you security as required by law to prosecute to effect this writ against C. D., defendant
s herein, and to return the aforesaid goods aſid chattels, if return thereof shall be adjudged, and to pay all such
CHAP. 124.] - ( 761 ) * [TITLE 24.
9 sums of money as may be recovered against him hereupon ; and also that you summon the said C. D., to ap-
10 pear before the justices of our supreme court, at on the day of , (some day on which
11 writs in personal actions may be made returnable,) to answer the said A. B., concerning the unlawful de-
***
12 tention of the said goods and chattels.
13 Witness, &c.”
1 SEC. 7. Such writ shall not be executed in any case, unless the plaintiffin the action, or some other person
* Affidavit to be
annexed to writ.
having a knowledge of the facts, shall make and annex to the writ an affidavit, stating that the plaintiff in
2
such action is then lawfully entitled to the possession of the property described in the writ; that the same
3
has not been taken for any tax, assessment or fine, levied by virtue of any law of this state ; nor seized un-
4
der any execution or attachment against the goods and chattels of such plaintiff, liable to execution ; and *
5
that such goods and chattels are unlawfully detained by the defendant in such writ.
6
SEc. 8. Upon the receipt of such writ, with the affidavit hereinbefore required annexed, the sheriff shall
ºw Writ execu-
ted.
1
2
proceed to seize and take into his custody the property described therein, and for that purpose may break
open any house, stable, out-house or other building in which such property may be concealed, having first
3
demanded deliverance thereof at the building or place where the same is concealed.
4.
I Sec. 9. The officer executing the writ shall cause the property so seized to be appraised by one or more property, is
appraised.
2 disinterested persons, on oath to be administered by him, as soon as may be after the taklng thereof on such
3 Writ.
1 Sec. 10. Before the officer shall deliver such property to the plaintiff, such plaintiff or some one in his
Bond to be given
before delivery
2 behalf, shall execute a bond to such officer and his assigns, with the addition of his name of officer with jºy to
3 sufficient sureties to be approved by such officer, in a penalty not less than one hundred dollars, and at least
4 double the appraised value of such property; conditioned that the plaintiff will prosecute the suit to effect,
5 and thati f the defendant recover judgment against him in the action, he will return the same property, if
6 return thereof be adjudged, and will pay to the defendant all such sums of money as may be recovered by
7 such defendant against him in the said action. 9
191
z
Char. 124.] - ( 762 ) [Title 24.
When property
to be returned.
How defendant
to be summoned.
Plaintiff may
proceed if pro-
perty not found,
&c.
Return of sheriff
to writ.
Exceptions to
sureties.
Justification by
sureties, &c.
Affidavits, &c.
to be filed, and
notice given.
2
SEc. 11. If the plaintiff shall fail to cause such bond to be executed and delivered to the officer, within
twenty-four hours aſter the appraisal of such property, the officer shall return the same to the person from
whom he took it.
*
SEc. 12. The officer shall summon the defendant according to the command of the writ, by delivering to
him personally a certified copy of such writ, if such defendant can be ſound; and if he cannot be ſound,
then by leaving such certified copy at his usual place of abode, with some person of proper age.
SEc. 13. If the goods and chattels specified in any writ of replevin shall not be found, or shall not be de-
livered to the plaintiff, he may proceed in the action for the recovery of the same or the value thereoſ.
SEc. 14. The sheriff shall return the writ at or before the return day thereof, with the affidavit thereto an:
nexed, and the names of the persons who executed the bond taken by him from the plaintiff, and their
places of residence; and he shall state in his return in what manner he executed the writ; and if the goods
and chattels specified therein shall not have been replevied, he shall state in his return the cause thereof.
SEc. 15. If the deſendant in any action of replevin shall not be satisfied with the sufficiency of the sure-
ties taken of the plaintiff by the officer, on the delivery of the property to such plaintiff, he may, within
twenty days aſter the return of the writ, serve upon such officer a notice that he excepts to such sureties, and
such officer shall give notice thereof to the plbintiff or his attorney.
SEc. 16. Within twenty days after the service of such notice on the officer, the sureties in the bond so
executed by the plaintiff, shall justify by making an affidavit that each of them is a householder, with dou-
ble the amount of the penalty of such bond, over and above all demands; or within the same time, a new
bond, similar to that herein required before delivery to the plaintiff of the property replevied, shall be ex-
ecuted with new sureties, who shall justify in the same manner herein provided.
SEC. 17. Such affidavits, and such bond when executed, shall be filed in the office of the clerk of the cour.
to which the writ shall have been returned, and a notice thereof shall be served on the defendant or his at-
* - - - ºr . with - 4 - ~ *
CHAP. 124.] ( 763 ) [TITLE 24.
*
.*
SEc. 18. Iſ such sureties shall not justify, or if such new bond shall not be executed and filed, and notice
I
When judgment
- of discontinu-
* e § - • :e to gº
2 thereof given as herein provided, the court shall, at the next term after such default, render judgment of ...;
# plaintiff.
3 discontinuance against the plaintiff, and such other judgment as the state and nature of the case may require
f
4 in order to restore to the defendant the property replevied, and to compensate him for his damages.
1 SEc. 19., But the court may allow the plaintiff to file such new bond, with new sureties, who shall justify court may al-
lº.’ bond to
O C0.
2 in the same manner herein prescribed, at the term at which application for such judgment is made, on such
3 reasonable terms as the court shall impose ; and upon such bond being filed, the cause shall proceed.
1 SEC. 20. If no exception shall be taken to the sureties in the bond given by a plaintiff in replevin, as here- when sheriff
discharged from
liability, etc.
2 in provided, the sheriff shall be discharged from all liability for the sufficiency of such sureties; and the
3 bond of the plaintiff shall be held by such sheriff for the benefit of the defendant, and shall be assigned to
4 such defendant or his personal representatives, if judgment be rendered ſor him in snch action.
*
iff in certain ca-
ses; and his re-
tº . g. e e & 6 * * * e tº * medy on bond.
2 the plaintiff for his sureties not justifying, the sheriff shall be liable for the sufficiency of such sureties, as
1 SEC. 21. If such exception shall have been made, and judgment of discontinuance shall be rendered against Liability of sher-
3 now provided by law; and such sheriff shall be entitled to the same remedy on the bond taken by him, as
4 in cases of bonds given on the arrest of a defendant in personal actions; and all the provisions of law re-
5 specting the staying of proceedings against the sheriff, shall be applicable to actions by the sheriff on such
6 replevin bond, and to actions against him in relation thereto,
I SEc. 22. If the sheriff return to the writ of replevin,that the defendant has been duly summoned in either When clerk to
enter appearance
of defendant.
2 of the modes hereinbefore prescribed, the clerk of the court shall thereupon enter the appearance of such
3 defendant; and thereafter proceedings shall be had against such defendant, as iſ he had actually appeared.
I Sec. 23. The plaintiff shall declare within the same time, and in case he shall neglect so to do, shall be
Declaring, etc.
2 liable to the like judgment of discontinuonce as in personal actions; and upon filing a declaration the plain-
2 tiff shall be entitled to the like rule to plead, and notice thereof shall be gtven, in like manner as in person-
4 al actions.
CHAP. 124.] ( 764 ) - - [TITLE 24.
1 SEC. 24. It shall be sufficient for the pipintiff in his declaration, whether the original taking was lawful or
Form of declara-
tlCI1,
2 otherwise, to allege with requisite certainty of time, place and value, that the defendant received the pro-
8 perty to be delivered to the plaiutiff when thereunto afterwards requested, and that the defendant, although
4 requested so to do, has not delivered the same to the plaintiff, but hath unlawfully detained the same to the
5 damage of the plaintiff, such sum as he may specify. ^
.# plea of 1 SEC. 25. It shall not be necessary for the plaintiff to state in his declaration, a place certain within the
detention. * '- ...”
2 township, city or village, as that where the property was detained.
1 SEC. 26. The defendant may plead the general issue to such declaration, which shall be in the same form
Plea and notice -
2 as in personal actions, and shall put in issue not only the detention of the property, but also the property of
3 the plaintiff therein, and his right to the possession thereof at the time of the commencement of the suit, and
N.
4 under such plea the defendant may give notice of any special matter of defence to the action.
Notice of trial, 1 SEC. 27. After issue joined in any action of replevin, either party may give notice of trial, and if neither
C!C. -
2 party shall have noticed the cause for trial, the deſendant may move for judgment as in case of non-suit, in
3 the same manner as in personal actions.
º: 1 SEc. 28. If upon the trial of the cause, the verdict be in favor of the plaintiff, the same jury shall assess
g #! Illil II, º
2 the damages which he has sustained by the unlawful taking and detention, or by the unlawful detention of
3 the property; but if judgment pass for the plaintiff by default, or upon an issue of law, a writ of inquiry may
4 be awarded to the sheriff of the proper county to ascertain such damages, or the same may be assessed in the
5 proper circuit court, in the same manner as in personal actions.
Verdict and 1 SEC. 29. When either of the parties to an action of replevin, at the time of the commencement of the suit
judgment in case
of speciai #iff
erty in ptaintiff. º º * e - º -
* "*" 2 shall have only a lien upon, or special property in the goods and chattels described in the writ, and is not
3 the general owner thereof, that ſact may be proved on the trial, and the jury shall find according to such
1841, p. 54. ;
4 fact by their verdict; and the court shall thereupon render such judgment as shall be just between the par-
5 ties.
CHAP. 124.] ( 765 ) ['PiTLE:24.
1 SEC. 30. If the goods and chattels specified in the declaration, shall not have been replevied and delivered
Judgment for
plaintiff, in case
2 to the plaintiff, such plaintiff, in case he shall recover upon the whole record, shall be entitled, in addition flºº-
ivered to him.
3 to his damages and costs, to a further judgment that such goods and chattelsbe replevied and delivered to him
4 without delay; or in default thereof, that such plaintiff do recover from the defendant the value of such goods
5 and chattels, as the same shall have been assessed.
1 SEc. 31. The execution to be issued upon such judgment, shall command the sheriff to levy the ...","...”
CàSC,
2
plaintiff’s damages and costs, of the goods and chattels, lands and tenements of the defendant, as in
3 other executions against property ; and also to replevy the goods and chattels described in the dec-
4 laration, which shall also be specified in the execution, and to deliver them to the plaintiff, if they
5 can be found within his county, and if the same cannot be found, then that he levy the value of
6 such goods and chattels, specifying the same, together with the aforesaid damages and costs, of the
7 goods and chattels, lands and tenements of the defendant, as above provided.
1 SEC. 32. The sheriff shall proceed in the same manner to collect any moneys directed to be col-
Powors and du-
ties of sheriff on
2 lected upon such execution, as upon executions against property in personal actions, and he shall execution.
possess the same powers in respect to the replevying of the property described therein, as are here-
3
4 in provided upon the execution of writs of replevin ; and if the goods and chattels described in the
5 execution, are replevied and delivered to the plaintiff, they shall be irrepleviable.
1 SEC. 33. If the property specified in the writ shall have been delivered to the plaintiff, and the de- -
tº º e g g . . Judgment for
2 fendant recover judgment by discontinuance or non-suit, such judgment shall be, that the defendant defendant on
non-suit, etc.
3 have return of the goods and chattels replevied, unless he shall elect to waive such retnrn as herein-
4 after provided ; and also that he recover the damages sustained by him by reason of the detention
©
5 of such goods and chattels, which damages shall be assessed upon a writ of inquiry, or by a jury at
6 the proper circuit court.
1 Sec. 34. Whenever the defendant shall be entitled to a return of the property replevied, instead
192
CHAP. 124.] ( 766 ) [TITLE 24.
2 of taking judgment for such return, as above provided, he may take judgment for the value of the
When defendant
may take judg-
inent for vulue
...” 3 property replevied ; in which case, such value shall be assessed by the jury on the trial, or upon the
4 assessment of damages, as the case may be.
Notice of assess- 1 SEC. 35. Whenever any writ of inquiry shall be executed, or any damages shall be assessed in a
ment of dama-
ges.
2 circuit court, pursuant to any provisions contained in this chapter, the same notice thereof shall be
3 given to the adverse party, as is required by law, and the practice of the court in the like cases in
4 personal actions.
yº. I Sec. 36. If the property specified in the writ, shall not have been replevied and delivered to the
Or (leiell (lan L IO -
be for costs only.
2 plaintiff, and the defendant recover judgment, such judgment shall be for costs only.
1 Sec. 37. Every judgment recovered in an action of replevin, whether in favor of the plaintiff or
|
Effect of judg-
t for danna- º ve
º" 2 defendant, for any damages or costs, or for any other sum of money, shall be docketed, and may be
8 made a lien upon the real estate and chattels real of the party against whom it is recovered, in the
4 same manner, and with the like effect as judgments in personal actions.
* ' Sec. 38. Whenever judgment shall pass against the plaintiff in replevin, whether by default or oth-
Şffect of iudg-
. #"...in .
of property.
2 erwise, and a return of the property is awarded, no writ of second deliverance shall be allowed, nor
3 shall any second or other writ of replevin be brought for the same cause, but the plaintiff in replev-
4 in shall not thereby be barred from bringing an action of trespass or trover for the same property,
5 unless, the judgment in the action of replevin shall have passed against him on the merits.
* SEC. 39. If any goods or chatte's which are replevied, had been attached, they shall in case of
Property to be *
hclq subject to tº - & - & *
º' 2 judgment for a return, be held liable to the attachment, until final judgment in the suit in which the
certain cases.
*
y
3 were attached, and for thirty days thereafter, in order to their being taken in execution; and if
* such final judgment be rendered before the return of the property, or if the property when replev-
5 ied, was seized and held on execution, it shall be held subject to the same attachment or seizure, for
Char. 124] ( 167 ) [TITLE 24.
6
4
5.
thirty days after the return, in order that the execution may be served thereon, or the service there-1839, p. 230, $44.
of completed, in like manner as it might have been if such property had not been replevied.
Sec. 40. If any writ of return, or other execution, issued in favor of the defendant in the action, Suit on manur.
bond.
shall be returned unsatisfied in whole or in part, such defendant or his representatives may have an
action upon the bond executed by or on behalf of the plaintiff, to recover against the obligors there-
in the value of the property replevied, and the moneys, damages and costs awarded to such defend-
ant, and such bond shall be assigned to such defendant or his representatives, on their request.
Sec. 41. In such action the plaintiff shall assign breaches of the condition of such bond, as in other rººms.
damages to be
recovered.
cases; and the return of the sheriff to the execution issued in the action of replevin, shall be evi-
dence of such breach ; the amonnt recovered in such action of replevin, and remaining uncollected
shall be the measure of the damages, if the value of the property replevied shall have been so re-
covered, and if not so recovered, and a return thereof shall have been awarded, such value shall be
added to the damages and costs recovered in the action of replevin, and the amount of such value
damages and costs, remaining uncolleted, shall form the measure of damages.
SEc. 42. In any action prosecuted on such bond given by the plaintiff in an action of replevin for
Mitigation in
certain cases.
the deliverance of any property, the defendant may show in mitigation of the damages, that the
plaintiff in such action had only a lien upon such property, and the amount of such lien ; and if such
amount, with interest, be less than the value of the property replevied, a corresponding deduction
shall be made from such value.
CHAP. 125.] -- ( 168 )
[TITLE 24.
<>
CHAPTER 125.
* *
OF DISTRAINING AND REPLEvyING BEAST's,
Of Distraining Beasts.
Beasts distrained 1 SECTION 1. When any beasts are taken up and distrained by any person, for going at large, con-
to be impounded.
Fees for de-
straining and in-
pounding.
Beasts not to be
delivered until
fees and expen-
ses paid.
Proceedings in
case of injury by
beasts.
2
1
2
I
2
2
3
Impounding
beasts doing da-
mage.
4
5
I
2
trary to law, or contrary to any by-law of a township, they shall be forthwith impounded in the
township pound, and the keeper of such pound shall furnish them with suitable food and water, so
long as they are detained in his custody.
SEC. 2. The person so taking up and distraining the same, shall be entitled to fifty cents per head
for all horses, mules, asses and neat cattle, and ten cents per head for all sheep, goats and swine, so
distrained by him; and the pound keeper shall be entitled to four cents per head for all the said ani-
mals so impounded.
SEC. 3. The pound keeper shall not deliver to the owner any beasts so impounded, until such own-
er shall pay him his fees and the expense of keeping such beasts, and also the fees due the person
distraining said beasts, which last mentioned fees he shall pay to such person.
SEc. 4. When any person is injured in his land, by sheep, swine, horses, asses, mules, goats or neat
cattle, he may recover his damages in an action of trespass, or trespass on the case, against the owner
of the beasts, or against the person having the care and control of such beasts, or by distraining the
beasts doing the damage, and proceeding there with as hereinafter directed ; but if the beasts shall
have been lawfully on the adjoining lands, and shall have escaped therefrom in consequence of the
neglect of the person who has suffered the damage, to maintain his part of the division fences, the
owner or person having the control of the beasts shall not be liable for such damage.
Sec. 5. The beasts so distrained for doing damage, shall be impounded in the township pound, if
there be one, and the distrainer shall leave with the pound keeper a memorandum in writing, sigden
by him, stating the cause of distraining, and the sum that he demands from the owner, for the dam-
ages done by the beasts,
CHAP. 125.] ( 769 ) [TrTLE 24,
21
3
2
4
I
2
Sec. 6. The pound keeper shall not deliver the beasts to the owner, until such owner shall pay
Beasts not to be
delivered until
him his fees, and the expense of keeping such beasts, together with the sum so demanded by the ºr
‘. - C paid.
distrainer, and the expense of advertising such beasts, if they shall have been advertised, and all
other legal costs and expenses.
SEc. 7. If there shall be no public pound within the township, the beasts shall be impounded in when person
...e
care of them.
some suitable place under the immediate care and inspection of the person who distrained them, and
he shall furnish them with suitable food and water so long as they remain impounded. &
i
Sec. 8. When beasts are impounded for either of the causes aforesaid, the person impounding them Noticeio owne,
- &c.
shall, within twenty-four hours thereafter, give notice thereof to the owner or person having the
.*
care or control of them, if known, and living within six miles from the place of impounding, which
w"
notice shall be delivered to the party, or left at his place of abode, and shall contain a description of
the beasts, and a statement of the time, place and cause of impounding.
SEC. 9. If there shall be no person entitled to notice according to the provisions of the preceding When notice to
be posted up in
public places.
section, the person impounding the beasts shall, within forty-eight hours thereafter, cause to be posted
up in three public places in the township, and in a public place in each of any two adjoining to Wn-
ships, if within four miles from the place where they were taken, a written notice, containing a de-
scription of the beasts, and a statement of the time, place and cause of impounding.
Sec. 10. In case notice shall be given by posting up the same, if no person shall appear to claim
When notice to
be published in
the beasts within seven days after the day of impounding, a like notice shall be published for three ºf
successive weeks, in some public newspaper, if any shall be published within twenty miles of the
place of impounding, the first publication to be within fifteen days after the day of impounding.
SEc. 11. If the owner or keeper of the beasts shall be dissatisfied with the claim of the person im-r lings if
- r0C &S
§: #.
fied with elaim.
pounding them, he may have the amount for which he is liable, ascertained and determined by two
193
Chap. 125.] ( 770 ) [TITLE. 24.
8 disinterested and discreet persons, to be appointed and sworn for that purpose by a justice of the
4 peace; and the sum determined by them shall be received instead of the sum demanded by the per-
•
5 son who impounded the beasts, and they shall thereupon be delivered to the owner or keeper there-
6 of,
lb. I Sec. 12. If the sum for which the beasts are impounded and detained, shall not be paid within four-
2 teen days after notice of the impounding shall have been given, as before directed, or after the last
3 publication of such notice in a newspaper, and shall not, have been determined as aforesaid, the per-
4 son who impounded them shall apply to a justice of the peace, and obtain a warrant to two disinter-
5 ested and discreet persons, to be appointed and sworn by the justice ; and the persons so appointed
6 and sworn, shall ascertain and determine the sum due from the owner or keeper of the beasts, for
7 the damages, costs and expenses for which they are impounded and detained, including areason-
--Frº.
8 able compensation for their own services. fºa .
* ** . . * * *-
- 1 SEc. 13. If the sum so found to be due, shall not be forthwith paid, the person who impounded the
ſºleus -.
2 beasts shall cause them to be sold by auction in the township where they are impounded, first ad-f
3 vertising the sale by posting up a notice thereof in three public places in the same township, at least.
4 five days before such sale.
I Sec. 14. The proceeds of the sale, after paying all the said damages, costs and expenses, with the
How proccods
disposed of. º g e
1sposed O 2 charges for advertising and selling the beasts, shall be deposited in the treasury of the township, for
3 the use of the owner of the beasts, in case he shall substantiate his claim thereto, within two years
4 from the time of sale.
pain sºme 1 Sec. 15. If any beasts that shall have been lawfully distrained or impounded, shall escape or be res-
or rescued inlay
be retaken.
2 cued, the pound-keeper or the person who distrained them, may, at any time within seven days
3 thereafter, retake such beasts, and hold and dispose thereof, as if no such escape or rescue had ta-
4 ken place.
CHAP. 125.] ( 771 ) [TITLE 24
H
2
3
4
Sec. 16. If any person shall rescue any beasts, distrained or impounded for any cause, he shall be
Penalty for res-
** dis-
& - tº gº e trail) C(i.
liable to an action on the case, to be brought by any person injured, to pay all damages which such"
person shall have sustained thereby, and all the fees and charges which shall have been incurred be.
fore the rescue, and shall also forfeit a sum not less than five, nor more than twenty dollars.
Sec. 17. The defendant in any action brought for rescuing beasts distrained or impounded, shall not
Legality of dis-
tress to be tried
• . * > g wº a . only in action of
be allowed to allege or give in evidence the insufficiency of the fences, or any other fact or circum- reſievin.
stance to show that the distress or impounding was illegal ; but if there is any such ground of ob-
jection to the proceeding, of which he is entitled to avail himself, he may have the advantage there-
of in an action of replevin, to be brought as provided in the following sections:
Replevin of Beasts Distrained.
SEc. 18. Any person whose beasts are distrained or impounded, in order to recover any penalty
Owner may
g & © e & & g have writ of re-
or forfeiture supposed to have been incurred by their going at large, or to obtain satisfaction for any pievin, Aº
damages alleged to have been done by them, may have a writ of replevin therefor out of the su.
preme court, and the same proceedings shall be had thereon as in other cases of replevin, except as
hereinafter provided.
SEc. 19. Such writ shall not be executed in any case, unless the plaintiff in the action, or some per-
son knowing the facts, shall make and annex to the writ an affidavit stating therein that the beasts, ãº,
describing them, have been distrained or impounded, and are detained by the defendant, and that
the plaintiff therein is the owner of such beasts, or that he has a lawful right to the possession therc-
of,
\
SEC. 20. The writ shall be served and the property shall be appraised, and before delivery there-
Bond to be given;
of to the plaintiff, a bond shall be given, in like manner and with the same effect as in other cases of.”
replevin ; but such property shall not be removed by the officer until such bond shall be given ; and
if such bond be not given within the time limited for that purpose, the property shall be relinquished
5 by the sheriff, and such failure shall be deemed a discontinuance of the suit by the plaintiff.
CHAP. 126.] ( 772 ) [TITLE 24.
1 Sec. 21. If the beasts shall be replevied and delivered to the plaintiff, and judgment of non-suit or
Judgment for de-
fendant how to
** 2 of discontinuance be rendered against the plaintiff, or if it appear on the trial, that the beasts were
3 lawfully distrained, the defendant shall have judgment for such sum as shall be due from the plain-
4 tiff, for the penalty or forfeiture, or for the damages for which the beasts were impounded, together
5 with all the lawful fees, costs, charges and expenses incurred by reason of the distress, to be assessed
6 as in other cases, and also his costs of the action of replevin,
1 Sec. 22. If the plaintiff shall recover judgment against the defendant by default, or if it shall ap-
Judgment for
plaintiff.
2 pear upon the trial, that the beasts were distrained without any sufficient or justifiable cause, the
3 plaintiff shall recover his damages caused by the unlawful detention of such beasts, to be assessed as
4 in other actions of replevin, together with his costs of suit.
CHAPTER (26.
OF THE LIEN OF MIECHANICS AND OTHERS.
Of certain Liens upon Real property.
Lien on real pro-
perty for labor
ºn 1 Section 1. Every person who shall, by contract with the owner of any piece of land, furnish labor or ma-
‘Uth IIl CºlSeS. ~
2 terials for erecting or repairing any building, or the appurtenances of any building, on such land, shall have
1840, p. 40. # * & . . . . e * * g e
3 a lien upon the whole piece of land, not exceeding one quarter of a section, including such building, in the
4 manner hereinafter provided, for the amount due to him for such labor or materials.
1 SEC. 2. Such lien shall not attach unless the contract is made in writing, and signed by the owner of the
Lien not to at.
tach unless con- 2
tract in writing,
etC.
land, or by some person duly authorized by him, and acknowledged, and recorded in the office of the register
3 of deeds of the county where the land lies.
1 Sec. 3. The lien shall be dissolved at the expiration of six months after the time when the money due by
When lien dis-
solved.
2 the contract, or the last instalment thereof, shall become due and payable, unless proceedings for enforcing
3 the lien shall have been commenced within the said six months.
CHAP. 126.] - ( 773 ) [TITLE *
2
2
2
3
4
*
s' contract, shall remain unpaid for the space of sixty days after the same
Sec. 4. When any sum due by such --, - p p When creditor
. *
- º º g e - . Or(ier to SCII.
is payable, the creditor may, upon a petition to the circuit court for the county in which the land lies, obtain
an order for the sale thereof, and for applying the proceeds to the discharge of his demand.
Spc. 5. The petition may be filed, either in term, or in vacation, and shall contain a brief statement of the contents of peti-
‘tioll.
contract on which it is ſounded, and of the amount due thereon, with a description of the premises which are
subject to the lien, and all other material facts, and circumstances, and shall pray that the premises may be
sold, and the proceeds of the sale be applied to the discharge of the demand.
...”
*S*.
SEc. 6. Upon filing the petition, an order may be entered of course, that the ownel of the land, appear and Order that own-
er appear and
- answer.
answer such petition within twenty days after service of notice of such order, and of a copy of the petition up
on such owner.
SEc. 7. Notice of such order, and a copy of the petition, shall be personally served on such owner, if he re-
Notice of order
and copy of pe-
e tº tº e g e - - - tition to be Ser-
sides within this state, and notice of the filing of the petition and entry of such order, shall also be served up-ved.
on all other creditors who shall have a similar lien upon the same lands.
SEC. 8. If it shall satisfactorily appear to the court that such owner resides out of this state, such courtshall
When moticc ſo
be published
- º º • , a > * - e e in newspaper,
make an order that notice of filing such petition be given to all persons interested, by publshing the etc.
..y
same, together with the substance of the petition, in some public newspaper printed or circulating within the
county, for six successive weeks.
.*
-0.
SEc. 9. Every creditor having a lien of the kind before mentioned, upon the same land, may appear and
&
Contesting
º * e- * - g ... i & claims it circuit
prove his claim, and the owner may appear and disprove the same, and each of said creditors shall have a court.
right to contest the claim of every other creditor; and the court shall hear and determine the several claims
in a summary manner, either with or without a jury, as the case may require.
SEC. 10. Every material question of fact shall be submitted to a jury, if required by either party, or if it
194
CHAP. 126.] ( 774 ) [TITLE 24,
rumorºus, 2 shall be thought proper by the court; and such trial shall be had upon a question stated, or upon an issue
tions by jury.
3 formed under the direction of the court, or otherwise, as the court shall order.
- 1 See, 11. The court shall examine all the claims that shall be presented, and shall ascertain and determine
All claims pre-,
sented to be de -
termined. º º e º
Crill ll) Cſ 2 the amount due to each creditor who has a lien of the kind before mentioned, upon the estate in question, and
3 every such claim that is due absolutely and without any condition, although not then payable, shall be allow-
4 ed with a rebate of interest to the time when it would become payable.
rºpertoº. 1 Sec. 12. When the owner of the land shall have ſailed to perſorm his part of the contract, and by reason.
mance of con- *
traCt.
2 thereof the other party shall, without his fault, have been prevented from completely performing his part,
3 he shall be entitled to a reasonable compensation for as much thereof as he has performed, in proportion to
4 the price stipulated for the whole, and the court shall adjust his claim accordingly.
whºle of 1 SEC, 13. If the lien shall be established in favor of any of the creditors whose claims are presented, wheth-
When Sale O º
premises order-
ed.
- ſ - *
2 er the petioning creditor or any other, the court shall order a sale of the premises to be made by the sheriff
3 or any master in chancery of the same county.
1 SEc. 14. If any part of the preinises can be separated from the residue and sold, without damage to the whole,
When part may
lye sold.
2 and if the value thereof shall be sufficient to satisfy all the claims proved in the case, the court may order
3 a sale of that part, if it shall appear to be most for the interest of all the parties concerned.
1 SEC. 15. The officer who makes the sale shall give notice of the time and place appointed therefor in the
Notice of sale *
and certificate of - º - e
purchase. 2 manner prescribed in relation to the sale of real estate on executions, unless the court shall order other or
3 different notice to be given, and such officer shall give to the purchaser a certiſicate of the sale, in like man-
4 ner as certificates are required to be given on a sale upon execution, and with the same effect.
I SEc. 16. All lands sold under such order of the court, may be redeemed in like manner, and upon the same
Redemption of
lands sold.
2 terms as are provided in the case of a sale of real estate on execution.
1 SEC. 17. If the claims against the estate are all ascertained at the time of ordering the saic, the court may
CHAP. 126.J 4 ( 775 ) & [TITLE 24.
2
3
4
4.
5
2
1
4
at the same time, order the officer to pay over and distribute the proceeds of the sale, after deducting all law-
Distribution of
proceeds when
ful charges and expenses, to and among the several creditors, to the amount of their respective claims, if *** *
there is sufficient therefor; and if there is not sufficient, then to divide and distribute the same among the
creditors in proportion to the amount due to each of them.
Sec. 18. Iſ the claims shall not all have been ascertained when the sale is ordered, or if for any other reason
- - Ib.
it shall be deemed proper to postpone the order of distribution, the court may direct the officer to bring the
proceeds of sale into court, to be disposed of according to the order of such court; and if in consequence of
the claims of attaching creditors, or for any other cause, the whole cannót be properly distributed at once,
the court may make two or more successive orders of distribution, as the circumstances may require.
Sec. 19. If there be any surplus of the proceeds of the sale, after making all the payments before mention-n
* ow surplus
disposed of Y
ed, it shall be forthwith paid over to the owner of the land; but such surplus shall be liable to be attached or
sº
taken in execution, in like manner as if it proceeded from a sale made on an execution.
SEc. 20. lf the land to which any such contract relates, shall be under attachment at the time of recording when, and how
far, attacking
creditor to be
& t d e * * preferred.
the contract, the attaching creditor shall be preferred, to the extent of the value of the land and buildings, as
they may be when the contract shall be recorded, and the court shall ascertain, by a jury or otherwise, as
the case may require, what portion of the proceeds of the sale shall be held subject to the attachment, as de-
º
rived from the value of the premises when the contract was recorded-
Sec. 21. If the attaching creditor in such case, shall recover in his suit, he shall be entitled to receive on
- Ib.
his execution the said proportion of the proceeds that are held subject to his attachment, or as much there.
of as may be necessary to satisfy his execution, and the residue, if any, of the proceeds of the sale, shall be
applied in the same manner as if there had been no such attachment,
Sec. 22. If the land to which the contract relates shall be attached after the recording of the contract, the case of ºne.
quent attach-
Inen (,
proceeds shall be applied, after discharging all prior liens and claims, so far as shall be necessary, or so far
as the same will extend, to satisfy the execution of such attaching creditor.
CHAP. 126.1 - ( 776 ) [TITLE 24.
1 SEc. 23. If an attachment is made aſter the recording of such contract, and if after the attachment, another
Casc of an inter-
vening attach-
Ill Clit. 2 such contract shall be recorded, the creditor in the latter contract shall be entitled to be paid only out of the
3 residue of the proceeds, if any, remaining after satisfying the attaching creditor, and also paying all that is
4 due on the contracts that were recorded before the attachment.
Rights of attach 1 SEC, 24. When there are several attaching creditors, they shall, as between themselves, be entitled to be
ing creditors and
COIltraClOrS a-
mong themseves. tº * * * * g
2 paid according to the order of their respective attachments, but when several creditors who are entitled to the
3 lien provided for in this chapter, have all equal rights as between themselves, and the fund shall be insufficient
4 to pay the whole, they shall share it equally in proportion to their respective claims.
p 1 SEC. 25. If the person who procures the work to be done, has an estate for life only, or any other estate
Debtor having a
liſe estate, etc.
2 less than a fee simple, in the land on which the work is done, or if the land, at the time of recording the
3 contract is mortgaged, or under any other incumbrance, the person who procures the work to be done shall
4 nevertheless be considered as the owner, for the purposes of this chapter, to the extent of his right and in-
terest in the land; and the lien before provided for shall bind his whole estate and interest therein, in like
5
6 manner as a mortgage would have done, and the creditor may cause the right of redemption, or whatever
other estate or interest such person had in the land, to be sold and applied to the discharge of his claim, ac-
7
8 cording to the provisions of this chapter.
ſui } 1 SEC. 26. If the person indebted in any such contract shall die, or shall coney away his estate, before the
lien may be ell-
forced against
heirs and as-
Signs. 2 commencement of suit on the contract, the suit may be prosecuted against his heirs, or whoever shall
3 hold the estate which he had in the premises at the time of making the contract, or if a suit is commenced
4 in his life time, it may be prosecuted against his representatives or assigns, in like manner as if the estate
had been mortgaged to secure the debt.
5
suit may be pro- 1 SEc. 27. If the creditor in such contract shall die before the commencement of a suit thereon, the suit may
secuted by re-
presentatives.
2 be prosecuted by his executors or administrators, or if commenced in his life time, it may be prosecuted by
3 them, as it might have been by the deceased, if living.
CHAP. 126.] - ( 777 ) [TITLE 24.
$.
1 SEc. 28. Iſ it appear in any stage of the proceedings under this chapter, that the suit was commenced by
--~~ Suit commenced
e - e & tº e & tº e e e e by one creditor
2 the petitioning creditor before the expiration of the sixty days, or after the expiration of six months, in that º .*.
ted by anotner in
certain cases.
3 behalf before limited, or if the petitioning creditor become non-suit or from any cause fail to establish his
4 claim. the suit may nevertheless be prosecuted by any other creditor having such a lien, in the same man-
5 ner as if it had been originally commenced by the latter creditor, if the circumstances of the case are such
6 that he might then, or at any time after the commencement of the original suit, have commenced a like suit
7 on his own claim.
I SEC. 29. If the suit is commenced by the petitioning creditor, before the expiration of the sixty days in
When creditor’s
claim may be
tº e tº e e * ſe te * allowed, though
2 that behalf limited, his claim may nevertheless be allowed, if he is otherwise entitled thereto, and if the º
y
&c.
3 suit is prosecuted by any other creditor as provided in the preceding section; but he shall not in such case
4 be entitled to any costs, and he may be compelled to pay the costs that shall be incurred by the debtor, or any
5 part thereof, as the court shall deem reasonable.
1 Sec. 30. The costs in all other cases shall be subject to the discretion of the court, and shall be paid out of Costs.
2 the proceeds of the sale, or by any of the parties in the suit, as justice and equity may require.
1 SEC. 31. Nothing contained in this chapter shall be construed to prevent any creditor in such contract from
Action at colm-
mon law not pre-
& e e © e & g vented.
2 maintainig an action thereon at the common law, in like manner as if he had no such lien for the security of
3 his debt.
1 SEC. 32. The register of deeds shall receive and record all contracts of the kind, mentioned in this chap-Registers to re.
cord contracts
&c.
2 ter, that shall be delivered to him for that purpose, and he shall be entitled to the same fees therefor, as for
3 recording deeds or other papers,
1 SEC. 33. When the debt secured by such lien shall be fully paid, the creditor shall, at the expense of the , .….,n.
Crediior to dis-
* charge lien gº
e {e - t payment, etc.
2 debtor, enter on the margin of the record of such contract, a discharge of his said lien, or shall execute a
3 deed of release thereof, in like manner as is provided in relation to the discharge of mortgages, after the
4 payment thereof,
195
CHAP. 126.] v. ( 778 ) [TITLE 24.
Indorsement of
pctition by sure-
ty for custs.
1 SEC. 34. Every petition filed by any person not a resident of this state, in pursuance of this chapter, shall
2 be endorsed in the same manner that declarations are required to be endorsed in the like cases, by some re.
3 sponsible person as security for costs, and the regulations concerning the endorsement of declarations shall
4 apply to the endorsement of such petition,
Of certain Liens upon Personal Property.
, I SEC. 35. Whenever any person shall deliver to any mechanic, artizan or tradesman, any materials or arti-
2 cles for the parpose of constructing, in whole or in part, or completing any furniture, jewelry, implement,
Lien of mechan- -
ics, etc. on per-
... "3 utensil, clothing or other article of value, such mechanic, artizan or tradesman shall have a lien thereon for
4 the just value of the labor and skill applied thereto by him, and for any materials which he may have fur-
-
5 nished in the construction or completion thereof, and may retain possession of the same until such charges
5
are paid. - - -
Ib 1 SEC. 36. When any person shall deliver to any mechanic, artizan, or tradesman, any watch, clock, article
2 of furniture or jewelry, implement, clothing or other article of value, to be altered, fitted or repaired, such
r
3 mechanic, artizan or tradesman shall have a lien thereon for the just value of the labor and skill applied
4 thereto by him, and may retain possession of the same until such charges are paid. -
*
1 Sec. 37. In either of the cases mentioned in the two preceding sections, if the owner of the property or
2 materials so delivered, or the person entitled thereto, shall not, when such articles shall have been con-
8 structed, completed, altered, fitted or repaired, and ready to be delivered to such owner, or other person, and
W hen lien may
be enforced.
4 the charges thereon shall be due and payable, pay to such mechanic, artizan or tradesman, the amount of
5 such charges, the person having such lien may enſorce the same as hereinafter provided.
-
1 SEC. 38. The person having such lien may commence a suit for the recovery of such charges, by summons
Suit º recov- * in the usual form, before any justice of the peace of the city or township in which he resides, or in the su-
ery of charges. w - .*
3. preme court, as the case may require, against the person liable for the payment thereof.
* Sec. 39. If such summons be returned personally served upon the defendant, the same proceedings shall
CHAP. 126.] - ( 779 ) [TITLE 24.
2 thereupon be had, in all respects, as in other suits commenced by summons, in which there is a personal ser: ..º.º. :
returned person-
ally served.
3 vice of process, and judgment shall be rendered in such suit in like manner,
I SEC. 40. If the officer return upon such summons, that the defendant cannot be found within his county,the
*
2 same proceedings shall be thereupon had, in all respects, as near as may be, as in suits commenced by attach- #: of judg-
3 ment, in which there is not a personal service of a copy of the attachment upon the defendant, and judgment
4 shall be rendered in such suit in like manner.
w * - - - & º s t º - & - -Proceedings if
1 SEC, 41. If the plaintiff recover jndgment in such suit, execution shall issue thereon in the same manner jºin:
not be found.
2 and with the like effect, as upon judgments rendered in suits commenced by attachment, and the property up.
3 on which the plaintiff holds such lien or so much thereof as shall be sufficient to satisfy such execution, may
4 be sold thereon in the same manner as if it had been seized and held upon an attachment in such suit.
1 SEC. 42. The provisions of this chapter concerning liens upon personal property, and enforcing the Enforcing liens
.* - O - in other cases.
• 2 same, shall apply to all cases of personal property on which the bailee or keeper thereof has by law a lien
&
.*.
3 for any keeping, feed, care or labor by him bestowed upon such property.
*
1 SEc. 43. If the property upon which any such lien shall be enforced as provided in this chapter, consist of
2 horses, cattle, sheep, swine, or other beasts, and any expenses shall have been incurred by the person having #in
When to be an
additional lien.
3 such lien aſter the same accrue, in keeping and taking care of such property, the amount of such expenses,
4 shall be an additionallien upon the property, and shall be computed and ascertained upon the trial, or assess-
5 ment of damages, and included in the judgment.
\
CHAP. 127.] ( 780 )
[TITLE 24.
CHAPTER 127.
OF THE DISPOSITION OF UNCLAIMED PROPERTY IN CERTAIN CASES.
pascription and I SECTION 1. Whenever any personal property shall be consigned to or deposited with any forward-
date of reception
of property to be
cntered in cer-
tain cases.
1839, p. 112, etc.
1840, p. 135.
When notice to
be given to own-
er by letter.
Notice of sale
when and how
to be given.
HProceeding if .
property remain
unclaimed, etc.
3
4
5
1
2
3
4
2
1
2
ing merchant, wharf heeper, ware house keeper, tavern keeper, or the keeper of any depot for the
reception and storage of trunks, baggage, and other personal property, such consignee or bailee shall
immediately cause to be entered in a book to be provided and kept by him for that purpose, a de-
scription of such property, with the date of the reception thereof.
Sec. 2. If such property shall not have been left with such consignee or bailee for the purpose of
being forwarded or otherwise disposed of according to directions received by such consignee or bail-
ee, at or before the time of the reception thereof, and the name and residence of the owner of such
property be known or ascertained, the person having such property in his custody, shall immediately
notify such owner by letter, to be directed to him, and deposited in a post-office, to be transmitted by
mail, of the reception of such property.
SEC. 3. In case any such property shall remain unclaimed for three months after its reception as
aforesaid, the person having possession thereof shall cause a notice to be published once in each week
for four successive weeks in a newspaper published in the same county, if there be one, and if not,
then in the state paper, describing such property, and specifying the time when it was so received,
and stating that unless such property shall be claimed within three months from the first publication
of such notice, and the lawful charges thereon paid, the same will be sold according to the statute in
such case made and provided.
Sec. 4. In case the owner or person entitled to such property shall not within three months after
the first publication of such notice, claim such property and pay the lawful charges thereon, inclu-
ding the expense of such publication, the person having possession of the property; his agent or at-
torney, may make and deliver to any justice of the peace of the same county, an affidavit, setting
Chap. 127.] - w ( 781 ) [TITLE 24.
5
6
4
5
forth a description of the property remaining unclaimed, the time of its reception, the publication of
the notice, and whether the owner of such property be known or unknown.
Sec. 5. Upon the delivery to him of such affidavit, the justice shall cause such property to be."...
When to be made
by justice.
opened and examined in his presence, and a true inventory thereof to be made, and shall make and
annex to such inventory an order under his hand, that the property therein described, be sold by
any constable of the city or township where the same shall be, at public auction, upon due notice.
Sec. 6. It shall be the duty of the constable receiving such inventory and order, to give ten days constable to give
notice and 8ell
propelty.
notice of the sale, by posting up written notices thereof in three public places in the city or town-
ship, and to sell such property at public auction, for the highest price he can obtain therefor.
SEc. 7. Upon completing the sale, the constable making the same shall endorse upon the order
Return of con-
Stable.
aforesaid, a return of his proceedings upon such order, and shall deliver the same to such justice,
together with the inventory, and the proceeds of the sale, after deducting his fees, which shall be
the same as upon an execution.
Sec. 8. From the proceeds of such sale, the justice shall pay the charges and expenses legally in-pºrosion,
proceeds etc.
curred in respect to such property, or a rateable proportion to each claimant, if there shall not be
sufficient for the payment of the whole ; and such justice shall ascertain and determine the amount
of such charges in a summary manner, and shall be entitled to one dollar ſor each day's services ren-
dered by him in such proceedings.
Sec. 9. Such justice shall deliver to the treasurer of the county in which the property was sold, inventory....
to be delivered
to county trea-
Sll rer.
the affidavit, inventory, and order of sale and return hereinbefore mentioned, together with a state-
ment of the charges and expenses incurred in respect to such property, as ascertained and paid by
him, with a statement of his own fees, and shall at the same time pay over to such treasurer any
balance of the proceeds of the sale, remaining after payment of such charges, expenses and fees.
196
CHAP. 128.] -- ( 782 ) [TITLE 24.
1 Sec. 10. The treasurer shall file in his office, and safely keep all the papers so delivered to him,
####".e. 2 *,
SUllſ Clſ. 2 and make a proper entry of the payment to him of any moneys arising from such sale, in the books:
3 of his office.
When owner 1 SEC. 11. If the owner of the property sold, or his legal representatives shall, at any time within
Inay receivo n-
mount depositcd
& ſº
with treasurer.
2 five years after such moneys shall be deposited in the county treasury, furnish satisfactory evidence
3 to the treasurer, of the ownership of such property, he or they shall be entitled to receive from
4 such treasurer, the amount so deposited with him.
it amount no. 1 SEc. 12. If the amount so deposited with any county treasurer, shall not be paid to such owner or
aid ſo owner, to
É. paid into
Lule UIC: '• e tº tº º g * >
“"“” 2 his legal representatives within the said five years, such county treasurer shall pay such amount in-
3 to the state treasury, to the credit of the general fund.
CHAPTER 12s.
of THE collection of PENALTIES, FORFEITURES AND FINES, AND OF FOR FEITED REcognizANCEs.
Of the collection of Penalties and Forfeitures.
1 Section 1. In all cases not otherwise specially provided for by law, where a pecuniary penalty or forfeiture
What penaltics
&c. may lic re-
i.” “ 2 shall be incurred by any person, and the act or omission for which the same is imposed, shall not be also a
3 misdemeanor, such penalty or ſorſeiture may be recovered in an action of debt, or in an action of assumsit ;
4 and if it be a ſorſeiture of any property, it may be sued ſor and recovered in an action of trover, or other
5 appropriate action.
1 Sec. 2. Every such action shall be brought in the name of the people of the State of Michigan, and shall
Action how
brought und con-
dueted. 2 be conducted and prosecuted in the same manner as personal actions, and shall be subject to all the provisions
3 of law concerning personal actions, not repugnant to the provisons of this chapter.
Jurisdiction of
1 SEc. 3. Justices of the peace shall have jurisdiction of all actions for the recovery of penalties or forfeitures,
justices. . .
2 where the amount of the penalty or ſorſeiture shall not exceed one hundred dollars.
Chap. 128.] - ( 783 ) [TITLE 24.
1 SEc. 4. Every action for a penalty or forfeiture, shall be broºght in the county where the act was done,
* - When to be
* sº brought.
2 or where the act omitted was required, in whole or in part, to be done, upon which the penalty or forfeiture
3 attached; and iſ brought in the supreme court, the venue in such action shall be laid in such county.
|
1 Sec. 5. In actions of debt brought to recover any penalty or forfeiture imposed by any statute, it shall be ſº declare
2 sufficient, without setting forth the special matter, to allege in the declaration, that the deſendant is indebted
z
3 to the plaintiff’s in the amount of such penalty or forfeiture; whereby an action hath accrued according to
\ * - - º & g e -> - º
4 the provisions of the statute by which such penalty or forſeiture is imposed, specifying the section and chap-
5 ter, as the case may require, or in some other similar terms, reſerring to such statute.
*
1 Sec. 6. Whenever an action of assumpsit shall be brought for the recovery of any penalty or forfeiture im-n, in assumpsit.
2 posed by any statute, it shall be sufficient, without setting ſorth the special matter, to allege in the declara-
3 tion, that the defendant, being indebted to the plaintiff's in the amount of such penalty or forfeiture, accord.
4 ing to the provisions of the statute by which such penalty or forfeiture is imposed, reſerring to such statute as
5 prescribed in the last section, undertook and promised to pay the same.
1 SEc. 7. If an action of trover be brought to recover any goods or other things forfeited by the provisions of it. in troyer.
2 any statute, the declaration may allege that such goods or other things were ſorſeited according to the pro-
3 visions of such statute, referring to the same as prescribed in the foregoing sections, and that the defendant
4 converted the same to his own use, without setting forth the special matter.
1 Sec. 8. To every declaration for a penalty or forfeiture, the déſendant may plead the general issue, which plea and evi.
- dence.
2 shall be in the same form as in personal actions; and may give in evidence under such plea any special mat-
3 ter in bar of the action, or in discharge of the defendant thereſrom, in the same manner, and with the like ef.
4 fect as if a special notice thereof had been given,
1 SEC. 9. When a penalty or forfeiture is imposed by law for any act or omission, not exceeding any speci-Where amºunt
- - is not specified.
2 fied sum, an action may be brought for the highest sum so specified; and the jury, or justice before whom
3 the trial shall be had, shall award the sum so specified, to the plaintiff’s, or such part thereof, within the lim-
4 itation prescribed by law, as shall be deemed proportion to the offence,
CuAP. 128.] ( 784 ) [TITLE 24.
When may be
recovered by in-
dictment.
When act or o-
nission to be a
misdemeanor.
Duty of super-
visors.
Duty of other
township offi-
COIS.
Wheu supervi-
sor to gtve notice
to prosecuting
attorney.
Duties of prose-
cuting attorney.
Moneys to be
paid over to
county treasurer.
l
2
1
SEc. 10. In all cases where the penalty or forfeiture shall be fifty dollars or more, such penalty or forfeit-
w
ure may be recovered by indictment in the circuit or district court ſor the proper county.
Sec. 11. When any act or omission is punishable according to law, by a fine, penalty, or forfeiture, and
imprisonment, or by such fine, penalty, or ſorſeiture, or imprisonment, in the discretion of the court, such
act or omission shall be deemed a misdemeanor.
SEc. 12. It shall be the duty of every supervisor, whenever he shall know, or have good reason to believe,
that any penalty or forfeiture has been incurred within his township, which shall be recoverable by action be-
fore a justice of the pcace, according to the ſoregoing provisions of this chapter, forthwith to commence and
prosecute a suit, in the name of the people of this state, for the recovery thereof.
SEC, 13. It shall be the duty of every other township officer, who shall know or have good reason to believe
that any penalty or forfeiture has been incurred within his township, forthwith to give notice thereof to the
supervisor.
Sec. 14. Whenever any supervisor shall know or have good reason to believe that any penalty or forfeiture
2 has been incurred within his township, which cannot be recovered before a Justice of the peace, it shall be
2
3
2
4
his duty forthwith to give notice thereof to the prosecuting attorney of his county.
SEc. 15. In the cases mentioned in the last preceding section, and in all other cases where the prosecuting
attorney shall know or have good reason to believe that a penalty or forfeiture has been incurred within his
county, it shall be the duty of such prosecuting attorney, without delay to prosecute for such penalty or for-
feiture; and in all cases where any suit shall be instituted by the supervisor as provided in this chapter, it
shall be the duty of such prosecuting attorney, if requested by such supervisor, to attend to and conduct such
suit on behalf of the plaintiffs.
SEc. 16. All sums of money collected on account of any penalty or forfeiture, in pursuance of the fore-
going provisions of this chapter, shall be paid by the officer collecting or receiving the same, to the treasur-
er of the county within which such penalty or forfeiture was incurred, within twenty days aſter the collec-
tion or receipt thereof.
Chap. 128.] ( 785 ) [Turlº. 24.
1 Sec. 17. If any sheriff, justice of the peace or other officer, shall neglect to pay over any moneys collec-
Payment over
how compellcd.
2 ted or received by him on account of any penalty or forfeiture, within the time limited in the preceding sec-
3 tion, the county treasurer shall proceed by attachment in the supreme court, or in the circuit court for the
4 county to collect the moneys so required to be paid over to him, in the same manner, and with the like effect,
5 as in case of an attachment against a sheriff for neglecting to return an execution in a civil suit.
Fines and forfeited Recognizances.
1 Sec. 18. When any grand or petit jurors shall have been summoned to attend any court, by leaving a writ-
When order to
he entered that
2 ten notice at his place of residence, and such juror shall not attend pursuant to such summons, the court shall.";..."
wº
3 cause an order to be entered in its minutes, that such deſaulting juror show cause, on some day to be speci-
fied in such order, in the same term, or on the first day of the then next term of such court, why a fine should
*.
5 not be imposed on him for such default.
1 SEc. 19. The clerk of the court by which such order shall be made, shall immediately deliver to the sheriff Certified copy of
- order to be de-
livered to sheriff.
2 of the county, a certified copy of every such order.
1 Sec. 20. Such sheriff shall serve such order on the defaulting juror named therein, personally, by showing
Service and re-
turn of order.
2 such certified copy, and delivering to him a copy thereof; and shall return such order, and his proceedings
3 thereon, to the court, at or before the time when such juror shall be required to show cause.
}
1 SEC. 21. If the sheriffshall return such order personally served, the court shall proceed to impose such fine
Proceedings on
return.
2 as shall be proper; and if the same be returned not personally served, the court shall make a ſurther order,
3. that such deſaulting juror show cause, at the then next term, why such fine should not be imposed; and the
4 same proceedings shall be had upon such order, as herein provided in respect to the first order, and such or-
5 ders shall be entered from time to time, until the same be personally served, or the juror appear.
1 SEc. 22. But if it appear from the return of the sheriff, or from any other evidence, that such juror is dead,
When proceed-
ings to cease.
2 or insane, or has permanently removed from the state; or if any satisfactory excuse shall be rendered by any
197
CăAp, 128.] ( 786 ) [TITLE 24.
s' person in behalf of such juror, for his default, the court may abstain from any further proceedings in rela-
4 tion to such default.
1 SEC, 23. When a fine shall be imposed by any court of law upon any grand or petit juror, or upon any con-
Orders for fines
to be delivered
to prosecutin º º -
attorney. & 2 stable, for non-attendance, or for any other cause, or upon any officer of such court, or upon any other per-
3 son, without being accompanied by an order for the immediate committment of the person so fined, until such
1844, p. 110, $1. - ... •
4 fine be paid, it shall be the duty of the clerk of such court immediately to deliver a copy of the order impos.
5 ing such fine, to the prosecuting attorney of the county in which such court shall be held.
1 SEC, 24. The prosecuting attorney shall, immediately after the adjournment of such court, issue process
Process to be is-
*** 2 under the seal of the circuit court for the county, to the sheriff thereof, commanding him to collect of the
*
3 several persons named in the schedule annexed to such process, the several sums affixed to their names re-
1844, 1. 119, §2. -
4 spectively, in such schedule, and to pay over the same to the treasurer of his county.
1 SEC, 25. To such process shall be annexed a schedule, containing in separate columns,
Schedule to be -
annexed. 2 1. The names of the persons fined:
3 2. Their respective places of residence:
4 3. The amount of the fine imposed on each :
1841, p. 119, §3. 4. The cause of such fine being imposed :
6 Which schedule shall be certified by the prosecuting attorney to contain a true abstract of the orders im.
7 posing such fines, delivered to him by the clerk.
&
I “Sec. 26. The sheriff to whom such process shall be directed and delivered, shall proceed to collect the
Exccution of
process. 2 amount of such fines respectively, of the several persons named in such schedule, by a levy and sale of the
3 personal property of such persons, in the manner provided by law in the service of executions against
4 property in civil cases, and shall be entitled to collect the same fees ; and in case sufficient personal proper.
1844, p. 119, §4. . . . . . . . * . - - - -
. . 5 ty cannot be found to raise such amount, such sheriff shall take the body of the person named in such sche-
6 dule and detain him in custody, until he shall satisfy such sum, in the same manner as on executions against
7 the body in civil cases, and shall be entitled for his services to the like fees.
CHAP. 128.] * , ( 787 ) - gº [TITLE 24
1
2
Sec. 27. Every sheriff to whom any such process shall be delivered, shall return the same at the then next
. - Return of pro-
- CeS8. , . A nº .
term of the circuit court for his county, after such delivery, with his proceedings thereon ; and such return 184, p. 120.3%
may be compelled by such circuit court, in the same manner as civil process.
Sec. 28. If it shall appear by any such return, that any fine has not been collected, the prosecuting attor- New process
when to be is-
sued.
ney shall issue new process, similar in all respects to the first process herein directed ; and such process shall
be issued from time to time, until such fines shall be collected, and the same proceedings shall be had thereon 1844, p. 120, 50
in all respects, as herein provided.
Sec. 29. But whenever a proseccting attorney shall issue any process for the collection of any fine, he shall
Who to be in-
te ſe - - luded in pro-
include in the schedule annexed to such process, the names of all persons upon whom any fine shall at that ºn pro
time have been imposed, and the process against whom has been returned unsatisfied, or against whom no ,
process shall have been issued for the collection of such fine.
Sec. 30. Whenever any recognizance to the people of this state shall have become forfeited, the prosecuting
*
& Suits on recog-
attorney of the county in which such recognizance was taken, shall prosecute the same by action of debt, or nºunces.
of assumpsit; and the pleadings and proceedings therein shall be the same in all respects as in personal actions
for the recovery of any debt; and upon a breach of the condition of the recognizance being found or con-
ſessed, or upon a judgment by default being entered against the defendant the judgment shall be absolue for
e”
the amount of the penalty of the recognizance.
SEc. 31. Executions shall be awarded and executed upon such judgments in the same manner as upon
• Execution there-
2 judgments in personal actions, and with the like effect in all respects. -- - Oſl ,
Sec. 32. Whenever any recognizance is directed by law to be estreated, such estreat shall be made by the
- g g Estreating re-
entry of an order directing the same to be prosecuted, and the same shall be prosecuted as herein directed. *
Sec. 83. The prosecuting attorney of every county, shall pay over to the county treasurer thereof, all
Moneys collect-
moneys collected or received by him, on e * - * :. L : -, ed to be patd ov-
y y on account of any recognizances, fines, penalties or forfeitures, within . § º:
- ting attorney,
twenty days after receiving the same.
Char. 128.] ( 788 ) [Tºrre 24
*
l
Account by pro-
secuting attor-
ney.
2
Remitting fines
and rc.cogni- 2
ZąIACCŞ.
Restriction of
power to remit.
2
Notice of appli- 2
cation.
1
Costs to be paid.
Sec. 34. The prosecuting attorney of each county, shall, at the first term of the circuit cour held in his
county, after the first day of January in each year, render to ach circuit court, on oath, an accoun in wri-
ting, of all moneys collected or received by him on account of any recognizances, fines, penalties or for-
feitures, during the year then next pressing and of all such matters, relating to any proceedings for the
recovery of any fines, penalties or forfeitures, as such court may require.
SEc. 35. Upon the application of any person who shall have been fined by any court of law sitting in any
county of this state, or of any person whose recognizance shall have become forfeited, or of his surely; the
circuit court for the county in which such court was held, or in which such recognizance was taken, may,
upon good cause shown, remit any such fine, or any such forfeiture of recognizance, or any part of such fine,
or of the penalty of such recognizance, upon such terms as to such court shall appear just and equitable; and
if any such fine shall have been paid, the officer in whose hands it may be, shall pay the same, or such part
as shall have been remitted, according to such order. --
SEc. 36. But the last section shall not authorize such court to remit any fine imposed by any court upon a
conviction for a criminal offence; nor any fine imposed by any court upon any officer thereof, or any party
therein, or upon any other person for an actual contempt of such court, or for disobedience of it. orders or
process; nor to remit or discharge any recognizance taken in one county, for the appearance of any person
in another; but the power of remitting or discharging such recognizanze, shall be exercised exclusively by
the circuit court for the county in which such person is bound to appear.
Sec. 37. No such application shall be heard until reasonable notice shall have been given to the prosecu- -
ting attorney, and until he shall have had an opportunity to examine the matter, and prepare to resist such
application : nor unless a justice of the Supreme court be present and holding such circuit court.
Sec. 38. Nor shall such application in any case be granted, without payment of the costs and expenses in-
2 curred in the prooeedings for the collection either of such fine or the penalty of such recognizance.
r:
1 Sec. 39. When any person shall have been fined by any court of special sessions of the peace, or by any
f
Ghap. 128.] ( 789 ) ſtºriº 34.
3
2 justice of the peace, upon a conviction for any offence, and shall have been committed to jail there to remain
Fines imposed
- - - . . - by ". of .
o º e o & : * • ‘ . . e - cial sessions, an
until such fine shall be paid, the circuit court for the county may remit such fine, or any part thereof, andjº
º peace.
may discharge such person from his imprisonment; and shall exercise such power in the manner and subject
to the provisions herein contained, in relation to fines and pénalties of recognizances.
SEC. 40. All officers or other persons, who shall collect or receive any moneys, on account of any fine,
- All other per-
• ſº- * * * * * ~ * e º - * * | - - - , sons receiving
penalty or forfeiture, in any case not herein before provided for, shall pay over the same to the county trea- º pen -
- - • , - alties, &c. to pay
- OVCr SüII16 to
treaSurer.
surer, within twenty days after the receipt thereof, and in case of failure so to do, the county treasurer shall
collect the same by attachmeut in the supreme court, or in the proper circuit court, in the manner herein be-
fore provided.
SEc. 41. Every county treasurer shall keep an accurate account of all moneys, paid to him on account of
* Treasurer how
e º e tº . e. ... to account for
fines, penalties, forfeitures and recognizances, separate and distinet from all other accounts, and shall credit such moneys.
the same to the library fund, and he shall account therefor to the board of supervisors at each annual mee-
ting of such board.
SEc. 42. All the moneys belonging to such library fund, shall be apportioned by the treasurer at the times
Moneys to be
* apportioned.
and in the manner provided in the preceding fifty-eighth chapter, and shall be paid over to the treasurers of
the several townships, according to such apportionment.
*
* e º ishment f
SEc. 43. Any officer who shall collect or receive any moneys, on account of any fine, penalty, forfeiture, º §: *.
moneys.
Or recognizance, and shall neglect or refuse to pay over the same according to law, or shall appropriate or
dispose of the same to his own use, or in any manner not authorized by law, shall be deemed guilty of a mis.
demeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars, or by
imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment, in the dis-
cretion of the court.
198
CHAr. 129.j ( 790 ) [Tirls 24.
CHAPTER 129,
OF ARBITRATIONS.
Yºº. 1 SECTION 1. All persons, except infants and married women, and persons of unsound mind, may, by
versies may be -
submitted to ar-
bitration, and by
whpm. 2 an instrument in writing, submit to the decision of one or more arbitrators, any controversy exist-
3 ing between them, which might be the subject of an action at law, or of a suit in chancery, except
4 as herein otherwise provided ; and may, in such submission, agree that a judgment of the supreme
5 court, or of any circuit court, to be designated in such instrument, shall be rendered upon the award
r
6 made pursuant to such submission.
1 SEC. 2. No such submission shall be made respecting the claim of any person to any estate, in fee
Claims te real - - - -
68tato.
2 or for life, to real estate ; but any claim to an interest for a term of years, or for one year or less,
3 in real estate, and controversies respecting the partition of lands between joint tenants or tenants in.
4 common, or concerning the boundaries of lands, or concerning the admeasurement of dower, may
5 be so submitted to arbitration.
1 Sec. 3. Every such submission shall be acknowledged by the parties signing the same, before some
Submission to be .
acknowledged.
2 officer authorized to take the acknowledgment of deeds, who shall certify such acknowledgment
3. thereon.
1 SEC. 4. The arbitrators so selected, shall appoint a time and place for the hearing, and shall ad-
Time, &c. of
bearing.
2 journ the same from time to time, as may be necessary ; and on the application of either party, and
3 for good cause, they may postpone such hearing to any time not extending beyond the day fixed in
4...such submission for rendering their award.
E SEc. 5. Before proceeding to hear any testimony, the arbitrators shall be sworn faithfully and fair-
Oath of arbitra- g
tors, &c. 2. ly to hear and examine the matters in controversy submitted to them, and to make a just award there-
3 on according to the best of their understanding, and either of such arbitrators shall have power to:
4 administer all necessary oaths to witnesses examined before them.
Char. 129] ( 791 ) [TITDE 24.
1
2
3
4
2
3.
Sec. 6. Witnesses may be compelled to appear before such arbitrators, by subpoenas, to be issued
Witnesses. .
by any justice of the peace, in the same manner and with the like effect, and subject to the same.
penalties for disobedience, or for refusing to be sworn or to testify, as in cases of trials before jus-
ces of the peace.
Sec. 7. All the arbitrators must meet together, and hear the proofs and allegations of the parties;
g - All to meet; who
- ſº tº o d.
but an award by a majority of them shall be valid, unless the concurrence of all the arbitrators be may awar
expressly required in the submission.
Sec. 8. Upon such submission, and the award made in pursuance thereof, being filed with the clerk ºnes a
of the court designated in such submission, within one year after the making of the award, such
court shall, by rule in open court, confirm such award, unless the same be vacated or modified, or a
decision thereon be postponed, as herein provided.
SEc. 9. Any party complaining of such award, may move the court designated in such submission,
Grounds of wa-
cating award.
to vacate the same, upon either of the following grounds:.
1. That such award was procured by corruption, fraud, or other undue means :
2. That there was evident partiality or corruption in the arbitrators, or either of them :
3. That the arbitrators were guity of misconduct, in refusing to postpone the hearing, upon suffi-
cient cause shown, or in refusing to hear any evidence, pertinent and material to the controversy,
or any other misbehavior by which the rights of any party shall have been prejudiced :
4. That the arbitrators exceeded their powers, or that they so imperfectly executed them, that a
mutual, final and definite award on the subject matter submitted, was not made.
SEC. 10. Any party to such submission, may also move the court designated therein to modify or
Grounds of cor-
reciing award.
correct such award, in the following cases :
1. Where there is an evident miscalculation of figures, or an evident mistake in the description of
. . .
r_j , i.
* , .
4.
any person, thing or property referred to in such award;
car tº ( 792 ) rºw.
5 2. where the arbitrators shall have awarded upon some matter not submitted to them, not affect-
6 ing the merits of the decision upon the matters mimited
7 a When the award shall be imperfect in some matter of form, not affecting the merits of the con-
8 troversy ; and where, if it had been a verdict, such defect wº have been amended or disregar-
**
9 ded by the court, according to the provisions of law.
1 SEC. I.1. Every such application to vacate or modify an award, shall be made to the court desig-
Motions to va- .
cate or modify . .
award. .
2 nated in the submission, at the next term aſter the publication of such award, upon the same notice
3 to the adverse party as in other cases of special motions, if there be time for that purpose; and if
4 there be not time, such court, or any judge thereof, may, upon good cause shown, order a stay of
5 proceedings on such award, either absolutely, or upon such terms asshall appear just, until the term
Proceedings by
Court.
6 of the court next after such first term.
1 SEC. 12. On such application, the court may vacate such award in any of the cases herein before
2 specified, and may, in their discretion, direct a re-hearing by the same arbitrators; and in the cases
3 herein specified, the court may modify and correct such award, so as to effect the intent thereof, and
Judgment.
Costs.
3 allowance as provided by law, in cases of references.
Record of judg-
ment.
4 to promote justice between the parties.
1 SEc. 13. Upon such award being confirmed or modified, the court shall render judgment in favor
2 of the party to whom any sum of money or damages shall have been awarded, that he recover the
s same ; and if the award shall have ordered any act to be done by either party, judgment shall be
4 entered that such act be done according to such order.
1 SEc. 14. The costs of the proceedings shall be taxed as in suits, and if no provision for the fees.
2 and expenses of the arbitrators shall have been made in the award, the court shall make the same
2.
* ~
- . 3 - . . . . . . r * , ; , , . • *.
l Sec. 15. A record of such judgment shall be made, commencing with a memorandum reciting the
- * . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; si jº.
2 submission; then stating the hearing before the arbitrators; their award; the proceedings of the
º:
CHAP. 129.] ( 793 ) [TITLE 24.
3
4
court thereupon, in modifying or confirming such award; and the judgment of the court for the re-
covery of the debt or damages awarded, and that the parties perform the acts ordered by the award,
and for the recovery of the costs allowed.
SEc. 16. Such record shall be filed and docketed, as records of judgments in other cases; shall
have the same force and effect in all respects ; be subject to all the provisions of law in relation to # #ºn.
judgments in actions; and may in like manner, be removed and reversed by writ of error; and ex-
ecution shall issue thereupon against the property or person of any party against whom a recovery
shall be had, in all respects as upon other judgments.
Sec. 17. When any writ of error shall be brought on any such judgment rendered in a circuit
court, certified copies of the original affidavits upon which any application in relation to such award Wºº.”
was founded, and of all other affidavits and papers relating to such application, shall be annexed to,
form a part of, and be returned with the record of the judgment; and the court to which such writ
shall be returned, shall reverse, modify or amend, or affirm such judgment, or any part thereof, ac-
cording to justice.
SEc. 18. When by such judgment, any party shall be required to perform any act, other than the Enforci
sº e” ,- intorcing cer–
tain judgments.
payment of money, the court rendering such judgment, shall enforce the same by rule; and the par-
ty refusing or neglecting to perform and execute such act, or any part thereof, shall be subject to all
the penalties of contemning an order of such court, and may be proceeded against in the manner
provided by law in such cases.
SEc. 19. If upon any application made pursuant to the foregoing provisions, the court shall vacate
Costs on *
ting award.
and set aside any award of arbitrators, costs may, in the discretion of the court be awarded to the
prevailing party; and the payment thereof may be enforced by rule of the court, as in other cases.
Sec. 20. Upon every such order vacating an award, made by any circuit court, the party aggrieved
199
CHAP. 130.] ( 794 ) [TITLE, 24.
Error on order
vacating award.
Proceedings on
roverSal.
Construction of
this chapter.
Neither party
can revoke sub-
mission, withoot
4, consent &c.
Certain mortga-
ges may be fore-
closed by adver-
tisement.
1840, p. 145, &e.
1841. p. 38, etc.
2
I
2
3
may bring a writ of error, as upon any other judgment of such court; to which writ shall be re-
turned certified copies of such order, and of all affidavits and papers used on such application; and
the court to which such writ shall be returned, shall proceed to confirm or reverse such order, as:
shall be just.
SEc. 21. If such order be reversed, the proceedings shall be remitted to the court from which they
were removed, to proceed thereon ; or the court to which such proceedings shall have been return-
ed, may proceed thereon to modify or confirm the award, and to render judgment thereon, in the
same manner, and with the like effect, as if such court had been designated in the submission.
Sec. 22. Nothing contained in this chapter, shall be construed to impair, diminish, or in any man-
ner to affect the power and authority of the court of chancery, over arbitrators, awards, or the par-
ties thereto ; nor to impair or affect any action upon any award, or upon any bond or other engage-
ment to abide an award.
SEC. 23. Neither party shall have power to revoke any submission made as provided in this chapter,
without the consent of the other party ; and if either party shall neglect to appear before the arbitra-
tors after due notice, the arbitrators may nevertheless proceed to hear and determine the matters sub-
mitted to them, upon the evidence produced by the other party.
CHAPTER 130.
OF THE FORECLOSURE OF MORTGAGES BY ADVERTISEMNT.
1 Section 1. Every mortgage of real estate, containing therein a power of sale, upon default being made
2 in any condition of such mortgage, may be foreclosed by advertisement, in the cases and in the manner
3 hereinafter specified.
CHAP. 130.] ( 705 ) ETITLE. 24.
1 Sec. 2. To entitle any party to give, a notica, as hereinafter prescribed, and to make such foreclosure, it
Requisites to en-
- title #. 10
2 shall be requisite, - - - t - - foreclose.
*
3 1. That the whole amount sccured by such mortgage shall have become ** payable, and that some
4 default in a oniºn of such mortgaga shall have occured, by wº the power to sell became operative:
5 2. That no suit or proceeding shall have been instituted at law, to recover the debt then remaining secured
6 by such mortgage, or any part thereof; or if any suit or proceeding has been instituted, that the same has
7 been discontinued, or that an execution npon the judgment rendered therein has been returned unsatisfied,
8 in whole or in part : and,
9 3. That the mortgage containing such power of sale has been duly recorded ; and iſ it shall have been as-
10 signed that all the assignments thereof shall have been recorded.
1 SEC. 3. Notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part
- Notice how giv-
2 of them, shall be given by publishing the same for twelve successive weeks, at least once in each week, in €I].
3 a newspaper printed in the county where the premises intended to be sold, or some part of them are situated,
4 if there be one; and if no newspaper be printed in such county, then such notice shall be published in the
5 state paper.
1 SEC. 4. Every such notice shall specify,
2 1. The names of the mortgagor and of the mortgagee, and the assignee of the mortgagee, if any : What to specify.
3 2. The date of the mortgage and when recorded:
4 3. Theamount claimed to be due thereon at the date of the notice; and
5 4. A description of the mortgaged premises,conforming substantially with that contained in the mortgage.
1 SEC. 5. The sale shall be at public vendme, between the hour of nine o’clock in the forenoon, and the set-
Sale how and
where made.
2 ting of the sun, at the place of holding the circuit court within the county in which the premises to be sold,
3 or some part of them, are situated, and shall be made by the person appointed for that purpose in the mort-
4 gage, or by the sheriff, under-sheriff, or a deputy sheriff of the county, to the highest bidder.
Chap. 130.] ( 796 ) ** - [TITLE 24.
How postponed,
Distinct tracts,
etc. to be sold
separatety.
Mortgages, etc.
may pnrchase.
1841. p. 175.
Deed to purcha-
Ser; indorsement
thereon.
Effect of deed, if
premises not re-
deemed.
How lands re-
deemed.
I
2
3
4
l
I
2
1.
Sec. 6. Such sale may be postponed from time to time, by inserting a notice of such postponement, as
soon as practicable, in the newspaper in which the original advertisement was published, and continuing
such publication until the time to which the sale shall be postponed, at the expense of the party requesting
such postponement.
SEC. 7. If the mortgaged premises consist of distinct farms, tracts or lots, they shall be sold separately
and no more farms, tracts or lots shall be sold, than shall be necessary to satisfy the amount due on such,
mortgage, at the date of the notice of sale, with interest, and the costs and expenses allowed by law.
SEC. 8. The mortgagee, his assigns, or his or their legal representatives, may, fairly and in good faith,
purchase the premises so advertised, or any part thereof, at such sale.
SEc. 9. The officer or person making the sale, shall forthwith execute and deliver to the purchaser a deed
of each parcel of the premises separately sold, specifying therein as the consideration of such deed, the pre-
cise amount for which such parcel was sold, and shall endorse thereon the time when such deed will become
operative, in case the premises are not redeemed according to law, and shall deposit the same with the regis-
ter of deeds of the county in which the land is situated.
SEc. 10. Unless the premises described in such deed shall be redeemed within the time limited for such re-
demption, as hereinafter provided, such deed shall thereupon become operative, and may be recorded, and
shall vest in the grantee thern named, his heirs or assigns, all the right, title and interest which the mort-
gagor had at the time of the execution of the mortgage, or at any time thereafter; but no person having any
valid subsisting lien upon the mortgaged premises or any part thereof, created before the lien of such mort.
gage took effect, shall be prejudiced by any such sale, nor shall his rights or interests be in any way affect-
ed thereby.
SEc. 11. If the mortgagor, his heirs, executors, administrators, or any person lawfully claiming from or
A.
under him or them, shall, within one year from the time of such sale, redeem the premises sold, or any dis-
tinct lot or parcel thereof separately sold, by paying to the purchaser, his executors, administrators or as-
CHAP. 130] ( 797 ) - [TITDE 24:
4 signs, or to the register of deeds in whose office such deed is deposited, for the benefit of such purchaser,
5
the sum which was bid therefor, with interest from the time of the sale, at the rate of ten per cent. per an-
6 num; then such deed shall be void and of no effect.
T
5
SEc. 12. Upon the payment of the sum bid for any parcel at such sale, and interest thereon as aforesaid,
Proceedings up-
on redemption.
to the register in whose office the deed therefor shall have been deposited; or upon delivering to such regis-
ter a certificate signed and acknowledged by the person entitled to receive the same, and certified by some
officer authorized to take the acknowledgment of deeds, setting forth that such sum, with interest, has been
paid to such person, such register shall thereupon destroy such deed, and shall enter in the margin of the re.
cord of such mortgage, if the same shall have been recorded in his office, a memorandum that such mortgage
is satisfied, in whole or in part, as the case may be.
Sec. 13. If any person entitled to receive such redemption moneys, shall, upon payment or tender thereof #.
using to execute
- certificates of
& º * ë payment.
to him, refuse to make and acknowledge such certificate of payment, he shall be liable to the person aggriev-
ed thereby, in the sum of one hundred dollars damages, over and above all the actual damages sustained, to be
recovered in an action on the case.
SEC 14, If, after any sale of real estate made as herein prescribed, there shall remain in the hands of the
* e 9. - ſº Payment of suf-
officer or other person making the sale, any surplus money, after satisfying the mortgage on which such real plus . mortga-
gor, etc.
estate was sold ; and payment of the costs and expenses of such foreclosure and sale, such surplus shall be
paid over by such officer or other person, on demand, to the mortgagor, his legal representatives or assigns.
SEc. 15. Any party desiring to perpetuate the evidence of any sale made in pursuance of the provisions of
* How cyidente
* - of sale perpetu-
this chrpter, may procure, ated.
1. An affidavit of the publication of the notice of sale, and of any notice of postponement, to be made by
the printer of the newspaper in which the same was inserted, or by some person in his employ knowing the
facts : and,
2. An affidavit of the fact of any sale pursuant to such notice, to be made by the person who acted as aue-
200
CHAP. 131.] ( 798 ) [Trrle 24.
7 tioneer at the sale, stating the time and place at which the same took place, the sum bid, and the name of
e
8 the purchaser.
Before whom aſ-
ſidavits may be
taken.
1 SEc. 16. The affidavits specified in the last preceding section, may be taken and certified by any officer au.
2 thorized by law to administer oaths.
Affidavits to be
recorded.
1 SEC. 17. Such affidavlts shall be recorded at length by the register of deeds of the county in which the pre-
2 mises are situated, in a book kept for the record of mortgages; and such original affidavits, the record there-
3 of, and certified copies of such record, shall be presumptive evidence of the facts therein contained.
Reference in
... § 1 SEC. 18. A note referring to the page and book where the evidence of any sale having been made under
cord of mort-
agc. -
g 2 a mortgage, is recorded, shall be made by the register recording such evidence, in the margin of the record
3 of such mortgage, if º record be in his office.
CHAPTER 13 I.
of THE DRAINING OF swamps AND OTHER Low LANDs.
1 Section 1. Apy person owning or possessing any swamp, marsh or other low land, who shall be desirous
Owner of 2 . . *
swamp, etc. may
apply for Sun-
Ill O.I.S.
to drain such land, and who shall deem it necessary, in order thereto,that a ditch or ditches should be opened.
3 through lands belonging to other persons, in case the owners of any such lands shall refuse to permit the
4 opening of such ditch or ditches through the same, may apply to any justice of the peace residing in the
5 township where such lands shall be, for such summons as is herein specified.
I839, p. 153 1 Sec. 2. The justice to whom such application shall be made, shall thereupon issue a summons, directed to
summons to be * -
issucd by justice.
2 the sheriff or any constable of the same county, requiring him to summon twelve reputable freeholders of
3 such county, who are not interested in the said lands, nor in any of them, nor in any wise of kin to either
4 of the parties, to be and appear on the premises, at a certain time to be specified in such summons, not
5 less than ten, nor more than twenty days from the date thereof.
CHAP. 131.] ( 799 ) • [TITLE 24.
i
2
2
I
1
SEc. 3. Such summons shall also direct the sheriff or constable to give at least six days’ notice to the own- i., §§
º given to OWI) Cr.
er of such lands, of the time at which such jury is to appear.
*
SEc. 4. The officer to whom such summons shall be delivered, shall execute the same by summoning
Summons how
executed.
such jurors, in the same manner, and with the like authority, as upon venires issued in cases pending be.
*
fore justices of the peace, and shall, in like manner make return thereof, and of the fact of his having gi-
ven the notice therein required.
SEC. 5. The justice shall attend at the time and place specified in the summons, and if it appear that due justice to attend
jury, and admin-
O ister oath, ete.
notice has been given, as required in the summons, and if twelve freeholders as above specified, shall then
there appear, he shall administer to each of them ari oath or affirmation, well and truly to examine and cer-
tify, in regard to the benefits or damages which will result from the opening of such ditch or ditches.
SEC. 6. The person applying to have such ditch or ditches opened, shall then deliver to the jury a map of
a
& & g Proceedings by
the land through which the same are proposed to be opened, on which map the plan, length, width and jury.
depth of such ditch or ditches shall be particularly designated ; and thereupon the jury shall personally ex-
amine the premises, and hear any reasons that may be offered in regard to the question submitted to them;
and they may, if they think proper, vary the dimensions of any ditch so proposed to be opened; but in each
cease they shall designate on the said map, the alterations made by them.
SEc. 7. If, aſter taking all the circumstances into consideration, the jury shall be satisfied that the opening
Inquisition of
o tº * e * tº e º e * , ſº ſº jury to be certi-
of such ditch or ditches is necessary and proper, they shall so certiſy by inquisition in writing ; and if sofied.
satisfied, they shall ſurther certify by such inquisition, that the benefits which will accrue to the ower of the
lands, from the opening of such ditch or ditches, will or will not be equal to any damages that he will sus- t
tain thereby ; and iſ such benefits shall be certified not to be equal to the damages, the jury shall assess the
damages which, in their judgment, will be sustained by such owner, and certify the same in like manner.
SEc. 8. Every such inquisition shall be signed by all the jurors, and delivered to the justice; and the jus
CHAP. 131.J - ( 800 ) [TITLE 24.
Inquisition to be
be delivered to
justice; fees of
officers and jury.
When applicant
may enter and .
open ditch.
Ditch may be
cleared and
scoured from
time to time.
I}ouble damages
for obstruciing
or injuring ditch
ClC,
Justice to Cause
map, etc. to be
filed with to WIl-
ship elerk:
2 tice, jurors, and officer Serving the summons, shall be entitled to receive the same fees for their services un-
3 der the provisions of this chapter as are allowed by law for similar services in causes tried before justices of
4 the peace.
1 SEC. 9. Upon payment or tender of the damages assessed by the jury, and the costs of such assessment,
2 or if no damages shall have been found by them, upon payment of the costs of the proceedings, and the
3 delivery of the certificate of the jury to the justice, it shall be lawful for the person applying for such sum-
4 * to ſenter, with his servants teams, carriages, and necessary implements, upon such lands, and
5 then and there to cut and open such ditch or ditches as were designated on the said map, according to the
6 plan and dimensions therein specified and adopted by the jury, not deviating materially from such dimen-
7 sions.
1 SEc. 10. After such ditch or ditches shall have been opened, it shall be lawful for the said applicant, his
2 heirs or assigns forever thereafter, from time to time,as it shall be necessary to enter upon the lands through
*
3 which such ditch or ditches shall have been opened, for the purpose of clearing out and scouring the same,
4 and then and there to clear and scout such ditch or ditches, in such manner as to preserve the original length
5 depth, and width thereof.
1 Sec, 11. Any person who shall dam up, obstruct or in any way injure any ditch or ditches so opened, shall
2 be liable to pay to the person owning or possessing the swamp, marsh or other low land, for the draining
3 of which such ditch or ditches shall have been opened, double the damages that shall be assessed by the jury
4 for such injury, and in case of a second or other subsequent offence by the same person, treble such dama-
º
5 ges.
1 Sec. 12. The justice before whom proceedings shall be had under this chapter, shall cause the map deliv-
2 ered by the applicant, and the inquisition of the jury, which he shall certify to have been taken before him,
3 to be filed in the office of the clerk of the township wherein the premises shall be situated, to be kept in his
4 office, as a record of the proceedings between the parties,
.*
CMA P. 132.] *.* - - ( 801 ) , [TITLE 24.
CHAPTER 132.
***
OF THE SUPPORT AND REGULATION OF MILLS.
1 Section 1. When any mill which is owned by several persons as joint tenants or tenants in common, or when mm may
be repaired, etc:
by part of own-
2 the dam or appurtenances of such mill shall need to be repaired or to be re-built, in whole or in part, and tº evenue
3 the proprietors shall not all agree to join in repairing or rebuilding the same, the greater part in interest
4 of the proprietors, may cause the work to be done at the expense of the whole, in proportion to their
5 respective interests.
1 SEc. 2. Any one or more of the proprietors may in such case, call a meeting of the whole of them, to be Meeting of pro-
\ prietors how
called.
2 held at the mill, to consult and agree upon the measures to be taken for repairing or re-building the same,
3 which meeting shall be called by a written notice, signed by the person who called it, and addressed to each
4 of the other proprietors, expressing that the mill in question needs to be repaired or re-built, and that a
5 meeting of the proprietors thereof will be held at the mill on a certain day and hour mentioned in the no
6 tice, to consult and agree upon the measures to be taken for that purpose, and requesting the atºmime of
7 the proprietors at such meeting:
1 SEC. 3. The notice may be served by any constable or other disinterested person, and the certificate of
Notice, by whomº
served, and how
- e returned.
2 such constable, endorsed on a copy of the notice, or the affidavit of such other person, annexed thereto,
8 specifying the several persons, if more than one, on whom he served it, and the time and manner of the
4 service, on each, shall be deemed sufficient evidence thereof.
1 SEC. 4 The notice shall be served by delivering the original to the person to whom it is addressed, or by
How notice to
be 8erved.
2 leaving such notice at his dwelling house, or at his last and usual place of abode, not more than thirty days
3 nor less than seven days before the day appointed for the meeting.
1 Sec. 5. At the meeting so called, or at any adjournment thereof, the greater part in interest of the whole
201
CHAP, 132.] ( 802 ) [TITLs 24.
Majority in in- 2 body of the proprietors of the mill, may take measures to cause the mill or the dam or appurtenances there-
terest may take .
measures to re-
pair, etc.
3 of, to be repaired or re-built, as they shall judge most for the interest of all who are concerned therein.
gº
Each proprietor
§: ºrs Sec. 6. Every proprietor of the mill shall pay his just and equal part of the charge and expense of such
of expenses.
2 repair or re-building, in proportion to his share or interest in the mill, which sum shall be paid upon de-
*
3 mand, after the work is completed, to the proprietors by whom it shall have been advanced, with interest
4 from the time of the advance.
Proprietor.º. 1 SEc. 7. The proprietors who shall advance the money so expended, shall have a lien therefor on the rents
vancing money
to have licn on
rents and profits,
or may maintain 2
Su it.
and profits of the mill, and may retain so much thereof as belongs to any proprietor who is indebted to them
3 for such advance, to be applied to the payment of his debt, or they may maintain a suit for such debt, or
4 for as much thereof as shall not be paid out of the rents and profits.
Guardians to act
1 SEc. 8. When any proprietor is under guardianship,ās a minor or otherwise, his guardian may act for him
for minors. &c. -
2 in calling a meeting of the proprietors, or in attending such a meeting, and may vote for the ward, and
3 may do all such other acts in the premises as the ward could do, if competent to act for himself; all which
4 shall be binding on the ward, and on his estate.
when husband 1 Sec. 9. When any part of the mill is held by a married woman, her husband may in like manner repre-
to aet for his
wife
2 sent her, and appear and act for her at such meeting, and his doings shall have the same effect as if they
3 had been done by her before their intermarriage. .
1 SEc. 10. When any part of the mill is held by any person as tenant for life, or years, with remainder or
Apportionment
of expense, in
§ºn 2 reversion to another person, the sum due for repairs and other expenses on that part of the mill, shall be
or lite, etc.
3 apportioned on the tenant for life or years, and on the remainder-man, or reversioner, in proportion to their
4 respective interests in the premises, or as shall be equitable and just; and the party to whom the money shall
5 be due from such remainder-man or reversioner, shall have a lien on the rents and profits belonging to him
6 aſter his estate shall come into possession, if not sooner paid, notwithstanding any limitation by lapse of
7 time.
CHAr. 132.] ( 803 ) [TITLE 24
1
2
Sec. 11. Every mortgagee in possession shall be considered as a proprietor for all the purposes of this
- Mortgage in pes-
session, and
- - te * * mortgagor how
chapter, but the mortgagor shall also be liable for all sems so due on account of his share of the mill, so far fººtſ. “
4 as the same are not recovered of the mortgagee, provided the action therefor, is brought against the mort-
5
l
1.
2
3
4
gagor, before his right of redemption is foreclosed; and all sums paid by the mortgagee on such account
shall be considered and allowed between him and the mortgagor, as so much added to the mortgage.
SEc. 12. All sums due from one proprietor to another, for moneys advanced under the provisions of this how moneys ad-
jºy be
Collected.
chapter, may be recovered in an action of assumpsit; and when two or more proprietors are so indebted, the
creditor or creditors may maintain a bill in chancery against any two or more of them, in which suit the
court shall determine what amount is due from each of the debtorsseverally, and shall award execution against
each of them accordingly, and shall apportion the amount so recovered, among the complainants in such suit
if more than one, according to their respective rights,
SEc. 13. Nothing in this chapter shall make void, or in any way affect, any contractor agreement between Coutracts be:
tween proprie-
tors º: §ed
by this chapter.
the proprietors of any mill, as to the repair or rebuilding thereof.
SEó. 14. Every miller, occupying and using a grist mill, shall be provided with scales and weights, or a
Miller to keep
e C g to & wº e ſº . e. l &
vibrating steel-yard, to weigh corn, grain, flour and meal, delivered at and taken from the mill, if required;....”
-- - flour, etc. For-
º: for #. l
ſº * - * & º º g ect Or re U188 tº
and if he shall neglect to keep himself so provided, or shall refuse so to weigh corn, grain, flour or meal,
when required by any person delivering or taking away the same, he shall forfeit for each neglect or re-
fusal, not less than one dollar, nor more than five dollars.
Rates of Toll för Grinding.
Sec. 15. The toll for grinding and bolting any wheat, rye, or other grain, shall not exceed one-tenth part
Rates of toll.
thereof; for grinding, and not bolting, any wheat, rye, or other grain, except Indian corn, the toll shall iſſuty of owner
- or occupant of
mill.
not exceed one-twelfth part thereof; and for grinding, and not bolting, Indian eorn, the toll shall not exceed
one-tenth part thereof.
CHAP. 133.] ( 804 ) [Title 24.
Construction of
last section.
Liability of mil-
ler in certain
C&ASCS,
Books and pa-
pers to be deliv-
cred to succes-
gors. Penalty.
Complaint by
BUICCC8Orö,
Delivery how
criforced.
1.
#
1 Sec. 16. The owner or occupant of any grist mill, shall well and sufficiently grind the grain brought to his
2 mill for that purpose in due time, and in the order in which it shall be received, and shall be accountable
3 for the safe keeping of all grain received in such mill for the purpose of being ground therein, and shall de-
4 liver the same when ground, or ground and bolted, as the case may be, with the bag or cask in which it was
5 brought, when demanded, but every owner or occupant of a mill may grind his own grain at any time.
º
1 SEC. 17. Nothing contained in the lest section shall be so construed as to charge the owner or occupant
2 of any mill, for the loss of any grain, bag or cask, which shall happen by fire or inevitable accident, without
3 the fault of such owner or occupant, his agents or servants.
1 SEC. 18. Eyery miller, or owner or occupant of a grist mill, who shall not well and sufficiently grind any
2 grain as aforesaid, or not in due time as the same shall be brought, or who shall exact or take more toll than
3 is herein allowed, shall, in every such case be liable to the party injured in the sum of five dollars damages,
4 over and above the actual damages sustained thereby.
CHAPTER 133.
PROCEEDINGS TO COMPEL THE DELIVERY OF BOOKS AND PAPERS BY runnie officers TO THEIR SUCCESSORS.
1 SECTION 1. Whenever any person shall be mºve from office, or the term for which he shall have been
2 elected or wºme shall expire, he shall on demand, deliver over to his successor all the books and papers
3 in his custody as such officer, or in any way appertaining to his office, and every person violating this
4 provision shall be deemed guilty of a misdemeanor.
SEC. 2. If any person shall refuse or neglect to deliver over to his successor, any books or papers, as re
2
quired in the preceding section, such successor may make complaint thereof to the chancellor, any justice
,”
3
of the Supreme court, or supreme court commlssioner, or to any associate judge of the circuit court for the
4 county where the person so refusing shall reside.
CHAP. 130.] (. 805 ) [TITLE 24.
l
2
l
2
SEc. 3...If such officer be satisfied by the oath of the complainant, and such other testimony as may be of.
Delivery, how
enforced.
fered, that any such books or papers are withheld, he shall grant an order, directing the person so refusing
to show cause before him, within some short and reasonable time, why he should not be compelled to deliver
the same.
SEc. 4, At the time so appointed, or at any other time to which the matter may be adjourned, upon due oncerto inquire
into complaint,
proof being made of the service of such order, such officer shall proceed to inquire into the matters set forth
in the complaint.
SEC. 5. If the person charged with withholding such books and papers, shall make affidavit before such ñº. . .
ivery of books
and papers.
officer, that he has truly delivered over to his succsssor, all such books and papers in his custody, or apper-
taining to his office, within his knowledge, all further proceedings before such officer shall cease, and the
person complained against shall be discharged.
SEC. 6. If the person complained against shall not make such affidavit, and it shall appear that any such when person
charged may be
committed.
books or papers are withheld, the officer before whom such proceedings shall be had, shall, by warrant com-
mit the person so withholding, to the jail of the county, there to remain until he shall deliver such books
and papers or be otherwise discharged according to law.
SEC. 7. In the case stated in the last section, if required by the complainant, such officer shall also issue search warrant
when to be is-
sued.
his warrant directed to the sheriff or any constable of the county, commanding them in the day time, to
search such places as shall be designated in such warrant, for such books and papers as belonged to the of.
ficer so removed, or whose term of office expired, in his official capacity, and which appertained to such
office, and seize and bring them before the officer issuing such warrant.
SEC, 8. Upon any books or papers being brought before such officer, by virtue of such warrant, ho shall
Proceedings
therenpon,
inquire and examine whether the same appertain to the office, from which the officer so refusing to deliver,
202 .
CHAP. 180.] - # ( '806 - ) [TITLE 24.
3 was removed, or of which the term expired, and if the same pertain to such office he shall cause them to be
4 delivered to the complainant.
I SEC. 9. lf any person appointed or selected to any office, shall did, or his office shall in any way become
Bonfre nnd nn -
pers how obtain-
ed when officer
los as . . .
2 vacant, and any books or papers belonging or appertaining to such office, shall come to the hands of any
8 person, the successor in such office may, in like manner as herein before prescribed, demand such books or .
4 papers from the person having the same in his possession; and if withheld, an order may be obtained, and
5 the person charged may in like manner make affidavit of the delivery of all such bºoks and papers that
6 ever came to his possession; and in case of omission to make such affidavit, and to deliver up the books and
7 papers so demanded, such person may be committed to jail, and a search warrant may be issued, and the
8 property seized may be delivered to the complainant, as hereinbefore prescribed.
Caar. 134.] º * ( 807 ) [TITLE 25.
TITLE XXV.
OF WEITs of HABEAs CoRPUs, SciRE FACIAS, INFORMATIONS, WRITs of MANdAMUs, Prohibition of Eamon
AND CERTIORAR.I. w
CHAPTER 134.—Of the Writs of Habeas Corpus and Certiorari.
46 135.—Of Writs of Scire Facias.
{{ 136.-Of Informations in the nature of a Quo Warranto, and in certain other cases.
6 & 137.-Of Writs of Mandamus and Prohibition.
& 4 138.--Of Writs of E! ror and Certiorari.
CHAPTER 134.
OF THE WRITS OF HABEAS CORPUS AND CERTIORARI.
Habeas Corpus to bring up a Person to testify.
1 SECTION 1. Every court of record shall have power, upon tho application of any party to any suit, or pro- -
Habeas corpus
to testify.
2 ceedings, civil or criminal, pending in such court, to issue a writ of habeas corpus for the purpose of bring.
3
ing before such court any prisoner who may be detained in any jail or prison within this state, for any cause
4 except a sentence for a felony, to be examined as a witness in such suit or proceeding, in behalf of the par.
5 ty making such application.
1 SEc. 2. Every such application shall be verified by affidavit, and shall state :
º e wº º e e . Application how
2 1. The title and nature of the suit or proceeding, in regard to which the testimony of such prisoner is made.
3 desired; and,
4 2. That the testimony of such prisoner is material and necessary to such party on the trial or hearing of
5 such suit or proceeding, as he is advised by counsel, and verily believes :
But if the application be made by the attorney general or prosecuting attorney, it shall not be necessary to
6
º
7 swear to such advice of counsel.
1 SEc. 3. Such writ may also be issued by the chancellor or any justice of the supreme court, or any officer
203
CHAP. 134.] ( 80s ) - [TITLE 25.
Officers who
may allow writ.
When to be is-
sued in suits be-
fore justices.
Certain prison-
ers to be remand-
ed.
Liability for dis-
obeying habeas
Corpus.
Who may sue
writ.
2
2
3
authorized to perſorm the duties of such justice, upon the like application of a party to any suit or proceed-
ing pending in a court of record, or pending before any officer or body who may be authorized to examine
witnesses in any Sait or proceeding.
Sec. 4. Such writ may also be issued by any of the officers aforesaid, upon the application of a party to a
suit before any justice of the peace, to bring any prisoner confined in the jail of the same county, or the
county next adjoining that where such justice may reside, before such justice, to be examined as a witness,
SEc. 5. Whenever any person shall be in execution on any civil process, or committed on any criminal
charge, and a writ of habæs corpus shall be issued to bring the body of such prisoner before any court, of.
ficer or body to testify, or to answer for any contempt or any other matter, and it be returned upon the writ
that the prisoner is charged in execution, or committed as aforesaid, he shall be remanded after having tes.
tified; and if any order of commitment be made against such prisoner, he shall be so committed to the pri-
son from which he was taken.
SEC. 6. Whenever any writ of habæs corpus shall be issued pursuant to any of the foregoing provisions of
this chapter, it shall be the duty of the officer to whom the same shall be delivered to obey and return such
writ according to the command thereof, in the manner and within the time prescribed by law ; and every
officer who shall neglect or refuse so to do, shall be liable to the people of this state, when the writ was is-
sued upon the application of the attorney general, or a prosecuting attorney, and in other cases to the par-
ty upon whose applciation the same shall have issued in the sum of five hundred dollars.
Haba's Corpus and Certiorari to inquire into cause of Detention.
SEc. 7. Every person, committed, detained, confined or restrained of his liberty, within this state for any
criminal or supposed criminal matter, or under any pretence whatsoever, except in the cases in the next sec-
tion specified, may prosecute a writ of habæs corpus or of certiorari according to the provisions of this chap-
ter, to inquire into the cause of such imprisonment or restraint.
SEc. 8. The following persons shah not be entitled to prosecute such writ:
Char. 134.] ( 809 ) [TITLE 25,
2 1. Persons committed or detained by virtue of any process issued by any court of the United States, or any
3
4
Who not entitled
to Bue Writ.
judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United
States, or shall have acquired exchusive jurisdiction by the commencement of suits in such courts :
2. Persons committed for treason or felony, or for suspicion thereof, or as accessories before the fact to a
felony, where the cause is plainly and specially expressed in the warrant of commitment:
3. Persons convicted, or in execution upon legal process, civil or criminal :
4. Persons committed on original process in any civil action on which they were liable to be arrested and
imprºnº, unless when excessive and unreasonable bail is required.
SEc. 9. Application for such writ shall be made by petition, signed, either by the party for whose relief it.
Application for
Writ.
s intended, or by some person in his behalf, as follows :
1. To the supreme court during its sitting ; or,
2. During any term or vacation of the supreme court, to the chancellor or any one of the justices of the
supreme court, or any officer who may be authorized to perform the duties of a justice of the supreme court
º
at chambers, or judge of a district court, being or residing within the county where the prisoner is detain-
ed; or if there be no such officer within such county, or if he be absent, or for any cause be incapable of
acting, or have refused to grant such writ, then to some officer having such authority residing in any adjoin-
ing county.
SEc. 10. Whenever application for any such writ shall be made to any officer not residing within the coun-
Proof required
on application in
ty where the prisoner shall be detained, he shall require proof by the oath of the party applying, or by oth-**
er sufficient evidence, that there is no officer in such county authorized to grant such writ, or if one reside
there, that he is absent, or has refused to grant such writ, or for some cause to be specially set forth, is inca-
pable of acting; and if such proof be not produced, the application shall he denied.
SEC. 11. The petition must state in substance,
1. That the person in whose behalf the writ is applied for, is imprisoned or restrained of his liberty; the
. . . . . . . . . . Contents of pe-
Q & :- - - -, * ~~~~~~ : P \, as a tition and h
officer or person by whom he is so confined or restrained, and the place where; naming both parties if their º'"
names be known, or describing them if their names be not known:
Caar. lsº - ( 810 ) [TITLE 25.
When writ to bo
granted.
Form of habeas
corpus.
5 2. That such person i. not committed or detained by virtue orary process, judgment, decree or execution
6 specified in the preceding eighth section:
7 8. The cause or pretence of such confinement or restraint, according to the best of the knowledge and be.
8 lief or the party:
9 4. If the confinement be by virtue of any warrant, order or process, a copy thereof must * annexed; or it
10 must be averred, that for some misian: reason, a demand of such copy could not be made; or that such de-
11 mand was made and that such copy was refused:
12 5. If the imprisonment be alleged to be illegal, the petition must also state in what the alleged illegality
13 consists:
14 6. It must speciſy whether the party applies for the writ of habeas corpus, or for the writ of certiorari;
15 and,
16 7. It must be verified by the oath of the party making the application.
1 SEC. 12. Any court or officer empowered to grant any writ applied for under this chapter, to whom such
<}
2
petition shall be presented, shall grant such writ without delay; unless it shall appear from the petition it-
3 self, or from the documents annexed, that the party applying therefor, is, by the provisions of this chapter,
4 prohibited from prosecuting such writ.
1 SEc. 13. Every writ of habeas corpus, issued under the provisions of this chapter, for the purpose of in-
quiring into the cause of any imprisonment or restraint, shall be substantially in the following form:
2
3 “In the name of the people of the State of Michigan: To the sheriff of the county of
4
(or ‘to A. B.") We command you, that you have the body of C. D. by you imprisoned and detained as it is
said, together with the time and cause of such imprisonment and detention, by whatsoever name the said C.
5
6 D. shall be called or charged, before our justices of our supreme court, (or ‘before E. F., one of the
7 justices of our supreme court,” or as the case may be,) at &c., on &c., (or immediately after the receipt of
8 this writ,) to do and receive, what shall then and there be considered concerning the said C. D,
9 And have you then there this writ.
10 Witness, &c.”
Chap. 134.] ( 811 ) [TITLE 25.
3
i
SEc. 14. Every writ of certiorari, issued pursuant to this chapter, shall be substantially in the following
.# - . - . . . . Form of certio-
Iſarl. . .
form :
ths
“In the name of the people of the state of Michigan: ,
To the sheriff of &c., (or “to A. B") -
we command you that you certify fully and at large to our justices of our supreme court, (or “to E. F.
one of the justices of our supreme court,” or as the case may be) at &c., on &c., (or “immediately after
the receipt of this writ”) the day and cause of the imprisonment of C. D. by you detained, * is said, by
whatsoever name the said C. D. shall be called or charged. And have you then there this writ.
Witness, &c.”
Sec. 15. Such writs of habeas corpus or certiorari shall not be disobeyed for any defect of form; but they
When writs suf
ficient.
shall be sufficient,
i. If the person having the custody of the prisoner be designated either by his name of office, if he have
any, or by his own name ; or if both such names be unknown or uncertain, he may be described by an as-
sumed appellation; and any one who may be served with the writ shall be deemed the person to whom it is
directed, although it may be directed to him by a wrong name or description, or to another person :
2. If the person imprisoned or restrained or who is directed to be produced, be designated by name; or if
his name be uncertain or unknown, if he be described in any other way, so as to designate the person in-
tended.
SEc. 16. When the supreme court, or any justice thereof, or judge of a district court shall have evi-puty of judges
lo issue writs in
Certain Cases.
dence from any judicial proceeding had before them that any person within the county where such court or
officer shall be, is illegally confined and restrained of his liberty, it shall be the duty of such court or offi-
cer, to issue a writ of habeas corpus or certiorari for his relief, although no petition be presented, or appli-
cation made for such writ.
Sec. 17. If any court or officer authorized by the provisions of this chapter to grant writs of habeas cor-
204
Chap. iś4.] - ( 812 ) [Title 25.
Łiability for re-
fusing writ.
Return to writ.
Return to be
signed and when
to be sworn to.
Body of prisoner
to be brought up.
Proceedings on
disobedienceof
writ.
2 pus or certiorari, to inquire into the cause of any imprisonment or detention, shall refuse to grant such writ
3 when legally applied for, every member of such court who shall have assented to such refusal, and every
4 such officer, shall severally be liable to the party aggrieved, in one thousand dollars damages.
1 SEc. 18. The person upon whom any such writ shall have been duly served, shall state in his return,plain-
2 ly and unequivocally,
3 1. Whether he have, or have not, the party in his custody, or under his power or restraint:
4 2. If he have the party in his custody or power, or under his restraint, the authority and true cause of
5 such imprisonment or restraint, setting forth the same at large :
6 3. If the party be detained by virtue of any writ, warrant, or other written authority, a copy thereof
7 shall be annexed to the return ; and the original shall be produced and exhibited on the return of the writ
8 to the court or officer before whom the same is returnable :
9 4. If the person upon whom such writ shall have been served, shall have had the party in his power, or
10 custody, or under his restraint at any time prior or subsequent to the date of the writ, but has transferred
11 such custody or restraint to another, the return shall state particularly 'to whom, at what time, for what
12 cause, and by what authority such transſer took place,
1 SEC. 19. The return must be signed by the person making the same ; and except when such person shall
2 be a sworn public officer, and shall make his return in his official capacity, it shall be verified by his oath.
1 SEC. 20. Iſ a writ of habeas corpus be issued, the person or officer on whom it shall have been served,
2 shall also bring the body of the person in his custody, according to the command of such writ, except in
3 case of the sickness of such person as hereinafter provided.
1 SEC. 21. If the person upon whom such writ of habeas corpus or certiorari shall have been duly served,
2 shall reſuse or neglect to obey the same by producing the party named in any such writ of habeas corpus,
3 and making a full and explicit return to every such writ of habeas corpus or certiorari within the time re-
4 quired by this chapter, and no sufficient excuse shall be shown for such refusal or neglect, it shall be the du-
5 ty of the court or officer before whom such writ shall have been made returnable, upon due proof of the
6 service thereof, forthwith to issue an attachment against such person.
CHAP. 134.] - ( 818 ) [Trrle 25.
T
2
2
Sec. 22. Such attachment shall be directed to the sheriff of any county within this state, and shall com .
- :Ib.
mand him forthwith to apprehend such person, and bring him before such court or officer, and on being so
brought, such person shall be committed to close custody in the jail of the county in which such court or of
ficer shall be, without being allowed the liberties thereof, until he shall make return to such writ, and com.
ply with any order which may be made by such court or officer, in relation to the person for whose relief
such writ shall have been issued.
SEc. 23. If a sheriff of any county shall have neglected to return such writ, the attachment may be directed
Proceedings a-
gainst sheriff.
to any coroner or other person, to be designated therein, who shall have full power to execute the same ;
and such sheriff upon being brought up, may be committed to the jail of any county other than his own.
SEc. 24. The court or officer by whom any such attachment may be issued, may also, at the same time, Prisoner to be
- produced.
or afterwards, issue a precept to the same sheriff, or other person to whom such attachment shall have been
directed, commanding him to bring forthwith before such court or officer, the party for whose benefit such
writ of habæs corpus or certiorari shall have been allowed; who shall thereafter remain in the custody of
such sheriff or person, until he shall be discharged, bailed or remanded as such court or officer shall direct.
SEc. 25. In the execution of such attachment or precept, or either of them, the sheriff or other person to
Power of the
county.
whom they shall be directed, may call to his aid the power of the county as in other cases.
SEc. 26. The court or officer before whom the party shall be brought on such writ of habæs corpus, shall,
Proceedings on
return of writ.
immediately after the return thereof, proceed to examine into the facts contained in such return, and into
the cause of the confinement or restraint of such party, whether the same shall have been for any griminal
or supposed criminal matter, or not.
SEc. 27. If no legal cause be shown for such imprisonment or restraint, or for the continuation thereof, When prisoner
to be discharged:
such court or officer shall discharge such party from the custody or restraint under which he is held.
Sec. 28. It shall be the duty of such court or officer forthwith to remand such party, if it shall appear that
he is detained in custody, either,
CHAP. 134.] - ( 814 ) [TITLE 25.
3 1: By virtue of process issued by any court or judge of the United States, in a case where such court or
When prisoner
to be remanded.
4 judge has exclusive jurisdiction; or,
.5 2. By virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of
6 any execution issued upon such judgment or decree: or,
3. For any contempt specially and plainly charged in the commitment, by some court, officer or body
7
8 having authority to commit for the contempt so charged; and,
9 That the time during which such party may be legally detained has not expired.
when prisone; 1 SEC, 29. If it appear on the return, that the prisoner is in custody by virtue of civil process from any court
to be discharged
in civil cases.
legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by
2
law, such prisoner can only be discharged in one of the following cases:
3
4 1. Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or per-
5 son:
6 2. Where, though the original imprisonment was lawful, yet by some act, omission or event, which has
taken place aſterwards, the party has become entitled to be discharged:
7
8 3. Where the process is defective, in some matter of substance required by law, rendering such process
o
void;
10 4. Where the process, though in proper form, has been issued in a case not allowed by law:
11 5. Where the person having the custody of the prisoner under such re- is not the person empowered
12 by law to detain him: or
13 6. Where the process is not authorized by any judgment, order or decree of any court, nor by any provis"
14 ion of law.
1 Sec. 30. But no court or officer, on the return of any habeas corpus or certiorari issued under this chap-
Restriction of tº tº © * , ºp e *
powers of court 2 ter, shall have power to inquire into the legality or justice of any process, judgment, decree or execution,
or officer,
3 specified in the preceding eighth section of this chapter; nor into the justice or propriety of any commit-
4 ment for a contempt made by any court, officer or body, according to law, and charged in such commitment
6 as herein before provided,
CHAP. 134.] ( 815 ) LTITLE 25,
1 SEC. 31. If it appear that the party has been legally committed for any criminal offence, or if he appear
Irregular crimi-
nal commit-
2 by the testimony offered with the return, or upon the hearing thereof, to be guilty of any such offence, al-”.
3 though the commitment be irregular, the court or officer before whom such party shall be brought, shall pro-
4
ceed to let such party to bail, if the case be bailable, and good bail be offered; or if not, shall forthwith re-
5 mand such party.
1 SEC. 32. If the party be not entitled to his discharge, and be not bailed, the court or officer shall remand
Remanding pri-
soner, &c.
2 him to the custody, or place him under the restraint, from which he was taken, if the person under whose
3 custody, or restraint he was, be legally entitled thereto; if not so entitled, he shall be committed by such
4 court or officer, to the custody of such officer or person as by law is entitled thereto.
*
1 SEc. 33. Until judgment be given upon the return, the court or officer before whom such party shall be
Custody of pris-
On Cr,
2 brought, may either commit such party to the custody of the sheriff of the county in which such court or
3 officer shall be, or place him in such care, or under such custody, as his age and other circumstances may
4 require.
1 Sec. 34. When it shall appear, from the return to any such writ, that the party named therein is in custo-noise, parties.
2 dy on any process, under which any other person has an interest in continuing his imprisonment or restraint,
3 no order shall be made for his discharge, until it shall appear that the party so interested, or his attorney, if
4 he have one,shall have had the like notice of the time and place at which such writshall have been made re-
5 turnable, as shall be required to be given of special motions in the supreme court of this state.
1 SEC. 35. When it shall appear from the return, that such party is detained upon a criminal accusation,
Notice to prose— ,
sº e e ſe e © cuting attorney.
2 such court or officer shall make no order for the discharge of such party, until sufficient notice of the time”
3 and place at which such writ shall have been returned, or shall be made returnable, shall be given to the
4 prosecuting attorney of the county, within which such court or officer shall be, or to the attorney general,
5 if there be no such prosecuting attorney within such county,
205
CºA.P., 184] (, 816 ) [TFFLE 25.
1. Sec. 36. The party brought before atly such court or officer, on the return of any writ of habéâscorpus,
Evidence against .
return, &c. .
2 may deny any of the material facts set forth in the return; or allege any ſict; to show either that his im-
3 prisonment or detention is unlawful, or that he is entitled to his discharge; which allegations or deñials
4. an be on oath; and thereupon such court or officer shall proceed in a summary way to hear such allega-
5 tions and proofs as may be produced in support of such imprisonment or detention, or against the same, and
6 to dispose of such party as the justice of the case may require.
*
sickness, &c. 1 SEC. 37. Whenever, from the sickness or infirmity of the person directed to be produced by any writ of
of prisoner.
2
habeas corpus, such person cannot, without danger, be brought before the court or officer before whom the
writ is made returnable, the party in whose custody he is, may stāte that fact in his return verifying the same
4
by his oath; and if such court or officer be satisfied of the truth of such allegation, and the return be other-
5 wise sufficient, they shall proceed to decide upon such return, and to dispose of the matter in the same man-
6 ner as if a writ of certiorari had been issued, instead of a writ of habeas corpus.
When writ of 1
certiorari may be
SEc. 38. Whenever an application shall be made for a writ of habeas corpus, according to the provisions
amended.
2
of this chapter, to any court or officer, if it appear to such court or officer upon the facts set forth in the pe.
3:
tition; that the cause, matter, or offence; for which the person is confined or detained, is not bailable, accor-
4
ding to the provisions of law; instead of awarding such writ of habeas corpus, a writ of certiorari may be
5
granted, directed to the officer or person in whose custody, or under whose control, such prisoner shall be
6
alleged to be, in like manner as if such writ of certiorari had been applied for by the prisoner.
Proceedings on SEC. 39. Upon the return to such certiorari being made, the court or officer before whom such writ shall
return of certio- -
rari,
2 be returnable, shall proceed in the same manner as upon returns to writs of habeas corpus, and shall hear
3 the proofs of the parties in support of and against such return.
1 SEc. 40. If it appear that the person detained is illegally imprisoned, confined or restrained of his liberty,
When order to .
be made for dis-
*ge of prº- 2 the court or officer shall make an order that those having such person in their custody, discharge him forth-
3 with ; and if it appear that such person is legally detained, imprisoned or confined, and is not entitled to be
4 bailed, such court or officer shall cease from all further proceedings thereon.
CHAP. 134.] -- ( 617 ) . [TITLE 25.
1 Sec. 41. Notwithstääding any writ of certiorari may have been issued or returned, according to the fore-
Habeas corpus
- . . . . . . . . . . f , , , , ! * .* * : * • * * ** j. * - ~. - i: - * * * * * - s • 4 - * * *...* • - . • . i - - may issue after
2 going provisions, the court or offiber before whom the same was returnable, māy issue a writ of habeas cor- ſººn of Certio
3 pus, which shall, in all respects be subject to the provisions herein before contained ; and if such court or
4 officer refuse a writ of certiorari, or upon the return thereof, refuse to discharge the person detained, if such
5 person claim the writ of habeas corpus, he shall be entitled to the same as herein before provided.
1 Sec. 42. If upon the return to any writ of certiorari, it shall appear that the person detained is entitled to
Order to bail
* * ſº tº , prisoner on cer-
2 bail, the court or officer before whom the same was returnable, shall make an order directing the sum in iorari.
3 which such person shall be held to bail, and the court at which he shall be required to appear; and that on
4 such bail being entered into, in conformity to such order, and the provisions of law, such prisoner be dis-
5 charged.
I Sec. 43. Upon the production of such order to any supreme court commissioner, or associate judge of the
Bail, by whom
- and how to be
2 circuit court of any county in which such prisoner may be, he shall be authorized to take the recognizance”
3 of the person so detained, and of two sufficient sureties, in the sum so directed, with a condition for the ap-
4 pearance of such person at the court designated in such order; but previous to taking such recognizance,
5 such officer shall be satisfied by the oath of the persons offering themselves as sureties, that they are house-
6 holders of the county, and are severally worth double the sum in which they shall be required to be bound,
7 over and above all demands against them.
1 SEc. 44. Such judge or commissionershall-file the recognizance taken by him, with the clerk of the court
When to be dis-
harged.
2 boſore which the prisoner shall be bound to appear, and shall certify on such order the compliance there.”
3 with; and the production of such order; só certified, shall entitle such prisoner to be discharged from impris.
4 on ment, for the cause which shall have been returned to such certiorari.
1 SEC. 45. Obedience to any order for the discharge-of any prisoner, grânted pursuant to the provisions of
Obedience to
* ^. - - order for dis-
2 this cha pter, may be enforced by the court or officer granting such order; by attachment; in the same man. ;. how eu-
* her as herein Provided for neglect to make return to a writ of habeas corpus, and with the like effect in all
Chap. 134.] ( 818 ) [TITLE 25.
Officers protec-
led in obeying
order.
In what eases
prisoner may be
recommitted for
same cause,
Liability for re-
comitting in pro-
hibited cases.
4 respects; and the person guilty of such disobedience, shall be liable to the party aggrieved in the sum of
5
2
9
p
11
12
one thousand dollars damages, in addition to any special damages such party may have sustained.
SEc. 46. No sheriff or other officer shall be liable to any civil action for obeying any such order of dis-
charge; and iſ any action shall be brought against such officer for suffering any person committed to his
custody to go at large, pursuant to any such order, he may give evidence thereof under his plea of the gen-
eral issue in bar of the action.
SEC. 47. No person who has been discharged by the order of any court or officer, upon a habeas corpus
Ol' certiorari, issued pursuant to the provisions of this chapter, shall be again imprisoned, restrained or kept
in custody for the same cause ; but it shall not be deemed the same cause:
1. If he shall have been discharged from a commitment on a criminal charge, and be afterwards commit-
ted for the same offence, by the legal order or process of the court wherein he shall be bound by recogni-
zance to appear, or in which he shall be indicted or convicted for the same offence: or,
2. If, after a discharge for defect of proof, or for any material defect in the commitment, in a criminal
case, the prisoner be again arrested on sufficient proof, and committed by legal process for the same offence:
10 3. If in a civil suit the party has been discharged for any illegality in the judgment or process hereinbe-
fore specified, and is afterwards imprisoned by legal process for the same cause of action ; or,
4. If in any civil suit in which process may lawfully issue against the body, he shall have been discharged
13 from commitment on original process, and shall be afterwards committed on execution in the same cause,
14 or on original process in any other suit, after such first suit shall have been discontinued.
1 SEc. 48. If any person, either solely or as a member of any court, or in the execution of any order, judg-
2 ment or process, shall knowingly re-commit, imprison or restrain of his liberty, or cause to be re-committed
3 imprisoned or restrained of his liberty, for the same cause, except as provided in the last preceding section,
*
4 any person so discharged, or shall knowingly aid or assist therein, he shall be liable to the party aggrieved
5 in the sum of one thousand dollars damages, and shall also be deemed guilty of a misdemeanor.
1 SEc. 49. Any one having in his custody or under his power, any person, who, by the provisions of this
CHAP. 134.] ( 819 ) ITITLE 25.
2
3
5
chapter, would be entitled to a writ of habæs corpus or certiorari, to inquire into the cause of his detention,
Concealment&c.
of prisoner a
or for whose relief any such writ shall have been duly issued, who shall, with intent to elude the service of misdemeanor.
any such writ, or to avoid the effect thereof, transfer any such prisoner to the custody, or place him under
the power or control of another, or conceal him, or change the place of his confinement, shall be deemed
guilty of a misdemeanor.
A
SEC, 50. Every person who shall knowingly aid or assist in the violation of the last preceding section, shall Aiding in con
l l tº-3
- cealment &c.
be deemed guilty of a misdemeanor.
SEc. 51. Every person convicted of any offence under either of the three last preceding sections, shall be Punish
unishment.
punished by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding
six months, or by both such fine and imprisonment, in the discretion of the court:
SEc. 52. Whenever it shall appear by satisfactory proof, that any one is held in illegal confinement or Yº
prisoncr.
custody, and that there is good reason to believe that he will be carried out of the state, or suffer some irre-
parable injury, before he can be relieved by the issuing of a habeas corpus or certiorari, any court or officer -
authorized to issue such writs, may issue a warrant, reciting the facts, and directed to any sheriff, constable
or other person, and commanding such officer or person to take such prisoner, and forthwith to bring him
before such court or officer, to be dealt with according to law.
Sec. 53, When the proof mentioned in the last section, shall also be sufficient to justify an arrest of the "...ºf
Offender.
erson having such prisoner in his custody, as for a criminal offence committed in the taking or detainin
p 3 p y; 8
of such prisoner, the warrant shall also contain an order for the arrest of such person, for such offence.
SEc. 54. Any officer or person to whom such warrant shall be directed, shall execute the same by bringing
Execution of
e & º e e warrant, proced-
the prisoner therein named, and the person who detains him, if so commanded by the warrant, before the ings."
court or officer issuing the same; and thereupon the person detaining such prisoner shall make a return, in
like manner, and the like proceedings shall be had, as if a writ of habeas corpus had been issued in the first
instance.
206
CHAP. 184.] ( 820 ) [Trris 25.
Examination &c.
of person
brought up on
Warrallt.
Liability of offi-
cer &c. refusing
copy of process.
Seal to Writs.
Return day.
Allowance of
Wrlts.
Habeas corpus
in behalf of the
people.
2
2
3
4
Sec. 55. If the person having such prisoner in his custody shall be brought before such court or officer, as
for a criminal offence, he shall be examined, committed, bailed or discharged, by such court or officer, in
like manner as in other criminal cases of the like nature.
SEc. 56. Any officer or other person who shall refuse or neglect for six hours, to deliver a copy of any or-
J
der, warrant, process or other authority, by which he shall detain any person, to any one who shall de-
mand such copy and tender the lawful fees therefor, shall be liable to the person so detained in the sum of
of two hundred dollars damages.
General Provisions.
SEC, 57. All writs of habeas corpus or certiorari, issued by any court pursuant to the provisions of this
chapter, shall be under the seal of the court by which they are awarded; and if awarded by any officer out
of court, they shall be under the seal of the court before which they are made returnable; or if any such
writ be made reſumable before some body other than a court of record or before an officer out of court, it
shall be under the seal of the supreme court, or of the circuit court for the county in which it shall be issued.
SEc. 58. Every such writ may be made returnable at a day certain, or forthwith, as the case may re-
quire.
SEc. 59. Every such writ shall be endorsed with a certificate of the allowance thereof, and with the date
of such allowance; which endorsement, if the writ be awarded by a court, shall be signed by the chief jus-
tice or other presiding officer of such court; if it be awarded by any officer out of court, the endorsement
shall be signed by such officer.
Sec. 60. Whenever a writ of habeas corpus shall be required in any action or matter civil or criminal, to
which the people of this state shall be parties, the application therefor may be made by the attorney gen-
eral, or prosecuting attorney having charge of such action or matter ; and whenever so issued, the court or
officer allowing it, shall state in their endorsement of the allowance of such writ, that it was allowed upon
5 such application.
CHAP. 184.] ( 821 ) [TITLE 25.
1 SEc. 61. Writs of habeas corpus can only be served by an elector of some county within this state; and i
- Serving writs.
2 the service thereof shall not be deemed complete, unless the party serving the same, shall tender to the per-
3 son in whose custody the prisoner may be, if such person be a sheriff, coroner, constable or marshall, the
4 fees allowed by law for bringing up such prisoner.
J
1 SEc. 62. But the last section shall not apply, so far as provision is therein made for the payment of fees, ñº. of
2 to any case where the writ is sued out by the attorney general or a prosecuting attorney.
1 SEC. 63. Every writ of habæs corpus or certiorari, issued pursuant to this chapter, may be served by deli-Mode of serving
Writ.
2 vering the same to the person to whom it is directed ; or, if he cannot be found, it may be served by being
3 left at the jail or other place in which the prisoner may be confined, with any under officer, or other person
4 of proper age, having charge for the time of such prisoner.
1 Sec. 64. If the person upon whom the writ ought to be served, conceal himself, or refuse admittance toº
himself, &c.
2 the party attempting to serve such writ, it may be served by affixing it in some conspicuous place, on the
Y
3 outside, either of his dwelling house, or of the place where the party is confined.
1 SEc. 65. It shall be the duty of every sheriff, coroner, constable or marshal, upon whom a writ of ha-
Officers &c, to
obey writs ser-
ved on them.
2 bass corpus shall be served, whether such writ be directed to him or not, upon the payment or tender of
3 the charges allowed by law, to obey and return such writ according to the exigency thereof; and it shall
4 be the duty of every other person upon such writ shall be served, having the custody of the individual for-
whose relief the writ shall be issued, to obey and execute such writ, according to the command thereof,
5
6 without requiring the payment of any charges, unless the payment of such charges shall have been required
7 by the officer issuing such writ.
1 SEC, 66. It shall, in like manner, be the duty of the person upon whom any writ of certiorari, issued pur-. *
2 Suant to the provisions of this chapter, shall be served, upon payment or tender of the fees allowed by law
f
3 for making a return to such writ, and for copying the warrant or other process to be annexed thereto, to obey
4 and return the same according to the exigency thereof.
CHAP. 135.] ( 822 ) º [TITLE 25.
Fees to persons
not officers.
Time for return-
ing writ.
Application of
this chapter,
Writs to annul
letters patent.
l
2
l
Sec. 67. Every officer allowing a writ of habes corpus directed to any person other than a sheriff, coron-
er, constable, or marshal, may, in his discretion, require as a duty to be performed, in order to render the
service thereof effectual, that the charges of bringing up man prisoner shall be paid by the petitioner; and
in such case he shall, in the allowance of the writ, specify the amount of such charges so to be paid, which
shall not exceed the fees allowed by law to sheriffs, for similar services.
SEe. 68. If the writ be returnable at a certain day, such return shall be made, and such prisoner produced
at the time and place specified therein; if it be returnable forthwith, and the place be within twenty miles of
the place of service, such return shall be made, and such prisoner shall be produced within twenty-four
hours; and the like time shall be allowed for every addititional twenty miles.
SEc. 69. The several provisions contained in this chapter shall be construed to apply, so far as they may
2 be applicable, to every writ of habæs corpus authorized to be issued by any statute of this state.
9
CHAPTER 135.
OF WRITS OF SCIRE FACIAS.
SECTION 1. A writ of scire facias may be issued out of the supreme court, in behalf of the people of this
state, upon the relation of the attorney general; or of any private person, for the purpose of vacating and
annulling any letters patent granted by the people of this state, in the following cases:
1. When it shall be alleged that such letters patent were obtained by means of some fraudulent suggestion,
or concealment of a material fact, made by the person to whom the same were issued, or made with his con-
sent or knowledge:
2. When it shall be alleged that such letters patent were issued through mistake, and in ignorance of some
material fact :
3. When the patentee, or those lawfully claiming under him, shall have done or omitted any act, in viola-
10 tion of the terms and conditions upon which suéh letters patent were granted; or shall by any other means
11 have forfeited the interst acquired under the same.
CHAP. 135.] ( 823 ) LTITLE 25.
3
2
SEc. 2. A writ of scire facias may also be issued out of the supreme court, upon the relation of the attor-
Writ to vacate
acts of incorpor-
tº tº tº ation.
ney general, against any corporation created or renewed by any act of the legislature, for the purpose of
vacating and annulling such act, on the ground that the same was passed upon some fraudulent suggestion,
or concealment of a material fact, made by the persons incorporated by such act, or made with their con-
sent or knowledge, but no such writ shall be issued under the provisions of this section, except when the
legislature shall specially direct the attorney general to prosecute the same.
SEc. 3. In every writ of Scire facias issued under either of the two preceding sections, the particular mat-
- Contents of writ,
ters and circumstances upon which the same is founded, shall be set forth with such convenient certainty,
that the defendants may be fully apprized of the general nature thereof.
Sec. 4. If the matters duly alleged in such writ, shall be found for the people, or the defendants shall d
Judgme 9t,
make defanlt, judgment shall be rendered, that the letters patent, or act of incorporation, specified in the
writ, as the case may be, be vacated and annulled.
Sec. 5. Writs of scire facias may be issued in all other cases where the same are or shall be allowed by any
g Writs of scire
g * * g te facias in other
law of this state, and the provisions of this chapter shall apply to such writs, so far as the same may be ap-cases.
3 plicable.
3
3
I
2
SEc. 6. Writs of scire facias may be issued, tested and returned, at the same time, and in the same man-
Issuing, teste,
and return.
ner as original writs in personal actions, and, except when otherwise specially provided, it shall not be nec-
assary to have any particular number of days between the test and return day thereof.
SEc. 7. It shall be the duty of the sheriff or other officer to whom any writ of scire facias may be directed,
Service of Wr it.
to endeavor to serve the same, notwithstanding any directions he may receive to the contrary, from the
plaintiff therein, or his attorney. -
SEC, 8. Every such writ shall be served by delivering a copy thereof, certified by the officer serving the
- - - - * * - - Mode of serving.
same to the party required to be summoned; or by leaying the same at his dwelling house, with some per-
207
CHAP. 135] ( 824 ) [TITLE 25.
Appearance of
defendants &c.
Notice to absent
defendants.
Publication.
Entering default
&c.
Declaration un-
necessary, &c,
3 son of proper age ; and if such writ be issued against a corporation, it shall be served in the same manner
4 as prescribed for the service of an original summons upon a corporation.
1 SEC. 9. In all cases where the writ shall be returned duly served, the appearance of the persons or ccrpor-
2 ations so summoned, shall be entered by the clerk as in other cases; and the plaintiff shall be entitled, on
8 the filing of such writ, so returned, to enter a rule requiring the deſendant to plead to such writ, within twen-
4 ty days after service of notice thereof, notice of which rule shall be served in the same manner and with
*
5 the like effect, as ia personal actions,
1 SEC, 10. If the sheriff return that any person who was the original defendant in a judgment, and was re-
2 quired to be summoned by such writ, cannot be found, and has no dwelling house within his county, the
3 court shall, after the filing of the scire facias, direct a rule to be entered, requiring the defendant to appear
4 and plead to such scire facias, within twenty days after the last publication of such rule, as hereinafter pro-
5 vided.
1 SEC. 11. A copy of such rule, certified by the clerk of the court, shall be published for four weeks succes-
2 sively in the state paper.
1 SEC. 12. If such defendant shall not appear and plead to such scire facias within the time limted by the rule,
2 the plaintiff shall be entitled, upon filing an affidavit of the due publication of said rule, to enter the default
3 of the defendant, and judgment shall be rendered upon such default, in like manner as if the writ had been
4 returned served.
1 SEc. 13. No declaration.shall be required to be filed upon the scire ſacias; but when executors or administra-
2 tors are plaintiffs in any such writ, they shall make profert of their letters testamentary or of administration
3 in the scire facias, in the same manner as in a declaration; and the deſendant shall plead to such writ, in
4 the same manner as to a declaration.
1 SEc. 14. No proceeding shall be had on any writ of scire facias, unless the same shall have been served,
CHAP. 135.] ( 825 ) [TITLE 25
2 or notice thereof published, as herein before provided ; and no proceeding shall be had against any bail pro- Wºº-
CâLCſ),
3 secuted by scire facias, until such writ shall have been personally served.
1 Sec. 15. Whenever judgment shall be rendered against the defendant, upon any scire facias brought to va- ; ***
be filed, with sec-
retary of state,
2 cate letters patent, or to vacate any act of incorporation, a copy of the record of such judgment shall be
3 forthwith filed in the office of the secretary of state,
to be transmitted
1 Sec. 16. If the record relate to letters patent the secretary shall forthwith transmit to the commissioner of...;
- to land office.
2 the land office, a statement of the substance and effect of such recovery, and of the time when the record
3 thereof was docketed; and the lands end tenements granted by such letters patent, may thereafter be dis-
4 posed of by such commissioner, in the same manner as if such letters patent had never been issued.
1 SEC. 17. If the record relate to an act of incorporation, the secretary of state shall forthwith cause notice : in certain.
2 of the substance and effect of such recovery, to be published for four successive weeks in the state paper,
3 and the like time in a newspaper printed in the county where the principal office or place of business of
4 the company created by such act, shall be if one be there published.
pº
&
I SEc, 18. Whenever any judgment shall be rendered for the vacating and annulling of any act of incor- * of chan-
2 poration, pursuant to the provisions of this chapter, the court of chancery shall have the same powers to
3 restrain the corporation created by such act, to apooint a receiver of its property and effects, and to take an
4 account, and make distribution thereof among its creditors as in cases of the voluntary dissolution of cor-
5 porations; and it shall be the duty of the attorney general, immediately after the rendering of any judg:
6 ment vacating and annulling any such act of incorporation, to institute proceedings for that purpose in said.
7 court.
CHAP. .136.] ( 826 ) [TITLE 25.
CHAPTER 136.
of INFORMATIONS IN THE NATURE of A QUo WARRANTo, AND IN CERTAIN OTHER CASES.
t
- - º g ę e ! tº ºve e * ę &
mººn, sº I SECTION 1. An information in the nature of a quo warranto, may be filed in the supreme court, either in
course, in what .
C8 SES. -
• \
2 term time or vacation, by the attorney general, against individuals, upon his own relation or upon the re-
3 lation of any private party, and without applying to such court for leave in either of the following cases.
4 1. When any person shall usurp, intrude into, or unlawſully hold or exercise any public office, civil or
5 military, or any franchise within this state; or any office in any corporation created by the authority of this
6 state :
7 2. Whenever any public officer, civil or military, shall have done or sufferod any act, which, by the pro-
8 visions of law, shall work a forfeiture of his office:
9 3. When any association, or number of persons shall act as a corporation within this state without being
- 10 legally incorporated.
1 SEC. 2. Whenever any such information shall be filed, a summons shall be issued thereon, which shall be
Summong there- - -
Oſl,
sº
2 served and returned in like manner as in personal actions ; and whenever the same shall be returned serv-
8 ed, the clerk of the court shall enter the deſendants' appearance.
1 SEC. 3. Whenever any such information shall be filed against any person, for usurping any office, the
what may be set *
forth in certain
cases. 2 attorney general, in addition to the other matters required to be set forth in the information, may also set
3 forth therein the name of the person rightfully entitled to such office, with an averment of his right
se
4. thereto.
1 SEC. 4. In every such case judgment shall be rendered upon the right of the defendant, and also upon the
Judgment on in-
formation for
'usurping office. 2 right of the party so entitled; or only upon the right of the defendant, as justice shall require.
1 Sec. 5. If judgment be rendered upon the right of the person so averred to be entitled, and the same be
Proceedings if
jºen. for * 2 in favor of such person, he shall be entitled aſter taking the oath of office and executing any official bond
3 which may be required by law, to take upon him the execution of the office ; and it shall be his duty, im-
CHAP. 136.] ( 827 ) . [TITLE 25.
4
5
1
3
4.
1
mediately thereafter, to demand of the defendant in such information, all the books and papers in his custo-
dy or within his power, belonging to such office.
SEc. 6. If such defendant shall refuse or neglect to deliver over any such books or papers, pursuant to Penalty on de-
fendant for refu.
sing to deliver
such demand, he shall be deemed guilty of a misdemeanor ; and the like proceedings shall be had, and boºks &c.
with the like effect, to compel the delivery of such books and papers, as are prescribed in chapter one hun-
dred and thirty-three of these revised statutes. tºp
©
º
Sec. 7. If judgment be rendered upon the right of the person so averred to be entitled, in favor of such per-
Suggestion of
damages.
son, he may, at any time within one year after the docketing of such judgment, make and file a suggestion,
that he has sustained damages to a certain amount, by reason of the usurpation by the defendant, of the of.
fice from which such defendant has been evicted, and praying judgment therefor.
SEc. 8. Such suggestion shall be entered, with the proceedings thereon, upon the record of the judgment
Proceedings on
º g tº e Suggestion.
or shall be attached thereto, as a continuation of the same ; it shall be served on the defendant or his attor- ggest10
ney, and a rule to plead thereto shall be entered, and notice thereof given, in the same manner and with the
like effect, as upon the filing of a declaration in personal actions.
SEc. 9. The defendant may plead the general issue to such suggestion, which shall be, in substance, the
Plea to sugges-
tion.
same as in personal actions; and on the trial of any such issue, the plaintiff therein shall be entitled to re-
cover the damages which he may have sustained by reason of the usurpation.
SEC, 10. All issues of fact or of law, that shall be joined between the parties, shall be determined as in
Determination of
personal actions; and the party recovering judgment, shall be entitled to have the same docketed, and to"
take out execution for any damages and costs, or either, that may be adjudged to him, in the same manner
as in personal actions.
SEc. 11. If no issue of fact be joined upon such suggestion, or if judgment be rendered against the defen-
208
CHAP. l.26.] ( 828. ) [TITLE 25.
Assignment of
damages on de-
fault, &c.
Informations a-
gainst corpora-
tion8,
Who to grant
leave,
2. dant by default, on demurrer or otherwise, a writ of inquiry shall be issued to ** of the county with:
3 in which the duties of the office are to be exercised, if the same be local, and if not local, to the sheriff of
4 any county within this state, to assess the damages sustained by the perm filing such suggestion, by rea-
5 son of the premises; or an order may be entered that such damages be assessed at a circuit court, to be held
6 in the county where the venue in such action shall be laid, and a circuit roll shall be made up, and the is.
7 sue tried, and return thereof made as in other cases,
I Sec. 12. An information in the mur. of a quo warranto may also be filed by the attorney general, º
2 his own relation, on leave granted, against any corporate body, whenever such corporation shall,
3 1. Offend against any of the provisions of the act or * creating, altering, or renewing such corpora-
4 tion, or,
5 2. Violate the provisions of any law, by which such corporation shall have forfeited its charter by mis-
6 user:, or,
7 3. Whenever it shall have forfeited its privileges and franchises by non-user: or,
8 4. Whenever it shall have done or omitted any acts which amount to a surrender of its corporate rights,
9 privileges and franchises: or, &
10 5. Whenever it shall exercise any franchise or privilege not conferred upon it by law:
11 And it shall be the duty of the attorney general, whenever he shall have good reason to believe that the
12 same can be established by proof, to file such information in every case of public interest; and also, in eve-
13 ry other case in which satisfactory security shall be given to. indemi, the people of this state against all
14 costs and expenses to be incurred thereby.
1 SEc. 13. Leave to file such information may be granted by the supreme court in term time, or by any
2 justice thereof, but by no other officer, upon the application of the attorney general in vacation ; and such
3 court or justice may, in their discretion, direct notice of such application, to be given to such corporation
4 or its officers, previous to granting such leave, and may hear such corporation in opposition thereto.
1 SEc. 14. Upon such leave being granted, and endorsed upon the information, under the hand of the clerk
CHAP. 136.] .e. ( 829 ) [TITLE 25.
2 of the court, or of the justice granting the same, the attorney general may forthwith file the same, and summon, on m.
formation.
3 thereupon may issue a writ of summons against such corporation, commanding the sheriff to summon such
4 corporation to appear in the said court, and to answer the said information,
1 SEc. 15. But when such corporation shall appear by counsel pursuant to the notice above authorized to be W. *
IMO *
2 given, and shall be heard in opposition to granting such leave, the court or justice granting leave, may al-
3 so direct a rule to be entered, requiring the defendants to appearand plead to such information, within twen-
4 ty days after service of a copy thereof, and notice of said rule; and in such case it shall not be necessar
5 ry to issue a writ of summons.
1 SEc. 16. Whenever any writ of summons, issued upon an information in the nature of a quo warranto, Proceedings on
return of sum-
In OIIS,
2 shall be returned duly served, the attorney general may thereupon enter a rule, in vacation, or in term, re-
3 quiring the defendants to plead to the information filed against them in twenty days after service of a copy
4 thereof; and the same shall be served in the same manner, and with the like effect, as rules, upon, declara.
5 tions in personal actions.
1 SEC. 17. Whenever any such writ shall be returned not served by reason of the defendants, or the officers
Rule for appear-
ante.
2 of the defendants not being found within the county, the court shall direct a rule to be entered, requiring the
3 defendant whether an individual or a corporation, to appear and plead to such information, within twenty
4 days after the last publication of such rule as hereinafter provided.
1 Sec. 18. A certified copy of such rule shall be published for four weeks successively, in the state paper;
© . g tº tº a ºn tº * blication, &c.
2 and if the defendant shall not appear and plead to such information, within the time limited in the rule, the Publication &c
3 plaintiff shall be entitled, upon filing an affidavit of the due publication of such rule, to enter the default
*
4 of the defendant, in like manner as if the writ had been duly served.
1 SEC. 19. When several persons claim to be entitled to the same office or franchise, one information may Information a-
gainst several
persons.
2 be filed against all such persons, in order to try their respective rights to such office or franchise.
CHAP. 136.] ( 830 ) - [TITLE 25.
Enlarging time
to plead, &c,
Judgment on
conviction.
Court may im-
pose a fine, &c.
Judgments a-
gainst corpora-
tions,
Collection of
COStS.
Powers of chan-
cery.
l
2
SEC. 20. An order may be made enlarging the time to plead or demur, upon an information in the nature
of a quo warranto, by the supreme court, or by a justice thereof; but by no other person.
SEc. 21. Whenever any defendant, whether a natural person or a corporation, against whom an information
in the nature of a quo warranto shall have been exhibited, shall be found or adjudged guilty of usurping or
intruding into, or unlawfully holding or exercising any office, franchise or privilege, judgment shall be ren-
tered that such defendant be ousted, and altogether excluded from such office, franchise or privilege; and
2.
also, that the attorney general, or the relator, if there be one, recover his costs against such defendant.
SEC, 22. The court may also, in its discretion, impose a fine upon any such person or corporation against
whom such judgment shall be rendered, not exceeding two thousand dollars; which fine, when collected,
shall be paid to the state treasurer, and shall by him be distributed and paid to the several county treasurers
to the credit of the several library funds, in the same proportions that the income of the primary School
fund was apportioned to the several counties, at the then last apportionment of such school moneys.
SEc. 23. Whenever it shall be found or adjudged that */ corporation against which an information in
the nature of a quo warranto shall haye been filed, has, by any misuser, nonuser, or surrender, forfeited
its corporate rights, privileges and franchises, judgment shall be rendered that such corporation be ousted
and altogether excluded from such corporate rights, privileges and franchises, and that the ma corporation
be dissolved.
SEC. 24. If judgment be rendered upon any such information against any corporation, or against any per-
sons claiming to be a corporation, the court may cause the costs therein to be collected, by executions
against the persons claiming to be a corporation, or by attachment against the directors or other officers of
any such corporation.
SEc. 25. Whenever any such judgment shall be rendered, the court of chancery shall have the same
powers to restrain the corporation against which it is rendered; to appoint a receiver of its property and ef-
ſects; and to take an account and make distribution thereof among its creditors, as in case of the voluntary
CHAP. 137.] - ( 831 ) - [TITLE 25.
4 dissolution of a corporation; and it shall be the duty of the attorney general, immediately after the render-
5 ing of any such judgment, to institute proceedings for that purpose in the said court.
}
1 SEc. 26. Whenever any such judgment shall be rendered against a corporation, a copy of the record of Record of judg-
ment to be filed
&c.
such judgment shall be forthwith filed in the office of the secretary of state; and such secretary shall forth-
2
3 with cause notice of the substance and effect of such recovery to be published for four successive weeks in
4
the state paper, and in a newspaper printed in the county where the principal office or place of business of
such corporation shall be, if a newspaper be there printed.
5.
1 Sec. 27. Whenever, by the provisions of law, any property, real or personal, shall be forfeited to the peo-
Informations for
forfeited proper-
ple of this state, or to any officers, for their use, an information for the recovery of such property, alleging”
2
3
the grounds of such forfeiture, may be filed by the attorney general in the supreme court ; upon which the
4
like proceedings and judgment shall be had, if the information be to recover personal property, as in actions
5 of trover, and if to recover real property, as in actions of ejectment.
CHAPTER 137.
OF WRITS OF MANDAMUS AND PROHIBITION.
1 SECTION 1. Whenever any writ of mandamus shall be issued out of the supreme court of this state,
Return to first
writ of manda -
2 the person, body or tribunal, to whom the same shall be directed and delivered, shall make return to"
3 the first writ of măndamus ; and for a neglect so to do, shall be proceeded against as for a con-
4 tempt.
1 SEC. 2. Whenever a return shall be made to any such writ, the person prosecuting the same may
Pleadings and
proceedings.
* demur or plead to all or any of the material facts contained in the said return, and the like proceed.
3 ings shall be had thereon for the determination thereof as might have been had if the person prose-
4 cuting such writ had brought his action on the case for a false return.
209
CMAP. 137.] ( 832 ) [Triº 25.
1 SEC. 3. Issues of fact joined in any such proceeding, shall be tried in the county within which the
Trial of issues of
faet.
, 2 material facts contained in the mandamus shall be alleged to have taken place.
1 Sec. 4. In case a verdict shall be found for the person sueing such writ,or if judgment be given for
Damages etc. - © * * ºn - º
2 him upon demurrer, or by default, he shall recover damages and costs, in like manner as he might
3 have done in such action on the case as aforesaid; and a peremptory mandamus shall be granted to
a him without delay.
º. 1 SEC. 5. A recovery of damages by virtue of this chapter, against any party who shall have made
8T10thCr & CU10Il. -
2 a return to a writ of mandamus, shall be a bar to any other action against the same party for the
3 making of such return.
1 SEC. 6. The supreme court, or any justice thereof, shall have the same power to enlarge the time -
Time for return. -
2 for making a return, and pleading thereto, as in personal actions,
1 SEC. 7. Whenever a peremptory mandamus shall be directed to any public officer, body or board,
Court may im-
pose fine in cer-
tain CaSCS. commanding them to perform any public duty, specially enjoined upon them by any provisions of
3 law, if it shall appear to the court that such officer, or any member of such body or board, has,
4 without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a
5 fine not exceeding two hundred and fifty dollars, upon every such officer, or member of such body
6 or board, which fine when collected, shall be paid to the state treasurer, and be by him distributed
7 and paid to the several county treasurers, in the manner and for the purpose specified in the twenty-
8 second section of the last preceding chapter,
1 SEC, 8. The payment of such fine shall be a bar to any action for any penalty incurred by such
Payment of fine. -
to bar action for
penalty. 2 officer, or member of such body or board, by reason of his refusal or neglect to perform the duty so
3 enjoined,
Caar. 137.] - ( 833 ) - - - [Trrik 25.
1
2
3
Sec. 9. Writs of prohibition shall only be issued out of the supreme court; and such writs shall be
Writs ef prohi-
bition.
applied for upon affidavits, by motion, in the same manner as writs of mandamus ; and if the cause
shown shall appear to the court to be sufficient, a writ shall be thereupon issued, which shall com-
mand the court and party to whom it shall be directed, to desist and refrain from any further pro- -
ceedings in the suit or matter specified therein, until the next term of the said supreme court, and the
further order of such court thereon ; and then to show cause why they should not be absolutely re-
strained from any further proceedings in such suit or matter.
Sec. 10. Such writ shall be served upon the court and party to whom it shall be directed, in the
Service and re-
{U} iſ Ll.
same manner as a writ of mandamus ; and a return shall in like manner be made thereto by such
court, which may be enforced by attachment.
SEC. 11. If the party to whom such writ of prohibition shall have been directed, shall,by an instru-
Proceedings
when party a-
ment in writing, to be signed by him, and annexed to such return, adopt the same return, and rely *P**
upon the matters therein contained, as sufficient cause why such court should not be restrained as
*…
mentioned in the said writ, such party shall thenceforth be deemed the defendant in such matter, and
the person prosecuting such writ may take issue or demur to the matters so relied upon by such de-
fendant ; and the like proceedings shall be had for the trial of issues of law or fact joined between
the parties, and for the rendering of judgment thereupon, as in personal actions.
SEC, 12. If the party to whom such writ of prohibition shall be directed, shall not adopt such re-
e - e ę ge Proceeding if re.
turn as above provided, the party prosecuting such writ shall bring on the argument of such return, turn not adopt.
ed.
as upon a rule to show cause ; and he may, by his own affidavit, and other proofs, controvert the
matters set forth in such return.
Sec. 13. The court, after hearing the proofs and allegations of the parties, shall render judgment,
Judgment if re-
turn not adopted,
either that a prohibition absolute, restraining the said court and party from proceeding in such suit
CHAP. 138.] ( 834 ) [TITLE 25,
3 or matter, do issue, or a writ of consultation, authorizing the court and party to proceed in the suit
4 or matter in question.
Judgments iſ re-
turn adopted.
I SEc. 14. If the party to whom such first writ of prohibition shall be directed, shall adopt the return
2 of the court thereto as above provided, and judgment shall be rendered for the party prosecuting
3 such writ, a prohibition absolute shall be issued ; but if judgment be given against such party, a writ
4 of consultation shall be issued as above provided.
CHAPTER 138.
of writs of ERROR AND CERTIoRAR1.
Writs of error
may issue of
COUllſ S0, SECTION 1. Writs of error in civil and criminal cases, upon any final judgment or determination,
2 may issue of course, out of the supreme court, in vacation as well as in term, and shall be returnable
3 to the same court.
Not to stay pro- tº * z - g ë tº e
tºº." 1 SEC. 2. No writ of error shall operate to stay or supersede the execution in any civil action, unless
ond given.
2 the plaintiff in error with two sufficient sureties, or three sufficient sureties without the plaintiff in
3 error, shall give bond to the defendant in error with condition that the plaintiff in error shall prose.
4 cute his writ to effect, and shall pay and satisfy such judgment as shall be rendered against him there-
5 On.
.nº of 1 SEC. 3. The sufficiency of the sureties, and the sum for which the bond shall be given, shall be de-
Sureties, by -
whoul determin-
ed, &c.
2 termined in each case,by any justice of the supreme court, or supreme court commissioner; but the
3 penalty of such bond shall not be less than double the amount of the judgment upon which the writ
4 of error is brought, if such judgment be against the plaintiff in error, nor in any case less than one
5. hundred dollars.
1 SEc. 4. The bond, if any be given, shall be filed in the office of the clerk of the court in which the
CHAP. 138.]
**
( 835 ) [TITLE 25.
... ? ! ...?'
4. $. - & :
2 judgment was rendered at the time of serving the writ on such clerk, and notice thereof shall be giv.
"º “ . . . . . . . . . . . . . . . . . . . . . . . ºr tº . . . . . . . '''' ' ' 'º'; '*) ºr hºrt, v. ... ; tr. § 1. Bond to be filed
and notice given
*
* * > f
ſt d :: *- :
º e o tº * &c, ‘. .
3 en to the defendant in error, or his attorney, and no execution shall thereafter be issued upon the
• ‘ , , ... . . . ( . . . . . .” . . . . . . . . . . . . . . . . . ; : : , , : " . t . ! . . . . . . . . . . - . . . . . . . . . . . . . . ! . . . .º.
* . . ; ; • * > t \ , , , , -- . . . . . . . . ) '
4 judgment complained of, during the pendency of the writ of error ; and if any execution shall have
5 been issued, all further proceedings thereon shall be stayed, upon the officer holding such execution
6
being served with a certificate of the service of such writ, and the filing of such bond, signed by the
7
olerk with whom such bond shall be filed.
Proceedings on
1 SEC. 5. The proceedings upon writs of error, as to the assignment of errors, and as to the appear-
• * .. . . . - . t - - . . . . ; . . . . . . . . . . . . . ſº ºf ~ : " : tº . ~ ; ; ; ; ; ; ; ; *. •
- - - - writs of errors.
2
ance of the defendant in error, and the pleadings, judgment, and all other matters not herein provided
... . . . . . " ' ' (; . . . . . . . . . . . . . . . . . . . . . .
3
for, shall be according to the course of the common law, as modified by the practice and usage in
4
this state, and such general rules as shall be made by the supreme court.
... • * , ~ . . . . ix– . . . ; ; ; ; ; : . . . . . . . - . . . ; ; ; i , " : : ; : & 3 tº ; ; ; , . . . . . .
I SEC. 6. No writ of error upon a judgment of conviction for treason, or for murder in the first de-Anowance of
writ in certain
CaSES.
gree, shall issue, unless allowed by one of the justices of the supreme court, after notice given to the
2
3 attorney general.
1 Sec. 7. Writs of error upon judgments in all other criminal cases, shall issue of course, but they
When writ mot
to delay execu-
shall not stay or delay the execution of the judgment or sentence, unless they shall be allowed by ºut
2
one of the justices of the supreme court, with an express order thereon for a stay of proceedings on
3
.4
the judgment or sentence.
1 SEC. S. When a stay of proceedings shall be ordered, as provided in the preceding section, the jus-
º º - - • Further order
tice may, at the time of making such order, make such further order as the case may require, for &c.
2
3
the custody of the plaintiff in error, or for letting him to bail; or the party may, upon a writ of ha-
4
beas corpus, procure his enlargement upon giving bail, if entitled thereto.
l
Sec. 9. All writs of error upon any judgment or final determination, rendered in any cause, in any
210
CHAP. 138.] - - ( 836 ) - [TITLE 25.
.*
* . * * 2 court of law, and of record in this state, shall be brought within two years after the rendering of such
Within what * . "
time writ to be
brought.
3 judgment or final determination, and not after, except in the cases specified in the two next sections
1 SEC. 10. If any person against whom any such judgment shall be rendered, or final determination
In case of disa-
bility.
S.
2 made, shall be at the time, either
3 1. Within the age of twenty-one years : or,
4 2. Insane : Or,
5 3. Imprisoned on any criminal charge, or in execution upon some conviction of a criminal offence,
6 for any term less than for life : or - .*
7 4. A married woman.
8 The time during which such disability shall continue, shall not be deemed any portion of the time
9 above limited for bringing a writ of error; but such person may bring such writ after the time so
10 limited, and within two years after such disability shall be removed.
1 SEc. 11. If the person entitled to bring such writ shall die, during the continuance of any disability
Hin case of death e & gº iº & o o tº º Q g
of party. 2 specified in the preceding section, his heirs, devisees, executors or administrators entitled to bring
3 such writ, may bring the same after the time herein limited for that purpose, and within two years
4 after such death,
1 SEC. 12. But the existence of any disability specified in the preceding sections, shall not authorize
Writ not to issue
after five years.
2 the bringing of a writ of error upon any judgment after the expiration of five years from the time of
3 rendering the same.
& I SEc. 13. If an action of debt, or a writ of scire facias, be brought on any judgment, a writ of error
Writ may issue
within two years
after action of
debt or scire fa-
cias. 2 to reverse the judgment may be sued out at any time within two years after the bringing of such
3 action of debt or writ of scire facias.
CHAP. 138.] - ** ( 837 ) [TITLE 25.
I
3
Writ of Certiorari.
Sec. 14. All writs of certiorari to correct errors in proceedings that are not according to the course wº... ...
rari, how issued
e § and made return-
of the common law, shall be issued out of and be made returnable to the supreme court, according able.
to the practice heretofore established, and subject to such regulations as shall from time to time be
made by the general rules of the supreme court.
SEc. 15. Writs of certiorari may be allowed by any justice of the supreme court, or supreme court ..." "
Writ.
commissioner.
* g e & & g * Within what
Sec. 16. No such writ of certiorari shall be issued, to correct any proceedings, unless such writ be ºr
to be brought.
brought within the same time after such proceedings shall have been had, as is limited by this chap-
ter for bringing a writ of error upon a judgment.
SEC. 17. Writs of error and of certiorari in civil cases, shall be indorsed in the same cases, and Indorsement of
writs of error
and certiorari.
with the like effect as original writs, by some responsible person as surety for costs.
SEC. 18. The party prevailing on a writ of certiorari in any proceeding of a civil nature, shall be costs on certo.
I’d Iſle
entitled to his costs against the adverse party in all cases; and in case such writ shall appear to
have been brought for the purpose of delay or vexation, the court may award double costs to the
4 prevailing party.
CHAP, 189.] ( 888 ) - [Title 26.
TITLE XXVI.
OF THE LIIMITATION OF ACTIONS.
ChaptAR 139.—Of the Limitation of Actions relating to Real Property.
ſ & 140.-Of the Limitation of Personal Actions,
CHAPTER 139.
of THE LIMITATION, OF ACTIONS RELATING TO REAL PROPERTY.
1 SECTION 1. No person shall commence an action for the recovery of any lands, normake, an entry
No action or cm-
try after twenty
ºš.2 thereupon, unless within twenty years after the right to make such entry or bring such action first
3 accrued, or within twenty years after he, or those from, by or under whom he claims, shall have
gº
'4"been seized or possessed of the premises, or shall have received the rents and profits of the same or
5 some part thereof, except as is hereinafter provided.
1 SEc. 2. ‘If such right or title accrued to an ancestor or predecessor of the person who brings the ac-
Computation of
time, if right ac- *"
.*.*.* 2 tion or makes the entry, or to any other person from, by or under whom he claims, the said twenty
3
years shall be computed from the time when the right or title so first accrued to such ancestor, pre-
4
decessor, or other person.
I Sec. 3. In the construction of this chapter, the right to make an entry or bring an action to recover
When right
deemed to have 2
accrued.
land, shall be deemed to have first accrued at the times respectively hreinafter mentioned, that is to
3 say :
4 1. Whenever any person shall be disseized, his right of entry or of action shall be deemed to have
5
accrued at the time of such disseizin:
6 2. When he claims as heir or devisee of one who died seized, his right shall be deemed to have ac-
7
sº crued at the time of such death, unless there is a tenancy by curtesy, or other estate, intervening
CHAP. 139.] ( 839 ) [TITLE 26.
8 after the death of such ancestor or devisor, in which case his right shall be deemed to accrue when
o such intermediate estate shall expire, or when it would have expired by its own limitation:
10 3. When there is such an intermediate estate, and in all other cases where the party claims by
11 force of any remainder Or reversion his right, so far as it is affected by the limitation herein pre-
12 scribed, shall be deemed to accrue when the intermediate or precedent estate would have expired
13 by its own limitation, notwithstanding any forfeiture thereof, for which he might have entered at
14 an earlier time:
15 4. The preceding clause shall not prevent any person from entering, when entitled to do so by
16 any forfeiture, or breach of condition, but if he claims under such a title, his right shall be deemed
17 to have accrued when the forfeiture was incurred, or the condition broken:
18 5. In all cases not otherwise provided for, the right shall be deemed to have accrued when the
19 claimant, or the person under whom he claims, first became entitled to the possession of the pre-
28 mises, under the title upon which the entry or action is founded.
1 SEC. 4. If any sole corporation shall be disseized, any of his successors may enter upon the pre- Limitation after
disseizcr of Solc
corporation.
2 mises, or may bring an action for the recovery thereof, at any time within five years after the death,
3 resignation, or removal of the person so disseized, notwithstanding the twenty years after such dis-
4 seizin shall have expired.
1 SEC. 5. If, at the time when any right of entry or of action, upon or for any lands shall first accrue cases of disabil-
lty. '
2 as aforesaid, the person entitled to such entry or action, shall be within the age of twenty-one years,
3 or a married woman, insane, imprisoned, or absent from the United States, such person, or any one
4 claiming from, by or under him, may make the entry or bring the action, at any time within ten
5
years after such disability shall be removed, notwithstanding the twenty years before limited in that
6 behalf shall have expired.
I
Sec. 6. If the person first entitled to make such entry or bring such action, shall die during the con-
211
Chap. 139.] - ( 840 ) [TITLE 26.
2 tinuance of any of the disabilities mentioned in the preceding section, and no determination or judg-
*...*
Uli) (199 e
3 ment shall have been had of or upon the title, right or action which accrued to him the entry may
4 be made, or the action brought by his heirs, or any other person claiming from, by or under him,
5 at any time within ten years after his death, notwithstanding the said twenty years shall have ex,
6 pired.
1 Sec. 7. If at the time when such right of entry or of action shall first accrue, the person entitled
No allowance
for any second ſº e º a to -
disability. 2 thereto shall be under any of the disabilities before mentioned, and shall die without having recov-
ered the premises, no further time for making such entry or bringing such action, beyond that here-
\
|
4 in before prescribed, shall be allowed by reason of the disability of any other person.
I SEc. 8. No person shall be deemed to have been in possession of any lands, within the meaning of
Entry on land
when effectnal.
this chapter, merely by reason of having made an entry thereon, unless he shall have continued in
3 open and peaceable possession of the premises for at least one year next after such entry, or unless
an action shall be commenced upon such entry and seizin, within one year after he shall be ousted
5
or dispossessed of the premises.
1 Sec. 9. When the right of action or entry shall have accrued before the time when this chapter
Rights accrued -
before this chap-
ºftect. 2 shall take effect as law, the same shall not be affected by this chapter; but all such actions and
3 rights shall be governed and determined according to the law under which the right accrued, in re-
1839, p. 233,1843,
. 43 tº e * * * . .
p. 4 4 spect to the limitation of such actions or rights of entry.
1 Sec. 10. If any action, of which the comméncement is limited by this chapter, shall be abated by
tºº.” the death of any party thereto, or if after verdict for the demandant or pºint the judgment shall
sal, &c. -
3 be arrested, or iſ judgment in any such action be given for the demandant or plaintiff, and the judg:
4 ment shall be reversed for error therein, the demandant or plaintiff, or any person claiming from, by
5 or under him, may bring an action for the same cause, at any time within one year after the deter-
". . . . . .-- is”. “ 2 y. . . .tºr . ,----> *- : ** ***** . . . . . . . . . . ." ‘. . -
6 mination of the original action, or after the reversal of the judgment.
CHAP, 140.] . . . ( 841 ) [TITLE 26,
1 SEC. 11. No suit for the recovery of any lands, shall be commenced by or in behalf of the people
Suits by the peo-
ple of this state.
2 of this state, unless within twenty years after the right or title of the people of the state therein first
3 accrued, or within twenty years after the said people or those from or through whom they claim,
4 shall have been seized or possessed of the premises, or shall have received the rents and profits of
5 the same, or some part thereof.
CHAPTER 140.
OF THE LIMIMATION OF PERSONAL ACTIONS.
1 SECTION 1. The following actions shall be commenced within six years next after the cause of ac- Ce
- * rtain actions
to be brought
3 tion shall accrue, and not afterwards, that is to my: within six years.
3 1. All actions of debt, founded upon any contract or liability not under seal, except such as are
4 brought upon the judgment or decree of some court of record of the United States, or of this, or
5 some other of the United States:
6 2. All actions upon judgments rendered in any court, other than those above excepted:
7 3. All actions for arrears of rent:
8 4. All actions of assumpsit, or upon the case, founded upon any contract or liability, express or im-
9 plied:
10 5. All actions for waste.
11 6. All actions of replevin and trover, and all other actions for taking, detaining, or injuring goods
12 or chattels:
13 7. All other actions on the case, except actions for slanderous words, or for libels.
1 SEC. 2. All actions for trespass upon land, or for assault and battery, or for false imprisonment, and
Certain actions &
to be brought
2 all actions for slanderous words, and for libels, shall be commenced within two years next after the *
3 cause of action shall accrue, and not afterwards.
CHAP. 140.] e ( 842 ) - *
• [TITLE 26,
Actions against
sheriffs, &c.
Fxceptions.
Cases of ac-
COU IntS Current.
Disabilities.
General limita-
tion.
Suits by alichs'
Case of defend-
ants out of the
'state.
.*
I
2
I
I
I
I
2
2
3
SEc. 3. All actions against sheriffs, for the misconduct or neglect of their deputies, shall be com-
menced within four years next after the cause of action shall accrue; and not afterwards.
Sec. 4. None of the provisions of this chapter shall apply to any action brought upon any bills,
notes or other evidences of debt issued by any bank.
SEC. 5. In all actions of debt or assumpsit, brought to recover the balance due upon a mutual and
open account current, the cause of action shall be deemed to have accrued at the time of the last
item proved in such account.
SEc. 6. If any rem entitled to bring any of the actions mentioned in this chapter, shall, at the
time when the cause of action accrues, be within the age of twenty-one years, or a married woman
insane, imprisoned in the state prison, or absent from the United States, such persons may bring the
said actions within the times in this chapter respectively limited, after the disability shall be re-
moved.
SEC. 7. All personal actions on any, contract, not limited by the foregoing sections, or by any oth-
er law of this state, shall be brought within twenty years after the accruing of the cause of action,
and not afterwards.
Sec. 8. When any person shall be disabled to prosecute an action in the courts of this state, by
reason of his being an alien, subject or citizen of any country at war with the United States, the
time of the continuance of such war shall not be deemed any part of the respective periods herein
4 limited for the commencement of any of the actions before mentioned.
I
Sec. 9. If at the time when any cause of action mentioned in this chapter, shall accrue against any
2 person, he shall be out of the state, the action may be commenced within the time herein limited
3 therefor, after such person shall come into this state, and if after any cause of action shall have ac-
4 crued, the person against whom it shall have accrued shall be absent from and reside out of the state,
CHAP. Taſ).] ( 843 ) ITITLE 26.
5 the time of his absence shall not be taken as any part of the time limited for the commencement of
6 the action.
1 SEC. 10. If any person entitled to bring any of the actions before mentioned in this chapter, or li-
Case of death of
Gither party.
2 able to any such actions, shall die before the expiration of the time herein limited, or within thirty
3 days after the expiration of the said time, and if the cause of action does by law survive, the action
4 may be commences by or against the executor or administrator of the deceased person, or the claim
5 may be proved as a debt against the estate of the deceased person, as the case may be, at any time
6 within two years after granting letters testamentary or of administration, and not-afterwards, if
7 barred by the provisions of this chapter.
1 SEC. 11. If in any action duly commenced within the time limited in this chapter, and allowed
Remedy in case
of reversal, ar-
therefor, the writ or declaration shall fail of a sufficient service or return, by any unavoidable acci-. ****
2
sº
dent, or by any default or neglect of the officer to whom it is committed, or if the writ be abated,
3
4 or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of
5 favor, or if after a verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the
6 plaintiff shall be reversed on a writ of error, the plaintiff may commence a new action for the same
7 cause, at any time within one year after the abatement or other determination of the original suit,
s or after the reversal of the judgment therein; and if the cause of action does by law survive, his
9 executor or administrator may, in case of his death, commence such new action within the said one
10 year.
1 SEC. 12. If any person who is liable to any of the actions mentioned in this chapter, shall fraudu-
Fraudulent con-
cealment by de-
2 lently conceal the cause of such action, from the knowledge of the person entitled thereto, the ac-ºnt.
3 tion may be commenced at any time within two years after the person who is entitled to bring the
* same, shall discover that he has such cause of action, although such action would be otherwise
. 5 barred by the provisions of this chapter.
212
Chap. 140.] ( 844 ) [TITLE 26.
New promise,
&c. to be in wri-
ting.
Promise by one
of several joint
COntractors.
Proceedings in
actions against
joint COmtraClOrg.
Il).
Effect of part
payment.
I
SEC. 13. In actions founded upon contract express or implied, no acknowledgment or promise shall
2 be evidence of a continuing contract, whereby to take a case out of the provisions of this chapter,
3
4
l
2
I
2
2
5
6
or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or
contained by or in some writing, signed by the party to be charged thereby.
SEc. 14. If there be two or more joint contractors or joint executors or administrators of any con-
tractor, no such joint contractor, executor or administrator, shall lose the benefit of the provisions of
this chapter, so as to be chargeable, by reason of any acknowledgment or promise, made or signed
by any other or others of them.
***
SEc. 15. In actions commenced against two or more joint contractors, or joint executors or admin-
istrators of any contractor, if it shall appear on the trial or otherwise, that the plaintiff is barred by
the provisions of this chapter, as to one or more of the defendants, but entitled to recover against
any other or others of them, by virtue of a new acknowledgment or promise, or otherwise, judg-
ment shall be given for the plaintiff as to any of the defendants against whom he is entitled to re-
cover, and for the other defendant or defendants against the plaintiff.
Sec. 16. if, in any action on contract, the defendant shall plead in abatement, that any other per-
son ought to have been jointly sued, it shall be a good replication to such plea, if true in fact, that
the action was, by the provisions of this chapter, barred against the person so named in the plea, but
not so barred by reason of such acknowledgment or promise, as against such defendant.
**
Sec. 17. Nothing contained in the four preceding sections, shall alter, take away, or lessen the ef-
fect of a payment of any principal or interest, made by any person ; but no indorsement or memo-
randum of any such payment, written or made upon any promissory note, bill of exchange or other
writing, by or on behalf of the party to whom such payment shall be made, or purport to be made,
shall be deemed sufficient proof of the payment, so as to take the case out of the operation of the
provisions of this chapter.
CHAP. 140.] ( 845 ) - ITITLE 26.
2
3
4
5
Sec. 18. If there are two or more joint contractors, or joint executors or administrators of any
In case of joint
COIntractorS.
contractor, no one of them shall lose the benefit of the provisions of this chapter, so as to be charge-
able by reason only of any payment made by any other or others of them.
mands alleged as
Sec. 19. All the provisions of this chapter shall apply to the case of any debt or contract alleged;...".
- .* Bet-offs.
by way of set off on the part of a defendant; and the time of the limitation of such debt shall be com-
puted in like manner as if an action had been commenced therefor, at the time when the plaintiff’s
action was commenced, provided such debt or contract would have been barred according to law,
before the accruing of the claim or demand upon which such defendant is sued.
Sec. 20. The limitations herein before prescribed for the commencement of actions, shall apply to Limitati
Initation of
º the peo-
pie, &c.
the same actions when brought in the name of the people of this state, or in the name of any officer
or otherwise, for the benefit of the state, in the same manner as to actions brought by individuals.
SEC. 21. All actions and suits for any penalty or forfeiture on any penal statute, brought in the
Limitation of
* . . . e. its for penal-
name of the people of this state, shall be commenced within two years next after the offence was tº “”
committed, and not afterwards, except in the cases mentioned in the next section.
SEc. 22. The preceding section shall not apply to any suit which is or shall be limited by any stat- Of suits limited
by other statutes.
ute, to be brought within a shorter or longer time than is prescribed in said section; but such suit
shall be brought within the time that may be limited by such statute.
SEc. 23. None of the provisions of this chapter, respecting the acknowledgment of a debt, or a new rºl.
roVisionS as to
written promise,
&c. to what ca-
promise to pay it, shall apply to any such acknowledgment or promise made before the thirty-first.” “PP'y.
day of August, in the year of our Lord one thousand eight hundred and thirty-eight; but every such
last mentioned acknowledgment or promise, although not made in writing, shall have the same effect
as if no provisions relating thereto had been herein contained,
CHAP. 140.] ( 846 ) [Trrle 26.
1 *SEC. 24. £very judgment and decree, in any court of record of the United States, or of this or
Presumption of
payment of a
judgment. 2 any other state, shall be presumed to be paid and satisfied, at the expiration of twenty years after
3 the judgment or decree was entered. wº
Agonºred, 1 Sec. 25. No personal action shall be maintained, which, at the time when this chapter shall take
and rights accru-
ed under former # * tºr
latuteS. tº © tº
Slalul UCS 2 effect as law, shall have been barred by the statute of limitation in force at the time when the cause
3 of action accrued; and when any right of action shall have accrued before the time when this chap-
4 ter shall take effect, it shall not be affected by this chapter, but all such causes of action shall be gov-
3 erned and determined according to the law under which the right of action accrued, in respect to
6 the limitation of such actions. .
CHAP. 141.] ( 847 ) ITITLE 27.
TITLE XXVII.
or ran Punishment of FRAUDULENT DEBTors, AND THE RELIEF or INSoLVENT DEBTQRs.
CHAPTER 141.—Of the Punishment of Fraudulent Debtors. r
{ % 142. –Of the Relief of Insolvent Debtors, on the application of an Insolvent and his
Creditors. r
& 6 143. Of the Relief of insolvent Debtors ſrom Imprisonment.
& 6 144.—General Provisions applicable to Proceedings under the two last preceding chap-
tel'S.
( & 145.-Of the Powers, Duties, and Obligations of Assignees of Insolvent Debtors under
this title.
{{ 146.—Of the Relief of Poor Debtors from Imprisonment.
CHAPTER 141.
*
OF THE PUNISHMENT OF FRAUDULENT DEBTORS.
1
...”
* Yº impri on anv civi tº e
# Sporton 1. No person shall be arrested or imprisoned on any civil process issuing out of any court of No person to be
imprisoned for
debt.
2 law, or on any execution issuing out of the court of chancery, in any suit or proceeding instituted for the
3 recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract
19 Wend. 430,
484. 12 do. 229.
* º 4, p. 397.
4 express or implied, or for the recovery of any damages for the non-performance of any contract. iš, p. 76.
1 SEc. 2. The preceding section shall not extend to proceedings as for contempts to enforce civil remedies; Exceptions.
2 nor to actions for fines, penalties, or forfeitures, or on proinises to marry, or for moneys collected by any
9 Wend. 503.
3 public officer, or for any misconduct or neglect in office or in any proſessional employment.
1 Sec. 3. In all cases where, by the preceding provisions of this chapter, a defendant cannot be arrested or pººr ap
alntiff may ap-
ply for a war-
rant to arrest de-
2 imprisoned, it shall be lawſul for the plaintiff who shall have commenced a suit against such defendant, or *
3 shall have obtained a judgment or decree against him, in any court of record, or justice's court, to apply
47ty any judge of the court in which such suit is brought, or to any supreme court commissioner or associate
4 judge of a circuit court, or to any justice of the peace before whom such suit is brought,or judgment obtain-
213
Char. 141.] ( 848 )
[TITLE 27.
Evidence to be
adduced in sup-
port of applica-
tion.
Warrant to be
issued, and how
served, &c.
6 ed, or before whom such proceedings shall have been transferred, for a warrant to arrest the defendant in
7 such suit,
l
SEC. 4. No such warrant shall issue unless satisfactory evidence shall be adduced to such officer by the af.
2.5davit of the plaintiff or of some other person or persons, that there is a debt or demand due to the plain-
3
10
11
12
13
14
15
2
3
tiff from the defendant, and specifying the nature and amount thereof as near as may be, for which the de-
fendant, according to the provisions of this chapter, cannot be arrested or imprisoned, and establishing one
or more of the following particulars :
1. That the defendant is about to remove any of his property out of the jurisdiction of the court in which
such suit is brought, with intent to defraud his creditor or creditors; or,
2. That the defendant has property or rights in action, which he fraudulently conceals, or that he has
rights in action, or some interest in any public or corporate stock, money, or evidence of debt, which he
unjustly refuses to apply to the payment of any judgment or decree which shall have been rendered against
him, belonging to the complainant; or
3. That he has assigned, removed or disposed of, or is about to dispose of any of his property, with the
intent to defraud his creditor or creditors ; or,
4. That the defendant fraudulently contracted the debt, or incurred the obligation, respecting which such
suit is brought.
SEC. 5. Upon such proof being made to the satisfaction of the officer to whom the application shall be made,
he shall issue a warrant under his hand, in behalf of the people of this state, directed to the sheriff or any
constable of the county within which such officer shall reside, therein briefly setting forth the nature of the
complaint, and commanding the officer to whom it shall be directed, to arrest the person named in such
warrant, and bring him before such officer without delay; which warrant shall be accompanied by a copy
of all affidavits presented to such officer, upon which the warrant issued; which shall be certified by such
officer, and shall be delivered to the defendant at the time of serving the warrant, by the officer serving the
Saſſle,
Chap. 141.] ( 849 ) [TITLE 27.
2
4
Sec. 6. The officer to whom such warrant shall be delivered, shall execute the same by arresting the per-
How warrant to
be executed.
son named therein, and bringing him before the officer issuing such warrant; or in case of the absence or
inability of such officer, before some other officer having jurisdiction in the case, and shall keep him in cus-
tody, until he shall be duly discharged, or committed as hereinafter provided.
*
SEC. 7. On the person so arrested being brought before such officer, he may controvert any of the facts
Person arrested
and circumstances on which such warrant issued, and may, at his option, verify his allegations by his own;...".
warrant issued.
affidavit; and in case of his so verifying the same, the complainant may examine such defendant on oath,
touching any fact or circumstance material to the inquiry, and the answers of the defendant on such exami.
nation shall be reduced to writing and subscribed by him; and the officer conducting such inquiry shall also
receive such other proof as the parties may offer, either at the time of such first appearance, or at such other
10 Wend. 608,
time as such hearing shall be adjourned to; and in case of an adjournment, such officer may take a recog-
nizance, with or without surety, at his discretion, from the defendant, for his appearance at the adjourned
hearin 8.
SEc. 8. The officer conducting such inquiry, shall have the same authority to issue subpoenas for witness.
Power of officer
conducting in-
tº Q “” e e {e uiry.
es, and to enforce obedience to such subpoenas, and to punish witnesses refusing to testify, as are conferred "
by law upon such officers in cases of other procedings before them,
SEc. 9. If such officer is satisfied that the allegations of the complainant are substantiated, and that the de- Commitment of
deſendant.
fendant has done, or is about to do, any one of the acts specified in the fourth section of this chapter, upon
which a warrant is authorized to be issued, he shall, by a commitment under his hand, direct that such defend-
ant be committed to the jail of the county in which such hearing shall be had, to be there detained until he
shall be discharged according to law ; and such defendant shall be committed and detained accordingly.
SEc. 10. Such commitment shall not be granted, if the defendant shall either,
In what cases
* e & t g º Commiiment not
1. Pay the debt or demand claimed, with the costs of the suit and of the proceedings against him : or, to be granted.
2. Give security to the satisfaction of the officer before whom the hearing shall be had, that the debt or de-
mand of the plaintiff, with the costs of the suit and proceedings aforesaid shall be paid within ninety days, if
CHAP. 141.] ( 850 ) [TITLE 27.
h
5
6
Lefendants com-
mited to remain
in custody as
prisoners on
criminal process,
&C.
Person commit-
ted may petition
for assignment
of his property,
Fees of officere.
10
II
2
a judgment shall have been recovered thereon; or within ninety days after such judgment shall be obtained,
in case w jugun mall have been remiered therson : or.
s Enter me Cl bond to the complainant in a penalty not less than twice the amount of the debt or demand
same with such surety or wrºte as shall be approved by such º conditioned that such defendant
will, within thirty days thereafter, apply for an assignment of all his º and for a discharge, as pro-
vided in the one hundred and forty-third chapter of these revised statutes, and diligently prosecute the same
until he obtains such discharge.
SEc. 11. Any defendant committed as above provided, shall remain in custody in the same manner as other
prisoners on criminal process, until a final judgment shall have been rendered in his favor, in the suit prose-
cuted by the creditor at whose instance such defendant shall have been committed ; or until he shall have
assigned his property and obtained his discharge, agreeably to the provisions either of the one hundred and
and anyºnd or of the one hundred and forty-third chapter of these revised statutes; but such defendan
may be discharged by the officer omiting him, or any other person authorized to discharge the duties of
such officer, on such defendant paying the debt or demand claimed, or giving security for the payment.
thereof, as provided in the tenth section of this chapter, or on his executing the bond mentioned in the third
subdivision of said section,
Sec. 12. Any person committed as above provided, or who shall have given a bond as specified in the third
subdivision of the tenth section of this chapter, or against whom any suit shall have been commenced in a
court of record or justice's court, in which such person, by the provisions of this chapter, cannot be arrested
or imprisoned, may petition for an assignment of his property, and for a discharge, agreeably to the pro-
visions either of the said one hundred and forty-second, or of the said one hundred and forty-third chapter of
these revised statutes; and the same proceedings shall be had thereon as is provided by said chapters respec-
tively, and with the like effect.
SEc. 13. The fees and compensation of all officers and witnesses, performing services under the provisions
2 of this chapter shall be the same as are or may be provided by law in criminal cases. 's
CHAP. 141.] ( 851 ) [Triº 27.
2
3
SEc. 14. Whenever any complaint shall be made against any defendant under the provisions of this chap-
When complain-
ant liable for
ter, and such complaint shall be dismissed, the complainant shall be liable for all fees to officers and wit-“*
nesses, and for all legal costs and expenses which the defendant shall have incurred.
SEc. 15. Whenever in this chapter, the removal, concealement or disposal of any property, is declared to
Property exempt
from execution.
be the ground of any complaint or proceeding, it shall not be deemed to apply to any property which shall
be expressly exempted by law from levy and sale under execution.
Sec. 16. Whenever a bond given under the tenth section of this chapter shall become forfeited by the Recevery ow
bond.
non-performance of the condition thereof, the plaintiff shall be entitled to recover thereon the amount due
to him, on the judgment obtained in the original suit instituted against the defendant giving such bond.
SEC. 17. Any person who shall remove any of his property out of any county, with intent to prevent the
Removing or se-
creting property,
tº ſº g * ge e &c. a misdemea-
same from being levied upon by an execution, or who shall secrete, assign, convey, or otherwise dispose of nor,
any of his proporty, with intent to defraud any creditor, or to prevent such property from being made lia-
ble for the payment of his debts, and any person who shall receive such property with such intent, shall, on
conviction thereof, be deemed guilty of a misdemeanor.
SEc. 18. When it shall appear to any officer authorized to entertain any proceedings under this chapter,
Proceedings
when mlsdemea-
that any misdemeanor or perjury has been committed by any party or witness, it shall be his duty to take ...”
the measures prescribed by law, to cause the offender to appear at the proper court having jurisdiction of
the offence, to answer for the same.
Sec. 19. No person shall be excused from answering any bill in chancery seeking a discovery in relation
e e ge te * & e I f ill
to any fraud prohibited by this chapter, or from answering as a witness in relation to any such fraud, but . sº
no such answer shall be used in evidence in any other suit or prosecution.
Sec. 20. Any person imprisoned on any process, who shall be entitled to be discharged under the pro-
Person enti-
. to be dis-
tº gº e tº e o e $ºrge IIlºl
visions of this chapter, may bring a writ of habeas corpus, or certiorari for that purpose, in the manner pro- jº
COrolls & C.
9 W. 463.
vided by law.
214
Cur. 142] ( 852 ) [Titus 27,
Dischurge of in-
solvent debtor.
Petition by
whom {9 be sigºr
60 le.
Executors &c.
may become pe—
titioning credi-
torS,
Affidavits of pe-
tioning creditors.
Schedule tº be
i;
insolvent with
his petition,
CHAPTER 142.
of THE RELIEF OF INSOLVENT DEBTORs, on THE APPLICATION of AN INsolvent AND HIS CREDITORs.
l
2
3
2
r
SECTION I. Every insolvent debtor may be discharged from his debts, as hereinafter provided, upon execu-
ting an assignment of all his estate for the benefit of his creditors, and upon the provisions of this chapter
being complied with,
Sec. 2. The petition for that purpose, shall be signed by him, and by so many of his creditors residing
within the United States, as have debts in good faith owing to them by such debtor, then due or thereafter to
become due, and amounting to at least two-thirds of all the debts owing by him to creditors residing within
the United States,
SEc. 3. Executors and administrators may become petitioning creditors, for the discharge of an insolvent
under the order of the judge of probate to whom they may be liable to account, or of the chancellor, and
shall be chargeable only for such sum as they shall actually receive on the dividend of the insolvent estate.
SEC. 4. Every such petition shall be accompanied by the affidavit of each petitioning creditor, to be taken
before any officer ailthorized to administer oaths; which affidavit shall state that the sum specified therein,
and annexed to the name of the petitioner subscribed to such petition, is justly due him, or will become due
to him at some future time to be specified therein, and shall state the nature of the demand, and whether ari-
sing on any written security or otherwise, with the general ground and consideration of such indebtedness;
and that neither he, nor any person to his use, hath received from such insolvent, or any other person, pay-
' ment of any demand or any part thereof, in money or in any other way whatever, or any gift or reward
whatever, upon any express or implied trust or confidence that he should become a petitioner for such insol-
Went.
y
SEo. 5. Every such insolvent shall annex to and deliver with his petition, to the officer to whom it shall be
2 presented,
3.
1. A full and true account of all his creditors :
Chap. 142.] ( 153 ) [TITLE 27.
4
10
11
12
13
5.
10
2. The place of residence of each creditor, if known to such insolvent ; and if not known, the fact to be so
stated :
3. The sum owing to each creditor, and the nature of each debt or demand, whether arisingon written se-
curity, on account, or otherwise :
4. The true cause and consideration of such indebtedness in each case, and the place where such indebted.
ness accrued :
5. A statement of any existing judgment, mortgage, or collateral or other security, for the payment of
any such º : and,
6. A full and true inventory of all the estate, both real and personal, in law and equity, of such insolvent, of
the incumbrances existing thereon, and of all the books, vouchers and securities relating thereto.
SEc. 6. Every such petition may be presented to one of the justices of the Supreme court, one of the as- To whom peti
- ownom peu-
tion may be pre-
sented.
sociate judges of any circuit court, or a supreme court commissioner.
SEC. 7. An affidavit shall beannexed to the said petition, account and inventory, and shall be subscribed,
and sworn to by such insolvent before such officer, who shall certify the same; which affidavit shall be in ...
nexed to petition.
the following form :
“I , do solemnly swearor affirm, (as the case may be,) that the account of my creditors and the inventory
of my estate, which are annexed to my petition, and herewith delivered, are in all respects just and true;
and that I have not at any time or in any manner whatever, disposed of or made over any part of my estate
for the future benefit of myself or my family, or in order to defraud any of my creditors ; and that I have
in no instance created or acknowledged a debt for a greater sum than I truly and honestly owed, and that
I have not paid, secured to be paid, or in any way compounded with any of my creditors, with a view fraud-
ulently to obtain the prayer of my petition”
&
SEc. 8. The officer receiving such petition, schedule and affidavit, shall make an order requiring all the
Order to show
Cºlºº.
creditors of such insolvent to show cause, if any they have, at a certain time and place to be specified by
CHAP. 142.] ( 854 ) [TITLE 27.
3 him, why an assignment of the insolvent’s estate should not be made, and he be discharged from his
4 debts.
Publication of 1
notice of order, SEC. 9. The officer making such order shall direct notice of its contents to be published in the state paper,
and in a newspaper published in the county where such application is made, if there be one, and if there be
none, in a newspaper printed nearest to such county.
\
SEC. 10. If all the creditors of such insolvent reside within one hundred miles of the place at which they
Time of publica-
tion.
are required by such order to show cause, the said officer shall direct such notice to be published once in
&
each week, for six weeks successively; and if any of such creditors reside more than one hundred mile
4 from such place, the notice shall be directed to be published once in each week, for ten weeks succes.
5 sively.
SEc. 11. On the day specified in such order, or on any subsequent day that the officer before whom cause
Hearing; proof 2
of publication. is required to be shown, may appoint, the said officer shall proceed to hear the proofs and allegations of the
3 parties; and before any other proceedings be had, shall require proof of the publication of the notice as
4 herein directed.
1 SEc. 12. Every creditor opposing the discharge of an insolvent under this chapter, may, at the time ap-
pemand of hear-
ing by jury- 2 pointed for the first hearing, demand of the officer before whom such hearing shall be had, that the case of
such insolvent be heard and determined by a jury; and shall be entitled to an order to that effect, upon filing
4
with such officer a specification in writing, of the grounds of his objection to such discharge.
1 SEc. 13. Upon such demand being made, and such specification filed, a jury of six competent persons shall
Jury how select-
º and summon-
©(1.
2
be selected in the same manner as is provided in cases of forcible entry or detainer, and the officer shall
issue a summons, directed to the sheriff or any constable of the county, commanding him to summon the
persons so selected, to appear before such officer, at a time and place to be specified in the summons, not less
5
than six nor more than twelve days, from the time of issuing the same.
SEc. 14. At the time and place so appointed, the persons so selected and appearing, or in case any of
CHAP. 142.] ( 855 ) - [TITLE 27.
2
3
2
them fail to appear, such others as may be summoned in their places, shall be sworn by such officer, well jury to be
SWOrn.
and truly to hear, try, and determine the validity of the objcctions so specified.
SEc. 15. Such jury so selected and sworn, shall hear the proofs and allegations of the parties, and deter-
- Hearing before
mine the matter submitted to them, and for that purpose shall be kept together by the sheriff or a constable,”
who shall be sworn as is usual in like cases in courts of record, until they shall have agreed on their ver-
dict; and such verdict shall be conclusive in the premises, and shall be recorded by the officer in the min-
utes of the proceedings.
SEc. 16. There shall be but one hearing before a jury in any case under this chapter; and if such jury
te e Proceedi iſ
cannot agree, after being kept together for such time as the officer before whom the proceedings shall be jury ãº
Cé.
gr
had, shall think reasonable, then they shall be discharged, and such officer shall decide upon the merits of
the case as if no jury had been called.
Sec. 17. At the hearing of such petition before a jury or otherwise, the insolvent may be examined on oath
Examination of
& tº º © & * insolvent on
at the instance of any creditor touching his estate or debts, or any matter stated in his schedule, and may hearing.
be required to state any changes that have occurred in the situation of his property, since the making of such
schedule, and particularly whether he has collected any debts or made any transfer of his real or personal
estate ; but nothing contained in this section shall prevent any creditor from contradicting or impeaching,
by other competent testimony, any evidence given by such insolvent.
SEc. 18. If it shall appear on such examination or otherwise, by competent proof, that such insolvent has
e o g .*
collected any debts or demands, or made any transfer, absolute, conditional, or otherwise, of any part of his Certain pay-
Inents to be
made or securi-
ty given.
*
real or personal estate, since the making of the schedule annexed to his petition, he shall be required to
pay forthwith to the officer before whom the hearing shall be had, the full amount of all debts and demands
so by him collected or received, and the full value of all the property so by him transferred, except such
parts of the said property as shall appear to have been necessarily expended by such insolvent for the sup-
port of himself or his family, and no discharge shall be granted him under the provisions of this chapter,
215
CHAP. 142.] ( 856 ) [TITLE 27.
Insolvent having
preferred credi-
tors not entitled
to discharge.
When assign-
ment to be order-
ed, articles ex-
cepted.
Finding of a ju-
ry conclusive.
Assignment to
whom to be
made.
8
2
3.
until such payment be made, or security satisfactory to the officer be given, that such payment shall be
made within thirty days thereafter, to the assignees of such insolvent.
Sec. 19. If it shall appear on such hearing, on the examination of the insolvent or otherwise, that in con-
templation of his becoming insolvent, or of his petitioning for a discharge under the provisions of this chap-
ter, or knowing of his insolvency, such insolvent has made any assignment, sale or transfer, either abso-
4 lute or conditional, of any of his estate, real or personal, or of any interest therein, or has confessed any
5 judgment or given any security, with a view to give a preference for an antecedent debt to any creditor, he
6
2.
2
shall not be entitled to a discharge under this chapter.
SEc. 20. If it shall satisfactorily appear to the officer before whom such application is pending in cases
where no jury has been required, or the jury have disagreed, that the insolvent is justly and truly indebted to
the petitioning creditors in the sums by them respectively mentioned in their affidavits, that such SUl IſlS Ol-
mount in the aggregate to two-thirds of all the debts that were owing by such insolvent at the time of pre-
senting his petition, to creditors residing within the United States; that such insolvent has honestly and fair-
ly given a true account of his estate, and has in all things conformed to the matters required of him in this
chapter; the officer before whom the application shall be pending shall direct an assignment of all such in-
solvent’s estate, both in law and equity, in possession, reversion, or remainder, excepting from the articles
mentioned in his inventory, such as are exempt by law from sale under execution.
*
SEc. 21. When any of the matters in the last section required to be established previous to granting an or-
der of assignment, shall have been submitted to a jury as herein provided, and shall have been found in favor
of the insolvent, such finding shall be conclusive as to such matters, upon the officer before whom such
proceedings are pending, and the officer shall direct an assignment accordingly.
SEc. 22. Such assignment shall be made to the person or persons who shall have been nominated as as-
signee or assignees, by such of the petitioning creditors as shall have owing to them a major part of the
3 debts, constituting the two-thirds as herein required, and in case no assignee or assignees shall be nominated
Chap. 142.] ( 857 ) - ITITLE 27.
\
4.
by such petitioning creditors, the assignment shall be made to such person or persons as such officer shall
5 direct.
5
2
3
SEG. 23. Such assignment shall vest in the assignees all the interest of such insolvent at the time of exe-
- * Effect of assign-
Inent.
cuting the same, in any estate or property, real or personal, whether such interest be legal or equitable; and
in case of any contingent interest existing at the time of said assignment, becoming vested at any time there-
aſter, it shall pass to the assignees in the same manner as it would have vested in such insolvent iſ no as-
signment had been made by him,
Sec. 24. Upon such insolvent producing a certificate under the hands of the assignees, executed in the ºne
Certi e8 º'S-
signment to be
granted.
presence of such officer, or of two witnesses, and proved by the affidavit of one of them, stating that such
insolvent has assigned and delivered to them for the use of his creditors, all his estate so directed to be as-
signed, and all the books, vouchers and securities relating to the same, and upon his also producing a cer-
tificate of the register of deeds of the county, that such assignment has been duly recorded in his office, the
officer who directed such assignment, shall grant to such insolvent a discharge from his debts and from im-
prisonment, which shall have the effect declared in the succeeding sections of this chapter.
SEC, 25. No proceedings to be had under the provisions of this chapter, shall discharge any insolvent from
Effect of dis-, .
charge on certain
any debt or demand contracted previous to the first day of September, in the year one thousand eight hun- debts.
dred and thirty-eight, unless the creditor having such demand shall unite in the petition for such discharge,
or unless the creditor shall accept a dividend from the insolvent estate.
SEc. 26. A discharge granted under the provisions of this chapter, shall discharge and exonerate such in-
Effect as to cer-
solvent from all debts due at the time of the assignment, or contracted for before that time, though payable ****
afterwards, ſounded upon contracts made after the thirty-first day of August, in the year one thousand eight
4 hundred and thirty-eight, within this state, or to be executed in this state, and from all debts whatever, owing
5
6
to any person who united in the petition for such discharge, or who shall have accepted a dividend from the
estate of such insolvent; and from all liabilities incurred by such insolvent, by making or endorsing any
promissory note or bill of exchange,after the day last mentioned, and before the execution of his assignment,
CHAP, 142.] ( 858 ) [TITLE 27.
8 or incurred by him in consequence of the payment, by any party to such note or bill, of the whole or any
9 part of the money secured thereby, whether such payment be made prior or subsequent to the execution of
10 the assignment by such insolvent.
1 Sec. 27. In any action which shall be brought against such insolvent, upon any debt, demand or liability
Notice of dis-
h g b tº e e g tº ſº g
*"" 2 from which such insolvent shall have been discharged according to the foregoing provisions, such insolvent
3 may plead the general issue, and give notice of such discharge in bar thereof.
SEC. 28. Every such discharge shall exonerate the insolvent to whom it is granted, from any arrest or
Discharge to ex- &
3. insol-
Went from arrest. e e t e tº * i &
r 2 imprisonment thereafter, in any suit or in any proceeding, founded upon any such debt, demand or liability
3 from which such insolvent shall have been discharged according to the foregoing provisions.
ºn tº be 1 SEC. 29. If such insolvent be in prison in any suit or proceeding founded upon any contract or liability,
liberated, if im- -
prisoned. *
2 in which he is exempted from imprisonment, according to the provisions of the last section, he shall be dis-
3 charged therefrom upon producing the discharge granted pursuant to the provisions of this chapter.
Insolvent's 1 Sec. 30. Every discharge granted to an insolvent under this chapter, shall be void in each of the follow-
jº to be
VOIOI.
2 ing cases :
3 1. If such insolvent shall have wilfully sworn falsely, in his affidavit annexed to his petition, or upon his
4 examination, in relation to any material fact concerning his estate or his debts, or any other material fact:
5 2. If, after the presentation of his petition, he shall sell, or in any way transfer or assign any of his pro-
6 perty, or collect any debt due him, and shall not give a just and true account thereof on the hearing of his
7 application; and shall not also pay or secure the payment of the money so collected, or the value of the
8 property so assigned, as herein before directed :
10 fraud his creditors:
11 4. If he shall fraudulently conceal the names of any of his creditors, or the amount of any sum due to
13 them :
CHAP. 143.] ( 859 ) [TITLE 27.
13 5. If, in order to obtain his discharge, he shall procure any person to become a petititioning creditor for
14 any sum not due from him to such person in good faith :
15 6. If he shall pay, or consent to the payment of any portion of the debt or demand of any of his credi-
16 tors, or shall grant or consent to the granting of any gift or reward to any such creditor, upon any express
17 or implied contract or trust, that the creditor so paid or rewarded shall become a petitioner in behalf of
18 such, insolvent, or that he should abstain or desist from opposing the discharge of such insolvent : or,
19 7. If he shall be guilty of any fraud whatever contrary to the true intent of this chapter.
CHAPTER 143.
oR THE RELIEF OF INSOLVENT DEBTORS FROM IMPRISONMENT.
1 SECTION 1. Every insolvent debtor may present a petition to any of the officers mentioned in the sixth ºntº-
2 section of the last preceding chapter, praying that his estate may be assigned for the benefit of all his cre-
3 ditors, and that his person may thereafter be exempted from arrest or imprisonment, by reason of any debts
4 arising upon contracts previously made, or of any judgments existing against him in civil cases, and if in
5 prison, that he may be discharged from his imprisonment. |
1 Sec. 2. On presenting such petition, the insolvent shall deliver therewith a schedule containing an account
Schedule and af-
fidavit.
2 of his creditors, and an inventory of his estate, similar in all respects to the account and inventory requi-
3 red by the last preceding chapter; and shall annex to the said petition and schedule an affidavit, which
4 shall be taken and subscribed by him, before the officer to whom such petition is presented; and shall be
5 certified by such officer in the form following:
6 “I, - , do swear, or affirm, [as the case may be, that the account of my creditors, with the pla-
7 ces of their residence, and the inventory of my estate, with the evidences of my title thereto, which are
8 herewith presented, are in all respects just and true, and that I have not at any time, or in any manner
9 whatsoever, disposed of, or made over any part of my estate, for the future benefit of myself or my fami-
216
CHAP, 143.] ( 860 ) . - [Tºrº.E 27,
10 ly, or in order to defraud any of my creditors, and that I have not paid, secured to be paid, or in ahy way
11 compounded with any of my creditors, with a view that they or any of them should abstain or desist from
12 opposing my discharge”
I
SEc. 3. Upon receiving such petition, schedule and affidavit, the officer shall make an order requiring the
Order to show -
Calli;0,
2 creditors of such insolvent to show cause before the said officer, at a time and place to be specified in the
3 ordef, why the prayer of the petitioner should not be granted.
I Sec. 4. Notice of the contents of such order, shall be published for the like time, and in the like manner,
Notice of order. --
2
as directed in the last preceding chapter, respecting notices upon the application of an insolvent in conjunc.
3 tion with his creditors.
1
SEC. 5. Every creditor opposing the discharge under this chapter, may demand a jury to d ine 11nnr
** a ju- y pposing 3. pter, may c i a Jury to determine upon
r $
2 the matter; and shall be entitled thereto, on filing with the officer to whom the petition was presented, at or
3
before the first hearing on such petition, a specification in writing, of the grounds of his objection.
1 SEC, 6. The same proceedings shall be had for selecting, summoning and impanneling a jury, who shall
Proceedings. 2 hear the proofs and allegations of the parties, and render their verdict in the same manner, and with like
3 effect, as prescribed in the last preceding chapter; and the jury may be discharged in the same case therein
4.
specified; and in such case, the officer before whom the proceedings shall be had, shall in like manner
5
decide upon the application.
1 SEC, 7. The petitioner may be examined before the jury or officer, in the same manner as prescribed in
Debtor may be
examined &c.
2
the last preceding chapter; and may in like manner be required to pay or secure the payment of any debt
3 collected by him, or the value of any property assigned by him after the presentation of his petition, excep-
4 ting such as shall appear to have been necessarily expended in support of himself and his family ; and if it
5 shall appear that he has preferred any creditor as in the said chapter specified, he shall in like manner be
6 precluded from obtaining any discharge under the provisions of this chapter.
CHAP. 148.] ( 861 ) - [Triº 27.
1 Sec. 8. Af the jury shall find in favor of the petitioner, or in case of their disagreement, or of no jury be-
When &gt;ign-
...: rec-
P thç Fequired, if the officer before whom the hearing is had shall be satisfied that such petitioner is unable to ted.
3 pay his debts, that his account and inventory presented with his petition are true, that he has not been guil.
4 ty of any fraud or concealment in violation of the provisions of this chapter, but has in all things conform-
3 ed thereto ; in either case, such officer shall direct an assignment to be made to such asignee or assignees
6 as such officer shall appoint, of all the estate of such debtor, excepting such articles as are exempt from sale
7 on execution.
1 SEc. 9. The insolvent shall execute an assignment with the like effect as declared in the last Preceding A-imment to
be czecuted and
recorded.
2 chapter, respecting the assignment of a debtor petitioning in conjunction with his creditors, and cause the
3 same to be recorded in like manner.
1 Sec. 10. Upon producing and proving a certificate of the assignees and of the register of deeds, as pre-
- Discharge when
2 scribed in the last preceding chapter, of the execution and recording of such assignment, and of the deliv-” be granted.
3 ery of the property assigned, or so much as shall be capable of delivery, with the baoksandpapars rala-
4 ting to the same, the officer before whom the proceedings were had shall grant a discharge under his hand
5 and seal.
1 SEc. 11. Such discharge shall declare, and such shall be its effect, that the person of such insolvent shall
o e c & Terms and effect
2 forever thereafter be exempted from imprisonment, by reason of any debt due at the time of his making such of discharge.
3 assignment, or contracted for before that trime, though payable afterwards, or of any judgment in any civil
|
4 suit existing against him at the time of such assignment, and by reason of any liabilities incurred by him by
5 making or endorsing any promissory note or bill of exchange; or incurred by him in consequence of the
6 payment, by any party to such note or bill, of the whole or any part of the money secured thereby, wheth-
7 er such payment be made prior:or subsequent to the execution of his assignment.
I SEc. 12. But such discharge shall not exempt the person to whom it is granted from arrest (or imprison-
For what cases
2 ment for any of the causes specified in the fourth section of chapter one hundred and forty-one of these re- ºl.
- son from impris-
On Olent.
2 vised statutes, if such cause shall occur at any time after the granting of such discharge.
CHAP. 144.] . ( 862 ) [TITLE 27.
1 Sec. 13. If such insolvent be in prison in any suit or proceeding, founded upon any contract or liability, as
Insolvent to be - - - - •. - ' ' ' - - -
discharged from
"*" 2 to which he is exempted from imprisonment according to the preceding provisions, he shall be discharged
3 therefrom on producing his discharge granted pursuant to the provisions of this chapter.
g
º: º: i. 1 SEC, 14. No debt, demand, judgment, or decree against any insolvent discharged under this chapter, shall
ed hy discharge. *
2 be affected or impaired by such discharge, but shall remain valid and effectual against all the property of
3 such insolvent acquired after execution of his assignment.
ºrge (when 1 SEc. 15. Every discharge granted to an insolvent under this chapter, shall be void in the same cases, so
WOIO, • , -
2 far as they are applicable, in which a discharge granted under the last preceding chapter is therein declared
3 to be void.
CHAPTER 144.
general Provisions APPLICABLE to PRoceedings UNDER THE Two LAST PRECEping chapters.
Regene, or sº. 1 SECTION 1. Applications under the two last preceding chapters shall be made to an officer residing in the
ficer.
2 county in which the petitioning debtor resides, or is imprisoned; and proof of such residence or imprison-
3 ment shall be made at the time of presenting the petition, and before any order shall be granted thereon.
1 Sec. 2. When the petitioning debtor shall, by any collusion with any prosecuting creditor, procure him-
Discharge void,
jº * 2 self to be imprisoned in a county different from that of his residence, for the purpose of obtaining a dis-
3 charge, a discharge granted in such county where the applicant is imprisoned by collusion, shall be void ;
4 and if such collusion shall be proved on the hearing, it shall defeat the application.
Whºle- 1 Sec. 3. If there be no officer authorized to receive the petition of any such debtor, residing within such
e
tion may
made to officer-
*** 2 county, and not interested as creditor or otherwise, to whom such application can be made, then the applica-
* * 3 tion may be made to any such officer residing in any other county; but no place shall be appointed for the
4 hearing on any application, out of the county in which the petitioning debtor resides or is imprisioned.
Chap. 144.] ( 863 ) * Title 27.
2
3.
4
5
SEC. 4. In case of the death, sickness, resignation, removal from office, absence from the County of his re-
Proceedings
$ * how continued
sidence, or other disability of any officer, before whom any proceedings may have been commenced under ..."
the provisions of either of the two last preceding chapters, the said proceedings may be continued by his
successor in office, or by any other officer residing in the same county, before whom such proceedings might
have been originally commenced, in the same manner and with the like effect, as if originally commenced
before him.
SEc. 5. A corporation shall be deemed a creditor within the meaning of the provisions of this title, and corporations
orporation3.
deemed creditors
C.
may present or unito in any petition as other creditors; and any such petition may be signed by a director
*
or other officer of the corporation, thereto duly authorized under its common seal; and any affidavit re-
quired of creditors, may be made and signed by such director or officer.
SEC. 6. Whenever partners or joint companies are creditors of any debtor, any petition, and any affidavit
Partners and
joint companies.
required by the provisions of this title, of creditors, may be made and signed by either of the partners, or any
one of such company.
Creditors resi-
ding out of state
may petition &c.
same manner as resident creditors; and they shall annex to every such petition the original accounts, or
Sec. 7. Creditors residing out of this state, and within the United States, may nuite in any petition, in the
sworn copies thereof, and the original specialties or written securities, if any, on which their demands arise
or depend.
Sec. 8. Whenever a petitioning creditor shall have purchased, or procured to be assigned to him, any
Debts foreclosed
§: º
* * ſº thei 8s.
debt or demand against the insolvent debtor, for less than the nominal amount of such debt or demand, jº"
and whenever any executor or administrator shall petition, the person petitioning shall be deemed a creditor,
to the amount only of the sum or value, actually and in good faith paid by him or his testator or intestate for
such debt or demand.
f t
| * f † ;
SEc. 9. Whenever a petitioning creditor shall have in his own name or in trust for him, any mortgage or º, having
g Security.
other security, or assignment by way of security, for securing the payment of any sum of money, upon any
z’
*. 217
CHAP. 144.] ( 864 ) [TITLE 27.
3 real or personal estate of the debtor, in respect to whose estate he is a petitioner, he shall not become a pe-
4 titioner in respect to the debt so secured, unless he shall add to his signature to the petition, a declaration in
5
writing, that he relinquishes to the assignees who shall be appointed pursuant to such petition, every such
6
mortgage or other security, for the benefit of all the creditors of such debtor, which declaration shall operate
7 as an assignment of such mortgage or other security to the assignees, and vest in them all the rights and in-
8 terests of such petitioning creditor therein.
whº fee. " SEc. 10. Every creditor who shall swear, in any proceedings under this title; that any sum of money is
*::::swearing
Oly,
2 due to him from any debtor, which is not really due, or that more is due than the sum really due, knowing
3 the same not to be due, shall be liable to the assignees of such debtor in double the sum so falsely sworn to
4 be due, to be recovered by such assignees.
1
Hearing may be Sec. 11. On the hearing of any petition for the discharge of any debtor, the officer before whom the same
Carl
... Hº:
or &c. may be
examined.
2
may be pending, may adjourn the same from time to time, and may issue a subpoena, requiring any person,
3
whether an opposing creditor or not, to appear and testify concerning the matters pending beſore him; and
4 the debtor, his wife, and any creditor may, in all cases, be examined at the instance of any creditor.
1 SEC. 12. The appearance of any person duly subpoenead, and neglecting or reſusing to appear may be en-
Appearance of
witness how en-
tºº. 2 forced by attachment to be issued by such officer; and if after appearing, any such person shall refuse to tes-
tity.
3 tiſy, he shall be committed to prison until he submit.
º: º: 1 SEc. 13. Every person willfully disobeying such subpoena, shall be liable to the party at whose instance he
gè8.
2 was subpoeneåd, in the sum of one hundred dollars damages, besides the actual damages which such party
3 may prove,
* Sec. 14. Whenever any hearing shall be had before any officer singly, or before him and a jury, it shall
oneer to keep tº
* ** 2 be the duty of such officer to keep minutes of all the material facts of the testimony delivered before him,
3 and of the examination of any debtor.
Chap. 144.] ( 865- ) * [TITLE 27.
1 Sec. 15. Every person who shall be summoned as a juror, and shall refuse or neglect to attend, without
liability of juror
neglecting to at-
2 reasonable cause, to be determined by the officer issuing the summons, shall be liable to any creditor at “”
3 whose instance such summons was issued, in the sum of ten dollars damages.
**
1 Sec. 16. The sheriff or constable summoning a jury. shall be entitled to receive one dollar and twenty-five
fºotºrs
2 cents, and each juror attending and sworn, twenty-five cents, and the said fees, together with all other ex-
3 penses of the hearing of any case by a jury, shall be paid by the creditor requiring the same.
1 Sec. 17. Every discharge granted under the provisions of either of the two last preceding chapters, shall partstop.
recorded; evi-
dence.
2 be recorded by the register of deeds of the county in which it was granted, and the original discharge, the
3 record thereof, or a transcript of such record duly authenticated, shall be evidence of the proceedings and
4 facts therein contained.
1 SEc. 18. Every assignment made in pursuance of eithor of the two last preceding chapters, shall also be assignment, to
be recorded; evi-
dence.
2 recorded by the register of deeds of the county in which it was executed, upon being acknowledged of prov-
3 ed in the same manner as deeds of real estate; and such original assignments, the record thereof, or a du-
4 ly authenticated transcript of such record, shall be received in evidence in the same manner and with the
5 like effect, as deeds of real estate duly recorded.
dis-
charge, how to
proceed.
2 original process, in a suit upon any debt or liability in which he is exempted from imprisonment by virtue
1 SEc. 19. If any debtor, discharged under either of the two last preceding chapters, shall be arrested on ºlºr-
3 of such discharge, and shall apply to any officer to discharge him from such arrest, such officer shall cause
4 reasonable notice to be given to the plaintiff or his attorney in such suit to show cause why such debtor
5 should not be discharged from such arrest.
1 Sec. 20. The plaintiff in such suit may show cause against such discharge, any fraud committed by such
Causes which
2 debtor in obtaining his discharge, or any cause for avoiding such discharge, declared in the two last prece-jºi."
8 ding chapters, and such officer may require such debtor to be held to bail in such process, as if no discharge
4 had been granted.
CAAF, 144.] ( 866 ), * - [Title 27.
Assignee reſt- .
sing to sign:cer-
tificate to be ci- .
ted, &c.
When insolvent
may be dischar-
ged notwith-
standing refusal.
34 shall be investigated.
I Sec. 21. Wheneyeran assignment shall have been executed to one or more assignees, and they, or any of
2 them shall refuse to sign a certificate of the fact that such assignment has been executed upon complaint made
8 to the officer who directed the assignment, the assignee so refusing shall be cited to appear, and the matter
1 Sec. 22. If it shall appear that such assignment has been duly executed, and that such debtor has deliver-
2 ed all his estate directed to be assigned, and all the books, vouchers and securities relating to the same, capa-
3 ble of delivery, such officer may grant a discharge to the debtor, notwithstanding the refusal of the assign-
4 ees to certify the fact of an assignment.
Or appointment
of assignees muay
be revoked.
1 Sec. 28. Or, in such case, the officer may revoke the appointment of assignees, and grant a certificate of
2 such revocation, which shall be recorded in the office of the register of deeds of the county; and thereup-
*--
3 on the assignment that may have been previously executed to the assignees so refusing to certify, shall be
4 void.
And new assign-
ment directed.
Proceedings to
be filed with
clerk.
Debts &c. to U.
S. not affected.
1 Sec. 24. The officer shall thereupon direct a new assignment to be made to such persons as shall be ap-
2 pointed ſor that purpose; and in case of such new assignment being executed, the certificate of the assign-
3 ees to the fact, shall be required in the same manner as of the first assignees.
1 Sec. 25. All proceedings under the said two last preceding chapters, shall be filed by the officer before
2 whom the same shall be consummated, within one month thereaſter, with the clerk of the circuit court for
8 the county in which such officer resides,
1 SEC. 26. No debt or duty to the United States shall be in any way affected by such discharge; nor can any
2 debtor to the United States be exhonerated by such discharge from imprisonment in any suit or proceeding
3 founded upon a debt to the United States.
What debts &c.
to this state, em-
braced in this
title.
1 SEC, 27, All debts and duties to this state, except taxes, shall be affected by such discharge, in the same
2 manner as debts to individuals; and debtors may be discharged and exhonerated from imprisonment, in suits
brought in the name of the people of this state, in the same manner as in suits by individuals; and in such
Chap. 145.] - ( 867 ) [TITLE 27.
4 case, whenever it shall be necessary to serve any notice upon plaintiffs, according to the provisions of this
gº
5 title, the same may be served on the attorney general, who shall in all proceedings under this title, repre-
6 sent the people of this state.
1
2 tees of the estate of the debtor, in relation to whose property they shall be appointed, for the bene-
CHAPTER 145.
of THE Powers, DUTIES AND obligations of AssignEEs of INsolvent DEBTORs UNDER THIS TITLE.
SECTION 1. All assignees appointed under the provisions of this title, are hereby declared to be trus- *...*.
re trusteeS for
benefit of credi-
tors,
fit of his creditors, and shall be vested with all the powers and authority hereinafter specified, and
shall be subject to the control, obligations and responsibilities hereinafter declared.
SEC. 2. When one assignee only shall be appointed, all the provisions herein contained in reference One assignee.
to several assignees, shall apply to him.
SEC. 3. When more than one assignee shall be appointed, the debts and property of the debtor may
Powers when
more than one.
be collected and received by one of them ; and when there are more than two assignees, every pow-
er and authority of the whole, may be exercised by any two of them.
SEC. 4. The survivor or survivors of any assignees shall have all the powers and rights given °surviv
urviving as-
signee &c.
such assignees ; and all property in the hands of any assignee at the time of his death, removal or
incapacity, shall be delivered to the remaining assignee or assignees, if there be any ; or to the suc-
4 cessor of the one so dying, removed or incapacitated, who may demand and sue for the same.
SEC. 5. Before proceeding to the discharge of any of their duties, all such assignees shall take and
subscribe an oath that they will well and truly execute the trust by their appointment reposed in
º
them, according to the best of their skill and understanding; which oath shall be filed with the offi-
cer who appointed them.
- 218
CHAP. 145, J ( 868 ) [TITLE 27,
I Sec. 6. The assignees taking such oath, shall be deemed vested with all the estate real and person
Assigneess ves- -
ted with estate:
2 al of such debtor, except such as is exempted from sale on execution, from and after the execution
3
of the assignment, -
powers of as- 1 SEC. 7. The said assignees shall have power,
signees. -
2 1. To sue in their own names or otherwise, and recover all the estate, debts and things in action,
3
belonging or due to such debtor, in the same manner, and with the like effect as such debtor might
4 or could have done, if no assignee had been appointed, or an assignment had not been made ; and no
5
set-off shall be allowed in any such suit, for any debt, unless it was owing to such creditor by such
6
debtor, before the publication of notice to creditors to show cause why the insolvent should not be
7, discharged ; but no suit in chancery shall be brought by the assignees, without the consent of the
8 creditors having a major part of the debts which have been sued and allowed, unless the same
- 9 exceeds five hundred dollars:
10 2. To take into their hands all the estate of such debtor, whether delivered to them or afterwards
11 discovered ; and all books, when and securities relating to the same :
12 3. From time to time to sell at public auction, all the estate vested in them, which shall come to
13 their hands, giving at least fourteen days notice of the time and place of sale, and also publishing
14 the same for two weeks in a newspaper printed in the county where the sale shall be made ; if
15 there be one :
16 4. To allow such credit on the sale of real property by them, as they shall deem reasonable, not
17 exceeding one year, for not more than three fourths of the purchase money, which credit shall be
18 secured by a bond of the purchaser, and a mortgage on the property sold :
19 5. On such sales to execute the necessary conveyances and bills of sale :
20 6. To redeem all mortgages and conditional contracts, or other incumbrances, and all pledges of
21 personal property, or to sell such property subject to such incumbrances, contract or pledges:
22 7. To settle all matters and accounts between such debtor and his debtors and creditors, and to ex-
23 amine any person touching such matters and accounts, on oath to be administered by either of
24 them : and
CHAP. 145.] ( 869 ) [TITLE 27,
25 8. Under the order of the officer appointing them, to compound with any person indebted to such
26 debtor, and thereupon to discharge all demands against such person. **, A
I SEC. 8. The assignees, immediately upon their appointment, shall give notice thereof, and thereins…. º.
en by assignees.
2 shall require as follows: \
3 1. All persons indebted to such debtor, by a day and at a place therein to be specified, to render
4 an account of all debts and sums of money owing by them respectively, to such assignees, and to
5 pay the same :
6 2. All persons having in their possession any property or effects of such debtor, to deliver the
7 same to the said aseignees by the day so appointed ; and,
s 3. All the creditors of such debtor to deliver their respective accounts and demands to the assign-
9 ees, or one of them by a day to be therein specified, not less than forty days from the first publica-
10 of such notice.
1 SEC. 9. Notwithstanding any such notice, the assignees may sue for and recover any property or
May sue not-
withstanding no-
2 effects of the debtor, and any debts due to him, at any time before the day appointed for the delivery"
3 Ol' payment thereof.
I SEc. 10. Every person indebted to such debtor, or having the possession or custody of any pro-Liability of per-
sons concealing
property, &c.
2 perty or thing in action belonging to him, who shall conceal the same,and not deliver a just and true
3 account of such indebtedness, or not deliver such property or things in action to the assignees, or
4 one of them, by the day for that purpose appointed, shall be liable to the assignees in double the
5 amount of such debt, or double the value of the property or things in action so concealed.
1 SEc. 11. Whenever the assignees shall show by their own oath, or by other competent proof, to the
Proceedings in
case of conceal-
& e e * e gº t bez-
2 satisfaction of any officer authortzed to direct an assignment of an insolvent's estate, that there isº
- perty &c.
3 good reason to believe that the debtor, his wife, or any other person, has concealed or embezzled
4 any part of the estate of such debtor, invested in the said assignees, or that any person can testify
Gnar. 145.] ( 870 ) -- [TITLE 27.
5 concerning the concealment or embezzlement thereof, or that any person who shall not have I'êIl-
6 dered an account as above required, is indebted to said creditor, or has property in his custody or
7 possession belonging to said creditor such officer shall issue a warrant, commanding any sheriff or
8 constable to cause such debtor or other person to be brought before him at such time and place as
f
9 he shall appoint for the purpose of being examined.
eammon. Sº 12. The officer issuing ºftwarran shall examine every person so brought before him, on
2 oath, in the presence of the assignees or any of them, touching all matters relative to the debtor,
3 his dealings and estate, and touching the detention or concealment of any part of his property, and
4 touching the indebtedness of any person to such debtor; and shall reduce the examination to wri-
5 ting, which the person so examined shall sign, and which shall be attested by the officer.
1 SEC. 13. If any person brought before such officer, shall refuse to be sworn or to answer satisfac-
Person refusing
to be sworn &c.
*** 2 torily all lawful questions put to him, or shall refuse to sign the examination, not having a reasona-
wº
3 ble objection thereto, to be allowed by such officer, the officer shall by warrant commit such person
4 to prison, there to remain without bail until he shall submit to be sworn, or to answer as required,
5 or to sign such examination ; in which warrant the particular default of the person committed shall
6 be specified, and if it be in not answering any question, such question shall also be specified therein.
1 SEc. 14. If any person so committed shall bring a writ of habeas corpus or certiorari, he shall not
ſº. 2 be discharged by reason of any insufficiency in the form of a warrant of commitment, but the court
CàSe O 8b)68S -
corpus.
3 or officer before whom such person shall be brought, shall recommit such person, unless it shall be
4 made to appear that he hath answered all lawful questions put to him, or had sufficient reason to
5 refuse to sign the examination as the case may be : or unless such person shall then answer on oath
6 the questions put to him.
Lºngerow.l Sec. 15. Any sheriff or jailor willfully suffering any person so committed, or recommitted pur-
iffs for escape.
2 suant to the foregoing sections, to escape, shall be liable to indictment for misdemeanor, and on con-
CHAP. 145.] . ( 871 ) [TITLE 27.
4
5
3 viction thereof;in addition to any punishment the court may inflict,shall be liable to the assignees in a
sum equal to the whole amount of the debts due to the creditors of such debtor, not exceeding two
*
thousand dollars.
SEC. 16. The person so examined and answering to the satisfaction of the officer, shall not be sub- sº
Person answer-
ing how far lia-
2 ject to any liability imposed by this chapter for concealing and not delivering any property, or pay-º.cº.
3
4
amination,
ing any debts beyond the value of such property, or the amount of such debts; but his answers on
such examination may be given in evidence in the same manner, and with the like effect as if they
had been made in answer to a bill in chancery filed by such assignees.
Sec. 17. Any person who shall discover to the assignees any secreted effects, property or things Persons di
- . YSO as digOOV-
* ering j"...
edtitled to prem-
in action, belonging to such debtor, so that they shall be recovered by them, shall be entitled to ten”
per cent on the value of the effects so discovered, to be paid by the assignees out of the estate of
such debtor; but this section shall not extend to persons who have such property, effects or things
in their possession.
SEc. 18. If any controversy shall arise between the assignees and any other person in the settle-
Reference of
controversy.
ment of any demands against such debtor, or of any debts due to his estate, the same may be refer-
red to three indifferent persons, who may be agreed upon by the assignees, and the party with whom
the controversy shall exist, by a writing to that effect, signed by them.
SEc. 19. If such referees be not selected by agreement, then the assignees may serve a notice on N. ºpt-
- Call Oil (Or ad-
plication f. ap-
pointment of re-
ferees.
the other party, of their intention to apply to the officer who appointed them, or to any other officer
of like authority, residing in the same county, for the appointment of referees, specifying the time
and place when and where such application will be made; which notice shall be served at least ten
days before the time so therein specified.
gº
Sec. 20. On the day so specified, the assignees may nominate two persons, not being creditors of
219
CHAP. 145.] - ( 872 ) [TrrLE 27.
2
Referees how
examinated.
3
4
How selected.
Selection to be
certified and rule
entered. - 2
4
I
Powers, duties
&c. of referees.
2
Reports where
to be filed; its eſ-
ſect.
2
}
Assignees to
con Vert eSlatc
into money;
to keep account 2
&C.
3
1
When and how
general meeting
of creditors to
be ealled. 2
such debtor, or otherwise interested, and the other party to such controversy, or in case of his ab-
sence, or refusal, the said officer, on due proof of the service of such notice, in place of such party,
shall nominate two indifferent persons.
Sec. 21. The names of the persons thus nominated, shall be written on four pieces of paper, as
nearly alike in all respects as may be, which shall be rolled up separately and put into a box, and
from thence the said officer shall draw out three of them, and the persons whose names are so
drawn shall be referees to determine the controversy,
SEc. 22. The officer before whom they shall be selected, shall certify such selection in writing;
and such certificate, or the written agreement of the parties, shall be filed by the assignees with the
clerk of the circuit court for the county, and a rule shall thereupon be entered by such clerk in vaca-
tion or in term, appointing the persons so selected to determine the controversy.
SEc. 23. Such referees shall have the same powers, and be subject to the like duties and obliga-
tions, and shall receive the same compensation, as referees appointed by a circuit court, in personal
actions depending therein.
SEc. 24. The report of the referees shall be filed in the same office where the rule for their ap-
pointment was entered, and shall be conclusive on the right of the parties, if not set aside by the
COurt.
Sec. 25. The assignees shall, as speedily as practicable convert the estate, real and personal, into
money; and they shall keep a regular account of all moneys received by them, to which account,
every creditor or other person interested therein, shall be at liberty at all times to have access.
SEC, 26. The assignees, within fifteen months from the time of their appointment,shall call a gene-
ral meeting of the creditors of such debtors,by a notice to be published in the same manner as here-
3 inbefore directed respecting the publication of the notice of thier appointment; in which notice they
CHAP. 145.] ( 873 ). |Title 27.
4
3
shall specify the place and time of such meeting, which time shall not be more than three months,
nor less than two months after the first publication of such notice; and every such notice shall be
published at least once in each week, until the time of such meeting,
*
Sec. 27. At such meeting, or at any adjonrned meeting thereaſter, all accounts and demands, in rºs. dings at
meeting.
favor of and against the estate of such debtor, shall be fairly adjusted, as far as the same canbe as-
certained, and the amount of moneys in the hands of the assignees declared.
Sec. 28. Out of the moneys in their hands, the assignees shall first deduct all the necessary dis-
* . Disbursements
º © * > tº º d eommis-
bursements made by them in the discharge of their duty, and a commission at the rate of five per *ºmmit
cent. On the whole sum, which shall have come into their hands.
SEC, 29. They shall pay all debts due by such debtor to the United States, and all debts due by What debts t
* at debt S (O
be first paid.
him to persons who, by the laws of the United States, have a preference in consequence of having
paid money as sureties of such debtor,
SEc. 30. They shall distribute the residue of the moneys in their hands, among all those who were
Distribution of
residue.
creditors at the time of executing the assignment by the insolvent, who shall have exhibited their
claims as creditors, and whose debts shall have been ascertained, in proportion to their respective
4 demands, and without giving any preference to debts due on specialties,
I
2
3
4
I
2
3
4
SEc. 31. In making such distribution the assignees shall first pay all debts that may be owing by
Debts due from
the debtor as guardian, executor, administrator or trustee ; and if there be not sufficient to pay all ſº guar-
debts of the character above specified, then a distribution shall be made among them in proportion
to their amounts respectively.
Sec. 32. Every person to whom a debtor shall be indebted for a valuable consideration, in any
Creditors whose
debts are not
. . . due.
sum of money not due at the time of such distribution, but payable afterwards, shall receive his Ule
proportion with other creditors after deducting a rebate of legal interest upon the sum distributed
for the time unexpired of such credit.
CHAP. 145.] -- ( 874 ) [TITLE 27.
1 SEC. 33. When mutual credit has been given by any debtor, and any other person, or mutual debts
Mutual credits
&c. when set-off.
2 have subsisted between such debtor and any other person, the assignees may set-off such credits or
“s
3 debts and pay the proportion or receive the balance due ; but no set off shall be allowed of any
f 4 claim or debt which would not have been entitled to a dividend as hereinbefore directed.
sº: 1 Sec. 84. No set off shall be allowed by the assignees of any claim or debt which shall have been
mands purcha-
sed. -
2 purchased by, or transferred to the person claiming its allowance, which could not have been set-
3 off according to the provisions of this chapter, in a suit by the assignees.
Properties may:
be retained in
case of suits
pending. 2 which ademand against such debtor may be established, the assignees may retain in their hands the
1 SEC. 35. If at the time any dividend is made, any prosecution be pending against the assignees, in
3 proportion which would belong to such demand if established, and the necessary costs and expenses
4 of such suit or proceeding, to be applied according to the event of such suit or proceeding, or to be
5 distributed in a second or other dividend.
/
tº.… I Sec. 36. All sums which shall be recovered by the assignees on account of any liability incurred
by assignees to
be distributed.
2 pursuant to the provisions of this title, shall be deemed a part of the estate of the debtor, and shall
8 be distributed as such among his creditors.
j"* 1 Sec. 37. If the whole of the estate of such debtor be not distributed on the first dividend, the as-
2 signees shall, within one year thereafter, make a second dividend of all the moneys belonging to the
s estate of the debtor, then in their hands, among the creditors thereof as hereinbefore specified; and
4 in the same manner from year to year, so long as any money belonging to the estate of such debtor
5 shall remain in the hands of the assignees, they shall make a dividend thereof among the creditors
6 entitled thereto.
1 SEc. 38. Any creditor who shall have neglected to deliver to the assignees an account of his de-
Creditors omit-
ting to deliver
:::::::::"2 mand, before the first, second or other dividend, and who shall deliver such account to them before.
t
CHAP, 145.] * ( 875 ) [TITLE 27,
3 the second or other subsequent dividend, shall receive the Sam he would have been entitled to on
4 any former dividend, before any distribution be made to the other creditors.
1 SEc. 39. If any dividend that shall have been declared, shall remain unclaimed by the person enti- Unclaimed divi
- (ll Vl-
* dends.
2 tied thereto, for one year after the same was declared, the assignees shall consider it relinquished,
3 and shall distribute it, on any subsequent dividend, among the other creditors.
A
l -
1 SEc. 40. If after settling the estate of any debtor, and after discharging his debts to creditors en-
Surplus to be
tº § tº g * * id to debtors.
2 titled to a dividend, any surplus shall remain in the hands of the assignees, the same shall be paid to paid to debtors
3 such debtor or his legal representatives.
1 SEC. 41. Within ten days after any dividend made by any assignees, they shall render on oath, Assignees to
render account
on oath, and file
g * & & & e . ... same with clerk.
2 and file with the clerk of the circuit court for the county in which they reside, an account in wri- an]C WIUIl CJCr
3 ting of all their proceedings in the premises, stating,
4 1. Their disbursements, commissions and the dividends made by them:
5 2. The names and residences of the creditors to whom dividends were made, aud the names of those
6 actually receiving them: and,
7 3. The property, moneys and effects of the debtor, remaining in their hands,and the value and situ-
8 ation of such property, and such assignees may at any time be compelled by a rule of such circuit
9 court, to render such account on oath, on the application of the debtor or any creditor.
1 SRC. 42, Such assignees shall be subject to the order of the circuit court for the county in which
Assignees sub-
id the application of dit f any debtor i t to whom th ;,
l * °, Ol' Il * 11] I’ C O - circuit court an
2 they reside, upon e app LC2 UlO]] O. any creditor, or of a y € OtOI 11 espe WI1OIY). ey Were ap may be removed.
3 pointed, in relation to the execution of any of the powers and duties confided to them, and they may
4 be removed by such court for cause shown.
1 SEC. 43. Whenever any assignee shall be removed or shall die, or become incapacitated to perform
220
CHAP. 145.] ( 876 ) - [TITLE 27.
2 his duties, the officer who originally appointed such assignee, or in case of his absence, death or re-
Iſ assignee be re- -
moved &c. new
assignce may be 3
appointed. moval, any other officer residing in the county where such assignee was resident,who by law would
4 have been empowered to make such appointment, after giving notice, and an opportunity to the cre-
5 ditors w propose proper persons, may appoint another in the place of such assignee, who shall in
6 all respects have the like powers and authority, and be subject to the same control, obligations and
7 responsibilities; and the said appointment shall be certified and recorded as the original appointment
8 Was required to be recorded.
1 SEC, 44. Any assignee who shall be desirous of renouncing the trust vested in him, may apply to
Assignee wish-
ing to renounce
may obtaiu order *
to show cause. e º º o
2 the officer from whom his appointment was received for an order to allow all persons interested to
8 show cause why such renunciation should not be accepted.
1 SEC. 45. If the officer who made such appointment shall not then be in office, such application may be made
when applica-
tion may be
#.” 2 to any other officer, of the county having authority by law to appoint such assignees in the first instance.
Application to 1 Sec. 46. Such application shall be accompanied by a full, true and just account of all the transactions of
be accompanied
by Statements.
2 such assignee, in that character, and particularly of the property, moneys and effects received by him; of
3 all payments made, either to creditors or otherwise; and of the remaining estate and effects of the debtor, in
4 respect to whose estate he was appointed an assignee, within his knowledge, and the situation of the same.
Amaya, be 1 SEC. 47. To such account shall be annexed the affidavit of the assignee, that the said account is in all re-
annexed.
2 spects, just and true, according to the best of his knowledge and belief; which affidavit shall be subscribed and
**
3 sworn to before the officer to whom the application is made, and shall be certified by him,
1 SEc. 48. Such officer shall thereupon grant an order, directing notice to be given to all persons interested
. to be pub-
lished.
2 in the estate of the debtor in respect to whom such assignee was appointed, to show cause on a day and at a
3 place therein to be specified, why he should not be permitted to renounce his appointment, and such notice
4 shall be published once in each week, for six weeks successively, in the state paper, or such other newspaper
*
5 or newspapers, as the officer shall direct.
CHAP. 145.] .* ( 877 ) - sº [TITLE 27.
1 SEC, 49. On the day appointed for such hearing, and on such other days as shall from time to time be ap-
Hearing.
2 pointed, if it shall appear that the notice was duly published, the officer shall proceed to hear the proofs and
3 allegations of the parties.
1 SEc. 50. If it shall appear that the proceedings of such assignee in relation to his trust, have been fair Order allowing
assignee to re-
nounce &c.
2 and honest, and particularly in the collection of the property and debts vested in him, and if such officer shall whentoleran-
3 be satisfied that for any reason, it is inexpedient for such assignee to continue in the execution of the duties
4 of his appointment, and that such duties can be executed by another assignee without injury to the estate of .
5 the debtor, or to the creditors, and if no good cause to the contrary appear, such officer shall grant an order
6 allowing such assignee to renonnce his appointment, and to assign the property and effects of the debtor.
1 SEc. 51. Such assignment shall be executed by the assignee, to such person or persons as the officer shall, e to e
SSlgnee to 6x6-
- àºjº.
2 appoint for that purpose ; and in such appointment such person as shall have been named to be assignee
3 by the creditors, or by the major part of them, shall be preſerred if approved by such officer.
1 SEC, 52. Such assignment shall transfer to the person to whom it shall be made, all the remaining estate
Effect of assign-
ment; powers
- * º e * g &c. of new as-
2 and effects vested in the assignee so renouncing ; and such new assignee shall have the same powers, be signee.
3 subject to the same duties, and be entitled to the same compensation as the original assignee, and shall con-
4 tinue any suit that may have been commenced by such original assignee in his name, or in that of such new
5 assignee.
SEC 38. Upon producing to the officer allowing such assignment, the certificate of the assignee, duly pro-
When order to
be made dischar-
ging assignee.
2
ved by the oath of a subscribing witness, that such assignment has been duly made, and the property capa-
3 ble of delivery, belonging to such estate, together with the books, vouchers and documents relating to the
4 said estate, have been duly delivered, and also a certificate of the register of deeds of the county that such
5 assignment has been recorded; such officers shall grant to the assignee so applying an order that he be dis.
6 charged from his trust.
1
SEC 54. Upon such order being granted, such assignee shall be discharged from the trust reposed in him,
Chap. 146.] ( 878 ) t [TITLE 27.
2
and his power and authority shall thereupon cease, but he shall, notwithstanding, remain subject to any lia-
Assignee there-
. discharged,
subject to prior tº sº º w e {} ſº g * *
liabilities. 3 bility he may have incurred, at any time previous to the granting of such order, in the management of his
4 trust.
g 1 SEC. 55. Such new assignment, upon being duly proved or acknowledged, shall be recorded in the office
New assignment -
to b ded,
... &c. e e . *
filed. . 2 of the register of deeds of the county where such order was granted ; and the petition of the assignee, the
3
affidavit and proceedings thereon, with the certificate of the new assignee, shall be filed in the same office
4 where the original papers and proceedings in respect to such debtor were filed,
ºt. * 1 SEc. 56. The expense of all proceedings in effecting such renunciation and assignment, shall be paid out
ta(e.
2 of the estate in the hands of the assignee making the application.
CHAPTER 146.
OF THE RELIEF OF POOR DEBTORS FROM IMPRISONMENT.
1 SECTION 1. Every person who shall be imprisoned by virtue of one or more executions in civil causes,
Cases in which --- -
.."..., 2 may make application for his discharge from imprisonment, in the cases, and in the manner hereinafter spe-
for discharge.
3 cified.
1 Sec. 2. Such application may be made at the times following, that is to say :
When applica- * -
** 2 1. If the amount due on such executions shall not exceed twenty-five dollars, after he shall have been im-
3 prisoned thirty days:
4 2. If the amount due on such executions be more than twenty-five dollars, and not exceeding fifty dollars
5
after he shall have been imprisoned sixty days:
6 3. If the amount due on such executions be more than fifty dollars, and not exceeding one hundred dollars
7
after he shall have been imprisoned ninety days:
8 4. If the amount due on such executions be more than one hundred dollars, and not exceeding five hundred
9
dollars, after he shall have been imprisoned six months; and
Chap. 146.] ... • ( 879 ) -. [TITLE 27,
10
11
5. If the amount due on such executions exceed five hundred dollars, after he shall have been imprisoned
nine months.
SEC, 3. The {e * * * * * in , g ºº &
person so entitled to apply ſor his discharge may represent to the jailor or sheriff in whose Sheriff or jail or
to notify efficer.
custody he shall be that he is unable to pay the amount due on the execution or executions, by virtue of
which he is imprisoned, and is desirous to take the benefit of the law for the relief of poor debtors, and
thereupon such sheriff or jailor shall make such desire known to a supreme court commissioner or associate
judge of the circuit court for the same county.
SEc. 4. The officer to whom such desire shall be so made known, shall thereupon appoint a time and a
Officer to ap-
point time and
place within the same county, for the examination of such debtor, and notice of such time and place shall ...”.”
tice thereof to be
given.
be given to the plaintiff in every such execution or his attorney, if within the same or any adjoining coun-
ty, at least ten days before such examination.
SEc. 5. If neither such plaintiffs nor their attorneys shall be found within either of such counties, such no- whenºnotice to
be published &c.
tice shall be published once in each week for two successive weeks, in a newspaper printed in the county
where such applicant shall be imprisoned, if one be there published, and if not, then by fastening the same
upon the outer door of the jail in which such person is imprisoned at least ten days before such examination.
SEc. 6. On the day appointed for such examination, the sheriff or jailor shall have the prisoner at the Hearing before
- • officer.
2^
place designated by such officer; and on due proof of notice having been given as hereinbefore provided,
such judge or commissioner shall examine the prisoner on oath concerning his estate and effects, and the
disposal thereof, and his ability to pay the sum för which he is committed, or any part thereof, and shall
hear any other legal and pertinent evidence that may be produced by the prisoner or any plaiatiff in such
execution.
Sec. 7. If the officer before whom such examination is had, shall be satisfied of the truth of the facts set
221
CHAP. 146.] * ( 880 ) - [TITLE 27.
When officer to
adulinister oath.
form of oath.
Form of certifi-
cale to be made
by officers.
Prisoner to be
discharge and
oath and certiſi-
cate filed.
&
2 forth in the oath to be taken by the debtor; and in the certificate to be made by such officer, as required in
3
1
2
10
11
12
13.
the two following sections, he shall administer to such debtor the oath hereinaſter prescribed.
SEC, 8. Such oath shall be in the following form: “I, , do solemnly swear, (or “affirm,”
as the case may be,) that I have no estate, real or personal, to the amount of twenty dollars, except such
goods and chattels as are by law exempt from execution, and that I have not any other estate, now convey-
ed or concealed, with design to secure the same to my use, or to the use of my family, or to defraud my
creditors;’” which oath shall be signed by the person making the same, and be certified by the officer.
SEC. 9. After administering such oath, such officer shall make a certificate under his hand, in substance in
the following form :
“County of , SS.
To the keeper of the jail of said county :
I the subscriber, an associate judge of the circuit court, (or a supreme coun commissioner, as the case may
be,) for said county, do hereby certiſy that A. B., a poor prisoner, confined upon execution in a civil cause,
in the jail of said county, has caused C. D., the person at whose suit he is imprisoned, to be notified accor-
ding to law, of his desire to take the benefit of the law ſor the relief of poor debtors; that in my opinion
the said A. B. has no estate, real or personal, to the amount of twenty dollars, except such goods and chat-
tels as are by law exempt from execution, and has not any other estate now conveyed or concealed, or in
any way, disposed of with design to secure the same to his own use or the use of his family, or to defraud his
creditors; and that I have after due examination of the said A. B. administered to him the oath prescribed s
by law to be taken by poor prisoners, who are committed on execution in civil causes.”
Sec. 10. The jailor, upon receiving such certificate, shall discharge the prisoner So far as he is held in
2 prison on the execution or executions therein mentioned, and such certificate, and the oath taken by such
prisonershall be filed and preserved in the office of the clerk of the county in which the proceedings were
had.
CHAP. 146.] * ( 881 ) [Trrle 27.
3
4
/
SEc. 11. If the officer to whom any application shall be made under the provisions of this chapter, after
When prisoner
to be remanded
the examination of the prisoner, shall not be satisfied that he is entitled to his discharge, such prisonershall “
be remanded to prison; but he shall not thereby be prevented from obtaining his discharge upon new notice
to the creditor or creditors, and new proceedings before the same or some other proper officer in the man-
ner herein provided.
SEc. 12. The debtor, after being so discharged, shall be forever exempted from arrest or imprisonment for
IJebtor dischar-
ged to be forever
the same debt, and shall be discharged from such debt, unless he shall be convicted of having sworn falsely gºved unles.
*s.
upon his examination before the officer, or in taking the oath before prescribed.
Sec. 13. If he shall be so convicted, he shall have no benefit from the proceedings had under this chapter
2 Consequences if
debtor convicted
tº § * e e te of perjury.
and shall be liable to the punishment of perjury; and the creditor or creditors, may have new executions
against the body or against the goods and chattels, lands and tenements of the debtor, in like mamner as if
he had not been committed on execution,
CHAP. 147.] ( 882 ) |Title 28.
TITLE XXVIII.
OF ADMITTING PRISONERs To THE LIBERTIES of JAILs, of EscAPEs, PRoceedings on THE ELECTION of A New
SHERIFF, AND GENERAL PRovisions RELATING To JAILS AND THE CONFINEMENT of Prisoners TheREIN.
CHAHTER 147-Of edmitting Prisoners to the liberties of Jails; of Escapes, and Proceedings
on the election of a new Sheriff. le
“ 148,-General Provisions relating to Jails and the confinement of Prisoners therein,
CHAPTER 147,
OF ADMITTING PRISONERS TO THE LIBERTIES OF JAILS, OF ESCAPES, AND PRoceedings on THE ELECTION
OF A NEW SHERIFF. -
1 SECTION 1. Every person who shall be in the custody of the sheriff of any county by virtue,
Who entitled to
liberties of jail
limits. 1. Of any capias ad respondendum : or,
3 2. Of any execution in a civil action : or,
4 3. By virtue of any attachment for the non-payment of costs : or,
5 4. In consequence of a surrender in exoneration of his bail:
6 Shall be entitled to the liberty of the jail limits, upon executing a bond to such sheriff and his assigns, as
7 prescribed in the next section.
SEC. 2. Such bond shall be executed by the prisoner and one or more sufficient sureties, being inhabitants
Penalty of bond
and sureties.
2 and householders of the county, in a penalty which shall be as follows:
3 1. It shall be not less than double the amount of the sum in which the sheriff was required to hold the de-
4 fendant to bail, if he be in custody on original process, or be surrendered in exoneration of his bail before
5 judgment docketed against him :
6 2. It shall be not less than double the amount directed to be leviedby the attachment or execution, if he be
7 in custody upon attachment or execution:
8 3. It shall be not less than double the amount for which judgment shall have been rendered against him, if
[9 he be surrendered after judgment docketed.
CHAP. 147.] ‘( 883 ) *- [TITLE 28,
1 SEC. 8. Such bond shall be conditioned, that the person so in custody of such sheriff, shall remain a true . .
- - - > * * : - • . . . . ºtion Of
Oil 0. .
2 and faithful prisoner, and shall not, at any time or in any manner, escape or go without the jail limits of the
3 county, until legally discharged,
1 SEC. 4. Every such bond taken for the liberties of any jail, shall be valid, and shall be held ſor the indem- For whom held,
2 nity of the sheriff taking the same, and of the party at whose suit the prisoner executing such bond shall be
3 confined.
- - s
1 Sec. 5. If a sheriff who shall have taken any such bond for the liberties of any jail, shall discover that any
When prisoner
may be recoln-
2 surety to such bond is insufficient, he may commit the prisoner who executed the same to close confine-mided.
8 ment in such jail, until other good and sufficient sureties shall be offered.
1 SEc. 6. The sureties in any bond given for the liberties of any jail, may surrender their principal at any,
g * Principal may
he surrendered
º * - - * * - * e - - . . by sureties.
2 time before judgment shall be rendered against them on such bond; but such bail shall not be exonerated
3 thereby from any liability incurred before the making of such surrender.
-
1 •SEc. 7. Such surrender may be made as ſollows: The bail may take their principal to the keeper of the . Surrender
- - II]{1(16.
2 jail, and upon the written requirement of such bail, the keeper shall take such principal into his custody, and
3 thereupon endorse upon the bond given ſor the limits, an acknowledgement of the surrender of such princi-
4 pal; and such keeper shall also, if required, give the bail a certificate acknowledging such surrender.
-*
1 SEC. 8. The going at large of any prisoner who sholl have executed such bond, or of any prisoner who Yºº-
2 would be entitled to the liberties of any jail upon executing such bond, within the jail limits of the county in
3 which he shall be in custody, shall not be deemed an escape of such prisoner; but in case any such prisoner
. shall go at large without the jail limits, of such county, without the assent of the party at whose suit such
5 prisoner shall be in custody, the same shall be deemed an escape and ſorſeiture of the bond so executed,
6 and the sheriffin whose custody such prisoner shall have been, shall have the same authority to pursue and º
r
7 retake such prisoner, as if such escape had been made from the jail.
222
CHAP. 147.] ( 884 ) [Tirle 28.
Defence in sail
on bond.
Eſſcet of judg-
mºnt figuin st
sheriff.
Summaro judg-
ment in fuvor of
Sheriff.
Previous notice
&c. required.
Staying proceed-
ings 0.4 juug-
Pllelit.
When judgment
to be vacuted.
§
2
I
'?
§
4
1
2
Sec. 9. In every suit brought by a sheriff on such bond, the defendants may give notice of a voluntary
return of the prisoner to the liberties of the jail from which he escaped, or a recaption of such prisoner by
the sheriff from whose custody he escaped, before the commencement of such suit, and may give evidence
thereof in bar of such action; and such defendants shall be entitled to make such or any other defence to
such suit, which might be made by such sheriff, to an action against him for an escape.
Sec. 10. But iſ an action shall have been brought against such sheriff ſor such escape, and due notice
thereof shall have been given to the prisoner and his sureties who executed the bond for the jail liberties,
the judgment against such sheriff shall be conclusive evidence of his right to recover against such prisoner
and his sureties, to whom such notice was given, in the action on such bond, as to all matters which were or
might have been controverted in the action against the sheriff.
SEc. 11. i. every such action brought by a sheriff on a bond executed for the jail liberties, if it shall ap-
pear thatjudgment has been rendered against such sheriff for the escape of the prisoner, and that due notice
of the pendency of the action eams the sheriff was given to such prisoner and his sureties, to enable them
to defend the same, the court shall rendor judgment in º suit upon such bond, at the first term after the
commencement of such suit.
Sec. 12. But to entitle any sheriff to move ſor such judgment, he shall have filed his declaration, and shall
show to the court that he has given twenty days notice of such motion.
SEc. 13. If it shall appear on the hearing of such motion, that the deſendants have any meritorious cause
of defence, which was not controverted in the action against the sheriff, and which by law could not
have been so controverted, the court shall suspend proceedings on such judgment, until a trial in such action
shall be had ; but such judgment shall remain as a security for the sheriff.
Sec. 14. If such defence be established, the court shall vacate such judgment, and render judgment as in
other cases.
CHAP. 147.] ( 885 ) [TITLE, 28.
i
$5
$10
4
the escape of the prisoner, shall be evidence of the damages sustained by him, in the same manner as if such
Sec. 15. In every action brought by a sheriff on such bond, the recovery of a judgment against him for
Evidence of da-
mages &c.
judgment had been collected; and such sheriff shall bo entitled to recover the costs, and his reasonable ex-
&
penses in defending the suit against him, as part of his damages.
Sec. 16. If any such bond shall be forfeited, the party at whose suit the prisoner executing the same shall Assigning bond.
have been confined, or in case of his death, the executors or administrators of such party, shall be entitled
to an assignment thereoſ, which shall be made by the sheriff taking the same, or his successor in office, or in
case of a vacancy in his office, by his under sheriff, by an indorsement thereon.
Sec. 17. The party to whom such assignment shall have been made, may maintain an action on such bond
Action by assign-
i. damages
© § & g tº g * © e e therein.
as assignee of the sheriff taking the same, in the same cases in which such action might be maintained by
such sheriff, and upon obtaining judgment therein, he shall recover damages for such breaches of the condi-
tion as shall have been assigned by him as follows :
i. If the prisoner escaping was confined by virtue of an execution, or by virtue of an attachment for non-
payment of costs, the measure of the plaintiff's damages shall be the amount directed to be levied by such
execution or attachment with interest thereon to the time of such recovery :
2. Iſ such prisoner was confined by virtue of a capias ad respondendum, or upon a surrender in exonera-
tion of his bail, made beſore or aſter judgment rendered against him, the plaintiff shall recover only the ac-
tual damages sustained by him.
SEc. 18. The acceptance of an assignment of any such bond, shall be a bar to any action by or on behalf
Effect of assign-
pºº.
of the party receiving such assignment, against the sheriff or other officer making the same, for any escape
by the prisoner executing such bond, amounting to a breach of such bond.
Sec. 19. In every action brought by the assignee of such bond, the defendants shall be entitled to give no-
Defence to ae-
. & tº * tº e tion of assignees,
tice of a voluntary return of the prisoner to the liberties of the jail, before the commencement of such ac- MOſ) 8
tion, in bar thereoſ, and to make any defence which they would be entitled to make, if such action had
been brought in the name and for the benefit of the sheriff to whom such bond was executed.
CHAP. 147.] - - ( 886 . ) [TITLE 28.
I
-- SEc. 20. In case the party at whose suit any person shall have been confined to the liberties of a jail
staying proceed- y
ings against
sheriff.
2 shall refuse or neglect to take an assignment of the bond executed by such person, as herein before provi-
3 ded, and shall prosecute any sheriff for the escape of such person, the court in which such action shall be
5 pending, shall by rule, stay all proceedings upon the judgment against such sheriff, until he shall have had
5 a reasonable time to prosecute the bond taken by him, and to collect the amount of any judgment he may
6 recover thereon.
•
1 Sec. 21. But the last preceding section shall not extend to authorize such stay of proceedings, in any ac-
Not in case of
voluntary es-
Cape. 2 tion where the judgment shall have been recovered against any sheriff, for any escape committed with the
3 assent, aid or assistance of such sheriff.
Of Escapes, and the Liability of Sheriffs therefor.
1 SEc. 22. All prisoners commttted to any jail upon process for contempt, or committed for misconduct in
When prisoners
to be actually
confined. 2 the cases prescribed by law, except on attachments for the non-payment of costs, shall be actually confined
3 and detained within such jail, until they shall be from thence discharged by due course of law, or shall be
4 removed to someother jail or place of confinement in the cases provided by law; and if any sheriff or keeper
5 of a jail, shall permit or suffer any prisoner so committed to such jail, to go or be at large out of his pri-
6 son, except by virtue of some writ of habeas corpus or rule of court, or in such other cases as may be pro-
7 vided by law, he shall be liable to the party aggrieved, for his damages sustained thereby, and shall be deem-
8 ed guilty of a misdemeanor.
1 SEc. 23. If any prisoner committed to any jail, by virtue of any capias ad respondendum, or upon a sur-
When being • gº.
without jail lim- -
*** 2 render in exoneration of his bail, made either before or aſter judgment rendered, shall go or be at large
- 9
3 without the jail limits of the county in which he shall have been imprisoned, without the assent of the party
4 at whose suit such prisoner shall have been committed, the same shall be deemed an escape of such prison-
5
er, and the sheriff having charge of such jail shall be answerable therefor to such party in an action of tres-
6
pass on the case, to the extent of the damages sustained by him.
I
SEc. 24. If any prisoner committed to any jail,in execution in a civil action, or upon an attachment for the
CHAP. 147.] ( 887 ) [Title 27.
2
3
3
3
non-payment of costs, shall go or be at large without the jail limits of the county in which he shall have n.
been imprisoned, without the assent of the party at whose suit such prisoner shall have been committed, the
same shall be deemed an escape of such prisoner, and the sheriff having charge of such jail shall be an-
swerable therefor to such party for the debt, damages, or sum of money for which such prisoner was com-
mitted, to be recovered in an action of debt or of trespass on the case.
SEc. 25. In every action against a sheriff or other officer, for the escape of any prisoner, the defendant perence by ther-
- iff. s
may give notice that before the commencement of such action, such prisoner voluntarily returned to the jail
from which he escaped, or within the liberties thereof: or that such defendant re-took such prisoner, and
had him within the jail from which he escaped, or within the liberties thereof, before the commencement of
such action; and in either case, that such escape was made without the consent of such defendant.
Sec. 26. Every sheriff or other officer, who shall demand or receive any reward, gratuity, or valuable
- - - ºnally on Sher-
lſie
thing, to procure, assist, connive at or permit any escape of any prisoner in his custody, shall be deemed
guilty of a misdemeanor.
Sec. 27. Every sheriff or other officer who shall be convicted of a violation of the last section, shall forfeit w
his office, and be forever thereafter incapable of executing the same.
Proceedings on the election of a new Sheriff.
Sec. 28. When any new sheriff shall be elected in the place of any other, or upon the expiration of any Evidence of
new sheriff ha-
ving qualified.
sheriff's office, and shall have qualified and given the security required by law, the clerk of the county shall
grant a certificate, under the seal of the circuit court for the county, that the person so elected has qualified 12 Wend. 481.
4 and given such security.
Sec. 29. Upon the service of such certificate on the former sheriff, his powers as such sheriff, except in
When powers
of former sheriff
e to CCaCOe
the cases otherwise expressly provided by law, shall cease.
- 228
CHAP. 147.] - ( 888 ) [TITLE 27.
Jail, &c. to be
delivered to suc-
CCSSOI.
Acknowlegment
of receipt of pro-
perty &c.by new
sheriff.
Powers of for-
mer sheriff in
relation to Cer-
tº in process.
Compelhng de -
livery ol jail &c.
l
2
43
5
10
11
12
13
2
&
SEg. 30. Within ten days after the service of such certificate upon such former sheriff, he shall deliver to
his successor, -
1. The jail of the county, with all its appurtenances and the property of the county therein:
2. All the prisoners then confined in such jail :
3. All process, orders, rules, commitments and all other papers or documents in his custody, authorizing, or
relating to, the confinement of such prisoners; and if any such process shall have been returned, a state-
ment in writing of the contents thereof, and when returned:
4. All writs of capias ad respondendum, and other orignal process, and all precepts and other documents,
for the ammoning of a grand or petit jury, then in his hands, which shall not have been fully executed by
him :
5. All executions, attachments, and final process, then in his hands, except such as the said former sheriff
shall have executed, or shall have begun to execute by the collection of money thereon, or by a levy on pro-
perty in pursuance thereof.
SEc. 31. At the time of suchdelivery,the said former sheriff shall execute an instrument, reciting the proper-
ty, process,documents and prisoners delivered,specifying particularly,the process or other authority by which
each prisoner was committed, and is detained, and whether the same be returned or delivered to such new
sheriff; which instrument shall be delivered to such new sheriff, who shall acknowledge in writing upon a
duplicate thereof, the receipt of the property, process, documents and prisoners therein specified, and shall
deliver such duplicate and acknowledgment to the said former sheriff.
SEC. 32: Notwithstanding the election of a new sheriff, the former sheriff shall return, in his own name,
all writs of capias ad respondendum, all other original process; all attachments and all executions; which he
shall have fully executed, and shall proceed to complete the execution of all final process and attachments,
which he shall have begun to execute by a collection of money thereon, or by a levy on property in pur-
suance thereof.
SEc. 33. If any former sheriff shall neglect or refuse to deliver to his successor, the jail, process, docu-
ments, and prisoners in his charge, as herein required, such successor may, notwithstanding, take possession
CHAP. 148.] ( 889 ) [TTLE 27.
3 of such jail, and take the custody of the prisoners therein confined, and may compel the delivery of such pro-
4 cess and docu ments, in the manner prescribed in the one hundred and thirty third chapter of these revised
5 statutes.
1 SEC. 34. If at the time when any new sheriff shall have qualified and given the security required by law, Duty of under
sheriff in certain
C818&S.
2 the office of the former sheriff shall be executed by his under sheriff, or by a coroner of the county, such
3 under sheriff or coroner, shall in all things comply with the preceding provisions, and shall perform the du-
t
4 ties required of such former sheriff.
CHAPTER (48.
GENERAL PROVISIONS RELATING TO JAILS AND THE CONFINEMENT OF PRISONERS THEREIN.
1 SECTION 1. It shall be the duty of the sheriffs of the several counties of this state, to receive into prisoners com-
mittdd by courts
- of U. S. to be
& ſº tº º • & {º kept by sheriffs.
2 their respective jails, and keep all prisoners who shall be committed to the same, by virtue of any
3 civil process issued by any court of record, instituted under the authority of the United States, until
4 they shall be discharged by the due course of the laws of the United States, in the same manner
5 as if such prisoners had been committed by virtue of process in civil actions, issued under the au-
6 thority of this state ; and every such sheriff may receive to his own use, such sums of money as
7 shall be payable by the United States, for the use of the said jails.
I Sec. 2. Every sheriff or keeper of a prison, to whose jail any prisoner shall be committed, by any
* Liability of sher-
jffs for safe
2 marshal or other officer of the United States, as provided in the preceding section, shall be answer-.' *.
3 able for the safe keeping of such prisoner, in the courts of the United States, according to the laws
4 thereof.
1 SEC. 3. Prisoners arrested on civil process, shall be kept in rooms separate and distinct from those
Confinement of
2 in which prisoners detained on a criminal charge or conviction, shall be confined; and on no pre- Hºnº-
3 tence whatever, shalf prisoners on civil and criminal process, be put or kept in the same room.
Ö
CHAP. 148.] ( 890 ) [TiTLE 28.
l
Female pris-
Oſler S,
2
Liability of Sher- I
ifſ.
2
SEc. 4. Male and female prisoners, unless they be husband and wife, shall not be put, kept or con-
§
fined in the same room in any prison.
Af
Sec. 5. Every sheriff or other officer, who shall offend against the provisions of either of the two
last preceding sections, shall be liable to the party injured in three times the damages found by the
3 jury ; and shall be liable to an indictment for a misdemeanor, and upon conviction thereof, in addi-
4
Jails in the sevs1
eral counties.
2
Using jails of 1
contiguous
counties.
1843, p > 23
Duty of sheriff
&c.
Responsibility of 1
sheriff.
tion to any other punishment, shall forfeit his office.
SEC. 6. The buildings now used as jails and prisons in the respective counties of this state, shall
be and continue the jails of the said counties respectively, until other buildings shall be designated
or erected for that purpose, according to law.
SEc. 7. If in any county there shall not be a jail, or the jail erected shall become unfit or unsafe
for the confinement of prisoners, or shall be destroyed by fire or otherwise, the associate judges of
the circuit court for such county shall, by an instrument in writing, to be filed with the clerk of the
county, designate the jail of some contiguous county, for the confinement of the prisoners of their
county, which shall thereupon, to all intents and purposes, except as herein otherwise provided, be-,
come the jail of the county for which it shall have been so designated.
SEc. 8. A copy of such instrument of designation, duly certified by the clerk of the county with
whom it is filed, under the seal of the circuit court thereof, shall be served on the sheriff and keeper
of the jail so designated; whose duty it shall be, from thenceforth, to receive into such jail, and
there safely keep, all persons who may be lawfully confined therein, pursuant to the foregoing pro-
visions.
SEc. 9. Such sheriff shall be responsible for the safe keeping of the persons so committed to such
2 jail, in the same manner and to the same extent, as if he were sheriff of the county for whose use
3 such jail shall have been designated, and with respect to the persons so committed, shall be deemed
4 the sheriff of such county.
Chap. 148.] • ( 891 ) [TITLE 28.
l
2 jail of the county for which such designation shall have been made, previous to such designation, they
3
4
5
6
I
SEc. 10. If any prisoners confined on civil process, shall have been admitted to the liberties of the Prisoners on
º to remain
C.
shall notwithstanding, be entitled to remain within such liberties, but may be removed to the jail so
designated, and confined therein, by the sheriff of the county in which they were admitted to the
liberties of the jail, in the same cases, and in the same manner as such sheriff might by law confine
them in the jail of his own county.
Sec. 11. If any persons shall be in the custody of the sheriff of the county for which such designa-
Prisonels arrest-
ed after design a-
nation shall have been made, subsequent to such designation, and shall be entitled, according to law, lion made.
to the liberties of the jail thereof, they shall be admitted to the liberties of such jail, in the same man-
ner, and in the same cases, as if no such designation had been made, but may be removed by such
sheriff to the jail so designated, and confined therein, in the same cases and in the same manner, as
such sheriff might by law confine them in the jail of his own county.
Sec. 12. If any person confined in the jail so designated on civil process, or removed there, as here-
Prisoners remo-
Ved.
in before provided, shall by law be entitled to the liberties of the jail, the sheriff of the county in
which the jail so designated shall be, shall admit them to the liberties of such jail, in the same man-
ner and in the same cases, as if they had been originally arrested by such sheriff, on process direc-
ted to him.
SEC. 13. Whenever a jail shall be erected for the county for whose use such designation shall have Revoking desig-
nation of anoth-
er jail.
been made, or its jail shall have been rendered fit and safe for the confinement of prisoners, the as-
sociate judges of the circuit court for such county, shall by an instrument in writing, to be filed with
the clerk of the county, declare that the necessity for such designation has ceased, and that the
same is thereby revoked and annulled.
Sec. 14. The clerk of the county shall immediately serve a copy of such revocation upon the sher-
*
224
Char. 148.] --- ( 892 ) [TITLE 28,
2 if thereof, whose duty it shall be to remove the prisoners belonging to his custody, and so confined
Proceedings on
revocation.
3 without his county, to his proper jail, and if any prisoners shall have been admitted to the liberties
4 of the jail, in such other county, they shall also be removed, and shall be entitled to the liberties of
*
5 the jail of the county to which they shall be removed, in the same manner as if they had been orig-
6 inally arrested in such county.
1 SEC. 15. Whenever by reason of any jail being on fire, or any building contiguous, or near to a
Removal of pris-
oners in case of
fire. 2 jail, being on fire,there shall be reasons to apprehend that the prisoners confined in such jail, may be
3 injured or endangered by such fire, the sheriff or keeper of such jail may in his discretion, remove
4 such prisoners to some safe and convenient place, and there confine them, so long as may be neces-
5 sary to avoid such danger ; and such removal and confinement shall not be deemed an escape of
6 such prisoners.
1 SEc. 16. No spirituous liquor shall on any pretence whatever, be sold within any building used and
sº fº, in - - . -
Jalis. 2 established as a jail; nor shall any spirituous liquor be brought into any jail for the use of any per-
3 son confined therein, or be furnished to any such prisoner, unless the same shall be certified to be
4 absolutely necessary for the health of such prisoner, by some reputable physician, who shall specify
5 the quantity and quality of the liquor that may be furnished to any prisoner, the name of the pris-
6 oner for whom, and the time when the same may be furnished.
1 SEC. 17. Every person who shall sell or bring into any jail, any spirituous liquor, contrary to
Penalty on jail-
ors and others.
the provisions of the last preceding section, and every sheriff, keeper of a jail, assistant to such
3 keeper, or other officer employed in or about any jail who shall knowingly suffer any spirituous li-
4 quor to be sold or used in a jail, contrary to the foregoing provisions shall be deemed guilty of a
5 misdemeanor, and on conviction thereof, shall be subject to imprisonment not exceeding one year, or
6 to a fine not exceeding two hundred and fifty dollars, cr both, in the discretion of the court, and ev-
7 ery sheriff or other officer so convicted shall forfeit his office.
Chap. 148.] * ( 893 ) [TITLE 28.
I
2
3
|
Sec. 18. Every sheriff or jailer, upon whom a declaration, notice, or any other proceeding direct
Declaration &c.
to be dellvered
to prisoner.
ted to any prisoner in his custody, shall be served, shall within five days thereafter deliver the same
to such prisoner, with a note thereon of the time of the service thereoſ, upon such sheriff orjailer;
and for every neglect or violation of this section, the sheriff or jailer guilty thereof, shall be liable
Sec. 19. Any sheriff or other officer, who shall have arrested any prisoner, may pass Over, across
Sheriffs may
through
and through such parts of any other county or counties as shall be in the ordinary route of travel §ºis.
from the place where such prisoner shall have been arrested, to the place where he is to be convey-
ed and delivered, according to the command of the process by which such arrest shall have been
made.
Not to be deem-
- - - - . . • e o d &c.
Sec. 20. Such conveyance shall not in any case be deemed an escape; nor shall the prisoner so “"“”
conveyed, or the officers having them in their custody, be liable to arrest on any civil process, while
passing through such other county or counties,
CHAP. 140.] ( 894 ) - * [TITLE 29,
TITLE XXIX. . . .
Of Costs, AND THE FEEs of OFFICERs. * :- - - - -
CHAPTER 149—Of Costs, and the recovery and taxation thereof in Civil Cases.
“ 150,—Of the Fees of certain Officers.
CHAPTER 149.
OF COSTS AND THE RECOVERY AND TAXATION THEREOF IN CIVIL CASEs.
1 SECTION I. If the plaintiff in a court of chancery, shall dismiss his bill or petition, or if the same
Costs on dis- º
Hmissing bill &c.,
"* 2 shall be dismissed for want of prosecution, the defendant shall recover his costs, except in those ca-
3 ses where according to the practice of the court, costs would not be awarded against such complain-
2 Paige, 372.
4 ant or petitioner, upon a decree rendered on hearing the cause.
‘. . ... I SEc. 2. In all other cases where no special provision shall be made by law, the costs of all suits
ry.
2 Paige, 579, º
* *** 2 and proceedings in chancery, shall be paid by such party as the court shall direct.
1 SEc. 3. In the following cases, if the plaintiff recover judgment by default, upon confession, verdict,
When plaintiff
at law to recov-
(8. e sº e g º
Cr CO8 2 demurrer or otherwise, in any action or proceeding at law, he shall recover his costs :
3 1. In all actions of ejectment, or for waste, or private nuisance ; and in all proceedings to recover
4 the possession of land forcibly entered, or forcibly or otherwise unlawfully detained :
5 2. In all actions in which the title to lands or tenements, or a right of way, or a right by prescrip-
6 tion or otherwise, to any easement in any lands, or to overflow the same, or to do any other injury
7 thereto, shall have been put in issue by the pleadings, or shall have come in question on the trial of
8 the cause :
9 3. In suits and proceedings upon writs of scire facias, audita querela, prohibition, or informations in
^
S.
\
* -
10 the nature of a quo warranto :
Chap. 149.] - ( 895 ) [Title 29.
11 4. In all actions for the recovery of any debt or damages, or for the recovery of penalties or for-
12 feitures, in cases where such actions are not cognizable before a justice of the peace, and in all ac-
13 tions of replevin :
ſ
14 5. In all actions where the plaintiffshall recover any sum, if it appear that his claim, as established
15 at the trial, exceeded two hundred dollars, and the same was reduced by set-off:
16 6. In actions for * upon land, or for taking personal property, where the court before whom
17 the same shall be tried, shall certify in their minutes, or the jury by whom the damages shall be as-
18 sessed, shall find and return in their inquisition, that such trespass was wilful and malicious :
19 7. In actions for a false return, or for any other malfeasance or misfeasance, by any ministerial or
20 judicial officer, in such capacity or office, except such actions against * or other ministeri-
21 al officers, touching their duties upon process issued in civil actions brought in a justice's court.
1 Sec. 4. If the plaintiff in an action for assault and battery, or false imprisonment, or for slanderous when no more
costs than dam-
ages.
2 words, or for libel, recover less than fifty dollars, such plaintiff shall recover no more costs than dam-
3 ages.
1 Sec. 5. In all actions and proceedings in which the plantiff would be entitled to costs, upon a judg-...".”
to have costs.
2 ment rendered in his favor, if, after the appearance of the defendant, such plaintiff be non-suited,
3 discontinue his suit, be non-prossed, or judgment pass against him on verdict, demurrer, or other-
4 wise ; or in case a plaintiff recover judgment, but not enough to entitle him to costs ; the defendant
5 shall have judgment to recover against such plaintiff, his full costs, which shall have the like effect
6 as all other judgments.
One of seve.
1 SEC. 6. When several persons are made defendants in any writ or proceeding, or in any action in ...
titled to costs.
2 which the plaintiff, upon a recovery would be entitled to costs, and one of more of them shall be
3 acquitted by verdict on the trial, or by judgment upon plea in abatement, or on demurrer, or by the
225 .
CHAP. 149] * ( 896 ) r [TITLE 29,
4 plaintiff’s discontinuing, as to such defendant, every person so acquitted shall recover his costs of
5 suit, in like manner as if judgment had been rendered in favor of all the defendants.
But not it court I SEC. 7. But if such person be so acquitted in any actio * º
jºin - . . . p ca . . . . . . . y Il brought ſo the recovery of land, or the
cases, &c. - ; : * *
2 possession thereof, or for nuisance, waste, trespass, or trespass on the case for any non-feasance or
3 mal-ſeasance, and if the judge or court before whom such trial shall be had, or such judgment shall
4 be given, shall certify in the minutes Of - the court that there was reasonable cause for making the
5 person so acquitted, al defendan in such action, then such person shall not be entitled to recover
6 such costs; and no costs shall be recovered against him,
1 SEC. 8. If in any action founded upon a contract, the plaintiff fail to recover against one of sev-
Ib. in actions on
COntractS. - e ... . . . . . gº
2 eral defendants on the trial, or if judgment on a plea in abatement, or on demurrer, be rendered in
3 favor of one of several defendants; or iſ, by the plaintiff’s discontinuing as to such defendant, he
4 be acquitted; such defendant shall not be entitled to recover costs, unless a certificate be given by
5 the judge or court before whom the trial shall be had or the judgment shall be given, and be entered
6 in its minutes, that such defendant was unreasonably and unnecessarily made a party to such ac-
7 tion,
,”
I Sec. 9. Whenever, by the provisions of any statute, a plaintiff shall be entitled to recover dou-
Single costs on
recovery of dou-
** 2 ble or treble the damages assessed by a jury, if such damages so doubled or trebled, as the case may
3 be, entitled him to recover costs, he shall recover single costs only in such suit, except in cases oth-
4 erwise specially provided for by law.
1 SEc. 10. In the following actions, if judgment be rendered for the defendant upon verdict, demur-
* 2 rer, non-suit, non-pros, discontinuance of the plaintiff or otherwise, in any action, certiorari, writ of
R re- - - - <
ed .
lo e 4. tº
in 3 error or other proceeding, such defendant shall recover the amount of his taxed costs, and one half
4 thereof in addition :
Af
5 1. In actions against public officers appointed under the authority of this state, or elected by the
Chap. 149.) ( 897 ) [TITLE 29.
6 people; or against any person specially appointed according to law, to execute the duties of such pub-
7 lic officer; for or concerning any act done by such officer or person, by virtue of his office, or for or
8 concerning the omission, by such officer or person, to do any. act, which it was his official duty to
9 perform :
10 2. In actions against any other person, for doing any act by the commandment of such officers or
11 persons, or in their aid or assistance, touching the duties of such office or appointment:
12 3. In actions against any person, for making any sale, or doing any other act by authority of any
13 statute of this state.
1 SEc. 11. When double or treble costs shall be awarded to any defendant, the same shall be deem- To whom d
(10 ºl-
ble costs belong.
ed to belong to such defendant, and the officers who may have rendered any services in such action,
2
3 to such defendans, and the witnessess and jurors in such action, shall be entitled to receive and re-
4 tain, only the single costs allowed by law for their services respectively.
Sec. 12. When there shall be several issues in any case, and a verdict shall be rendered for the
I
plaintiff on one or more of them, and for the defendant on another, if the plaintiff obtain judgment Sºº-
2
3
upon the whole record, costs shall be awarded as follows:
1. When the substantial cause of action was the same in each issue, the plaintiff shall recover costs
on those issues which were found for him, and shall not be liable to the defendant for the costs of
the issue which shall have been found for the defendant :
6
2. When there are two or more distinct causes of action in separate counts, the plaintiff shall re-
8
9 his favor.
1 Sec. 13. If judgment be recovered for the defendant upon the whole record, the costs of the issues
Judgment for-
defendant on
2 which may be found for the plaintiff, shall not be allowed to either party. . sºle record,
I Sec. 14. When judgmentshall be rendered in favor of a defendant, upon general demurrer to one
Chap. 149.] ( 898 ) - [TITLE 29.
2 or more counts in a declaration, and the plaintiff shall have judgment on other counts, on demurrer,
On general de-
murrer.
8 on Verdict or by default, the defendant shall be allowed his costs upon such judgment in his favor.
1 Sec. 15 When judgment shall be rendered for a defendant on a plea of misnomer, in abatement,
wf mis-
2 no costs shall be allowed to either party.
1 SEC. 16. If upon a writ of error, the judgment be reversed, the plaintiff in error shall recover costs
On reversal of
‘dgment. 2
unless in such judgment a new trial be ordered, in which case the costs on such reversal shall be in
3 the discretion of the court ; and if a judgment be reversed in part, and affirmed in part, costs shall
4 be awarded to either party in the discretion of the court.
1 SEC. 17. If upon such writ the judgment be affirmed, or the writ be discontinued or quashed, or
‘....”2 the plaintiff in error be non-suited, the defendant in error shall recover costs; and also damages for
"eB On affirm- -
\C0.
3 the delay and vexation, to be assessessed in the discretion of the court before whom the writ was re-
4 turnable.
1 Sec. 18. If the judgment so affirmed was rendered after verdict, the defendant in error may recov-
Double costs on 2 er twice the amount of his taxed bill of costs, in the discretion of the court.
affirmance.
1 SEc. 19. The court to which any writ of error may be returnable, or to which any appeal may be
Neglecti º & º
ºil, 2 made, may award costs against the party neglecting to file such writ, or the transcript of the record
"ror and ap-
3 intended to be removed thereby, or neglecting to file such appeal, and the pleadings and proceedings
4 appealed from, according to law, and the rules of the court ; and may also award costs against
5 either party, for any discontinuance or default.
... I SEc. 20. Upon appeals from probate courts to a circuit court, and from the court of chancery to
{l gC eal - -
º
and probate
&O Ulrts. 2 to the supreme court, costs shall be paid by the appellant or respondent, as shall be directed by the
3 court to which the appeal is made ; and upon confirming any sentence, determination or decree, or
4 upon the appeal being discontinued or quashed, the court may, in its discretion, award damages for
5 the delay and vexation caused by such appeal,
Chap. 149.] + ( 899 ) [Title 29.
-
1
l
Sec. 21. Whenever a cause shall be noticed for trial by the plaintiff, and such notice be counter-
Costs Oſ). COUMI)-
termanding no-
tice of trial.
manded, the defendant shall be entitled to all the costs actually and in good faith incurred by him,
previous to the service of such countermand.
SEC. 22. In all civil suits and proceedings by or in the name of the people of this State, instituted Liability of the
º - - people for costs.
by any officer duly authorized for that purpose, and not brought on the relation, or for the use of
any citizen, or upon any penal statute, the people shall be liable for costs in the same cases, and to
the same extent, as if such suit or proceeding was instituted by an individual.
Sec. 23. When a suit or proceeding shall be instituted in the name of the people of this State, on jºiable
Or COBtS.
the relation of any citizen, such relator shall be entitled to and liable for costs, in the same cases, and
to the same extent, as if such suit or proceeding had been instituted in his own name.
SEc. 24. In suits and proceedings upon writs of mandamus, the supreme court may, in its discre-
Costs on writs of
mandamus, &c.
tion, award or refuse costs to any party therein; and upon refusing an alternative or peremptory
mandamus, the court may award costs to be paid by the the party applying for such mandamus.
*
Sec. 25. In proceedings by attachment, to enforce or protect the civil rights or remedies of parties, C h
O8tS OTA attach-
Iſlent.
or for the non-payment of any sum of money, costs shall be awarded to be paid by the offending
party.
Sec. 26. When any action shall be brought in the name of another, by an assignee of any right
In suits brough t
in name of ans
of action, or by any person beneficially interested in the recovery in such action, such assignee or *
person shall be liable for costs in the same cases, and to the same extent, in which a plaintiff would
be liable, and the payment of such costs may be enforced by attachment in all cases where judg-
mentis not by law required to be rendered therefor against such assignee or person interested.
Sec. 27. When a suit shall be commenced in any court,
226
CHAP. 149.] - ( 900 ) [TITLE 29
2.
When security
may be required.
3
4
5
6
7.
8
9
Ib, after attit I
brought. -
Order for securi-
How security
given, 2
I
Bond to be filed.
2.
1
Exception to
surelies.
2
I
1. For or in the name of the trustees of any debtor : or,
2. For, or in the name of any person being insolvent, who shall have been discharged from his
debts pursuant to law, brought for the collection of any debt contracted before the assignment of
his estate : Or,
3. For or in the name of any person eommitted in execution for a crime : or,
4. In the name of any infant whose next friend has not given security for costs s
The defendant may require such plaintiff to file security for the payment of the costs that may be
incurred by the defendant in such suit.
Sec. 28. If after the commencement of a suit, ałł the plaintiffs shall become insolvent, and be dis-
charged as aforesaid, or be sentenced to imprisonment in the state prison for any term less than for
life, the defendant may also require such security to be filed.
Sec. 29. The order to file such security, and that all proceedings on the part of the plaintiff be
stayed, until such security be filed and the sureties shall justify if excepted to, may be made by the
court in which the action is pending, or by any judge thereof in vacation, upon due proof, by affida-
vit ofthe facts entitling the defendant thereto.
Sec. 30. Sueh security shall be given in the form of a bond, in a penalty of at least one hundred
dollars, with one or more sufficient sureties, to the defendant, conditioned to pay, on demand, all
costs that may be awarded to the defendant in such suit.
Sec. 31. Such bond shall be filed with a clerk of the court in which the action is pending and no-
tice thereof be given to the defendant or his attorney.
Sec. 32. Within twenty days after the service of such notice, the defendant may except to the suſ-
ficiency of the sureties, by giving notice of such exception to the plaintiff’s attorney.
Sec. 33. Within twenty days after such notice of exception, the sureties shall justify, by an affida-
Chap. 149.] ( 901 ) [TIEEE 29.
2, wit that they are worth double the penalty of such bond, over and above, all debts; of which affida-
3 vit a copy shall be served on the defendant or his attorney ; and such justification shall operate to
4.
3.
Justifying by Su-
reties. º
discharge the order to stay proceedings.
Taxation of Costs.
Sec. 34. Costs in the supreme court shall be taxed by one of the justices or a clerk thereof, or as, whom a
taxed in supreme
COUlrt.
supreme court commissioner; by any asssociate judge of a eircuit court, being an attorney and coun-
sellor at law; and by such other officers as the supreme court shall, by general or special order, des-
ignate for that purpose; and upon such notice to the opposite party, as shall be prescribed by the
general rules of the court.
SEc. 35. Costs in the several circuit courts may be taxed by any officer authorized to tax costs in
By whom taxed
& § & tº tº & * * ! &
the supreme court, and by the clerks of the said Circuit Courts respectively, and upon the like Ilo- in CrCUllt COUllſ
tice as shall be required in the Supreme Court.
SEc. 36. Upon the settlement of an execution by a defendant, or upon settling any suit or demand
ſe When fees to be
taxed.
the sheriff or attorney claiming any ſees which shall not have been taxed, shall, upon being required
by the defendant, and on his paying the expenses thereof, have his fees taxed by some proper offi-
cer authorized to tax costs in the court in which the suit may be pending ; sor from which the exe-
cution shall have been issued.
SEc. 37. No sheriff or attorney shall collect any fees, after having been required as aforesaid, to
Not to be collee-
ted until taxed.
have the same taxed, without such taxation having been made.
SEc. 38. The costs and expenses of foreclosing any mortgage by advertisement, shall be taxed by Taxing costs of
foreclosure of
º © º e & a º tº mortgage.
some officer authorized to tax costs in a circuit court, upon the requisition of any party liable to pay
the same, and upon such party paying the expense thereof.
SEc. 39. Every officer authorized to tax costs in any court of law, or in the court of chancery, or
CHAP. 150.] - ( 902 ) - [Title 29.
2 for services rendered in any proceeding authorized by law, shall examine the bills presented to him
Duties of taxing
officers.
3 for taxation, whether such taxation be opposed or not, and shall be satisfied that the items charged
4 in such bill are correct and legal ; and shall strike out all charges for services, which, in his judg-
5 ment, were not necessary to be performed.
cºllanº. 1 Sec. 40. When there shall be charges in a bill of costs for the attendance of any witness, or for
to be proved.
2 copies or exemplifications of documents or papers, or for any other disbursements, except to officers
3 for services rendered, such charges for witnesses shall not be taxed without an affidavit stating the
4 distance they respectively traveled, and the days they actually attended; and such charges for co-
5 pies shall not be taxed without an affidavit that such copies were actually and necesarily used, or
6 necessarily obtained for use; nor shall such disbursements be allowed without an affidavit specify-
7 ing the items thereof particularly, nor unless they appear to have been necessary and reasonable in
8 amount.
1 SEC. 41. If, upon the trial of any cause, the plaintiff's claim shall be reduced by set-off, or any
Evidence of
right to costs,&c.
in Certain ească.
2 other fact shall appear which will entitle either party to costs, or to double costs, the judge holding
3 the court shall, on the application of either party, either before or after verdict rendered, cause an
4 entry to be made in the minutes of the court, specifying that such fact appeared; and no evidence
5 shall be received by any taxing officer of such matter, other than a certified copy of such minutes,
6 or the certificate of the judge who tried the cause.
CHAPTER 150. *-
of THE FEEs of CERTAIN officers.
1 Section 1. For the services mentioned in this chapter, hereafter done or performed in the several courts
*** 2 in this state, by the officers thereof, or in any proceeding authorized by law,the fees hereinafter prescribed
fees.
1840, P. 182, &c.
3 shall be allowed.
Chap. 150.] - i ( 903 ) . [Tºrly 29.
Fees of Clerks.’
1 Sec. 2. The fees of the clerks of the supreme court, clerks of the circuit courts, and clerks of *
2 for any services herein specified, to be rendered by them respectively, shall be as follows: ree of aerº.
3 For sealing every writ, exemplification or certificate, when required, twelve cents:
4 Entering the return of every writ, and filing such writ, twelve cents:
5 Entering an appearance, retraxit, discontinuance, non-suit or default, twelve cents :
6 Entering every rule in term, founded on motion, twelve cents for each folio:
7 Entering every other rule, not exceeding two folios, i. cents for each folio, and for every additional folio
8 four cents :
9 For certified copies of rules, the same ſees as for entering such rules:
10 Every report upon an assessment of damages, or other matters referred to him, twenty-five CentS:
11 Every certificate, thirteen cents; but not to be allowed for certifying any paper to be a copy, for the copy.
12 ing o: which he shall be na :
13 Calling and swearing a jury, twenty-five cents:
14 Swearing each witness on trial, six cents; and swearing every constable to take charge of a jury, twelve
15 cents: - -
16 Entering every cause in a calendar for the court, and making a copy thereof for the bar, six cents:
17 Receiving and entering a verdict, twelve cents:
18 certified copy of the minutes of a trial, when requested, twenty-five cents:
19 pºems d judgment, twelve cents; and ſor every transcript of such docket, six cents:
20 Emering satisfaction of a judgment, twelve cents: -
21 Drawing a special jury in any cause, thirty-eight cents
22 Auenius in striking a special jury, cenſing the name. *. and delivering such certificate to each
23 party, fifty cents: -
24 Reading and filing a habeas corpus, certiorari, o writ of error, twelve cents:
25 For a * amon. ania. or execution, when issued by • clerk on request, and for sealing the same,
26 twenty-five cents: *
227
CHAP. 150.] - ( 904 ) [TITLE 29.
27 Filing a declaration or other pleading, an affidavit or other paper or proceeding, a judgment or other re-
28 cord, six cents; all papers annexed together, and filed at the same time, to be considered as one paper; and
29 no allowance to be made for reading any paper or proceeding in any case:
20 Copies and exemplifications of records and of pleadings, to be returned on certiorari or writ of error; co’
31 pies and exemplifications of all records, pleadings and proceedings, furnished on request, where no special
32 provision is otherwise made, eight cents for each folio:
33. Searching the records for files or his office, if a copy is not required, ten cents for the records or files of
34 each year, except for officers of the court:
35 Receiving and filing the papers of any insolvent, twelve cents in each case:
36 Copies of such papers, eight cents for each folio:
37 To every county clerk for attendance in canvassing the votes given at any election, one dollar for each
38 day, and five cents per mile for travel:
39 For drawing all necessary certificates of the result of such canvass, thirteen cents for each folio:
40 For recording such certificates, eight cents for each folio:
41 Notifying every person appointed or elected to an office, when required by law, twenty five cents :
42 For administering the oath of office to any officer, and certifying the same, twelve cents:
48 For determining and certifying the sufficiency of the sureties in any bond, required by law to be apyroved
44 by him, twenty five cents:
45 For all services required by law to be performed by such clerks respectively, and not specially provided
46 for by law, such ſees as the supreme court shall, by general rule or order prescribe, corresponding, as near
47 as may be, with the rates herein prescribed.
Attorney's fees in the Supreme Court.
1 SEC. 3. Upon judgment being recovered in the following cases, the ſollowing attorney's fees, and no.
Attorney8 fees in : • * {{{**
default &c 2 more, shall be taxed for the plaintiff º
3. I. If a confession of judgment be given before notice of trial, ten dollars:
4 2. On a judgment by default in debt, where no assessment is necessary, eight dollars:
CHAP. 150.] ( 905 ) [TITLs 20
5.
6
10
11
12
14
14
15
16
17
2
3. On a judgment by default, where the damages are assessed by the clerk, twelve dollars:
4. On such judgments where the damages are assessed by a jury, fourteen dollars.
SEc. 4. Attorneys’ ſees in other cases in the supreme court, shall be as follows:
For retaining fee, three dollars; but no such fee shall be allowed to the plaintiff’s attorney, in any suit up- Attorneys fees
in other cases in
Supreme court.
on a bond taken on the arrest of a defendant; nor to the defendant’s attorney upon confessing judgment,
when no suit shall have been actually brought:
For every original writ, or other necessary process issued by him, fifty cents:
For a declaration or suggestion, and copies thereof, two dollars:
For serving a declaration, when the suit is commenced by declaration, twenty-five cents:
For a plea, or plea and notice, or demurrer and copies thereof, one dollar:
For a circuit roll, after notice of trial given, one dollar and fifty cents:
For the trial of a cause before a jury, or before referees, arguing a demurrer, special verdict, bill of ex-
ceptions, demurrer to evidence, case, any special motion, or any matter brought up by writ of error, certi-
orari, habeas corpus, or a return to a mandamus or prohibition, or attending prepared for such trial or ar-
gument pursuant to notice from the adverse party, three dollars:
For a brief and the copies thereof, one dollar:
For attending an assessment of damages by a jury, or by the clerk, one dollar:
Drawing and copy of a judgment record, two dollars and fifty cents:
For all other services rendered by the attorney in any cause, in which a judgment shall be rendered after
an issue joined, five dollars.
Attorney's fees in Circuit Courts.
SEc. 5. The ſees of the Attorneys in the circuit courts shall be as follows:
Atto s ſess
in circuit cours.
1. In all cases brought into a circuit court by appeal from the judgment or determination of any court or
3 officer, and disposed of without trial by jury, five dollars : .
4.
In all such cases tried by jury, ten dollars:
Master's Fees in the Court of Chancery.
Masters in cham-
1 SEC. 6. For signing every summons for a party or witness to attend him, twelve cents :
2
For attendance at the time and place assigned for hearing, and adjourning the same on request, or upon
reasonable cause, fifty cents:
4 Attendance and hearing every argument upon any matter referred to him, one dollar and fifty cents:
5 Attendance and settling his report, one dollar :
6 Taking an account of what is due on every mortgage, and the security acompanying the same, if any, one
7 dollar :
8 Drawing every report in pursuance of an order of reference to him, thirteen cents for each folio:
9 Drawing all schedules to be annexed to his report, ten cents for each folio:
10 Copies of reports and schedules to be filed, six cents for each folio:
El Copies of reports and schedules and all other proceedings furnished by the master to the parties upon re.
12: quest; six cents for each folio:
13 Examing into the circumstances of sureties required in any case, and certifying his opinion to the chan-
14 cellor, fifty cents :
15 Appointing any person to appear as next friend for any infant, twenty-five cents:
16 Inspecting and examining an infant or infants who want guardians appointed ; inquiring who are willing
17 to become guardians, and into their competency; the proposed security, and the competency thereof; and
18 certifying the facts to the chancellor, two dollars; but when application is made by one petition in behalf
19 of several inſants, no additional charge to be made :
20 For taking the deposition of every witness, twenty cents for each folio:
21 Engrossing a fair copy for witness to sign, six cents ſor each ſolio:
22 Certifying each exhibit shown to a witness on his examination, twenty cents:
23 Attending court with the original depositions or exhibits, by its order, or on the request of either party, one
24 dollar for each day:
25 Drawing every advertisementor public notice of the sale of property to be sold by him, fifty cents; and
26 for every copy of such advertisement to be printed or posted up, twenty-five cents:
CHAP. 150.] ( 907 ) [TITLE 29.
“. .
27 Attending at the time and place appointed for the sale of property by him, and adjourning the sale at the
28 request of the parties, for good cause, or by order of the court, seventy-five cents;
29 Every deed of real estate sold by him under a decree or order, when prepared by him at the request of the
30 parties, two dollars and fifty CentS :
31 Signing and acknowledging a deed for property sold by him, when prepared by another person, fifty cents:
32 Settling the form of a deed to be executed under his directions by a third person, under a decree or order,
33 one dollar :
t
* Settling the form of an assignment of bonds, mortgages, or other securities to be made under a decree or
35 order, one dollar: *
36 Perusing a bill or petition for an injunction or nexeat, and allowing or refusing the writ, one dollar :
37 Superintending and certifying the payment of money when paid under his direction by a decree or order,
38 one dollar ; but no fee to be allowed for the payment of money arising from sales, or to a party in the Suit,
39 or into court :
40 Taking and rEducing to form in writing, every recognizance entered into before him, by order of the court
41 fifty cents:
42 Taxing every bill of costs, including the bill of the different officers of the court, and reporting the amount
43 taxed, fifty cents ;
44. When a master is authorized to advertise in newspaper property for sale, or for for parties to come be-
45 fore him to prove debts or exhibit claims, he shall be allowed for printer’s bills according to the legal rate of
46 advertising in such papers, what he shall actually pay ; and where moneys are ordered to be put out by a
47 master, and when an estate is sold by a master, under an order or decree, the master shall be allowed all
48 necessary disbursements actually paid by him, and such allowance by way of commissions as the court shall
49 judge reasonable aſter notice given to the party to be charged therewiſh, but not to exceed the sum of ten
50 dollars:
51 When a master shall take an account of an estate, or of an administration thereof, or an account between
52 parties in trade, or shall take any other account, under a decree or order, not included in the foregoing pro-
228
CHAP. 150.] ( 908 ) gº [TITLE 29
Commissioners
to take testimo-
my.
Registers in ch'y
5° visions; or when extra services shall be rendered by a master in taking or stating an account; the chancel-
54 lor may make a further allowance beyond the fees herein specified, as under the circumstances may be just
w
55 and reasonable, upon notice to the party to be charged therewith,
Fees of Commissioners.
1 SEC, 7. The persons to whom any commission shall be issued, to take testimony in any cause or matter
2 pending in the Court of Chancery, shall be entitled to receive the same fees as herein allowed to mas-
3 ters, and no other,
Fees of Registers in Chancery.
1 SEC. 8. For drawing any common order, order by consent, special order or decree, when requested,
2 twenty cents for each folio:
3 Entering any order, decree or proceeding in the minutes, ten cents for each folio:
4 Engrossing every decree to be signed by the chancellor, ten cents for each folio: -
5. Exemplifying, upon request, under. * the court, any paper or proceedings, six cents for each folio:
6 Examining and signing every final decree, and attending the chancellor with the same, and obtaining
7 his signature thereto, fifty cents:
8 Filing any paper six cents: and no additional charge shall be made for reading or marking any paper
9 filed by him: -
10 For reading and marking any paper not filed by him, six cents:
11, Certified copies of papers or proceedings, for every folio, six cents:
12"Every other certificate, fifteen cents: , but no certificate to be allowed that a paper is a copy, for the
13 copying of which he shall be paid:
14 Filing notes of the issue in each cause, and entering, the cause on the calendar for hearing, for the court
15 and the parties, fifteen cents:
16 Entering any attachment or other process awarded by the court, or any amercement, twelye cents:
17. Entering, by order of the court; every appearance on process for contempt, ten-cents:
CHAP. 150.] ( 909 ). [TITLE 29.
18
19
20
21
24
25
26
27
28
29
30
31
32
33
34.
35
36
37
38'.
39
40
41
42
43
*
Searching the minutes, files, dockets of decrees, or accounts of the court, for each year, six cents; but
no search to be allowed for, when the pleading, entry, or proceeding searched for, is to be engrossed
or filed, or copied at the request of a party, and paid for, or to perfect the proceedings of the court.
Entering the receipt of moneys deposited in court, putting the same in a bank when required by the court,
and entering the same in his bank book, and in his account with the court; fifty cents:
Purchasing stock, procuring a transfer thereoſ, and entering the same to the credit of the cause or of the
party, for a sum not exceeding two hundred dollars; one per cent, and for any excess, one quarter of
one rent
Making a transfer of stock by order of the court, one dollar:
Receiving the interest on stock, entering it to the credit of the cause or party, placing it in bank when
required by the court, and entering it in his bank book, one per cent:
Putting out money by order of the court, on mortgage or any security other than stock, and examining
into the validity of the security, for every sum not exceeding two hundred dollars, one per cent, and for
any excess, one quarter of one per cent;
Transferring a bond and mortgage, or security other than stock, and entering the same in his accounts,
one dollar to be paid by the party to whom the transfer is made:
Paying interest to a party and entering the same in his accounts, for any sum not exceeding two hun-
dred dollars, one half of one per cent, and for any excess, one quarter of one per cent, to be retained
out of the interest money:
For any other services relative to the receipt, safe keeping, putting out or taking any security, for
money, under the direction of the court, not herein provided for, such allowance and compensation, and
from such of the parties, as the chancellor may consider just and shall direct, by an order for that pur-
pose, after notice to the party to be charged therewith:
For sealing every writ, twelve cents:
Drawing every writ or process, when required, - fifty can
Entering the appearance of every, defendant, six cents:
44 For issuing a commission to take testimony, fifty cents:
CHAP. 150.] º # •( 910 ) Tair 29.
Solicitors.
• Entering every rule to produce witnesses, or to show cause against publication, twenty cents:
46 Receiving and marking every book, deed or paper carried to his office, by order of the court, or agree-
47 ment of the parties, for inspection or safe keeping, thirteen cents:
48 Receiving and entering the return of any commission, thirteen cents : # - *
49 For every notice given to the solicitor of • nº. of the return of a commissioner to take an answer, or
50 to take testimony, twenty-five cents:
51 For docketing every decree on request, twenty-five cents:
52 Attending court with the pleadings and papers, or any of them, in any cause, by direction of the court, or
53 on the request of a party, twenty-five cents:
54 For filing acknowledgment of satisfaction of any decree, and entering the same in the docket thereof,
55 twelve cents.
Fees of Solicitors.
1 SEc. 9. For a retaining fee three dollars :
2 For drawing a bill, petition or answer and engrossment thereof to file, five dollars :
3 For a copy of a bill, petition or answer for the adverse party, two dollars and fifty cents:
4 For drawing a plea, demurrer or replication, and engrossment thereof to file, one dollar and twen-
5 ty-five cents:
6 For a copy of a plea, motion or replication, for the adverse party, seventy-five cents :
7 Arguing every special demurrer, two dollars:
8 Attending pursuant to notice, to argue a special motion, which shall not have been argued, one
9 dollar :
10 Arguing, or appearing to argue before a master, pursuant to notice, upon exceptions or other mat-
11 ters referred, two dollars:
12 Arguing every demurrer, plea or exception, in court, five dollars :
13 Arguing every cause in court, exparte, on bills taken as confessed, two dollars:
14 Arguing every other cause upon the merits, eight dollars :
Chap. 150. ( 911 ) [TITLE 29.
15 Serving every rule, order or copy of interrogatories, twenty-five cents:
16 Serving a subpoena to appear and answer, or an injunction, fifty-cents:
17 Every necessary notice or summons actually served, including a copy thereof, and service, twenty-
18 five cents:
18 For actually abbreviating the pleadings, deposition and exhibits in a cause, three cents for each
19 folio contained in the writing abbreviated ; but not to exceed two dollars in any case :
20 Drawing and copying brief on any special motion or petition, of which notice shall have been
21 given, one dollar:
•
22 Drawing and copying brief upon the hearing of a cause before the court, when there has been an
23 answer, plea or demurrer to the bill, or before a master, on a reference to take and state an ac-
24 count, two dollars :
25 Attending a master upon any matter referred to him, not herein otherwise provided for, one dol-
26 lar if the same be argued; and if not argued, fifty-cents :
27 Attending before a master or commissioner, on the examination of witnesses, one dollar for each
28 day :
29 Drawing every decree, one dollar :
30 Drawing and copy of a bill of costs, and delivering copy thereof with notice of taxation, if be-
31 fore a decree, fifty-cents; if after a decree, seventy-five cents:
32 Upon an appeal from the court of chancery to the supreme court, ten dollars.
Fees of flssociate Judges of Circuit Courts, Supreme Court Commissioners, and other officers and per-
sons authorized to perform the services herein enumerated.
1 Sec. 10. For taking bail, thirty-eight cents:
- * e & * º 2 ſº * wº & - Fees of officers
2 Deciding upon an application for a writ of habeas corpus or certiorari, thirty-eight cents, whethe
r authorized to .
perform certain
duties.
3 such writ be allowed or not :
229
CHAP. 150.] ( 912 ) [TITLE 29.
4.
5
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Every attendance upon the hearing of any motion for any order which such officer is authorized to grant,
fifty cents; and the like fee for attendanee upon any motion for any official act to be done by such officer,
when no ſee is specially provided for such act:
Admitting any person to prosecute as the next friend, or to defend as guardian of an infant, twenty-five
Cents:
Every order for a commission to examine witnesses, twenty-five cents:
Attending, settling and certifying interrogatories to be annexed to a commission, fifty cents:
Every order for the examination of a witness, conditionally, or upon any proceedings to perpetuate his tes-
timony, twenty-five cents: *
Every day’s attendance on the examination of such witness, one dollar and fifty CentS:
Every necessary order in the progress of a cause, except orders to stay proceedings, twenty-five cents:
Signing a judgment, twelve cents:
Taxing a bill of costs, twenty-five cents:
Taking the acknowledgment of satisfactian of a judgment or decree, twenty-five cents:
Taking a bond or recognizance, when the same is required or authorized by law, twenty-five cents:
For deciding on the sufficiency of sureties, and certifying such sufficiency in cases where it shall appea"
twenty-five cents:
For every precept for a jury, summoned for a witness, or attachment against a witness, twenty-five cents:
For presiding at and conducting any trial by a jury, swearing such jury, receiving and entering the verdict,
or discharging them; or trying any issue in special proceedings without a jury, two dollars; but not to ex-
2.
tend to any trial or inquest in any action at law:
Receiving and filing the petition and accompanying papers of an insolvent debtor, fifty cents:
For every order, warrant, certificate, or appointment of assignees in such proceeding, twenty-five cents:
. For deciding on the propriety of directing an assignment of the estate of any insolvent debtor, one dollar:
Signing the discharge of any nºwn debtor, seventy-five CentS:.
For attending to the selection of referees, and certifying their appointment, fifty cents:
CHAP. I50.] ( 913 ) - [TITLE 29
29 For every order, warrant or attachment, made or issued in any special proceeding authorized by law, twen-
30 ty-five cents .#
31 For every nois. to any party, officer or person, required to be given by any such officer, twenty cents :
32 For every report, and all other papers and proceedings which he may be required by w to prepare, in
33 order to be signed by himself, in cases where no specific allowance shall have been made for such paper or
34 proceeding, for drafting the same ten cents for each folio, and for copying, six cents for each folio:
35 Heating and deciding on the return of a writ of habeas corpus, one dollar :
36 For administering an oath, in cases where no fee is specially provided for by law, and certifying the same
37 when required, twelve cents:
38 For taking and certifying the acknowledgment or proof of any conveyance or mortgage of real estate, or
39 any other instrument which by law may be recorded, twenty-five cents for each person making such ac-
40 knowledgment, or whose execution of such conveyance, mortgage or instrument shall be proved:
41 Taking a surrender of principal in any cause, twenty-five cents;
42 For a commitment of such principal, twenty-five cents:
43 Allowing a writ of habeas corpus or certiorari, twenty-five cents:
44 A warrant of restitution, or to put any party in possession of lands, fifty cents:
45 For marrying and making certificates and return thereof, one dollar and fifty cents:
Fees of Judges of Probate.
1 SEC. 11. For granting letters of administration, when not contested, seventy-five cents, and when contest-
; udges of pro-
At 6.
2 ed or opposed, one dollar and fifty cents.
3 Hearing any complaint, or an application for the appointment of a guardian, fifty cents:
4 Appointing a guardian fifty cents; and when one guardian shall be appointed for more than one person at
5 the same time, twenty-five cents for º person after the first, for whom such guardianshall be appointed:
6 Decree for probate of a will, when not contested, seventy-five cents; when contested, one-dollar and fifty sº
7 cents:
8 Decree for settling an estate, fifty CentS: .
CHAP. 150.] ( 914 )
[TITLE 29
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
Partition of real estate, one dollar and fifty cents:
Order for distribution, fifty cents:
Examining and allowing an inventory, thirteen cents for each folio:
Administering an oath to an executor or other person, and certifying the same when necessary, twelve
cents:
Examining and allowing accounts of executors, administrators or other persons, for the first folio, fifty
cents, and for each additional folio, ten cents:
For each citation, summons or other process, wntº CentS:
Warrant to appraise or divide an estate, fifty ºne.
Issuing a commission to examine and allow claims against an estate, thirty-eight cents:
Approving and filing a bond given on an appeal, twenty-five cents:
Approving securities of executors or others, twenty-five cents:
Each order to divide an estate among heirs, or to set off dower, twenty-five cents:
Order for allowance to a widow or to children under seven years of age, twenty-five cents:
Appointment of agent on partition of real estate, twenty-five cents:
º
Order for sale of personal estate, or for publication of any notice, or any other ordinary order in proceed-
ings before him, where no other provision is expressly made, twenty-five cents:
Each order for sale of real estate to pay debts of an estate, fifty-cents:
Extending time for settling estate, or for examining and allowing claims against an estate, twenty-five
CentS.
Granting reference of accounts of executors or administrators, or allowing report thereon, fifty cents:
Disallowing application for letters of administration or probate of a will, to be paid by the party applying,
fifty cents:
For a bond of executors, administrators or guardians, on an appeal, twenty-five cents:
For a warrant to set off dower, fifty cents:
Ordering and drawing a quietus, fifty cents:
Proportioning an insolvent estate among the creditors, seventy-five cents:
Chap. 150.] ( 915 ) [TITLE 29,
36 Entering and filing a caveat, twelve cents:
37 Entering the account of an executor, administrator or guardian, ten cents for each folio:
38 Entering each oath of an executor or administrator, six cents:
39 Searching the records or files in his office, for each year, six cents:
40 Recording wills and the proof thereof, letters of administration, of guardianship, and every other matter re-
41 quired to be recorded, for each folio, ten cents; and where any will or other matter is in any other than the
4
2
English language, eighteen cents for each folio:
43 For a translation of any will from any other than the English language, fifteen cents for each folio:
44 Copies and exemplifications of the probate of a will, or of letters testamentary or of administration, or of
\
g
45 any other proceeding or order had or made before him, or of any other papers filed or recorded in his office,
4
6
transmitted on appeal, or furnished on request to any person, eight cents for each folio:
47 For all servlces required by law to be performed by judges of probate, for which a compensation is not
48 herein provided, such fees as shall, ſrom time to time, be established by the chanceller, by general rules,
49 corresponding, as near as may be, with the rates herein specified.
Fees of Eaſecutors and Administrators.
1
SEc. 12. For actual services, and in lieu of all other fees, one dollar per day, and fifty cents for each half
e e E d
day, and their actual and necessary disbursements for the benefit of the estate; but the probate court may ãº.
2
3
allow executors and administrators, in cases of unusual difficulty, or responsibility, such further sum as the
4
judge may deem reasonable;
Fees of Witnesses.
I SEc. 13. For attending in any suit or proceeding pending in a court of record, seventy-five cents for each
*
2 day:
Witnesses,
3
For attending in any justice's court, or before any officer, person or board, arthorized to take the examina-
4 tion of witnesses, fifty cents for each day, and twenty-five cents for each half day:
5 For traveling, at the rate of six cents per mile in coming to the place of attendance; to be estimated from
230 °
CHAP. 150.] ( 916 ) [TITLE 29.
Sheriffs.
6 the residence of such witness if within this state, or from the boundary line of this state which such wit.
7 ness passed in coming, if his residence be out of the state. But this section shall not be so construed as
8 to allow any fees to witnesses on behalf of the people in criminal prosecutions, or in suits for the recovery
*
9 of fines, penalties or forfeitures:
10 The secretary of state, auditor general, state treasurer, attorney general, commissioner of the land office
11 any clerk, register of deeds, county surveyor or judge of probate, attending on a subpoena requiring the
15 same with bills, records, or other written evidence, shall be entitled to one dollar per day, and for traveling,
13 at the rate of six cents per mile in coming and returning from the residence of such witness.
Fees of Sheriffs in evecuting process issued out of the Courts of Law, and out of the Court of Chancery, and by
Judicial and other officers, and for other services.
1 SEc. 14. For serving a summons, writ of replevin, or any other process by which a suit shall be com-
2 menced in a court of law or a subpoena to appear and answer, in a court of chancery, fifty cents when ser-
3 vice is made on one defendant only, and for the service on each additional defendant, twenty-five cents:
*
4. For traveling in making such service, five cents per mile for going only, to be computed in all cases from
5 the court house of the county in which the service is made, or from the place where the court has usually
6 been held therein:
7 For taking abond of a plaintiff in replevin, or taking a bond on the arrest of a defendant, or in any other
8 case, where he is authorized to take the same, thirty-eight cents:
9 For a certified copy of such bond when requested, twenty-five cents:
10 For a note of every capias delivered to a defendant on request, six cents:
11 For a copy of every summons, scire facias, or declaration served by him, when made by the sheriff; six
12 cents for each folio:
13 For a copy of every other writ, when demanded or required by law, thirteen cents;
14 For serving an attachment for the payment of money, or an execution for the payment of money, or a
15 warrant issued for the same purpose and delivered to him, by the county treasurer or any supervisor, for
16 collecting the sum of two hundred and fifty dollars or less, two and a half per cent, and for any sum more
17 than two hundred and fifty dollars, one and one quarter of one per cent;
CHAP. 150.] ( 917 ) - [TITLE 29.
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
Advertising goods or chattels, lands or tenements, for sale, on any execution, if a sale be made, one dollar;
and if the execution be stayed or settled, after * and before sale, fifty cents:
The fees allowed by law and paid to any printer by such sheriff, for publishing an advertisement of the sale
of real estate for not more than six weeks and for publishing the postponement of any such sale, the expense
shall be paid hy the party requiring the same:
The fees herein allowed for the service of an execution, and for advertising thereon, shall be collected by
virtue of such execution in the same manner as the sum therein directed to be levied:
But when there shall be several executions against the defendant, at the time of advertising his property,
in the hands of the same sheriff, there shall be but one advertising fee charged on the whole, and the sheriff
shall elect on which execution he will receive the same.
For every certificate on the sale of real estate, fifty cents; and for each copy thereof twenty-five cents;
which, together with the register's ſee for filing the same, shall be collected as other fees on execution:
For drawing and executing a deed, pursuant to a sale of real estate, one dollar, to be paid by the grantee in
such deed:
Serving a writ of possession or of restitution, putting any person entitled, into the possession of premises,
and removing the occupant,one dollar; and the same compensation for traveling as is herein allowed on oth-
er writs:
Taking a bond for the liberties of the jail, thirty-eight cents:
Summoning a jury upon a writ of inquiry, attending such jury, and making and returning the inquisition,
one dollar and fifty cents:
Summoning a special jury struck pursuant to an order of the court, and returning the panel, one dollar and
twenty-five cents:
Summoning a jury, pursuant to any precept or summons of any officer, in any special proceeding, seventy-
five cents; and for attending such jury, when required, fifty cents:
Bringing up a prisoner upon habeas corpus, to testify or answer in any court, one dollar; and for travel-
ing each mile from the jail, thirteen cents:
For attending any court with such prisoner, one dollar per day, besides actual necessary expenses:
CHAP. 150.] ( 918 ) [TITLE 29.
45,
46
47
48
49
50
51
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67.
68
69
70
71
Biaging up a prisoner upon a habeas corpus, with the cause of his area and detention, one dollar; and
for traveling, thirteen cents for each mile from the jail: ,
Attending before any officer with a prisoner, for the purpose of having him surrendered in exoneration of
his bail; or attending to receive a prisoner so surrendered, who was not committed at the time, and receiving
such prisoner into his custody, in either case one dollar:
Attending a view when ordered by the court, one dollar and twenty-five cents per day, including the time .
* in going and returning:
Serving an attachment upon any ship, boat or vessel, in proceedings to enforce any lien thereon, created by
law, fifty cents, with such additional compensation for his trouble and expenses in taking possession of and
preserving the same, as the officer issuing the warrant shall certify to be reasonable.
For making and returning an inventory and appraisal of property attached in any case, one dollar per day
each to the appraisers, for each day actually employed, and fifty cents for each half day; and for drafting
the inventory, twenty-five cents for each folio; and for copying the same, six * for each folio:
For selling any ship, boat or vessel, or the tackle, apparel and furniture thereof so attached, and for ad-
vertising such sale, the same fees as for sales on execution:
For giving notice of any general or special election, to the inspectors of the different townships and wards
of his county, fifty cents for each township or ward, and the expenses of publishing such notice as re-
quired by law, such fees and expenses to be paid by the county, as other contingent expenses thereof :
For any services which my be rendered by a constable, the same fees as ar allowed by law for such
Services to a constable:
For attending the Supreme Court or Court of Chancery, one dollar and fifty em. for each day, to be al-
lowed by the auditor general, on the certificate of the clerk or register, and paid out of the state trea-
Sury.
For attending a circuit or district court, one dollar and fifty cents for each day, to be allowed and paid by
the county, in the same manner as other contingent charges of the county:
For summoning grand or petit jurors to attend the supreme court or any circuit or district court, thirty-
eight cents-for each juror summoned:
CHAP. 150.] ( 919 ) ITITLE 29
72 Serving a subpoena for witnesses, thirteen cents for each witness summoned, and ten cents for each mile
73 actually travelled in going only; but when two or more witnesses live in the same direction, travelling
74 fees shall be charged only from the farthest:
75 Keeping and providing for a debtor in jail, in all cases where the debtor is unable to support himself inity
76 cents for each day:
77 For mileage on every execution, five cents per mile for going only, to be computed from the court house
is of his county:
79 For selling lands on the foreclosure of a mortgage by advertisement, and executing a deed to the purchaser,
80 and for all services required on such sale, three dollars:
Fees of Coroners.
1 SEc. 15. For all services rendered by them, the same fees as are herein allowed to sheriffs for similar services:
Coroners.
2 For confining asheriff in any house, on civil process, fiſty cents for each day, to be paid by such sheriff
3
before he shall be entitled to be discharged from such confinement, unless otherwise ordered by the court :
4 For the view of a dead body, and for taking and returning an inquisition thereon, three dollars:
5 For travelling to the place of such view, six cents for each mile:
6 For every subpeona, warrant or venire for a jury, twenty-five cents:
7 swearing each witness, ten cents; but the charges for swearing witnesses in any one case, shall not ex
8
ceed fifty cents:
9 For taking a recognizance, twenty-five cents:
10 All the ſees herein allowed to coropers, except for such services authorized to be performed as sheriff as
11 are not chargeable to the county, shall be allowed and paid by the proper county.
Fees of Constables in Civil Cases.
1 SEC. 16. For serving a warrant or summons, twenty-five cents:
2 For a copy of every summons delivered on request, or left at the dwelling of the defendant in his absence,”
3 ten cents :
231
CHAP. 150.] - - ( 920 ) [TITLE 29.
Notaries public.
4
For serving an attachment, fifty cents; and for a copy thereof, and of the inventory of the property
5 seized, fifty cents :
6
10
11
12
13
For serving a subpoena, twelve cents for service upon each witness summoned by him.
For serving an execution on the body, or goods and chattels of the defendant, twenty-five cents:
Committing 8. dºnian to prison on execution, twenty-five cents:
For waits in the service of process, six cents for each mile, from the place of service to the place of
return: -
Summoning a jury, fifty cents:
Attending upon a jury, twenty-five cents:
For collecting and paying over money on executions, four per cent on all sums not exceeding two hundred
14 dollars, and for all sums over that amount, two per cent:
15
Advertising the sale of property, thirty-eight cents:
16 Selling property, thirty-eight cents:
17
18
10
For attending a circuit or ditsrict court at the request of the sheriff, one dollar for each day to be paid out
*
of the county treasury.
Fees of Notaries Public.
SEC. 17. For drawing and copy of protest of the non-payment of a promissory note or bill of exchange,
or of the non-acceptance of such bill, fifty cents, in the cases, where by law, such protest is necessary, but
in no other case :
For drawing and copy of every other protest, twenty-five cents:
For drawing, copy, and serving every notice of non-payment of a note, or non-acceptance of a bill, twen-
ty-five cents:
Fur drawing any affidavit, or other paper or proceeding, for which provision is not herein made, twenty
cents for each folio, and for copying the same, six cents for each folio:
For taking the acknowled gment of deeds, and for other services authorized by law, the same fees as are
allowed to other officers for similar services.
CHAP. 150.] ( 921 ) [TITLE 29.
Fees of Justices of the Peace in civil cases.
1 SEC. 18. For a summons, warrant, or venire, thirteen cents:
2 Issuing a writ of attachment, twenty-five cents:
3 For a subpoena, thirteen cents:
4 Swearing a jury, twelve cents:
5 Swearing al the witnesses in a cause, eighteen cents:
6 Entering every final judgment, twenty-five cents:
7 Issuing execution, twenty-five cents:
8 Every continuance or adjournment, at the request of a party, thirteen cents;
9 Taking bail, recognizance, or other security, thirteen cents;
10 For making and filing a return upon an appeal, one dollar;
- e * $ o
11 Taking depositions, examinations or confessions, thirteen cents for each folio ;
12 Entering a discontinuance or satisfaction, seven cents;
13 Entering every assignment of a judgment, thirteen cents;
14 Entering an amicable suit, thirteen cents;
15 Appointing appraisers of estates of deceased persons, twelve cents in each case.
Fees of Registers of Deeds'
1 Sec. 19. For entering and recording any deed or other instrument, eleven cents for each folio, to be paid
Justices of the
ar peace.
2 when the same is leſt for record:
3 For copies of any records, or papers, when required, seven cents for each folio:
4 Seal to exemplification, twenty-five cents:
5 For recording any deed or other paper, in any other than the English language, twenty cents for each
6 folio:
7 For every entry of a discharge of a mortgage in the margin of the record, ten cents:
8 Searching the records and files in his office, six cents for each year for which searches shall be made:
9 For filing every notice of the pendency of a suit in chancery, and entering the same, six cents: .
Chap. 150.] ( 922 ) - [Title 29
10 For filing every other paper, and making an entry thereoſ, when necessary, six cents:
11 Searching for every ** on request, three cents for each paper examined: . *
Fees of Appraisers, Commissioners and others.
Registers of 1 SEc. 20. All appraisers of estates of deceased persons, appraisers of property taken on any writ of at-
deeds. ----
2 tachment or replevin, persons appointed under any legal process, or order for assigning dower, or making
3 partition of real estate, sheriffs' aids in criminal cases, and all other private persons performing any other
4 like service required by law, or in the execution of legal process, where no express provision is made for
5 compensation therefor, shall be entitled to one dollar for each day, and fifty cents for each half day, for
6 their services, and four cents a mile for travel in going and returning,
Fees of Jurors.
1 SEC, 21. Each grand and petit juror, except talismen, shall be entitled to one dollar for each day's atten:
Apprºisers, &c. - -
2 dance upon any court of record, and six cents for each mile traveled in going and returning by the most
3 usual route, to be paid out of the treasury of the county, by the treasurer thereof, on the certificate of the
&
4 clerk of the court:
5. Each talesman ammoned and acting as a juror in a court of record, shall be entitled to twenty-five CentS
6 for his services in each cause, to be paid in the same manner herein provided for the payment of grand
7 jurors: * & \
8 Each juror sworn in any action in a justice’s court, or before any officer in any special procecding allow-
9 ed by law, or before any sheriff upon any writ of inquiry, shall be entitled to twenty-five cents, to be paid
10 in the first instance by the party requiring such jury:
11 In each cause in which a jury shall be empanneled in any circuit court, the plaintiff shall pay to the clerk
12 thereof for the use of the county, the sum of three dollars, immediately after the swearing of such jury
13 which shall be immediately paid by the clerk to the county treasurer.
Crier’s Fees.
1 SEC. 22. For each day’s attendance on the supreme court and court of chancery, one dollar, to be allow-
Criers.
2 ed by the auditor general, on the certificate of the clerk or register, and paid out of the state treasury.
\
Chap. 150.] - ( 923 ) [TITLE 29.
Fees in the office of the Seeretary of State.
1 SEC. 23. For a copy of any act or resolution of the legislature, or of any other record, proceedings or par secretary of
- - state.
2 pers kept in the office of the Secretary of State, furnished to any private person, on request, twelve cents
3 for each folio:
4 For a certificate and seal thereto, twenty-five cents.
Fees for Publishing in Newspapers, Legal Notices and Advertisements.
: Printers for pub-
1 Sec. 24. For publishing notices of any application of an insolvent for six weeks, and ſurnishing the evi-ſº
- notices.
2 dence of such publication, one dollar and sixty-seven cents; if published ten weeks, two dollars.
I Sec. 25. Such notice may be published in the following manner:
- Form of notice.
2 1. A general heading, stating whether such notices are for the purpose of being discharged from
*
3 debt, or for the purpose of having the person exonerated from imprisonment, shall be prefixed to
4 each class of applicants; next the name of the applicant ; next, the date of the first publication of
5 such notice; next, the name of the officer before whom the creditors are required to appear ; next,
6 the place appointed for such appearance; next, the time for such appearance. And every such ap-
7 plication shall be deemed as valid as if such notice had been published at length.
For publishing
other notices, &c. 5
1 SEC. 26. For publishing any other notice, or any order, citation, summons, or any other proceed-
2 ing or advertisement, required by law to be published in any newspaper, not more than forty cents
3 per folio for the first insertion, and twenty cents per folio for each insertion after the first.
1 SEC. 27. If all the printers and proprietors of newspapers in any county in which any notice, order, When notiee
ouees,
&c., to be pub-
& a . e. - - lished in State
2 citation, or other proceeding or advertisement, is by law required to be published, shall refuse to in-P"P*
3 sert the same for the price herein specified, then it shall be lawful to publish the same in the state
4 paper, instead of a newspaper printed in such county; and the publisher of the state paper shall not
5 demand or receive any greater price for the publication thereof than that above prescribed.
1 SEC. 28. In all cases in which notices, advertisements or proceedings, shall be published in the state
232
CHAP: 150.] ( 94 ) [Title 29.
2 paper, in consequence of the réftisal of the printers or proprietors of newspapers in any county as
Special affidavit. - -
*
3 aforesaid, and in which an affidavit of such publication is required by law; there shall also be an affi-
4 davit of application having been made to all the printers or proprietors of newspapersprinted in such
5 county, of the price herein specified having been tendered to them for publishing such notice, order,
6 citation, advertisement or proceeding, and of their having refused ; which affidavit, together with
7 proof of such publication in the state paper, shall be deemed evidence of a compliance with any law
8 requiring such notice, order, citation, advertisement or proceeding to be published in any particular
9 county.
Nº interala 1 Sec. 29. When notice of any sale by virtue of a mortgage, shall be published in the state paper,
2 pursuant to the foregoing provisions, a copy of such notice shall be served at least four weeks before
3 the time of such sale, on the person in possession of the mortgaged premises, in all cases where the
4 same are occupied ; and where they are not occupied, and the mortgagor, his heirs or personal re-
5 presentatives, shall reside in the county where such premises lie, then upon such mortgagor, his
6 heirs or personal representatives, as the case may be. Proof of the service of such notice may be
7 made, certified and recorded in the same manner, and with the like effect, as proof of the publica-
8 cation of a notice of sale under a mortgage.
General Provisions.
** * Sec. 30. The allowance of any fees by this chapter, shall not apply to any case where special pro-
2 vision is otherwise made by law for any particular service, but the fees for such service shall be
3 such as are provided in the statute requiring the service, or providing the compensation therefor.
1 Sec. 31. The secretary of state, auditor general, treasurer, attorney general and commissioner of
certain searches'
&c. to be gratui- - e e
{OUlº, 2 the land office, respectively, shall be authorized to require searches in the respective offices of each
3 other, and in the offices of the clerks of the supreme court, of the several circuit courts, of the reg-
4 isters in chancery or registers of deeds, for any papers, records or documents necessary to the dis-
5 charge of the duties of their respective offices, and to require copies thereof, and extracts therefrom,
6 without the payment of any fee or charge whatever.
CHAP. 150.] * * * * ( 925 ) [TITLE 29.
1 Sec. 32. The term “folio,” where used as a measure for computing fees or compensation, shall be **
- “Folis” defined,
3 portion of a folio, when in the whole draft or paper there shall'not be a complete folio, and when
4 there shall be any excess over the last folio, shall be computed as a folio.
1 Sec. 33. No judge, justice, sheriff or other officer whatsoever, or other person to whom any fees or Extortion prohi-
bited.
2 compensation shall be allowed by law for any service, shall take or receive any other or greater fee
3 or reward for such service, but such as is or shall be allowed by the laws of this state.
I Sec. 36. No fee or compensation allowed by law, shall be demanded or received by any officer or Wººnot
2 person for any service, unless such service was actually rendered by him, except in the case of
tº te & & e - 844, p. 44.
3 prospective costs hereinafter specified ; but this section shall not prevent any officer from demand- * * *
4 ing any fee herein allowed for any service of which he is entitled by law to require the payment,
5 previous to rendering such service.
1 SEc. 35. A violation of either of the two last sections shall be deemed a misdemeanor ; and the
Penalty.
1844, p. 44.
2 person guilty thereof shall be liable to the party aggrieved, for treble the damages sustained by him.
I Sec. 36. No fee shall be taxed for services as having been rendered by any attorney, solicitor, Charges for ser-
. vices not actual-
ly rendered.
2 clerk, sheriff or other officer, in the progress of a cause, unless such service was actually rendered,
3 except when otherwise expressly provided.
1 SEC. 37. Prospective costs may be charged and taxed, for filing and docketing a judgment roll or
Prospective
CO8ts,
2 decree, and for one execution thereon.
1 SEC. 38. Whenever any allowance is made for drafting any process, pleading or proceeding, it
One draft only.
2 shall be made for only one draft of the same, although several may have been issued and used.
1 SEC. 89. No record, writ, return, pleading, instrument or other writing, copied into any proceed-
- & Writings copied
2 ing, entry, processor suggestion, shall be computed as any part of the draft of such proceeding, en-""
3 try, process or suggestion.
Chap. 150.] ( 926 ) [TITLE 29.
1
Fees for certified
copies. -
2
3
Witness fees. 1
Officer receiving I
fees to give re-
ceipt.
2
3
Administering
oath of office.
2
I
, Certain officers
to report amount
of fees, &c.
2
1
Penalty for ne-
glect.
2
3
Secretary of I
state to report
absrack to legis-
lature.
2
SEc. 40. The legal fees paid for certified copies of the depositions of witnesses, filed in any clerk's
office, and of any documents or papers recorded or filed in any public office, necessarily used on the
trial of a cause, or on the assessment of damages, shall be allowed in the taxation of costs.
SEC. 41. No attorney, solicitor or counsel in any cause, shall be allowed any fee for attending as
a witness in such cause.
SEC. 42. Every officer, upon receiving any fees for any official duty or service, shall, if required by
the person paying the same, make out in writing, and deliver to such person, a particular account of
such fees, specifying for what they respectively accrued, and shall receipt the same ; and if he re-
fuse or neglect to do so, he shall be liable to the party paying the same, for three times the amount
so paid.
SEC. 43. No fee shall be charged by any officer, for administering the oath of office to any mem-
ber of the legislature, to any military officer, or to any township officer, and no more than twelve
cents shall be charged for administering such oath to any other officer.
SEC. 44. Each county clerk, register of deeds, judge of probate, clerk of the supreme court, and
register in chancery, shall, on or before the fifteenth day of November in each year, make and trans-
mit to the secretry of state, a report, setting forth the full amount of all the fees and charges which
have accrued to him for official services of every description during the year ending on the last day
of October then next preceding.
SEC. 45. Every clerk, judge of probate, or register, who shall neglect to make such report, as re-
quired in the preceding section, shall forfeit the sum of one hundred dollars for each and every such
neglect.
SEc. 46. The secretary of state shall report to the legislature, at the commencement of each an-
nual session thereof, an abstract of all such reports received by him during the year then next pre-
ceding.
CHAP. 151.]
( 927 ) - ITITLE,80.
TITLE XXX.
OF CRIMES AND THE PUNISHMENT THEREOF.
CHAPTER 151.-Of the rights of persons who are accused of crimes and offences.
{ %
& 6
152.-Of offences against the sovereignty of the State.
153.−Of offences against the lives and persons of individuals.
154.—Of offences against property.
155.—Of forgery and counterfeiting.
156.—Of offences against public justice:
157.-Of offences against the public peace.
158.-Of offences against chastity, morality, and decency.
159.-Of offences against the public health.
160.—Of offences against the public policy.
161,–General provisions concerning crimes and punishments.
CHAPTER (51.
OF THE RIGHTS OF PERSONS WHO ARE ACCUSED OF CRIMES AND OFFENCES.
1
SECTION 1. On the trial of every indictment, or other criminal accusation, the party accused shall be al-
Party accused
may have coun-
Sel, &c.
2 lowed to be heard by counsel, and he may defend himself, and he shall have a right to produce witnessess
Const., art. 1,
3 and proofs in his favor, and to meet the witnesses who are produced against him face to face. Sec. 10.
1 Sec. 2. No person indicted for an offence, shall be convicted thereof, unless by confession of his guilt in
2 open court, or by admitting the truth of the charge against him, by his plea or demurrer, or by the verdict
Person indicted,
how convicted.
3 of a jury, accepted and recorded by te heourt.
1 SEc. 3. No person shall be held to answer on a second indictment for any offence of which he has been
2
3
acquitted by the jury, upon the facts and merits on a former trial; but such acquittal may be pleaded or gi-
Former acquital,
when a bar, &c.
ven in evidence by him, in bar of any subsequent prosecution for the same offence, notwithstanding any
4 defect in the form or in the substance of the indictment on which he was acquitted.
1 Sec. 4. If any person who is indicted for an offence shall on his trial be acquitted on the ground of a va-
232
CHAP. 152.] ( 928 ) - [TITLE 30.
2 riance between the indictment and the proof, or upon any exception to the form, or to the substance of the
Former acquittal + -
when no de- - *
fence. 3 indictment, he may be arraigned again on a new indictment, and may be tried and convicted for the same
&
4 offence, notwithstanding such former acquittal.
;...” I Sec. 5. No person who is charged with any offence against the law shall be punished for such offence un-
legally convicted - • -
2 less he shall have been duly and legally convicted thereof, in a court having competent jurisdiction of the
&
3 cause and of the person.
CHAPTER 152.
of OFFICERS AGAINST THE SOVEREIGNTY OF THE STATE.
punishment for 1 SECTION 1. Every person who shall commit the crime of treason against this state, shall suffer the pun-
treaSOI).
Const", art 1,
sec. 16. 2 ishment of death for the same.
1 SEc. 2. If any person who shall have knowledge of the commission of the crime of treason against this
Mºon for
€880II,
2 state, shall conceal the same, and shall not, as soon as may be disclose and make known such treason to the
3 Governor thereof, or to the Chancellor or to some judge of a cour of record within this state, he shall be
4 adjudged guilty of the offence of misprisions of treason, and shall be punished by fine not exceeding Olle
5. thousand dollars, or by imprisonment in the state prison not more than five years, or in the county jail w
6 more than two years.
1: SEC, 3. No person shall be convicted of the crime of treason, unless on the testimony of two witnesses
ºlence requi- - -
re01.
.*.** 2 to the same overt act, or on confession in open court.
CHAP. 753.] . --, ( 929 ) TITLE 30.
ſ
|
i
4
state, and may be indicted, tried and convicted in the county where the death..shall happen.
CHAPTER 153.
OF OFFENCES AGAINST THE LIVES AND PERSONS OF INDIVIDUALS.
SECTION 1. All murder which shall be perpetrated by means of poisin or lying in wait, or any other kind of Murder of the
- .* * first degree.
wilful,deliberate,and premeditated killing, or which shall be committed in the perpetration or attempt to per-
petrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be pun-
ished by death.
SEC. 2. All other kinds of murder shall be deemed murder of the second degree, and shall be punished by *:::::::::: -
imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the
Söll'ſ) e.
SEC, 3. The jury before whom any person indicted for murder shall be tried, shall, if they find such person
- #.
guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but if such per-
son shall be convicted by confession, the court shall proceed by examination of witnesses to determine the
degree of the crime, and shall render judgment accordingly.
SEc. 4. Every person being an inhabitant or resident of this state, who shall, by previous appointment or
Fighting duel
out of state,
engagement made within the same, fight a duel without the jurisdiction of the state, and in so doing shall in-jºº,
this state.
flict a mortal wound upon any person, whereof the person so injured shall afterwards die within this state,
shall be deemed guilty of murder of the first degree within this state,and may be indicted, tried and convict-
ed in the county where such death shall happen.
Sec. 5. Every person being an inhabitant or resident of the state, who shall by previous appointment or seconds in such
C&SC,
engagement made within the same, be the second of either party in such duel as is mentioned in the pre-
ceding section, and shall be present as a second when such mortal wound is inflicted, whereof death shall
ensue within this state, shall be deemed to be an accessory before the fact to the crime of murder in this
CHAP. 153.] ( 930 ) ITITLE 30.
Plea of former ?
conviction or ac-
quilal.
Fighting duel,
ehallenging &c.
Accepting chal-
lenge, aiding, &c
Posting, &c.,
for not accepting
challenge, &c.
Punishment for
Haanslaughter.
I Sec. 6. Any person indicted under either of the two preceding sections, may plead a former conviction or
*
2 acquittal of the same offence, in the state or country where such mortal wound was inflicted, and such'plea
w
3 if admitted or established;shall be a bar to all further or other proceedings, against such person, ſor the same
4 offence within this state.
1 Sec. 7. Every person who shall engage in a duel with any deadly weapon, although no homicide ensue,
2 or who shall challenge another to fight such duel, or shall send or deliver any written or verbal message,
3 purporting or intended to be such challenge, although no duel ensue, shall be punished in the state prison
4 not more than ten years, or by a fine not exceeding one thousand dollars, and imprisonment in the county
5 jail not more than three years; and shall also be incapable of holding or of being elected or appointed to
6 any place of honor, profit or trust, under the constitution or laws of this state, for the term of ten years af-
7 ter such conviction.
SEC. 8. Every person who shall accept any such challenge, or who shall knowingly carry or deliver any
2 such challenge or message, whether a duel ensue or not, and every person who shall be present at the fight-
3 ing of a duel with deadly weapons, as an aid or second, or surgeon, or who shall advise, encourage or pro-
4 mote such duel, shall be punished by imprisonment in the county jail not more than one year, or by fine not
5 exceeding five hundred dollars, and shall also beincapacitated, as mentioned in the preceding section, for
6 the term of five years after such conviction. º
1 Sec. 9. If any person shall post another, or in writing or print, shall use any reproachful or contempt.
2 ious language, to or concerning another,for not fighting a duel, or for not sending or accepting a challenge,
3 he shall be punished by imprisonment in the county jail, not more than six months, or by fine not exceed-
4 ing one hundred dollars.
• r * * * *
3 in the state prison, not more than fifteen years, or by fine not excefling one thousand dollars, or bºth, at
3 the discretion of othe court.
CHAP. 153.] ( 931 ) * [TITLE 30.
1
2
1
SEc. 11. If any person, with malicious intent to maim or disfigure, shall cut out or maim the tongue, put
Maiming, or dis-
figuring or aid-
& & gº & ing therein.
out or destroy an eye, cut or tear off an ear, cut or slit or mutilate the nose or lip, or cut off or disable a
limb or member, of any other person, every such person, and every person privy to such intent, who shall
be present, aiding in the commission of such offence, shall be punished by imprisonment in the state prison
not more than ten years, or by fine not exceeding one thousand dollars, or both, at the discretion of the
COurt.
SEc. 12. lf any person shall assault another with intent on murder, or to maim or disfigure his person in
.* g * & o Assault with in-
any of the ways mentioned in the preceding section, he shall be deemed a felonious assaulter, and shall be entºmurder.
punished by imprisonment in the state prison, not more than ten years, or by fine not exceeding one thou-
sand dollars, or both, at the discretion of the court.
Sec. 13. If any person shall attempt to commit the crime of murder, by poisoning, drowning or strangling
Attempt to mur-
g . . tº & * e der b tº e
another person; or by any means not constituting the crime of assault with intent to murder, every such of .”.”
ſender shall be punished by imprisonment in the state prison, not more than ten years, or by fine not exceed-
ing one thousand dollars, or both, at the discretion of the court.
SEC. 14. If any person shall assault another, and shall feloniously rob, steal and take from his person any
* º * * & * * e * •- Assault and rob-
money or other property, which may be the subject of larceny, such robber being armed with a dangel bing, &c. from
person being
armed.
ous weapon, with intent, if resisted, to kill or maim the person robbed, or if, being so armed, he shall
wound or strike the person robbed, he shall be punished by imprisonment in the state prison for life.
SEc. 15. If any person being armed with a dangerous weapon, shall assault another, with intent to rob or
Assault with in-
* g te * e gº tent to rob or
to murder, he shall be deemed a felonious assaulter, and shall be punished by imprisonment in the state murder, being
-- armed.
prison not more than fifteen years.
Sec. 16. If any person shall, by force and violence, or by assault or putting in fear, feloniously rob,
Assault and
steal and take from the person of another, any money or other property which may be the subject of lar- ;"; of
another, not be-
ing armed.
233
CHAP. 153.] ( 982 ) [TITLE 30.
3 ceny, such robber not being armed with a dangerous weapon, he shall be punished by imprisonment in the
4 state prison not more than fiſieen years.
Assault with in- 1 SEc. 17. If any person not being armed with a dangerous weapon, shall assault another with ſorce and
tent to rob and -
steal, not being
armed.
2 violence, and with intent to rob and steal, he shall be deemed a felonious assaulter, and shall be punished
*
3 by imprisonment in the state prison not more than ten years.
1 SEc. 18. If any person shall, either verbally or by any written or printed communication, maliciously
Malicious threats
to extort money,
&c.
threaten to accuse another of any crime or offence, or shall by any written or printed communication ma-
2
9.
liciously threaten any injury to the person or property of another, with intent thereby to extort money, or
3
4 any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against
5 his will, he shall be punished by imprisonment in the state prison or in the county jail, not more than two
a
6 years, or by fine not exceeding one thousand dollars.
I.
SEc. 19. If any person shall ravish and carnally know any female of the age of ten years or more,by force
# * and against her will, or shall unlawfully and carnally know and abuse any female child under the age of
1841, p. 177, §2.
2
ten years, he shall be punished by imprisonment in the state prison for life, or for any term of years; and
3
such carnal knowledge shall be deemed complete upon proof of penetration only.
4.
1 SEC. 20. If any person, shall assault any female with intent to commit the crime of rape, he shall be
:..." 2 deemed a felonious assaulter, and shall be punished by imprisonment in the state prison not more than ten
rape,
3 years, or by fine not exceeding one thousand dollars.
1 SEc. 21. It any person shall take any woman unlawfully and against her will, and by force, menace or
Unlawfull ta- e º tº &
kiº 2 duress, compel her to marry him or any other person, or to be defiled, he shall be punished by imprison-
and compelling r
her to marry, &c.
3 ment in the state prison for life, or any term of years.
Sec. 22. If any person shall take any woman unlawfully and against her will, with intent to compel her
CHAP. 153.] ( 933 ) [TIELE 30.
2 by force, menace or duress, to marry him or any other person, or to be defiled, he shall be punished by im_ Taking a woman
with intent to
compel her to
inarry, &c.
3 prisonment in the state prison not more than ten years.
Enticing any fe-
I Sec. 23. Every person who shall take or entice away any female under the age of fourteen years, from male º: !",
years of age for
purpose of mar-
riuge, &c.
2 her father, mother, guardian or other person having the legal charge of her person, without their consent,
3 either ſor the purpose of prostitution, concubinage, or marriage, shall be punished by imprisonment in the
4 state prison not exceeding three years, or by imprisonment in a county jail, not exceeding one year, or by
5 a fine not exceeding one thousand dollars.
Sec. 24. Every person who, without lawful authority, shall forcibly or secretly confine or imprison any
I
2 other person within this state, against his will, or shall forcibly carry or send such person out of this
- Kidnapping, &c.
3 state, or shall forcibly seize and confine, or shall inveigle or kidnap any other person with intent either to
4 cause such person to be secretly confined or imprisoned in this state against his will, or to cause such per-
5 son to be sent out of the state against his will, or to be sold as a slaye, or in any way held to serve against
6 his will; and every person who shall sell, or in any manner transfer for any term, the service or labor of
7 any negro, mulatto, or other person of color, who shall have been unlawfully seized, taken, inveigled or
8 kidnapped from this state, to any other state, place, or country, shall be punished by imprisonment in the
9 state prison not more than five years; or by fine not exceeding one thousand dollars.
1 SEC. 25. Every offence mentioned in the preceding section, may be tried either in the county in which
2 the same may have been committed, or in any county in or to which the person so seized, taken, inveigled,
Where offence
may be tried.
3 kidnapped or sold, or whose services shall be sold or transferred, shall have been taken, confined, held, car-
4 ried or brought, and upon the trial of any such offence,the consent thereto of the person so taken, inveigled
5 kidnapped, or confined, shall not be a defence, unless it shall be made satisfactorily to appear to the ju-
6, ry, that such consent was not obtained by fraud, nor extorted by duress or by threats.
1 SEC. 26. If any person shall mingle any poison with any food, drink or medicines, with intent to kill
* * t * , * wº * & o * º o ... Poisoning food,
2 or injure any other person, or shall willfully poison any spring, well or reservoir of water, with such in- weiß.
3 tent, he shall be punished by imprisonment in the state prison for life, or any term of years,
CHAP, 154.] ( 934 ) [TITLE 30.
I
Sec. 27. If any person shall assault another, with intent to commit any burglary, or any other felony, the
Assaults uot be- -
forc mentioned,
with intent to
commiſsiony. 2 punishment of which assault is not hereinbefore prescribed, he shall be punished by imprisonment in the
3 state prison not more than five years; or by fine not exceeding five hundred dollars, and imprisonment in the
4 county jail not exceeding two years.
1 SEc. 28. Whoever shall be convicted, upon indictment, of an assault, on an assault and battery, where no
Other assaults
C 2 other punishment is prescribed, sl.all be punished by imprisonment in the county jail not more than one year
3 or by a fine not exceeding two hundred dollars, or both such fine and imprisonment, in the discretion of the
4 Court.
1 Sec. 29. Every person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy
Enticing away
child under 12
years of age, 2
with intent to de-
tain, &c.
or entice away any child under the age of twelve years, with intent to detain or conceal such child from its
3 parent, guardian or other person having the lawful charge of such child, shall be punished by imprisonment
4 in the state prison not more than five years, or by imprisonment in the county jail not more than one year
5 or by fine not exceeding five hundred dollars.
º child 1 SEc. 30. If the father or mother of any child under the age of six years, or any other person to whom
with intent to -.
abandon.
2 any such child shall have been confided, shall expose such child in any street, field, house, or other place
3
with intent wholly to abandon it, he or she shall be punished by imprisonment in the state prison not more
4 than seven years, or in the county jail not more than one year.
CHAPTER i54.
of of FENCEs AGAINST PROPERTY.
1 SECTION 1. Every person who shall wilfully and maliciously burn, in the night time, the dwelling
• ‘ . . . . • e - t fire to any other building
the night time, willfully and maliciously se &
ing dweli house of another, or shall, in
º º ng 2 2 e º
night. 3 owned by himself or another, by the burning whereof such dwelling house shall be burnt in the
eq Dy A
4 night time, shall be punished by imprisonment in the state prison for life: but if it shall appear on
7
CHAP. 154.] . ( 935 ) [TITLE 30
5 the trial, and the jury shall find, that at the time of committing the offence there was no person 16 Mass. 105.
6 lawfully in the dwelling house so burned, the punishment instead of imprisonment for life, may be
7 imprisonment in the state prison for any term of years.
I Sec. 2. Every person who shall willfully and maliciously burn in the day time, the dwelling house
Burning a dwel-
Ting in the day
2 of another, or any building adjoining such dwelling house, or shall wilfully and maliciously set fire #.
3 to any building owned by himself or another, by the burning whereof such dwelling house shall be
4 burnt in the day time, or shall, in the day time wilfully and maliciously set fire to any building own-
5 ed by himself or another, by the burning whereof such dwelling house shall be burnt in the night
6 time, shall be punished by imprisonment in the state prison for life, or for any term of years.
gº
1 SEC. 3. Every person who shall wilfully and maliciously burn in the night time, any meeting
Burning in the
night a meeting
house, &c,
2 house, church, court house, college, academy, jail, or other building erected for public use; or any
3 banking house, ware house, store, manufactory, or mill of another, being with the property therein
/
4 contained of the value of one thousand dollars; or any barn, stable, shop or office of another, with-
f - .*.*. -
5 in the curtilage of any dwelling house; or any other building by the burning whereof any building
6 mentioned in this isection shall be burnt, in the night time,shall be punished by imprisonment in the
7 state prison for any term of years.
1 SEC. 4. Every person who shall wilfully and maliciously burn, in the day time, any building men- ..
Burning the
* same in the day
time.
2 tioned in the preceding section, the punishment for which, if burnt in the night time, would be im-
sº
3 prisonment in the state prison for any term of years, shall be punished by imprisonment in the state
4 prison not more than ten years.
1 Sec. 5. Every person who shall willfully and maliciously burn, either in the night time or in
Burning Certain
buildings, &c. in
2 the day time, any banking house, ware house, store, manufactory, mill, barn, stable, shop, office, night of daytime
a out house, or other building whatsoever of another, other than is mentioned in the third section of
234
CHAP. 154,] ( 936 ) ... [Title 30.
4 this chapter, or any bridge, lock, dam or flume, or any ship, boat or vessel of another, lying within
5 the body of any county, shall be punished by imprisonment in the state prison not more than ten
6 years.
scuing fire with 1 SEC. 6. Every person who shall set fire to any building mentioned in the preceding sections, or to
intent to CauSC - & -
building to be
burnt.
2 any other material, with intent to cause any such building to be burnt, or shall by any other means
3 attempt to cause any building to be burnt, shall be punished by imprisonment in the state prison
4 not more than fifteen years, or by fine not exceeding one thousand dollars, and imprisonment in the
5 county jail not more than one year,
1 SEC. 7. Every person who shall willfully and maliciously burn or otherwise destroy or injure, any
Burning wood,
lumber fences, & x e
..grain; &c. 2 pile or parcel of wood, boards, timber or other lumber, or any fence, bars or gate, or any stack of
3 grain, hay or other vegetable product, or any vegetable product severed from the soil and not stack-
4 ed, or any standing trees, grain, grass, or other standing product of the soil, or the soil itself, of an-
5 other, shall be punished by imprisonment in the state prison not more than five years, or by fine
6 not exceeding five hundred dollars, or imprisonment in the county jail not more than one year.
1 SEC. 8. The preceding sections of this chapter shall severally extend to a married woman, who
j. 2 may commit either of the offences therein described, though the property burnt or set fire to, may
ried woman.
3 belong partly or wholly to her husband.
1 Sec. 9. Every porson who shall wilfully burn any building, or any goods, wares, merchandize, or
Burning proper- • ---
*"“ 2 other chattels, which shall be at the time insured against loss or damage by fire, or shall wilfully
3 cause or procure the same to be burned, with intent to injure the insurer, whether such person be
4 the owner of the property or not, shall be punished by imprisonment in the state prison not more
5 than ten years,
1 Sec. 10. Every person who shall break and enter any dwelling house, in the night time, with
CHAP. 154.] ( 937 ) # [TITLE: 30.
2
3
5
2
3
intent to commit the crime of murder, rape, robbery, larceny, or any other felony; or after having
Burglary being
armed makin
entered with such intent, shall break any such dwelling house, in the night time, any person being”
lawfully therein, and the offender being armed with a dangerous weapon at the time of such break-
ing or entry, or so arming himself in such house, or making an actual assault on any person being
lawfully therein, shall be punished by imprisonment in the state prison for life.
Sec. 11. Every person who shall break and enter any dwelling house, in the night time, with such Burglary not be.
- ing armed nor
making an as-
- * g sault.
intent as is mentioned in the preceding section, or who, having entered with such intent, shall
break such dwelling house, in the night time, the offender not being armed, nor arming himself in
such house with a dangerous weapon, nor making any assault upon any person then being lawfully
therein, shall be punished by imprisonment in the state prison not more than fifteen years.
Sec. 12. Every person who shall break and enter, in the night time, any office, shop or warehouse,
Breaking and
entering an of-
not adjoining to or occupied with a dwelling house, or any ship, boat or vessel, within the body of ###".
night, not adjoin-
ing a house.
any county, with intent to commit the crime of murder, rape, robbery, larceny, or any other felony,
shall be punished by imprisonment in the state prison not more than fifteen years.
Sec. 13. Every person who shall enter, in the night time, without breaking, or shall break and .
enter, in the day time, any dwelling house, or any out house thereto adjoining, occupied there with, Hººh
s O
breaking, cr
breaking in day
or any office, shop, store, or warehouse, or any ship, boat, or vessel, within the body of any county, ..." "4
with the intent to commit the crime of murder, rape, robbery, larceny, or any other felony, the
owner or any other person lawfully therein, being put in fear, shall be punished by imprisonment
in the state prison not more than ten years.
Sec. 14, Every person who shall enter any dwelling house, in the night time, without breaking, enºwn
- . putttng in fear.
or shall break and enter in the day time, any dwelling house, or any out house thereto adjoining,
and occupied therewith, or any office. shop, store, or warehouse, or any ship, boat or vessel, lying
4 within the body of any county, with intent to commit the crime of murder, rape, robbery, larceny,
CHAP. 154.] ( 938 . ) [TITLE 30.
Stealing in day
5 or any other felony, no person lawfully therein being put in fear, shall be punished by imprisonment
6
time in dwelling 2
house, &c. or
breaking in the
night and steal-
ing in public
building.
Stealing at a fire.
Steating from
the person.
Simple larceny.
1840, p. 42, &c.
3
4
10 ding one hundred dollars, or both, at the discretion of the court.
in the state prison not more than five years, or by a fine not exceeding five hundred dollars, and
imprisonment in the county jail not more than one year.
Sec. 15. Every person who shall steal, in the day time, in any dwelling house, office, store, shop,
or warehouse, ship, boat or vessel, or shall break and enter, in the night time, any meeting house,
church, court house, college, academy, or other building erected for public use, and steal therein,
shall be punished by imprisonment in the state prison not more than five years, or by fine not ex-
& wº
ceeding five hundred dollars, and imprisonment in the county jail not more than one year.
SEc. 16. Every person who shall commit the offence of larceny by stealing in any building that is on fire,
or by stealing any property removed in consequence of alarm caused by fire, shall be punished by impris-
onment in the state prison not more than five years, or by fine not exceeding five hundred dollars, or im-
prisonment in the county jail not more than one year. - .*
SEC. 17. Every person who shall commit the offence of larceny by stealing from the person of another,
shall be punished by imprisonment in the state prison not more than five years, or by imprisonment in the
county jail not more than one year.
SEc. 18. Every person who shall commit the offence of larceny, by stealing of the property of another,
any money, goods or chattels, or any bank nºte, bank bill, bond, promissory note, due bill, bill of exchange
or other bill, draft, order or certificate; or any book of accounts, for or concerning money or goods due or
to become due, or to be delivered; or any deed or writing containing a conveyance of land; or any other
valuable contract in force ; or any receipt, release or defeasance ; or any writ, process or public record, if
the property stolen exceed the value of twenty-five dollars, shall be punished by imprisonment in the state
prison not more than five years, or by fine not exceeding five hundred dollars, and imprisonment in the coun-
ty jail not more than one year; and if the property stolen shall not exceed the value of twenty-five dol-
9 lars, he shall be punished by imprisonment in the county jail not more than one year, or by fine not excee-
CHAP. 154.] ( 939 ) • [Title 30.
2
SEc. 19. Every person who shall have been convicted, upon indictment, either of the crime of larceny,
z - w Second convić-
tion; convictićh
e e 4 - - - - . . . . . . . . . . . * - *R -- s w r" of three dištifiét
or of being accessory to the crime of larceny, before the fact, and shall afterwards commit the crime of lºnies a same
€III] .
-
larceny, or be accessory thereto, before the fact, and be convicted thereof upon indictment, and every per-
son who shall be convicted at the same term of the court, either as principal, or as accessory before the fact,
in three distinct larcenies, shall be deemed a common and notorious thieſ, and shall be punished by impris-
onment in the state prison not more than fifteen years.
Buying, &c.
Sec. 20. Every person who shall buy, receive or aid in the concealment of any stolen money, goods or
- stolen goods.
or property, knowing the same to have been stolen, shall be punished by imprisonment in the state prison
not more than five years, or by fine not exceeding five hundred dollars, and imprisonment in the county jail
not more than one year. *
SEC, 21. Upon a first conviction of the offence mentioned in the preceding section, and when the act of satisfaction to
party injured.
stealing property was a simple larceny, iſ the party convicted of buying, receiving, or aiding in the con-
cealment of such stolen property, shall make satisfaction to the party injured to the full value of the prop-
erty stolen, and not restored, he shall not be imprisoned in the state prison.
SEC. 22. Every person convicted of buying, receiving, or aiding in the concealment of any stolen In Olley, Seeond convic-
tion; conviction
of three distinct
aClS at Same
goods or property, knowing the same to have been stolen, having before been convicted of the like offence; term.
and every person convicted at the same term of the court, of three or more distinct acts of buying, receiv-
ing, or aiding in concealing as aforesaid, shall be deemed a common receiver of stolen goods, and shall be
punished by imprisonment in the state prison not more than ten years.
SEC. 23. In any prosecution of the offence of buying, receiving or aiding in the concealment of stolen mo-
Receiver tried
ney or other property, it shall not be necessary to aver, nor on the trial thereof to prove, that the person hº
who stole such property has been convicted. sº
SEC, 24. The officer who shall arrest any person charged as principal or accessory in any robbery or mur-
235
CHAP. 154.] - * - ( 940 ) . - [TITLE 30
Officer to Secure
and hold stolen
property.
Recompense to
prosecutor and
officer.
Embezzlement
by officers, &c. of
banks.
Embezzlement
in state treasury
or other public
office.
Officer or agent
of state, refusing
to deliver money
&c. to Successor
&c.
2
3
2
2.
2
t
ny, or with buying, receiving or aiding in the concealment of any money or other property, knowing the
same to have been stolen, shall secure the property alleged to be stolen and hold the same irrepleviable,
and shall be answerable for the same, and he shall annex a schedule thereof to his return, and upon convic-
&
tion of the offender the stolen property shall be restored to the owner.
SEc. 25. Upon any conviction of burglary, robbery or larceny, or of buying, receiving or aiding in the
concealment of any property known to have been stolen, the court may order a suitable recompense to
the protector, and also to the officer who has kept and secured the stolen property, not exceeding their ac-
tual expenses, with a reasonable allowance for their time and trouble, to be paid by the county treasurer,
out of the treasury of the county.
SEc. 26. If any cashier, or other officer, agent or servant of any incorporated bank, shall embezzle or
fraudulently convert to his own use, or shall fraudulently take or secrete, with intent to convert to his own
use, any bullion, money, note, bill, obligation or security, or any other effects or property, belonging to and
in possession of such bank, or belonging to any person, and deposited therein, he shall be deemed by so do-
ing to have committed larceny in such bank, and shall be punished by imprisonment in the state prison not
more than ten years, or by fine not exceeding one thousand dollars, and imprisonment in the county jail
not more than two years,
Sec. 27. If any officer, clerk or other person, employed in the treasury of this state, or in the treasury
of any county, or in any other public office within this state, shall commit any fraud or embezzlement
therein, he shall be punished by imprisonment in the state prison, not more than fourteen years, or by fine
not exceeding two thousand dollars, or imprisonment in the county jail not more than two years, or both,
at the indiscretion of the court.
Sec. 28. If any officer or agent of this state, into whose hands money, books, papers, evidences of debt,
or other property belonging to this state shall come by virtue of his office or agency, shall refuse or neglect
on demand, to deliver the same to his successor in office, or to the person authorized by law to receive or
CHAP. 154.] ( 941 ) [TIELE 30.
4
5
3
5
incorporated town or village, or other municipal corporation, or if any clerk, agent or servant of any pri-
have charge of the same, he shall be punished by imprisonment in the state prison not more than five years,
- 1844, p. 32, $3.
or by fine not exceeding five hundred dollars and imprisonment in the county jail not more than one year.
SEc. 29. If any officer, agent, clerk or servant of any incorporated company, or of any city, township, Embezzl
&mbezzlement
by officers of
. Corporations, &c.
vate persons, or of a copartnership, except apprentices and other persons under the age of sixteen years,
shall embezzle or fraudulently dispose of or convert to his own use, or shall take or secrete with intent to
embezzle and convert to his own use, without consent of his employer or master, any money or other pro-
perty of another, which shall have come to his possession, or shall be under his charge by virtue of such of.
fice or employment, he shall be deemed by so doing to have committed the crime of larceny.
SEc. 30. If any attorney at law, Solicitor or master in chancery, Iegister of the court of chancery, clerk
Attorneys, &c.
refusing to pay
over money col-
of any court of record, sheriff, constable, or any other officer, shall collect or receive in such capacity, any lected
money belonging to another, and shall neglect or refuse to pay the same to the person entitled thereto, with-
in a reasonable time after demand thereof, such person so neglecting or refusing shall be deemed guilty of
a misdemeanor, and on conviction thereof, shall be punished by imprisonment in the county jail not more * P. * *
than one year, or by fine not exceeding four times the amount of money so received, or both, at the discre-
*s
tion of the court,
SEc. 31. If any officer or stockholder of any bank or banking association, or any other person for such
} Bankers issuing
bills &c, without
previous com-
bank or banking association, shall sign, issue, or knowingly put in circulation, any bill or note of any such je-
quisitions of law.
bank or banking association before the requisite amount of capital stock shall have been paid in, or before
the president and directors thereof shall have fully complied with all the provisions of law requiring any
other act or acts to be done before the issuing of any notes or bills, such officer or person shall be punished
by imprisonment in the state prison not more than ten years, or by fine not exceeding five thousand dollars,
and imprisonment in the county jail not more than one year.
SEC. 32. If any person shall with intent to defraud, sign, issue or put in circulation, any note or bill, pur-
CHAP. 154.]
( 942 ) [TITLE 30.
Issuing or circu-
lation spurious
notes,
Fraudulent dis-
posal of proper-
ty of a bank, by
officers, agents,
&c.
1842, p. 6, §3.
Embezzlement
by carriers and
Others.
Falsely person-
ating another.
Obtaining pro-
perty by false
pretences or to-
kens.
2
3
5
2
3
porting to be a bill or note of any bank, when no such bank exists, such person shall be punished by im-
prisonment in the state prison not more than ten years, or by fine not exceeding five thousand dollars, and
imprisonment in the county jail not more than one year,
Sec. 33. If any officer or agent of any bank, knowing such bank to be insolvent, or, in contemplation of
the insolvency of such bank, or if any assignee of the property and effects of any insolvent bank, shall sell,
or in any way dispose of or remove, any of the money, property or effects of such bank, with intent to de-
fraud, delay or hinder any creditor thereof, in the collection of any claim or demand against such bank,
every such officer or agent, and all persons who shall knowingly aid or assist in any such disposition Ol' I'8-
moval, shall be punished by imprisonment in the state prison not more than five years, or by fine not ex-
ceeding one thousand dollars, and imprisonment in the county jail not more than one year.
SEC. 34. If any carrier or other person to whom any money, goods, or other property, which may be the
subject of larceny, shall have been delivered to be carried for hire, or if any other person who shall be in-
trusted with such property, shall embezzle or fraudulently convert to his own use, or shall secrete with in-
mass, as the same were delivered, or otherwise, and before delivery of such money, goods or property, at
the place at which, or to the person to whom they were to be delivered, he shall be deemed by so doing, to
have committed the crime of larceny.
SEC, 35. Every person who shall falsely personate or represent another, and in such assumed charac-
ter shall receive any money, or other property whatever, intended to be delivered to the party so person-
ated, with intent to convert the same to his own use, shall be deemed, by so doing, to have committed the
trime of larceny.
SEc. 36. Every person who, with intent to defraud or cheat another shall designedly, by color of any
false token or writing, or by any other false pretence, obtain the signature of any person to any written
instrument, the false making whereºf would be punishable as forgery, or obtain from any person, any mor
4 ney, personal property, or valuable thing, shall be punished by imprisonment in the state prison not more
CHAP. 154.] ( 943 ) . [TITLE 30
5
6
2
3.
than ten years, or by fine, not exceeding five hundred dollars, and imprisonment in the connty jail, not
more than one year,
SEC. 37. Every person who shall be convicted of any gross fraud or cheat at common law, shall be punish-
Gross frauds
- and cheats at
º sº º e * * * e q common law,
ed by imprisonment in the state prison not inore than ten years, or in the county jail not more than one ...".
year, or by fine not exceeding five hundred dollars.
Sec. 38. If any person shall willfully cast away, burn, sink, or otherwise destroy any ship, boat or vessel,
- Wilfully de-
stroying vessels
tº . g tº , tº e e &
within the body of any county, with intent to injure or defraud any owner of such vessel, or the owner of C
any property on board the same, or any insurer of such vessel or property; or any part thereof, he shall be
punished by imprisonment in the state prison not more than fifteen years.
SEc. 39. If any person shall lade, equip or fit out, or assist in lading, equipping or fitting out any ship or
Fitti 4-?
*ś
that it shall be
vessel, with intent that the same shall be cast away, burnt, sunk, or otherwise destroyed, to injure or de-castaway, &c.
fraud any owner or insurer oſ such vessel, or of any property laden on board the same, he shall be pun-
ished by imprisonment in the state prison, not more than fifteen years, or by fine not exceeding five thou-
sand dollars, and imprisonment in the county jail not more than one year.
SEc. 40. If the owner of any ship, boat or vessel, or of any property laden, or pretended to be laden on *.*.*.in-
- voice of cargo.
board the same, or if any other person concerned in the lading or fitting out of any such ship, boat or ves-
sel, shall make out or exhibit, or cause to be made out or exhibited, any false or fraudulent invoice, bill of
4 lading, bill of parcels, or other false estimates of any goods or property laden or pretended to be laden on
5.
6
7
I
board such ship, boat or vessel, with intent to injure or defraud any insurer of such vessel or property, or
of any part thereof, he shall be punished by imprisonment in the state prison, not more than five years, or
by fine not exceeding five thousand dollars, and imprisonment in the county jail not more than one year,
SEc. 41. If any master, or other officer or mariner of any ship, boat or vessel, shall make or cause to be
236.
CHAP. 154.] - ( 944 ) - [TITLE 30.
Making or pro-
curing false pro-
teSt.
Maliciously kill-
ing, malming,
disfiguring or
poisoning beasts.
Malicious injury
to dams, reser-
voirs, canals, &c.
Malicious injury
to bridges, turn-
pike gates, &c.
2
3
2
5
made, or shall swear to, any false affidavit or protest, or if any owner, or other person concerned in such
vessel, or in the goods or property laden on board the same, shall procure any such false affidavit or pro-
test to be made, or shall exhibit the same, with intent to injure, deceive or defraud any insurer of such ship,
boat or vessel, or of the goods or property laden on board the same, he shall be punished by imprisonment
in the state prison not more than ten years, or by fine not exceeding five thousand dollars, and imprison-
ment in the county jail not more than one year.
SEC. 42. Every person who shall willully and maliciously kill, maim, or disfigure any horses, cattle, or
other beasts of another, or shall wilfully and maliciously administer poison to any such horses, cattle or s
other beasts, or expose any poisonous substance with intent that the same should be taken or swallowed by
them, or who shall wilfully and maliciously destroy or injure the personal property of another by any means,
not particularly mentioned or described in this chapter, shall be punished by imprisonment in the state pris-
on not more than five years, or by fine not exceeding one thousand dollars, and imprisonment in the county
jail not more than one year.
*
SEC. 43. Every person who shall wilfully and maliciously break down, injure, remove or destroy any dam,
reservoir, canal or trench, or any * flume, flash, boards, or other appurtenances thereof, or any of the
wheels, mill-gear, or machinery of any water mill, or shall wilfully or wantonly without color of right, draw
off the water contained in any mill pond, reservoir, canal, or trench, shall be punished by imprisonment in
the state prison not more than five years, or by fine not exceeding five hundred dollars, and imprisonment
in the county jail not more than one year.
SEc. 44. Every person who shall wilfully and maliciously break down, injure, remove or destroy any pub-
lic or toll bridge, or any rail road, or any turnpike gate, or any lock in any dam, or any lock, culvert or
embankment of any canal, or who shall wilfully and maliciously make any aperture or breach in any such
embankment, with intent to destroy or injure the same, shall be punished by wºm in the state pris-
on not more than five years, or by fine not exceeding five hundred dollars, and imprisonment in the county
jail not more than one year,
CHAP. 154.] - ( 945 ) [TITLE 30.
1
2
5
3
5
*
Sec. 45. Every person who shall wilfully and maliciously destroy or injure any house, barn or other buil-
Maliciously ill-
juringhouse or
tº . . e . . . her building,
ding of another,or the appurtenances thereof shall be punished by imprisonment in the state prison not more ºr bullam
than five years, or by imprisonment in the county jail not more than one year, or by fine not exceediag five
1840, p. 14,2S6.
hundred dollars.
Sec. 46. Every person who shall wilfully and maliciously, or wantonly and without cause, cut down or
- © tº e - g * tº & Maliciously or
destroy, or otherwise injure any fruit tree, or any other tree not his own, standing or growing for shade, or- ºnly injur-
ing fruit trees,
ſences, &c.
nament, or other useful purpose, or shall maliciously break down, injure, mar or deface any fence belonging
to or enclosing lands not his own, or shall maliciously throw down or open any gate, bars or fence, and
leave the same down or open, or shall maliciously or injuriously sever from the freehold of another any
produce thereof, or any thing attached thereto, shall be punished by imprisonment in the county jail not
more than one year, or by fine not exceeding one hundred dollars,
SEC. 47. Every person who shall wilfully and maliciously break down, injure, remove or destroy any
º - * Maliciously in- --
monument erected for the purpose of designating the boundaries of any township, or of any tract or lot of juring nºw-
- ments, extin-
guishing lamps,
&c.
land, or any tree marked for that purpose, or shall so break down, injure, remove or destroy any mile stone,
mile board, guide post or guide board, erected upon any highway or other public way,turnpike or rail road,
or shall wilfully or maliciously deface or alter the inscription on any such stone, post or board, or shall wil- º
fully or maliciausly mar or deſace any building or any sign board, or extinguish any lamp or break, destroy
*
or remove any lamp, or any lamp post, or any railing or posts, erected on any bridge, side walk, street,
highway, court or passage, shall be punished by imprisonment in the county jail not more than six months,
or by fine not exceeding fifty dollars, or both, at the discretion of the court.
SEC. 48. Every person who shall wilfully commit any trespass, by cutting down or destroying any timber
Wilful trespass
by cutting or de-
d di sº * o g g stroying wood,
or wood, standing or growing, on the land of another, or by carrying away any kind of timber or wood, cut ºne, train,
w ('.
down or lying on such land, or by digging up or carrying away any stone, ore, gravel, clay, sand, turf or
mould from such land, or any roots, fruit or plant there being, or by cutting down or carrying away any
grass, hay, or any kind of grains standing, growing or being on such land, or by carrying away from any
*.
CHAP. 154.] ( 946 ) [Title 80.
Wilful trespass
by entering gar-
dens, orchards,
&c.
Forgery of re-
cords and other
instruments.
6
'9
10.
wharf or landing-place, any goods whatever, in which he has no interest or property, without the license
of the owner, of the value of five dollars or more, shall be punished by imprisonment in the county jail not
more than sixty days, or by fine not exceeding one hundred dollars.
SEC. 49. Every person who shall wilfully commit any trespass by entering upon the garden, orchard or
other improved land of another, without permission of the owner thereof, and with intent to cut, take, carry
away, destroy or injure the trees, grain, grass, hay, fruit or vegetables there growing or being, shall be
punished by imprisonment in the county jail not more than thirty days, or by fine not exceeding twenty dol-
lars ; and if any of the offences mentioned in this, or in the preceding section, shall be committed on the
first day of the week, or in disguise, or secretly in the night time, between sun setting, and sun rising, the
J
imprisonment shall not be less than five days, nor the fine less than five dollars.
CHAPTER 155.
OF FORGERY AND COUNTERFEITING.
SECTION 1. Every person who shall falsely make, alter, forge or counterfeit any public record, or any
certificate, returned, or attestation of any clerk of a court, public register, notary public, justice of the
peace, township clerk or any other public officer, in relation to any matter wherein such certificate, return,
or attestation may be received as legal proof, or any charter, deed, will, testament, bond or writing obliga.
- y
tory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or any order,
acquittances or discharge for money or other property, or any acceptance of a bill of exchange, or endorse-
ment or assignment of a bill of exchange or promissory note for the payment of money, or any accountar.
ble receipt for money, goods or other property, with intent to injure or defraud any person, shall be pun-
ished by imprisonmentin, the state prison not more than fourteen years, or in the county jail not more than.
one year.
i SEC. 2. Every person who shall utter and publish as true, any false, forged, altered or counterſeit record,
CHAP. 155.] ( 947 ) [TITLE 30.
2 deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, alter-
Uttering forged
instruments.
ed, forged or counterfeit, with intent to injure or deſraud as aforesaid, shall be punished by imprisonment in
3
the state prison not more than fourteen years, or in the county jail not more than one year.
4
{ -: º t g º e º gº • . Forging 'state
1 SEC. 3. Every person who shall falsely make, alter, forge or counterfeit any note, certificate, bond, war ; warrants,
&c.
2 rant or other instrument, issued by the treasurer of this state, or by any commissioner or other officer au-
3 thorized to issue the same, for any debt of this state, with intent to injure or defraud as aforesaid, shall be
4 punished by imprisonment in the state prison for life, or for any term of years.
1 SEC. 4. Every person who shall falsely make, alter, forge or counterfeit any bank bill or promissory note jºine bank
- - lli lS.
2 payable to the bearer thereof, or to the order of any person, issued by any incorporated banking company
3 in this state, or payable therein, at the office of any banking company incorporated by any law of the Uni-
4 ted States or of any other state, with intent to injure or defraud any person, shall be punished by imprison-
5 ment in the state prison for life, or for any term of years.
1 SEc. 5. If any person shall have in his possession at the same time, ten or more similar false, altered forg- Haying in pos-
Session counter -
feit º with in-
o e - e tent º
2 ed or counterfeit notes, bills of credit, bank bills or notes, payable to the bearer thereof, or to the order of ““
3 any person; such as are mentioned in the preceding sections, knowing the same to be false, altered, forged
4 or counterfeit, with intent to utter the same as true, and thereby to injure and defraud as aforesaid, he shall
5 be punished by imprisonment in the state prison for life, or for any term of years.
*
1 SEc. 6. Every person who shall utter or pass, or tender in payment as true, any such false, altered,forged,
& º º ve e • ‘ . & Passing counter-
2 or counterfeit note, certificate or bill of credit for any debt of this state, any bank bill or promissory note, fcit biń.
3 payable to the bearer thereof, or to the order of any person, issued as aforesaid, knowing the same to be
4 false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be punished by im-
5 prisonment in the state prison not more than five years, or by fine not exceeding one thousand dollars, and
6 imprisonment in the county jail not more than one year,
237
CHAP. 155.J ( 948 ) [Tiple 30.
Second convic-
tion; thiree con-
victions at same-
1611n.
Having counter-
felt bills with in-
tent, &c.
Tools, &c. for
counterfeiting.
When testimony
of president, &c.:
of bank dispen-
ged with.
I Sec. 7. If any person who shall have been convicted of the offence mentioned in the preceding secton,
2, shall be conyicted, of a similar offence after the former conviction, or if any person shall, at the same term
3 of the court be convicted of three distinct charges of the said offence, he shall be deemed a common utter-
4 er of counterfeit bills, and shall be punished by imprisonment in the state prison not more than ten years.
1 SEC. 8. Every person who shall bring into this state, or shall have in his possession, any false, alteredº,
2, forged or counterfeit bill or note in the similitude of the bills or notes payable to the bearer thereof, or to
3 the order of any person, issued by or for any bank or banking company, established n this state, or in any
4 of the British provinces in North America, or in any other foreign state or country with intent to utter or
5 pass the same, or to render the same current as true, knowing the same to be false, forged or counterfeit
6 shall be punished by imprisonment in the state prison not more than five years, or by fine not exceeding one
7 thousand dollars dollars, and imprisonment in the county jail not more than one year.
I SEc. 9. Every person who shall engrave, make or mend, or begin to engrave, make or mend, any plate,
2 block, press, or other tool, instrument or implement, or shall make or provide any paper or other material,
3 adapted or designed for the forging and making any false or counterfeit note, certificate or other bill of
4 credit in the mius of the notes, certificates, bills of credit issued by lawful authority for any debt of
5 this state, or any false and counterfeit note or bill in the similitude of the notes or bills issued by any bank
6 or banking company established in this state, or within the United States, or in any of the British Provinces
7 in North America, or in any foreign state or country; and every person who shall have in his possession
8 any such plate or block, engraved in whole or in part, or any press or other tool, instrument or imple-
9. ment, or any paper or other material, adapted and designed * with intent to use the same, or to
10, cause or permit the same to be used in forging or making any such false or counterfeit certificates, bills or
11 notes, shall be punished by imprisonment in the state prison not more than ten years, or by fine not exceed-
12 ing one thousand dollars, and imprisonment in the county jail not more than one year.
1 SEC. 10. In all prosecutions for forging or counterfeiting any notes or bills of the banks before mentioned,
2 or for altering publishing, or tendering in payment as true, any forged or counterfeit bank bills or notes,
CHAP. 155.] ge ( 949. )
[TIELE 30.
3
4
5
l
2
1.
or for being possessed thereof with intent to utter and pass the same as true, the testimony of the president
and cashier of such bank may be dispensed with, if their place of residence shall be out of this state, or more
than forty miles from the place of trial; and the testimony of any person acquainted with the signature of
the president or cashier of such banks, or who has knowledge of the difference in the appearance of the
true and the counterſeit bills or notes thereof, may be admitted to prove that any such bills or notes are
counterfeit.
Sec. 11. In all prosecutions for ſorging or counterfeiting any note, certificate, bills of credit or other se-
Sworn eerlificate
made evidence.
curity issued in behalf of the United sale or in behalf of any state or territory, or for uttering, publishing
or tendering in payment as true, any such forged or counterfeit note, certificate, bill of credit or security,
or for being possessed thereof with intent to utter or pass the same as true, the certificate under oath of the
secretary of the treasury, or of the treasurer of the United States, or of the secretary or treasurer of any
state or territory on whose behalf such note, certificate, bill of credit or security, purports to have been is-
*
sued, shall be admitted as evidence for the purpose of proving the same to be forged or counterſeit.
SEC. 12. If any person shall connect together different parts of several bank notes, or other genuine in- Connecting parts
of instruments.
struments, in such a manner as to produce an additional note or instrument, with intent to pass all of them
as genuine, the same shall be deemed a forgery, in like manner as if each of them had been falsely made
or forged.
SEc. 13. If any fictitious or pretended signature, purporting to be the signature of an officer or agent of Affixing fictitious
g signature.
any corporation, shall be fraudulently affixed to any instrument or writing, purporting to be a note, draft
or other evidence of debt, issued by said corporation with intent to pass the same as true, it shall be deemed
a forgery, though no such person may ever have been an officer or agent of such corporation, nor ever
have existed.
SEc. 14. In any case where an intent to defraud is required to constitute the offence of forgery, or any Intent to lºud
& Statement an
proof.
other offence that may be prosecuted, it shall be sufficient to allege in the indictment an intent to defraud,
without naming therein the particular person or body corporate intended to be defrauded; and on the tria
CHAP. 155.]
( 950 ) [Title 30.
Counterfeiting
coin or having
five or more
pieces with in-
tent, &c.
Iless than five
pieces with in-
tent, &e.; utter-
ing counterfeit
CO! Il.
Second convic-
tion, three con-
victions same
term.
Tools for coining
with intent, &c.
Perjury, punish-
mcut for.
4
5
2
5
of such indictment, it shall be sufficient, and shall not be deemed a variance, if there appear to be an intent
to defraud the United States, or any State, county, city or township, or any body corporate, or any public
officer in his official capacity, or any copartnership or member thereof, or any particular person.
SEc. 15. Every person who shall counterfeit any gold or silver coin, current by law or usage within this
state, and every person who shall have in his possession, at the same time, five or more pieces of false mo-
ney or coin, counterfeited in the similitude of any gold or silver coin current as aforesaid, knowing the
same to be false and counterfeit, and with intent to utter or pass the same as true, shall be punished by im-
prisonment in the state prison for life, or for any term of years.
SEc. 16. Every person who shall have in his possession any number of pieces, less than five, of the coun-
terfeit coin mentioned in the preceding section, knowing the same to be counterfeit, with intent to utter and
pass the same as true, and any person who shall utter, pass or tender in payment as true, any such counter-
feit coin, knowing the same to be false and counterfeit, shall be punished by impromºn in the state pris-
on not more than ten years, or by fine not exceeding one thousand dollars, and imprisonment in the county
jail not more than one year.
Sec. 17. If any person who shall have been convicted of either of the offences mentioned in the preceding
section, shall be again convicted of either of the same offences, committed after the former con-
viction, or if any person shall, at the same term of the court, be convicted upon three distinct charges of the
said offences, he shall be deemed a common utterer of counterfeit coin, and shall be punished by imprison-
ment in the state prison not more than fifteen years.
SEc. 18. Every person who shall cast, stamp, engrave, make or mend, or shall knowingly have in his pos-
session any mould, pattern, die, puncheon, engine, press, or other tool or instrument, adapted and designed
for coining or making any counterfeit coin, in the similitude of any gold or silver coin, current by law or
usage in this state, with intent to use or employ the same, or to cause or permit the same to be used o: €IIl-
ployed in coining or making any such false and counterfeit coin as aforesaid, shall be punished by impris-
CHAP. 156.] ( 951 ) [TITLE 36.
6 onment in the state prison not more than ten years, or by fine not exceeding one thousand dollars, and im-
7 prisoned in the county jail not more than one year.
CHAPTER 156.
OF OFFENCES AGAINST PUBLIC JUSTICE.
1 SECTION 1. Every person who, being lawfully required to depose the truth in any proceeding in a court of ...; punish-
- - Inent for.
2 justice, shall commit perjury, shall be punished, if such perjury was committed on the trial of an indictment
&
3 for a capital crime, by imprisonment in the state prison for life, or any term of years, and if committed in
4 any other case, by imprisonment in the state prison not more than fiſteen years.
1 Sec. 2. If any person authorized by any statute of this state to take an oath, or if any person of whom an
What deemed
perjury.
2 oath shall be required by law, shall wilfully swear falsely, in regard to any matter or thing, respecting
3 which such oath is authorized or required, such person shall be deemed guilty of perjury, and shall be pu-
4 nished by imprisonment in the state prison as provided in the preceding section.
Subornation of
1 Sec. 3. Every person who shall be guilty of subordination of perjury, by procuriug another person to
-> perjury.
2 commit the crime of perjury, shall be punished in the same manner as for the crime of perjury.
*
1 SEC. 4. If any person shall endeavor to incite or procure any person to commit the crime of perjury,
Endeavoring to
2 though no perjury be committed, he shall be punished by imprisonment in the state prison not more tha h;";
3 five years, or imprisonment in the county jail not more than one year.
1 SEc. 5. Whenever it shall appear to any court of record, that any witness or party who has been legally
Proceeding
e e $ _ & - e . When person is
2 sworn and examined, or has made an affidavit in any proceeding in a court of justice, has testified in such tº by
3 a manner as to induce a reasonable presumption that he has been guilty of perjury therein, the court may
4 immediately commit such witness or party, by an order or process for that purpose, or may take a recog-
5 nizance with sureties, for his appearing to answer to an indictment for perjury; and thereupon the witness-
238
CHAP. 156.] ( 952 ) º
[TiTLE 80.
Securing papers.
Bribes to officers.
Officers accept-
ing bribes.
Corrupting ju-
rors and others.
.6
7
I 0
1
2
es to establish such perjury may, if present, be bound over to the proper court, and notice of the proceed.
f
ings shall forthwith be given to the prosecuting attorney,
SEc. 6. . If, in any proceeding in a court of justice, in which perjury shall be reasonably presumed, as
aforesaid, any papers, books or documents shall have been produced, which shall be deemed necessary to be
used on any prosecution ſor such perjury, the court may by order detain the same from the person producing
them, so long as may be necessary in order to their being used in such prosecution.
SEC. 7. Every person who shall corruptly give, offer or promise, to any executive legislative ºr judicial
officer, after his lºsion, or appointment, and either before or after he shall have been qualified; or shall
have taken his seat, any gift or gratuity whatever, with intent to influence his act, vota, opinion, decision or
judgment on any matter, question, cause or proceeding which may be then pending, or may by law come
Or be brought before him in his official capacity, shall be punished by imprisonment in the state prison
not more than five years, or by fine not exceeding three thousand dollars, and imprisonment in the county
jail not more than one year.
*
SEc. 8. Every executive, legislative or judicial officer, who shall corruptly accept any gift or gratuity, or
any promise to make any gift, or to do any act beneficial to such officer, under an agreement, or with an
understanding, that his vote, opinion or judgment shall be given in any particular manner, or upon a par-
ticular side of any question, cause or proceeding, which is or may be by law brought before him in his oſ-
ficial'capacity, or that, in such capacity, he shall make any particular nomination or appointment, shal
forfeit his office, and be forever disqualified to hold any public office, trust or appointment under the consti-
tution or laws of this state, and shall be punished by imprisonment in the state prison not more than ten
years, or by fine not exceeding five thousand dollars, and imprisonment in the county jail not more than one
year.
SEc. 9, Every person who shall corrupt, or attempt to corrupt, any master in chancery, auditor, juror,
arbitrator or referee, by giving, offering or promising any giſt or gratuity whatever, with the intent to bia”.
CHAP. 156.] ( 953 ) [TIELE 30.
3
4
10
the opinion or influence the decision of such master in chancery, auditor, juror, arbitrator or referee, in re-
lation to any matter which may be pending in the court, or before an inquest, or for the decision of which
such arbitrator or referee shall have been appointed or chosen, shall be punished by imprisonment in the
state prison not more than five years, or by fine not exceeding one thousand dollars, and imprisonment in
the county jail not more than one year.
sº
- . . . ." S inte ‘bitrator * • -
SEc. 10. If any person summoned as a juror, or chosen or appoin d as an arbitrator, or if any master in Accepting bribes,
by jurors autl
others.
chancery, or auditor, shall corruptly take any thing to give his verdict, award or report, or shall corruptly
receive any gift or gratuity whatever, from a party to any suit, cause or proceeding, for the trial or decis-
ion of which such juror shall have been summoned, or ſor the he uring or determination of which such mas-
ter in chancery, auditor, arbitrator or referee shall have been chosen or appointed, he shall be punished by
imprisonment in the state prison not more than five years, or by fine not exceeding one thousand dollars,
and imprisonment in the county jail not more than one year.
_z
SEc. 11. Every person who shall convey into any jail, prison, or other like place of confinement, any dis-
guise, or any instrument, tool, weapon or other thing, adapted or useful to aid any prisoner in making his
Aiding escapes,
rescuing prison-
º * > * * * te ſº g €rS.
escape, with intent to ſacilitate the escape of any prisoner there lawfully committed or detained, or shall, by *
sº
any means whatever, aid or assist any such prisoner in his endeavor to make his escape therefrom,
1840, p.43, sec 3.
whether such escape be effected or attempted, or not, and every person who shall forcibly rescue any pris-
oner, held in custody upon any conviction or charge of an offence, shall be punished by imprisonment in
the the state prison not more than seven years; or, if the person whose escape or rescue was effected or in-
tended, was charged with an offence not capital, nor punishable by imprisonment in the state prison, then
the punishment for the offence mentioned in this section, shall be by imprisonment in the county jail not
more than one year, or by fine not exceeding five hunered dollars.
Sec. 12. Every person who shall aid or assist any prisoner in escaping or in attempting to escape from
any officer or person who shall have the lawful custody of such prisoner, shall be punished by imprisonment §.".
* - . - I’Oſſl all Officer.
in the county jail not more than one year, or by fine not exceeding five hundred dollars.
Cººp. 156.] ( 954 ) [Trple 30.
Suſſering escape
from prison,
Suffering negli-
gent oscape, re-
fusing to receive
a prisoner.
Refusing to ar-
rest, suffering es-
peace.
Falsely assum-
ing to be a jus-
tice, &c.
Disguising to re-
sist, &c.
I.
2
2
2
2
3
4
5
l
2
3
'4
Sec. 13. If any Jafior, or other Öfficer, shall voluntarily stiffer any prisoner in his custody upon conviction,
or upon any criminal charge, to escape, he shall suffer the like punishment and penalties as the prisoner
so suffered to escape was sentenced to, or would be liable to suffer, upon conviction, for the crime or offence
*
wherewith he stood charged.
SEc. 14. lf any jailor or other officer shall, through negligence, suffer any prisoner in his custody upon
conviction or upon any criminal charge, to escape, or shall willfully refuse to receive into his custody any
prisoner lawfully committed thereto, on any criminal charge or conviction, or any lawful process whatever,
he shall be punished by imprisonment in the county jail not more than two years, or by fine not exceeding
Öne thousānd dollars.
SEc. 15. If any officer authorized to serve process, shall wilfully and corruptly refuse to execute any
lawful process to him directed, and requiring him to apprehend or confine any person convicted or emigº
with an offence, or shall wilfully and corruptly omit or delay to execute such process, whereby such person
shall escape and go at large, he shall be punished by imprisonment in the county jail not more than one
year, or by fine not exceeding five hundred dollars.
SEC. 16. If any person being required by any sheriff, deputy sheriff, coroner or constable, shall neglect
or refuse to assist him in the execution of his office, in any criminal čase, or in the preservation of the
peace, or the apprehending or securing of any person for a breach of the peace, or in any case of escape
or rescue of persons arrested upon civil process, he shall be punished by imprisonment in the county jail
not more than six months, or by fine not exceeding one hundred dollars.
SEc. 17. If any justice of the peace, upon view of any breach of the peace, or any other offence proper for
his cognizance, shall require any person to apprehend and bring before him the offender, every person so
required, who shall refuse to obey such justice, shall be punished in the same manner that is provided in the
preceding section for refusing assistance to a sheriff; afid no person to whom such justice shall be known,
CHAP. 156.] - ( 955 ) [TITLE 30.
5 od shall declare himself to be a justice of the peace, shall be permitted to plead any excuse, or pretence of
6 ignorance of his office.
l Sec. 18. If any person shall falsely assume or pretend to be a justice of the peace, sheriff, deputy sheriff, raiseyanu-
f #! be a jus-
tice & C.
2 coroner or constable, and shall take upon himself to act as such, or to require any person to aid und assist
3 him in any matter pertaining to the duty of a justice of the peace, sheriff, deputy sheriff, coroner or
4 constable, or shall falsely take upon himself to act or officiate in any office or place of authority, he shall
5 be punished by imprisonment in the county jail not more than one year, or by fine not exceeding four hun-
6 dred dollars.
r
1 Sec. 19. Eyery person who shall in any manner disguise himself, with intent to obstruct the due execution D
- - isguisng to re-
sist, &c.
2 of the law, or with intent to intimidate, hinder or interrupt any officer or any other person, in the legal per-
3 formance of his duty, or the exercise of his rights under the constitution and laws of this state, whether
4 such intent be effected or not, shall be punished by imprisonment in the county jail not more than one year,
5
or by fine not exceeding five hundred dollars, and may also be bound to good behaviour for the term of one
.*
6 year, after conviction of the offence, or after the expiration of such imprisonment.
1 Sec. 20. If any person, having knowledge of the commission of any offence punishable with death, or by
. © e e g s Concealing and
2 imprisonment in the state prison, shall take any money, or any gratuity or reward,or any engagement there- fºunding of-
- &s - 3
3 for, upon an agreement or understanding, express or implied, to compound or conceal such offence, or not
4 to prosecute therefor, or not to give evidence thereof, he shall, when such offence of which he had knowl-
5 edge, was punishable with death, or imprisonment in the state prison for life, be punished by imprisonment
6 in the state prison not more than five years, or in the county jail not more than oné year; and where the
7 offence, of which he so had knowledge, was punishable in any other manner, he shall be punished by im-
8 prisonment in the county jail not more than one year, or by fine not exceeding five hundred dollars.
1 Sec. 21. If any sheriff, coroner, constable or other officer authorized to serve legal process, shall receive
239
CHAP. 156.] ( 956 ) - [TITLE 30.
Officers omitting
duty.
Official extortion
Obstructing sher-
iff, &c. in the crº-
ecution of pro-
CC88,
1840, p. 42, see 2.
Breaking prison.
1849, p 43, Sec 4.
2
2
4
5
from a defendant, or from any other person, any money or other valuable thing, as a consideration, reward,
or inducement, for omitting or delaying to arrest any defendant, or to carry him before a magistrate, or for
delaying to take any person to prison, or for postponing the sale of any property under an execution, or for
omitting or delaying to perſorm any duty pertaining to his office, he shall be punished by imprisonment in
the county jail not more than six months, or by fine not exceeding five hundred dollars.
Sec. 22. If any person shall wilfully and corruptly demand and receive from another, ſor performing any
service or any official duty, for which the ſee or compensation is established by law, any greater ſee or
compensation than is allowed or provided for the same, he shall be deemed to have committed the offence
of extortion, and shall be punished by a fine not exceeding one hundred dollars; but no prosecution for
such offence shall be sustained, unless it shall be commenced within one year next aſter the offence was
committed.
Sec. 23. HF any person shall knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, con-
stable or other officer or person duly authorized, in serving or attempting to serve or execute any process
rule or order, made or issued by lawſul authority, or shall assault, beat or wound any sheriff, coroner, con-
stable or other officer duly authorized, while serving or attempting to serve or execute any such process,
rule or order, or for having seryed or attempted to serve or execute the same, every person so offending
6 shall be punished by imprisonment in the state prison not more than two years, or by imprisonment in the
7
county jail not more than one year, or by fine not exceeding five hundred dollars,
Sec. 24. If any person, being imprisoned in the state prison for any term less than for life, shall break
prison and escape, or break prison, though no * shall actually be mº, or shall, by ſorce and violence
attempt to escape therefrom, he shall be punished by further imprisonment in the state prison not more than
three years, or by fine not exceeding five hundred dollars; and every prisoner who shall actually escape
as aforesaid, shall after his return to such prison, be imprisoned therein for as long a time as remained un-
expired of his former sentence, at the time of such escape, besides such further term of imprisonment as
aforesaid.
Chap. 157.] - ( 957 ) [TITLE 80.
1 Sec. 25. When any duty is or shall be enjoined by law upon any public officer, or upon any person hol-
Neglect by public
officers.
ding any public trust or employment, every wilful neglect to perform such duty, where no special provis-
º
3 ion shall have been made for the punishment of such delinquency, shall be deemed a misdemeanor.
1 Sec. 26. When the performance of any act is prohibited by any statute, and no penalty for the violation
Certain acts mis-
demean Ors.
2 of such statute is imposed, either in the same section containing such prohibition, or in any other section or
3 statute the doing of such act shall be deemed a misdemeanor.
1 sec. 27. Every person who shall be convicted of a misdemeanor, the punishment of which is not other-
Punishment for
2 wise prescribed by any statute, shall be punished by imprisonment in the county jail not more than one year
3 or by fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.
CHAPTER 157.
OF OFFENCES AGAINST THE PUBLIC PEACE.
1 Sec. 1. If any persons, to the number of twelve or more, being armed with clubs, or other dan-
misdemeanor.
Unlawful assem-
blies how Bup-
2 gerous weapons, or if any persons, to the number of thirty or more, whether armed or not, shall pressed.
3 be unlawfully, riotously, or tumultuously assembled in any city, township or village, it shall be the
4 duty of the mayor and each of the aldermen of such city, the supervisor of such township, the
5 president and each of the trustees or members of the common council of such village, and of every
6 justice of the peace, living in such city, township or villlage, and also of the sheriff.of the county
7 and his deputies, to go among the persons so assembled, or as near to them as may be with safety,
s and in the name of the people of this state, to command all the persons so assembled immediately
9 and peaceably to disperse.
1 Sec. 2. If the persons so assembled shall not, upon being so commanded, thereupon immediately
16.
2 and peaceably disperse, it shall be the duty of each of said magistrates and officers, to command
CHAP. 157.] - ( 958 ) - - [TITLE 30.
3 the assistance of all persons there present, in seizing, arresting and securing in custody the persons
4 so unlawfully assembled, so that they may be proceeded against for their offences according to
5 law.
rºom, ºn 1 Sec. 3. If any person present, being commanded by any of the magistrates or officers aforesaid,
officer to dis-
perse.
2 to aid and assist in seizing and securing such rioters, or persons so unlawfully assembled, or in
3 suppressing such riot or unlawful assembly, shall refuse or neglect to obey snch command, or when
4 required by any such magistrate or officer to depart from the place of such riotous or unlawful
5 assembly, shall refuse or neglect so to do, he shall be deemed to be one of the rioters or persons
6 unlawfully assembled, and shall be liable to be prosecuted and punished accordingly.
1 Sec. 4. If any mayor, alderman, supervisor, president, trustee or member of a common council,
Neglect of offi- *... "
cers to suppress
• mobs.
2 justice of the peace, sheriff, or deputy sheriff, having notice of any such riotous or tumultuous and
3 unlawful assembly as is mentioned in this chapter, in the city, township or village in which he lives,
4 shall neglect or refuse immediately to proceed to the place of such assembly, or as near thereto as
5 he can with safety, or shall omit or neglect to exercise the authority with which he is invested by
6 this chapter, for suppressing such riotous or unlawful assembly, and for arresting and securing the
*
7 offenders, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding
8 three hundred dollars.
1 Sec. 5. If any persons, who shall be so riotously or unlawfully assembled, and who shall have
Use oſ force to
quell mobs.
2 been commanded to disperse, as before provided, shall refuse or neglect to disperse, without unne-
3 cessary delay, any two of the magistrates or officers before mentioned, may require the aid of a
4 sufficient number of persons, in arms or otherwise, as may be necessary, and shall proceed in such
5 manner as in their judgment shall be expedient, forthwith to disperse and suppress such unlawful,
6 riotous or tumultuous assembly, and seize and secure the persons composing the same, so that they
7 may be proceeded with according to law.
CHAP. 157.] ( 959 ) [Title 30.
1 Sec. 6. Whenever an armed force shall be called out in the manner provided by law for the pur-
Armed force
when to obey.
2 pose of suppressing any tumult or riot, or to disperse any body of men acting together by force,
3 and with intent to commit any felony, or to offer violence to persons or property, or with intent,
4 by force or violence, to resist or oppose the execution of the laws of this state, such armed force,
5 when they shall (arrive at the place of such unlawful, riotous or tumultuous assembly, shall obey
6 such orders for suppressing the riot or tumult, and for dispersing and arresting all persons who are
7 committing any of the said offences, as they may have received from the governor, or from any
8 judge of a court of record, or the sheriff of the county, and also such further orders as they shall
9 there receive from any two of the magistrates or officers mentioned in the first section of this
10 chapter.
1 Sec. 7. If, by reason of any of the efforts made by any two or more of the said magistrates or
& Officers guiltless
g - - e - e º if death ensue;
2 officers, or by their direction, to disperse such unlawful, riotous or tumultuous assembly, or to seize #..."jly
responsible.
3 and secure the persons composing the same, who have refused to disperse, though the number re-
4 maining may be less than twelve, any such person, or any other persons there present as specta-
5 tors or otherwise, shall be met or wounded, the said magistrates and officers, and all persons
6 assisting by their order, or under their direction, shall be held guiltless and fully justified in law;
7 and if any of the said magistrates or officers, or any person acting by their order, or under their
8 direction, shall be killed or wounded, all the persons so unlawfully, riotously or tumultuously as-
9 bled, and all other persons who, when commanded or required, shall have refused to aid or assist
10 the said magistrates or officers, shall be held answerable therefor.
I Sec. 8. If any of the persons, so unlawfully assembled, shall demolish, pull down or destroy, or
- #.
... ling house or
2 shall begin to demolish, pull down or destroy any dwelling house or any other building, or any ship tier ironery.
3 or vessel, he shall be punished by imprisonment in the state prison not more than five years, or by
4 a fine not exceeding one thousand dollars, and imprisonment in the county jail not more than one
240
CHAP. 158.] ( 960 ) [TITLE 30.
5 year, and shall also be answerable to any person injured, to the full amount of the damage, in an
6 action of trespass.
Inciting Indians l Sec. 9. If any person shall incite, or attempt to incite any Indian nation, tribe, chief or individual,
to violate treaty
&c.
2 to violate any treaty of peace with any other Indian nation or tribe, or with the United States, or
3 to disturb the peace and tranquility existing between any Indian nation or tribe, and any other In-
4 dian nation or tribe, or the people of the United States, or shall incite or attempt to incite any In-
1841, p. 138. -
5 dian nation, tribe, chief or individual to violate any law of the United States, or of this state, he
6 shall be punished by imprisonment in the state prison not more than five years, or by a fine not
7 exceeding one thousand dollars, and imprisonment in the county jail not more than one year.
*}. - -
CHAPTER [58.
OF OFFENCES AGAINST CHASTITY, MORALITY AND DECENCY.
1 Sec. I. Every person who shall commit adultery, shall be punished by imprisonment in the state
Adultery, pun-
ishment of. - º - º
2 prison not more than three years, or by a fine not exceeding five hundred dollars, or imprisonment
3 in the county jail not more than one year; and when the crime is committed between a married
4 woman and a man who is unmarried, the man shall be deemed guilty of adultery, and be liable to
5 the same punishment.
...” “ I Sec. 2. The term “adultery,” as used in this chapter, has the same meaning as when used in
2 reference to the causes of a divorce,and the same which it bears according to the common usage of
3 the language.
1 Sec. 3. No prosecution for adultery shall be commenced, but on the complaint of the husband or
By whom pro-
secution for a-
*::::::::...” wife; and no such prosecution shall be commenced after one year from the time of committing the
3 offence.
CHAP. 158.] - ( 961 ) [TIELE 30.
I
2
Sec. 4. If any person who has a former husband or wife living, shall marry another person, or
- Polygamy.
shall continue to cohabit with such second husband or wife, in this state, he or she shall, except in
the cases mentioned in the following section, be deemed guilty of the crime of polygamy, and shall i. 180.8 .
be punished by imprisonment in the state prison not more than five years, or in the county jail not
more than one year, or by fine not exceeding five hundred dollars.
Sec. 5. The provisions of the preceding section shall not extend to any person whose husband or
g e {e e e § Excepted cases.
wife shall have been continually remaining beyond sea, or shall have voluntarily withdrawn from
º º g
the other, and remained absent for the space of five years together, the party marrying again not
knowing the other to be living within that time, nor to any person who shall have good reason to
believe such husband or wife to be dead, nor to any person who has been legally divorced from the
bonds of matrimony, and was not the guilty cause of such divorce.
Sec. 6. If any man and woman, not being married to each other, shall lewdly and lasciviously
associate and cohabit together, or if any man or woman, married or unmarried, shall be guilty of:..."
tion, &c.
open and gross lewdness and lascivious behavior, or shall designedly make any open and indecent
or obscene exposure of his or her person, or of the person of another, every such person shall be
punished by imprisonment in the county jail not more than one year, or by fine not exceeding five
hundred dollars.
Sec. 7. If any man shall seduce and debauch any unmarried woman, he shall be punished by im-
tº & ty tº * - g ºt Seduction; how
prisonment in the state prison not more than five years, or by imprisonment in the county jail not punished,
more than one year, or by fine not exceeding one thousand dollars; but no prosecution shall be
1844, p. 6. &c.
sº
commenced under this or the last preceding section, after one year from the time of committing
the offence.
See. 8. If any woman shall conceal the death of any issue of her body, which, if born alive, would
Concealment by
be a bastard, so that it may not be known whether such issue was born alive or not, or whether it...";
y
CHAP. 158.] | ( 962 ) - [Titus 30.
3 was not murdered, she shall be punished by fine not exceeding one hundred dollars, or by imprison-
4 ment in the county jail not more than one year.
1 Sec. 9. Any woman who shall be indicted for the murder of her infant bastard child, may also be
How charged in
such case in in-
dictment.
2 charged in the same indictment with the offence described in the preceding section; and if on the
3 trial, the jury shall acquit her of the crime of murder, and find her guilty of the other offence,
4 judgment and sentence may be awarded against her for the same.
e.
Keeping house I Sec. 10. Every person who shall keep a house of ill fame, resorted to for the purpose of prostitu-
of ill-fame. f
2 tion or lewdness, shall be punished by imprisonment in the county jail not more than one year, or by
3 fine not exceeding three hundred dollars.
r.
*
1 Sec. 11. Whenever the lessee of any dwelling house shall be convicted, or shall be guilty of the
Lease of house - sº
so kept, void. e -
2 offence mentioned in the preceding section, the lease or contract for letting such house, shall, at the
2 option of the lessor, become void, and such lessor shall thereupon have the like remedy to recover
4 the possession as against a tenant holding over after the expiration of his term.
Penalty'upon 1 Sec. 12. If any person shall let any dwelling house, knowing that the lessee intends to use it as a place
person letting
dwelling house,
knowing that it is tº , tº * • *- : -
ºne 2 of resort for the purpose of prostitution or lewdness, or shall knowingly permit such lessee to use the same
purposes of pros -
titution.
3
for such purpose, he shall be punished by fine not exceeding three hundred dollars, or imprisonment in the
county jail not more than six months.
4
I SEc. 13. If any person shall import, print, publish, sell or distribute any book, pamphlet, ballad, printed
Obscene books - -
or prinis. & e ſº tº &
2 paper, or other thing, containing obscene language, or obscene prints, pictures, figures or descriptions,
manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school or
3
4
place of education, or shall buy,"procure, receive or have in his possession, any such book, pamphlet, bal-
5 lad, printed paper or other thing, either for the purpose of sale, exhibition, loan or circulation, or with in
6 tent to introduce the same into any family, school or place of education, he shall be punished by imprison-
7 ment in the county jail not more than one year, or by fine not exceeding one thousand dollars.
CHAP. 158.] ( 963 ) e [Title 30.
1 SEC. 14. Any justice of the peace may issue a search warrant, for the purpose of searching for any such Search Warrant
may issue for
º e - te º s same; destruc-
2 obscene books, pamphlets, ballads, printed papers or other things mentioned in the preceding section, in the tion of.
3 manner provided by law in cases of property stolen or embezzled; and all such things, which shalll be found
4
by any officer," in executing a search warrant, or which shall be produced or brought into court, shall “
5
be safely kept so long as shall be necessary for the purpose of being used as evidence in any case, and as
6 soon as may be aſterwards, shall be destroyed by order of the court before whom the same shall be brought.
1 SEc. 15. All persons being within the degree of consanguinity within which marriages are prohibited, or *
2 declared by law to be incestuous and void, who shall intermarry with each other, or who shall commit adul-
3
tery or fornication with each other, shall be punished by imprisonment in the state prison not more than fif-
4 teen years, or in the county jail not more than one year.
*
1 SEc. 16. Every person who shall commit the abominable and detestable crime against nature, either with
Crime against
nature,
2
mankind or with any beast, shall be punished by imprisonment in the state prison not more than fifteen
3 years. **
1 Sec. 17. If any person shall wilfully blaspheme the holy name of God, by cursing, or contumliously re-
Blasphemy.
2
proaching God, he shall be punished by imprisonment in the county jail not more than six months, or by
3 fine not exceeding fifty dollars.
1 SEc. 18. If any person who has arrived at the age of discretion, shall profanely curse or damn, or swear
Cursing and
2 by the name of God, Jesus Christ, or the Holy Ghost, he shall on conviction thereof before any justice of the swearing.
3 peace, be punished by fine not exceeding five dollars, nor less than one dollar; but no such prosecution shall
4 be sustained unless it shall be commenced within five days after the commission of such offence.
1 SEc. 19, Every person who, on the first day of the week, or at any other time, shall wilfully interrupt Ol'
- Disturbing reli-
gious worship.
2 disturb any assembly of people met for the worship of God, within the place of such meeting or out of it,
24l
CHAP. 158.] ( 964 ) [Title 30.
Exciting disturb- *
Flyn Ce.
Violation of sep-
ulchar.
Injuring tombs
and memorials of
the dead.
Making highway
&c. through bu-
rying ground.
3
4
I
2
I.
6
shall, on conviction thereof before any justice of the peace, be punished by imprisonment in the county jail
not more than thirty days, or by fine not exceeding fifty dollars.
SEc. 20. If any person shall make or excite any disturbance or contention in any tavern, store or groce-
ry, or at any election or other public meeting where the citizens are peaceably and lawfully assembled, he
shall, on conviction before any justice of the peace, be punished by fine not exceeding twenty dollars, and
imprisonment in the county jail not more than ten days,
t
SEc. 21. If any person, not being lawfully authorized so to do, shall wilfully dig up, disinter, remove or
convey away any human body, or the remains thereof; from the place where such body may be interred or
deposited, or shall knowingly aid in such disinterment, removal or conveying away, every such offender,
and every person accessory thereto, either before or aſter the fact, shall be punished by imprisonment in
the state prison not more than two years, or in the county jail not more than one year, or by fine not ex-
ceeding two thousand dollars.
SEc. 22. If any person shall wilfully destroy, mutilate, deface, injure or remove any tomb, monument,
gravestone or other structure or thing placed or designed for a memorial of the dead, or any fence, railing,
curb or other thing intended for the protection or for the ornament of any tomb, monument, gravestone or
other structure beforementioned, or of any enclosure for the burial of the dead, or shall wilfully destroy, mu-
tilate, remove, cut, break or injure any tree, shrub or plant, placed or being within any such enclosure, the
person so offending shall be punished by fine not exceeding five hundred dollars, nor less than ten dollars,
or by imprisonment in the connty jail not more than one year.
SEc. 23. If any person shall open or make any highway, or shall construct any railroad, turnpike or ca-
nal, or any other thing in the nature of a public easement, over, through, in or upon, such part of any en-
closure, being the property of a township, city, religious society, or of any other body corporate, or of pri-
vate proprietors, as may be used or appropriated for the burial of the dead, unless an authority for that pur-
pose shall be specially granted by law, or unless, the consent of such township, city, religious society, body
corporate or proprietors respectively, shall be first obtained, he shall be punished by fine not exceeding two
7 thousand dollars, or imprisonment in the county jail not more than one year.
CHAP. 159.] ( 965 ) [TITLE 30.
1 Sec. 24. Every person who shall cruelly beat or torture any horse, ox or other animal, whether belong.
2
Cruelty to ani.
mals.
ing to himself or another, shall be punished by imprisonment in the county jail not more than six months,
3 or by fine not exceeding fifty dollars,
l
2
3.
4
CHAPTER 159.
OF OEFENCES AGAINST THE PUBLIC HEALTH.
Sec. 1. If any person shall knowingly sell any kind of diseased, corrupted or unwholesome pro-san, nº.
some provisions
without notice.
visions, whether for meat or drink, without making the same fully known to the buyer, he shall be
punished by imprisonment in the county jail not more than six months, or by fine not exceeding
two hundred dollars.
Sec. 2. If any person shall fraudulently adulterate, for the purpose of sale, any substance intended ºngood
or liquors.
for food, or any wine, spirits, malt liquor, or other liquor intended for drinking, with any substance
injurious to health, he shall be punished by imprisonment in the county jail not more than one year,
or by fine not exceeding three hundred dollars, and the article so adulterated shall be forfeited and
destroyed.
Sec. 3. If any person shall fraudulently adulterate, for the purpose of sale, any drug or medicine, ...
cines.
in such manner as to render the same injurious to health, he shall be punished by imprisonment in
the county jail not more than one year, or by fine not exceeding four hundred dollars, and such
adulterated drugs and medicines shall be forfeited and destroyed.
Sec. 4. If any physician or other person, while in a state of intoxication, shall prescribe any poison, º: -
- ing poison, &c,
W #. intoxicated,
drug or medicine, to another person, which shall endanger the life of such other, he shall be pun-
ished by imprisonment in the county jail not more than one year, or by fine not exceeding five
hundred dollars.
CHAP: 160.] ( 966 ) - [TITLE: 30.
Penalty on ap-
olhecary, &c,
for meglecting to
1
Sec. 5. Every apothecary, druggist, or other person, who shall sell and deliver any arsenic, cor-
iºrtain sub-2 rosive sublimate, prussic acid, or any other substance or liquid usually denominated poisonous,
Stall C&S.
Setting up or pro
moting lotteries
Selling lottery
tickets or aiding
therein
3 without having the word “poison” written or printed upon a label attached to the phial, box or
4 parcel, in which the same is so sold, or who shall sell and deliver any tartar emetic without having
6 the true name thereof written or printed upon a label attached to the vial, box or parcel containing
7 the same, shall be punished by a fine not exceeding one hundred dollars.
l
2
3.
4.
5
6.
10
2
l
CHAPTER 160.
OF OFFENCES AGAINST THE PUBLIC POLICY.
SECTION 1. Every person who shall set up or promote within this state, any lottery for money, or shall
dispose of any property real or personal, or valuable thing, by way of lottery, and every person who shall
aid, either by printing or writing, or shall in any way be concerned in the setting up, managing or draw-
ing of any such lottery, or who shall, in any house, shop or building owned or occupied by him, or under
his control, knowingly permit the setting up, managing or drawing of any such lottery, or the sale of any
lottery ticket or share of a ticket, or any other writing, certificate, bill, token or other device, purporting
OT intended to entitle the holder, bearer or any other person to any prize, or to any share of, or interest in,
any prize to be drawn in any such lottery, or who shall knowingly suffer money or other property to be raft
fled for in such house, shop or building or to be there won by throwing or using dice, or by any other game
of chance, shall, ſor every such offence, be punished by a fine not exceeding two thousand dollars.
Sec. 2. Every person who shall sell, either for himself or for any other person, or shall offer for sale, or
shall have in his possession, with intent to sell or offer for sale, or to exchange or negotiate, or shall in any
wise aid or assist in the selling, negotiating or disposing of a ticket in any such lottery, or a share of a
ticket, or any such writing, certificate, bill, token or other device, as is mentioned in the preceding section,
shall be punished for every such offence by a fine not exceeding two thousand dollars.
SEc. 3. If any person shall, after being convicted of any offence mentioned in either of the two prece-
CHAP. 161.]
( 967 ) - [TITLE 30.
2
3
l
2
ding sections, commit the like offerce, or any other of the offences the rein mentioned, he shall, in addition
Case of second
* conviction
to the fine provided therefor, be further punished by imprisonment in the county jail not more than one
year.
SEc. 4. Every person who shall advertise any lottery ticket, or any share in any such ticket for sale, eith- *::::::::::::
iting representa-
tion of lottery.
er by himself or by another person, or who shall set up or exhibit, or shall devise and make for the purpose
of being set up and exhibited, any sign, symbol or any emblematic or other representation of a lottery, or
of the drawing thereof, in any way indicating where a lottery ticket or a share thereof, or any such writing,
certificate, bill, token or other device before mentioned, may be purchased or obtained, or shall in any way
invite or entice or attempt to entice any other person to purchase or receive the same, he shall be punished
for every such offence, act or attempt, by a fine not exceeding one hundred dollars.
CHAPTER 16 ſ.
GENERAL PROVISIONS CONCERNING CRIMES AND PUN ISHMENTS.
Section 1. Every person who shall be aiding in the commission of any felony, or who shall be accessory
Accessories be-
fore the fact to
thereto before the fact, by counselling, hiring, or otherwise procuring such felony to be committed, shall be fººd
same as principal
punished in the same manner which is or shall be prescribed for the punishment of the principal felon.
SEC. 2. Every person who shall counsel, hire or otherwise procure any felony to be committed, may be
Accessoriel be-
fore the fact, how
indicted and convicted as an accessory before the fact, either with the principal felon, or after the convic-indi*
tion of the principal felon, or he may be indicted and convicted of a substantive felony, whether the principal
felon shall or shall not have been convicted, or shall or shall not be amenable to justice, and in the last
mentioned case, may be punished in the same manner as if convicted of being an accessory before the fact.
Sec. 3. Any person charged with the offence mentioned in the preceding section, may be indicted, tried 16 Mass sº
and convicted in the same county where the principal might be indicted and tried, although the offence of:
242
Char. 161.] *. ( 968 ) [TITLE 86.
3 counselling, hiring or procuring the commission of such felony, may have been committed on the high seas,
Further provis- a' - - -
ions retative to
h * , - - . . . & " i is . .' ' . * . . . . . . . e •...i • . . . . . . . . . . . . . . + • * * , .
the S&Ine 4 or on any other navigable waters, or on land, either within or without the limits of this state,
r
1 Sec. 4. Every person not standing in the relation of husband or wiſe, parent or grand parent, child or
e
2 grand child, brother or sister, by consanguinity or affinity, to the offender, who, aſter the commission of
8 any felony, shall harbor, conceal, maintain or assist any principal felon, or accessory before the fact, or
Punishment of
person not rela- -
tive for aiding es- - - - - •' ºr n . . • : - tº -
cape of felon 4 shall give such offender any other aid, knowing that he had committed a felony, or had been accessory
5 thereto before the fact, with intent that he shall avoid or escape from detection, arrest, trial or punishment,
6 shall be deemed an accessory aſter the fact, and shall be punished by imprisonment in the state prison not
7 more than seven years, or in the county jail not more than one year, or by fine not exceeding one thousand
8 dollars.
1 SEc. 5. Every person who shall have become an accessory after the fact to any ſelony, may be indicted,
How such per- . - º
son tried 2 convicted and punished, whether the principal felon shall or shall not have been previously convicted, or
3 shall or shall not be amenable to justice, by any court having jurisdiction to try the principal felon, and,
4 either in the county where such person shall have become an accessory, or in the county where such prin-
5 cipal ſelony shall have been committed. - - *.
1 Sec. 6. Any offence committed on the boundary of two counties, or within one hundred rods of the divi.
ºut 2 ding line between them, may be alleged in the indictment to have been committed, and may be prosecuted
counties:
3. and punished in either county.
Sec. 7. If any mortal wound shall be given, or other violence or injury shall be inflicted, or any poison
I.
º . inju- -
& In t º & & - - - g i -
* 2 shall be administered in one county, by means whereof death shall ensue in another county, the offence may
county
*Y.
3 be prosecuted and punished in either county. - *.
1 Sec. 8. If any such mortal wound shall be given, or other violence or injury shall be inflicted, or poison
Or on the high
seas, &c.
2 administered on the high seas,or on any other navigable waters, or on land either within or without the limits,
CHAP. 161.] ( 969 ) [TIELE 39.
3
of this state, by means whereof death shall ensue in any county thereof, such offence may be prosecuted
4 and punished in the county where such death may happen.
1 SEc. 9. In any prosecution for the offence of embezzling the money, bank notes, checks, bills of exchange,
i.”
3.110 eV 1062nce
2 or other securities for money of any person, by a clerk, agent or servant of such person, it shall be suffi-
3 cient to allege generally in the indictment, an embezzlement of money to a certain amount, without speci-
4 fying any particulars of such embezzlement, and on the trial evidence may be given of any such embez-
ess-
5 zlement committed within six months next aſter the time stated in the indictment; and it shall be sufficient Ownership of
property embez-
zled
6 to maintain the charge in the indictment, and shall not be deemed a variance, iſ it shall be proved that any
7 money, bank note, check, draft, bill of exchange or other security for money, of such person of whatever
8 amount was fraudulently embezzled by such clerk, agent or servant within the said period of six months.
1 SEc. 10. In the prosecution of any offence committed upon or in relation to or in any way affecting any Attempt to com-
IIllt Crimes
2 real estate, or any offence committed in stealing, embezzling, destroying, injuring or fraudulently receiv-
3 ing or concealing any money, goods or other personal estate it shall be sufficient and shall not be deemed a
4 variance, if it be proved on the trial, that at the time when the offence was committed, either the actual or
5 constructive possession or the general or special property, in the whole or in any par of such real or per-
6 sonal estate, was in the person or community alleged in the indictment or other accusation to the owner
7 thereof.
1 SEC. 11. Every person who shall attempt to commit an offence prohibited by law, and in such attempt shall convicts once.
- - before sentenced
to state prison.
2 do any act towards the commission of such offence, but shall fail in the perpetration or shall be intercepted
3 or prevented in the execution of the same, when no express provision is made by law for the punishment of
4 such attempt shall be punished as follows:
§ 1. lf the offence attempted to be committed is such as is punishable with death, the person convicted of
6 such attempt shall be punished by imprisonment in the state prison not more than ten years &
CHAP. 161.] . ( 970 ) [TITLE 30.
7
8
10
Conyicts before
sentenced
Benefit of clergy,
&c, abolished
Prosecutions by
appeal for mur-
der, &c, abolish-
cd.
How jury may
findwhen offence
consists of differ-
eut degrees
11
12
13
14
1
1
1.
2. If the offence so attempted to be committed is punishable by mºmen in the state prison for life, or
for five years or more, the person convicted of such attempt, shall be punished by imprisonment in the state
prison not more than three years or in the county jail not more than one year :
3. lf the offence so attempted to be committed is punishable by imprisonment in the state prison for a term
less than five years or w imprisonment in the county jail, or by fine, the offender convicted of such attempt
shall be punished by imprisonment in the county jail not more than one year or by fine not exceeding three
hundred dollars; but in no case shall the punishment by imprisonment exceed one half of the greatest
punishment which might have been inflicted if the offence so attempted had been committed.
q
Sec. 12. When any person shall be convicted of any offence, and shall be duly sentenced therefor to con-
finement in the state prison of this state, ſor one year or more, and it shall be alleged in the indictment Oll
which such conviction is had, and admitted or proved on the trial, that the convic has before been sentenced
to a like punishment by any court in this state, or in any other of the United States, for a period not less
than one year, he shall be sentenced to be punished by imprisonment in the state prison not more than sev-
en years, in addition to the punishment prescribed by law for the offence of which he shall then be con-
victed.
SEc. 13. When any such convict shall have been twice before sentenced to imprisonment at hard labor,
for a period of not less than one year at each time, by any court in this state, or in any other of the United
States, he shall be sentenced to imprisonment at hard labor for life, or for a term of not less than seven years
in addition to the punishment prescribed by law for the offence of which he shall then be convicted.
SEc. 14. The plea of benefit of clergy, and the distinction between murder and petit treason, are abolished,
and the last named offence shall be prosecuted and punished as murder.
Sec. 15. Prosecution by appeal, for murder, manslaughter, rape, arson or other crime or offence, and
trials by battle, are in all cases abolished.
Sec. 16. Upon an indictment for any offence, consisting of different degrees, as prescribed in this title, the
CHAP. 161.] ( 971 ) [TITLE 30.
2 jury may find the accused not guilty of the offence in the degree charged in the indictment, and may find
3 such accused person guilty of any degree of such offence, inferior to that charged in the indictment, or of
4 an attempt to commit such offence.
1 SEC. 17. When a defendant shall be acquitted or convicted upon any indictment for an offence, consisting Defendant once
acquitted, &c,
not to be tried
: ſº - - º : .- a 1.- : – a e e - thereaf
2 of different degrees, as prescribed in this title, he shall not thereafter be tried or convicted for a different de- #:
of the same of.
fence
3 gree of the same offence; nor shall he be tried or convicted for any attempt to commit the offence charged
4 in the indictment, or to commit any degree of such offence.
tº - - - º “Felony” defin-
1 SEC. 18. The term “felony,” when used in this title, or in any other statute, shall be construed to mean ed
2 an offence for which the offender, on conviction, shall be liable by law to be punished by death, or by im-
3 prisonment in the state prison.
1
SEC. 19. The term “felonious,” when used in any statute shall be construed as Synonymous in meaning
‘’ “Felonious” and
“feloniously” de-
º º º e fine
2 with the word “criminal,” and the term “ſeloniously,” when so used, as synonymous in meaning with the
3 word “criminally.”
1 SEC. 20. The term “personal property,” as used in this title, shall be construed to mean goods, chattels,
º prop
- e s e º º e -> e erty” defined
2 effects, evidences of debt, of rights in action, and all written instruments by which any pecuniary obliga-
3 tion, or any right or title to property real or personal, shall be created, acknowledged, transferred, increas.
4 ed, defeated, discharged or diminished.
,”
1 SEc. 21. The term “property,” as used in this title, includes personal property as defined in the preceding
“Property” de-
fined
2 section, and also every estate, interest and right in lands, tenements and hereditaments.
1 SEC. 22. Every person who shall commit any indictable offence at the common law, for the punishment of
Offences indict-
f this state, shall b ished by imprisonment in the º
& •o v, i.e.: an ic 1S State, Shölll D6 OUl IllS Ilê III] D Pl tl W, Il OW pun-
2 which no provision is expressly made by any statute of t 3 Slic p y imp jº
pros provision is
made, &c,
3 county jail not more than two years, or by fine not exceeding two thousand dollars, or both, in the discretion 1840, p 45, sec 8,
4 of the court.
243
CHAP. 162.] ( 972 ) [Title 81.
Officers author-
ized to keep the
peace.
Complaint, how
made.
Arrest.
I
TITLE XXXI.
OF PRocFEDINGS IN CRIMINAL CASEs.
CHAPTER 162.-Of proceedings to prevent the commission of crime.
C ( 163.—Of the arrest and examination of offenders, commitment for trial and taking bail.
{ { 164.—Of indictments and proceedings before trial. -
& C 165.-Of trials in criminal cases.
( { 166.-Of new trials and exceptions in criminal cases.
66 167.—Of coroners' inquests.
6 & 168,-Of judgments in criminal cases and the execution thereof.
& C 169,-Of fees of officers and ministers of justice in criminal cases.
6 & 170,—General provisions concerning proceedings in criminal cases.
CHAPTER (62.
OF PROCEEDINGS TO PREVENT THE COMMISSION OF CRIME.
SECTION 1. The chancellor, the justices of the supreme court, the presiding judge of the district courts,
associate judges of the circuit courts, supreme court commissioners, all mayors and recorders of cities, and
all justices of the peace, shall have power to cause all laws made for the preservation of the public peace,
to be kept, and in the execution of that power, may require persons to give security to keep the peace, in
the manner provided in this chapter.
Sec. 2. Whenever complaint shall be made in writing and on oath, to any such magistrate, that any per-
son has threatened to commit any offence against the person or property of another, it shall be the duty of
such magistrate to examine such complainant, and any witnesses who may be produced, on oath, to reduce
such examination to writing, and to cause the same to be subscribed by the parties so examined.
SEc. 3. If it shall appear from such examination, that there is just reason to fear the commission of any
such offence, such magistrate shall issue a warrant under his hand, directed to the sheriff or any constable
of the county, reciting the substance of the complaint, and commanding him forthwith to apprehend the
4 person so complained of, and bring him before such magistrate.
CHAP. 162.]
( 973 ) [TITLE 31.
1
2
3
4
SEc. 4. When the party complained of is brought before the magistrate, he shall be heard in his defence,
Trial, recogni-
Zance:
and he may be required to enter into a recognizance with sufficient sureties, in such sum as the magistrate
shall direct, to keep the peace towards all the people of this state, and especially towards the person requi-
ring such security, for such term as the magistrate may order not exceeding one year, but shall not be bound
- 4 Mass. 497, 8
over to the next court, unless he is also charged with some other offence, for which he ought to be held to $73, a B. & A.
answer at such next court.
Sec. 5. Upon complying with the order of the magistrate, the party complained of shall be discharged. ºhen dis.
charged.
SEc. 6. If the person so ordered to recognize, shall refuse or neglect to comply with such order, the ma- Refusing to re-
cognize, to be
committed.
gistrate shall commit him to the county jail, during the period for which he was required to give security,
or until he shall so recognize; stating in the warrant the cause of commitment, with the sum and the time
for which such security was required.
*
SEc. 7. If upon examination, it shall not appear that there is just cause to fear that any such offence will
* Sººn,
when to pay
be committed by the party complained of, he shall be forthwith discharged; and if the magistrate shall deem *
the complaint unſounded, frivilous or malicious, he may order the complainant to pay the costs of the pro-
secution, who shall thereupon be answerable to the magistrate and the officer for their fees, as for his own
debt.
SEc. 8. When no order respecting the costs is made by the magistrate, they shall be allowed and paid in
- º of cost
I Il Otiller CaSCS,
the same manner as costs before justices in criminal prosecutions; but in all cases where a person is required
s
to give security to keep the peace, the court or magistrate may further order that the costs of prosecution,
or any part thereof, shall be paid by such person, who shall stand committed, until such costs are paid, or
he is otherwise legally discharged.
SEC. 9. Any person aggrieved by the order of any justice of the peace, requiring him to recognize as
Appeal allowed,
aforesaid, may, on giving the recognizance to keep the peace required by such order, appeal to the circuit
º \
court for the same county.
CHAP. 162.]
( 974 ) [ . [TIELE 31.
2’
Witnesscs to re-
cognize.
Court may ſaſ-
firm order of
justice, or dis-
charge appel-
lant, &c.
Recognizance
when to remain
in ſorce.
Person commit-
ted how dischar-
ged.
Recognizance to
be transmitted to
clerk of court.
Breach of peace
in presenee of
magistrate, &c.
2
5
l
Sec. 10. The justice from whose order an appeal is taken, shall require such witnesses as he may think me.
cessary to support the complaint, to recognize for their appearance at the court to which the appeal is made.
SEC. 11. The court before which such appeal is prosecuted, may affirm the order of the justice, or dis-
charge the appellant, or may require the appellant to enter into a new recognizance, with sufficient sure-
ties, in such sum, and for such time as the court shall think proper, and may also make such order in rela-
tion to the costs of prosecution, as may be deemed just.
Sec. 12. If any party appealing shall ſail to prosecute his appeal, his recognizance shall remain in full
force and effect, as to any breach of the condition, without an affirmation of the judgment or order of the
justice, and shall also stand as a security for any costs which shall be ordered by the court appealed to, to
be paid by the appellant.
*
SEc. 13. Any person committed for not finding sureties, or refusing to recognize, as required by the court
or magistrate, may be dischanged by any judge, supreme court commissioner or justice of the peace, on
giving such security as was required.
SEC, 14. Every recognizance, taken pursuant to the foregoing provisions, shall be transmitted by the ma-
gistrate to the clerk of the circuit court for the county, within twenty days after the taking thereof, and on
or before the next term of such court, and shall be filed by such clerk.
SEc. 15. Every person who shall, in the presence of any magistrate mentioned in the first scetion of this
chapter, or before any court of record, make an affray, or threaten to kill or beat another, or to commit
any violence or outrage against his person or property, and every person who in the presence of such court
Or magistrate, shall contend with hot and angry work. to the disturbance of the peace, may be ordered,
without precess or any other proof, to recognize for keeping the peace, for a term not exceeding six
months, and in case of refusal, may be committed, as before directed.
SEc. 16. If any person shall go armed with a dirk, dagger, sword, pistol or other offensive and dangerous
CHAP. 163.] ( 975 ) - [TITLE 31.
2 weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his
Person going
armed to find su-
3 ſamily or property, he may on complaint of any person having reasonable cause to fear an injury or breach º the
of the peace, be required to find sureties ſor keeping the peace, for a term not exceeding six months, with
5 the right of appealing as before provided.
Court may re-
1 SEC, 17. Whenever upon a suit brought on any recognizance entered into in pursuance of this chapter,
- mit part of pen-
- e p alty. ºw
2 the penalty thereof shall be adjudged ſorfeited, the court may remit such portion of the penalty, on the ****
3 petitition of any defendant, as the circumstances of the case shall render just and reasonable.
1 Sec. 18. Any surety in a recognizance to keep the peace, shall have the same authority and right to take
2 and surrender his principal as in other criminal cases, and upon such surrender shall be discharged and
Surety may su-
render his prin-
3 exempt from all liability for any act of the principal subsequent to such surrender, which would be a lºt ºf
4 breach of the conditton of the recognizance ; and the person so surrendered may recognize anew, with suf-
5 ficient sureties, before any justice of the peace or supreme court commissioner for the residue of the term
f
6 and thereupon shall be discharge
-—
CHAPTER 163.
of THE ARREST AND EXAMINATION OF OFFENDERS, COMMITMENT FOR TRIAL AND TAKING BAIL.
1 SECTION 1. For the apprehension of persons charged with offences, the chancellor,the justices of the supreme what officers
may issue pro-
cess for the ar-
* •oc A : . *** *- : - e º e rest of offenders,
2 court, the presiding judge of the district courts, associate judges of the circuit courts, supreme court,com-3.c.
3 missioners, mayors and recorders of cities, and all justices of the peace, shall have power to issue process
4 and to carry into effect the provisions of this chapter.
1 SEC. 2. Whenever complaint shall be made to any such magistrate, that a criminal offence has been Complainant &c,
to be examined.
committted, he shall examine on oath the complainant, and any witnesses who may be produced by him.
1 SEc. 3, If it shall appear from such examination, that any criminal offence has been committed, the magis-
#, . . . 244
CHAP. 163.1 ( 976 ) [TITLE 31.
Proccedings if it
appear that an
offence has been
committed.
Where warrant,
may be executed.
When] prisone
may be broughtr
before magistrae
of county wher
arrest is nmade.
Magistrate may
take from per-
Son arrested re-
cognizance, &c.
Certificate of
magistrate on
warrant, to
whom recogni-
zance, to be de-
livered.
Duty of officer if
* oner notbail-
2 trate shall issue a warrant, directed to the sheriff or any constable of the county, reciting the substance of the
3, accusation, and commanding him forthwith to take the person accused of having committed, such offence,
4 and to bring him before such magistrate to be dealt with accordnig to law, and in the same warrant may re-
5 quire the officer to summon such witnesses as shall be therein named.
1 SEc. 4. If any person against whom a warrant shall be issued for an alleged offence committed within any
2 couuty, shall, either before or after the issuing of such warrant, escape from, or be out of the county, the
3 sheriff or other officer to whom such warrant may be directed, may pursue and apprehend the party charg-
4 ed in any county of this state, and for that purpose may command aid, and may exercise the same authori-
5 ty as in his own county.
1 SEC. 5. In all cases where the offence charged in the warrant is not punishable with death, or imprison-
2 ment in the state prison, if the arrest shall be made in any other county than that where the offence is
3 charged to have been committed, and if the person arrested shall request that he may be brought before a
4 magistrate of the county in which the arrest was made, it shall be the duty of the officer or person arrest-
5 ing him, to carry such prisoner before a magistrate of that county.
1 SEC 6. Such magistrate may take from the person arrested, a recognizance, with sufficient Sureties, for
2 his appearance at the court having cognizance of the offence, and next to be held in the county where the
3 offence shall be alleged to have been committed, and the party arrested shall thereupon be liberated.
1 SEC. 7. Such magistrate shall certify on the Warrant, the ſact of his having let the defendant to bail, and
2 shall deliver the same, together with the recognizance taken by him, to the person who made the arrest
3 who shall cause the same to be delivered without unnecessary delay, to the clerk of the court before
4 which the accused was recognized to appear.
1 SEC. 8. If such magistrate refuse to let to bail the person so arrested and brought before him, or if no suf.
2 ficient bail be offered, or the offence be not bailable by such magistrate, the person having him in charge
3 shall take him before the magistrate who issued the warrant, or before some other magistrate of the same
4 county, as in the next section prescribed.
CHAP. 163.J ( 977 ) * [Tºple 31.
1 Sec. 9. Persons arrested under any warrant issued for any offence shall, where no provision is otherwise
- When persons
- ęe º º º r " * : . . arrested to be
2 made, be brought before the magistrate who issued the warrant; or if he be absent, or unable to attend, be- .*.
f g º-
- ing warrant
-
3 fore some other magistrate of the same county; and the warrant, with a proper return thereon, signed by
4 the person who made the arrest, shall be delivered to the magistrate.
I SEc. 10. Any magistrate may adjourn an examination or trial pending before himself from time to time, Examination
$ may be adjourn-
t i; lºon Of
º K e defendant.
2 as may be necessary, without the consent of the defendant or person charged, and to the same or a different
*
3 place in the county, as he shall deem necessary ; and in such case, the party may, in the mean time, be
4 committed either to the county jail or to the custody of the officer by whom he was arrested, or of any oth-
5 er officer; or unless he shall be charged with a capital offence, he may be recognized in a sum and with
6 sureties to the satisfaction of the magistrate, for his appearance before such magistrate for such further ex-
7 amination.
1 SEC, 11. The person accused may be committed as provided in the preceding section, by the verbal order How defendant
may be commit-
ted, etc.
2 of the magistrate, or by a warrant under his hand, stating that he is committed for such further examination
3 on a day to be named in the warrant; and on the day therein specified, he may be brought beſore the ma-
4 gistrate by his verbal order to the same officer by or to whose custody he was committed, or by an order in
er f
5 writing to a different officer.
I Sec. 12. If the person recognized according to the foregoing provisions, shall not appear before the ma.
Detault to ap-
pear, duty of
* - A -- . . 4. •, e - e * . e. - . . - - magistrate.
2 gistrate at the time appointed for his further examination, the magistrate shall record the default, and shall
3 certify the recognizance, with the record of such deſault, to the circuit or district court for the county, and
4 the like proceedings shall be had thereon as upon the breach of the condition of a recognizance for ap-
5 pearance before such court.
1 SEC. T3, The magistrate, before whom, any person is brought, upon a charge of having committed an of-
• º - Manner of con-
8 fence, shall proceed as soon as may be, to examine the complainant, and the witnesses in support of the pro- ducting examina-
- I tion.
w
4 secution, on oath, in the presence of the prisoner, in regard to the offence charged, and in regard to any
5 other matters connected with such charge, which such magistrate may deem pertinent
CHAP. 163.]
( 978 ) [TITLE 31.
Ib.
Ib.
Testimony to bo
reduced to wri-
ting.
Prisoner when
to be discharged.
When to be bail-
ed or committed.
l
SEc. 14. After the testimony in support of the prosecution has been given, the witnesses for the prisoner,
2 if he have any, shall be sworn and examined, and he may be assisted by counsel in such examination, and
3
also in the cross examination of the witnesses in support of the prosecution. *
1 SEc. 15. The magistrate, while examining any witness, may exclude from the place of examination all
2 the witnesses who have not been examined ; and he may also, if requested, or if he see cause, direct the
3 witnesses, whether ſor or against the prisoner, to be kept separate, so that they cannot converse with each
4 other, until they shall have been examined. ..
1 Sec. 16. The evidence given by the several witnesses examined, shall be reduced to writing by the magis-
2
trate, or under his direction, and shall be signed by the witnesses respectively.
1 Sec. 17. If it shall appear to the magistrate, upon the examination of the whole matter, either that no of.
2
fence has been committed, or that there is not probable cause for charging the prisoner therewith, he shall
3
discharge such prisoner.
1 Sec. 18. If it shall appear that an offence has been committed, and that there is probable cause to believe
2 theprisoner guilty thereof, and if the offence be bailable by the magistrate, and the prisoner offer sufficient
3 bail, it shall be taken, and the prisoner discharged ; but if no sufficient bail be offered, or the offence be not
Complainant and
witness to re-
cognize.
When with su-
reties.
4 bailable by the magistrate, the prisoner shall be committed to prison for trial, except in the cases in which a
5 justice of the peace shall be authorized to try such prisoner, upon his requesting to be tried before such jus-
/
6 tice.
f
1 Sec.19, when the prisoner is admitted to bail, or committed by the magistrate, such magistrate shall bind
2 by recognizance, the complainant, and all the material witnesses against such prisoner, to appear and testi-
3 fy at the next court having cognizance of the offence, and in which the prisoner shall be held to answer.
1 Spc. 20. If the magistrate shall be satisfied by due proof, that there is good cause to believe that any such
2 witness will not perform the condition of his recognizance, unless other security be given, such magistrate
CHAP. 163.] & ( 979 ) [TITLE 30.
f
3 may order the witness to enter into a recognizance, with one or more sureties as may be deemed necessary,
4 ſor his appearance at court.
1 SEC, 21. When any married woman or minor is a material witness, any other person may be allowed to º:
r -
man and minors.
2 recognize for the appearance of such witness, or the magistrate may, in his discretion, take the recogni-
3 Zance of such married woman or minor, in a sum not exceeding fifty dollars, which shall be valid and bind-
4 ing in law, notwithstanding the disability of coverture or minority. *
I Sec. 22. All winesses required to recognize, either with or without sureties, shall, if they refuse, ...
cognize;}commit-
ment.
2 be committed to prison by the magistrate, there to remain until they comply with such order, or
3 be otherwise discharged according to law.
I Sec. 23. The chancellor, any justice of the supreme court, supreme court commissioner, the pre- Prisoners by
\, whom let to bail.
2 siding judge of the district courts, or any associate judge of any circuit court for any county, on
3 application of any prisoner committed for any bailable offence, and after due notice to the prosecuting
4 attorney for the county, may inquire into the case, and admit such prisoner to bail; and any person
5 committed for not finding sufficient sureties to recognize for him, may be admitted to bail by any of
6 the said officers.
1 Sec. 24. Any magistrate to whom complaint is made, or before whom any prisoner is brought, Magistrate to
whom complaint
is made, may as-
2 may associate with himself one or more other magistrates of the same county, and they may to-j.”.
other magis-
tril 1628.
3 gether execute the powers and duties conferred upon such magistrates respectively by this chapter;
4 but no fees shall be taxed for such associates. *
1 Sec. 25. All examinations and recognizances, taken by any magistrate pursuant to any of the pro-
Examinations
and recognizan-
2 visions of this chapter, shall be forthwith certified and returned by him to the clerk of the court; ified
returned ete.
3 before which the party charged is bound to appear, and if such magistrate shall refuse or neglect
245
Chap. 163.]
( 980 ) [TITLE 31.
4
When prisoners
charged with
crime may be
lot to bail.
2
7
Const. art.1. §12.
In what cases
circuit and dis-
trict courts may
let to bail.
2
Commitments
superseded, re- 2
cognizances dis-
charged on ac-
knowledgment
of satisfaction.
6
7
8
Order for dis-
charge of recog-
nizance where
filed, and order
superseding
commitment to
whom delivered,
C.
to return the same, he may be compelled forthwith by rule of the court, and in case of disobedience,
he may be proceeded against by attachment as for a contempt.
Sec. 26. Officers before whom persons charged with crime shall be brought, shall have power to
let to bail as follows:
1. The chancellor, any justice of the supreme court, the presiding judge of the district court, or a
supreme court commissioner, in all cases, except for capital offences, when the proof is evident or
the presumption great.
2. Any associate judge of the circuit court for any county, in all cases where the punishment for
the offence charged shall be less than imprisonment for life in the state prison.
#
3. A justice of the peace, or mayor, or recorder of a city, in all cases where the punishment for
the offence charged shall not be more than ten years imprisonment in the state prison.
Sec. 27. The several circuit courts and district courts, shall have power to let to bail any person
committed, in all cases in which the chancellor or a justice of the supreme court is authorized to
let such person to bail.
Sec. 28. When any person shall be committed to prison, or shall render recognizance to answer
to any charge of assault and battery, or other misdemeanor, for which the injured party shall have
3 a remedy by civil action, if the injured party shall appear before the magistrate who made the com-
*s *
mitment or took the recognizance, and acknowledge in writing that he has received satisfaction for
- . \\ ge
the injury, the magistrate may, in his discretion, on payment of the costs which have accrued, dis-,
charge the recognizance, or supersede the commitment, by an order under his hand; and may in
|
like manner discharge all recognizances, and supersede the commitment of all witnesses in the
CaSe..
1 Sec. 29. Every such order discharging any recognizance, shall be filed in the office of the clerk of the
2 county; and every such order superseding the commitment of the offender or any witness, shall be deliver.
f
CHAP. 163.] ( 981 ) [TITLE 31
3
ed to the keeper of the jail where he shall be confined, who shall forthwith discharge him; and every such
order, if so filed and delivered, and not otherwise, shall forever bar all remedy by civil action for such
injury.
Sec. 30. If an indictment shall be found on any such charge, the injured party may in like manner ap-
pear in the court where such indictment is pending, and acknowledge satisfaction for the injury and damage Effect of ac-
knowledgment
of injured party
te g tº ºr g e * e in case of indict-
sustained by him; and such court may, in its discretion, on payment of the costs incurred, order that no fur-ºhd.
ther proceedings be had on such indictment, and may discharge the defendant therefrom; which order shall
operate as a perpetual stay of all ſurther proceedings on such indictment.
SEc. 31. The provisions of the three last sections shall not extend to any charge or indictment for any as- The last preced-
ing section qual-
ified.
sault and battery or other misdemeanor, charged to have been committed by or upon any officer or minister
of justice, whilst in the execution of the duties of his office, or riotously, or with an intent to commit a felony.
Action upon re-
SEC. 32. No action brought upon any recognizance entered into in any criminal prosecution, either to ap- cognizance not
barred by neglect
to note default of
gº º “e & principal, etc.
pear and answer, or to testify in any court, shall be barred or defeated, nor shall judgment thereon be ar.
rested, by reason of any neglect or omission to note or record the deſault of any principal or surety, at the
time when such default shall happen, nor by reason of any defect in the form of the recognizance, if it suf.
ficiently appear from the tenor thereoſ, at what court the party or witnesses was bound to appear, and that
the court or a magistrate before whom it was taken, was authorized by law to require and take such recog-
nizance.
‘CHAP. 164.] ( 982 ) [TiELE 31.
Court may dis-
charge grand ju-
rors in certain
cases, deficien-
ciencies how
suplied.
Grand jurors
how empannel-
led and sworn-
Ib.
Affirmation may
bc. substituted for
oath.
l
2
2
CHAPTER 164.
OF INDICTMENTS AND PROCEEDINGS BEFORE TRIAL.
SECTION 1. Any court in which a grand jury may be sitting, may discharge any of the grand jurors for
intoxication or other gross misconduct; and in case of such discharge, or in case of the sickness, death or
* - , a - -
non-attendance of any grand juror, after he shall have been sworn, the court may cause another juror to
be summoned from among the by-standers, or inhabitants of the city, township or village, having the quali-
fications required by law, and to be sworn and serve in his stead.
SEc. 2. The clerk of the court shall prepare an alphabetical list of all the persons returned as grand ju-
rors, and when the jury is to be empannelled, the two persons first named on the list, shall be first called,
and the following oath shall be administered to them: You, as grand jurors of this inquest, for the body
of this county of & , do solemnly swear, that you will diligently inquire and true rººm
make of all such matters and things as shall be given you in charge; your own counsel, and the counsel
of the people, and of your fºllow you shall keep secret ; you shall present no person for envy, lated Or
malice, neither shall you leave any person unpresented for love, fear, favor, affection or hope of reward;
but you shall present things truly, as they come to your knowledge, according to the best of your under-
standing; so help you God.
Szc. 8. The other grand jurors shall then be called in such divisions as the court may deem proper, and
the following oath shall be administered to them: The same oath which your ſellows have taken on their
part, you, and each of you, on your part, shall well and truly observe and keep, so help you God.
SEc. 4. Any person returned as a grand juror, shall be allowed to make affirmation, substituting the word
“affirm,” instead of the word “swear;” and also the words, “this you do under the pains and penalties of
perjury,” instead of the words “so help you God.”
SEc. 5. There shall not be less than sixteen persons sworn on any grand jury; and after such jurors have
been empanneled, and have received their charge from the court, they shall retire with the officer appoint-
CHAP. 164.] - ( 983 ) [TITLE 31.
3
$4
5
- - & • ſº N - s
ed to attend to attend them, and before they proceed to discharge the duties of their office, they shall elecº.º.º.
as grand jury,
election of fore-
by ballot one of their numbbr to be foreman, and give notice thereof to the court, and the clerk shall re- man,
cord the same.
SEc. 6. The foreman elected by the grand jury in the manner provided in the preceding section, shall be ..º.
U 1) Ul HSC in a rºſe
- in case of ; !
death etc. anoth-
foreman during the whole time they are required to serve; but in case of his death or absence, or if he * * * *
shall be discharged or excused before the grand jury shall be dismissed another of such jurors shall be elec-
ted ſoreman for the residue of such time of service.
c. 7. A person held to answer to any any criminal charge, may object to th Person held to
SE p to . ny any ge, may Ob) o the competency of any one answer, etc. may
object to compe-
tency of juror,
g tº ſº tai €Se
summoned to serve as a grand juror, on the ground that he is the prosecutor or complainant upon any charge in CCTUal Il CºlS
against such person; and if such objection be established, the person so summoned shall be set aside.
SEC. 8. No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be Yº:
allowed in any other case than that specified in the preceding section.
SEc. 9. The foreman of every grand jury, the attorney general, and the prosecuting attorney or other
Who may ad-
e e tº gº minister oaths,
prosecuting officer, who shall be before them, shall have authority to administer all oaths and affirmations, *.
in the manner prescribed by law, to witnesses who shall appear before such jury, for the purpose of testiſy-
ing in any matter of which they may have cognizance; and the foreman shall retarn to the court, or deliv-
er to the prosecuting officer, a list of all the witnesses sworn before the grand jury, in each case in which
an indictment shall be ſound.
SEC, 10. The grand jury may appoint one of their number to be their clerk, to preserve minutes of their
Jury may ap-
tº gº e © & g & point clerk, etc.
proceedings and of the evidence given before them; which minutes shall be delivered to the prosecuting of-
ficer, when so directed by the grand jury.
SEC. 11. When the grand jury attending any court shall have been dismissed before the court is adjourn-
246
CHAP. 164.] ( 984 ) - [TITLE 31.
Grand Jury dis-
missed before
adjournment of
court may be
summoned again
€1C,
Secrecy of jurors
and officers.
Upon complaint
for perjury etc.
jurors may be
required to tes-
tify etc.
Duty of prosecu-
ting attorney.
May issue sub-
poeas, &e.
May appear be-
º: grand jury
C.
2
3
1
2
l
ed without day, they may be summoned to attend again, in the same term, at such time as the court shall
direct, ſor the despatch of any business that may come before them.
SEc. 12. No grand juror or officer of the court shall disclose the fact that any indictment for a felony has
been ſound against any person not in custody or under recognizance, otherwise than by issuing or executing
process on such indictment, until such person has been arrested.
SEc. 13. Members of the grand jury may be required by any court, to testify whether the testimony of a
witness examined before such jury is consistent with or diſſerent from, the evidence given by such witness
before such court; and they may also be required to disclose the testimony given before them by any per-
son, upon a complaint against such person or perjury, or upon his trial ſor such offence; but in no case can
a member of a grand jury be obliged or allowed to testify or declare in what manner he or any other mem-
ber of the jury voted on any question before them, or what opinions were expressed by any jury in rela-
tion to any such question.
Sec. 14. Whenever required by the grand jury, it shall be the duty of the prosecuting attorney of
2 the county to attend them for the purpose of examining witnesses in their presence, or of giving
3 them advice upon any legal matter.
I
Sec. 15. The prosecuting attorney and other prosecuting officers may, in all cases, issue subpoenas
2 for witnesses to appear and testify on behalf of the people of this state; and the subpoena, under
3 the hand of such officer, shall have the same force, and be obeyed in the same manner, and under
.*
4 the same penalties, as if issued by the clerk or any magistrate.
I
Sec. 16. The prosecuting attorney of the county, or other prosecuting officer, shall be allowed at
2 all times to appear before the grand jury, on his request, for the purpose of giving information rela-
3 tive to any matter cognizable by them; but no prosecuting officer, constable, or any other person,
4 except grand jurors, shall be permitted to be present during the expression of their opinions, or the
5 giving of their votes, upon any matter before them.
CHAP. 164.J ( 985 ) - [TITLE 31.
2
Sec. 17. No indictment can be found without the concurrence of at least twelve grand jurors; and
Bill not to be
found without
when so found, and not otherwise, the foreman of the grand jury shall certify thereon, under his 3.”
w 12 jurors, &c.
hand, that the same is a true bill.
Sec. 18. An indictment for the crime of murder may be ſound at any period after the death of
Limitation of
criminal prose-
the person alleged to have been murdered; all other indictments shall be found and filed within six *
years after the commission of the offence; but any period during which the party charged was not
usually and publicly resident within this state, shall not be reckoned as part of the six years.
Sec. 19. Indictments found by a grand jury, shall be presented by their foreman, in their presence,
Indictments to
be presented to
* º - t by fore-
to the court, and shall be there filed, and remain as public records; but such as are found against §§§'ied,
&c.
any person for a felony, not being in actual confinement, shall not be open to the inspection of any
person except the attorney general or prosecuting attorney, until the defendant therein shall have
been arrested.
Sec. 20. Any person held in prison on any charge of having committed a crime, shall be discharg-
When person
e e e o held in prison,
ed if he be not indicted before the end of the second term of the court at which he is held to answer, tºoledusha-
ge(1.
unless it shall appear to the satisfaction of the court that the witnesses on the part of the people
have been enticed or kept away, or are detained and prevented from attending the court by sickness
or some inevitable accident, and except in the case provided for in the next section.
1 Sec. 21, when any person held in prison on a charge of having committed an indictable offence, shall insanity of prie.
Oſler,
2 not be indicted by the grand jury by reason of insanity, such jury shall certify that fact to the court; and
3 thereupon, if the discharge or going at large of such insane person shall be deemed manifestly dangerous
4 to the peace and safety of the community, the court may order him to be retained in prison until the fur-
5 ther order of the court, otherwise he shall be discharged.
1 Sec. 22. Every person indicted for any offence, who shall have been arrested upon progess issued upon
CHAP. 164.]
( 986 ) [TITLE 31,
Person indicted
entitled to copy
of indictmeni,
etc. on payment
of fees.
Pros. attorney
not to enter nol.
pros, without
leave of court.
When may is-
sue warrent for
arrcst of person
indicted.
To whom war-
1 ant to be direct-
ed.
Clerk to issue
subpoenas for
defendants' wit-
IlêSSCS,
Disobedience to
subpoena how
punished.
Tender of fees
to witness not
necessary.
2
3
2
3
4.
such indictment, or who shall have duly entered into recognizance to appear and answer to such indictment
shall, on demand, and on paying the ſees allowed by law thereſor, be entitled to a copy of the indictment
and of all endorsements thereon.
SEc. 23. It shall not hereaſter be lawful for any prosecuting attorney to enter a nolle proseque upon any
indictment, or in any other way to discontinue or abandon the same, without the leave of the court having
jurisdiction to try the offence charged, entered in its minutes.
SEc. 24. A warrant for the arrest of any person indicted, may be issued by the court to which the indict-
ment shall be presented, or by any justice of the supreme court, or associate judge of the circuit court for
the county in which such indictment shall be ſound, either in vacation or during the setting of any such
court ; but such warrant shall not be issued by any other officer.
SEc. 25. Every warrant so issued shall be directed to the sheriſt or any constable of the county in which
the indictment shall be found, and may be executed in any part of this state.
SEc. 26. The clerk of any county in which an indictment shall be found, upon the application of the de-
fendant, and without requiring any ſees, shall issue subpoenas, as well during the sitting of any court as in
vacation, for such witnesses as the defendant may require, whether residing in or out of the county.
SEc. 27. Disobedience to any subpoena issued pursuant to the foregoing provisions, shall be punished in
the same manner, and upon the like proceedings, as provided by law in other cases; and the person guilty
of such disobedience shall be liable to the party at whose instance such subpoena issued, in the same man-
ner, and to the like extent as in cases of subpoenas issued in any civil suit,
*4;
SEC. 28. It shall not be necessary to pay or tender any fees whateyer, to any witness subpoenaed on the
part of the people of this state, in support of any prosecution, or to any witness subpoenaed on the part of
any defendant in any indictment; but such witness shall be bound to attend, as if the fees allowed by law
to witnesses in civil actions had been duly paid to him.
CHAP. 164.] ( 987 ) [TITLE 30.
1
2
SEc. 29. When any person shall be arraigned upon an indictment, it shall not be necessary, in any case,'
Court to order
- plea of not guil—
e e e © e * ty, when person
to ask him how he will be tried; but if, on being so arraigned, he shall refuse to plead or answer, or shall fººl'.
to plead.
not confess the indictment to be true, the court shall order a plea of not guilty to be entered, and thereup-
on the proceedings shall be the same as if he had pleaded not guilty to the indictment.
SEC. 30. Every person held in prison upon an indictment, shall, if he require it, be tried at the next term ..º.when
to be tried.
of the court after the expiration of six months from the time when he was imprisoned, or shall be bailed
upon his non-recognizance, unless it shall appear to the satisfaction of the court that the witnesses on be-
half of the people have been enticed or kept away, or are detained and prevented from attending court by
sickness, or some inevitable accident,
SEC. 31. In the cases where any person shall be liable to prosecution as the receiver of any personal * Receive, or,
eCel Ver Of Sto-
len goods etc.
where may be
perty that shall have been feloniously stolen, taken or embezzled, he may be indicted, tried and convicted in indicted.
any county where he received or had such property, notwithstanding such theft was committed in ano-
ther county.
Sec. 32. When any property shall be stolen in one county and brought into another, the offender may be
Persons stealing
e i & e e e º º e property in one
indicted, tried and convicted in the county into which such stolen property was brought, in the same man- º
- l ll 1ſt LO ano-
* ther, where in-
dictedable.
ner as if such property had been originally stolen in that county; and when such property shall have been
taken by burglary or robbery, the offender may be indicted, tried and convicted of said burglary or robbery
in the county into which such property was brought, in the same manner as if such burglary or robbery
had been commttted in that county.
SEC. 33. No plea in abatement, or other dilitory plea to the indictment, shall be received by any court, un- ..º.
In en C. In Ot to
be received, un-
less, etc,
.*
less the party offering such plea shall prove the truth thereof by affidavit, or by some other eyidence,
*
SEc. 34. No indictment shall be quashed or deemed invalid, nor shall the trial, judgment or other proceed cerames.
sions, etc. not to
affect validity of .
ings thereon be affected, indictment, etc.
247
CHAP: 164.] ( 988 ) - traw 31.
When eourt
may grant com-
mission, etc.
Execution, &c,
of commission.
Pergon indicted
may have wit-
nesses examined
conditionally &c.
3 1. By reason of the omission or mis-statement of the occupation, estate or degree of the defendant, or of
4 the name of the city, township, or county ot his residence: or,
5 2. By reason of the omission of the words “feloniously,” or of the words “with force and arms,” or any
6 words of similar import: or
7 3. By reason of omitting to charge any offence to have been committed contrary to the form of the statute
Jº
8 or statutes: or
9 4. By reason of another defect or imperfection in matters of form which shall not tend to the prejudice of
10 the defendant.
1 SEC. 35. When an issue of fact shall be joined upon any indictment, the court in which the same is pend-
2 ing may, on application of the defendant, grant a commission to examine any material witnesses residing
3 out of this state, in the same manner as in civil cases; and the prosecuting officer may, if he shall see fit,
4 join in such commission, and name any material witnesses to be examined on the part of the people.
1 SEc. 36. Interrogatories to be annexed to such commission shall be settled, and such commission shall be
2 issued, executed and returned, in the manner prescribed by law in respect to commissioners in civil cases,
3 and the depositions taken thereon and returned, shall be read in the same cases, and with the like effect in
4 all respects, as in civil suits.
1 Sec. 37. After an indictment shall be ſound against any defendant, he may have witnesses examined in his
2 behalf conditionally, on the order of a judge of the court in which the indictment is pending, in the same
3 cases, upon the like notice to the prosecuting attorney,and with the like effect,in all respects,as in civil suits'
CHAP. 165.] ( 989 ) [TITLE 31
CHAPTER 165.
OF TRIALS IN CRIMINAL CASES.
Issues of fact
1 Sec. 1. Issues of fact joined upon any indictment, shall be tried by a jury, drawn and returned in
- - how tried.
2 the manner provided by law for the trial of issues of fact in civil cases,
I Sec. 2. No member of the grand jury which has found an indictment, shall be put upon the jury Whº gº º
ror not to sit up-
on petit jury.
2 for the trial of such indictment, if challenged for that cause by the defendant,
1 Sec. 3. Every person indicted for an offence, shall, when the jury is empannelled for his trial, be challenges.
2 entitled to the same challenges that are by law allowed to defendants in civil causes.
1 Sec. 4. The attorney general, or any other officer prosecuting an indictment, shall be entitled to
2 the same challenges, on behalf of the people, that are allowed by law to parties in civil causes.
I Sec. 5. Any person whö is put on trial for an offence punishable with death, shall be allowed to
Ib. in case of
trial for capital
2 challenge, peremptorily, thirty of the persons returned as jurors, and no more. Offence.
1 Sec. 6. No person whose opinions are such as to preclude him from finding any defendant guilty
- Person holding
2 of an offence punishable with death, shall be compelled or allowed to serve as a juror on the trial of º
-- sit on jury in
case of capital
Offence.
3 any indictment for such an offence.
1 Sec. 7. The following oath shall be administered to the jurors for the trial of all criminal cases:
... 2 You shall well and truly try, and true deliverance make, between the people of this state and the oath of urors.
6 prisoner at the bar, whom you shall have in charge, according to the evidence and the laws of this
4 state, so help you God.
1 Sec. 8. Any juror shall be allowed to make affirmation, substituting the words “this you do under
Jº - Affirmation.
2 the pains and penalties of perjury,” instead of the words “so help you God.”
CHAP. .165.] $ ( 990 ) & [TIELE 31.
1 Sec. 9. No person indicted for a felony shall be tried, unless personally present during the trial;
Fºº
present at trial. © º º e e
2 persons indicted for smaller offences may, at their own request, by leave of the court, be put on trial
3 in their absence, by an attorney duly authorized for that purpose.
Cºurt may order 1 Sec. 10. The court may order a view by any jury empannelled to try a criminal case, whenever
WI6W.
2 such court shall deem such view necessary.
when prisoner 1 SEC, 11. When any prisoner indicted for an offence shall, on trial, be acquitted by the jury, by reason
acquitted by rea-
son of insanity,
Ctc.
2
3 thereupon, if the discharge or going at large of such insone person, shall be considered manifestly danger-
4
ous to the peace and safety of the community, the court may order him to be committed to prison, there to
5 be kept until the further order of the court; otherwise he shall be discharged.
1 SEC. 12. No prisoner or person under recognizance, who shall be acquitted by verdict, or discharged be.
Person acquitted tº * e - tº e & g
etc. motiable for 2 cause no indictment has been found against him, or for want of prosecution, shall be liable for any costs or
COS (S.
3
fees of office, or for any charge for subsistence while he was in custody.
1 SEc. 13. Whenever two or more persons shall be included in the same indictment, and it shall appear that
When court may
order defendant g tº . & g
ºdischarge; 2 there is not sufficient evidence to put any defendant on his defence, it shall be the duty of the court to orde,
before close of
evidence.
such defendant to be discharged from such indictment, before the evidence shall be deemed to be closed.
3
1 : SEc. 14. When two or more defendants shall be jointly indicted ſor any felony, any one defendant requir-
How two or 2
more defendants
jointly indicted
may be tried.
ing it shall be tried separately; and it other cases, defendants jointly indicted, shall be tried separately or
3 jointly, in the discretion of the court.
of insanity, the jury in giving their verdict of not guilty, shall state that it was given for such cause; and
*
CHAP. 166.] ( 991 ) [TITLE 31
5
CHAPTER (66.
OF NEW TRIALS AND EXCEPTIONS IN CRIMINAL CASES.
SECTION 1. The circuit or district court in which the trial of any indictment shall be had, may, at the Circuit or district
court may grant
new trial.
same term, or at the next term thereaſter, in the motion in writing of the deſendant, grant a new trial, for
any cause, for which by law a new trial may be granted, or when it shall appear to the court that justice
has not been done, and on such terms or conditions as the court shall direct,
SEc. 2. Any person who shall be convicted of any offence before any circuit or district court, considering Exceptions may
- - - be alleged, etc.
himself aggrieved by any opinion, direction or judgment of the court, in any matter of law, may allege ex-
ceptions to such 6pinion, direction or judgment, which exceptions being reduced to writing in a summary
mode, and presented to the presiding judge before the end of the term, and ſound conformable to the truth
of the case, shall be allowed and signed by the presiding judge.
SEC. 3. Upon the signing of such exceptions, all further proceedings in that court shall be stayed, unless it proceedings to
be stayed upon
signing of excep-
- & sº º e . g & * ſº § tions, unless etc.
shall clearly appear to the presiding judge, that such exceptions are frivolous, immaterial or intended only
for delay, and in that case, judgment may be entered, and sentence awarded in such manner as the court
shall deem reasonable, notwithstanding the allowance of such exceptions,
SEC. 4. 1ſ upon the trial upon indictment of any person who shall be convicted in any circuit court or dis-
Report to be
made by judge.
trict court, any question of law shall arise, which, in the opinion of the presiding judge, shall be so impor-
tant or doubtful, as to require the opinion of the supreme court, he may, if the defendant desires it OT COI).
sents thereto, report the case so far as may be necessary to present the question of law arising thereon, and
transmit the same with all convenient speed to the chief justice, or one of the associate juice of the su-
preme court, and thereupon all further proceedings in such circuit or district court shall be staid.
SEC. 5. Any person who shall file exceptions, or for whose benefit a report shall be made by the judge, as
Person filing ex-
ceptions, etc. to
is provided in the preceding sections, may, if the offence be bailable, recognize to the people of this state, recogn”.
248
CHAP. 167.] - ( 992 ) R [Tiele 31.
Neglect to recog-
nize to be COm-
mitted.
Court may con-
tinue recogni-
zance, etc.
Coroners in-
quests how to:
be taken.
Coroner's jury
how summoned.
3 in such sum as the court shall order, with sufficient sureties for his appearance at the next term of such
4 court, and to prosecute his exceptions to effect in the supreme court, if exceptions are alleged as aforesaid,
5 and to abide the further judgment or order of such circuit or district court in the premises, and in the mean
6 time to keep the peace and be of good behavior.
as
1 SEc. 6. If such person shall not so recognize, he shall be committed to prison, to await the decision of the
2 supreme court ; and in that case the clerk of the court in which the conviction was had, shall file a certi-
3 fied copy of the record and proceedings in the case, in the supreme court ; and such court shall have juris
4 diction to hear and determine the questions of law arising on such exceptions or report, and shall certify
5 their determination to such circuit or district court, together with directions as to a new trial, or such other
6 proceedings as right and justice shall require; but the proceedings herein prescribed shall not deprive any
7 party of his writ of error, for any error or deficit appearing of record.
1 SEC. 7. The court in which the party so convicted and recognized shall be bound to appear as aforesaid,
2 shall have power to continue such recognizance, or require a new recognizance, with further or other sure-
3 ties until the decision of the supreme court shall be had in the premises, and in default of compliance with
4 any such requisition, such court may commit the party so convicted to close custody.
CHAPTER 167.
OF CORONERS INQUEST.S.
1 SECTION 1. Coroners shall take inquests upon the view of the dead bodies of such persons as shall have
2 come to their death suddenly or by violence, and of such persons, as shall have died in prison.
1 SEC. 2. As soon as any coroner shall have notice of the dead body of any person found or lying withn the
2 county, who is supposed to have come to his death in any manner described in the preceding section, he
3 shall forthwith summon not less than six nor more than twelve good and lawful men of the county, to ap-
4 pear before him at such place as he shall appoint.
GHAR. 167.]
(. 993 ) & - [TITLE 30,
*
5
l
2,
SEg. 3, . When six or more of the jurors who have been summoned appear, the coroner shall call over
Jurors how em-
* pannelled and
tº tº - & & g SWOrn.
their names, and there in view of the dead body, shall administer to them an oath or affirmation in substance
as follows: You do solemnly swear, (or affirm, as the case may be) that you will diligently inquire, in
behalf of the people of this state, when, in what manner, and by what means, the person, whose body lies
*-
here dead, came to his death, and that you will make a true inquest thereof according to your knowledge,
and such eyidence as shall be laid before you,
}
SEc. 4. The coroner may issue subpoenas for witnesses returnable ſorthwith or at such time and place as he
Witnesses how
- - summoned; at-
- g - g * - tendance how
shall therein direct; and the attendance of the person served with such subpoena may be enforced in the enforced.
*
same manner, and they shall be subject to the same penalties, as if they had been served with a subpoena
in behalf of the people of this state, to attend a justice’s court.
~.
SEc. 5. An oath or affirmation to the following effect shall be administered to each witness by the coroner : ºth of win*
You do solemnly swear (or affirm) that the evidence you shall give to this inquest, concerning the death of
the person here lying dead, shall be the truth, the whole truth, and nothing but the truth.
*
SEC. 6. In all cases where any murder or manslaughter is supposed to have been committed, the testimo-
Testimony of
witnesses redu-
ny of all witnesses examined before the inquest, shall be reduced to writing by the coroner, or some other” writing:
person by his direction, and subscribed by the witnesses.
SEc. 7. The jury upon the inspection of the dead body, and after hearing the testimony of the witnesses
Inqusition howe
taken.
and making all needſal enquiries, shall draw up and deliver to the coroner their inquisition under their hands,
in which they shall find and certify, where, in what manner, and by what means the deceased came to his
death, and his name, if known, together with all the material circumstances attending his death; and if it
appear that he came to his death by unlawful means, the jurors shall forthwith state who was guilty, either
A'
as principal or accessory, or were in any manner the cause of his death, if known. " *
SEC, 8. Such inquisition may be, in substance, in the following form :
- Form of inquisi-
tion).
County of SS. An inquisition taken at - , in said county, on the
CHAP. 167.] ( 994 ) ITITLE 31.
3
Coroner's, duty
n case of mur-
der, etc.
Coroner may
issue process for
arrest of person
charged.
Coroner when
to bury the body;
costs how paid.
1
6
gº
, day of * , before , One of the corners of the said county, upon the
view of the body of , (or a person) there lying dead, by the oaths of the jurors whose
names are hereto miscribed who being sworn to inquire in behalf of the people of this state, when, in what
manner and by what means the said - (or person) came to his death, upon their ontº
do say, [then insert when, in what manner and by what means, persons, weapons or instruments he was
killed or came to his death..] In testimony whereof the said coroner and the jurors of this inquest, have
hereunto set their hands the day and year aforesaid,
SEC. 9. If the jury find that any murder, manslaughter or assault had been committed upon the deceased,
the coroner shall bind over, by recognizance, such witnesses as he shall think necessary, to appear and tes.
tify at the next court to be held in the same county, at which an indictment for such offence may be º
and he shall also return to the same court the inquisition, written evidence, and all recognizances and exam-
inations by him taken, and may commit to the jail of the county, any witnesses who shall reſuse to recog-
nize in such manner as he shall direct.
SEc. 10. If any person charged by the inquest with having committed any such offence, shall not be in
custody, the coroner shall have the same power as a justice of the peace, to issue process for his apprehen-
sion, and such warrant shall be made returnable before a justice of the peace or other magistrate or
court having cognizance of the case, who shall proceed thereon in the same manner that is required of
magistrates in like cases.
SEc. 11. When any coroner shall take an inquest upon the view of the dead body of a stranger, or being
called for that purpose, shall not think it necessary, on view of such body, that an inquest should be taken,
.*
he shall cause the body to be decently buried; and if the coroner shall certify that to the best of his knowledge
and belief the person found dead was a stranger not belonging to this state, the expenses of burial, with the
coroner’s fees, and all the expenses of the inquisition, if any was taken, shall be paid to the coroner from the
state treasury, the account of such expenses and fees being first allowed by the circuit court for the county; in
7 all other cases the expenses and ſees shall be paid by the county in which the inquisition was taken.
CHAP. 168.] ( 995 ) [TIELE 31.
1 SEc. 12. The sheriff or any of his deputies, in case of the absence, sickness, or other disability of the coro- Death etc. º,
coroners, Wno
to perform duty.
2 ners, shall perform all the duties of the coroner under this chapter.
CHAPTER 168.
of JUDGMENTS IN CRIMINAL CASEs, AND THE EXECUTION THEREOF.
1 Sec. 1. When any person shall be convicted of an offence punishable at the discretion of the court,
Conditional sell-
ten CeS.
2 either by a fine or imprisonment in the county jail, or by a fine or imprisonment in the state prison,
3 the Court may award against such offender a conditional sentence, and order him to pay a fine, with
4 or without the costs of prosecution, within a limited time, to be expressed in the sentence, and in
5 default thereof, to suffer such imprisonment as is provided by law and awarded by the court.
1 Sec. 2. The person against whom any such conditional sentence shall be awarded, shall be forth-
Ib.
2 with committed to the custody of an officer in court, or to the county jail, to be detained until the
%
3 sentence be complied with; and if he shall not pay the fine within the time limited, the sheriff shall
4 cause the other part of the sentence to be executed forthwith.
1 Sec. 3. Whenever it is provided that an offender shall be punished by imprisonment in the county
* - * - e. - Discretionary
2 jail and a fine, such offender may, at the discretion of the court, be sentenced to be punished by such "***
3 imprisonment without the fine, or by such fine without the imprisonment; and whenever it is provi-
1839, p. 233, §52.
4 ded that an offence shall be punished by fine or imprisonment, the court may impose both such fine
5 and imprisonment, in its discretion.
1 Sec. 4. Every court before whom any person shall be convicted upon an indictment for any offence
, 2 not punishable with death, or by imprisonment in the state prison, may, in addition to the punish- º
pcace.
3 ment prescribed by law, require such person to recognize with sufficient sureties, in a reasonable
*
249
ſ
CHAP. 168.] ( 996 ) 3. [TITLE 31. .
4 sum, to keep the peace, or to be of good behavior, or both, for any time not exceeding two years,
5 and to stand committed until he shall so recognize.
te
•.
1 Sec. 5. In case of a breach of the condition of any such recognizance, the same proceedings shall
Proccedings on
ſorſeiture.
2 be had as are prescribed in relation to recognizances to keep the peace in other cases.
I Sec. 6. When any person, convicted of an offence, shall be sentenced to pay a fine or costs, or to
Sheriffto'execute º * , T • tº e g * e -
Sell tence. 2 be imprisoned in the county jail, the clerk of the court shall, as soon as may be, make out and de-
3 liver to the sheriff of the county, or some officer in court, a transcript from the minutes of the court
4 of the conviction and sentence, duly certified by such clerk, which shall be sufficient authority for the
4 sheriff to execute such sentence, and he shall execute the same accordingly.
1 Sec. 7. When any convict shall be sentenced to imprisonment in the state prison, the clerk of the
Ib. 2 court before whom such conviction was had, shall make out a warrant under the seal of the court,
3 directed to the sheriff of the county, requiring him to cause such convict, without needless delay, to
4 be removed from the county jail to the state prison, which warrant shall be delivered to such sheriff,
5 and be obeyed by him, and shall be accompanied by a certified abstract from the minutes of the court
6 of such conviction and sentence as aforesaid.
1 Sec. 8. When any person shall be convicted of any crime punishable with death, and sentenced to
Person convicted
of capital offence
to be sentenced
to hard labor in 2
state prison, un-
suffer such punishment, he shall, at the same time, be sentenced to hard labor in the state prison un-
til &e. sº -
3 til such punishment of death shall be inflicted.
Sec. 9. And no person, so sentenced and imprisoned, shall be executed in pursuance of such sen-
l’erson Sen len-
ced to death not
tººl. 2 tence within one year from the day such sentence of death was passed, nor until the whole record
within one year, - -
&c.
3 of the proceedings shall be certified by the clerk of the court in which the conviction was had, under
4 the seal thereof, to the governor of this state, nor until a warrant shall be issued by the governor,
5 under the great seal of the state, directed to the sheriff of the county in which the state prison may
6 be situated, commanding the said sentence of death to be carried into execution.
}
CHAP. 169.] ( 997 ) [TITLE 31.
I Sec. 10. The punishment of death shall, in every case, be inflicted by hanging the convict by the
Punishment of
death to be inflic-
2 neck until he is dead; and the sentence shall, at the time directed by the warrant, be executed with-" "
3 in the walls of the state prison, or within the enclosed yard thereof.
1 Sec. 11. The sheriff of the county shall be present at the place of execution, unless prevented by Sheriff &c. to be
w Pºtº-
- - * & e - - else may present
2 sickness or other casualty, and also two of his deputies, designated by him; and he shall request the
3 presence of the prosecuting attorney, and twelve respectable citizens, including a surgeon or physi-
4 cian, and shall permit the counsel of the prisoner, and such ministers of the gospel as the criminal
5 shall desire, and his relations, to be present, and also such officers of the prison, deputies, constables and
6 military guard as he may see fit, but no others.
1 Sec. 12. Whenever a sheriff shall inflict the punishment of death upon any convict, in obedience to ff
- Sheriff’s return
on warrant for
eXCCutlon .
2 a warrant from the governor, he shall make return thereof under his hand, with h doings herson,
3 to the office of the secretary of state, as soon as may be . and shall also transmit to the clerk Of - the
4 court in which the conviction was had, an attested copy of the warrant and return thereon; and the
5 clerk shall place the same on file with the indictment, and subjoin to the record of the * 3. wer
6 abstract of the sheriff’s return on the waarant.
CHAPTER (69.
OF FEES OF OFFICERS AND MINISTERS OF JUSTICE IN CRIMINAL CASEs.
*
1 Sec. 1. For the following services hereafter performed, in the cases authorized by law, the offi-
Fees of officers
in Crill)inal cases
2
cers hereinafter named shall be allowed, respectively, the fees in this chapter directed.
Justices of the Peace.
1 Sec. 2. For administering every oath, six cents; a warrant, nineteen cents; a bond or recogni-
2 Zance, twenty-five cents; a subpoena, six cents for each witness, not exceeding four in any one case; ºs of
- the peace.
3
Certifying the cause of commitment to other magistrates, or to any court, thirteen cents; a commit-
CHAP. 169.] - - ( 998 ) *. [TITLE 30
Of constables.
Of criers.
Of clerks.
4 ment for want of bail, nineteen cents; for any other services rendered by a justice in criminal pro
5 ceedings, the same fees as for similar services rendered in civil proceedings.
consula.
1 Sec. 3, Serving a warrant or other process for the arrest of any person, issued by any magistrate
2 or court, fifty cents; and the same fees for travelling to make such service as are allowed in civil
3 cases; taking a defendant into custody on a mittimus, thirteen cents; conveying a person to the
4 magistrate or court before whom he is to be brought, thirteen cents if within one mile, and for every
5 mile more, going only, six cents; serving a subpoena, thirteen cents for each witness, and the like
6 mileage as above provided, but mileage shall be allowed only on the distance actually and necessa-
7 rily travelled.
8 The board of supervisors of each county may allow such further compensation for the service of
9 process, and the expenses and trouble attending the same, as they shall deem reasonable; for other
10 services in criminal cases, for which no compensation is specially provided by law, such sum as the
11 board of supervisors shall allow.
Criers.
1 Sec. 4. Calling a jury, thirteen cents; calling and swearing a witness, six cents; making proclama-
2 tion for the discharge of any person, six cents; calling any person on recognizance, or in attach-
8 ment, six cents; for other services during the term of the court, such sums as shall be allowed and
4 ordered by the court.
Clerks.
I Sec. 5. Swearing a witness, six cents; entering a recognizance, thirteen cents; calling and swear-
2 ing a jury, nineteen cents; for other services, the same as provided in civil cases. .
e
Shariffs,
I Sec. 6. For every person committed to prison, thirty-eight cents; for every person discharged from
\ sº
CHAP. 169.] ( 999 ) [TITLE 31.
2
3
4
prison, thirty-eight cents; for serving a warrant or performing any other duty which may be per-
Of Sheriffs.
formed by a constable, the same fees as are allowed by law to a constable for such service; for other
services not herein specially provided for, such sums as may be allowed by the board of supervi-
5 sors,
!
2
3
4
General Provisions.
Sec. 7. The fees herein before in this chapter allowed for services, except those which are other- Fees to b
* € COUl Il-
ty charges.
wise provided for by law, shall be county charges, and shall be audited by the board of supervisors
of the county in which the services are rendered, and shall be paid in the same manner as other
contingent charges of the county.
Sec. 8. Whenever any person shall attend any circuit or district court as a witness in behalf of the tº to
Witnesses.
people of this state, upon request of the public prosecutor, or upon subpoena, or by virtue of a recog-
nizance for that purpose, and it shall appear that such person has come from any other state or ter-
ritory of the United States, or from any foreign country, or that such person is poor, the court may
by an order to be entered on its minutes, direct the county treasurer of the county in which the
court may be sitting, to pay to such witness such sum of money as shall seem reasonable for his
expenses.
Sec. 9. The clerk of the court by which such order shall be made, shall immediately make out and
- & & Clerk to issue
deliver a certified copy thereof to the person in whose favor the same is made, without any fee for ... * *
©
such service.
º e - fter
Sec. 10. U pon the production of such certified copy to the county treasurer, or as soon thereaft County treasu-
rer to pay.
as he shall have sufficient moneys in his hands, he shall pay to the Person authorized to receive the
same, or to his order, the sum of money so directed to be paid, which shall be allowed to the trea-
surer in his accounts.
250
CHAP. 170.] ( 1000 ) [TITLE 31.
I Sec. 11. The provisions of law prohibiting the taking of any fees for services in civil cases, other
Penalty for ta- -
king unlawful
ſees.
2 than such as are allowed by law, shall apply to the taking of fees in criminal cases beyond the
3amount allowed by law for such services,
released to 1 Sec. 12. In all criminal prosecutions, where an indictment shall be found, and judgment for costs
use of county;
fees of prosecu-
ting attorney.
2 against the denian shall be rendered, there shall be taxed for the use of the county, the following
3 fees for the services of the prosecuting attorney, to wit: for drawing an indictment, two dollars;
4 for trying the cause, four dollars; for arguing each motion in arrest of judgment, or for a new trial,
sº 5 two dollars; for services where exceptions are taken by the defendant, two dollars; for every dis-
6 charge of the prosecution on the acknowledgment of satisfaction in such cases as are authorized by
7 law, two dollars.
CHAPTER 170.
MISCELLANEoUs PROVISIONS CONCERNING PROCEEDINGS IN CRIMINAL CASEs:
1 Sec. 1, When complaint shall be made on oath to any magistrate authorized to issue warrants in
Secra for pro- *
perly stolen.
2 criminal cases, that personal property has been stolen or embezzled, or obtained by false tokens or
3 pretences, and that the complainant believes that it is concealed in any particular house or place,
4 such magistrate, if he be satisfied that there is reasonable cause for such belief, shall issue a warrant
5 to search for such property. l
1 Sec. 2. Any such magistrate may also, upon like complaint made on oath, issue search warrants,
For what search
warrant may is-
SU16,
2 when satisfied that there is reasonable cause, in the following cases, to wit:
3 1. To search for and seize any counterfeit or spurious coin, forged bank notes, or other forged i.
4. struments, or any tools, machines, or materials, prepared or provided for making either of them.
6 2. To search for and seize any books, pamphlets, ballads, printed papers, or other things containing
6 obscene language, or obscene prints, pictures, figures or descriptions, manifestly tending to corrupt
CHAP. 170.] ( 1001 ) [TITLE 31.
7 the morals of youth, and intended to be sold, loaned, circulated or distributed, or to be introduced
8
9
into any family, school or place of education.
3. To search for and seize lottery tickets, or materials for a lottery, unlawfully made, provided or
10 procured for the purpose of drawing a lottery.
11 4. To search for and seize any gaming apparatus, or implements used, or kept and provided to be
12 used in unlawful gaming, in any gaming house, or in any building, apartment, or place resorted to
1
2
13 for the purpose of unlawful gaming.
Sec. 3. All search warrants shall be directed to the sheriff or any constable of the county, com-
To whom direc-
ted; execution
manding sueh officer to search, in the day time, the house or place where the stolen property, or *
other things for which he is required to search, are believed to be concealed, which place, and the pro-
perty or things to be searched for, shall be designated and described in the warrant, and to bring
such property or other things before the magistrate issuing the warrant.
Sec. 4. If there be positive proof that any property, stolen or embezzled, is concealed in any par- tº gº
- jº"
lowed.
ticular house or place, or that any such other things are then in any particular house or place, the
warrant may authorize the searching of such house or place in the night time. *:
*
Sec. 5. When any officer in the execution of a search warrant, shall find any stolen or embezzled ºpºſed,
- ow kept and
used.
property, or shall seize any of the other things for which a search warrant is allowed by the pro-
visions of this chapter, all the property and things so seized shall be safely kept, by the direction of
the court or magistrate so long as shall be necessary for the purpose of being produced or used as
evidence on any trial; and as soon as may be afterwards, all such stolen or embezzled property shall
be restored to the owner thereof, and all the other things seized by virtue of any such warrant, shall
be destroyed under the direction of the court or magistrate.
Sec. 6. The governor of this state may, in any case authorized by the constitution and laws of the
Governor may
appoint agents.
United States, appoint agents to demand of the executive authority of any other state or territory,
CHAP. 170.] - ( 1002 ) [TITLE 31
Refugees in this
Slatc.
I6.
Persons deman-
ded by other
sales may be ar-
rested.
3 or from the executive authority of any foreign government, any fugitive from justice, or any person
4
5
I
• *
2
2
charged with treason; and the accounts of the agents appointed for that purpose shall, in all cases
be audited by the Auditor General, and paid out of the State treasury.
Sec. 7. Whenever a demand shall be made upon the Governor of this State, by the Governor of
any other state or territory, in any case authorized by the constitution and laws of the United
States, for the delivery over of any person charged in such state or territory, with treason, felony
or any other crime, the attorney general when required by the governor, shall forthwith investi-
gate the grounds of demand, and report to the governor all material facts which may come to his
knowledge, as to the situation and circumstances of the person so demanded, and especially wheth-
er he is held in custody, or is under recognizance to answer for any offence against the laws of this
state, or of the United States, or by virtue of any civil process, and also whether such demand is
made conformably to law, so that such person ought to be delivered up.
Sec. 8. If the governor shall be satisfied that the demand is conformable to law, and ought to be
complied with, he shall issue his warrant, under the seal of the state, authorizing the agents who
make such demand, either forthwith, or at such time as shall be designated in the warrant, to take
and transport such person to the line of this state, at the expense of such agents, and shall also by
such warrant require the civil officers within this state, to afford all needful assistance in the exe-
cution thereof.
Sec. 9. Whenever any person shall be found within this state, charged with any offence commit-
ted in any other state or territory, and liable by the constitution and laws of the United States to
be delivered over upon the demand of the governor of such other state or territory, any court or
magistrate authorized to issue warrants in criminal cases, may, upon complaint on oath, setting
forth the offence and such other matters as are necessary to bring the case within the provisions
of law, issue a warrant to bring the person so charged before the same or some other court or ma.
gistrate, within this state, to answer to such complaint as in other cases.
CHAP. 170.T ( 1003 ) [TITLE 31
I Sec. 10. If upon the examination of the person charged, it shall appear to the court or magistrate
Required £O re-
Cognize, etc.
2 that there is reasonable cause to believe that the complaint is true, and that such person may be
3 lawfully demanded of the governor, he shall, if not charged with a capital crime, be required to re.
4 cognize, with sufficient sureties in a reasonable sum, to appear before such court or magistrate at
5 a future day, allowing a reasonable time to obtain the warrant of the governor, and to abide the
6 order of such court or magistrate in the premises.
1 Sec. 11. If such person shall not recognize, or if he shall be charged with a capital crime, he shall
2 be committed to prison, and there detained until such day, in like manner as if the offence charged ºft;
ra } tº
appear, etc.
3 had been committed within this state; and if the person so recognizing shall fail to appear according
4 to the condition of his recognizance, he shall be defaulted, and the same proceedings shall be had
5 as in the case of other recognizances entered into before such court or magistrate.
1 Sec. 12. If the person so recognized or committed, shall appear before the court or magistrate
+ & How to be pro-
2 upon the day ordered, he shall be discharged, unless he shall be demanded by some person author- **
3 ized by the warrant of the governor to receive him, or nnless the court or magistrate shall see
4 cause to commit him, or to require him to recognize anew for his appearance at some other day;
5 and if, when ordered, he shall not so recognize, he shall be committed and detained as before; Pro-
6 vided, that whether the person so chapged shall be recognized, committed or discharged, anA per-
7 son authorized by the warrant of the governor, may at all times take him into custody, and the
8 same shall be a discharge of the recognizance, if any, and shall not be deemed an escºpe.
1
Sec. 13. The complainant in any such case shall be answerable for all the actual costs and char-
• e Expenses how
gº paid.
ges, and for the support in prison of any person so committed, to be paid weekly or otherwise as may
3 be ordered by the court or magistrate; and if the charge for his support in prison shall not be
4 so paid, the jailor may, on the failure of the complainant, discharge such person from his imprison-
5 ment.
251
CHAP. 172.T ( 1004 ) e [TITLE 31.
Pardous by Gov.
I
Sec. 14. In all cases in which the góvernor is authorized by the constitution to grant pardons, he
may grant a pardon upon such conditions, and with such restrictions, and under such limitations as
he may think proper, and he may issue his warrant to all proper officers to carry into effect such
*s
conditional pardon, which warrant shall be obeyed and executed, instead of the sentence, if any,
*A
which was originally awarded.
Sec. 15. Whenever any convict is perdoned by the governor, or his punishment is commuted, the
officer to whom the warrant for that purposc is issued, after executing the same, shall make return
thereof under his hand, with his doings thereon, to the secretary of state, as soon as may be, and
he shall also file in the clerk's office of the court in which the offender was convicted, a copy of the
warrant and return certified by him, a brief abstract of which the clerk shall subjoin to the record
Warrant for such
purpose how ex-
ecut'd and re-
turned.
of conviction and sentence.
CHAP. 171.] *ge ( 1005 ) [TITLE 32.
1
2
TITLE XXXII.
./
of IMPRISONMENT FOR OFFENCES, AND THE GOVERNMENT AND DISCIPLINE OF PRISONs.
CHAPTER 171—Of County Jails, and the regulation thereof.
“ 172—Of the State Prison, and the Government and Discipline thereof.
CHAPTER 171.
OF COUNTY JAILS, AND THE REGULATION THEREoF.
SECTION 1. The common jails in the several counties, in the charge of the respective sheriffs, shall be used
For what purpo-
& tº poses jails are to
as prison : S, used as prisons.
1. For the detention of persons charged with offences, and duly committed for trial:
2. For the detention of persons who may be duly committed, to secure their attendance as witnesses, on
the trial of any criminal cause :
3. For the confinement of persons committed pursuant to a sentence, upon conviction for an offence, and
of all other persons duly committed for any cause authorized by law :
g
And the provisions of this section shall extend to persons detained or committed by the authority of the
courts of the United States, as well as the courts and magistrates of this state.
SEc. 2. When any convict shall be sentenced to solitary imprisonment and hard labor in any jail, the keep”
: * ~ * * * * •S - & * a g How iailor to ex-
er thereof shall execute such sentence of solitary imprisonment, by confining the convict in one of the cells, ...;
solitary confine-
Ilment,
if there be any in such jail, and if there be none, then in the most retired and solitary part of such jail;
and during the time of such solitary imprisonment, such convict shall be fed with liread and water only, un-
less other food shall be necessary for the preservation of his health.
SEc. 3. No intercourse shall be allowed with any convict in solitary imprisonment, except for the convey.
Intercourse with
convicts.
ance and other necessary purposes, unless some minister of the gospel shall be disposed to visit him, in the
manner hereinaſter provided.
CHAP, 171.] ( 1006 ) - [Triº 32.
Charges for safe
keeping,etc. how
allowed and paid.
Supervisors may
provide by con-
tract ſor supplies.
1840; p. 55, sec.2.
|Prisoners to be
kept scparate, as
far as practicable
Conversations by
prisoners; how
far permitted.
Food for prison-
Cl’S.
Duty of jailor in
regard to prison-
ers sentenced to
hard labor.
1840, p 45, Sec. 8.
Employment of
convicts upon
highways.
1 SEC. 4. All charges and expenses of safe keeping and maintaining convicts, and of persons charged with
2, offences, and committed for examination or trial, to the county jail, shall be paid from the county treasury
3 the accounts therefor being first settled and allowed by the board of supervisors.
1 SEC. 5. The board of supervisors may, in their discretion, provide by contract for all necessary supplies
2 for the use of the jail, including fuel and food, clothing, bedding, and medical attendance, for prisoners com-
3 mitted on criminal charges. Jº
º
1 SEC. 6. It shall be the duty of the keepers of the said prisons, to keep the prisoners committed to their
2 charge, as ſar as may be practicable, separate and apart from each other, and to prevent all conversation
z
3 between the said prisoners.
1 SEc. 7. Prisoners detained ſor trial may converse with their counsel, and with such other persons as the
2 keeper, in his discretion, may allow; prisoners under sentence shall not be permitted to hold any conversa-
3 tion with any person except the keepers or inspectors of the prison, unless in the presence of a keeper or
4 inspector.
1 SEC. 8. Prisoners detained for trial, and those under sentence, shall be provided with a sufficient quantity
2 of inferior but wholesome food, at the expense of the county; but prisoners detained for trial may, at their
3 own expense, and under the direction of the keeper, be supplied with any other proper articles of ſood.
e
1 SEc. 9. It shall be the duty of the keepers of the said several prisons, whenever any person shall be
2 sentenced to hard labor therein, and any mode of labor shall be provided, to cause such prisoner to be kept w
3 constantly employed duting every day, except Sunday; and annually to account with the board of super-
4 visors of the county for the proceeds of such labor.
1 SEc. 10. The keepers of the said prisons shall respectively have power, with the consent of the super-
2 visors of the county, from time to time, to cause such of the convicts under their charge, as are capable of
3 hard labor, to be employed upon any of the public avenues, streets, highways or other works, in the county
CHAP. 171.] ( 1007 ) [TITLE 32.
4
5
in which such prisoners shall be confined, or in any of the adjoining counties, upon such terms as may
be agreed upon between the said keepers and the officers or other persons under whose direction such con-3
victs shall be placed.
SEC. 11. Whenever any convicts shall be employed under the last section, they shall be well chained and ºn-
chained, etc:
secured; and shall be subject to such regulations as the keeper legally charged with their custody, shall from
time to time prescribe. ©
SEc. 12. Whenever any prisoner who shall be sentenced to pay a fine and costs, or either, and to be com-
Prisoner Senten-
ced to pay a fine
& e &
mited until the same be paid, shall be employed at hard labor pursuant to the ſoregoing provisions, he shall.i.".
Ill Oull t.
be allowed the sum of seventy-five cents ſor each day's labor, and when he shall have earned the amount
of such fine and costs, he shall be discharged.
SEc. 13. The provisions contained in chapter one hundred and forty-eight, in regard to the designation of
Provisions of
* & º º º chapter 148, in re-
the jail of a contiguous county for the use of any county; to the removal of prisoners in such cases; and gº removal
. - of prisoners, etc.
... - . to apply in crimi-
nal cases.
to the removal of prisoners when danger shall be apprehended from fire or contagious disease, shall ex-
tend to prisoners confined upon any criminal process, or for a contempt, or under sentence, in like manner
as to prisoners confined in civil cases.
SEc. 14. Whenever it shall appear to the circuit or district court for any county, that any convict con-
Insane convicts
may be delivered
superintend-
g e * i. to
fined in the jail thereof, has become insane, such court may by an order to be entered in its minutes, direct ents of poor.
that such convict be delivered to the superintendents of the poor of the county.
SEc. 15. The clerk of the court shall cause notice of every such order to be served upon such superinten-
Notice of order
§ º: given by
. * * e . . . Clerk, etc.
dents, or one of them, who shall immediately take measures for the safe keeping of such insane person, in "
the manner provided by law.
Sec. 16. In each county of this state, the associate judges of the circuit court, together with the county Inspectors of all
superintendents of the poor, shall be inspectors of the jails therein respectively.
252
CHAP. 172. T ( 1008 ) [TITLE 32.
Powers of in-
Spectors.
Inspectors when
to visit and in-
spect prisons and
report their con-
dition.
Report—what to
COllt&ill.
Keepers to ad-
mit inspcctors,
exhibit books, etc
Inspectors may
examine officers
on oath, and con-
verse with priso-
Il CIS,
Keep’r to present
calendar to cir-
cuit or district
COUlri.
l
2
1
2
4.
l
el)
I
2
3
SEC. 17. Such inspectors shall have power, from time to time, to visit and inspect the common jail and
other county prisons, if there be any in their respective counties, and to examine and enquire into all mat-
ters connected with the government, discipline and police of such prisons.
SEC. 18. lt shall be the duty of such inspectors to visit and inspect the said prisons, in the month of June,
and also in the month of December, in every year, and at the next circuit or district court which shall there-
aſter be held in their county, to present to such court, on the first day of its sitting, a detailed report
of the condition of such prisons at the time of such inspection.
*::
tº
Sec. 19. Such report shall state the number of persons confined in such prisons for the six months im-
mediately preceding such inspection, and for what º respectively; the manner in which the convicts
confined in such prison during that period have been employed; the number of prisoners usually confined
in one room; the distinction, if any, usually observed in the treatment of persons detained in such prisons;
the evils, if any, ſound to exist in such prison; and particularly whether any of the provisions of this chap-
ter have been violated or neglected, and the causes of such violation or neglect.
SEC. 20. It shall be the duty of the keepers of each of said prisons to admit the said inspectors, or any of
them, into every part of such prison; to exhibit to them on demand, all the books, papers, documents and
accounts pertaining to the prison, or to the detention of the prisoners confined therein, and to render them
every other facility in their power, and to enable them to discharge the duties above prescribed
SEC, 21. For the purpose of obtaining the necessary information to enable them to make such report as
is above required, the said inspectors shall have power to examine, on oath, to be administered by either of
the said inspectors, any of the officers of the said prisons, and to converse with any of the prisoners con-
fined therein, without the presence of the keepers thereof, or any of them.
SEc. 22. It shall be the duty of the keeper of every county prison to present to every circuit or district
l
court to be held in his county, at the opening of such court, a calendar, stating
-*
1. The name of every prisoner then detained in such prison:
º
CHAP. 171.] ( 1009 . ) [TITLE 32.
4
5
5
6
2. The time when such prisoner was committed, and by virture of what process or precept; and
3. The cause of the detention of every such person.
SEc. 23. Within twenty-fourhours after the discharge of any grand jury by any circuit court or district court,
When persons
not indicted to be
it shall be the duty of such court to cause every person confined in such prison upon any criminal charge, ºrge by
who shall not have been indicted, to be discharged, without bail, unless satisfactory cause shall be shown to
such court for detaining such person in custody or upon bail, as the case may require, until the meeting of
.*-
the next grand jury in such county.
SEc. 24. Aſter the circuit court or district court for any county shall have commenced its sitting, no pri- ...hºp.
In Ot De reill OVC
on habeas cor-
pus, unless, etc.-
soner detained in the common jail of such county upon any criminal charge, shall be removed therefrom du-
ring such sitting by any writ of habeas corpus, unless such writ shall have been issued by such court, or
shall be made returnable before it.
O
SEc. 25. 1ſ any person confined in any jail, upon a conviction or charge of any criminal offence, shall be
- Refractory priso
mers may be pun-
ished.
*.
refractory or disorderly, or shall wilfully or wantonly destroy or injure any article of bedding, or other fur-
niture, or a door, window, or any other part of such prison, the sheriff of the county, after due inquiry,
may cause such person to be kept in solitary confinement, not more than ten days for any one offence; and
during such solitary confinement, he shall be fed with bread and water only, unless other food shall be me.
cessary ſor the preservation of his health.
SEC. 26. If any person committed to jail on original process or on execution, or for any other cause than
those mentioned in the preceding section, shall be guilty of either of the offences therein specified, and be persons confined
on execution,
etc, how pnnish-
ed for offence in
thereof convicted before a justice of the peace of the county, on the complaint of the keeper of such jail, such jails, etc.
person shall be punished by solitary imprisonment, as directed in the preceding section, not more than ten
days for any one offence; and such offender shall be liable for double the amount of the damages done to
the jail, furniture or other property, to be recovered with costs of suit, in an action of trespass, in the name
7 of the board of supervisors of the county.
CHAP. 172.] - ( 1010 ) [TITLE 32.
Construction of
two preceding
SCCR1On S.
Escape of per-
SOhs under sen-
tence of confine-
ment at hard la-
bor; how punish-
ed.
Breaking prison
and escaping in
other cases; how
punished.
Punishment for
attempt to escape
State prison at
Jackson.
1838, p 123.
1839, p 133.
Inspectors of pri-
SOI),
1
l
2
2
1
2
Sec.27. Nothing contained in the two preceding sections shall be construed to take from any sheriffor jail-
er, any part of the authority with which he was before invested by law, to preserve order and enforce strict
discipline among all the prisoners in his custody.
Sec. 28. If any person lawfully imprisoned in any jail, under sentence of confinement at hard labor,
shall break such prison and escape, he shall be punished by imprisonment in the state prison or county jail,
not more than three years, in addition to the unexpired portion of the term for which he was originally im-
prisoned.
SEC, 29. If any person lawfully imprisoned in any jail, for any cause not mentioned in the preceding
section, shall break such prison and escape, he shall be punished by imprisonment, either in the state pri.
Son or county jail, not more than one year in addition to the unexpired portion of the term for which he was
originally sentenced.
()
Sec. 30. If any person lawfully imprisoned for any cause in any prison or place of confinement establish-
ed by law, other than the state prison, shall forcibly break the same, with intent to escape, or shall, by any
force or yiolence, attempt to escape therefrom, although no escape be effected, he shall be punished by im-
prisonment in the county jail not more than one year, in addition to any term for which he was held in pri-
son at the time of such breaking or attempting to escape.
CHAPTER 172.
of THE STATE PRIson, AND THE GovePNMENT AND DISCIPLINE THEREOF.
*.
SECTION 1. There shall continue to be maintained in this state, a state prison at Jackson, in the county of
Jackson.
Sec. 2. The said prison shall continue to be under the direction and government of three inspectors, one
of whom shall be appointed annually by the Governor, by and with the advice and consent of the Senate,
g
CHAP. 172.] ( 1011 ) - [TITLE 32.
3
and shall hold his office for the term of three years, and until his successor shall be appointed and qualified,
- - 1840, p. 109.
4 and shall take and subscribe the oath of office prescribed in the twelfth article of the constitution, before en-
5
2
SEC. 4. The officers of the prison shall consist of one agent, who shall be the principal keeper, and shall
tering.upon the duties of his office.
SEC. 3. The board of inspectors shall meet at the state prison office as soon as may be aſter such appoint-
To choose presi-
dent.
ment of an inspector, and shall choose one of their number to be their president.
Cfficers of prison
reside at the prison; one clerk, one physician and surgeon, one deputy keeper, and such assistant keepers
as the agent and inspectors shall deem to be requisite.
SEc. 5. The agent shall be appointed by the 60 vernor, by and with the advice and consent of the senate, Agent, how ap-
pointed and term
of Office.
and shall hold his office for the term of two years, and until his successor shall be appointed and qualified,
unless sooner removed by the governor.
SEc. 6. The clerk, physician and chaplain shall be appointed by the board of inspectors, and shall hold
Other officers,
© e inted,
their respective officers during the pleasure of the board; and the deputy keeper and assistant keepers shall how appointe
be appointed by the agent, with the assent of the inspectors, and hold their offices during his pleasure.
Sec. 7. The inspectors shall have power, and it shall be their duty from time to time, to examine and in-
{} tº * * º * * * * © g © Inspectors to in-
quire into all matters connected with the government, discipline and police of the prison, the punishment º:
ernment of pris-
ons, etc.
and employment of the prisoners confined therein, the moneyd concerns and contracts for work, and the
purchases and sales of the articles provided for such prison, or sold on account thereof; and they may from
time to time require reports from the agent or other officers of the prison, in relation to any or all of the
*
6 said matters. - w
2
Sec. 8. It shall be the duty of the inspectors to inquire into any improper conduct which may be alle-
Inspectors to in-
quire into alledg-
ged to have been committed by the agent or any other officers of the prison; and for that purpose any jus- ...”
258
CHAP. 172.T
( 1012 ) - [TITLE, 32.
-
*
Examination Of
Witnesses.
Inspectors to be
admitted into pri-
Son, and books,
etc. to be exhibi-
ted to them.
•.”
8 tice of the peace shall have power to issue subpoenas, to compel the attendance of witnesses, and the pro-
4 duction of papers and writings before them, in the same manner and with the like effect as in cases of ar-
*
5 bitrations. - f
1 SEC. 9. The Inspectors may examine any witnesses who shall appear before them, on oath, to be admin.
2 istered by the president of the board, or in his absence, by any other member thereof.
|
*
*-
1 SEC. 10. It shall be the duty of the agent and other officers of the prison, whenever requested, to admit
2 the inspectors, or either of them into every part of the said prison ; to exhibit to them, or either of them, on
3 demand, all the books, papers, accounts and writings, pertaining to the prison, or to the business, govern-
4 ment, discipline or management thereof, and to render them every other facility in their power, to enable
5 them to discharge their duties under this chapter.
Board of inspec-
tors to keep min-
utes of proceed-
ings.
Duty of board to
meet, adopt rules
etc.
-:
Printed copy of
rules to be fur-
mished to each of-
ficer and guard.
General and spe- .
cial rules and or-
ders by agent.
1 Sec. 11. The board of inspectors shall keep regular minutes of their meetings and proceedings, which shall
2 be signed by them, and kept in the prison office.
.*
1 SEc. 12. It shall be the duty of the board of inspectors to meet at the pion once in each month, and
2 then to inspect the same; and a majority shall constitute a quorum for the transaction of business : they
3 shall adopt rules and regulations for the direction and government of all the officers of the prison; and all
4 rules and regulations adopted by them, and their proceeding as a board at each meeting shall be recorded
5 by the clerk of the prison, who shall attend their meetings for that purpose.
-
-
*
† SEC. 13. A printed copy of the rules and regulations of the prison shall be furnished to every officer and
2 guard of said prison at the time he is appointed and sworn. - w
I Sec. 14. The agent of the prison may make and issue general [and special orders, and make rules, to
2 be in force until the next meeting of the board of inspectors and no longer, and all general orders or rules
8 for the government of the subordinate officers of the prison, made by the agent, shall be in writing, and
4 shall be entered in a book to be kept by him for that purpose.
CHAP. 172.] (, 1013 ) [TITLE 32.
I Sec. 15. The agent or deputy keeper shall also keep a daily journal of the proceedings of the prison, in
* . . - - - - Daily journal to
- * . . . . . . . . . .- . . e e - - - " …, be kept and laid
2 which he shall note every infraction of the rules and regulations of the prison, by any officer or guard beforeinspectors.
* * ſ
3 thereof, which shall coune to his knowledge, and make a memorandum of every complaint made by any con-
4 vict, of cruel or unjust treatment ſrom his OVC I’See I’, Or other officer of the prison, or a want of good and
5 sufficient food or clothing; and also of every inſpaction of the rules and regulations of the prison, by any -
6 prisoner, naming him and speciſying the offence, and also, what punishment, if any, was awarded; which
7 journal shall be laid before the inspectors at every stated meeting, and at every special meeting, whenever
8 demanded, º
*
1 SEc. 16. No mechanical trade shall hereafter be taught to convicts in the state prison of this state, except
-- - - What mechani-
- - - e - º - - - . cal trades not be
2 the making of those articles, of which the chief supply for the consumption of the country, is imported from taught in prison.
2
3 other states or countries.
Report to be
1 SEC. 17. It shall be the duty of the inspectors of the prison to make out and transmit to the secretary of,
- - made by inspect-
- - - ors to secretary
2 state, on or beſore the ſirst day of January in each year, a full statement of the monthly reports of the ***
3 agent, verified by his oath; also, a ſull statement of the number of convicts received into the prison, and
4 from what county received, and for what crimes convicted; the number discharged, died, escaped and par.
5 doned, and the general health of the convicts; also, a statement of the money expended in the support and
6 maintenance of the prisoners, and the wages of the guard, and of all moneys received for articles sold, and
*
* .
***
7 for the labor of the convicts, and generally of all the proceedings during the year.
1 SEc. 18. No inspector of the state prison shall be agent thereof, or be concerned in the business of such s,
No inspector to
be agent, etc.
2 agency, or hold any other appointment or place connected with the prison,
l
SEc. 19. There shall be paid to the officers of the prison the following annual salaries and compensations,
Compensation of
2 to be paid quarterly out of the treasury, on the warrant of the auditor general, to wit: to the agent, the "“”
\ ,
3 sum of eight hundred dollars; to the clerk, the sum of five hundred dollars ; to the deputy keeper, five hun-
4 dred dollars ; and to the assistent keepers, a sum not exceeding four hundred dollars each, as the inspectors.
…”
CHAP. 172.] ( 1014 ) [TITLE 32.
Prison guards.
Compensation of
inspectors.
Agent and clerk
to give bond.
Oaths of office,
C{C.
Duties of agent.
5
,6
2
shall deem just and equitable ; to the chaplain, one hundred dollars, to be paid out of the avails of the pris-
oners' labor and fees received from visitors; and to the physician, such sum as the inspectors shall allow ;
to be paid out of the avails of such labor and fees,
SEc. 20. The inspectors shall from time to time employ, arm and furnish such guards as the preservation
of discipline and safe keeping of the prisoners may require, who shall be under the direction and control of
the agent of the prison.
SEc. 21. The inspectors shall be allowed ſor their services respectively, two dollars for each and every
day actualy and necesarily occupied in inspecting the prison and inquiring into the management thereof, not
to exceed thirty days in each year, to be audited by the auditor general, and to be paid on his warrant out
of any moneys in the treasury not otherwise appropriated.
Sec. 22. The agent and clerk shall each, before entering upon the duties of their respective offices, ex-
ecute to the people of this state, their bonds with two or more sufficient sureties; the agent in the penal sum
of twenty thousand dollars, and the clerk in the penal sum ot five thousand dollars, conditioned for the faith-
ful performance of their duties according to law; said bonds to be approved by the investon, and filed in
the office of the auditor general.
SEc. 23. The agent, clerk, deputy keeper, assistant keepers and guards, shall each, before entering upon
; the duties of their respective offices, take and subscribe the oath of office prescribed in the twelfth article of
the constitution, before some officer authorized by law to administer oaths, and the same shall, as soon as
4 convenient, be filed in the office of the auditor general.
1
2
SEc. 24. It shall be the duty of the agent,
1. To attend constantly at the prison, except when performing some other duty connected with his office:
8 2. To exercise a general superintendence over the government, discipline and police of the prison, and to
4 Superintend all the business concerns thereof:
CHAP. 172.] ( 1015 ) [TITLE 32.
10
11
3. To give necessary directions to the keepers, and to examine whether they have been careful and vigi-
lant in their respective alsº
4. To examine daily into the state of the prison, and the health, conductand safe keeping of the prisoners.
5. To use every proper means to ſurnish employment to the prisoners most beneficial to the public, and
best suited to their several capacities:
6. To superintend the manufacturing and mechanical business that may be carried on pursuant to law,
within the prison; to receive the articles manufactured, and to sell and dispose of the same for the benefit of
the state.
7. To take charge of the real and personal estate attached to the prison.
Sec. 25. All the transactions and dealings on account of said prison, shall be conducted by and in the name rººm. of-
prison to be con
i: in name of
of the agent, who shall be capable in law of suing and being sued in all courts and places, and in all matters".
concerning the said prison, by his name of office; and by that name he is hereby authorized to sue for and
recover all sums of money, or any property, due from any person to any former agent of the said prison,
or to the people of this state on account of such prison.
SEc. 26. Whenever the inspectors shall so direct, it shall be the duty of the agent to make contracts from
Contracts for la-
time to time, for the labor of the convicts confined in the prison, or of any of the said convicts, with such º,"; fºvies
S42 p
persons, and upon such terms as may be deemed by the agent most beneficial to the interests of the people
of this state, and subject to such regulations as the inspectors shall prescribe.
SEc. 27. All contracts so to be made shall be reduced to writing, and a counterpart or copy of every such
Contracts to be
in writing
contract, shall be filed with the clerk of the prison.
Sec. 28, The prisoners confined in the state prison, shall be supplied with provisions by contract, unless
How prisoners
the inspectors shall otherwise direct, to be made by the agent under the direction of the inspectors, with &####,
such persons as may be willing to do it on the best terms, at a fixed price per day for each prisoner.
254
CHAP. 172.]
( 1016 ) [TITLE 32.
*:
Articles and the
quantity to be
prescribed by in-
Spectors.
Notice for sup-
plies
PHospital stores
Purchase of raw
materials.
No officer to be
interested.
Agent to take
bills—clerk to en
!Cr Still le.
SEc. 29. The articles of food, and the quantities of each "kind, shall be prescribed by the inspectors and
inserted in the contract; and so many rations shall be delivered daily, or at such other times as may be -
agreed on, as there are convicts confined therein.
SEC. 30. Before any contract for the supply of rations shall be made, a * stating the number of ra-
tions, and the quantity and quality of each part of the ration, and the time and place of receiving propo-
sals for furnishing the same, shall be given by publication in two newspapers, one of which shall be the
state paper, and the other a newspaper printed in the county of Jackson; and the contracts shall be made
with those persons who offer the most advantageous proposals to the state, provided satisfactory security be
offered, unless the inspectors shall deem it expedient to decline all the proposals, and advertise anew.
SEc. 31. The necessary medicines and other hospital stores for the use of the prison, shall be purchased
from time to time as may be necessary, by the agent of the prison, with the advice of the physician, and
under the direction of the inspectors.
SEC. 32. The agent may also purchase such raw materials as may be necessary, to be manufactured in
*.
the prison, and to be paid for by such agent out of any money in his hands belonging to the state,
SEC. 33. No inspector, agent, or any other officer of the prison, shall be directly or indirectly interested
in any contract, purchase or sale, for or on account of such prison, under the penalty of five hundred dol-
lars.
SEc. 34. Whenever any supplies or materials for the prison shall be purchased, it shall be the duty of the
agent to take bills therefor at the time of the purchase, and the clerk shall compare such bills with the arti-
cles delivered at the prison, and if found correct, shall enter them in books to be provided ſor the purpose;
and whenever any services are rendered for the prison, it shall in like manner be the duty of the agent to
take bills thereof, at the time of making payment therefor; and every such bill shall be entered by the clerk
in the books of the prison, unless he shall know or have reason to believe that such bills are erröneous.
CHAP. 172.] * ( 1017 )
[TITLE 32.
5
4
ed, there shall be annexed an affidavit of the agent and clerk of the prison, stating that the same are true in
Sec. 35. It shall be the duty of the agent to keep a regular and correct account of all moneys received by
Agent to make
return inonthly.
him from every source by virtue of his office, including all moneys taken from convicts, or received as the
proceeds of property taken from them, and of all sums paid by him, and the persons to whom, and the pur-
poses for which the same were paid, and to make out and deliver to the inspectors, monthly, on oath, a re-
turn of all moneys received and paid by him on account of the prison, during the wers month, speci-
fying ſrom whom received and to whom paid, and on what account, and stating also the balance in his hands
at the time of rendering such account,
SEC, 36. The agent shall annually on the last day of November, in every year close his account, and on
* Agent to. render
or or before the fifteenth day of December, thereafter shall render to the auditor general a full and true ac- ºnly
count of all moneys received by him on account of the prison, and of all moneys expended by him for the
use thereof, with sufficient vouchers for the same, and also an inventory of the goods, materials and other
property of the state on hand, exhibiting a complete detail of the transactions of the prison for the year.
SEc. 37. To the several returns, accounts and inventories required by the preceding section to be render-
- Affidavit.
every respect to the best of their knowledge and belief.
SEc. 38. It shall be the duty of the auditor general to examine and audit the accounts of the agent, and
- Duty of Auditor.
annually to lay a statement thereof before the legislature.
SEc. 39. The agent shall, on or before the first day of December in every year, make and deliver to the
- Agent to refiort
º s: * - - - - º • º e to inspectors the
inspectors of the prison, a report, exhibiting a complete and comprehensive view of the transactions of the *..."; trail SaC-
| - tions of priso F
prison during the preceding year, and stating the number of convicts confined therein, the various kinds of
business in which they are employed, the number employed in each branch and the profits, if any, arising
5 to the state therefrom.
t
SEC. 40. The agent, keeper, and other officers, and the guards of the prison, shall not receive any per-
Officers to re've
e G º & g no perquisites.
quisites or emoluments for their services, other than the compensation allowed by law, except that the agent
CHAP. 172.T ( 1018 ) - [TITLE 82.
Agent—annual
rep. to Sec. state.
When dep. keep-
er to perform du
ties of agent
Duties of physi-
cian
Books public and
th remain in pri-
SOIT,
No officer to em.
ploy labor of the
convict.
3
4
2
2
l
1
shall keep his office, and reside with his family at the prison, and shall be furnished with fuel and lights from
the stock provided for the use of the prison, and from the said stock, shall furnish fuel and lights for the
barracks of the guards; and the deputy keeper shall be furnished with the house now occupied by the dep-
uty keeper, free of rent.
SEc. 41. It shall be the duty of the agent, annually, on or before the first day of December, to report to tº
the secretary of state, the names of the convicts pardoned or discharged during the preceding year from
the prison; the counties in which they were tried; the crimes for which they were convicted; the terms for
which they were severally committed; the ages, and description of their persons; and in cases of pardons,
the term unexpired for which they were severally sentenced, when sach were granted, and the terms, if any
upon which they were granted.
Sec. 42. Whenever there shall be a vacancy in the office of agent of the prison, or when the agent shall
necessarily be absent from the prison, all the duties, and powers of such agent, so far as the same relate to
the safe keeping of the prisoners, and the discipline of the prison, shall devolve upon and be executed by
the deputy keeper of the prison, until the vacancy be filled, or the agent return to the prison.
Sec. 43. It shall be the duty of the physician of the prison, to keep a register of all convicts placed under
his care, stating the disease with which they are afflicted, and the date of their entering and leaving the
hospital ; also, a register of all the deceased convicts, stating their names, ages, disease, time and cause of
death, and all other circumstances which he may deem proper and necessary ; which register shall always
remain in the prison, and be open to inspection.
Sec. 44. All books of account, registers and other documents and papers relating to the affairs of the pris-
on, shall be considered public property, and shall remain therein 3 and the agent shall preserve at least one
set of copies of all official reports made to the legislature respecting the prison, and the transactions thereat.
SEC. 45. No officer of the prison shall employ the labor of any convict upon any work in which he or
any other officer shall be interested.
CHAP. 172.] ( 1019 ) ITITLE 82.
I
2
4
5
&
Sec. 46. All convicts in the state prison, other than such as are confined in solitude for misconduct in the
Convicts kept at
hard labor.
prison, shall be kept constantly employed at hard labor not less than eight hours each day, (Sundays ex-
cepted, ) unless incapable of laboring by reason of sickness or other infirmity.
Af
Sec. 47. Whenever there shall be a sufficient number of cells in the prison, it shall be the duty of the "***
agent to keep each prisoner singly in a cell at night, and also during the day time when unemployed.
SEc. 4S. The clothing and bedding of the convicts shall be of coarse materials, manufactured, as far as &
. Clothing and bed
ing.
practicable, in the prison; and they shall be supplied with a sufficient quantity of wholesome coarse food.
*
SEC. 49. The agent shall furnish at the expense of the state, a bible to each of the convicts who can read. convicts to be
provided bibles.
SEc. 50. When several convicts combined, or any convict alone, shall offer violence to any officer * Daw of oncers
uty O C
in case of viol’ne
or attempt to es-
guard of the prison, or to any other convict or person, or do or attempt to do, any injury to the building or *
any workshop, or to any appurtenances thereof, or attempt to escape, or resist or disobey any reasonable
* the officers of the prison shall use all suitable means to defend themselves, to enforce the observº
ance of discipline, to secure the persons of the offenders, and to prevent any such attempt to escape.
Sec. 51. The assistant keepers shall preserve proper discipline among the convict, under their charge, ſº
and may punish them for misconduct, in such manner, and under such regulations as shall be adopted by
the board of inspectors, and any such keeper shall, as soon as the next day after inflicting punishment on
any convict, deliver to the agent or deputy keeper a written memorandum thereof, signed by him, stating
the offence committed, and the kind and extent of the punishment inflicted.
SEc. 52. It shall be the duty of the agent to take charge of any property which any convict may have Agent—property
of convicts
$º
with him at the time of entering the prison; and if the same is worth five dollars or more, the agent shall
sell or preserve the same, and place the proceeds thereof at interest, for the benefit of such convict or his
4 representatives.
525
CHAP. 172.]
( 1020 ) 2. [TITLE: 32.
To keep account
and pay over
proceeds
Clothing’and mo-
ney to be furnish
ed convict on dis-
charge.
Letters not to he
delivered to con-
victs.
Persons authori-
zed to visit con’s
at pleasure.
Copy of sentenee
to be delivered
with convict,
1843 p 148
Reward for con-
viets who have
cscaped.
1
2
1
SEC. 53. Such agent shall keep a correct account of all such property, and shall pay the amount, or the
proceeds thereof, or return the same, to the convict when discharged, or to his legal representatives in case
of his death, and in case of the death of such convict without being released, if no legal representative shall
demand such property within five years, then the same shall be applied to the use of this state.
SEC. 54, When any convict shall be discharged from prison, by pardon or otherwise, the agent shall fur-
nish such convict with clothing, iſ he be not already provided for, not exceeding ten dollars in value, and
such sum of money, not exceeding three dollars, as the agent may deem necessary and proper.
SEc. 55. No person, without the consent of the agent shall bring into, or carry out of the prison, any
letter or writing, or any information, to or from any convict; and whoever shall violate the provisions of
this section, shall be deemed guilty of a misdemeanor.
SEC. 56. The following persons shall be authorized to visit the prison at pleasure, namely: the governor,
lieutenant governor, members of the legislatnre, the secretary of state, the chancellor, the judges of the
supreme court and circuit and district courts, the attorney general and prosecuting attorneys, and all regu-
lar officiating ministers of the gospel; and no other person shall be permitted to go within the walls of the
prison where convicts shall be confined, except by special permission of the agent, or under such regula-
tions as the inspectors shall prescribe.
Sec. 57. When any convict shall be delivered to the keeper of the state prison, the officer having such
convict in his charge, shall deliver to such keeper the certified copy of the sentence received by such offi-
cer from the clerk of the court, and shall take from such keeper a certificate of the delivery of such con-
vict; and such certified copy of the sentence of any convict shall be evidence of the facts therein con-
tained.
SEc. 58. Whenever any convict shall escape from the prison, it shall be the duty of the keeper to take all
proper measures for the apprehension of such convict, and for that purpose he may offer a reward, not ex-
3 ceeding one hundred dollars, for the apprehension of such convict.
CHAP. 172.] ( 1021 ) [TITLE 32.
SEc. 59. All suitable rewards and other sums of money, necessarily paid for advertising and apprehending
Reward to be
É. out of state
* gº º g *. ICàSUlry,
any convict that may escape from the prison, shall be allowed by the auditor general, and paid out of the y
state treasury.
SEC. 60. In case any pestilence or contagious disease shall break out among the convicts in prison, or in Removal of con.
victs in case of
pestilence.
the vicinity of the prison, the inspectors may cause the convicts therein to be removed to some suitable
place of security, where such of them as may be sick, shall receive all necessary care and medical atten-
dance, and such convicts shall be returned, as soon as it may be safe to do so, to the prison, and there con-
*
fined according to their respective senſences, if the same be unexpired.
SEC. 61. Whenever by reason of the state prison being on ſire, or any building contiguous or near to such In case of fire.
e
prison being on fire,there shall be reason to apprehend that the convicts confined therein may be injured or
*
endangered by such fire, the keeper may remove such convicts to some safe and convenient place, and there
confine them so long as may be necessary to avoid the danger.
Sec. 62. It shall be the duty of the keeper of the state prison to receive therein and safely keep, and sub- º:
ject to the discipline of the prison, any criminal convicted of any crime against the United States, sentenced
to imprisonment therein by any court of the United States sitting within this state, until such sentence shall
2’
be executed, or until such convict shall be discharged by due course of law, the United States supporting
such convicts, and paying the expenses of executing such sentence,
SEc. 63. If any convict confined in the state prison shall be considered an important witness in behalf of
& •; ºvni º e t & - When hab
the people of this state, upon any criminal prosecution against any other convict, by the prosecuting attor corpus º,
granted for con-
vict to tertify
ney conducting the same, it shall be the duty of any officer or court authorized by law to allow writs of ha-
beas corpus, upon the affidavit of such prosecuting attorney to grant a habeas corpus for the purpose of
bringing such prisoner beſore the proper court, to testify npon such prosecution.
SEC, 64. No spirituous or fermented liquor shall, on any pretence whatever, be sold in the state prison, or spirituoos !",
- - } quors not to be,
sold in prison.
in any building appurtenant thereto, or on the land granted to the state for the use and benefit of the pris-
*
Char. 112.1 ( 1022 ) [Title 32.
8 on; and no such liquors shall be given to or suffered to be used by any convict in the prison, unless he be
4 sick, and then only under the special direction of the physician.
sº ... 1 SEC. 65. It shall be the duty of the sheriff of every county in which any criminal shall be sentenced to con
COIl VICUS UO -
prison. -
2 finement in the state prison, as soon as may be practicable after the passing of such sentence, to convey
3 such convict to the state prison and deliver him to the keeper thereof.
1 SEC. 66. The ſees and expenses of sheriffs in conveying convicts to the state prison shall be paid by the
1843, p 24, § 5. -
Expenses of ©
§ 2 agent out of any monies in his hands belonging to the state, subject to such regulations as shall be prescri-
* 3 bed by the auditor general; and the agent shall keep an account of all such ſees and expenses, and submit
4 the same to the auditor general with his annual report.
1 SEc. 67. The auditor general is hereby authorized and required to draw his warrant on the treasurer for
Auditor general -
to draw warrant sº e & e -
2 such sums as the inspectors of the prison shall from time to time direct; but such sums so drawn at any
*) º º
3 one time shall not exceed one thousand dollars, and no further sum shall be drawn until satisfactory vouch-
4 ers are presented to and allowed by the auditor general for the amount previously drawn.
1 SEC, 68. It shall be the duty of the agent and deputy keeper to see that rigid economy is practiced in all
Rigid economy
to be practised.
2 matters pertaining to the prison, and in the employment of prisoners, and that duplicate receipts Le taken
3 for all expenditures made by them on account of the prison, one copy of which shall be sent to the auditor
4 general’s office monthly.
s & Sec. 69. It shall be lawful for the inspectors to establish uniform rules for the admission of visitors within
Admission fees.
2 the prison, and they may order the keeper to demand and receive ſor each individual admitted within said
3 prison such sum as they may ſrom time to time establish, not exceeding twenty-five cents for one admission,
4 for each, person and they shall cause an account to be kept of the number of visitors, and the amount re-
5 ceived for their admission; which shall be accounted for in the same manner as other moneys belonging to
6 the prison.
CHAP. 172.] h. ( 1023 ) [Title 32.
1 SEC. 70. The agent, clerk, deputy keeper, assistant keepers, guards and other necessary attendants, shall,
-- Officers and
a * tº guards exempted
2 while in the actual employ of the state as such officers, guards and attendants respectively, be exempt from jº";
*.
3 military and jury duties.
1 SEC. 71. There shall be printed annually, for the use of the prison, one hundred extra copies of the an- ..º.º. of
- report.to be
printed, etc.
2
nual report of the inspectors, and the agent shall annually transmit to each of the state prisons in the United
3 States, Öne copy of such report.
1 SEc. 72. On the removal or resignation of any agent of said prison, the auditor general shall settle the Audits, general
to settle accounts
On removal of
agent.
2
accounts of such agent, on the presentation of his books and vouchers duly authenticated for that purpose.
t
!
W
W
3 90"
º
W
#:; º -> ·
----ș.

º
º
*.
†:
*
:g
.
§
;