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PREFACE. 


eof  to  be  fully  and  carefully  read  before  them ;  and  they  present  as  their 
limous  conclusion,  that  said  Commissioners  have  kept  themselves*  fully  and 
fully  within  the  pale  of  the  powers  and  duties  conferred, 
be  mingling  together  in  condensed  and  intelligible  form  the  Common  and 
ute  Laws,  Constitutional  Provisions,  and  Court  Decisions,  and  thus  to  place 
^hole  body  of  all  the  Law  within  the  reach  of  the  people,  was,  in  the  opin- 
)f  your  Committee,  the  great  end  aimed  at  by  the  Legislature,  and  this  end 
been  kept  in  view,  and,  to  every  practicable  and  attainable  extent,  ably  and 
ently  accomplished  by  the  Commissioners. 

Code  so  entirely  extensive  in  its  aims  and  purposes  as  to  define  in  intelligi- 
orm  and  language  out  of  the  body  of  the  great  system  of  the  Common  Law 
ing  time  whereof  the  memory  of  man  runneth  not  to  the  contrary,  mischiefs 
'ights,  duties  and  obligations,  and  to  present  in  intimate  and  close  connection 
iwith  Constitutional  and  Statutory  Provisions,  and  the  judicial  exposition  and 
Tucti'^vjr'  thereof,  for  their  redress  and  enforcement,  is  of  rare,  if  not  in  the 
no^  .{)resented,  of  Original  occurrence.  Your  Committee  intend  to  say  that 
3  r\  been  before  so  extensively  attempted,  that  the  citizen  should  be  referred 
3  \  ole  embodiment  of  the  Law  in  a  single  volume  to  be  exactly  informed 
^re'his  rights  in  any  and  every  exigency,  and  what  his  remedies  for  their  en- 
nent  and  protection.  And  it  need  hardly  be  added  that  to  the  large  degree 
ich  the  offered  Code  accomplishes  this  great  desideratum,  it  must  and  will 
lend  itself  to  public  approval  and  acceptance.  As  your  Committee  have 
in  the  discharge  of  the  duties  devolved  upon  them,  they  caused  each  and 
section  of  the  Code  to  be  read  before  them,  and  at  the  option,  or  upon  the 
5j,ion  of  any  one  of  its  members,  its  sections  were  discussed,  canvassed,  and 
led,  enlarged  and  restricted  by  a  vote  of  the  majority  ;  and  your  Committee 
id,  that  the  codifiers  themselves,  being  present,  with  scarce  a  single  excep- 
.pproved,  acquiesced  in,  and  adopted  all  such  suggestions,  alterations,  modi- 
^s,  enlargements,  or  restrictions,  as  your   Committee  thought  proper  to 

I       ^ 

ond  what  has  been  said,  the  limits  of  this  report  will  not  authorize  your 

ittee  to  enlarge. 

"the  result  of  their  investigations,"'  and  in  full  view  of  the  delicate  respon- 
BS  th^eby  incurred,  especially  if  their  further  suggestions  shall  receive  Le- 
^e^^roval,  they  do  not  hesitate,  with  entire  unanimity,  to  report  that  the 
Mfioners  have  ably,  faithfully,  and  efficiently  discharged  the  arduous  duties 
d  upon  them,  and  with  like  unanimity  recommend  the  Legislative  sanction 
option  of  that  which  they  present  as  "The  Code  of  Georgia." 
■le  further  anxious  discharge  of  their  duties,  the  thoughts  of  your  Commit- 
e  been  necessarily  turned  to  consider  the  mode  in  and  by  which  this  can 

importance  of  a  knowledge  of  the  contents  of  the  Code  to  a  satisfactory 
'1  considered  vote  for  its  adoption  by  each  member  of  the  Legislature,  has, 


piie:face. 

- — ■ — -       "  •„  4.VfA  tsprvice  of  the  Gonf^ 

the  end  of  the  Index,  and  to  which  *«    Pec>a  ^^^.^^  ^^^^  ^^p,,, 

M^ny  of  the  rules  of  the  f  P-'"f  ^stns  of  the  Courts,  and  others  being  e, 

aed -by  Legislative  enactments  and  de—  ^^.^^^^  ^^^^^  ^,^  ,„1,3    f  be 

hodii  in  this  Code  under  W™  ^ft;,,  ,„thoritles,  and  therefore  they  . 
Courts  should  undergo  a  revision  by  the  p    P  ^ 

omitted  in  this  book.  ^^^    „ot  only  by  the  Bench  and 

As  constant  reference  will  be  made  to^he  ^   ,     ^^^  ^.^.^^^^  ^^^^  ^  1 

KEPOKT   ofj;he_committee. 

.       To  tUe  General  Asser^U,  of  '''-^'^f Jj^  of  the  last  sessionof  thi, 
The  Committee  appointed  ^^^^ ^^''^,, ^^  ,,  „.eet  the  Commission, 
eral  Assembly  (assented  to  1«*/;^;-       codification  of  the  Laws  of  <} 
pointed  under  an  Act  \°  ^^     .f ^  ^^^^^ 

(approved  19th  of  »«;-'f  ^^'i'^tession  of  the  General  Assembly,  for  t 
lefore  the  meeting  of  this  present  ^«^^.^°"  respectfully  report : 

;t  of  revising  and  fully  ^^J^tvo^  u  oLhem  by  saidresolu. 

Th^t  thev  have  discharged  the  duty  ul  r 

JJ1%  is  the  result  of  their  inv-^~  ^  ^..^  Committee  find 
Referring  to  said  Act  of  9lh  of  "'"'^J''.     appointed,  to  prepare 
.a!tade  L  duty  of  the  ^l^^^^^^^ZTZo^le,  embrace  in  a  cc 
people  of  Georgia  a  Code  -h>ch  shall  as  nea        P  ^^^  ^^^^^^  ,, 

LLhe  Laws  of  Georgia  whhe^^^^^^^^  ^^^^^  ^,^  O,,,,io„.  of  the 
tution  of  the  State,  the  Statutes  o  ^^^^^^ 

Court  or  the  Statutes  of  England,  of/>'^<'^/  ^s  and  duties  of  ^ 

Xll  this  enlarged  and  extensive  chart  of  the  P  ^^  ^^^^  ^^  ^^^ 

.         ^-.sioners  before  your  Corn-f- ^^Code,  they  caused  each  and  ev. 
"in  the  revision  and  examination  of  said  ^ 


PREFACE.  vii 


on  the  one  hand,  pressed  strongly  upon  us,  while  on  the  other,  the  utter  impossi- 
bility of  canvassing  and  considering,  within  any  reasonable  period  of  time,  the 
four  thousand  paragraphs  embraced  therein,  has  presented  an  obstacle  almost,  if 
not  absolutely  insurmountable. 

The  mere  reading  of  the  manuscript,  to  inform  and  enlighten  the  Legislative 
mind  as  to  its  provisions,  would  occupy  more  than  half  the  time  limited  by  the 
Constitution  to  a  Legislative  session.  Such  reading,  accompanied  by  the  un- 
questioned power  to  amend  and  discuss  according  to  the  varied  opinions  and 
policy  of  our  three  hundred  members,  it  need  hardly  be  said,  would  occupy,  to 
say  the  very  least,  more  than  all  the  time  thus  limited. 

In  the  opinion,  then,  of  your  Committee,  to  read  without  amendment  and  dis- 
cussion, would  be  idle  and  useless  waste  of  time  and  money ;  and  to  read, 
amend,  and  discuss,  impracticable. 

Entertaining  these  opinions,  and  seeking  the  best  solution  of  the  difficulties, 
your  Committee  were  naturally  led  to  refer  to  the  precedents  set  and  acted  upon 
by  your  sister  States  under  similar  circumstances.  So  far  as  such  precedents 
will  sanction  and  justify  the  recommendation  to  which  they  are  led,  they  have 
been  pleased  to  find  that,  in  almost  every  State,  Revised  Codes  have  been  adopted 
by  a  simple  Legislative  act,  such  as  your  Committee  offer  with  this  report,  and 
upon  the  action  and  report  of  a  committee,  leaving  other  considerations,  amend- 
ments, and  discussions,  of  course,  to  the  power  and  wisdom  of  the  Legislature 
after  publication. 

With  the  exception  of  Virginid,  your  Committee  believe  that  the  action  of  the 
States  has  been  uniformly  such  as  they  now  recommend.  In  that  State  the  other 
policy  was  pursued.  Each  section  of  its  Code  was  subjected  to  a  thorough  revi- 
sion, and  separate  adoption  by  its  whole  Legislative  Department.  The  result 
was  that  its  session  was  extended  to  a  period  over  six  months,  and,  of  course,  at 
a  very  great  cost  to  the  State.  Your  Committee,  from  a  partial  and  cursory 
examination  of  the  Code  of  that  State,  will  be  permitted  to  add,  in  no  censorious 
spirit,  that  the  benefit  of  this  course  is  not  manifest  in  the  results.  Other  Codes 
adopted  upon  the  plan  which  your  Committee  feel  constrained  to  suggest,  com- 
pare most  favorably  with  this  Code  of  Virginia. 

Your  Committee  believe  thai^they  could  give  satisfactory  reasons  for  the  opin- 
ion entertained,  that  the  labor,  time,  and  money  which  might  be  expended  in  a 
Legislative  reading,  revision,  and  examination  of  the  Code,  might  be  really  detri- 
mental, rather  than  beneficial,  to  its  efficiency,  harmony,  and  entire  plan  and  struc- 
ture ;  but  the  limits  of  a  report  forbid  all  such  attempts. 

If  the  Code  now  presented  were  a  new  system  of  jurisprudence,  or  had  the 
Comftiissioners  attempted  to  graft  upon  our  system  any  new  features  extracted 
frotn  others  and  unharmonious  with  our  own,  or  even  if  alterations  in  a  well  de- 
lilted  public  policy  had  been  attempted,  your  Committee  would  have  paused, 
hesitated  to  recommend  the  mode  of  adoption  suggested,  without  at  least  calling 
the  special  attention  of  the  Legislature  to  such  new  and  essential  changes. 


Yiii  PREFACE. 


But  at  an  early  stage  of  our  revision  and  examination,  the  codifiers  announced 
the  leading  principle  by  which  they  had  attempted  to  guide  their  labors,  and  your 
Committee  report  the  same  prominent  in  all  the  amendments  and  changes  made 
at  their  suggestion.  This  principle  was,  to  attempt  no  change  or  alteration  in  any- 
well  defined  rule  of  law  which  had  received  Legislative  sanction  or  judicial  expo- 
sition, and  to  add  no  principle  or  policy  which  had  received  the  condemnation  of 
the  former,  or  was  antagonistic  to  the  settled  decisions  of  the  latter. 

The  prominent  and  leading  power  of  change  exercised  in  construction  and  re- 
vision has  been  to  cut  and  unravel  Gordian  knots,  resulting  from  conflicting  deci- 
sions of  the  Courts ;  to  reconcile  actual  ^nd  apparently  discordant  legislation,  har- 
monij^ing  all  conflicts  to  what  seemed  to  be  settled  and  favored  public  policy  ;  to 
remedy  existing  defects  by  wise  and  harmonious  provisions;  and  to  supply  omis- 
sions which  the  practice  and  experience  of  the  Courts  had  discovered  and  made 
manifest  in  existing  legislation.  In  short,  the  great  end  and  aim  has  been  to  re- 
concile, harmonize,  render  consistent,  the  body  of  the  law,  so  as  to  give  shape 
and  order,  system  and  efficiency,  to  the  sometimes  crude,  and  often  ill  expressed, 
sovereign  will  of  the  State. 

A  settled  conviction  on  the  mind  of  your  Committee  that  the  codifiers  have,  to 
a  degree  as  complete  and  perfect  as  might  reasonably  be  expected,  accomplished 
these  and  like  ends,  has  won  for  the  Code,  as  an  entirety,  their  cordial  and  unani- 
mous approval.  Your  Committee  will  not  conceal  that  some  particular  sections 
and  provisions  have  not  met  this  unanimous  concurrence.  When  differences 
arose,  careful  and  anxious  consideration  and  discussion  followed,  and  minorities 
did  not  hesitate  to  yield — all  being  satisfied  that,  as  a  whole,  the  Code  was  enti- 
tled to  and  should  receive,  as  it  does  receive,  their  unanimous  and  unquali^ed 
approbation  and  recommendation. 

Your  Committee  fully  believe  that  such  would  be  the  result  of  any  examina- 
tion and  revision  by  the  Legislative  Department. 

Your  Committee  do  not  deem  it  inappropriate  to  their  duties  to  add,  that  the 
proper  printing  and  publication  of  the  Code,  if  adopted,  becomes  a  subject  of 
much  interest  and  importance.  Its  plan  and  structure  accompanies  this  report. 
A  reference  thereto  will  render  most  manifest  the  necessity,  in  tliqi^publiGatiou,  of 
rigidly  adhering  to  the  plan.  The  numerical  order  of  its  paragrapRs,  and.its  re- 
ferences in  one  title,  section,  or  paragraph,  to  another,  must  be  preserved.  In- 
the  use  and  value  of  the  Code,  its  Index  becomes  of  the  highest  importance. 

These,  and  like  considerations  and  reflections,  lead  your  Committ^^to  suggest 
that  none  other  than  those  who  constructed  the  Code,  who  devised  Tts^  plan,  and 
are  familiar  with  its  details  and  manuscript,  can  so  well  superintend  "its  publica- 
tion and  prepare  its  Index.  Your  Committee  have  further  to  add,  that^it  is-  .pro- 
vided in  the  Code  itself  that  it  shall  not  take  effect  until  the  1st  of  October,  Iji^l, 

I. 
thus  giving  time  for  its  publication.  -r^     t**!^ 

It  is  further  provided,  and  your  Committee  think  wisely,  to  meet  anjy  insu^ 
flciency  of  the  Code,  that  all  questions  not  embraced  or  provided  for  therein,. sJaall  h€^ 


PREFACE.  ix 


decided  and  settled  by  existing  laws,  and  that  the  Code  does  not  interfere  with, 
or  in  any  manner  abrogate  or  repeal,  local  legislation. 

If  in  the  views  thus  presented  by  your  Committee,  they  shall  have  the  concur- 
rence  of  the  Legislature,  they  present  as  part  of  this  report,  a  bill  to  adopt 
the  Code,  and  a  bill  to  provide  for  its  publication. 
All  of  which  is  respectfully  submitted. 

HINES  HOLT, 
DANL.  S.  PRINTQP, 
W.  W.  PAJNE, 

Committee  on  part  of  Senate. 
GEO.  N.  LESTER, 
ISHAM   S.  FANNIN, 
W.  G.  DELONY, 
M.  W.  LEWIS, 
%  N.  BROYLES, 
C.  J.  WILLIAMS, 

Committee  on  part  of  House. 


THE   ACT   ADOPTING   THE   CODE. 


An  Act  to  approve,  adopt  and  make  of  force,  in  the  State  of  Georgia,  a  Revised  Code  of 
Laws,  prepared  under  the  direction  and  by  authority  of  the  General  Assembly  thereof ; 
and  for  other  purposes  therewith  connected. 

Section  1.  The  General  Assembly  of  the  State  of  Georgia  do  enact,  That  the 
Revised  Code  of  Laws  prepared  under  its  authority,  by  Richard  H.  Clark,  Thos. 
R.  R.  Cobb,  and  David  Irwin,  Esqs.,  and  revised  and  fully  examined  by  its 
committee,  and  recommended  and  reported  for  adoption  (the  manuscript  whereof 
now  being  on  file  in  the  Executive  Department),  be,  and  the  same  is  hereby, 
adopted  as  the  Code  of  Georgia ;  to  be  of  force  and  take  effect  on  the  first  of 
January,  1862. 

Provided,  That  the  adoption  of  the  Code  shall  not  operate  so  as  to  repeal  an 
Act  entitled  "An  Act  to  define  the  liability  of  the  husband  for  the  debts  of  the  wife, 
and  to  define  the  liability  of  the  property  received  through  the  wife  for  the  debts 
of  the  husband  existing  at  the  time  of  the  marriage,"  approved  28th  February, 
1856  ;  or  to  punish  any  Judge,  Justice,  or  Minister,  for  joining  in  marriage  any 
female  under  the  age  of  twenty-one  without  the  consent  of  her  father  or  guardian. 

Section  2.  And  be  it  further  enacted,  That  all  laws  and  resolutions  of  a  pub- 
lic and  general  character  passed  at  this  present  session  of  the  General  Assembly, 


PREFACE. 


"be  incorporated  in  and  made  part  of  said  Code ;  and  that  the  duties  and  powers 
of  the  codifiers  be  continued  to  that  end,  with  authority  to  place  the  same  in 
proper  and  appropriate  form  and  connection,  and  to  correct  any  conflicts  which 
may  be  created  thereby  with  its  existing  provisions.  And  that  the  performance 
of  the  further  duties  by  said  codifiers,  as  required  in  this  section,  be  submitted  to 
the  revisal,  examination  and  approval  of  His  Excellency  the  Governor,  before 
the  publication  of  said  Code. 

Section  3.  Be  it  further  enacted^  That  the  laws  of  the  State  of  Georgia, 
having  reference  to  the  city  of  Savannah,  etc.,  as  codified  by  order  of  the  City 
Council  of  Savannah,  by  the  City  Attorney  of  Savannah,  be  and  the  same  is 
hereby,  declared  and  made  a  part  of  the  Code  of  Georgia  and  the  laws  thereof — the 
manuscript  copy  whereof  is  now  on  file  in  the  Executive  Office. 

Assented  to  Dec.  19th,  1860. 


"*^. 


/ 


ty' 


PREFACE  TO  THE  REVISED  EDITION. 

; ^^^  / 

The  late  war  and  its  results,  having  produced  so  many  radical  changes  in  the 
Constitution  and  Laws  of  Georgia,  a  revision  of  the  Code  of  the  State  becanae  a 
matter  of  necessity.  Prompted  by  an  appreciation  of  that  necessity,  as  well  as 
the  suggestions  of  his  friends,  the  undersigned  entered  upon  the  work  Of  carefully 
revising  said  Code,  so  as  to  exclude  therefrom  all  such  parts  as  had  been  repealed 
or  superseded,  and  to  include  all  laws  passed  since  the  adoption  of  said  Code 
which  were  of  force  at  the  adjournment  of  the  General  Assembly  of  1866,  thus 
making  the  Code  conform  to  the  5th  Clause  of  the  1st  Section  of  the  5th  Article 
of  the  Constitution  of  Georgia,  adopted  by  the  Convention  of  1865.  All  parts 
of  the  Code  that  have  been  repealed  or  superseded  have  been  left  out,  and  all  laws 
still  of  force,  that  were  never  embodied  in  the  Code,  have  been  arranged  under 
appropriate  heads.  The  head-notes  and  sections  have  been  rearranged  and  re- 
numbered, and  the  new  laws  are  included  in  brackets,  with  references  to  the  au- 
thorities in  which  they  may  be  found.  A  new  and  enlarged  Index  has  been  made, 
which,  it  is  hoped,  will  enable  any  lawyer  or  citizen  readily  to  find  the  law  on  any 
given  subject.  By  resolution  of  the  General  Assembly,  His  Excellency  Governor 
Jenkins  appointed  a  committee,  composed  of  Gen.  Andrew  J.  Ilansell,  Col.  Logan 
E.  Bleckley,  and  Col.  Nathaniel  J.  Hammond,  to  examine  the  work ;  and  after  a 
careful  and  elaborate  examination,  this  committee  of  distinguished  lawyers  re- 
ported to  His  Excellency  that  the  revision  of  the  Code  was  thorough  and  accurate. 
The  undersigned  did  not  feel  at  liberty  to  change  even  the  wording  of  the  laws 
passed  since  the  adoption  of  the  Code,  but  embodied  them  just  as  they  were  en- 
acted by  the  Legislature.  The  work  has  been  tedious  and  difficult,  and  the 
undersigned  does  not  claim  that  it  is  perfect ;  but,  having  done  the  very  best  that 
time,  circumstances,  and  his  official  duties  would  allow,  he  places  it  before  a  gen- 
erous profession  and  an  indulgent  people, 

DAVID  IRWIN. 


>  i  tJt  te'4i^'i  k  "^  I  )^d 


.„.^'.^' 


TABLE    OF    CONTENTS. 


GENERAL  PRELIMINARY  PROVISIONS. 

PART  FIRST. — The  Political  and  Public  Organization  of  the  State. 

PART  SECOND.— The  Civil  Code. 

PART  THIRD.— The  Code  of  Practice. 

PART  FOURTH.— The  Penal  Laws. 


PART    FIRST. 

THE  POLITICAL  AND^TTgLIC  ORGANIZATION  OF  THE  STATE. 


TITLE  I. — Divisions  and  Jurisdictions, 


Chapter  1. — Of  the  Boundary,   Sover- 
eignty and  Jurisdiction 5 

Article  1.  The  boundary  of  the  State.  5 
Article  2.  The  sovereignty  and  juris- 
diction of  the  State' 7 

Article  3.  Coast  Survey 7 


Chapter  2.— The  Political  [and  Judicial 

Divisions  of  the  State 8 

Article  1.  Counties 9 

Article  2.  Congressional  Districts. ...  12 
Article  3.  Judicial  Districts  and  Cir- 
cuits   14 


TITLE   II.— Citizenship, 
Chapter  1. — Who  are  Citizens 14  [  Chapter  2. — Expatriation. 

TITLE  111,— The  Executive  Department, 


15 


Chapter  1. — The  Governor,  his  Powers 

and  Duties 16 

Chapter  2. — The  Executive  Office,  and 

residence  of  Governor 20 

Chapter  3. — State  House  Officers. .  ,. . .  21 

Article  1.  Secretary  of  State. . .  /.  .^. .  21 


Article  2.  Treasurer ». .! 


23 


Article  3.  Comptroller  General 27 

Chapter  4. — Of  other  officers  ^f^he  Ex-^ 

ecutive  Department. . .  j 4(f  31 

Article  1.  State  Librarian 81 


Article  2.  G^overnor's  Messenger  ^nd 

State  HPhse  Guard « 32 

Chapter  5. — General  Regulations  as  to 

Offices  and  Officers 33 

Article  1.  Of  Eligibility,  Qualification, 

•. ,  Ck)raraissjops,,etc .*.......     33 

Article  2.  Official  Oaths 36 

Article  3.  Official    Bonds,    and    Dis- 
charge of  Sureties 38 

Article  4.  Delivery  of  books  to  succes- 
sors       4^ 


TITLE  IV. — Legislative  Department. 


Chapter  1. — Of  the  General  Assembly..     43 


Chapter  2. — Subordinate  Officers  of  the 
General  Assembly 4S 


xir 


CONTENTS. 


TITLE  V. — Judicial  Department, 


Chapter  1. — General  Provisions  as  lo 

the  Judicial  Power 

Chapter  2. — The  Supreme  Court  and  its 

OflScers 

Article  1.  The  Supreme  Court  and  its 

Judges 

Article  2.  The  Clerk 

Article  3.  The  Reporter 

Article  4.  The  Sheriff. 

Chapter  3. — The  Superior  Courts  and 

Officers 

Article  1.  The  Judges 

Article  2.  The  Clerks 

Article  3.  The  Receiver 

Chapter  4. — The  County  Court  and  its 

OflScers 

Article  1.  The  County  Court 

Article  2.  The  County  Judge 

.  Article  3.  The  County  Solicitor 

Article  4.  Clerk  of  the  CounUy  Court. 
Article  5.  The  Sheriff  and  Bailiffs  of 
County  Court V 


48 
49 

50 

52 
53 
54 

55 
55 
59 
64 

65 
65 
70 
73 
73 

74 


Chapter  5. — The  Inferior  Court  and  its 

Officers 76 

Article  1.  The  Court  and  its  Justices.  76 

Article  2,  The  Clerk 78 

Chapter  6.— The  Ordinary 8D 

Article  1.  The  Ordinary  and  his  Court  SO- 

Article2.  As  Clerk 83 

Article  3.  As  School  Commissioner.. .  85' 

Chapter  7. — Sheriffs  and  their  Deputies  86 

Chapter  8. — State's  Attorney  and  Attor- 
neys at  Law 90 

Article  1.  Attorney  General.. , 91 

Article  2.  Solicitor  General 92^ 

Article  3.  Attorneys  at  Law 95 

Chapter  9. — Justices  of  the  Peace  and 

Constables 103 

Article  1.  Justices  of  the  Peace  and 

their  Courts 103 

Article  2.  Constables 108 

Chapter  10. — Corporate  Courts Ill 


TITLE  YL— 

Chapter  1. — Militia  Districts 

Chapter  2.— Ipcorporation  of  Counties, 

Contracts,  and  Property, 

Chapter  3. — County  Revenue 

Article  1.  From  Taxation 

Article  2.  From  other  sources 

Chapter  4. — Certain  County  Officers. . . 

Article  1.  Treasurer 

Article  2.  Surveyor 

Article  3.  Coroner 


County  Organization, 

112  Chapte^^^Rblic  Roads,  Bridges,  and 

Ferries 133 

113  Article  1.  Public  Roads 133 

116       Article  2,  Road  Commissioners  and 

116  their  duties 141 

119       Article  3.  Bridges  and  Ferries 144 

122  Article  4.  Railroad  Crossings. 149 

123  Article  5.  Private  Ways 151 

128        Article  6.  Mining 154 

130    Chapter  6.— The  County  Poor 155 


TITLE  YU.—Fuhlic  Revenue, 


Chapter  1. — Taxation  by  the  State 159 

Article  1.  Persons  and  Property  Ex- 
empt  159 

Article  2.  Persons  and  Property  taxed  160 
Article  3.  tILxcs  on  Banks,  Railroads, 

etc 162 

Article  4.  Taxes,  how  returned  an.d 

3    collVted  . y  \  .  A-  •  >  ^..V-^:-^^ \  164 

Articles.  Delinquei*tTax-^aj^rs,ahn^      - 

Proceedings  against  them 172 


Article  6.  Delinquent  Collectors  and 

Receivers 175 

Article  7.  Tax  Receivers 177 

Article  8.  Tax  Collectors 180 

Artid£j9.  Compensation  of  Collectors 

andlleceivers 182 

Article  10.  Miscellaneous  Provisions  182 
Ch^ter  2.A-Revenue  from  other  sources  183 


Kf  ^  Y-JtF.^Ae^  P%8l^c:Jb%ht, 


Chapter  1.— The  Public  Debt 


r:  '•' 


^'■'>',  V . 

TITLE  IX..— Public  Property, 


Chapter  1. — Public  buildings 188 

Chapter  2.— The  lands  of  the  State 188 

Chapters. — The  Western  and  Atlantic 
Railroad,  and  its  government. 189 


Chapter  4. — Stocks  and  other  funds. 
Chapter  5.— Other  public  property. . 


185 


198 
199> 


CONTENTS. 


XV 


TITLE  X,-^FuhUc  Printing. 


Chapter    1. — The   Public   Printer — his 

duty  and  compensation 199 

Chapter  2.— Other  printing 202 


203 


Chapter  3. — The  Compiler 

Chapter  4. — Distribution  of  Laws  and 
other  documents 203 


TITLE  XL— Public  Defense. 


Chapter  1. — Persons  subject  to  military 

duty,  exemptions,  etc 205 

Chapter  2. — Military  organization 209 

Article  1.  Military  force,  and  how  com- 
posed   209 

Article  2.  The  Volunteers 210 

Article  3.  Cavalry  Corps 214 

Article  4.  The  Militia 215 

Article  5.  Elections 217 


Chapter  3. — Organization  of  the  Staff  of 

the  Militia 218 

Chapter  4. — Courts  Martial 221 

Chapter  5 — Preservation  of  order  at  pa- 
rade  223 

Chapter  6. — Provisions  of  local  applica- 
tion   224 

Chapter  7. — Miscellaneous  Provisions..  227 
Chapter  8. — Public  arms  and  arsenals . .  230 


TITLE  XIL— Education. 


Chapter  1. — University  of  Georgia 232 

Chapter  2 — Georgia  Military  Institute. .  236 

Chapter  3. — Academy  for  the  Blind 239 

Chapter  4. — Academy    for    Deaf    and 

Dumb 241 

Chapter  5. — County  Academies. .' . .....  242 

Chapter  6.-Common  Schools  and  educa- 
tion of  the  poor 243 


Chapter  6. — 

Article  1.  Educational  Fund 243 

Article  2.  How  paid  out 245 

Article  3.  Educational  Fund   of  the 

Counties 246 

Article  4.  How  managed 247 

Article  5.  Beneficiaries  of  the  Fund. .  250 


TITLE  XllL—Mections  hy  the  People. 


Chapter  1. — Qualification  of  voters 251 

Chapter  2. — Elections  of  Members  of  the 

General  Assembly 253 

Chapter  3. — Elections  for  Governor, 
Members  of  Congress,  Electors  of 
President,  Vice-President,  Judges, 

and  Solicitors 256 

Article  1.  Provisions  applicable  to  all  257 

Article  2.  For  Governor 257 

Article  3.  For  Members  of  Congress. .  258 


Article  4.  Electors  for  President  and 

Vice-President 259 

Article  5.   Judges  of  Superior  Court 
and  Solicitors  General 260 

Chapter  4. — For  Justices  of  the  Inferior 
Court,  Ordinal y,  and  County  Offi- 
cers   261 

Chapter  5. — Justices  of  the  Peace  and 
Constables 263 

Chapter  6. — Contested  Elections 263 


TITLE  XIY .—Elections  hy  the  Qeneral  Assembly. 
Chapter  1.— For  United  States  Senators  265  |  Chapter  2.— Other  Officers 


265 


TITLE  XV. — Police  and  Sanitary  Regulations. 


Chapter  1. — Lunatic  Asylum 266 

Article  1.  The  Trustees 266 

Article  2.  Superintendent 267 

Article  3.  Admission  and  disposition 

of  patients 268 

Chapter  2. — Health,  Hospitals,  Infection 

and  Quarantine 272 

Chapter  3. — Physicians  and  Druggists. .  276 
Chapter  4. — Tavern  and  Retail  License.  279 


Chapter  5. — Vendue  Masters  and  Auc- 

tioneeers 280 

Chapter  6.— Estrays 281 

Chapter  7. — Marks  and  brands 283 

Chapter  8. — Enclosures  and  fences 283 

Chapter  9. — Firing  the  woods 284 

Chapter  10.— Mills  and  Millers 285 

Chapter  11. — Gunpowder 286 


CONTENTS. 


TITLE  XVI. — Regulations  of  Agriculture,  Trade,  and  Commerce, 


Chapter  1. — Banks  and  Banking 286 

Article  1 .  Bank  returns 287 

Article  2.   Obligations  and  Penalties.  288 
Articles.  Forfeiture  of  Charters  and 

liability  of  Stockholders 291 

Chapter  2 .— N'otaries  Public 293 

Chapter  3. — Ships  and  Seamen 294 

Article  1 .   Pilotage 295 

Article  2 .    Seamen 304 

Chapter  4. — Inspection 807 

Article  1 .  Flour  and  grain 307 


Article  2.   Wood,  Tobacco,  etc 310 

Article  3.   Liquors 313 

Chapter  5.— Weights  and  Measures 315 

Chapter  6. — Regulations  for  particular 

branches  of  Trade  and  Agriculture.  310 

Article  1 .    Cotton,  Kice,  etc 316 

Article  2.  Cultivation  of  Rice 319 

Article  3 .   Oysters  and  Turtles 321 

Article  4.  Fishing 322 

Article  5.  Boats  and  Crews 323 

Article  6 .  Peddlers 324 


TITLE  XNll.— Salaries  and  Fees  of  Officers. 


Chapter  1. — Executive  Department  and 

Officers  thereof.  :    :   326 

Chapter  2. — Other  Officers  appointed 
by  the  Governor 327 


Chapter  3. — Officers  not  appointed  by 

the  G-overnor,  but  paid  by  the  State  327 
Chapter  4. — The  Legislative  Department  328 
Chapters. — The  Judicial  Department.  328 


PART    SECOND. 

CIVIL    CODE. 


TITLE  L- 

Chapter  1 .  — Of  the  different  kinds   of 
Persons — their  Status  and  Riglits . .  331 

Article  1.   Of  Citizens 331 

Article  2.  Of  Aliens  and  Residents. .  333 


Of  Persons, 

Article  3.  Of  Persons.of  Color 334 

Article  4.   Of  Corporations 335 

Chapter  2. — Of  Domicil,  and  the  man- 
ner of  changing  the  same 340 


TITLE  IL— 0/  the  Domestic  Relations. 


Chapter  1.— Of  Husband  and  Wife 341 

Article  1.  Of  Marriage  and  Divorce. .  342 
Sec.  1.  Marriages — how    and     by 

whom  contracted 342 

Sec.  2.  Divorces,  and  how  obtained  345 
Sec.  3.  Of  Alimony 348 

Article  2.  Of  the  Rights  and  Liabili- 
ties of  Husband  and  Wife,  and 
herein  of  Dower 350 

Article  3.  Of  Marriage  Contracts  and 

Settlements 354 

Chapter  2.— Of  Parent  and  Child 356 

Article  1.  Legitimate  Children,  and 
herein  of  Adoption 356 

Article  2.  Illegitimate  Children,  or 
Bastards 358 


Chapter  3.— Of  Guardian  and  Ward. . .  359 

Article  1.  Guardians  and  Minors 359 

Sec.  1.  How  and  by  whom  appoint- 
ed   360 

Sec.  2.  Their  Powers,  Duties,  and 

Liabilities 364 

Sec.  3.  Settlements,     Resignations, 

and  Letters  of  Dismission 367 

Article  2.  Guardians  of  Lunatics  and 

Idiots 370 

Article  3.  Foreign  Guardians 373 

Chapter  4.— Of  Master  and  Servant 374 

Article  1.  Indented  Servants  and  Ap- 
prentices    374 

Article  2.  Laborers  in  Factories 377 


TITLE  III. — Of  Relations  Arising  from  Other  Contracts. 


Chapter  1.— Of  Partnership 378 

Article  1.  General  Principles 378 

Article  2.  Rights    and    Liabilities  of 
Partners  among  themselves 380 


Article  3.  Rights  and  Liabilities  as  to 

Third  Persons 381 

Articled  Limited  Partnerships.; 382 

Chapter  2.— Of  Debtor  and  Creditor. . .  387 


CONTENTS. 


xvii 


Article  1.  General  Principles 

Article  2.  Acts  void  against  Creditors  389 
Article  3.  Mortgages  and  other  Liens  390 

Sec.  1.  Mortgages 390 

Sec.  2.  Other  Liens 392 

Article  4.  Insolvent  Debtors 397 

Sec.  1.  How  Discharged 397 

Sec.  2.  Prison  Bounds 401 

Sec.  3.  Property  Exempt  from  Sale  401 

Article  5.  Interest  and  Usury 404 

Chapter  3. — Of  Bailments 405 

Article  1.  General  Principles 405 

Article  2.  Of  Carriers,  and  herein  of 
Railroad  and  Steamboat  Companies  400 

Article  3.  Of  Hiring 409 

Article  4.  Of  Deposits. 412 

Article  5.  Of  Loans «, 414 

Article  6.  Of  Mandates,  Pledges,  or 
Pawns 415 


Chapter  4. — Of  Principal  and  Surety. .  417 

Article  1.  Of  the  Contract 417 

Article  2.  Relative  Rights  of  Creditor 

and  Surety 418 

Article  3.  Rights   of    Surety  against 

Principal 419 

Article  4.  Rights  of  Sureties  among 

themselves 422 

Article  5.  Rights  of    Sureties    as  to 

Third  Persons 422 

Chapter  5.  Of  Principal  and  Agent. . . .  423 
-    Article  1.  Relation  of  Principal  and 

Agent  among  themselves 423 

Article  2.  Rights    and    Liabilities   of 

Principal  as  to  Third  Persons 425 

Article  3.  Rights   and    Liabilities    of 

Agent  to  Third  Persons 426 

Article  4.  Of  Overseers 428 


TITLE  TV. — Of  Property,  and  the  Tenure  hy  ivJiicJi  it  is  Held. 
Chapter  1.— Of  Realty 429  |  Chapter  2.— Of  Personalty 432 


TITLE  y. — Of  Estates,  and  the  Rights  attached  thereto. 


Chapter  1. — Of  Absolute  Estates,  or  in 

Fee  Simple 433 

Chapter  2.— Of  Estates  for  Life 435 

Chapter  3. — Of  Estates  in   Remainder 

and  Reversion 436 

Chapter  4.— Of  Estates  for  Years 438 

Chapter  5. — Of  Landlord  and  Tenant. .  439 


Chapter  6. — Of  Estates  upon  Condition  441 
Chapter  7. — Of  Tenancy  in  Common. .  442 

Chapter  8.— Of  Trust  Estates 443 

Article  1.  Of  their  Creation  and  Na- 
ture.   443 

Article  2.  Of   Trustees,  Appointments, 
Powers,  etc 445 


TITLE  yi.— 0/  Title,  and  the  Mode  of  Conveyance, 


Chapter  1.- 
Article  1. 
Article  2. 
Article  3. 
Article  4. 


-Of  Grants 449 

Grants  Generally 449 

Of  Head  Rights 451 

Of  Land  Lotteries 454 

Of  Processioning 454 

Chapter  2.— Of  Title  by  Will 456 

Article  1.  Of  the  Nature  of  Wills— by 

whom  and  how  executed 457 

Article  2.  Of  Probate  and  its  Effects  460 

Article  3.  Of  the  Executor 463 

Article  4.  Of  Devises  and  Legacies. .  466 

Article  5.  Of  Revocation 469 

Article  6.  Of  Nuncupative  Wills 470 

Chapter  3. — Of  Title  by  Descent  and 

Administration 471 

Article  1.  Of    Inheritable    Property, 
and  the  Relative  Rights  of  Heir 

and  Administrator 471 

Article  2.  Of  Administration 473 

Sec.  1.  Different  kinds  of  Adminis- 
trators, and  Rules  of  Granting 

Letters 473 

Sec.  2.  Of  their  Appointment,  Bonds, 

and  Removal 476 

Sec.  3.  Inventories,  Appraisements, 
and  Returns 479 


B 


489 


Section  4.  Of  Managing  the  Estate, 

and  Paying  Debts 481 

Sec.  5.  Of  Receiving  and  Making 

Titles  on  Bonds  for  Titles 485 

Sec.  6.  Of  Administrator's  Sales. .  486 
Sec.  7.  Of  Distribution,  Advance- 
ments, and  Provision  for  Family 
Sec.  8.  Of  Commissions  and  Extra 

Compensation 493 

Sec.  9.  Of  Final  Settlements  and 

Receipts,  and  herein  of  Interest. .  495 
Sec.  10.  Of  Letters  of  Dismission 

and  Resignation 497 

Sec.  11.  Of  Removing  Proceedings 

to  Another  County 499 

Sec.  12.   Of  Foreign  Adm'rs 500 

Chapter  4.— Of  Title  by  Judicial  Sale. .  500 

Chapter  5.— Of  Title  by  Contract 502 

Article  1 .  Of  Private  Sales 502 

Article  2.  Of  Gifts 500 

Chapter  6.— Of  Title  by  Escheat  and 

Forfeiture 508 

Chapter  7.— Of  Title  by  Prescription. .  509 
Chapter  8.— Of  Conveyance  of  Title. .  511 

Article  1 .   Generally 511 

Article  2 .  Of  Covenants  and  War'nty  513 
Article  3.  Of  Registration 513 


XVlll 


CONTENTS. 


TITLE   VII.—  O/  Contracts. 


Chapter  1. — General  Principles 516 

Chapter  2.— Of  the  Parties 518 

Chapter  3. — Of  the  Consideration 519 

Chapter  4. — Of  Illegal  and  Void  Con- 
tracts   520 

Chapter  5. — Of  Construction  of   Con- 
tracts  521 

Chfipter  6. — Court  Contracts 523 

Chapter  7. — Of  Negotiable  Contracts. .  525 
Article  1 .   Of  Negotiable  Paper,  and 

How   Transferred 525 

Article  2.   Of  Indorser's  Notice  and 

Protest 526 

Article  3.   Of  the  Rights  of  Holders.  527 

Article  4.  Of  Damages 528 

Chapter  8 .  — Of  Contracts  of  Insurance .   529 

Article  1 .  Fire  Insurance 529 

Article  2.  Life  Insurance 532 

Article  3.  Marine  Insurance 532 

Article  4.  Mutual  Insurance 534 


535 
535 


536 


Chapter  9.— Of  Defenses  to  Contracts, 

Article  1.  Denial  of  the  Contract. . , 

Article  2.  Denial  of   its   Obligation, 

and  herein  of    Acts   of    Opposite 

Party 

Articles.  Payments,  and   herein   of 

Appropriation  of  Payments 537 

Article  4 .  Performance,  and  herein  of 

Tender 538' 

Articles.  Accord  and  Satisfaction..  539 
Article  6.  Arbitrament  and  Av>'ard. .   540 
Article  7.  Pendency  of  Another  Ac- 
tion, and  Former  Recovery 541 

Article  8.   Set-off  and  Recoupment. . . .  542 

Article  9.  Limitation  of  Actions. .. .  543 

Sec.  1.  Periods  of  Limitation....  543 

Sec .  2 .  Exceptions  and  Disabilities  545 

Sec .  3 .  New  Promise 546 

Chapter  10.   Of  Breach  of  Contract,  and 
Damages , 547 


TITLE  VIII.- — Of  Torts  or  Injuries  to  Person  or  Property, 


Chapter  1. — General  Principles 549 

Chapter  2. — Of  Injuries  to  the  Person..  551 

Article  1.  Physical  Injuries 552 

Article  2.  To'  Reputation 553 

Sec.  1.  Libel  and  Slander 553 

Sec.  2.  Malicious  Prosecution 554 

Article  3.  Other  injuries  to  the  Person  555 

Sec.  1.  False  Imprisonment 555 

Sec.  2.  Malicious  Arrest 556 

Sec.  3.  Nuisances  and  other  injuries 

to  Health 556 

Sec.  4.  Indirect  injuries  to  Person. .  558 


Chapter  3.— 

Article  1, 

Article  2. 

Article  3. 
Chapter  4.— 

Article  1. 

Article  2. 
tender. 

Article  3. 

Article  4. 
Chapter  5.— 


Of  injuries  to  Property. . . .  559 

To  real  estate 559 

To  personalty  generally. . .  560 

By  railroad  companies 561 

Of  Defenses 566 

Justification 566 

Satisfaction,  and  herein  of 

, 567 

Limitation  of  Actions 568 

Other  Defenses 568 

..^ 569 


•Of  Damages 


TITLE  IX.— 0/  JSquity. 


Chapter  1.- 
Chapter  2.- 
Chapter  3- 
ny  . . . . 
Chapter  4.- 
Chapter  5.- 
Chapter  6.- 
Chapter  7.- 
Chapter  8.- 
Chapter  9.- 
Chapter  10. 


-General  Principles 571 

-Of  Discovery 573 

-Of  perpetuation  of  Testimo- 
575 

575 
577 
579 


-Of  Accident  and  Mistake.. 
-Of  Account  and  Set-off. . . . 
-Of  Administration  of  assets 

-Of  Charities 580 

-Of  Election 581 

-Of  the  Execution  of  Powers  582 
-Of  Fraud 583 


Chapter  11. — Of  partition 584 

Chapter  12. — Of  specific  performance. .  585 

Chapter  13. — Of  trusts  and  trustees 586 

Chapter  14. — Of  extraordinary  remedies  587 
Article  1.  Of  mandamus,  quo  warran- 
to, and  prohibition 587 

Article  2.  Of  injunctions  588 

Article  3.  Of  ne  exeat  and  quia  timet  589 
Article  4.  Of  bills  of  peace  and  inter- 
pleader    591 


PART    THIRD. 

THE     CODE      OF     PRACTICE 


TITLE  I. — Of  the  Judges,  Sessions,  and  Adjournments  of  Courts. 


Chapter  1. — Of  the  Supreme  Court 593 

Chapter  2. — Of  the  Superior  and  Inferior 

Courts 594 

Article  1.  Number  and  times  of  ses- 
sions   594 


Article  2.  Of  the  adjournments  of  the 

Superior  and  Inferior  Courts 598 

Chapter  3.— Of  the  Judges  of  the  Supe- 
rior Courts 599 


CONTENTS. 


XIX 


TITLE  II.— (9/  Actions. 


Chapter  1. — General  Principles 601 

Chapter  2.— Of  Attachments 603 

Article  1.  Of  issuing  Attachments... .  603 
Article  2.  In  what  manner,  on  what 
property  executed,  and  proceedings 

thereon  608 

Articles.  Proceedings  on  Garnishment  610 
Article  4.  Pleadings  and  Defenses. ...  612 
Article  5.  Replevy,  and  disposition  of 

property  attached 615 

Article  6.    Claims,    and    proceedings 

therein 616 

Article  7.  Lien  of  Attachments,  Gar- 
nishments, and  Executions 618 

Chapter  3. — Of  Petitions  and  Process. .  619 
Article  1.  General  Provisions. ......     619 

Article  2.  Particular  Cases 621 

Chapter  3. — Article  2. — 


Sec.  1.  Against  joint,  and  joint  and 

several  Contractors 622 

Sec.  2.  In  ejectment 623 

Sec.  3.  Against  Corporations 62..1 

Sec.  4.  Against  Trustees 628 

Sec.  5.  Against  Executors,  Adminis- 
trators, and  Guardians 620 

Sec.  6.  Particular  Forms 630 

Chapter  4.— Of  the  Venue ■. . .  634 

Chapter  5. — Of  Bail  in  Civil  Cases. ....  636 
Article  1.  Bail  at  the  Commencement 

of  the,  Action 636 

Article  2.  Bail  'pendente  lite 640 

Article  3.  Proceedings  Again=;t  Bail. .  641 
Article  4.  Bail  in  Action  for  Personalty  642 

Chapter  6.— Of  Making  Parties 644 

Chapter  7. —  Of   Abatement,    Retraxit, 

Dismissal,  and  Renewal  of  Actions  640 


TITLE  III. — Of  Defenses,  and  Proceedings  Pending  Action. 


Chapter  1.— Of  Defenses— Pleas 648 

Article  1.  General  Provisions 648 

Article  2.  Particular  Pleas 650 

Sec.  1.  To  the  Jurisdiction 650 

Sec.  2.  Of  Set-off 651 

Sec.  3.  Of  Usury 652 

Sec.  4.  Of  Failure  of  Consideration  652 

Sec.  5.  Of  Non  est  Factum 652 

Sec.  6.  Of  other  Pleas 653 

Chapter  2. — Of  Amendments 654 

Article  1. — General  Principles 654 


Article  2.  Particular  Cases 656 

Sec.  1.  Of  Amending  A^erdicts,  Judg- 
ments, and  Executions 656 

Sec.  2.  Of  Amending   Official    Re- 
turns   657 

Sec.  3.  Of  Amending  Records 657 

Sec.  4.  Of  other  Amendments 658 

Chapter  3. — Of  the  Production  of  Papers  658 

Chapter  4. — Of  Continuances 662 

Chapter  5. — Of  Garnishments 664 


TITLE  IV. — Of  the  Verdict  and  Judgment. 


Chapter  1. — Of  the  Verdict  and  Judg- 
ment   668 

Article  1,  Of  the  Verdict  and  its  Re- 
ception    669 

I  Article  2.  Of  entering  Judgments. ...  670 
Articles.  Effect  and  Lien  of  Judgment  671 


Article  4.  Of  Attacking  Judgments. .  673 
Article  5.  Transfer  of  Judgments. . . .  675 
Article  6.  Confession  of  Judgment. . .   675 
Article  7.  Of  dormant  Judgments,  and 
Revival  thereof 678 


TITLE  v.— 0/  Appeals. 


Chapter  1.— Of  Appeals 677 

Article  1.  In  what  Cases  Allowed.. . .  677 
Article  2.  When,  by  whom,  and  how 
Entered 678 


Article  3.  Effect  of  Appeal 681 

Article  4.  How  and  when  tried 681 


TITLE  VL— 0/  Executions. 


Chapter  1. — Of  different  kinds  of  Exe- 
cutions    682 

Article  1.  When  and  how  Issued  and 
Returned 682 

Article  2.  Ga.  Sas.,  how  Executed  and 
Proceedings  thereon 684 

Article  3.  Of  a  FL  Fa.,  how  Levied, 
and  Proceedings  thereon 686 


Article  4.  Of  Sales  under  Execution — 

when  and  how  made 687 

Article  5.  Of  the  Satisfaction  of  Exe- 
cutions     689 

Chapter  2.— Of  the  Stay  of  Executions.   690 
Chapter  3. — Of  the  Illegality  of  Execu- 
tions     690 

Chapter  4. — Of  Forthcoming  Bonds. . . .   692 


XX 


CONTENTS. 


TITLE  Nil.— Of  Costs  in  Civil  Cases, 


Chapter  1. — Costs  iu  Civil  Cases 693 

Article  1.  How  Taxed 693 


Article  2.  How  Collected 695 

Chapter  2.— Fees  of  Officers  of  Court. .  695 


TITLE  YllL—JSTew  Trials, 


Chapter  1.— Of  New  Trials 705 

Article  1.   By  whom  and  for  what 
causes  allowed 705 


Article  2.    When,  where,  and  how 


tried 


(06 


TITLE  IX.— 0/  Claims. 


Chapter  1. — Of  claims  to  propertjan  ex- 
ecution   707 

Article  1.  How  and  by  whom  inter-    • 
posed 707 


Article  2.  When,  where,  and  how  tried  709 
Chapter  2. — Of  claims  at  other  judicial 
sales 710 


TITLE  X.—Of  Evidence. 


Chapter  1. — General  principles 711 

Chapter  2. — Of  the  rules  governing  the 

admission  of  testimony 713 

Article  1.  Of  the  general  rules 714 

Article  2.  Of  hearsay  evidence 715 

Article  3.  Of  admissions  and  confes- 
sions      717 

Article  4.  Of  parol  evidence  to  affect 

written 719 

Chapter  3. — Of  discovery  from  parties. .  720 
Chapter  4. — Of  records  and  other  writ- 
ten evidence 721 

Article  1.  Of  records  and  public  docu- 
ments    721 


Chapter  4. — 

Article  2.  Of  private  writings 724 

Chapter  5. — Of  oral  testimony 725 

Article  1,  Witnesses— their  attendance 

and  fees 726 

Article  2.  Of  the  competency  of  wit- 
nesses    727 

Article  3.  Of  the  examination  of  wit- 
nesses    729 

Chapter  6. — Of  interrogatories  and  depo- 
sitions   731 

Chapter  7. — Of  perpetuating  testimony.  734 


TITLE  XL— (9/  Juries. 


Chapter  l.-~Of  Grand  Juries 735 

Article  1.  Of  the  qualification  of  Grand 

Jurors 735 

Article  2.  How  selected,  drawn,  and 

summoned 735 

Article  3.  Oath  of  the  Grand  Jury. . .  737 
Article  4.  Of  the  power  and  duty  of  a 

Grand  Jury 738 


Chapter  2. — Of  Special  Juries 739 

Chapter  3.— Of  Petit  Juries 740 

Article  1.  Of  the  qualifications  of  Petit 

Jurors 741 

Article  2.  How  selected,  drawn,  sum- 
moned, and  sworn 741 

Chapter  4. — Special  Provisions 742 


TITLE  XIL — Of  Proceedings  Against  Ofjicers  of  Court. 
Chapter  1. — Of  Proceedings  against  Officers  of  Court 744 

TITLE  XIII. — Of  Proceedings  to  Foreclose  Mortgages. 


Chapter  1. — ^Mortgage  on  Real  Estate — 
how  foreclosed 747 

Article  1.  Of  the  application — when 
and  how  made 748 

Article  2.  Defenses,  Pleas — when  and 
how  made 748 

Article  3.  Of  the  Judgment,  Disposi- 
tion of  Property,  etc 749 


Article  4.   Of  the  proceeds  of  sale — 

how  appropriated 749 

Chapter  2.   Proceedings  to  foreclose  a 

Moitgage  on  Personalty 750 

Article  1.  Of  the  application— by  whom 

and  how  made 750 

Article  2.  Of  defenses — when  and  how 

made-. 751 


CONTENTS. 


XXI 


TITLE  XIV. — Of  Proceedings  to  Ustahlish  Lost  Papers. 


Cliapter  1. — Lost  papers — when,  where, 

and  how  established 753 

Article  1.  How  established  in  the  Su- 
perior Courts 753 


Chapter  1. — Article  2.  How  established 

in  a  Justices'  Court 755 

Article  3.  Summary  establishment  of 
lost  papers 756 


TITLE  XV,— Of  Proceedings  to  Obtain  Partition. 


Chapter  1. — Partition  of  land — how  ob- 
tained    758 

Article  1.  When,  where,  and  by  whom 
the  application  must  be  made '  758 

Article  2,  Notice  to  parties — how  giv- 
en, and  upon  whom  served 759 

Article  3.  Of  the  issuing,  execution, 
and  return  of  the  writ 750 


Article  4.  Defenses — when  and  where 

made 760 

Article  5.  Of  the  judgment 760 

Article  6.  Of  the  remedy  of  parties 
absent  from  the  State,  under  disa- 
bility, or  not  served  with  notice. . . .   762 
Chapter  2. — Partition  of  personal  prop- 
erty— how  obtained 7G2 


TITLE  XVI. — Of  Proceedings  on  Amplication  for  Haheas  Corpus, 
Chapter  1. — Proceedings  on  application  for  Habeas  Corpus 763 

TITLE  XVII. — Of  Possessory  Warrants^  and  Proceedings  Thereon. 


Chapter  1. — Possessory  warrants,  and 

proceedings  thereon 767 

Article   1,    By   whom  and   on   what 
grounds  the  warrant  may  issue. ..   768 


Article  2.  How  executed  and  returned  768 
Article  3.  Of  the  trial,  judgment,  and 
subsequent  proceedings 769 


TITLE  XVIIL— 0/  Proceedings  on  Trial  of  Citizenship. 
Chapter  1.  Proceedings  on  trial  of  Citizenship 771 

TITLE  XIX.— 0/  Proceedings  to  Obtain  Power. 
Chapter  1. — Proceedings  to  obtain  Dower 772 

TITLE  XX.— 0/  the  Writ  of  Certiorari. 

Chapter  1. — Of  the  writ  of  certiorari. .  774  i      Article  2.  How  obtained,  and  Pro- 
Article  1.  In  what  cases  the  writ  of  ceedings  thereon 775 

certiorari  lies 774       Article  2.    Of  the   answer,  hearing, 

judgment  and  costs 777 

TITLE  XXL — Proceedings  against  Trespassers  on  Lands,  and  Tenants 

Holding  Over. 

Chapter  1. — Proceedings  against  tres-               Article  2.    Proceedings  against  ten- 
passers  on  lands,  and  tenants  hold-  ants  holding  over 781 

ing  over 780    Chapter  2. — Forcible  entry  and  detain- 

Article  1 .  Proceedings  against  intru-         i         er 784 

ders 780  I 

TITLE  XXII. — Proceedings  for  the  Abatement  of  Nuisances. 
Chapter  1 . — Proceedings  for  the  Abatement  of  Nuisances 786 


XXll 


CONTENTS. 


TITLE  XXIII. — Of  Inquests^  and  Proceedings  thereon. 
Chapter  1  .—Of  Inquests,  and  Proceedings  thereon 787 


TITLE  XXIV. — Of  Proceedings  in  Courts  of  Ordinary. 

Article  2.  Practice  in  Courts  of  Ordi- 


Chapter  1. — Proceedings  in  Courts  of 

Ordinary 791 

Article  1.  Sessions  and  adjournments  791 


nary 


793 


TITLE  XXV. — Of  Proceedings  of  the  Inferior  Court ^  Sitting  for  County 

Purposes. 


Chapter  1. — Proceedings  of  the  Inferior 
Court,  sitting  for  County  Purposes.  793 


Article  1.  Sessions  and  adjournments  793 
Article  2 .  Proceedings  therein 794 


TITLE  XXVI. — Of  the  Proceedings  in  Justices'  Courts. 


Chapter  1. — Of  the  Proceedings  in  Jus- 
tices' Courts 795 

Article  1.  When  and  where  held 795 

Article  2 .  Jurisdiction    of     Justices' 

Courts 796 

Article  3.    Commencement  of  suits, 
service  and  return  of  summons. . .  797 

Article  4.  Pleas  and  defenses 799 

Articles.  Evidence,  witnesses,  intei- 
rogatories 799 


Article  6.  Trial  and  judgment 800 

Article  7.  Appeals 801 

Article  8.  Claims  and  trial  thereof , . .  802 
Article  9.  Final  Judgment  and  Execu- 
tion   803 

Article  10.  Defaulting  Constables,  ju- 
rors,   witnesses,    and  contempts — 

how  punished 804 

Article  11.  Levy  and  sale  under  jf. /a.  806 


TITLE  XXYlL—JEquity  Pleading  and  Practice. 


Chapter  1. — Of  the  bill  and  subpoena, 
and  service  thereof 807 

Chapter  2 .  — Of  demurrers,  pleas,  and  an- 
swers    810 

Chapter  3. — Of  interlocutory  decrees,re- 
ceivers,  masters,  etc 812 


Chapter  4. — Of  the  trial  andats  incidents  813 
Chapter  5. — Of  the  final  decree  and  its 

enforcement 814 

Chapter  6. — Of   other   proceedings   in 

chancery 815 


TITLE  XX VIII.— 0/  Arbitration  and  Award. 


Chapter  1 . — Special  provisions 816 

Article  1 .  Of  the  submission 816 

Article  2.  Of  the   organization    and 

-  hearing 817 

Article  3 .  Of  continuances  and  ad- 
journments   818 

Article  4.  Of  the  evidence  and  wit- 
nesses   818 


Article  5.  Of  the  powers  of  arbitra- 
tors    819 

Article  6.  Of  the  rendition  and  effect 
of  the  award 820 

Article  7.  How  attacked 820 

Article  8.  Of  costs  and  compensation 

of  the  arbitrators 820 

Chapter  2. — General  Principles 820 


TITLE  XXIX. — Practice  in  Connection  with  the  Supreme  Court, 


Chapter  1. — Of  Bills  of  Exception  and         1  Chapter  2.  Of  Proceedings  in  the  Su- 
Writ  of  Error 822  '         preme  Court. 827 


CONTENTS. 


XXlll 


PART     FOURTH. 


PENAL    LAWS. 


TITLE  I.— Penal  Code, 


Div.  1. — Persons  capable  of  commit- 

tmg  crimes 831 

Div.  2. — Principles  and  accessories. . . .  833 
Div.  3. — Crimes  against  the  State  and 

people 834 

Div.  4. — Crimes  against  tlie  person. . .  836 
Div.  5. — Crimes  against  the  habitation  844 
Div.  6. — Crimes  relative  to  property. .  846 
Div.  7. — Forging  and  counterfeiting. .  858 
Div.  8. — Crimes  against  public  justice  863 
Div.  9. — Against  public  peace  and  tran- 
quillity    872 

Div.  10. — Against     public      morality, 

health,  police  and  decency 875 

Div.  11. — Cheats  and  swindlers 885 

Div.  12. — Fraudulent  or  malicious  mis- 
chief   889 


Div.  13. — Indictment  and  proceedings 

to   execution 893 

Div.  14. — Contempts  of  Court  and  at- 
tempts to  commit  crimes 909 

Div.  15. — Proceedings   in  preliminary 

Courts 910 

Article  1.  Proceeding  prior  to  arrest  910 
Article  2.  Of   arrest    and  its  conse- 
quences    912 

Article  3 .   Of  Courts  of  Inquiry,  com- 
mitment and  bail .   914 

Article  4.  Of  warrants  for  good  beha- 
vior, and  to  keep  the  peace 917 

Article  5.  Of  search  warrants. 918 

Article  6.  Of  Proceedings  in  cases  of 
bastardy 919 


TITLE  II. — Penitentiary  Laws. 
Chapter  1 .  — Penitentiary  laws 921 

TITLE  lll,^Convicts. 
Chapter  1  .—Convicts 926 


APPENDIX. 

Laws  having  Reference;  to  the  City  op  Savannah 929 

Constitution  of  Georgia 967 

Constitution  of  the  United  States 984 


REVISED  CODE  OF  GEORGIA. 


-♦— ♦ — ^ 


PART  FIRST— THE  POLITICAL  AND  PUBLIC  ORGAN- 
IZATION OF  THE  STATE. 
PART  SECOND— THE  CIVIL  CODE. 
PART  THIRD— THE  CODE  OF  PRACTICE. 
PART  FOURTH- THE  PENAL  LAWS. 


PRELIMINARY  PROVISIONS. 


Section. 

.1.  Obligation  of  laws. 

2.  Code — when  and  how  to  take  effect. 

3.  When  "  from  and  after  passage." 

4.  Rules  for  construction  of  statutes. 

5.  Meaning  of  specific  terms. 

6.  ru.ture  operation  of  laws. 

7.  Ignorance  of  law. 


Section. 

8.  Lex  Loci. 

9.  Comity  of  States. 

10.  Waiver  of  law. 

11.  Local  laws. 

12.  Bonds  of  public  officers. 

13.  Bonds  taken  by  public  officers. 

14.  Inspection  of  office  books. 


§  1.  The  laws  of  this  State  shall  be  thus  graduated  in  reference  obligation 

.  *=  of  laws. 

to  their  obligation: 

FivBt.  The  Constitution  of  the  United  States. 

Second.  Treaties  entered  into  by  the  Federal  Government  within 
the  scope  of  their  power. 

Third.  Laws  of  the  United  States  made  in  pursuance  of  the 
Constitution. 

Fourth.  The  Constitution  of  this  State. 

Fifth.  The  Statutes  of  this  State. 

Sixth.  Such  portions  of  the  Common,  Civil,  Canon,  and  Statute 
Laws  of  England  as  were  usually  in  force  in  the  Province  of  Geor- 
gia prior  to  14th  May,  A.D.  1776,  which  were  applicable  to  the 
condition  and  habits  of  the  people  so  far  as  the  same  are  consonant 
with  our  form  of    government,  and  are  not  repealed,  modified, 


PHELIMINARY  PROVISIONS. 


or  superseded  by  the  provisions  of  [the  Constitution  and  laws  of 
this  State.]  (a) 

Seventh.  The  customs  of  mj  business  ^r  trade  sjiall  be  binding  \ 
only  when  it  is  of  such  universal  practice  as  to  justify  the  conclu- 
sion that  it  became,  by  implication,  a  part  of  the  contract.        __-' 

§2.  This   Code  shall  take  effect  on  the  first  day  of  January^ 

Sd^h^w^t?  1^^^-     ^^^  offenses  committed  prior  to  that  date  shall  be  tried 

take  effect.    ^^^  punished  Under  existing  laws ;  and  all  rights,  or  obligations, 

or  duties  acquired  or  imposed  by  existing  laws,  shall  remain  valid 

and  binding,  notwithstanding  the  repeal  or  modification  of  such 

laws.  -^ 

§3.  Public  la^ys  which  in  themselves  prescribe  specifically  that 
"from^and  ^^^7  ^^®  *^  ^^^^  efi"ect  "from  and  after  their  passage,"  shall  not 
sage."  ^^^"  ^^  obligatory  on  the  inhabitants  until  published  in  some  public 
^         gazette ;  and  three  days  shall  be  allowed,  from  the  date  of  publi- 
cation, for  every  hundred  miles  distance  from  the  Capital,  before 
a  knowledge  of  the  law  shall  be  presumed  against  the  inhabitants. 

§4.  The  following  rules  shall  govern  the  construction  of  all 
cons"raction  Statutory  enactments  in  this  State: 

First,  The  ordinary  signification  shall  be  applied  'to  all  words, 
except  words  of  art,  or  connected  with  a  particular  trade  or  sub- 
ject-matter, when  they  shall  have  the  signification  attached  to  them 
by  experts  in  such  trade,  or  with  reference  to  such  subject-matter. 

Second.  The  present  or  past  tense  shall  include  the  future. 

Third.  The  masculine  gender  shall  include  the  feminine  and 
neuter. 

Fourth.  The  singular  or  plural  number  shall  each  include  the 
other,  unless  expressly  excluded. 

Fifth.  A  joint  authority  given  to  any  number  of  persons,  or 
ofiicers,  may  be  executed  by  a  majority  of  them,  unless  it  is  other- 
wise declared. 

Sixth.  A  substantial  compliance  with  any  requisition  of  the 
Code,  or  laws  amendatory  thereof,  especially  on  the  part  of  public 
officers,  shall  be  deemed  and  held  sufficient,  and  no  proceeding 
shall  be  declared  void  for  want  of  such .  compliance,  unless  ex- 
pressly so  provided  by  the  enactment. 

Seventh.  When  a  bond  is  required  by  law,  an  undertaking  in 
writing,  without  seal,  is  sufficient;  and  in  all  bonds  where  the 
names  of  the  obligors  do  not  appear  in  the  bond,  but  are  sub- 
scribed thereto,  they  are  bound  thereby. 

(a)  See  further  on  this  subject,  Constitution  of  Georgia,  Art.  5,  Sec.  1,  Par.  5. 


PRELIMINARY  PROVISIONS.  3 

Eighth.  When  a  number  of  days  is  prescribed  for  the  exercise 
of  any  privilege,  or  the  discharge  of  any  duty,  only  the  first  or 
last  day  shall  be  counted;  and  if  the  last  day  shall  fall  on  the 
Sabbath,  another  day  shall  be  allowed  in  the  computation. 

Ninth.  In  all  interpretations,  the  Courts  shall  look  diligently 
for  the  intention  of  the  General  Assembly,  keeping  in  view,  at  all 
times,  the  old  law,  the  evil  and  the  remedy.  Grammatical  errors 
shall  not  vitiate,  and  a  transposition  of  words  and  clauses  may  be 
resorted  to  when  the  sentence  or  clause  is  without  meaning  as  it 
stands. 

§5.  The  following  meaning  shall  be  given  to  each  of  the  follow-    Meaamg 
ing  words  in  all  statutes,  unless  a  different  meaning  is  apparent  terms. ' 
from  the  context: 

'' Property'''  includes  real  and  personal  property. 

^' Personal  Property'''  includes  every  thing  except  interests  ex- 
ceeding a  lease-hold  in  lands,  tenements,  and  hereditam.ents. 
Stocks  in  incorporated  companies,  though  the  object  of  the  com- 
pany is  necessarily  connected  with  the  land,  shall  be  held  as  per- 
sonal property. 

'^Person''  includes  a  corporation  and  persons  of  color. 

'^  Writing''  includes  printing  and  all  numerals. 

''"Oath"  includes  affirmation. 

'■'  Signature ^"  or  .'Subscription^"  includes  the  mark  of  an  illit- 
erate or  infirm  person. 

'' Lunatic"  ""Insane"  or  "•  Non-Compos-Mentis"  each  includes 
all  persons  of  unsound  minds. 

'^ Negro"  includes  mulattoes. 

""Person  of  Color"  means  all  such  as  have  an  admixture  of 
negro  blood. 

'' Justice"  when  applied  to  magistrates,  means  Justice  of  the 
Peace. 

'-^Preceding"  and  ''Aforesaid"  mean  generally  next  before,  and 
"Folloiving"  next  after,  unless  the  context  requires  a  different 
signification. 

"3fonth"  means  a  calendar  month. 

"Year"  means  a  calendar  year. 

"Seal"  shall  include  impressions  on  the  paper  itself,  as  well  as 
impressions  on  wax  or  wafers.  With  the  exception  of  official  seals, 
a  Scrawl^  or  any  other  mark  intended  as  a  seal,  shall  be  held  as 
such. 

"Highway"  or  "Road"  includes  bridges  upon  the  same. 


PRELIMINARY  PROVISIONS. 


Future 
eration 


§6.  Laws  prescribe  only  for  the  future;  thej  can  not  impair  the 
^P"  obligation  of  contracts,  nor  generally  have  a  retrospective  opera- 
laws.  ^Jqj^^     Laws  looking  only  to  the  remedy  or  mode  of  trial,  may 

apply  to  contracts,  rights,  and  offenses  entered  into,  accrued,  or 
committed  prior  to  their  passage;  but  in  every  case  a  reasonable 
time  subsequent  to  the  passage  of  the  statute  should  be  allowed 
for  the  citizen  to  enforce  his  contract,  or  protect  his  right. 

§7.  Laws,  after  promulgation,  are  obligatory  upon  all  inhabi- 
oni^™^*^^  tants  of  this  State,  and  ignorance  of  the  law  excuses  no  one. 

§  8.  The  validity,  form,  and  effects  of  all  writings  or  contracts  are 

Lex  Loci,  determined  by  the  laws  of  the  place  where  executed.     When  such 

writing  or  contract  is  intended  to  have  effect  in  this  State,  it  must 

be  executed  in  conformity  to  the  laws  of  this  State,  excepting  wills 

of  personalty  of  persons  domiciled  in  another  State  or  country. 

§9.  The  laws  of  other  States  and  foreign  nations  shall  have 


€omity  of  no  forco  and  effect  of  themselves  within  this  State,  further  than  is 

states.  .  .         . 

provided  by  the  Constitution  of  the  United  States,  and  is  recog- 
nized by  the  comity  of  States.  The  Courts  shall  enforce  this 
comity,  until  restrained  by  the  General  Assembly,  so  long  as  its 
enforcement  is  not  contrary  to  the  policy  or  prejudicial  to  the 
interests  of  this  State. 

§10.  Laws  made  for  the  preservation  of  public  order  or  good 

Waiver  of  morals  Can  not  be  done  away  with  or  abrogated  by  any  agreement; 

but  a  person  may  waive  or  renounce  what  the  law  has  established 

in  his  favor,  when  he  does  not  thereby  injure  others  or  affect  the 

public  interest. 

§11.  If  there  is  a  law  in  force  at  the  time  of  the  adoption  of 
Local  laws,  this  Codo,  having  entirely  a  local  application,  such  local  law  is 
not  repealed  by  this  Code,  unless  so  expressly  declared. 

§12.  All  bonds  taken  from  public  officers  shall  be  kept  in  the 

Bonds  of  places  specified  by  law,  and  copies  thereof  shall  be  furnished  to 

cers.  any  person  desiring  them.     Suits  thereon  may  be  brought  by  any 

person  aggrieved  by  the  official  misconduct  of  the  officer,  in  his 

own  name,  in  any  Court  having  jurisdiction  thereof,  without  an 

order  for  that  purpose. 

§13.  All  bonds  taken  by  public  officers,  under  the  laws  of  this 
Konds taken  State,  shall  bc  returned  to  the  offices  specified  by  law;  and  any 

bypublicof-  .  i     ,  •  i     •  ,  .      ,  . 

fleers.         person  interested  therein  may  bring  suit  thereon,  m  his  own  name, 

in  any  Court  having  jurisdiction  thereof. 

§  14.  All  books  kept  by  any  public  officer,  under  the  laws  of  this 
inspectionof  State,  shall  be  subject  to  the  inspection  of  all  the  citizens  of  this 

State,  within  office  hours,  every  day  except  Sundays  and  holidays. 


ART    I.   • 


THE    POLITICAL    AND    PUBLIC    ORGANIZATION    OF 

THE    STATE. 


TITtE    I. 


DIVISIONS      AND     JURISDICTIONS 


CHAPTER    I. 

OF    THE    BOUNDARY,  SOVEREIGNTY,  AND    JURISDICTION    OF 

THE    STATE. 


Article  1. — The  Boundary  of  the  State. 

Article  2. — The  Sovereignty  and  Jurisdiction  of  the  State, 

Article  3. — Coast  Survey. 


ar;ticle  l 

THE  BOUNDARY  OF  THE  STATE, 


SECTIO^^ 

15.  Boundary  of  the  State. 

16.  Line  between  Ga.  and  S.  Carolina. 

17.  Between  Ga.,  N.  C,  and  Tennessee. 


Section. 

18.  Between  Georgia  and  Alabama. 

19.  Between  Georgia  and  Florida. 


^  15.  The  boundaries  of  Georgia,  as  deduced  from  the  Constitu-   Boundaries 

^  of  the  State 

tion  of    Georgia,  the   Convention  of   Beaufort,  the  Articles  of  of  Georgia. 
Cession  and  Agreement  entered  into  on  the  24th  April,  1802,  the 
Resolution  of  the  General  Assembly  of  December  8th,  1826,  and 
the  adjudications  and  compromises  affecting  Alabama  and  Florida, 
are  as  follows: 

From  the  sea,  or  the  mouth  of  the  river  Savannah,  along  the 
stream  thereof  to  the  fork  or  confluence  made  by  the  rivers  Keo- 
wee  and  Tugalo,  and  thence  along  said  river  Tugalo  until  the 
fork  or  confluence  made  by  said  Tugalo  and  the  river  Chattooga, 
and  up  and  along  the  same  to  the  point  where  it  touches  the 
northern  boundary  line  of  South  Carolina  and  the  southern 
boundary  line  of  North  Carolina,  which  is  at  a  point  on  the  thirty- 


6        PT.  1.— TIT.  1.— CHAP.  1.— Boundary,  Sovereignty,  etc. 

Article  1.— The  Boundary  of  the  State. 

fifth  parallel  of  north  latitude,  reserving  all  the  islands  in  said 
rivers  Savannah,  Tugalo,  and  Chattooga,  to  Georgia ;  thence  on 
said  line  of  said  Ihirty-fifth  parallel,  from  said  point  of  intersec- 
tion, and  on  and  along  said  line  west,  to  a  point  where  it  merges 
into  and  becomes  the  northern  boundary  line  of  Alabama — it  being 
the  point  fixed  by  the  survey  of  the  State  of  Georgia,  and  known 
as  Nickajack;  thence  in  a  direct  line  to  the  great  bend  of  Chat- 
tahoochee river,  called  Miller's  Bend — it  being  the  line  run  and 
marked  by  said  survey:  and  .thence  along  and  down  the  western 
bank  of  said  Chattahoochee,  along  the  line  or  limit  of  high-water 
mark  to  its  junction  with  Flint  river;  thence  along  a  certain  line 
of  survey,  made  by  Gustavus  J.  Orr,  a  surveyor  on  the  part  of 
Georgia,  and  W.  Whitner,  a  surveyor  on  the  part  of  Florida,  be- 
ginning at  a  fore-and-aft  tree,  about  four  chains  below  the  present 
junction;  thence  along  this  line  east,  to  a  point  designated  Thirty- 
Seven  Links  North  of  Ellicott's  Mound  on  the  St.  Mary's  river; 
thence  along  the  middle  of  said  river  to  the  Atlantic  Ocean,  and 
from  thence  to  the  mouth  or  inlet  of  said  Savannah  river,  to  the 
place  of  beginning;  including  all  the  lands,  waters,  islands,  and 
jurisdictional  rights  within  said  limits,  and  also  all  the  islands 
within  twenty  marine  leagues  of  the  sea  coast. 

§16.  The  boundary  between  Georgia   and  South  Carolina  shall 
Line  be-  \)q  iY^q  ij^ie  described  as  runnins;  from  the  mouth  of  the  river 

tween  Geor-  o 

giaands.  0.  Savannah,  up  said  river  and  the  rivers  Tugalo  and  Chattooga,  to 
the  point  where  the  last-named  river  intersects  with  the  thirty-fifth 
parallel  of  north  latitude,  conforming,  as  much  as  possible,  to  the 
line  agreed  on  by  the  Commissioners  of  said  States  at  Beaufort 
on  the  28th  April,  1787. 

§  17.  The  boundary  between  Georgia  and  !Morth  Carolina,  and 
twSn  Geor-  Crcorgia  and  Tennessee,  shall  be  the  line  described  as  the  thirty- 
a?/^eor°^ia  ^^^^  parallel  of  north  latitude,  from  the  point  of  its  intersection 
and  Tenues-  -^j  ^^le  river  Chattooga,  west  to  the  place  called  Nickajack. 

§18.  The  boundary  line  between  Georgia  and  Alabama  shall 
Line  be-]3e  the  line  described  from  Nickaiack  to  '^Miller's  Bend"  on  the 

tween  Geor-  ^         ^*'  ^  ^         ■ 

giaandAia-  Chattahoochec,  and  down  said  river  to  its  junction  with  the  Flint. 

§19.  The  boundary  line  between  Georgia  and  Florida  shall  be 

Line  be-  ^he  line  described  from  the  iunction  of  the  Flint  and  Chattahoo- 

tween  Geor-  ^ 

giaandFia.  chee  rivors  to  the  point  Thirty-Seven  Links  North  of  Ellicott's 
Mound,  on  the  St.  Mary's  river;  thence  down  said  river  to  the 
Atlantic  Ocean. 


PT.  1. — TIT.  1. — CHAP.  1. — Boundary,  Sovereignty,  etc. 


Article  2. — The  Sovereignty  and  Jurisdiction  of  the  State. 


ARTICLE  II. 

THE   SOVEREIGNTY  AND   JURISDICTION   OF  THE   STATE. 


Section. 

20.  Jurisdiction  as  to  places. 

21.  Jurisdiction  as  to  persons. 


Section. 

22.  Governor  must  defend  suits— when. 


§20.  The  sovereignty  and  jurisdiction  of  this  State  extends  to  sovereignty 
all  places  within  the  limits  of  her  boundaries,  except  so  far  as  she  uon  — as  \o 
has  voluntarily  ceded  the  same  to  the  United  States,  or  adjacent 
States,  over  particular  localities. 

§21.  The  jurisdiction  of  this  State  and  its  laws  extend  to  all  jurisdiction 

...  .   .  .  asto persons. 

persons  while  within  its  limits,  whether  as  citizens,  denizens,  or 
temporary  sojourners. 

§  22.  When  any  suit  is  instituted  against  the  State,  or  against  The  Gover- 

i  ^  n         t  •    1        1         n  i  •  ^    nor  must  de- 

anv  person,  m  the  result  oi    which  the  fetate   has  an  interest,  fend  suits  in 

,  f.  1    .         .  .  •  1      '  •  •    which   the 

under  pretense  of   any  claim  inconsistent  with  its  sovereignty,  state  is  in- 
jurisdiction,  or  rights,  the  Governor  shall,  in  his  discretion,  pro- 
vide for  the  defense  of  such  suit,  unless  otherwise  specially  pro- 
vided for. 


ARTICLE  III. 

COAST      SURVEY. 


Section. 

23.  Persons  employed  in  coast  survey. 

24.  Damages  to  land-owners — awarded. 

25.  Award — objections  thereto,  issue,  etc. 


Section. 

26.  How  costs  may  be  avoided. 

27.  Amount  of  the  costs. 


§  23.  Any  person  employed  under  the  Act  of  the  Congress  of  Privileges  of 
the  United  States,  providing  for  a  survey  of  the  coasts,  may  enter  veyors. 
upon  lands  and  clear  or  cut  timber  within  this  State  upon  the 
same,  for  any  purpose  legitimately  connected  with,  and  requisite 
to  effect,  the  said  object:  provided  no  unnecessary  injury  be  done 
thereby,  and  all  damages  to  the  owner  of  the  land  be  promptly 
paid. 

§  24.  If  the  parties  representing  the  Government  of  the  United  Damages  to 
States,  and  the  owner  or  possessor  of  the  land  so  entered  upon,  ers  —  how 

1  1  'If  •11  '  1         awai-ded. 

can  not  agree  upon  the  amount  to  be  paid  for  said  damages,  either 
party  may  complain  in  a  summary  manner  to  the  nearest  Justice 
of  the  Peace  of  the  County  within  which  the  land  lies,  who  shall 
associate  with  him  two  disinterested  freeholders  of  the  County — one 


8        PT.  1.— TIT.  1.— CHAP.  l.—BouNDARY,  Sovereignty,  etc. 

Article  3. — Coast  Survey. 

to  be  named  by  each  party  interested — who  shall,  upon  hearing  the 
parties,  and  with  or  without  view  of  the  premises,  as  they  may 
determine,  proceed  to  assess  and  award  the  damages,  if  any :  pro- 
vided the  party  complaining  shall  give  the  opposite  party  ten  days' 
notice,  in  writing,  of  the  time  and  place,  when  and  where,  said 
complaint  is  to  be  heard,  and  the  name  of  the  freeholder  by  him 
selected. 

§  25.  The  said  assessors,  without  unreasonable  delay,  shall  file 
their  award  in  the  office  of  the- Clerk  of  the  Inferior  Court  of  the 
County,  which  shall  be  conclusive  upon  both  parties,  unless  objec- 
tions are  filed  to  the  same  within  ten  days  after  the  filing  of  the 
award.  If  objections  are  filed,  the  other  party  shall  have  written 
notice;  whereupon  an  issue  shall  be  made  and  tried  at  the  first 
term  thereafter  of  said  Court,  under  the  same  mles  as  other  civil 
cases. 

•   §26.  The  person   so  entering   upon   lands   may   tender   such 
Costs  avoid-  amouut  as  he  chooses  for  the  damage  done,  and  if  the  damages 

ed  by  tender  o  ^  o 

of  damages,  finally  asscsscd  shall  not  exceed  the  sum  tendered,  the  party  com- 
plaining shall  pay  all  costs. 

§27.  The  costs  before  the  Justice  and  in  the  Inferior  Court, 
Amount  of  siiall  bo  the  same  as  are  allowed  by  law  in  civil  cases  in  said 
Courts. 


Award — 

objections 
and  trial 
of  issue. 


CHAPTER    II. 

THE    POLITICAL   AND    JUDICIAL   DIVISIONS    OF    THE    STATE. 


Article  1. — Counties, 

Article  2. — Congressional  Districts. 

Article  3. — Judicial  District  and  Circuits. 


PT.  1.— TIT.  1.— CHAP.  2.— Political  Divisions  of  the  State.     9 

Article  1. — Counties. 


ARTICLE  I. 


counties. 


Sectiojt. 

28.  Names  and  limits  of  Counties. 

29.  Cases  belonging  to  new  Counties. 

30.  Unexecuted  processes  transferred. 

31.  Officers  cut  off  into  new  Counties. 

32.  Officers  of  adjacent  Covinty  may  act. 

33.  Juries  for  new  Counties. 

34.  Extra  tax  in  new  Counties. 


Section. 

35.  Who  may  qualify  ofBcors. 

36.  Executors,  etc.,  cutoff  into  new  County. 

37.  When  Counties  are  divided  by  a  stream. 

38.  Offenses  committed  on  water  courses. 

39.  Offenses  committed  on  boundary  line. 

40.  Counties  entitled  to  two  Rep'sentatives 

41.  Representation  from  new  Co.— when. 


§28.  The  State  is  divided  into  the  following  Counties,  whose 
boundaries  and  limits  shall  be  ascertained  by  the  several  acts 
laying  oif  the  same,  and  those  amendatory  thereof — viz : 


Names  and 
limits  of 
Counties. 


Appling, 

Baker, 

Baldwin, 

Banks, 

[Bartow,]  (a) 

Berrien, 

Bibb, 

Brooks, 

Bryan, 

Bullock, 

Burke, 

Butts, 

Calhoun, 

Camden, 

Campbell 

Carroll, 

Catoosa, 

Charlton, 

Chatham, 


Coffee, 

Columbia, 

Colquitt, 

Coweta, 

Crawford, 

Dade, 

Dawson, 

Decatur, 

DeKalb, 

Dooly, 

Dougherty, 

Early, 

Echols, 

Effingham, 

Elbert, 

Emanuel, 

Fannin, 

Fayette, 

Floyd, 


Chattahoochee,  Forsyth 
Chattooga,         Franklin, 


Cherokee, 

Clarke, 

Clay, 

Clayton, 

Clinch, 

Cobb, 


Fulton, 

Gilmer, 

Glasscock, 

Glynn, 

Green, 

Gordon, 


Gwinnett, 

Habersham, 

Hall, 

Hancock, 

Haralson, 

Harris, 

Hart, 

Heard, 

Henry, 

Houston, 

Irwin, 

Jackson, 

Jasper, 

Jefferson, 

Johnson, 

Jones, 

Laurens, 

Lee, 

Liberty, 

Lincoln. 

Lowndes, 

Lumpkin, 

Macon, 

Madison, 

Marion, 

Mcintosh, 


Meriwether, 

Miller, 

Milton, 

Mitchell, 

Monroe, 

Montgomery, 

Morgan, 

Murray, 

Muscogee, 

Newton, 

Oglethorpe, 

Paulding, 

Pickens, 

Pierce, 

Pike, 

Polk, 

Pulaski, 

Putnam, 

Quitman, 

Rabun, 

Randolph, 

Richmond, 

Schley, 

Scriven, 

Spalding, 

Stewart, 


Sumter, 

Talbot, 

Taliaferro, 

Tattnall, 

Taylor, 

Terrell, 

Telfair, 

Thomas, 

Towns, 

Troup, 

Twiggs, 

Union, 

Upson, 

"Walker, 

Walton, 

Ware, 

Warren, 

Washington, 

Wayne, 

Webster, 

White, 

Wilcox, 

Wilkes, 

Wilkinson, 

Whitfield, 

Worth. 


Making  132  Counties. 


§29.  When  a  new  County  is  organized,  the  jurisdiction  of  all    cases  to 
suits  pending  in  the  County,  or  Counties,  from  which  the  new  County  red  tTiew 
has  been  laid  off,  of  which,  under  the  Constitution  and  Laws  of  "^  ^' 
this  State,  the  new  County  should  have  cognizance,  is  transferred 
immediately  to  the   corresponding   Court   in   such  new  County, 

(a)  Acts  of  1861,  p.  101. 


10    PT.  1.— TIT.  1.— CHAP.  2.— Political  Divisions  of  the  State. 

Article  1. — Counties. 

together  with  all  the  Court  papers  pertaining  thereto,  to  which 
shall  be  attached  the  certificate  of  the  Clerk  of  the  Court  from 
whence  they  came,  that  they  are  the  proper  papers  of  the  suit, 
and  the  amount  of  costs  accrued  therein,  the  amount  then  due, 
and  by  what  persons  paid;  for  which  certificate  the  Clerk  must 
receive,  from  the  person  asking  the  transfer,  the  costs  then  due, 
unless  he  makes  oath  that,  owing  to  his  poverty,  he  is  not  able  to 
pay  the  costs. 

§  30.  All  process  (mesne  or  final)  or  paper  requiring  some  offi- 
cial act  to"  be  done  by  any  officer  of  the  Counties  from  which  the 
Unexecuted  ncw  Couutv  is  taken,  and  which  can  not  be  done  by  reason  of  the 

process      to  ^  "^         ^  ^  *' 

be  transfer-  crcation  of  Said  new  County,  must,  without  delay,  be  transmitted 

red  to  new  t/  7  7  e/  7 

County.  \)j  the  same  to  the  corresponding  o&cer  in  the  new  County,  and  if 
proceedings  have  been  had  thereon,  and  not  finally  disposed  of, 
the  officer  of  the  new  County  must  proceed  as  though  the  paper 
had  been  originally  in  his  hands  ;  but  publication  of  the  times  and 
places  of  sale,  and  proceedings  of  like  character,  shall  be  in  the 
manner  prescribed  by  law. 

§ol.  All  ministerial  officers  in  commission,  included  within  the 

limits  of  the  new  County,  hold  their  commissions  and  exercise  the 

Officers  cut  dutics  of  their  office  until  their  commissions  expire  and  their  suc- 

county  to  ccssors  are  elected  and  qualified,  unless  there  is  more  than  one  for 

retain  their 

com  mis-  the  Same  office;  and  in  new  Counties  organized  entirely  from  one 

sions.  '  . 

County,  all  the  officers  of  the  old  County  are  authorized  to  exercise 

their  respective  duties  in  the  new  County  until  the  proper  officers 

Officers  of  are  elected  and  qualified;  and  Justices  of  the  Peace  comprised  in 

old    County  ^  t         .  •  t  i     i 

to  act  until  the  ucw  Couuty,  whose  districts  are  not  materially  disturbed  by 
new  County  the  liucs  of  the  ucw  County,  retain  their  offices  and  their  district 

are  qualified.  "^  ■' 

until  their  commissions  expire. 

§  32.  When  any  new  County,  as  organized,  is  without  a  person 

authorized  to  act  as  Clerk,  or  Sheriff,  or  both,  a  corresponding 

When  there  officer  in  any  adioininff  County  may  exercise  the  duties  of  such 

are  no    offi-  ...  . 

cers  in  new  officcr,  in  issuiug,  scrviug,  and  returning  process,  until  said  new 


«^ss -how  County  is  supplied. 


County,  pr( 
cess  — 
issued 

served.  ggg^  rpj^g  Justiccs  of  the  Inferior  Court  of  the  new  County, 

aided  by  the  Clerks  of  the  Superior  and  Inferior  Courts  and  Sher- 

juriesfora  iff,  shall,  without  delay  after  their  qualification,  make  a  Grand 

ty— how  or-  and  Petit  Jury  box,  and  draw  therefrom,  pursuant  to  law,  panels  [of 

jurors]  (a)  in  time  for  the  succeeding  term  of  the  Superior  Court; 

(a)  Acts  of  1865-6,  p.  71. 


PT.  1. — TIT.  1. — CHAP.  2. — Political  Divisions  of  the  State.    11 

Article  1. — Counties. 

and  if,  by  the  organization  of  the  new  County,  the  panels  already 
drawn  for  the  old  Counties  are  disturbed,  the  Justices  of  the  Infe- 
rior Courts  of  said  Counties,  or  two  of  them,  or  one,  if  only  one 
remaining,  may,  at  any  time  before  the  next  term  of  said  Courts, 
draw,  to  supply  said  deficiency,  the  requisite  number  of  Grand 
and  Petit  Jurors. 

§  84.  The  Justices  of  the  Inferior  Court  of  the  new  County  may  Extra  tax  in 

.  .  r»  *     ^^^  County. 

levy,  for  the  first  year  after  their  qualification,  an  extra  tax,  for 
County  purposes,  of  such  per  cent,  upon  the  State  tax  as  may  be 
necessary,  according  to  their  discretion  and  the  terms  of  the  act 
of  organization. 

§35.  The  Governor  may  direct  the  dedimus  potestatmn  for  the    who  may 

*^,  -*■  ,        qualify  new 

qualification  of  said  Inferior  Court,  to  the  Judge  of  the  Superior  officers. 
Court  of  the  Circuit,  any  Justice  of  the  Inferior  Court,  or  Judge 
of  the  County  Court,  or  any  Justice  of  the  Peace  embraced  within 
its  limits,  and  in  default  of  either,  to  any  Justice  of  the  Inferior 
Court  of  an  adjoining  County,  and  the  qualification  under  it  is 
legal. 

§  36.  Any  executors,  administrators,  or  guardians,  making  re-   Executors, 

"^  .  '  '  &  ....  etc.,  cut  off. 

turns  to  the  Ordinary  of  the  old  County,  and  residing  within  the 
limits  of  the  new  County  when  organized,  may  make  their  returns 
to,  and  perform  all  their  ofiicial  acts  with,  the  Ordinary  thereof; 
and  when  any  such  act  is  done,  the  jurisdiction  is  changed  to  the 
new  County,  and  such  trustee  shall  file  with  the  Ordinary  of  the 
new  County,  to  be. recorded  by  him,  a  certified  copy  of  all  his  acts 
from  the  Ordinary  of  the  old  County. 

§  3T.  Whenever  a  stream  of  water  is  the  boundary  of  a  County,  whenCoun- 

^  *'     ties  are  divi- 

the  iurisdiction  of  the  County  shall  extend  to  the  center  of  the  ^^^^byawa- 

^  "^  *^  ter  course. 

main  channel  of  such  stream ;  and  if  an  offense  is  committed  on 
such  stream,  and  the  evidence  on  the  trial  does  not  definitely  dis- 
close in  which  County  it  was  committed,  the  Courts  of  either 
County  may  maintain  jurisdiction  for  the  trial  and  punishment  of 
the  offender. 

§38.  Whenever  an  offense  is  committed  on  the  waters  of  any  when  water 

''course   di- 

river  which  forms  a  boundary  between  this  and  any  other  State,  ^Y^^f  ^^or- 

•^  t/  7  gia  from  an- 

the  whole  of  which  river  belongs  to  Georgia,  the  County  which  is  other  state. 
situate  on  the  side  of  the  river  opposite  the  point  where  the  offense 
is  committed  has  jurisdiction  of  the  same;  and  if  the  evidence  on 
the  trial  does  not  definitely  disclose  on  which  side  of  the  line, 
between  two  Counties,  at  the  place  where  it  touches  the  river,  the 


12    PT.  1.— TIT.  1.— CHAP.  2.— Political  Divisions  of  the  State. 

Article  1. — Counties. 

offense  was  committed,  the  Courts  of  either  County  may  maintain 
jurisdiction. 

§  39.  This  State  claims  jurisdiction  of  an  offense  committed  on 
Jurisdiction  ^mj  of  her  boundarv  lines  with  other  States  for  the  County  bor- 

oi     otFenses        »/  «/  J 

Hne'bet'ween  ^^^^^g  ^^  *^^^  P^^^  ^^  ^^^  1^^®  whero  the  offcnsc  was  committed, 
othe?Stetes!  ^^^  ^^  doubtful  as  to  which  of  two  Counties  (as  set  forth  in  the 
preceding  Section),  for  either  County,  and  will  proceed  to  arrest, 
indict,  try,  and  execute,  until  such  other  State  shall  make  a 
demand  for  the  accused  as  a  fugitive  from  justice;  in  which  event 
the  progress  of  the  case  shall  be  suspended  by  order  of  the  Gov- 
ernor until  the  question  of  jurisdiction  is  settled. 

§  40.  The  Counties  of  Bibb,  Burke,  [Bartow,]  (a)  Carroll,  Chat- 

The  coun- }iam,  Cherokee,  Clarke,  Coweta,  Cobb,  Columbia,  Decatur,  Floyd, 

to  two  Eep-  Fulton,  Gordon,  Greene,  Gwinnett,  Hancock,  Harris,  Hall,  Henry, 

resentatives  '  '  '  '  '  "  ^  '  *'  ' 

jjj^^l^^sis- Houston,  Jackson,  Meriwether,  Monroe,  Muscogee,*]Srewton,  Ogle- 
thorpe, Richmond,  Stewart,  Sumter,  Talbot,  Thomas,  Troup, 
Walton,  Walker,  Washington,  and  Whitfield,  being  thirty-seven, 
are  entitled  to  two  Eepresentatives ;  and  all  other  Counties  as  the 
Constitution  prescribes. 

§  41.  There  shall  be  no  representation  in  either  branch  of  the 
6eiStio?fTf  Creneral  Assembly  from  any  new  County  until  after  the  next  reg- 
un«i^nl"i"t  ^^^1'  election  for  members  of  the  same,  but  the  Senators  and  Rep- 
twn^aftlMt  resentatives  already  elected  from  the  Counties  forming  the  new 
County  shall  serve  out  the  term  for  which  they  were  elected,  without 
regard  to  their  residence  in  or  out  of  the  old  Counties ;  and  all 
vacancies  by  death,  resignation,  or  removal,  shall  be  filled tby  the 
County  where  the  member  resided  at  the  time  of  his  election. 


is  organized. 


ARTICLE  II. 

CONGRESSIONAL     DISTRICTS. 

Section.  i  Section. 

42.  Congressional  Districts.  I       43.  New  Counties — where  attaclied. 

§42.  [Conforming  to  the  last  apportionment  of  members  of  the 
congres-  Housc  of  Representatives  of  the  United  States  Congress,  there 
tiicts  —  of  shall  be  in  this  State  seven  Congressional  Districts,  constituted  as 
ties  each  is  follows.  Until  changed  by  act  of  the  General  Assembly — viz : 

The  First  District  shall  include  the  Counties  of  Appling,  Ber- 

(a)  Acts  of  1861,  p.  101. 


PT.  1.— TIT.  l.—CHAP.  2.~PoLiTicAL  Divisions  of  the  State.    13 

Article  2. — Congressional  Districts. 

rien,  Brooks,  Brjan,  Bullock,  Camden,  Charlton,  Chatham,  Clinch, 
Coffee,  Colquitt,  Echols,  Effingham,  Emanuel,  Glynn,  Irwin, 
Johnson,  Laurens,  Liberty,  Lowndes,  Mcintosh,  Montgomery, 
Pierce,  Tattnall,  Telfair,  Thomas,  Ware,  and  Wayne. 

The  Second  District  shall  include  the  Counties  of  Baker,  Cal- 
houn, Chattahoochee,  Clay,  Decatur,  Dooly,  Dougherty,  Early, 
Houston,  Lee,  Macon,  Marion,  Miller,  Mitchell,  Pulaski,  Quitman, 
Bandolph,  Schley,  Stewart,  Sumter,  Terrell,  Webster,  Wilcox, 
and  Worth. 

The  Third  District  shall  include  the  Counties  of  Campbell, 
Carroll,  Clayton,  Coweta,  Fayette,  Haralson,  Harris,  Heard, 
Meriwether,  Muscogee,  Paulding,  Talbot,  Taylor,  and  Troup. 

The  Fourth  District  shall  include  the  Counties  of  Baldwin,  Bibb, 
Butts,  Crawford,  Henry,  Jasper,  Jones,  Monroe,  Newton,  Pike, 
Putnam,  Spalding,  Twiggs,  Upson,  and  Wilkinson. 

The  Fifth  District  shall  include  the  Counties  of  Burke,  Colum- 
bia, Elbert,  Glasscock,  Greene,  Hancock,  Jefferson,  Lincoln,  Mor- 
gan, Oglethorpe,  Richmond,  Scriven,  Taliaferro,  Warren,  Wash- 
ington, and  Wilkes.  ^ 

The  Sixth  District  shall  include  the  Counties  of  Banks,  Clarke, 
Dawson,  Fannin,  Forsyth,  Franklin,  Gilmer,  Gwinnett,  Haber- 
sham, Hall,  Hart,  Jackson,  Lumpkin,  Madison,  Milton,  Pickens, 
Rabun,  Towns,  Union,  Walton,  and  White. 

The  Seventh  District  shall  include  the  Counties  of  Bartow, 
Catoosa,  Chattooga,  Cherokee,  Cobb,  Dade,  DeKalb,  Floyd,  Ful- 
ton, Gordon,  Murray,  Polk,  Walker,  and  Whitfield.]  (a) 

§43.  If  in  the  organization  of  a  new  County  there  is  an  omis-  where  new 
sion  to  specify  to  which  Congressional  District  it  belongs,  it  shall  lougl^^vheu 
be  attached  to  that  from  which  most  of  its  representative  popula- 
tion has  been  tal^en,  according  to  the  Federal  basis,  which  shall 
be  determined  by  the  Governor,  if  necessary,  at  any  time  before 
legislation,  to  remedy  the  omission. 

(a)  Journal  of  Georgia  Convention  of  1865,  p.  226 ;  Acts  of  1865-6,  p.  36. 


act  is  silent. 


14  PT.  1.— TIT.  2.—C1TIZENSHIP. 


Chapter  1. — Who  are  Citizens. 


ARTICLE  III. 

JUDICIAL     DISTRICT     AND     CIRCUITS. 

Section.  j   Section. 

44.  Judicial  Distinct  and  Circuits.  1      45.  To  what  Circuit  a  new  County  belongs. 

§44.  The  entire  State  constitutes  one  Supreme  Judicial  District, 
Judicial  and  is  divided  into  sixteen  Judicial  Circuits  in  reference  to  the 

District  and  .....  ^  .  n     i         n  •  r^ 

Circuits,      jurisdiction  and  sessions  of  the  Superior  Court;  tables  of  which 
■will  be  found  in  P^rt  III.,  Title  I. 

§45.  If  any  new  County  is  organized  with  an  omission  to  attach 
cxSr  a^  nJw  it  to  any  Judicial  Circuit,  it  belongs  to  the  Circuit  from  which 
longs. '^    ^'  most  of  its  territory  is  taken. 


TITLE    II. 

OF        CITIZENSHIP. 


Chapter  1. —  WJio  are  Citizens. 
Chapter  2. — As  to  Expatriation, 


CHAPTER    I. 

WHO       ARE       CITIZENS. 


Section. 

46.  Who  are  citizens  of  Georgia. 

47.  Who  are  not  white  persons. 


Section. 

48.  Persons  prohibited  from  citizenship. 


§46.  All  white  persons  born  in  this  State,  or  in  any  other  State 
Whoarecit-of  this  Uuion,  who  are,  or  may  become,  residents  of  this  State, 

izens  of  this       .,,.  .  „  .     .         ,  .  ^^       ^  •  i 

State.  With  the  intention  01  remaining  herein ;  ail  white  persons  natural- 

ized under  the  laws  of  the  United  States,  and  who  are,  or  may 
become,  residents  of  this  State,  with  the  intention  of  remaining 
herein;  all  persons  who  have  obtained  aright  to  citizenship  under 
former  laws,  and  all  children  wherever  born,  whose  father  was  a 
citizen  of  this  State  at  the  time  of  the  birth  of  such  children,  or 
in  case  of  posthumous  children  at  the  time  of  his  death,  are  held 
and  deemed  citizens  of  this  State. 


PT.  1.— TIT.  2.— Citizenship.  15 


Chapter  2. — Expatriation. 


§47.  Persons  having  one-eiglith  or  more  of  negro  or  African  i^ho are per- 
blood  in  their  veins,  are  not  ^hite  persons  in  the  meaning  of  this 
Code. 

§48.  'No  person  transported  or  banished  from  other  countries  who  cannot 

r»TTTTr(  r  ••!•         become  citi- 

or  States,  withm  or  out  of  the  United  btates,  for  crime  involving  zens  of  tws 

.  .  .  ,      .  .   .  %  state. 

moral  turpitude,  are  permitted  to  reside  in  or  become  citizens  of 
this  State. 


CHAPTER    II. 

AS     TO     EXPATRIATION. 


Section. 

49.  How  citizenship  may  be  renounced. 

50.  When  citizenship  ceases. 


Section. 

51.  How  citizenship  is  acquired. 


§49.  Except  in  time  of  war,  every  citizen  shall  have  the  right  Howcitizen- 
of  expatriation,  with  a  view  to  become  a  citizen  of  another  State  renounced. 
or  country  not  a  part  of  the  United  States,  with  which  this  State 
is  at  peace.     The  declaration  or  avowal  of  such  intention,  accom- 
panied by  actual  removal,  is  held  a  renunciation  of  all  his  rights 
and  duties  as  a  citizen. 

§50.  Until  citizenship  is  acquired  elsewhere,  after  compliance  when 
with  the  terms  of  Section  No.  49,  the  person  continues  a  citizen  llSti^  ^^ 
of  Georgia  and  of  the  United  States. 

§51.  If  a  person,  having  been  thus  expatriated,  acquires  citi- nowcuizeu- 
zenship  under  some  foreign  power,  he  and  his  descendants  who  go  again  acqui- 
with  him  for  the  purpose  of  residence  can  be  a  citizen  of  this 
State  again  only  after  a  residence  of   three  years  herein,   and 
taking  the  oath  of  allegiance,  as  in  case  of  other  foreigners. 


TITLE    III. 

OF  THE  EXECUTIVE  DEPARTMENT. 


Chapter  1. — T7ie  G-overnor  :   his  Powers  and  Duties, 
Chapter  2. — The  Executive  Office  and  Secretaries, 
Chapter  3. — State  House  Officers — Secretary  of  State,  etc. 
Chapter  4. — Offices  connected  with  the  Executive  Department. 
Chapter  5. — Regulations  as  to  all  Executive  Offices  and  Officers. 


16  PT.  1. — TIT.  3. — Executive  Department. 

Chapter  1. — The  Goyernor :  his  Powers  and  Duties  not  specified  in  the  Constitution. 


CHAPTER    I. 

THE  aOYERNOR:  HIS  POWERS  AND  DUTIES  NOT  SPECIFIED  IN 

THE  CONSTITUTION. 


Section. 

52.  Governor's  inauguration. 

53.  His  oatli  to  be  taken. 

54.  He  ^lay  Qall  out  the  militia. 

55.  May  call  out  militia  and  volunteers. 

56.  Shall  cause  fugitiA^es  to  be  arrested. 

57.  Deliver  fugitives  from  other  States. 

58.  Delivery  suspended  in  certain  cases. 

59.  Fugitives  not  demanded. 

60.  Warrants  for  the  arrest  of  fugitives. 

61.  He  may  offer  rewards. 

62.  May  appoint  Commissioners  of  Deeds. 


Skction. 

63.  He  must  commission  officers. 

64.  Shall  issue  grants  to  lands. 

65.  Shall  protect  the  public  property. 

66.  Shall  appoint  officers  and  fill  vacancies. 

67.  His  Secretaries  and  other  officers. 

68.  Officers  of  public  institutions. 

69.  He  may  emploj'  special  agents. 

70.  May  suspend  collection  of  taxes. 

71.  Pas'ments  from  the  Treasury. 

72.  Certain  records  to  be  kept. 

73.  Seal  of  the  Executive  Department. 


§  52.  The  Governor  elect  shall  begin  the  discharge  of  his  duties 
Governor's  from  the  time  of  his  inauo-uration.    *The  ceremony  of  inauguration 

inauguration  ^  ^  o 

shall  take  place  during  the  first  week  of  the  session  of  the  Gene- 
ral Assembly  next  after  the  election,  and  on  such  day  of  that 
week  as  the  General  Assembly,  by  joint  resolution,  appoints.  On 
failure  of  appointment,  it  takes  place  at  12  o'clock,  meridian,  on 
Saturday  of  that  week,  unless  prevented  by  providential  causes. 
§  53.  The  oath  prescribed  by  the  5th  Paragraph  of  the  1st 
Hisoathto  Section  of  the  3d  Article  of  the  Constitution  of  this  State,  and 

be  taken  m  ' 

SfiSSsia-  ^^^  ^^*^  *^  support  the  Constitution  of  the  United  States,  shall 
^^®'  be  taken  by  the  Governor  elect  in  the  presence  of  the  General 

Assembly. 

§  54.  It  is  the  duty  of  the  Governor  to  see  that  the  laws  are 

^^y .call  out  executed.     For  this  purpose  he  has  power,  as  Commander-in-Chief, 

when.         ^Q   Q^Yl   Q^^   ii^Q  military   whenever,   in  his   discretion,   the   due 

enforcement  of  the  process  of  the  Courts  is  so  resisted  and  set  at 

defiance  as  to  require  such  interposition. 

§55.  In  case  of  invasion  or  insurrection,   the   Governor  has 
tte^miiita?*  powcr  to  Call  out  all  voluntccr  military  companies,  or  the  militia, 
insuJrectio^n  ^^  both,  for  the  defonsc  of  the  State,  until  such  time  as  the  Gene- 
or invasion.  ^^-^  Assembly  meet;  and  when  so  called  into  action,  he  has  power 
to  make  all  necessary  provision  for  their  transportation,  accom- 
modation, equipment,  and  support. 
Shall  cause      §  ^^-  Whenever  there  is    found  within   this   State  a   fugitive 
fu\u7f e^s  from  justice  from  a  foreign  State,  and  by  the  treaty  stipulations 
coimtries!'^  of  the  United  States  such  person  is  to  be  surrendered  up  to 


PT.  1. — TIT.  3. — Executive  Department.  17 

Chapter  1, — The  Governor  :  his  Powers  and  Duties  not  specified  in  the  Constitution. 

the  authorities  of  such  foreign  State  upon  requisition  from  the 
proper  officers,  the  Governor,  by  his  warrant,  shall  cause  him  to 
be  arrested  and  delivered  over  to  such  officer. 

§57.  It  is  the  duty  of  the  Governor,  under  his  warrant,  to  cause     He  shaii 

'^  cause     lugi- 

to  be  arrested  and  delivered  up  to  the  proper  officers  of  any  other  ^^^^^^  g^^^^^ 
State  of  the  United  States,  any  fugitive  from  justice  from  said  elJancfdeffy' 
State,  upon  demand  made  of  him  by  the  Executive  of  such  other  ^''^'^• 
State  in  the  manner  prescribed  by  the  laws  and  Constitution  of 
the   United   States.      And  if   such  fugitive  shall  have   assumed 
another  name  in  this  State,  and  the  Governor  is  satisfied, 'by  evi- 
dence on  oath  filed  in  his  office,  of  the  identity  of  such  person 
with  the  fugitive  demanded,  he  shall  state  the  fact  in  his  warrant 
for  the  arrest. 

§  58.  If  any  person  demanded  as  a  fuoritive  from  iustice  is,  at    ^haii  sus- 

^  -^    IT  o  J  ^  pend  the  de- 

the  time  of  such  demand,  under  prosecution  for  an  offense  aeainst  li^ery  of  a 

^  ^  _  ^  fugitive     m 

the  laws  of  this  State,  the  Governor  shall  suspend  his  delivery  certain  cases. 
until  the  issue  is  determined  as  to  his  guilt,  and  if  condemned, 
until  he  shall  have  suffered  the  penalty  of  the  law  imposed. 

§59.  When  a  person,  charged  with  the  commission  of  an  offense    Howfugi- 
in  some  other  State,  shall  flee  into  this,  and  is  pursued  and  caught,  mandedshaii 

1  •     CI  n     T  T     n  1  •         ••IT  ^®   disposed 

or  some  person  in  this  otate,  linding,  shall  arrest  mm,  it  is  the  duty  of. 
of  the  Governor,  on  oath  filed  in  his  office  of  the  commission  of 
the  offense,  and  the  identity  and  locality  of  the  party,  to  issue  his 
warrant  for  his  arrest,  as  in  other  cases,  and  command  his  lodg- 
ment in  any  jail  in  the  State,  for  as  long  as  twenty  days,  and  if, 
at  their  expiration,  there  is  no  formal  demand  made  by  the  Gov- 
ernor of  the  State  where  the  offense  is  alleged  to  be  committed,  he 
shall  be  discharged  from  custody ;  but  upon  affidavit,  made  before 
any  proper  officer,  of  the  commission  of  the  offense  and  of  such 
intended  application,  the  accused  shall  be  held  under  it  five  days. 

§60.  When  the  Governor  or  other  officer  issues  such,  or  any      officers 

must   GXG" 

other  warrant  of  arrest,  it  is  the  duty  of  the  Sheriffs,  their  Depu-  cute  war- 
ties,  Coroners,  and  Constables,  to  execute  them  when  placed  in 
their  hands. 

§61.  The  Governor  shall,  in  his  discretion,  offer,  and  cause  to    May  offer 
be  paid,  rewards  for  the  detection  or  apprehension  of  the  perpe-  the  arrest  of 
trator  of  any  felony  committed  within  this  State;  but  no  such 
reward  shall  be  paid  to  any  officer  who  shall  arrest  such  person  in 
the  regular  discharge  of  his  duty,  by  virtue  of  process  in  his 
2 


18  PT.  1. — TIT.  3.— Executive  Department. 

Chapter  1. — The  Governor:  his  Powers  and  Duties  not  specified  in  the  Constitution. 

hands  to  be  executed,  nor  to  any  person  wlio  has  arrested  the 
offender  previous  to  the  publication  of  the  reward. 

§  62.  He  shall  have  power  to  appoint,  in  other  States  and  Ter- 
May  appoint  i.i|;Qj.ies  of  the   United  States,  Commissioners  to  take  and  certify 

Commission-  '  «/ 

fu '^^o^rer  ^^®   acknowledgment  or  proof  of  deeds  or  other  conveyance  of 
states.        property  in  this  State,  of  depositions  under  commissions  or  other- 
wise, of  powers  of  attorney,  (of  wills  executed  by  persons  devising 
or  bequeathing  property  within  the  State,)  and  of  other  instruments 
in  writing  required  to  be  attested  under  the  laws  of  this  State. 
§63.  He  shall  grant  commissions  to  all  such  officers  of  this 
commissions  State,  including  Senators  and  Kepresentatives  in  Congress,  as  are 
dect  if  tMs  I'equired  to  Jiold  them,  and  in  all  cases  he  may,  in  his  discretion, 
state.  issue  a  dedirrms  potestatem  to  such  officers  as  are  authorized  to 

administer  oaths  requiring  the  qualification  of  the  officer  elect,  as 
provided  by  law,  and  to  issue  to  him  his  commission.  The  forms 
of  all  commissions  shall  be  in  the  discretion  of  the  Governor. 
Commissions  thus  issued  are  final,  except  where  the  Constitution 
and  laws  otherwise  provide. 

§64.  He  shall  issue  all  grants  to  lands  under  the  laws  of  this 

^r^a^ntsTo  State,  but  such  shall  not  be  conclusive,  but  subject  to  the  investi- 

'^^^'  gation  of  the  Courts;  and  whenever  such  are  declared  by   the 

proper  Court  to  have  been  wrongly  issued,  it  is  his  duty  to  issue 

another  grant  in  accordance  with  such  decision,  if  it  so  requires. 

§  65.  He  shall  have  general  supervision  over  all  property  of  the 

Shall  super-  State,  with  powcr  to  make  all  necessary  regulations  for  the  pro- 
vise    public  '  ■»•  ./         o  r 

propertyand  tection  thcrcof,  whcu  not  otherwise  provided  for.     He  must  assign 

assign  to  om-  7  r  o 

tffcapitoi!^  rooms  in  the  Capitol  to  all  officers  who  must  hold  their  offices 
there,  and,  in  the  absence  of  any  legislative  provision,  designate 
the  purpose  for  which  other  rooms  are  to  be  applied. 

§  ^Q.  He  shall  appoint  all  officers  and  fill  all  vacancies,  unless 
Shall  ap-  otherwise  prescribed  by  the  Constitution  and  laws.     All  appoint- 

pomt  officers  1  ./  i  1  , 

canc^es^^^not  ^^^^^  to  dischargo  a  public  duty,  by  the  General  Assembly,  or 
provided  for.  ^j  ^]^g  Govcmor  undcr  its  authority,  are  declared  to  be  offices 
within  the  meaning  of  the  Constitution. 

§67.  He  has  the  power  of  appointing  the  following  officers, 
May  appoint  y^^Q  shall  hold  their  offices  durinajthe  time  for  which  he  is  Gover- 

and  remove  o 

rie^sanToth-  ^^^'  subjcct  to  be  romovcd  at  his  pleasure — viz: 

er  officers. 

[Two]  (a)  Secretaries  of  the  Executive  Department; 
(a)  Constitution,  Art.  3,  Sec.  3,  Clause  10. 


PT.  1. — TIT.  3. — Executive  Department.  19 

Chapter  1. — The  Governor :  his  Powers  and  Duties  not  specified  in  the  Constitution. 

A  Messenger  for  his  office  ; 

A  State  Librarian ; 

A  guard  for  the  Capitol  buildings ; 

A  person  to  keep  the  Capitol  grounds  and  other  State  proper- 
ty at  the  seat  of  Government  in  proper  order. 

§68.  He  shall  also  appoint  all  the  officers  of    the  following  May  appoint 
State  Institutions  named  in  this  Code,  and  laws  hereafter  enacted  the  Asylums 

.  Ill  ^"^    officers 

amendatory   thereof,  unless   menials,   servants,    day-laborers,  or  of  the  w.  & 
otherwise  required — viz:  keeperofthe 

-••  arsenals. 

Officers  of  the  Penitentiary; 

Trustees  of  the  Lunatic  Asylum ; 

Trustees  of  the  Asylum  for  the  Deaf  and  Dumb ; 

Trustees  of  the  Asylum  for  the  Blind ; 

Officers  of  the  Western  and  Atlantic  Railroad ; 

Keepers  of  the  Arsenal  and  Public  Arms. 

§  69.  And  he  has  power  to  engage  the  services  of  any  com-     May  em- 
petent  person  for  the  discharge  of  any  duty  required  by  the  laws,  agents  — 
and  essential  to  the  interests  of  the  State,  or  necessary,  in  an 
emergency,  to  preserve  the  property  or  funds  of  the  State. 

§70.  The  Governor  may  suspend  the  collection  of  the  taxes,  or    May  sus- 
any  part  thereof,  due  the  State,  until  the  meeting  of  the  next  lection  of 
General  Assembly,  but  not  longer  ;  nor  shall  he  otherwise  interfere 
with  the  collection  thereof. 

§  71.  All  payments  from  the  Treasury,  unless  otherwise  pro-     payments 
vided,  shall  be  made  upon  the  warrant  of  the  Governor,  and  hcTreaTury  — 
may  withhold  his  approval  on  any  account  audited  and  certified  by 
the  Comptroller  General.     The  warrant  shall  always  specify  on 
what  appropriation  or  fund  it  is  drawn. 

§  72.  The  Governor  shall  cause  to  be  kept  and  preserved  in  the    shaii  cause 

,        -,  ft  ,  to  be  kept  a 

Executive  Office  the  followinai;  books  of  record :  joumaictMs 

^  .  ,  ,  official  acta. 

1.  A  journal  or  minute  book,  showing  all  of  his  official  acts. 

2.  A  book  of  appropriations,  in  which  shall  be  entered  a  full    a  book  of 
account  of  all  annual  appropriations,  setting  forth  the  amounts  tfons?^^'^^^ 
under  their  appropriate  heads,  together  with  the  date  of  his  war- 
rant for  such  appropriation,  and  in  whose  favor  drawn. 

3.  A  book  giving  a  statement  of  the  public  debt  of  the  State,     a  boot  of 
the  dates  and  numbers  of  the  bonds  issued,  in  whose  favor,  and  debt. 

for  what  amounts,  the  date  of  payment  and  the  disposition  thereof; 
also,  a  full  and  accurate  account  of  all  sums  of  money  that  are  set 
apart  as  a  sinking  fund  for  the  redemption  of  the  public  debt,  par- 


20  PT.  1. — TIT,  3. — Executive  DepxIrtment. 

Chapter  1. — The  Governor  :  his  Powers  and  Duties  not  specified  in  the  Constitution. 

ticularly  setting  forth  the  amount  for  the  several  specific  purposes^ 
when  drawn,  and  in  whose  favor  drawn. 

4.  A  book  in  which  shall  be  kept  copies  of  all  bonds  of  agents, 

bonds^'^ami  disbursing  public  funds ;  also  a  schedule  of  all  bonds  and  other 

the  state!^    cvidences  of  debt  due  to  the  State,  and  the  disposition  made  thereof. 

A  book  of      5.  A  book  of  commissions,  showing  the   dates  when  issued,  for 

onfficers.^  all  officers,  civil  and  military,  in  this  State. 

A  book  of      ^*  -^^ook  showing  the  exact  condition  of  the  Educational  Fund 
tionafFund  ^^  ^^^^  State,  and  the  annual  income  thereof. 

7.  A  book  or  books  containing  a  list  of  the  respective  numbers, 
Aland  book,  districts,  scctions,  and  Counties  of  the  several  lots  of  land  dis- 

posed  of  by  the  several  land  lotteries,  and  the  names  of  the 
drawers  of  each,  to  whom  and  when  granted,  and  a  similar  sched- 
ule of  all  lands  sold  by  the  State,  by  whom  purchased,  and  to 
whom  and  when  granted. 

8.  He   shall  also  keep,  and  cause  to  be  carefully  filed  away, 
An imiex^to  properly  marked  or  numbered,  'all  documents  appertaining  to  his 

office,  whether  there  as  the  place  of  deposit  or  received  by  mail 
or  express,  and  keep  a  book  as  an  index  or  key  to  the  same. 

9.  And  any  other  books  or  files  that,  in  his  judgment,  his  De- 
^Ij'booTs''  partment  needs. 

§73.  There  shall  be  a  seal  of  the  Executive  Department.     The 
se^f^^"^^^^^  device  shall  be  the  same  as  that  now  used  therein,  and  shall  not  be 
altered  except  by  authority  of  the  General  Assembly. 


CHAPTER    II. 

THE  EXECUTIVE  OFFICE  AND  RESIDENCE  OF  THE  GOVERNOR. 

Section.  -  i  Section. 

74.  Where  Executive  Office  must  be  kept.  I       75.  Where  the  Goyernor  must  reside. 

§74.  The  Executive  Office  shall  be  in  the  State  House  at  the 
Where  the  seat  of  Government.      If,  from  any  cause,  there  is  no  State  House, 

Executive  5  »/  5  -> 

Office  shall  or  it  has  to  be  abandoned,  then  at  such  place  at  the  seat  of  Gov- 

be.  . 

ernment,  as  the  Governor  may  direct,  and  not  elsewhere,  unless 

made  necessary  from  invasion,  insurrection,  pestilence,  or  rebellion. 

§  75.  The  Governor  shall  reside  at  the  seat  of  Government  dur- 

Governor's  .         i  •      ,  on* 

residence,     mff  his  term  01  omce. 


PT.  1.— TIT.  3.— CHAP.  3.— Executive  Department.  21 

Article  1. — The  Secretary  of  State. 


CHAPTER    III. 

THE  SECRETARY  OF  STATE,  TREASURER,  AND  COMPTROLLER 

GENERAL, 


Article  1. — The  Secretary  of  State, 
Article  2. — The  State  Treasurer. 
Article  3. — The  Comptroller  Gfeneral. 


ARTICLE  I. 

OF     THE     SECRETARY     OF     STATE. 


Section. 

76.  Bond  of  Secretary  of  State. 

77.  Must  reside  at  the  Capital. 

78.  Must  furnish  applicants  with  records. 

79.  He  shall  receive  no  perquisites. 


Section. 

80.  Sec.  State  and  Surv.  Gen.  consolidated. 

81.  The  Great  Seal  of  the  State. 

82.  Other  duties. 

83.  Shall  not  speculate  in  wild  lands. 


§76.  Before  enterifig  on  the  duties  of  his  office  he  shall  exe-  Bondofthe 
cute  a  bond  with  sufficient  securities,  to  be  approved  by  the  Gov-  state.' 
ernor,  in  the  sum  of  ten  thousand  dollars,  conditioned  for  the 
faithful  performance  of  all  the  duties  of  his  said  office  and  all 
such  duties  as  shall  be  required  of  him  by  the  General  Assembly 
or  the  laws  of  this  State,  and  for  a  faithful  account  of  all  the 
public  money  or  effects  that  may  come  into  his  hands  during  his 
continuance  in  office.  It  shall  be  filed  in  the  Executive  Office,  and 
a   copy   thereof,  certified  by  one  of  the  Governor's  Secretaries,     certified 

1  ./  ^  t/  -'     copy    evi- 

under  the  seal  of  the  Executive  Department,  shall  be  received  in  <i°^ce. 
evidence  in  lieu  of  the  original  in  any  of  the  Courts  of  this  State. 

§  77.  He  shall  be  provided  with  suitable  apartments  in  the  State     He  shaii 
Capitol,  furnished  at  the  State's  expense.     He  shall  reside  at  thefice  in  the 
Capital,  and  keep  his  office  open  daily,  Sundays  and  holidays  ex- 
cepted. 

§  78.  He  shall  furnish  to  all  applicants,  upon  the  payment  of    He  shaii 
the  prescribed  fees,  copies  of  all  records  and  public  documents  ofTecordT^ 
within  his  office,  and  shall  attach  the  Great  Seal  of  the  State  to 
such  transcripts  as  the  Governor  or  General  Assembly  may  direct. 

§  79.  He  shall  receive  no  perquisites  for  any  official  act,  but  the     He  siiaii 
fees  prescribed  shall  be  collected  by  him,  and  paid  into  the  State  quHtes.^*^^ 
Treasury. 

§80.  [The  offices  of  Secretary  of  State  and  Surveyor  General  sec.of  state 

T1T170  f  rn  and  Survev- 

are  consolidated,  and  the  oecretary  of  State  is  required  to  discharge  ^^    General 

,  ■*■  "     consolidated 

the  duties  of  both  of  said  offices.^  (a) 

(a)  Acts  of  1865-6,  page  249 ;  Acts  of  1861,  page  72. 


22  PT.  1.— TIT.  3.— CHAP.  3.— Executive  Depaktment. 

Article  1.— The  Secretary  of  State. 


1.  It  is  his  duty  to  keep  the  Great  Seal  of  the  State,  the  origi- 

He  shall  nal  Acts  passed  bv  the  General  Assemble,  and  all  the  public  re- 
keep  the  seal  r  »'  ^    ^  ./  ?  1 

and  certain  cords  of  the  State  not  appertainina;  specially  to  other  offices.     He 

records    and  i  a.  o     a  j 

papers.  shall  look  to  and  preserve  the  records  and  papers  belonging  to 
the  Senate  and  House  of  Representatives.  He  shall  see  that  the 
original  Journals  of  both  Houses  are  deposited  in  and  kept  in  his- 
office. 

2.  He  shall  attest  all  grants,  and  other  public  documents  re- 
te8f%^rants  Gfjiiring  thc  Great  Seal  of  the  State,  issuing  from  the  Executive  of 

andotherpa-    V      q, 
pers.  LUc  OLdit;. 

Shan  keep      ^*  -^^  shall  keep  a  record,  in  proper  books,  of  all  grants  issued 
|,Sr'  "'  by  the  State. 

4.  He  shall  keep  safely  all  bonds  of  agents  appointed  to  dis- 
bondsl^  ^^^^  burse  public  money. 

5.  He  shall  provide  all  fuel,  lights,  servants,  or  other  contin- 
shaii  fur-  gcnts  ncccssary  for  the  General  Assembly  ;  also,  all  stationery  for 

nish    fuel,  .  pi*  •»       t-i- 

lights,    sta-  their  use,  and  shall  report  the  amount  oi  the  same  to  the  lUnance 

tionery,  etc., 

for  the  Gen-  Committee  of  the  House  of  Representatives   before  the  adiourn- 

eral  Assem-  ^  ^  "^     ^ 

^ly-  ment  of  the  session.     He  shall  perform  all  other  duties  required 

of  him  by  law,  or  which  necessarily  attach  to  his  office. 

§  81.  The   Great   Seal  of   the   State,   adopted  February    8th, 
Great  Seal  1799,  and  now  ou  dcposit  in  the  office  of  Secretary  of  State,  is  as 

to  be  kept  m  '  ^  ./  7 

his  office.        follows  I 

1.  It  is  of  silver,  and  the  size  of  two-and-a-quarter  inches  in 
Description  diameter. 

©f  Seal. 

2.  The  device  on  one  side  is  a  view  of  the  sea  shore,  with  a 
ship  bearing  the  flag  of  the  United  States  riding  at  anchor  near 
a  wharf,  receiving  on  board  hogsheads  of  tobacco  and  bales  of 
cotton,  emblematic  of  the  exports  of  this  State ;  at  a  small  dis- 
tance a  boat,  landing  from  the  interior  of  the  State,  with  hogs- 
heads, etc.,  on  board,  representing  her  internal  traffic ;  in  the 
back  part  of  the  same  side  a  man  in  the  act  of  plowing,  and  at 
a  small  distance  a  flock  of  sheep  in  different  pastures,  shaded  by 
a  flourishing  tree  ;  the  motto  thereon,  Agriculture  and  Commerce, 
1799. 

3.  The  device  on  the  other  side  is  three  pillars  supporting  an 
arch,  with  the  word  Constitution  engraven  within  the  same,  em- 
blematic of  the  Constitution,  supported  by  the  three  Departments 
of  Government — viz.,  the  Legislative,  Judicial,  and  Executive — 
the  first  pillar  having  engraven  on  it  ''Wisdom,"  the  second 
"  Justice,"  the  third    "  Moderation  ; "  on  the   right   of  the  last 


PT.  1.— TIT.  3.— CHAP.  3.— Executive  Department. 


23 


Article  1. — The  Secretary  of  State. 


pillar  a  man  standing  with  a  drawn  sword,  representing  the  aid 
of  the  military  in  the  defense  of  the  Constitution ;  the  motto, 
State  of  Georgia,  1799. 

§  82.  The  Secretary  of  State  shall  also  discharge  the  following 
duties  heretofore  devolving  on  the  Surveyor  General — to  wit : 

1.  To  keep  safely  all  the  records  of  plats  of  land  granted,  and    Eecordof 
to  report  the  condition  of  such  records  to  the  Governor  at  least 
once  a  year. 


plats. 


2.  To  record  all  plats  of  land  legally  authenticated  and  return-    to  record 

plfl-tS. 

ed  to  him  by  the  several  County  Surveyors,  or  other  surveyors 
acting  by  authority,  for  which  grants  are  sought,  and  to  attach  the 
originals  thereof  to  the  grants. 

3.  To  keep  in  his  office  correct  maps  of  all  the  different  surveys    shaii  keep 
(made  by  State  authority)  and  of  those  comprising  the  land  lotte-  y^ys. 
ries,  their  divisions  into  numbers,  districts,  sections,  and  the  like, 
having  for  every  district  a  separate  map. 

4.  To  keep  a  register  of  the. various   sfrantees   thereto,  and  the    shaiikeep 

I  o  o  'a  register  of 

dates  of  the  grants.  grantees. 

5.  To  keep  correct  maps  of  all  surveys  of  rivers,  harbors,  Must  keep 
swamps,  or  land,  made  by  the  special  direction  of  the  General  As-  veys  of  aii 

,  ,  rivers,  etc. 

sembly. 

6.  He  shall,  when  necessary,  contract  for  the  execution  of  new    May  have 

•  r»  •  r»       T  T  1  •  "^'^^     maps 

maps,  or  the  re-execution  of,  or  repau'S  of,  old  maps,  subiect  to  the  made,    and 
ratification  of  the  General  Assembly.  paired. 

7.  He  must  certify  under  his  official  seal,  as  the  Comptroller    Must  give 

n  1     '         T  t     •         n  •  ^/^/^  COpleS  Of  pa- 

(jrenerai  is  directed  in  Section  100.  pers. 

§  83.  He  shall  not,  directly  or  indirectly,  be  interested  or  enga-  shaii  not 
ged  in  the  purchase  and  sale  of  wild  lands  on  speculation,  on  pain  \wknands.^^ 
of  removal  by  the  Governor  or  the  General  Assembly. 


ARTICLE  II. 

THE     STATE     TREASURER 


Section^. 

84.  Treasurer's  bond. 

85.  His  rights  and  duties. 

86.  His  duties  specified. 

87.  His  office  subject  to  inspection. 


Section. 

88.  Must  settle  with  successor — when. 

89.  How  dealt  with  on  failure  to  settle. 

90.  He  shall  keep  a  book  of  State  bonds. 

91.  May  have  a  clerk — salary. 


84.  The  State  Treasurer  must  give  a  bond,  conditioned  the    Trea 


same  as  that  of  the  Secretary  of  State,  for  the  sum  of  two  hun-  bond. 


must     give 


24  PT.  1.— TIT.  3.— CHAP.  3.— Executive  Department. 

Article  2. — The  State  Treasurer. 

dred  thousand  dollars,  and  subject  to  the  same  rules  and  regula- 
tions. ♦ 

§  85.  His  rights  and  duties  are  the  same  as  those  of  the  Secre- 
His  rights  tary  of  State,  set  forth  in  Sections  77  and  78,  except  the  use  of 

and     duties     ,^  ctiTTin  • 

same  as  tiie  the  Great  Seal.     He  shall  receive  no  perquisites  for  anv  official 

Secretary  of  «  .  -^         -"■  '^ 

State.  act,  but  the  lees  prescribed  shall  be  collected  by  him  and  paid  into 

the  State  Treasury. 

§  86.  It  is  moreover  the  duty  of  the  State  Treasurer — 
O..  To  receive  and  keep  safely  all  the  money  which  shall  be  paid 
— "how'^ke^t  *^  ^^"^  ^^  behalf  of  the  State,  [giving  certificates  therefor,  which 
and  disburs-  certificates  shall  specially  set  forth  the  amount,  on  what  account, 
and  by  whom  paid,  and  shall  be  lodged  as  vouchers  in  the  Comp- 
troller's   office,]    (a)   and  to  pay  out  the  same,    only  upon    the 
warrants    of   the    Governor,   when    countersigned   by  the  Comp- 
troller General,  excepting  the  drafts  of  the  President  of  the  Sen- 
ate and  Speaker  of  the  House  of  Representatives,  for  the  sums 
due  to  the  members  and  officers  of  their  respective  bodies. 

2.  To  keep  in  his  office  a  book,  in  which  shall  be  entered  all 
Shall  keep  a -warrants  drawn  on  him  bv  the  Executive,  stating  in  whose  favor 

book  of  war-  •'  ^  ^ 

rants  drawn  drawn,  the  date,  the  amount  thereof,  and  to  what  fund  charged, 

on  him.  3-7  7  o      7 

and  to  retain  and  file  away  carefully  all  such  warrants. 

3.  To  keep  annually  an  account  of  all  taxes  that  may  be  due 
His  duty  as  and  Unpaid  by  the  several  chartered  banks,  and  to  enforce  the 

toanaccount         tt.  ^  r»  it  it  '        r  i  i 

of  taxes.  collection  thereoi,  agreeable  to  the  laws  m  lorce  ;  also  to  keep  an 
account  of  all  taxes  paid  into  the  Treasury  annually  by  the  Tax 
Collectors  of  the  several  Counties.  An  abstract  of  these  accounts 
must  be  laid  before  the  Governor. 

4.  And  preceding  each  annual  session,  he  must  submit  to  the 
Must  sub-  Governor  detailed  estimates  of  the  probable  receipts  and  expendi- 

m'.t  estimate  ••■  *■  '■ 

of  probable  turcs,  for  the  next  fiscal  vear,  stating  the  sources  of  income  and 

receipts  and  '  ^  ^  o 

expenditure.  ^]r^Q  probable  amouuts  to  be  received  therefrom ;  also  the  objects 
of  appropriation  and  the  probable  necessities  of  the  Treasury. 

5.  To  pay  all  funds  pledged  to  the  payment  of  the  public  debt 
Must  pay  Or  interest  thereon,  or  to  any  object  of  education,  and   to  these 

pledged     or  i  i    •  •  i  n  . 

appropriated  objccts  ouly,  aud  lu  nowisc  to  any  other  purpose ;  all  payments 
per  objects,  from  the  Treasury  shall  be  paid  from  the  fund  appropriated  for 
such  purpose,  and  not  from  any  other. 

6.  At  the  end  of  every  quarter  of  the  year  to  make  a  written 
Must  make  report,  on  oath,  to  the  Governor,  of  the  several  amounts  received 

quarterly  re-        •'•  ^ 

ports  to  the  \)j  him  during  the  three  months  preceding  such  report. 

(a)  Acts  of  1861,  p.  81 ;  Cobb's  U.D.,  pp.  1023-33. 


PT.  1.— TIT.  3.— CHAP.  3.— Executive  Department.  25 

Article  2. — The  State  Treasurer. 

7.  To  keep  safely  the  scrip  for  bank   stock,  the  State  bonds,    shaiikeep 
and  other  evidences  of  the  Educational  Fund,  and  manage  and  bank^gtoS', 
control  the  same  for  the  purposes  to  which  they  are  pledged.     He  ^*^* 
may,  under  the  direction  of  the  Governor,  deposit  all  funds  set 

apart  for  the  purpose  of  Education,  or  any  other  purpose  not  re-    under  the 

•ir.-  .  1  Tiii-c^  Governor's 

quired  for  immediate  use,  in  any  chartered   bank  of  this  State,  direction,  he 

-  •'       ^  .  I2i3.y  deposit 

biect  to  his  draft  as  Treasurer,  and  with  the  Governor  make{"nds  in 

V  '  bank. 

such  contract  with  said  bsenk  for  the  use  of  such  funds  as  may 
be  beneficial  to  the  State. 

8.  He  shall  not,  under  any  circumstances,  use  himself,  or  allow  shaiinotuse 

'  '^  .  '  the  funds  of 

Others  to  use,  the  funds  of  the  State  in  his  hands;  and  for  every  the  state, 
violation  of  this  section,  he  is  liable  to  the  State  for  the  sum  of 
five  hundred  dollars  as  a  penalty,  or  a  forfeiture  of  salary,  if  said    Penalty. 
forfeiture  will  pay  the  penalty  incurred. 

9.  He  is  authorized  to  pay  all  ofiicers  of  the  State  whose  sala-  He  naay  pay 
lies  are  fixed  by  law  seventy-five  per  cent,  of  the   amount  for  of    salaries* 
which  service  has  actually  been  rendered  at  the  date  of  said  pay-  warrants. 
nient,  taking  receipts  for  the  same,  which  shall  be  his  vouchers 

and  offsets  to  Executive  warrants  for  said  salary  ;  and  may  also 
pay  members  of  the  General  Assembly  in  the  same  way,  when 
their  accounts  are  duly  audited,  unless  prevented  by  the  resolution 
of  either  or  both  branches  of  the  General  Assembly. 

10.  He  shall  annually  report  to  the   Governor  the  amount  of  shaii  report 

J  -t  amount  and 

the  State  debt  bearing  interest  for  each  year,  distinguishing  be-  fSic"debt° 
tween  the  sterling  bonds,  if  any,  and  federal ;  the  rate  per  cent, 
paid  upon  each  kind  of  bonds ;  the  amount  upon  each  rate  paid  ; 
also  the  exchange,  if  any,  and  the  aggregate  amount  of  interest 
paid  in  each  year,  and  the  amount  due  and  unpaid  at  each  semi- 
annual payment,  and  the  reasons  for  such  non-payment. 

11.  When  he  pays  the  interest  or  principal  of  the  State  debt  JlJ^lhe'^g^x^ec- 
upon  a  warrant  issued  in  his  favor,  he  shall  deposit  in  the  Execu-  "^'^'^  ^^^® 

A  •  '  I.  coupons     or 

tive  Ofiice  coupons,  or  bonds,  on  which  the  payments  are  made,  ^^^^^• 
there  to  be  marked  "  Paid"  and  filed  away,  subject  to  the  order  of  the 
General  Assembly. 

12.  He  shall  not  pay  any  appropriation  due  and  not  called  for     shaii  not 

.  .  ,..  p,  .  P^y     appro- 

within  six  months  after  the  expiration  of  the  political  year  for  pri^tionsnot 

_    -^  i  ./  called  forwi- 

which  it  is  appropriated,  but  it  reverts  to  the  general  fund  in  the  J!""  ^  si'*'^^ 
Treasury. 

13.  All  reports  required  to  be  made  to  the  Governor  by  the 
Treasurer  shall  be  made  annually,  on  or  before  the  15th  of  Octo- 


26  PT.  1.— TIT.  3.— CHAP.  3.-— Executive  Department. 

Article  2.— The  State  Treasurer, 
ber,  and  shall  be  filed  in  his  office,  and  by  him  laid  before  the 

All  reports  ^  .  . 

made  to  the  General  Assembly  in  connection  with  his  first  annual  message 

Governor  to  "^  " 

be  filed.       thereafter. 

§  87.  The   Governor  may   exercise  a  general  superintendence 

Treasurer's  over  the  offic(^  of  State  Treasurer  not  inconsistent  with  the  pro- 
office       sub-      ..  •IIP'II  T 

ject  to  Gov-  Visions  prescribed  tor  it  by  law,  and  may,  at  any  time,  appoint 

spection.      somc  Competent  person  to  examine  into  the  state  of  such  office,  for 

any  period  of  time  he  may  designate, 'and  report  its  condition  to 

Governor  him,  and  sliall  have  power  to  require  of  such   Treasurer  to  with- 

may      order 

deposit  to  be  draw  the  public  funds  from  any  place  of  deposit  deemed  unsafe  by 

withdrawn.        ^  ^  ./    i  i  ./ 

him. 

Treasurer      §  88.  If  the  Treasurer  resign,  or  is  removed,  he  must,  within  ten 

must^se\tie  days  thereafter,  state  his  accounts  and  deliver  the  books,  papers, 

cessor  in  ten  and  moucy  of  the   Treasury  to  his  successor,  taking  his  receipt 

_    \   ,,    therefor,  and  the  Comptroller  must  record  a  statement  of  such 

Comptroller  '  ^ 

Su*ie^ment  Settlement  and  receipt  in  his  office,  and  report  the  same  forthwith 
"n  w/oS2?.'  to  the  Governor. 

§  89.  If  the  Treasurer  fail  to  comply  with  the  provisions  of  the 
HowTreas-  preceding  section,  or  if  he  dies,  absconds,  or  absents  himself  with- 
withwhenhe  out  sufficicut  causc  for  as  long  as  thirty  days,  the  Comptroller, 

is  in  default.  ..  ^,  ...  ,,...  ,,. 

alter  giving  ten  days  notice,  by  publication  m  some  public  gazette 
at  the  seat  of  Government,  must  proceed,  and  in  the  presence  of 
any  person  who  may  appear  in  behalf  of  the  late  State  Treasurer, 
to  state  his  account  and  deliver  the  books,  papers,  money,  and  all 
other  appurtenances  of  the  office,  to  his  successor,  taking  his  re- 
ceipt therefor,  and  record  and  file  such  statement  and  receipt  in 
his  office,  and  report  forthwith  to  the  Governor. 

§  90.  The  Treasurer  shall  keep  a  book  in  which  he  shall  record- 
shaii  keep  a  a  description  of  all  the  bonds  heretofore  or  hereafter  issued  by 
bonds,    and  tliis  State,  and  in  said  book  shall  note  all  bonds  paid,  and  the  date 

their  pay-  .  pi* 

ment.  of  payment,  and  all  coupons  paid  on  each,  and  the  date  of  their 

payment. 

§91.  [The  Treasurer  is  authorized  to  employ  a  suitable  person 
May  appoint  as  clerk  to  assist  him  in  the  duties  of  his  office,  and  to  remove 
clerk.  him  at  his  pleasure ;  and  such  clerk  shall  receive  a  salary  of  six- 

saiary.      tccu  hundred  dollars  per  annum.]  (a) 

(a)  Acts  of  1863-4,  page  77 ;   Acts  of  1865-6,  page  250. 


PT.  l.~TIT.  3.— CHAP.  3.— Executive  Department. 


27 


Article  3. — The  Comptroller  General. 


ARTICLE  III. 


OF     THE     COMPTROLLEE     GENERAL. 


Section. 

92.  Comptroller's  bond. 

93.  His  rights  and  duties. 

94.  His  duties  specified. 

95.  Anniial  report  to  the  Governor. 

96.  His  authority. 

97.  Improvements  in  revenue  laws. 

98.  Book  of  appropriations  and  warrants. 


Sectiox. 

99.  Bonds  of  Tax  Collector  and  Receiver. 

100.  Must  give  copies  of  office  papers. 

101.  Delivery  of  office  to  successor. 

102.  Additional  fees. 

103.  Additional  duties. 

104.  Shall  not  speculate  in  wild  lands. 

105.  May  have  clerk — salary. 


His  rig-lits 
and  duties. 


Shall  keep 
an     account 


^  92.  The  Comptroller  General  must  siive  a  bond,  conditioned     Bond  of 

\>TO(  f^    c-t  (^         1  n  Comptroller 

the  same  as  that  of  the  Secretary  of  State,  for  the  sum  of  twenty  General. 
thousand  dollars,  subject  to  the  same  rules  and  regulations. 

§  93.  His  rights  and  duties  are  the  same  as  those  of  the  Secre- 
tary of  State,  set  forth  in  Sections  77  and  78,  except  the  use  of 
the  Great  Seal.  He  shall  receive  no  perquisites  for  any  official 
act,  but  the  fees  prescribed  shall  be  collected  by  him  and  paid  into 
the  State  Treasury. 

§  94.  It  is  moreover  the  duty  of  the  Comptroller  General — 

1.  To  keep  an  account  showing  the  several  appropriations  author-  ofappropria 
ized  by  law,  the  time  when  the  same  are  drawn  from  the  Treasury, 

iii  whose  favor,  and  to  what  fund  charged. 

2.  To  [examine,  check,  and]  (a)  countersign  all  warrants  upon  countersign 
the  Treasury  drawn  by  the  Governor,  [President,  and  Speaker,  ^^^"^^  ^* 
and  charge  the  amount  thereof  to  the  funds  on  which  they  may 

be  respectively  drawn,  previous  to  their  being  presented  to  the 
Treasurer  for  payment.]  (b) 

3.  To  audit  all  accounts  against  the  State,  and  allow  or  reiect    Must  audit 

^  *^  accounts  vs. 

the  same  before  they  are  submitted  to  the  Governor.  the  state. 

4.  To  examine  all  the  digests  of  tax  returns  forwarded  to  his  Mustexam- 

othce  by  the  several  Keceivers,  and  note  and  correct  all  mistakes  tify  tax  di- 
gest. 
therein,  and  notify  the  Collector  of  such  corrections. 

5.  [To  settle  with  the  several  Tax  Collectors  and  all  other  per-  Mus»settie 
sons  indebted  to  the  State,  and  in  all  cases  where  payments  may  lectors,  and 
be  made  at  the  Treasury  to  give  receipts  for  the  same,  founded 

on  the  Treasurer's  certificates.]  (c) 

6.  To  collect  all  amounts  due  from  defaulting  Collectors  of  Taxes,  P«"^«*^  7^^* 

o  7  ]s  due  from 

and  issue  execution  therefor,  against  them  and  their  securities. 


(a)  Acts  of  18G1,  pai^e  81,  and  Cobb's  Digest,  pages  1022-23.  (b)  Acts  of  1861, 
page  81,  and  Cobb's  Digest,  pages  1022-23.  (c)  Acts  of  18G1,  page  81,  and  Cobb's 
Digest,  pages  1022-23. 


defaulting 
Tax  Collec- 
tors. 


28  PT.  1.— TIT.  3.— CHAP.  3.— Executive  Department. 

Article  3.— The  Comptroller  General. 


7.  To  see  that  no  draft  or  warrant  be  countersigned  bj  him,  to 
Comptroller  jbe  paid  out  of  any  appropriated  fund,  after  the  same  has  been 

andTreasur-  ■'•  ,/        i.  l       x  7 

er  liable  for  exhausted ;  and  in  such  case,  or  in  any  case  of  illesral  payments 

all     uioneys  '      <.  '  ^  or*/ 

paid  impro-  fj-Qj^rj  the  Trcasurj  upon  warrants  countersigned  by  the  Comp- 
troller, he,  as  well  as  the  Treasurer,  with  all  their  securities,  are 
jointly  and  severally  liable  upon  their  several  bonds  for  the  repay- 
ment->of  such  amounts,  with  all  expenses  of  prosecution,  to  the 
State. 

8.  To  issue  his  draft,  payable  to  the  Treasurer,  for  the  amounts 
draftfortax-  of  all  dividcuds  or  taxes  due  by  chartered  banks  in  this  State,  or 

es  due  from  •  p    p        •  i         i  i  r»    -i  ^ 

banks;  if  not  by  the  acrencics  01  loreio-n  banks,  and  on  lailure  to  pay  the  same, 

paid,     issue     "^  .  ^  .  .  ^  '  ^    *^  ' 

execution,    to  issuc  exccution  thcrcfor. 

9.  To  receive  and  keep  safely  and  collect  all  evidences  of  debt 
receive  all  ^^^q  ^q  ^Jjq  State  from  any  other  source  than  taxes,  and  pay  over 

moneys  due  «'  7  r    */ 

Treas(frer^^  the  Same  to  the  Treasurer  as  soon  as  received. 

10.  To  notify  the  Attorney  and  Solicitors  General,  or  any  other 
q5re™r^'^)oS  Attomcy,  iu  his  discretion,  of  all  executions  against  defaulting 
ney™ami"so-  Tax  CoUcctors,  and  require  of  them  annually  a  report  of  the  state 
^ici^ois   en-  ^^  condition  of  such  executions   prior  to  the  session  of  each  Gen- 
eral Assembly. 

Sfnds^^s^ncl      11-  To  kccp  a  book  in  which  to  enter  all  bonds  taken  since  the 
odSnTis.^'*"  third  day  of  March,  1856,  and  to  file  the  originals  in  his  office. 
Shall  cause      12.  To  havc  made  suitable  indexes  to  the  record  books  in  his 

books  to  be     ^y* 
indexed.         OlllCe. 

13.  To    audit   the   accounts    of   all   agents   disbursing   public 

accounts.        monCV. 

Shall  annu-      ^  ^^*   "^0  make  a  report  annually  to  the  Governor,  showing — 
to  W^Gov-      ^'  ^^  account  current,  from  his  books,  between  the  Treasurer 
ernor.         ^^^  ^]^g  State   of  all  reccipts  and  payments,  including  amounts 

paid  on  the  drafts  of  the  President  and  Speaker,  as  reported  to 

him  by  the  Treasurer. 

2.  A  statement  of  the  taxes  paid  to  the  State  by  each  of  the 
b  "^'^^fa^^^^h  bounties,  as  appears  by  the  digest  thereof,  and  the  Counties  whose 
County.       Collectors  are  in  default,  and  the  amount  of  such  default. 

3.  A  statement  of  all  evidences  of  debt  due  the  State  and  un- 
to'the  stfte^  collectcd,  wliich  may  remain  in  his  office,  the  condition   of  the 

same,  the  name  of  the  Solicitor  or  Attorney  having  it  in  charge, 
and  his  report  of  it. 

4.  A  statement  of  the  Educational  Fund  of  the  State,  its  an- 
al FaS^'^'  nual  income,  the  amounts  paid  out,  when,  and  to  whom. 


PT.  1.--TIT.  3.— CHAP.  3.— Executive  Department.  29 

Article  3. — The  Comptroller  General. 

5.  A  statement    of   the  condition   of    the  public   debt  of  the 
State,  the  amount  of  interest  paid,  and  the  fund  from  which  paid. 

6.  A  statement  of  the  accounts  of  all  officers  and  agents  dis- 
bursing public  money,  and  the   names  of  such  as  have  failed  to  ^f^^^'J^'^jJ^e® 
comply  "with  the  laws  relating  to  their  offices  and  appointments,  ^sents. 
and  the  several  sums  for  which  they  are  in  default.  salaries  and 

7.  The  salaries  and  pay  of  all  officers  of  the  State.  IZ'^  "®- 

8.  The  incidental  expenses  of  the  General  Assembly,  Executive    incidental 

••■  "^  expenses. 

and  Judicial  Departments. 

9.  All  sums  paid  or  due  to  individuals  by  special  contract.  onSrSts^ 
§  96.  He  has  authority — 

1.  To  settle  up  the  business  of  the  office  for  previous  years.       busines?!^ 

2.  To  allow  Receivers  and  Collectors  of  Taxes  their  commis-   aiso,  toai- 

1  T-i  1  11  iiiinirr»        low  commis- 

sions, and  to    balance  the  tax  books  and  other  books  oi  the  omce  sionstoiax 

,  Collectors. 

.  upon  satisfactory  proof  of  payment  or  settlement. 

3.  To  collect  all  unpaid  taxes  of  previous  years.  paid  taxes. 
§  97.  In  his   annual  report  the  Comptroller  General  shall  sug-     He  may 

1      .  •  1         T->  T  1  •  •  sug.ffost  im- 

ffest  such  improvements  m  the  Kevenue  Laws  as  his  experience  provements 

^  .  ^  in  Eevenue 

and  observation  may  approve.     His  report  must  be  made  at  the  i-aws. 
time  the  Treasurer's  is,  and  likewise  communicated  to  the  General 
Assembly. 

§98.  He  must  keep  in  his  office  a  well  bound  book  in  which    Must  keep 

.  111"!  1  ir»n  n       11  books  of  ap- 

shall  be  entered,  m  alphabetical  order,  the  full  amount  of  all  an-  propriations 

u  n  d    w  a  r  - 

nual  appropriations,  setting  forth  the  amounts  under  their  several  rants. 
heads  ;  all  warrants  that  he  may  check  and  pass,  together  with  the       , 
fund  on  which  it  is  drawn,  the  time,  amount,  and  in  whose  favor 
drawn ;  and  make  all  entries  necessary  to  a  true  exhibit  of  the 
finances  of  the  State. 
t^a^/A-f/L^  99.  He  must  keep  a  book  in  which  to  enter  all  bonds  taken  of    Must  keep 
f  7*^'  ^  Tax  Collectors  and  Receivers,  and  keep  the  same  on  file  in  his  coiiectorar/d 

'jy/y  rt^  Receiver's 

T^f^  office.     He  shall  collect  all  unpaid  taxes  of  previous  years  at  a  ^on^is- 
compensation  of  five  per  centum  on  the  amount  collected. 

§  100.   He  must  certify  under  his  official  seal,  at  all  times  when    Must  give 
necessary  for  the  public  use,  and  on  application  and  payment  of  pefs!^'^^^*' 
his  legal  fees  therefor,  for  private  use,  copies  of  any  papers  kept 
in  his  office. 

§101.  If  the  Comptroller  resigns,  or  is  removed,  he  must  im-   Mustsettie 

Ti  T  .  11T  !•  •  "With  succes- 

mediately  state  his  account  and  deliver  every  thing  pertamms;  to  sor,  and  de- 

.  •/or  o  liver  up  ere- 

his  office  to  his  successor;  or  if  he  dies,  absconds,  or  absents  him- '■^t^'i"i?per- 

tainingtohia 

self  for  as  long  as  thirty  days  without  the  Governor's  permission,  *>®'^- 


30  PT.  1.— TIT.  3.— CHAP.  3.— Executive  Department. 


Article  3. — Tlie  Comptroller  General. 


the  Governor  may  without  delay  declare  the  office  vacant,  supply 

When  office  \  \  5        rr  J 

m^j  be  de-  his  place  by  appointment,  examine  the  condition  of  his  office  and 

clared    vac-  ^  t.       x  x 

ant.  deliver  over  to  the  appointee. 

§  102.  He  shall,  in  addition  to  his  salary,  have  ten  per  cent,  on 
Additional  all  sums  he  may  collect,  except  for   taxes  which  necessarily  was 
the  duty  of  a  predeces^r  to  coUect,  and  which  was  not  done. 
§  103.  The  Comptroller  General  must  make  out  for  the  use  of 

What  his  ii^Q  General  Assembly- 
report  must  t' 

contain.  ^    j^  table  Containing  the  taxable  property  and  other  items  on 

the  tax  digest  of  each  County  for  the  year  in  which  he  makes  his 
annual  report. 

2.  A  table  annually  of  the  polls  in  each  County  for  the  year 
immediately  preceding  his  report ;  the  number  of  voters  in  each 
County  at  the  general  election  next  preceding  his  report ;  the 
number  of  children  in  each  County  returned  for  participation  in 
the  Educational  Fund  and  the  amount  drawn  by  each  County  from 
said  fund  ;  the  amount  drawn  by  each  County  for  pay  of  members 
of  the  General  Assembly  ;  the  total  amount  drawn  by  each  County 
from  the  Treasury,  and  the  total  amount  of  net  tax  paid  into  the 
^  Treasury  for  the  year  preceding  by  each  County.     Also,  to  furnish 

such  other  statistical  information  connected  with  his  office  as  may 
be  useful  to  the  General  Assembly.  The  annual  reports  of  said 
officer  and  of  the  Treasurer  must  contain  only  the  available  funds 
or  cash  in  the  Treasury  as  the  balance  therein.  They  are  also 
required  to  report  separately  and  under  the  head  of  "Assets  be- 
longing to  the  State,"  all  bank  or  railroad  stocks  or  bonds,  or 
other  assets ;  the  State  Road  to  be  reported  without  any  stipu- 
lated value.  Such  officers  are  authorized  to  make  such  transfers 
or  alterations  on  their  books  as  are  necessary  to  comply  with  the 
preceding  section.  The  items  "  Darien  Bank  Bills,"  Western  and 
Atlantic  Railroad  script,  and  uncurrent  funds  hitherto  reported, 
must  be  sealed  up,  remain  in  the  Treasury,  and  be  left  out  of  all 
future  annual  reports  of  said  officers. 

§  104.  He  shall  not,  directly  or  indirectly,  be  interested  or  en- 
shaii  not  gaged  in  the  purchase  and  sale  of  wild  lands  on  speculation,  on 

wild  lands,   pain  of  removal  by  the  Governor  or  the  General  Assembly. 

§  105.  [He  is  allowed  a  clerk,  to  be  appointed  and  removable  by 

May  appoint  bim ;    and  such  clerk   shall  receive  an  annual  salary  of  sixteen 

and   remove  *^ 

clerk.  hundred  dollars.]  (a) 

(a)  Acts  of  1862-3,  p.  56,  and  Acts  of  1865-6,  p.  250. 


PT.  1.— TIT.  3.— CHAP.  4.— Executive  Department. 


31 


Article  1. — State  Librarian. 


CHAPTER    IV. 

OTHER    OFFICERS    CONNECTED    WITH    THE    EXECUTIVE 

DEPARTMENT. 


Article  1. — State  Librarian. 

Article  2. — Qovernors  Messenger  and  State  House  Guard. 


ARTICLE  I. 


STATE     LIBRARIAN. 


Section. 

106.  Librarian's  bond. 

107.  He  must  keep  the  State  Library. 

108.  He  must  preserve  the  books,  etc. 

109.  He  shall  distribute  the  laws,  etc. 

110.  He  must  keep  a  catalogue  of  books. 


Section. 

111.  He  must  take  and  file  receipts,  etc. 

112.  He  must  exchange  for  reports,  etc. 

113.  His  office  is  subject,  etc. 

114.  He  must  deliver  contents  of  office. 


§  106.  The  Librarian  must  give  a  bond  in  the  sum  of  two  thou-    Must  give 
sand  dollars,  with  good  security,  payable  to  the  Governor  and  his 
successors  in  office,  conditioned  for  the  faithful  performance  of  his 
duty  as  State  Librarian. 

§107.  The  Library  belonging  to  this  State,  with  such  additions    Must  keep 
as  may  be  hereafter  made  from  any  quarter,  together  with  all  Library. 
copies  of  the  Laws,  Journals,  or  other  books  published  or  purchased 
by  the  State,  shall  be  kept  in  appropriate  apartments  at  the  Capi- 
tol building  designated  by  the  Governor,  under  such  rules  and 
regulations  as  he  may  from  time  to  time  prescribe. 

§  108.  It  is  his  business  to  preserve,  keep  in  order,  and  protect    Must  pre- 
said  Library,  to  keep  the  same  open  for  the  inspection  of  all  citi-  ryfo^inspS' 
zens  of  the  State,  and  to  discharge  such  other  duties  in  connection 
with  the  Library  as  may  be  required  of  him  by  law  or  the  Gov- 
ernor of  the  State. 

§109.  The  distribution  of  the  Laws  and  Journals,  Reports  of .  .?^^^^^  <^^s- 

■'  ^  tribute  Laws 

the  Supreme  Court  Decisions,  Laws  of  the  United  States,   and  an*d^TtS 
all  other  books  required  to  be  distributed  to  the  several  Counties  ^°^^^- 
(of  the  State)  or  to  be  sent  to  other  States,  shall  be  made  by  the 
Librarian,  under  the  direction  of  the  Governor,  in  pursuance  of  the 
provisions  of  the  law  in  respect  thereto. 

§110.   He  shall  make  out  and  keep  on  hand  a  catalogue  of  all  Mustkeepa 

•*•  °  catalogue  oi 

the  books  in  the  Library — to  be  amended  without  unnecessary  de-  ^^^^^' 


32  PT.  1.— TIT.  3.— CHAP.  4.-~Executive  Department. 

Article  2. — Governor's  Messenger  and  State  House  Guard. 

lay  from  time  to  time,  as  he  may  obtain  new  books  or  dispose  of 
old  ones — which  shall  be  printed  and  kept  in  his  office  in  two  or 
more  conspicuous  places. 

§  111.  It  is  hisr  duty  to  receive  from  the  State  Printer  the  Laws 
Must  take  and  Joumals,  and  when  distribution  is  made  to  the  various  Coun- 

and  file  re- 
ceipts   forties,  to  take  from  Clerks  of  Courts  or  other  distributees  their  re- 
books  distn-       y 

buted.  ceipts  therefor;  likewise  all  other  books  required  to  be  distributed. 
He  must  receive  and  take  receipt  on  the  distribution,  and  keep  in 
his  office  a  file  of  such  receipts. 

§  112.  He  must  correspond  with  the  proper  authorities  of  other 

Mnst  effect  ^  .         . 

exchange  of  Statcs  who  publish  the  reports  of  their  hio-hesfc  appellate  tribunal, 

Keportswith       .  .  .  on  7 

other  States,  "vvith  a  vicw  to  exchange  theirs  for  our  Supreme  Court  Reports. 

Hi  office  ^  ^^^'  His  office  is  under  the  general  supervision  of  the  Gov- 
the^Govern°  ^mor,  who  may  at  any  time  appoint  a  competent  person  to  exam- 
sioL^*^^^^^^  ine  into  and  report  its  condition  to  him. 

§  114.  If  the  Librarian  resign,  or  be  removed,  he  must,  within 

Mustdeiiv-  ten  davs  thereafter,  deliver  the  books,  papers,  and  other  contents 

er  books  and  ,     ♦^  ,  .  . 

contents  of  of  his  officc  to  his  succcssor,  taking  his  receipt  therefor,  which 

ofiice  to  sue-  '  o  I  7 

cesser.  rnust  bc  filed  and  recorded  in  the  Executive  Office  ;  and  if  there  is 
any  deficiency  in  the  books  received  by  him,  or  other  damage  done, 
the  Governor  shall  have  suit  brought  on  his  bond. 


ARTICLE  II. 

GOVEHNOR'S  MESSENGER  ANP   STATE   HOUSE   GUARD. 


Section. 

115.  Governor's  Messenger. 

116.  His  duties. 

117k  Appointment  of  special  Messenger. 


Section. 

118.  Capitol  guards— their  duties. 

119.  Number  may  be  changed. 


§  115.  The  Governor  may  in  his  discretion,  as  the  exigency 

Governor  may  require,  appoint  a  Messenger  to  the  Executive  Department, 

Messenger,    or  havc  that  duty  performed  by  some  other  employee  about  the 

State  House,  engaged  by  him  under  the  general  authority  granted 

to  him,  and  when  so  performed  it  must  be  done  without  additional 

compensation. 

§  116.  When  there  is  a  Messenger,  he  shall  perform  such  duties 
Duties  of  fQj.  the  Executive  Office,  the  other  officers  in  the  State  House,  and 

Messenger.  "  ' 

such  other  service  connected  with  the  State  business  at  the  Capitol 
as  the  Governor  shall  prescribe,  and  be  governed  by  such  rules 
and  regulations  as  he  may  adopt. 


PT.  1.— TIT.  3.— CHAP.  5.— Executive  Department. 


33 


Article  1.— Eligibility,  Qualification,  and  Commission  of  Officers  and  Vacation  of  Offices. 
§  117.  When  there  is  no  Messenger,  the  Governor  may,  if  oc-     Governor 

,        ,  T  .  T  ^  p  -1  ™ay  employ 

casion  should  require,  employ  some  person  to  periorm  any  special  persons  for 
service,  for  a  reasonable  compensation,  such  as  is  the  duty  oi  the  vice. 
Messenger  to  perform,  but  which  can  not  be  performed  by  the 
person  acting  as  such. 

§118.  The  Governor  shall  appoint  a  guard  for  the   Capitol  ^^^;\^j;^  ^Jj 
buildings,  including   the  captain  of  the  guard,  whom   he   shall  ^^^""  ^^^^^^• 
designate  as  such,  whose  business  it  shall  be  to  remain  in  said 
buildings  from  sundown  until  sunrise  of  the  next  day,  every  night 
in  the  year,  and  on  Sundays  and  holidays,  to  keep  watch  over  the 
same  and  protect  them  from  fire  or  intruders. 

§119.  The  Governor  has  power  to  keep  the  number  of  said    Number  of 

■••  ^  _      ■*■  guard  may 

guard  full,  when  lessened  by  providential  or  other    cause,   and  be  changed. 
adopt  such  rules  and  regulations  in  regard  to  them,  as  in  his  judg- 
ment the  public  service  may  demand. 


CHAPTER    V. 

GENERAL  REGULATIONS  AS  TO  ALL  OFFICERS  AND  OFFICES. 


Article  1. — Of  Eligihility^  Qualifications,  and  Commissions, 
Article  2. — Official  Oaths, 

Article  3. — Official  Bonds  a7id  Herein  of  BiscTiarging  Sureties. 
Article  4. — Of  Delivery  of  Boohs,  etc,  to  Successor. 


ARTICLE  I. 

OF    ELIGIBILITY,   QUALIFICATION,  AND    COMMISSION    OF    OFFICERS 
AND    VACATION    OF    OFFICES. 


Section. 

130.  Persons  ineligible  to  civil  office. 

121.  When  ineligible,  the  next  highest. 

122.  Persons  elected,  failing  to  qualify. 

123.  Residence,  seal,  and  term  of  office. 

124.  Commissions  under  Great  Seal. 


Section. 

125.  Commissions  under  Executive  seal. 

126.  When  civil  offices  are  vacated. 

127.  Vacancy  in  Executive  Office. 

128.  Resignations  seiit  to  the  Governor. 


§120.  The  followins!;  persons  are  held  and  deemed  ineligible  to  Persons  in- 

«  elio-ible    to 

hold  any  civil  office  in  this  State,  and  the  existence  of  either  of  offices. 
the  following  state  of  facts  is  a  sufficient  reason  for  vacating  any 
office  held  by  such  person ;  but  the  acts  of  such  person,  while  hold- 
ing a  commission,  are  valid  as  the  acts  of  an  officer  de  facto — viz : 
3 


34  PT.  1.— TIT.  3.— CHAP.  5.— Executive  Department. 

Article  1. — Eligibility,  Qualification,  and  Commission  of  Ofl3cers  and  Vacation  of  Offices. 

1.  Persons  who  are  not  citizens  of  this  State,  nor  of  the  age  of 
Minors,     twentj-one  years  jbr  upwards. 

2.  All  holders  or  receivers  of  public  money  of  this  State,  or 
T^ose^refus-  ^^ij  County  thereof,  who  have  refused  when  called  upon,  or  failed 
mo^ney^"^^^^  after  reasonable  opportunity,  to  account  for  and  pay  over  the  same 

to  the  proper  officer. 

3.  Any  person  convicted  and  sentenced  finally  for  any  felony, 
mmaMurpi- ^"^^^^  the  laws  of  this  or  any  other  State,  involving  moral  turpi- 
*"^^-          tude,  the  offense  being  also  a  felony  in  this,  unless  restored  by  a 

pardon  from  the  proper  Executive,  under  the  Great  Seal  of  the 
State,  to  all  the  rights  of  citizenship. 

4.  Persons  holding  any  office  of  profit  or  trust  under  the  Gov- 
Tj.s.  officers  ernment  of  the  United  States  (other  than  that  of  Postmaster),  or 

/\T»       offir*pr^ 

under  other  of  either  of  the  several  States,  or  of  any  foreign  State. 

States.  . 

5.  Persons  of  unsound  mind,  and  those  who,  from  advanced  age 
Persons  in-  or  bodilv  infirmity,  are  unfit  to  discharsje  the  duties  of  the  office 

sane   or   in-  "^  "^  ,  ° 

firm.  to  which  they  are  chosen  or  appointed. 

6.  Those  who  have  not  been  inhabitants  of  the  State,  County, 
Those  whose  District,  or  Circuit  for  the  period  required  by  the  Constitution  and 

term  of  res-  '  r  i  ./ 

idenceis  in- ]awS  of   this  State, 
complete. 

7.  All  persons  from  any  cause  constitutionally  disqualified. 
wSis^uS-  ^^^  officers  are  eligible  to  re-election  and  re-appointment  and  to 
ified.          -j^^^i^  other  offices,  unless  expressly  declared  to  the  contrary  by  the 

All  officers  Constitution  or  laws. 

§  121.  If  at  any  popular  election  to  fill  any  office  the  person 
The  person  elected  is  incliofible  under  the  foreeroing  rules,  the  person  having 

having  next  -,  .    •,  i  r  i         •         t     m  -i  i 

highest  vote  tjie  ncxt  hisfhest  number  of  votes,   who  is  eligible,  whenever   a 

to  an  ineli-  °  t  ^ 

gibie  candi-  plurality  elects,  shall  be  declared  elected,  and  be  qualified  and 

ClubO  18  61GCt~  ■*■  *' 

u 'eKtr*^^  commissioned  to  such  office. 

§  122.  Persons  who  after  an  election  fail  to  comply  with  all  the 
A  person  prerequisites  of  the  law  in  order  to  obtain  commissions  or  certifi- 
faiiingtoob-  catcs  to   discharge  the  duties  of  the  office,  are  ineligible  to  re- 
mission,   is  election  at  the  election  held,  by  reason  of  such  failure,  for  the  same 

ineligible  on 
account     of  office, 
the  failure. 

§  123.  All  officers  of  this  State  must  reside  therein  at  such 
Officers  places  as  are  designated  by  law,  and  discharge  the  duties  of  their 

must  reside  ^  ••iiTf»i  i 

in  the  State,  office  Until  their  successors  are  commissioned  and  qualified;  and 

and  hold  of-  ^ 

ficc  until  all  officers  whose  certificate  of  records  or  other  papers  are  ad- 
successor  IS  -^    ^ 

qualified;  jjjjggjl^le  j^  evideucc  in  any  Court  in  this  State  must  have  and 

and       must  •/ 

—when.  ^^*^  keep  an  official  seal. 


PT.  1,— TIT.  3.— CHAP.  5.— Executive  Department.  35 

Article  1. — Eligibility,  Qualification,  and  Commission  of  Officers  and  Vacation  of  Offices. 

§  124.  The  following  officers  must  be  commissioned,  with  the  what  om- 
Great  Seal  of  the  State  annexed  thereto,  signed  by  the  Governor,  commission- 
and  countersigned  by  the  Secretary  of  State — viz:  Senators  and  Great  seai 

T»  .  •      ^  T     1  P     1       o  -I  M  .       Of  the  State. 

Representatives  m  Congress,  Judges  of  the  Supreme  and  Superior 
Courts,  Attorney  and  Solicitors  General,  Reporter  of  the  Supreme 
Court,  Secretary  of  State,  Treasurer,  and  Comptroller  General, 
and  all  military  officers  of  the  grade  of  general,  either  of  divis- 
ion or  brigade.  Those  of  all  Federal  and  Judicial  officers  above 
enumerated  must  be  on  parchment. 

§  125.  All  other  civil  officers  of  the  State  or  County  shall  be    what  offi- 

,  cers    to    be 

commissioned  under  the  seal  of  the  Executive  Department,  signed  commission- 

,  -^  '       o  g(j  under  the 

by  the  Governor,  and  countersigned  by  one  of  his  Secretaries,  ex-  seai  of  ex- 

»i  ^  o  J  7  ecutive   De- 

cept  Constables,  whose  election  shall  be  certified  by  the  Clerk  of  p^^*^"^®^*- 
the  Inferior  Court  of  the  County;  and  such  certificate  shall  oper- 
ate as  their  commission.  Ail  officers  of  the  militia  and  of  volun- 
teer companies,  battalions,  or  regiments,  regularly  incorporated  (of 
the  grade  of  lieutenant  or  higher),  shall  have  commissions  under 
the  seal  of  the  Executive  Department. 

•■•  Offices  are 

§126.  All  offices  in  the  State  are  vacated —  vacated  by 

death. 

1.  By  the  death  of  the  incumbent.  Byaccept- 

•^  ed    resigna- 

2.  By  resignation,  when  accepted.  *^^°- 

3.  By  decision  of  a  competent  tribunal  declaring  the  office  va-     By  judg- 

nient. 

cant. 

4.  By  voluntary  act  or  misfortune  of  the  incumbent,  whereby  ^  ^y  yoy^n- 

*^  J  7  J  tary  act,  or 

he  is  placed  in  either  of  the  conditions  specified  of  ineligibility  to  ^nde^Tg 
office,  which  shall  operate  from  the  time  the  fact  is  ascertained  and  JneuSMea^c- 
declared  by  the  proper  tribunal.  •  g^f  "^   *^ 

5.  By  the  incumbent  ceasing  to  be  a  resident  of  the  State,  or  By  a  faii- 
of  the  County,  Circuit,  or  District  for  which  he  was  elected.  In  cimbent^"o 
the  first  case  the  office  shall  be  vacated  immediately  ;  in  the  latter  the  faw  re- 
cases,  from  the  time  the  fact  is  judicially  ascertained.  qmres. 

6.  By  failing  to  apply  for  and  obtain  commissions  or  certificates.  By  failure 
or  by  failing  to  qualify  or  give  bond,  or  both,  within  the  time  pre-  coiZlisston, 
scribed  by  the  laws  and  Constitution.  orquaiy. 

7.  By  abandoning  the  office  and  ceasing  to  perform  its  duties.     By  aban- 

.   -  donment    of 

or  either.  the  office. 

§  127.  The  resignation  of  the  Governor  must  be  transmitted  by  How  ya- 
him  to  the  General  Assembly,  if  in  session ;  if  not  in  session,  to  oTfTc'e  ^o? 
the  Secretary  of  State,  who  must  on  the  same  day  notify  the  mVs^'^^be 
President  of  the  Senate.     If  the  office  becomes  vacant  by  death,  ted! 


communica- 


36 


PT.  1.— TIT.  3.— CHAP.  5.— Executive  Depaetment. 


Article  2. — Official  Oaths. 


or  any  other  cause,  when  the  General  Assembly  is  not  in  session, 
the  Secretary  of  State  must  inform  the  President  of  the  Senate. 
In  either  case  the  President  of  the  Senate,  -vyhen  informed,  shall, 
within  ten  days,  repair  to  the  Capital  and  take  the  oath  of  oflSce 
before  any  Judge  of  the  Supreme  or  Judge  of  the  Superior  Court, 
and  the  General  Assembly,  if  in  session  ;  which  fact  shall  be  en- 
President  torcd  ou  the  minutos  of  the  Executive  Department.     If  he  does  not 

of  the  Sen-  ... 

ate  [j}ii°^jj^  SO  appear  in  said  time,  he  shall  be  considered  as  having  resigned, 
the^'^Housf  ^^^  *^^  Secretary  of  State  shall  then,  or  in  case  there  is  no  Presi- 
tified  ^^  ^°  ^®^*  ^^  ^^®  Senate,  inform  the  Speaker  of  the  House  of  Repre- 
sentatives, and  the  proceedings  shall  be  the  same. 

§  128.  The  resignation  of  Senators  and  Representatives  in  Con- 

what  offi-  2;ress,  and  members  of  the  General  Assembly,  and  of  all  officers 

communi- whose  commissions  issue  from  the  office  of  Secretary  of  State  or 

cate  resigna-  "^ 

tTerSor^^  the  Exccutivo  Department,  and  whose  places  may  be  supplied  by 
Executive  appointment,  shall  be  made  to  the  Governor. 


ARTICLE  II. 


OFFICIAL     OATHS. 


Section. 

129.  Additional  oath  of  public  officers. 

130.  Oath  must  accompany  dedimus. 

131.  Who  may  qualify  officers. 

132.  Official  oaths  must  be  filed. 

133.  Where  to  be  filed. 


Section. 

134.  Endorsement  of  filing. 

135.  Oaths  of  deputies  to  be  filed. 

136.  Failing  to  take  and  file  oath. 

137.  When  acts  are  valid  without  oath. 


§  129.  All  public  officers)  besides  the  oath  of  office  and  the 
oath^of^'^ub-  ^^^^  prescribed  by  the  Constitution  (if  any),  shall  swear  that  he 
lie  officers,    jg  j^q^  ^\^q  holdcr  of  any  public  money  due  this  State  unaccounted 
for ;  that  he  is  not  the  holder  of  any  office  of  trust  under  the 
Government  of  the  United   States  (except  Postmaster),  nor  either 
of  the  several  States,  nor  of  any  foreign  State,  and  is  otherwise 
qualified  to  hold  said  office  according  to  the  Constitution  and  laws 
of    Georgia,  and  will  support   the   Constitution   of  the   United 
States  and  of  this  State ;  and,  if  elected  by  any  Circuit  or  District, 
that  he  was-  a  resident  thereof  for  the  time  required  by  the  Con- 
stitution and  laws  (stating  the  time). 
Form  of      ^  ^gQ^  r|ijj    £q^j^  ^f      -^  ^^^^i.  as  wcll  as  the  oath  of  office,  to  be 

oatli    to    be         "J  '  ' 

dedirZi!'^  taken  and  subscribed,  must  be  forwarded  with  the  dedimus  potes- 


PT.  1.— TIT.  3.— CHAP.  5.— Executive  DepartxMent.  37 

Article  2.— Official  Oaths. 

______________________^ . ■  -  ■  -        ^ 

tafem,  and  be  taken  and  subscribed  at  the  time  of  receiving  the 
<;ommissions  before  the  officer  to  whom  the  same  is  directed,  and 
in  conformity  to  the  directions. 

§  131.  When  not  otherwise  provided  by  law,  and  not  directed     who  may 

'^  ^  r  ./  7  qualify   offi- 

in  the  dedimus  potestatem,  the  oaths  of  office  may  be  taken  before  ^ers. 
any  officer  authorized  by  law  to  administer  an  oath.     Such  oaths 
must  be  written  out  and  subscribed  by  the  person  taking  them,  and 
accompanied  by  the  certificate  of  such  officer  specifying  the  day 
and  year  when  taken. 

§  132.  Such  oaths,  when  taken  by  an  officer  whose  general  du-  ^  y,^ere  of- 

^  7  ^  p  ficial     oaths 

ties  are  not  confined  to  any  one  County  (unless  otherwise  specially  mustbemed 
provided),  must  be  filed  with  the  certificate  required  by  the  pre- 
ceding Section  in  the  Executive  Office ;  and  when  taken  by  an  offi- 
<3er  whose  duties  are  confined  to  one  County,  as  provided  in  the 
next  Section. 

§133.  When  taken  by  the  Justices  of  the  Inferior  Court,  the  where  of- 
Ordinaries  and  the  Clerks  of  the  Superior  Courts,  they  must  be  nmst beamed 
filed  in  the  office  of  the  Clerk  of  the  Inferior  Court,  and  also  en- 
tered on  the  minutes  of  their  respective  Courts.  When  taken  by 
Sheriis,  they  must  be  likewise  filed  in  the  office  of  the  Inferior 
Courts,  and  must  be  entered  on  the  minutes  of  the  Superior 
Courts ;  and  when  taken  by  Coroners,  Tax  Collectors,  or  Heceivers, 
County  Treasurer,  Justices  of  the  Peace,  or  Constables,  or  any 
other  County  officer,  they  must  be  filed  in  the  office  of  the  Clerk 
of  the  Inferior  Courts  ;  and  the  Clerks  of  the  Inferior  Courts,  and. 
also  of  the  Superior  Courts,  when  one  and  the  same  officer,  must 
file  their  oaths  in  the  office  of  the  Ordinary,  and  enter  them  on 
the  minutes  of  their  own  Courts  respectively. 

§  134.  The  officer  in  whose  office  such  oaths  are  filed  must  en-    Endorse- 
ment of — 
dorse  thereon  the  day  and  year  of  filing.  when  med. 

§  135.  All  deputies,  before  proceeding  to  act,  must  take  the     ^^^^g  ^^ 
same  oaths  as  their  principals  take,  which  must  be  filed  in  and  en-  wKTo^'be 
tered  on  the  minutes  of  the  same  office,  and  with  the  same  en-  ^'^^' 
dorsement  thereon,  but  these  provisions  do  not  apply  to  any  deputy 
who  may  be  employed  in  particular  cases  only. 

§  136.  If  any  officer  or  deputy,  required  by  law  to  take  and  file   Penaityfor 

1  1  -I        -1.^1.         ^.i  «  -,  ^  failure  to 

such  oaths,  enters  upon  the  duties  of  his  office  without  first  takma:  take  and  me 

T    ^T.  ,  .         ,  .  .  °  official  oath. 

and  filing  the  same  m  the  proper  office,  he  is  guilty  of  a  misde- 
meanor, and,  on  conviction,  must  be  fined  not  less  than  two  hun- 
dred dollars. 


38 


PT.  1.— TIT.  3.— CHAP.  5.— Executive  Department. 


Article  3. — Official  Bonds  and  Herein  of  Discharging  Sureties,  etc. 


Acts  of  of-      §  13T.  The  official  acts  of  an  officer  are  not  the  less  valid  for 
without  the  his  omission  to  take  and  file  the  oath,  unless  in  cases  where  so 

oath,  unless  .    ,,        ^  .. 

otherwise  Specially  declared. 

declared.  *^ 


ARTICLE  III. 

OFFICIAL  BONDS  AND  HEREIN  OF  DISCHARGING  SURETIES  AND  REQUIR- 
ING ADDITIONAL  SURETIES. 


Section. 

138.  The  payee  and  condition,  of  bonds. 

139.  Bonds  must  accompany  dedimns. 

140.  Approval  of  official  bonds. 

141.  Number  and  qualification  of  sureties. 

142.  May  be  signed  by  Attorney  in  fact. 

143.  When  bonds  must  be  filed. 

144.  Certificate  of  failure  to  file  bond. 

145.  Acting  before  filing  bond. 

146.  Endorsement  of  filing. 

147.  Notice  of  failure  to  file  bond. 

148.  Penalty  for  failure. 

149.  Obligations  of  official  bonds. 


Section. 

150.  Approval,  filing  and  record  of  bonds. 

151.  Giving  bonds  to  be  certified. 

152.  Deputies'  bonds. 

153.  Principal  or  deputy  may  be  sued. 

154.  Bond  when  discharged, 

155.  Officers  liable  above  penalty  of  bond. 

156.  Validity  of  bonds. 

157.  Damages  in  suits  on  bonds. 

158.  Future  official  oaths  and  bonds. 

159.  How  sureties  may  be  discharged. 

160.  Officer  failing  to  give  new  bond. 


§  138.  The  bonds  of  all  public  officers  required  by  law  to  give 
Official  bond,   unless  otherwise  provided,  must  be  made  pavable  to  the 

bonds  —  to'  ^  /  .  -^    "^ 

whom  paya-  Govcmor  of  the  State  of  Geors^ia  and  his  successor  in  office,  with 

Die  and  upon  '-'  ^ 

what  condi-  guch  suretics  as  the  approving  Court  or  officer  is  satisfied  is  suffi- 
cient, and  conditioned  in  all  cases  in  which  a  different  condition 
is  not  prescribed,  faithfully  to  discharge  the  duties  of  such  office 
during  the  time  he  continues  therein  or  discharges  any  of  the 
duties  thereof. 

§  139.  Official  bonds  of  all  officers  who  are  entitled  to  commis- 

Officiai  sions  from  the  Governor,  and  who  are  required  to  give  bonds,  must 

be  sent  with  bc  prepared  and  furnished  by  the  Executive  Department  at  the 

dedimus  po-     .  ^^  ,.  ,         _,.  ^^^ 

testatem.      time  01  lorwarding  the  deaimus  potestatem. 

§  140.  The  approval  of  all  official  bonds  shall  be  in  writing,  en- 

Approval  dorscd  ou  the  bond,  and  should  show  the  day  and  year  on  which 

the  same  were  approved,  and  shall  not  be  filed  until  thus  approved, 

§  141.  Such  bonds  shall  not  be  approved  by  the  approving  offi- 

Number  qqj>q  uulcss  thcv  havc  at  least  two  good  and  solvent  sureties,  and 

and   qualm-  j  o  ' 

sureties"  oi  ^°*  Hiore  than  [ten,]  (a)  all  of  whom  must  be  permanent  residents 

official  bonds  ^f  ^^  State,  and  two  also  of  the  County,  and  freeholders  thereof. 

When  said  approving  officers  do  not   of   their  own  knowledge 


(a)  Acts  of  1863-4,  p.  124. 


PT.  1.— TIT.  3.— CHAP.  5.— Executive  Department.  39 

Article  3. — Official  Bonds  and  Herein  of  Discharging  Sureties,  etc. 

know  that  a  surety  is  worth  enough  to  enable  them  to  accept  him, 
they  shall  not  take  him  unless  he  swears  to  his  means,  and  it  is 
satisfactory,  of  which  swearing  they  shall  make  a  minute  on  the  bond. 

§142.  When  an  official  bond  is  signed  by  an  Attorney  in  fact,  Po^ver  of 
the  power  of  attorney  must  be  attested  by  a  Justice  of  the  Inferior  tested  and 
Court,  and  filed  and  recorded  as  the  bond  is. 

§143.  The  official  bonds  of  public  officers  required  by  law  to     within 
be  filed  in  the  office  of  Comptroller,  Secretary  of  State,  or  Execu-  ^ffiSaiboSds 
tive  Department,  must  be  filed  therein  within  forty  days  after  the  ™"^^^^fi^«<^ 
election  or  appointment  of  such  officer ;   when  in  the  office  of  the 
Clerk  of  the   Superior  or  Inferior  Courts,  or  Ordinary,  within 
thirty  days    therefrom ;    in   all  other  cases  within   twenty    days 
therefrom.       [Provided,    that    Sheriffs,    Clerks    of  the    Superior 
and  Inferior   Courts,  Ordinaries,  Tax  Collectors,   Coroners,  and 
County  Surveyors  of  this  State  shall  be  allowed  until  the  first  day 
of  June  in  each  year,  and  the  Tax  Receivers  untiV  the  first  day  of 
April  next  (after  their  election),  to  take  up  their  commissions  from 
the  Inferior  Courts  and  to  perfect  their  bonds.]  (a) 

§144.  When  any  officer  of  whom  bond  is  required  fails  to  make    certificate 
and  file  the  same  as  prescribed  in  the  preceding  section,  it  is  the  file    officiai 
duty  of  the  Court,  or  officer  in  whose  office  it  is  required   to  be 
filed,  at  once  to  certify  such  failure  to  the  appointing  power,  and 
to  the  power  whose  duty  it  may  be  to  order  an  election. 

§145.  If  any  public  officer  required  by  law  to  give  bond  per-    Acting  be- 
forms  any  official  act  before  his  bond  is  approved  and  filed  as  re-  b^nd^^m^s^ 
quired,  he  is  guilty  of  a  misdemeanor,  and  on  conviction  must  be   ^'°^^°'^'"- 
fined  not  less  than  five  hundred  dollars. 

§146.  Every  officer  in  whose  office  the  official  bond  of  any  pub-  Endorse- 
lic  officer  is  filed  must  endorse  on  such  bond  the  day  and  year  dai"boncisr 
when  the  same  was  filed,  and  sign  his  name  to  such  endorsement. 

§  147.  If  any  public  officer  required  by  law  to  give  bond  fails  ^^^^^^^  ^^ 
to  file  the  same,  within  the  time  hereinbefore  prescribed,  in  the  faifuVe^?ome 
proper  office,  notice  of  such  failure  must  be  given  by  the  officer  in 
w^hose  office  such  bond  is  required  to  be  filed  by  or  during  the  two 
first  days  of  the  session  of  the  Superior  Court  held  in  the  County 
in  which  the  officer  so  failing  resides,  next  after  such  failure,  to 
the  Attorney  or  Solicitor  General  of  the  Circuit. 

§  148.  Any  officer  whose  duty  it  is  to  mark-file  the  bond  and  to 
give  the  several  notices  required  in  this  article,  and  failing  to  do 

(a)  Acts  of  1863-4,  pp.  124-5 


ofBcialbond. 


40  PT.  1.— TIT.  3.— CHAP.  5.— Executive  Department. 

Article  3. — Official  Bonds  and  Herein  of  Discharging  Sureties,  etc. 

Penalty  for  SO,  without  good  and  sufficient  excuse  therefor,  shall,  on  informa- 
maJk-me,  o?  tion  rendered  an^  citation  to  appear  before  the  Superior  Court  of 
fauu^e  to  the  County  of  his  residence,  be  fined' as  for  a  contempt  (in  the 

file  the  bond.   n.  ,.  o   ,i       />,         .  \ 

discretion  oi  the  Court.) 
Official      §149.  Every  official  bond  executed  under  this  Code  is  obliga- 

bonds     are,  ,i  ..-,  -.  .  •, 

obligatory,    tory  on  the  principal  and  sureties  thereon — 
For  breach      ^'  ^^^  ^^J  ^I'^ach  of  the  coudition  during  the  time  the  officer 
cer.*^^  ^^'  continues  in  office  or  discharges  any  of  the  duties  thereof. 

2.  For  any  breach  of  the  condition  by  a  deputy,  although  not 
a  deputy,  exprcssod,  uiilcss  Otherwise  declared  by  law. 
of^duu?s  ^-  Fo^  *^®  faithful  discharge  of  any  duties  which  may  be  re- 
i™v^^subs*e^  quired  of  such  officer  by  any  law  passed  subsequently  to  the  exe- 
execution!'  ^  cutiou  of  such  bond,  although  no  such  condition  is  expressed  therein. 
4.  For  the  use  and  benefit  of  every  person  who  is  injured,  as 
J^lny^onl  well  by  any  wrongful  act  committed  under  color  of  his  office  as 
injure  ^^  |^-g  fg^j]^^g  -j-^  perform,  or  by  the  improper  or  neglectful  per- 
formance of,  those  duties  imposed  by  law. 

§  150.  The  official  bonds  of  the  Ordinaries,  the  Clerks  of  the 
bracTs  a?e^\o  Superior  Courts,  of  Sheriffs,  Coroners,  County  Surveyors,  County 
fi?eTaar?e-  Trcasurcrs,  Tax  Collectors  and  Receivers,  given  for  County  taxes, 
corded.        must  be  approved  by  at  least  three  Justices  of  the  Inferior  Courts, 
filed  in  the  office  of  the  Clerks  of  the  Inferior  Courts,  and  by 
them  recorded;  that  of  the  Clerks  of  the  Inferior  Court  must  be 
filed  in  the  Ordinary's  office,  and  by  them  recorded,  and  when  the 
Clerks  of  the  Inferior  Courts  are  also  Clerks  of  the  Superior 
Courts,  those  of  the  Clerks  of  the  Superior  Courts  must  likewise 
be  filed  and  recorded  in  the  Ordinary's  office.     The  bonds  of  Tax 
Collectors  and  Receivers  for  State  taxes,   after   being  likewise 
approved,  must  be  recorded  by  the  Clerks  of  the  Inferior  Courts, 
and  the  original  bond  must  be  by  them  transmitted  to  the  Gov- 
ernor (for  deposit  in  the  Comptroller  General's  office). 

§  151.  Such  Justices  of  the  Inferior  Court  must  sign  a  certificate 
Justices  of  to  the  Governor,  statins:  that  the   Clerks  of  the   Superior  and 

the  Inferior  ^  o  x 

S[f  tothe  I^fe^ior  Courts  respectively,  the  Sheriffs,  Coroners,  and  County 
ftat^  clrta^n  Survoyors,  have  taken  the  oaths  and  given  the  bonds  sent  from 
gwen'^bo^nds!  *^®  Exccutivo  Departments,  together  with  a  statement  of  the 
dates,  amounts,  and  names  of  the  sureties  of  each,  and  that  they 
have  delivered  to  them  their  commissions ;  which  shall  be  attested 
by  the  Clerks  of  said  Courts,  and  by  them  immediately  transmit- 
ted to  the  Governor. 


PT.  1. — TIT.  3. — CHAP.  5. — Executive  Department.  41 

Article  3. — Official  Bonds  and  Herein  of  Discharging  Sureties,  etc. 

§  152.  When  deputies  give  a  bond  they  must  be  payable  to  Depiities' 
their  principals,  with  surety  conditioned  as  theirs  are,  for  their  Ji^^^j.^^^ 
conduct  as  deputies,  for  the  same  amounts,  and  must  be  recorded '^go^^^^t,^and 
in  the  same  office  and  in  the  same  manner  as  the  bonds  of  the  ^J^^  record- 
principals. 

§  153.  It  shall  be  at  the  option  of  any  person  who  claims  ^^^^''Sry'l 
damages  of  any  principal  officer  for  the  act  of  his  deputy  to  sue  ^^^^^^^  ^^^ 
said  deputy's  bond  instead  of  his,  in  the  same  manner  as  the  p^ty.^^  ^®' 
principal's  bond  may  be  sued. 

§154.  Such  bonds  are  not  discharged  by  a  single  recovery,  but    ^ne  re- 


proceedings  may  be  had  from  time  to  time,  until  the  whole  penalty  ^^^^    ^^^ 


covery  does 
3  t  d  i  s- 
arge  the 

is  exhausted  against  the  officer  and  his  sureties,  or  either,  and  to^the^°fuu 
said  bonds  are  joint  or  several,  whether  so  set  forth  or  not.  penalty. 

§155.  When  the  penalty  is  exhausted,  the  officer  himself  shall  officer  iiabie 


still  be  liable,  and  upon  the  same  measure  of  damages  as  upon  j%  is  ex 


though  pen 
alty  is  ex 
hausted. 

his  bond,  and  he  is  likewise  liable  for  any  damage  he  may  do  in 
undertaking  to  discharge  the  duties  of  an  office  without  having 
given  the  necessary  bond,  or,  having  given  one,  it  is  invalid,  in 
whole  or  in  part. 

§  156.  Whenever  any  officer  required  by  law  to  give  an  official  ^^^J^^^^^S 
bond  acts  under  a  bond  which  is  not  in  the  penalty  payable  and  jj^  to°iaw°^" 
conditioned  nor  approved  and  filed  as  prescribed  by  law,  such 
bond  is  not  void,  but  stands  in  the  place  of  the  official  bond, 
subject  on  its  condition  being  broken  to  all  the  rem.edies,  including 
the  several  recoveries  which  the  persons  aggrieved  might  have 
maintained  on  the  official  bond. 

§157.  The  measure  of  damages  upon  all  official  bonds  for  the  Measure  of 
misconduct  of  the  officer,  unless  otherwise  specially  enacted,  shall  suites  on 
be  the  amount  of  injury  actually  sustained,  including  the  reasona- 
ble expenses  of  the  suit  to  the  plaintiff,  besides  the  costs  of  Court ; 
but  in  all  cases  when  little  or  no  damage  is  actually  sustained  and 
the  officer  has  not  acted  in  good  faith,  the  jury  may  find  for  the 
plaintiff  an  amount  as  smart  money,  which,  taking  all  the  circum- 
stances together,  shall  not  be  excessive  nor  oppressive. 

§  158.  All  the  provisions  of  this  and  the  preceding  Article  apply  /'ihT^^Sd 
to  the  oaths  of  office  and  official  bonds  of  all  public  officers  of  this  preceding 

i-  article  apply 

State  whose  office  may  be  established  hereafter,  unless  the  con- *^^J^^'^^^^ 
trary  is  expressly  provided. 

§  159.  When  the  surety  to  any  bond,  given  by  any  officer  for  howsu^- 
the  performance  of  any  public  duty,  shall  give  notice,  in  writing,  to  ^^^^^g^J^f 
the  Governor  of  his  desire  to  be  relieved  from  future  liability,  for  charged. 


42  PT.  1— TIT.  3.-~CHAP.  5.— Executive  Department. 

Article  4. — Delivery  of  Books  to  Successors. 


good  cause  therein  stated  and  sworn  to — of  wliich  the  Grovernor 
shall  be  the  judge — or  any  such  surety  shall  in  the  opinion  of  the 
Governor,  formed  upon  satisfactory  evidence,  become  insufficient, 
it  shall  be  his  duty  to  require  of  such  officer  a  new  bond  and  surety. 
§  160.  If  any  officer  shall  fail  to  comply  with  such  requisition 
n^ei^bo^JTd  witliin  ten  days  from  the  date  he  is  served  personally  with  a  copy 
quiedl  Jbe  ^^  ^^^  Executivo  ordcr  containing  such  requisition,  he  is  by  such 
from  offiil   failure  removed  from  office  and  a  vacancy  declared. 


Officer  fail- 


ARTICLE  I¥. 

or    DELIVEEY    OF    BOOKS    TO    SUCCESSORS. 


Section. 

161.  Outgoing  officer  must  deliver  books. 

162.  Persons  having  office  property. 

163.  Persons  refusing  to  deliver,  etc. 


Section'. 

164.  May  be  imprisoned. 

165.  Books,  etc.,  delivered  to  successor. 

166.  Penalty  for  failure. 


§  161.  When  any  office  is  vacated  it  is  the  duty  of  the  incum- 
defiver  Tn  ^^^*>  ou  demand  made,  to  deliver  all  books,  papers,  and  other 
to  BuccciSor.'  property  appertaining  to  the  office  to  his  qualified  successor. 

§  162.  If  a  vacancy  occurs  by  death,  or  the  incumbent  is  not 
other  per- to  bc  fouud  at  the  time  of  demand  made,  it  is  the  duty  of  any 

sons  having  ^  ^  '  ^  %i 

office  pro- person  havino^   possession   or  control  of  such  office  property,  or 

party    must  ■•■  or  i        i  »/  7 

deliver  it  up.  any  part  thereof,  to  deliver  it  up,  and  the  rights  and  remedies  are 
the  same  against  such  person  as  against  the  deceased  officer,  if 
living  or  to  be  found. 

§16S.  If  any  person  neglects  or  refuses  so  to  do  after  demand 

How  person  made,  the  successor  shall  make  coDiplaint  to  the  Justices  of  the 

1  n     posses-  \  ■*■ 

si^«»' ^  Jl^^^s- Inferior  Court  of  the  County,  or  to  the  Judge  of  the  Superior 
a^n d"^  c^n*^  Court  of  the  Circuit  in  which  the  person  refusing  resides,  or  if 
pro?ee  de^d  J^^ither  cau  bc  had,  the  Judge  of  the  Superior  Court  of  an  adjoin- 
against.       '^^^  Circuit,  and  if  such  officer  is  satisfied,  from  the  oath  of  com- 
plainant or  otherwise,  that  such  are  withheld,  he  must  grant  an 
order  requiring  the  person  so  refusing  to  show  cause  before  him,  on 
a  day  and  at  a  place  named  in  such  order,  why  he  should  not  be 
compelled  to  deliver  over  the  same. 

§  164.  At  the  time  so  appointed,  or  at  any  other  time  to  which 
s^onT^how  the  matter  may  be  adjourned,  a  copy  of  such  order  having  been 
cause,^  and  personally  served  on  the  person  so  refusing,  such  officer  must 
pYy  AvithTn  procccd  to  inquire  into  the  circumstances,  and  if  it  appears  that 
liver,  they  such  books  and  papers  are  withheld,  he  must  order  the  same 
prisoned,     delivered  up  instanter  to  s'aid  successor,  a'nd  on  failing  to  comply 


PT.  1.— TIT.  3.— CHAP.  5.~ExECUTivE  Department. 


43 


Article  4. — Delivery  of  Books  to  Successors. 


with  such  order  he  shall  issue  a  warrant  directed  to  any  officer  of 
said  County,  or  of  the  adjoining  County,  authorized  to  make  the 
arrest,  to  arrest  said  officer,  and  commit  him  to  jail,  there  to 
remain  until  he  complies  with  said  order  or  is  otherwise  dis- 
charged by  course  of  law.  At  the  same  time,  in  the  same  way, 
he  shall  command  said  officer  to  search  such  places  for  them  as  searciimay 
may  be  designated  in  such  warrant,  and  to  seize  and  bring  them  papersuuder 

.  .  .a  warrant. 

before  him  or  some  other  officer  authorized  to  preside,  and  being 
so  brought  and  appearing  to  belong  to  said  office,  he  shall  cause 
them  to  be  delivered  to  the  successor.  The  payment  of  costs  are 
in  the  discretion  of  the  Court.  Said  proceedings  do  not  interfere 
with  the  provisions  in  the  Penal  Code  on  this  subject, 

§165.  All  judicial  or  ministerial  officers  or  State's  Attorneys,    officers 
who  by  law  are  entitled  to  receive  from  the  State  any  books,  bookstosuc- 

cessors. 

pamphlets,  or  other  documents,  upon  retiring  from  office  must  de- 
liver them  over  to  their  successors,  and  from  one  successor  to 
another. 

§  166.  On  failure  to  deliver  such  books,  after  demand  made  by  fafiure^^'ode- 
incoming  officer,  he  is  liable  for  three  times  the  first  cost  thereof,  [o^success^o^r! 
to  be  retained  out  of  his  salary,  if  a  salaried  officer,  and  if  not  a 
salaried  officer,  or,  being  one,  it  is  omitted  to  be  retained,  the  officer 
so  detaining  is  subject  to  suit  and  recovery  (in  a  Court  having  ju- 
risdiction) by  the  successor  in  the  name  of  the  State  for  his  use. 


TITLE    IV. 

LEGISLATIVE  DEPARTMENT. 


CHAPTER    I. 

OF     THE    GENERAL    ASSEMBLY. 


Section. 

167.  Meeting  of  Legislature. 

168.  Length 'of  sessions. 

169.  How  organized. 

170.  Oath  of  members. 

171.  President  and  Speaker. 

172.  Elections  by  General  Assembly. 

173.  Door-keepers  and  Messengers. 

174.  Special  Messengers. 


SeCTIOiV. 

175.  Joint  Finance  Committee. 

176.  Duty  of  Secretary  and  Clerk. 

177.  Engrossed  copies  of  laws. 

178.  Pay  of  President,  Speaker,  etc. 

179.  Pay  of  sick  members. 

180.  Amount  due  deceased  members. 

181.  Accounts  of  officers  and  members* 


§  167.  The  regular  sessions  of  the  General  Assembly  begin  oa 


44  PT.  1. — TIT.  3. — Legislative  Department. 

Chapter  1. — The  General  Assembly. 

When  the  first  [Thursday]  (a)  in  November,  annually,  at  [10  o'clock  in 
melts^*'^^^  the  forenoon]  (b)  in  the  Capitol. 

§  168.  Each  session  shall  not  continue  longer  than  forty  days, 
Length  of  unless  othcrwise  ordered  by  a  vot^  of  two-thirds  of  each  branch 

sessions.  n     -i       r^  i4 

of  the  General  Assembly. 

§  169.  Each  branch  shall  be  organized  by  the  Clerk  and  Sec- 
AsseSf—  ^^^^^y  thereof  respectively,  who  are,  ex-officio,  presiding  officers 
how  organ-  ^^^11  such  arc  clccted.  No  question  shall  be  entertained  by  them 
but  one  relating  to  the  organization,  and  in  deciding  such  ques- 
tions they  are  to  be  governed,  as  far  as  practicable,  by  the  stand- 
ing rules  of  the  House  over  which  they  preside.  In  the  absence 
of  such  officer  their  assistants  may  officiate.  In  the  absence  of 
both,  the  body  may  appoint  a  chairman  whose  powers  and  duties 
are  the  same. 

§  170.  The  oaths  of  office  may  be  administered  to  the  members 
aSJimS  ^^  *^®  General  Assembly  by  any  Judge  of  the  Supreme  or  Supe- 
members^  ^'^^^'  Courts,  to  be  procurcd  by  the  person  organizing  each  branch. 
§  171.  The  President  of  the  Senate  and  Speaker  of  the  House 
p^skient  of  ^^^  elected  by  their  respective  bodies  viva  voce,  and  a  majority  of 
Speaker  '^  of  ^otcs  is  ncccssary  to  a  choice.  In  like  manner  the  Senate  must 
House.        elect  a  President  j)^o  tern.,  and  the   House  a  Speaker  ^jro  tem., 

T*rG  si  dcii  t 

and  Speaker  whosc  powcrs  and  dutics,  wliilc  presiding,  or  in  the  absence  of  said 

pro  tern.  ^  ^ , 

omcers,  are  the  same. 
Elections       §  172.  All  clcctions  by  the  General  Assembly  are  to  be  con- 

— now  con-  ^  •/  ./ 

ducted.        ducted  as  follows  : 

Assemble  !•  ^^  the  day  and  hour  appointed  for  the  election,  the  mem- 
resentatwe"   bcrs  of  both  Houses  must  assemble  in  the  Eepresentative  Hall. 

^"'  2.  The  names  of  the  members  of  each  House  are  to  be  called 

caii^^°^an'd  ^^  their  respective  Clerks,  each  member  voting  viva  voce  as  soon 
lot  ^^  ^^^'  ^ft^^  ^^is  name  is  called  as  practicable. 

3.  The  result  must  be  ascertained  by  the  President  of  the  Sen- 
howTJil7  3-te  and  the  Speaker  of  the  House,  and  announced  by  the  first 
announced!  named  officer. 

4.  The  votes  are  to  be  given  for  but  one  election  at  the  same 
tion^at^tfmX  ^i^®?  ^^^  ^  majority  of  the  whole  number  of  votes  cast  is  neces- 
SSaiyf  ^^  sary  to  a  choice,  and  all  blanks  are  to  be  counted  as  votes. 

5.  When  both   branches  of  the  General  Assembly  agree   by 
resolution  to  bring  on  an  election  at  a  specified  time  in  the  Rep- 

(a)  Acts  of  1861,  p.  36.     (b)  Acts  of  ISeS-d-,  p.  30. 


^ 


PT.  1. — TIT.  4. — ^Legislative  Department.  45 

Chapter  1. — The  General  Assembly, 
resentative  Chamber,  said  resolution  can  only  be  rescinded  by  a    Resolution 

'  *>  •'to  bring:  on 

vote  of  two-thirds  of  either  House,  and  without  such  vote  the  elec-  eiectioiiTmay 

'  be  rescinaed 

tion  held  according  to  such  resolution  is  valid. 

6.  When  both  branches  meet  for  such  purposes,  and  there  is     Adjoum- 

•'••'■  ment   pend- 

a  necessity  for  an  adjournment  without  having  concluded  the  i^g  an  eiec- 
elections  for  which  they  convened,  they  shall  adjourn  to  some 
named  hour  on  the  same  or  next  day  (not  counting  Sunday  or  a 
public  holiday),  or  to  a  day  certain,  and  the  elections  made  at 
such  time  are  valid,  unless  the  resolution  for  the  election  is  in  the 
meantime  repealed  by  said  two-thirds  vote. 

§173.  Each  House  is  entitled  to  a  Door-keeper  and  Messen-   Election  of 

■^  Door-keeper 

ger,  to  perform  such  duties  as  may  be  required  of  them,  who  shall  ^°^^^^.^^^?' 
be  [elected  as  provided  for  the  election  of  Clerk  and  Secretary,]  p^y- 
(a)  and  who  shall  receive  the  same  pay  as  the  members  of  the 
General  Assembly. 

§174.  When  it  shall  be  necessary  to  carry  into  eifect  the  4th  Persons  may 

•^  J  *f  be  appointed 

Section  of  the  2d  Article  of  the  Constitution,  or  for  any  like  pur-  ger^ice^^"^^ 

pose,  either  of  said  officers  may  appoint  any  person  to  execute 

the  orders  of  each  House  and  the  warrant  of  the  presiding  officer, 

who  may  receive  for  the  service  such  compensation  as  the  General  pensation. 

Assembly  may  appropriate. 

§  175.  It  is  part  of  the  duty  of  the  Joint  Standing  Committee    Duty  of 
of  Finance  to  examine  the  accounts  and  vouchers  of  the  Comp-  nance  Com- 

■^     mittee. 

troller  and  Treasurer  as  to  all  moneys  received  into  and  paid  out 
of  the  Treasury  during  the  last  fiscal  year,  to  compare  the  war- 
rants drawn  during  that  period  with  the  several  laws  by  authority 
of  which  they  purport  to  be  drawn,  to  examine  into  the  other 
accounts  and  books  of  such  officers,  and  to  count  the  money  on 
hand  at  the  time  of  the  examination,  and  to  examine  the  annual 
reports  made  by  said  officers,  to  see  if  they  are  sustained  by  the 
true  condition  of  their  offices,  and  report  the  result  to  each  branch 
of  the  General  Assembly. 

§176.  At  the  close  of  each  session  the  Secretary  of  the  Sen- Duty  of  sec- 
ate.  Clerk  of  the  House  of  Representatives,  and  Secretary  of  State,  senate  and 
must  select  all  the  papers  belonging  to  the  General  Assembly,  House  at  the 
except  such  as  relate  to  the  unfinished  and  rejected  business,  and  session. 
deposit  them  in  the  office  of  the  Secretary  of  State. 

§177.  The  engrossed  copies  of  all  laws  and  joint  resolutions  co"'5)yeT^of 
passed  by  the  General  Assembly  must  be  preserved  by  the  Chair-  ^vhe'-e  dep^ 

sited. 
(a)  Acts  of  1862-3,  p.  139. 


46 


PT.  1. — TIT.  4. — Legislative  Department. 


Chapter  3. — Subordinate  Officers  of  the  General  Assembly. 


man  of  the  Enrolling  Committee,  and  deposited  in  the  office  of 

the  Secretary  of  State. 

§  178.  The  President  of  the  Senate  and  Speaker  of  the  House 
TK.  ?,^y  ^C^'eceive  [twelve]  (a)  dollars,  and  the  other  members  [nine]  (a)  dol- 
t he  Senate  |aj.g   fg^  each  dav's  attendance,  and  all  are  allowed  five  dollars 

and  Speaker  7  ,/  7 

and^^ml^m-  ^^^  Gvcrj  twcntj  milcs  of  travel  going  to  and  returning  from  the 
^^^^-  seat  of  Government,  the  distance  to  be  computed  by  [nearest]  (a) 

route  usually  traveled. 

§  179.  If  any  member  is  detained  by  sickness,   after  leaving 
Pay  of    home,  in  comins;  to,  or  is  unable  to   attend  the  House  after  he 

siek  mem-  ■'  o         ^ 

bers.  arrives  at  the  seat  of  Government,  he  is  entitled  to  the  same  daily 

pay  as  an  attending  member ;  but  no  member  shall  receive  pay 
for  absent  time  unless  on  account  of  sickness  of  himself  or  family, 
or  by  express  leave  of  the  House  of  which  he  is  a  member. 

§  180.  If  any  member  of  the  General  Assembly  shall  die  during 

of  dTcelSId  ^^®  session,  or   afterwards,  without  having  received  the  whole  or 


^cSyfthek  ^^y  portion  of  his  pay,  the  amount  due  for  the  whole  session  shall 
pay,  e?c!^"^^6  paid  to   the  widow  of  the  deceased,  and  if  no  widow,  in  like 

manner  to  the  children. 

§  181.  The  compensation  due  to  the  officers  and  members  of  the 
be^ianToffi-  General  Assembly  must  be  certified  by  the  President  and  Speaker, 
audit^  ^and  I'espectively,  upon  the  report  of  the  Auditing  Committee  to  the 
certified.      Treasurer,  who  afterwards  shall  pay  each  member  who  presents 

his  account  duly  audited. 


CHAPTER    II. 

SUBORDINATE  OFFICERS  OF  THE  GENERAL  ASSEMBLY. 


Section. 

182.  Election  of  Secretary  and  Clerk. 

183.  Oath  of  Secretary  and  Clerk. 

184.  Administering  the  oath. 

185.  Compensation  of  Secretary  and  Clerk 

186.  Assistants  of  Secretary  and  Clerk. 


Section. 

187.  Qualification  of  subordinate  Clerks. 

188.  Secretary  and  Clerk  must  file  papers. 

189.  Receive  no  pay  till  files  are  made. 

190.  When  both  Houses  meet,  Secretary 

to  aid. 


?fficS??e?m  §  1^^*  There  shall  be  a  Secretary  of  the  Senate  and  a  Clerk  of 
senate^nd  *^^  House  of  Representatives,  elected  by  the  members  of  each 
House?^'^^  House  respectively,  viva  voce,  and  a  majority  of  votes  cast  is  ne- 


(a)  Acts  of  1865-0,  p.  250. 


PT.  1. — TIT.  4. — Legislative  Department.  47 

Chapter  3.— Subordinate  Officers  of  the  General  Assembly. 

cessary  to  elect.     Their  term  of  office  shall  be  the  time  for  which 
the  members  of  the  General  Assembly  are  elected. 

§  183.  Said  officers,  their  assistants,  and  Enffrossine:  and  Enroll-  „     ^\^^  ^^ 

•^  '  '  o  o  Secretary 

ing  Clerks,  before  entering  on  the  discharge  of  their  duties,  shall  JJJ^  ^^^^^^  J^^ 
take  an  oath  before  their  respective  presiding  officers  to  discharge  ^^^^^^ts- 
their  duties  faithfully  and  to  the  best  of  their  skill  and  knowledge, 
of  which  a  minute  shall  be  made  and  entered  on  the  Journals. 

§  184.  The  President  of  the  Senate  and  Speaker  of  the  House  anJ^lfker 
are  to  administer  the  oaths  required  to  the  subordinate  officers  of  jJ^^roSto 
their  respective  Houses.  ,  subordinates 

§185.  The  pe?*  diem  pay  of  the  Secretary  of  the  Senate  and   Payofsec- 

rcLftry    n  n  d 

the  Clerk  of  the  House,  their  assistants  and  all  subordinates,  shall  cierk— how 

^  ^  '  nxed. 

be  determined  by  each  General  Assembly  in  perfecting  the  Appro- 
priation Bill. 

S 186.  Said  Secretary  and  Clerk  shall  have  power  to  appoint     Secretary 

TIT  (-  ^^  '  -"^^  and  Clerk 

their  assistants  and  subordinate  clerks  as  follows — viz  :  may  appoint 

1.  The  Secretary  of  the  Senate  may  appoint,  at  the  commence-      Readers, 

•f»  I'li'i  1  -Tki  4>         Journalizing 

ment  of  the  session  for  which  he  is  elected,  one  Header  or  Assist-  and  Enroii- 

,    .  ing,  and  En- 

ant  Clerk  at  the  desk,  one  Journalizing  Clerk,  and  one  for  Enroll-  grossing  and 

y  .  Kecordmg 

ing  and  one  Engrossing  Clerk,  and  one  Recording  Clerk.  cierks. 

2.  The  Clerk  of  the  House  may  appoint,  at  the  same  time,  one 
Reader  or  Assistant  Clerk  at  the  desk,  one  Journalizing  Clerk, 
two  Enrolling  and  two  Engrossing  Clerks,  and  one  Recording 
Clerk. 

3.  If,  at  any  time  during  the  session,  the  business  requires  the    Additional 

clcrlis liow 

appointment  of  additional  clerks,  either  of  said  officers  may  ap- appointed. 
ply  to  their  respective   Houses  for  leave  to  appoint  them;   and  if 
they  are  deemed  necessary  by  the  Enrolling  Committee,  such  body 
may,  by  resolution^  authorize  the  appointment,  specifying  therein 
the  number. 

4.  No  clerk  shall  be  allowed  compensation  in  either  of  said  ^erks  ^niy 
departments,  appointed  in  any  other  way.  pay|^  receive 

§  187.  No  Journalizing,  Recording,  Enrolling,  or  Engrossing  ouaiifi. 
Clerk  shall  be  appointed  by  the  Secretary  of  the  Senate  or  Clerk  removaf  °of 
of  the  House,  until  such  Clerk  has  been  examined  by  the  Enroll-  fng^E^ciJd- 
ing  Committee,  and  certified  to  their  respective  Houses  to  be  i2|'amf  En- 
competent  and  well  qualified  to  the  discharge  of  the  duties  re- cierls/^"^ 
quired  of  him ;  and  such  Clerk  shall  be  removed,  at  any  time, 
upon  the  recommendation  of  the  Enrolling  Committee  of  the  House 
in  which  he  is  employed. 


48 


PT.  1. — TIT.  5. — Judicial  Department. 


Chapter  1. — General  Provisions  in  Regard  to  Judicial  Power. 

§  188.  The  Secretary  of  the  Senate  and  the  Clerk  of  the  House 
and^^cfS  ^f  Representatives  must,  within  ten  days  after  the  adjournment 
^e^'Jl^^lK  of  each  session,  file,  in  proper  order,  all  the  papers  and  docu- 
dociunents.   j^^gj^^g  ^f  their  respective  Houses. 

§  189.  The  records,  papers,  and  documents  thus  filed,  must  be 

Secretary  delivered  to  the  Secretary  of  State,  who,  upon  receipt  of  the 

shall  not  be  samo,  must  Certify  that  such  Secretary  and  Clerk  have  respectively 

fifed^a^^^s^  complied  with  said  requisitions,  and  the  Treasurer  shall  not  pay 

their  several  salaries  until  such  certificate  is  produced. 

§  190.  When  there  is  a  meeting  of  both  branches  of  the  General 
Secretary  Asscmblv  in  auv  ouc  chamber,  said  Secretary  and  Clerk  shall  be 

mu  St    aid  .  . 

when   both  present  and  ioin  in  the  discharge  of  the  duties  required,  and  shall 

Houses  meet  ^  o  o  x  ^ 

enter  on  the  Journals  of  each  the  proceedings. 


TITLE    V. 

THE     JUDICIAL     DEPARTMENT 


CHAPTER    I. 

GENERAL  PROVISIONS  IN  REGARD  TO  JUDICIAL  POWER. 


Section. 

191.  Judicial  power— where  vested. 

192.  Rules  of  Court  shall  be  observed. 

193.  Judge  interested  shall  not  preside. 

194.  Power  of  the  Court. 


Section. 

195.  Records  shall  not  be  removed. 

196.  Minutes  read  and  signed  by  Judge. 

197.  The  Court  may  act  when  no  Clerk. 


§191.  The  Judicial  power  of  the  State  is  vested  in  such  tribu- 

judiciainals  as  are  created  by  the  Constitution,  and  such  other  Inferior 

veSedT^'^'^  Courts  as  are  or  may  be  established  by  law,  and  such  persons  as 

are  or  may  be  specially  invested  with  powers  of  a  judicial  nature. 

§  192.  The  rules  of  the  respective  Courts,  legally  adopted  and 

Euiea  of  ^^ot  in  conflict  with  the  Constitution  of  the  United  States,  of  this 

^°^^^"         State,  or  the  laws  thereof,  are  binding  and  must  be  observed. 

§  193.  No  Judge  or  Justices  of  any  Court,  no  Ordinary,  Jus- 

when  ju-  tic©  of  the  Pcaco,  nor  presiding  officer  of  any  inferior  judicature 

fs'^incoSpe-  or  commissiou,  can  sit  in  any  cause  or  proceeding  in  which  he  is 

cases.^^  ^^^  pecuniarily  interested,  or  related  to  either  party  within  the  fourth 

degree  of  consanguinity  or  affinity,  nor  in  which  he  has  been  of 

counsel,  without  the  consent  of  all  the  parties  in  interest. 


PT.  1. — TIT.  5. — Judicial  Department.  49 

Chapter  1. — General  Provisions  in  regard  to  Judicial  Power. 


§194.  Every  Court  has  power —  courts  have 

1.  To  preserve  and  enforce  order  in  its  immediate  presence,  and    to  enforce 
as  near  thereto  as  is  necessary,  to  prevent  interruption,  disturb-  presence. 
ance,  or  hindrance  to  its  proceedings. 

2.  To  enforce  order  before  a  person  or  body  empowered  to  con-    Before  bo- 

^  ,/  r  dies     acting 

duct  a  judicial  investigation  under  its  authority.  authodV  ^^^ 

3.  To  compel  obedience  to  its  judgments,  orders,  and  process,  compel obe- 
and  to  the  orders  of  a  Judge  out  of  Court,  in  an  action  or  pro-  process  and 

,.  I  .  judgment. 

ceedmg  therein. 

4.  To  control,   in   furtherance  of  iustice,  the   conduct  of  its    to  control 

1       •   1  •     T    •    1  T    ^^^  officers. 

officers  and  all  other  persons  connected  with  a  judicial  proceed- 
ing before  it,  in  every  matter  appertaining  thereto. 

5.  To  administer  oaths  in   an   action  or   proceeding  pending    Toadmin- 

.     .  „        ,  ,  .  f  °     ^  .         ,       ister  oaths. 

therein,  and  m  all  other  cases,  when  it  may  be  necessary,  m  the 
exercise  of  its  powers  and  duties. 

6.  To  amend  and  control  its  process  and  orders,  so  as  to  make  .  ^o  amend 

•"•  ■'  its    process, 

them  conformable  to  law  and  justice,  and  to  amend  its  own  record  I'^^ords,  etc. 
so  as  to  make  them  conform  to  the  truth. 

§  195.  No  records  or  papers  of  any  Court  must  be  removed  out    '^^^^  ^^- 

^  r    XT  J  cords     may 

of  the  County,  except  in  cases  of  invasion   whereby  the  same  ^^  removed. 
may  be  endangered,  or  unless  by  order  of  the  Court. 

§196.   The  minutes    of  every  Court  of  record  must   be   read   Minutes 

^       *^  must  be  read 

each  morning  by  the  Clerk  in  open  Court,  and  on  the  adjourn- '^"^^^s"^^- 
ment  of  the  Court  must  be  signed  by  the  Judge,  Judges,  or  Jus- 
tices thereof;   but  if  not  signed  are  valid  unless  repudiated  by 
the  Court. 

§  197.  The  acts  of  a  Court  shall  not  lack  validity  for  the  want    court  may 

•^  perform   du- 

of  a  Clerk,  and  whenever  there  is  no  Clerk,  or  none  to  be  had,  or  tics  of  cierk 

''  '  ^  when    there 

he  is  incapable  of  discharging  his  duty,  and  any  Court  performs  ^^  °°^^- 
that  duty  itself,  its  action  as  such  is  valid. 


CHAPTER    II. 

THE     SUPREME    COURT    AND     ITS    OFFICERS, 


Article  1. — TJie  Supreme  Court  and  its  Judges, 
Article  2. — The  Clerk. 
Article  3. — The  Reporter. 
Article  4. — The  Sheriffs  or  Marshal. 
4 


50 


PT.  1.— TIT.  5.— CHAP.  2.--JUDICIAL  Depaktment. 


Article  1. — The  Supreme  Court  and  its  Judges. 


ARTICLE  I. 

THE     SUPREME     COURT     AND     ITS     JUDGES. 


Section. 

198.  Judges  of  tbe  Supreme  Court. 

199.  Their  oath  of  office. 

200.  Two  may  hold  the  Court. 

201.  Who  are  eligible  for  Supreme  Bench. 

202.  Vacancies — how  filled. 


Section. 

203.  When  there  is  but  one  Judge,  etc. 

204.  Unanimous  decisions  how  reversed, 

205.  The  powers  of  Supreme  Court,  etc. 

206.  Two  of  the  Judges  must  concur,  etc. 

207.  Officers  of  the  Supreme  Court. 


§  198.  The  powers  of  the  Supreme  Court  are  vested  in,  and  its 
Judges  of  duties  performed  by,  three  Judges,  [one  of  whom  shall  be  styled  the 
Court.         Chief  Justice,]  (a)  who  are  elected  for  the  term  of  six  years  by  the 
General  Assembly. 

§  199.  Before  entering  on  the   discharge  of  their  duties  they 
Their  oath,  shall  take  the  oath  prescribed  for  Judges  of  the  Superior  Courts, 
and  all  other  oaths  required  for  civil  officers. 

§  200.   [They,  or  two  of  them,  may  hold   said  Court,  and  the 
Two  may  oldcst  Judffo  in  commission,  in  the  absence  of  the  Chief  Justice, 

hold  Court—  .        ^  '.  ' 

Chief  Jus- is  President   thereof,  but  without   any  greater  powers  than  his 
associate;  and  when  the  office  of  the  present  oldest  Judge  in  com- 
mission shall  become  vacant  by  death,  resignation,  or  otherwise,  a 
Chief  Justice  shall  be  appointed  or  elected  to  fill  such  vacancy.]  (a) 
§  201.  No  person  is  eligible  as  such  unless  he  has  been  duly 
Who    are  admitted  and  licensed  to  plead  and  practice  in  the  Courts  of  Law 

eligible     to 

the  Supreme  and  Equity  in  this  State  for  ten  years  prior  to  his  election.  Within 
twenty  days  after  the  election  the  Governor  shall  issue  his  com- 
mission. 

§  202.  In  case  of  a  vacancy  (from  any  cause)  the  Governor  shall 
Vacancies—  appoint  and  commission  some  qualified  person  to  supply  it  until 
plied.  the  next  meeting  of  the  General  Assembly,  who  shall  elect  some 

one  for  the  unexpired  term.  If  a  vacancy  occurs  during  the  ses- 
sion of  the  General  Assembly,  there  must  be  no  appointment, 
but  if  it  closes  without  an  election  the  Governor  shall  appoint 
some  person  to  hold  the  office  until  the  action  of  the  General 
Assembly. 

§  203.  When  two  or  all  of  the  Judges  are  disqualified  from 
^j^y^^J^J^*  deciding  any  cause  or  proceeding  pending  in  their  said  Court, 
how^the  ca^  they  must  certify  the  same  to  the  Governor,  who  must  direct  a 
pSed^o^f.^^^  commission  to  issue  to  any  two  or  three  Judges  of  the  Superior 


(a)  Acts  of  1866,  p.  17. 


Ml 


PT.  1.— TIT.  5.~0HAP.  2.— Judicial  Department.  51 

Article.  1. — The  Supreme  Court  and  its  Judges. 

Court  whom  he  may  select,  and  who  have  not  performed  any 
judicial  duty  in  the  cause,  empowering  them  in  the  particular 
cause  stated  to  exercise  the  powers  of  a  Judge  of  the  Supreme 
Court  therein,  as  in  cases  of  vacancy,  at  the  time  and  place  for 
hearing  and  determining  the  same. 

§  204.  A  decision  concurred  in  by  three  Judges  can  not  be  .  How  unan- 

•^  ./  o  imous  decis- 

reversed  or  materially  chang-ed,  except  by  a  full  bench,  and  then  ions  maybe 

>/  o      y  i-         V  '  reversed. 

after  argument  had,  in  which  the  decision,  by  permission  of  the 
Court,  is  expressly  questioned  and  reviewed ;  and  after  such  argu- 
ment the  Court  in  its  decision  shall  state  distinctly  whether  it 
affirms,  reverses,  or  changes  such  decision. 

§  205.  The  Supreme  Court  has  authority —  courr^hTs 

1.  To  exercise  appellate  jurisdiction,  and    that  only,  and  in  no^^lexeTd^e 
case  to  hear  facts  or  examine  witnesses.  Hsd1cfi?n  a- 

2.  To  hear  and  determine  all  causes,  civil  and  criminal,  that  ^^^\ 

'  'To  hear  and 

may  come  before  it,  and  to  grant  judgments  of  affirmance  or  ^^^^^^ ™  j^^® 
reversal,  or  any  other  order,  direction,  or  decree  required  therein,  iJ^a^J^^^t^o 
and  if  necessary  to  make  a  final  disposition  of  the  cause,  but  in  jy^g^ent."^^ 
the  manner  prescribed  elsewhere  in  this  Code. 

3.  To  grant  any  writ  necessary  to  carry  out  any  purpose  of  its     T^  g^^nt 

°  *'  ^  »'  ./  1      J.  M'rits  to  en- 

organization,  or  to  compel  any  inferior  tribunal  or  officer  thereof  Jj^^^^^  Jt^  o^- 

to  obey  its  order. 

4.  To  appoint  its  own  officers,  and  to  commission  any  person  to  .  Toappomt 

^  ^  ^  ^  '  '^    ^  Its  own  ofli- 

execute  any  specific  order  it  may  make.  ^^''s- 

5.  To  establish,  amend,  and  alter  its  own  rules  of  practice,  and     To  make 

'■  ^  rules  of  prao- 

to  regulate  the  admission  of  Attorneys.  ^i<=®- 

6.  To  punish  for  contempt  by  the  infliction  of  a  fine  as  high  as    To  punish 

^  .  .  .  °  f  o  r     c  o  n- 

five  hundred  dollars,  and  imprisonment  not  exceeding  ten  days,  or  tempts. 
both. 

7.  To  exercise  such  other  powers,  not  contrary  to  the  Consti-  .^>^*|,*;'^«'': 

••^  '  »/  cise  all  legal 

tution,  as  are  or  may  be  given  to  it  by  law.  powers. 

§206.  The  concurrence  of  two  of  said  Judges  is  necessary  to  Two  judges 

^  ^  must  concur 

make  a  reversal,  or  to  grant  any  order  disturbing  the  judgment  to  reverse. 
of  the  Court  below;  and  when  only  two  preside  in  a  cause,  andoniy^prT- 
they  disagree  as  to  the  reversal  or  as  to  said  order,  the  judgment  disagrte- 

T         /Y»  -1  ment  affirms 

stands  ainrmed. 

§207.   The   officers  of  the  Supreme  Court  are  a  Clerk,  a  Re-  The  oncers 

1  •  c^i         -rr  -1     1  "^     the    Su- 

porter  and  assistants,  a  bherm  and  deputies.  preme  court 


52 


PT.  1.— TIT.  5.— CHAP.  2.— Judicial  Department.    . 


Article  2.— The  Clerk. 


ARTICLE  11. 


THE    CLERK. 


Section, 

208.  His  appointment  and  oath  of  office. 

209.  May  appoint  a  deputy. 

210.  The  duties  of  the  Clerk  enumerated. 


Section. 

211.  Must  tax  costs,  etc. 

212.  Who  liable  for  costs,  etc. 


oath  of  clerk 


§  208.  The  Clerk  of  the  Supreme  Court  holds  his  office  for  six 

meiu^^and  J^^^'^,  unless  romoved  for  incapacifcy,  improper  conduct,  or  neglect 

of  duty ;  and  before  entering  upon  his  duties  he  must  take  an  oath 

faithfully  to  discharge  them,  and  also  all  other  oaths  required  of 

civil  officers. 

§  209.  He  may  appoint  one  or  more  deputies  in  his  discretion, 
May  ap-  under  such  rules  as  the  Court  may  adopt,  he  being  responsible  for 

polntadepu-  .  .  .  o  i 

ty-  the  faithful  performance  of  their  duties ;  and  when  so  appointed 

their  powers  and  duties  are  the  same  as  his. 
§  210.  It  is  his  duty— 

1.  To  keep  an  office  at  the  seat  of  Government  in  one  of  the 
Must  keep  apartmciits  of  the  Capitol,  where  all  books,  records  and  archives, 

an   office    at     ^  , 

Capitol.        and  the  seal  of  the  Court  shall  remain. 
Must  at-      2.  To  attend  all  sessions  of  the  Court  and  obey  all  of  its  lawful 

tendthe         ^ 

Courts.        orders. 

3.  To  keep  in  well  bound  books  fair  and  regular  minutes  of  the 
Must  keep  Court's  procccdings,  a  record  of  its  judicial  acts,  a  docket  of  its 

cords,  etc.     causcs,  and  such  other  books  as  said  Court  may  require  him  to 
keep. 

4.  To  certify,  when  required,  upon  payment  of  his  lawful  fees, 
tify  records  q]\  minutes,  rccords,  or  files  of  said  Court. 

and  papers.  '  " 

5.  To  arrange  the  cases  on  the  docket  by  Circuits,  and  to  give 
Must  pub-  notice  in  one  of  the  newspapers,  printed  at  the  place  where  the 

lish  order  of  .  .  .  p     •■ 

Circuits.      Court  is  to  bc  held,  twenty  days  previous  to  its  session,  of  the  or- 
der of  arrangement. 

6.  To  submit  to  the  Governor  a  fair  statement  of  each  criminal 
Must  re-  paupcr  casc,  showino:  the  items  of  costs,  the  nature  of  the  crime 

port  all  pau-  \      ^  _,° 

per  cases  to  charged,  and  the  County  from  whence  it  came,  under  the  seal  of 

the  Govern-  o       ?  ^ 

or-  the  Court,  as  a  condition  to  a  warrant  in  his  favor  for  their  pay- 

ment. 

7.  To  make  out  a  remitter  of  every  case  within  ten  days  from 
o^Ter^iur^^^  adjournment  of  the  Court,  and  to  transmit  it  to  the  attorney 

of  the  party  prevailing,  together  with  a  certificate  of  the  amount 


PT.  1.— TIT.  5.— CHAP.  2. — Judicial  Department. 


53 


Article  3.— The  Reporter. 


of  tlie  costs,  and  by  whom  paid,  which  remitter  shall  consist  of  a 
copy  of  the  judgment  of  the  Court  as  entered  on  the  minutes, 
and  nothing  more. 

8.  To  issue  and  sign  all  writs  and  processes  of  every  description  ^n  ^rus^and 
issued  under  the  authority  of  the  Court.  processes. 

9.  To  administer  such  oaths  and  take  such  affidavits  as  the  busi 
ness  of  the  Court  or  the  law  may  require. 


Must  ad- 
minister 
oaths. 


10.  To  discharge  whatever  other  duty  may  be  required  by  law,  form^aiiJth- 

.,  1     •         1      1  •         rn  er  official  du- 

or  necessarily  appertains  to  nis  onice.  ties. 

§  211«  lYhen  judgment  shall  be  pronounced  in  any  cause,  he     Must  tax 
shall  tax  the  costs  thereof,  item  by  item,  which  shall  be  entered  charge  only 
on  the  minutes  at  the  foot  of  the  judgment  without  charge.     He  rendered. 
shall  make  no  charge  for  attaching  the  seal  to  the  remitter,  nor 
to  any  precept  issued  by  him,  nor  for  any  thing  but  services  ac- 
tually rendered ;  nor  shall  he  record  the  bill  of  exceptions,  or 
transcript  of  the  records  from  the  Court  below. 

§  212.  Every  attorney  for  the  plaintiff  in  error,  who  argues  or     who  are 
presents  a  cause  to  the  Supreme  Court,  is  liable  to  the  Clerk  for  <^<^sts. 
costs,  except  in  a  pauper  case. 


ARTICLE  III. 


THE     REPORTER, 


Section. 

213.  Appointment  and  oath  of  Reporter. 

214.  May  appoint  an  assistant. 

215.  Must  attend  Courts,  etc. 


Section. 

216.  Reports  must  not  contain  arguments. 

217.  Penalty  for  failing  to  pviblish  reports. 

218.  Copyright  reserved  to  the  Reporter. 


§  213,  The  Reporter  of  the  Supreme  Court  holds  his  office  for      Appoint- 

^  ^,  mentand 

the  same  term  and  on  the  same  conditions  as  the  Clerk,  and  before  2^^^  «f  the 

'  Eeporter. 

entering  on  his  duties  must  take  the  same  oaths. 

§  214.  He  may,  with  consent  of  the  Court,  under  such  rule  as      May  ap- 

l^  ^  •  *       •  T-»  1  1       •  point  assist- 

tney  may  adopt,  appoint  an  Assistant  Reporter,  whose  duties  are  ant. 
the  same  as  the  Reporter's. 
§  215.  It  is  his  duty — 

1.  To  attend  all  sessions  of  the  Supreme  Court  by  himself,  or  Mustattend 

Is'  •    ,        ,  the  Courts. 

his  assistant. 

2.  To  publish  in  good  and  substantial  form  the  decisions  of  said   .Must  pub- 
Court  as  written  out,  within  six  months  of  the  time  of  their  de-  ions. 
livery  to  him. 

3.  To  furnish  one  copy  of  each  volume  of  his  Reports  to  each 


54  PT.  1.— TIT.  5.— CHAP.  2.— Judicial  Depaetment. 

Article  4. — The  Sheriff. 

Must  fur- Judge  of  the  Supreme  Court;  one  copy  to  the  Clerk  thereof,  to 

toVne'^state  be  kept  in  his  office ;  twentv-five  copies  to  the  State,  to  be  deliv- 

officers.  '"    ered  to  the  State  Librarian  ;  and  a  copy  to  each  Clerk  of  the 

Superior  Courts,  to  be  kept  in  their  offices.     For  such. copies  he 

shall  be  paid  by  the  Governor  at  the  price  of  three  dollars  per 

copy. 

§  216.  The  volumes  of  Keports  must  not  contain  any  argument^ 

Eeportsnot  or  brief  of  counsel,  beyond   a   statement   of  the  points  and  au- 
to contain.. 

argument  of  thoritlCS. 

counsel.  ^ 

§  217.  If  he  fails  to  publish  his  volumes  of  Reports  vrithin  the 

Penalty  for  time  designated,  he  forfeits  one-fourth  of  his  salary  for  every  ad- 

pubiish  Ee-  ditioual  mouth's  delay,  unless  a  majority  of  the  Court  "will  certify 

ports  as  the  iii  r»  I'Pi  "^   r-    ^  -i        ^  • 

law  requires  that  the  delay  Tras  not  from  his  fault,  or  of  those  under  his  control ; 
and  if  he  fails  to  publish  and  furnish  them  as  required  in  preced- 
ing Section,  he  also  forfeits  one-fourth  more  of  his  salary,  and 
must  be  removed  by  the  Supreme  Court. 
Copyright      §  ^1^'  "^^  shall  havo  the  copyright  to  his  Reports  in  addition  to 

forteri'^'-liis  salary. 


ARTICLE  lY. 

THE    SHERIEF. 


Section. 

219.  Sheriff  shall  attend  Supreme  Court. 

220.  If  he  fails  the  Court  may  appoint. 


Section. 

221.  Sheriff's  fees  in  the  Supreme  Court. 


§  219.  The  Sheriff  of  the  County  wherein  a  session  of  the  Su- 
Dutyof  preme  Court  is  holden,  or  his  deputy,  must  attend  daily  the  ses- 
the  County  sious  thcrcof,  obey  all  lawful  orders,  execute  all  lawful  commands 
Court  is  held  and  process,  and  preserve  order. 

§  220.   On  failure  of  said  Sheriff,  or  a  lawful  deputy,  to  attend 
Court  may  and  discharoje  the  duties  required,  or  any  part  thereof,  the  Court 

annoint    an  °  .        ^  n  ^  • 

officer.         may  appoint  some  fit  and  proper  person  for  such  purpose. 

§  221.  He   shall  receive  for  his  services  the  fees  allowed  in  the 
Sheriff's  Superior  Court  for  like  services,  and  when  he  performs  a  journey 

fcGS   in    Sq- 

preme  Court  in  the  discharge  of  his  duties  he  is  entitled  to  the  same  pay  for 
mileage  as  a  Marshal  of  the  United  States. 


PT.  1.— TIT.  5.— CHAP.  3.— Judicial  Department. 


55 


Article  1. — The  Superior  Court  and  its  Judges. 


CHAPTER    III. 

THE    SUPERIOR    COURTS    AND    THEIR    OFFICERS. 


Article  1. — The  Superior  Court  and  Judges, 
Article  2. —  The  Clerics. 
Article  3. — The  Receiver, 


ARTICLE  I. 


the   superior   court  and   its   judges. 


Section. 

222.  Election  and  official  term  of  Judg 

223.  Their  oath  of  office. 

224.  Vacancies — how  filled. 

225.  Time  of  election. 

226.  Judges  elected  to  fill  vacancies. 

227.  No  special  election — when. 

228.  "Who  are  eligible  to  Judgeship. 

229.  Shall  not  practice  law. 

230.  Shall  not  be  deprived  of  his  office, 

231.  Must  hold  Court  twice  a  year. 

232.  His  jurisdiction. 


es. 


Section. 

233.  Duties  of  the  Judge. 

234.  Shall  deliver  his  cliarge  in  writing. 

235.  Such  charge  shall  be  filed. 

236.  Jurisdiction  of  the  Superior  Courts. 

237.  Powers  enumerated. 

238.  When  the  Judge  is  absent. 

239.  Can  only  exercise  powers  granted. 

240.  When  the  Judge  is  disqualified. 

241.  May  be  impeached. 

242.  Perform  no  judicial  act  out  of  State. 


§  222.  Judges  of  the  Superior  Courts  are  elected  by  the  people 
of  and  for  each  Judicial  Circuit,  in  the  manner  and  at  the  time 
hereinafter  prescribed,  and  hold  their  offices  for  four  years,  unless 
sooner  removed  in  the  manner  prescribed  by  the  Constitution. 

§  223.  Before  entering  on  the  duties  of  their  office,  they  must 
take  the  oath  required  of  all  civil  officers,  and  in  addition  the  fol- 
lowing— viz : 

''I  swear  that  I  will  administer  justice  without  respect  to  per- 
sons, and  do  equal  rights  to  the  poor  and  the  rich,  and  that  I  will 
faithfully  and  impartially  discharge  and  perform  all  the  duties 
incumbent  on  me  as  Judge  of  the  Superior  Court  of  this  State, 
according  to  the  best  of  my  ability  and  understanding,  and  agree- 
able to  the  laws  and  Constitution  of  this  State,  and  the  Constitu- 
tion of  the  United  States.     So  help  me  God."  > 

§  224.  When  a  vacancy  occurs  (or  from  some  cause  there  is  a 
failure  to  elect),  the  Governor  shall  appoint  some  qualified  person 
to  fill  such  vacancy,  and  shall  order  a  special  election.     [And 


Election. 
and  official 
term  of  the 
Judges. 


Their  oath. 


Vacancies 
— how  fllicd 
— when  de- 
clared. 


56  PT.  1.— TIT.  5.— CHAP.  3.— Judicial  Department. 

Article  1.— The  Superior  Court  and  its  Judges. 


when,  on  tlie  day  fixed  by  the  Constitution  for  the  election  of 
Judges  of  the  Superior  Court  and  Solicitors  General,  there  is  no 
majority  vote  cast,  and  therefore  no  election,  the  office  in  such 
Circuit  shall  be,  and  is  hereby,  declared  vacant;  and  such  va- 
cancy shall  be  filled  as  is  now  provided  by  law.]  (a) 

§  225.  Such  election  shall  be  held  on  the  first  Wednesday  in 
eiectio^^  °^  January  next  thereafter,   provided  there  is  time  for  the  Govern- 
or's proclamation  of  such  election  to  be  advertised  for  as  much  as 
thirty  days  preceding  said  day. 
Judges      §  226.  Judges  thus  elected  hold  their  offices  for  a  full  term  of 
a^vaauicy^^^  fo^i*  ycars,  and  must  be  by  the  Governor  so  commissioned. 

§  227.  If,  at  the  time  a  vacancy  occurs,  the  unexpired  time  of 

The  ap-  the  (former)  incumbent  does  not  exceed  twelve  months,  the  person 

holds  with-  appointed  holds  his  office  for  the  unexpired  term,  and  there  shall 

out  an  elec-       -"  •*■  ^  ' 

tioQ-  be  no  special  election. 

§  228.  No  person  is  eligible  to  such  Judgeship  who  shall  not  have 
Who  are  been  a  resident  citizen  of  this  State  for  ten  years  iust  precedinp; 

elisrible      to  .  .  J  J  r  ^       i=> 

the  Circuit  his  elcction  or  appointment,  and  who  shall  not  have  been  an  inhab- 
itant  of  the  Circuit  over  which  he  is  to  preside  for  at  least  one 
year  next  preceding  the  said  time,  and  who  shall  not  have  been 
duly  admitted  and  licensed  to  plead  and  practice  in  the  Superior 
Courts  of  this  State  at  least  five  years  prior  to  the  same. 

§  229.   Such  Judges  are  prohibited  from  practicing  law  in  any 
Judges  of  the  Courts  of  this  State  between  the  times  of  their  election 
practice  law.  and  qualification,  but  they  may  practice  until   their  qualification 
in  any  case  in  which  they  may  have  been  actually  employed  be- 
fore their  election;   and  they  are  also  prohibited  from  practicing 
as  attorneys,  proctors,  or  solicitors,  in  the  District  or  Circuit  Courts 
of  the   United  States  after  their  election  or  while  in  commission. 
§  230.  A  person  having  been  appointed  or  elected  a  Judge  of 
Attaching  any  Circuit   can  not  be  deprived  of  his   office  by  attaching  the 
of  hi?  resi-  County  in  which  he  resides  to  a  different  Judicial  Circuit,  but  he 

dcnce  to  an-  .  -,•      ^  .,.  ••  ■,      -,  •  ^     ^     '         ^        n' 

other  Circuit  contmucs  to  discharsTC  its  duties  as  though  he  resided  m  the  Oir- 

does  not  oust         ^ 
him  from  of-  cuit. 
fice. 

§  231.  Said  Judges  must  hold  the  Superior  Courts  of  each  Cir- 
Must  hold  cuit  at  the  County  site  and  Court  House  (if  any)  of  each  County, 
each^county  or  othcr  placc  therein  designated  by  law,  twice  each  year,  at  such 
twice  ayear.  timcs  as  is  now  or  may  be  prescribed  by  the  General  Assembly. 

(a)  Acts  of  1866,  p.  136. 


PT.  1.— TIT.  5.— CHAP.  3.-~ Judicial  Department.  57 

Article  1. — The  Superior  Court  and  its  Judges. 


§  232.  The  iurisdiction  of  the  Jucloies  of  the  Superior  Courts  ^.  J^nsdic- 

'^  o  o  X  tion     co-ex- 

is  co-extensive  with  the  limits  of  this  State,  but  they  are  not  com-  J^e^tatr*^ 
pelled  to  alternate  unless  required  by  law. 

§  233.  Each  of  said  Judo;es  shall  dischars-e  all  the  duties  re-    Duties  of 

.  ^.         .  Judge. 

quired  of  him  by  the  Constitution  and  laws  for  the  Circuit  for 
which  he  was  elected  or  appointed,  although  he  may  hold  Courts 
in  other  Circuits,  and  may  also  exercise  other  judicial  functions 
for  them  when  permitted  by  law. 

§  234.  The  Judges  of  the  Superior  Courts  of  this  State  shall,  written 
in  all  cases  of  felony,  and  on  the  final  or  appeal  trial  of  all  civil  certain  cases 
cases  tried  before  them,  give  their  charges  to  the  jury  in  writing ; 
that  is  to  say,  shall  write  out  their  charges  and  read  the  same  to 
the  jury,  when  the  counsel  for  either  party  shall  require  them  to 
do  so ;  and  that  it  shall  be  error  for  such  Judge  to  give  any  other 
or  additional  charge  than  that  so  written  out  and  read. 

§  235.  The  charge  so  written  out  and  read  as  aforesaid  shall  be    shaii  be    i 

.  .  filed.  \ 

I  filed  with  the  Clerk  of  the  Court  in  which  the  same  was  given,  -   i 

'•  and  shall  be  accessible  to  all  persons  interested  in  the  same;  and 
the  Clerk  shall  give  certified  copies  thereof  to  any  person  apply- 
'^ng  for  the  same,  upon  the  payment  of  the  usual  fee.  "    '' 

§  236.   The  Superior  Courts  have  authority —       >  jurisdiction 

1.  To  exercise  original,^  exclusive,  or  concurrent  jurisdiction  (as  cour^tsm"? 
the  case  may  be)  of  all  causes,  both  civil  and  criminal,  granted  inLuasS."^' 
to  them_by_the  Constitution  and  laws. 

2.  To  exercise  the  powers  of  a  Court  of  Equity.  Equitable 

i  '    -  •  ... i-        «^  powers. 

3.  To  exercise  appellate  iurisdiction  in  all  civil  cases  tried  by     May  try 

•         1        r^  /^  1  •!•  r  ^  i  appeals  from 

a  jury  m  the. County  Court,  or  where  judgment  is  confessed,  and  the  couuty 
from  judgments  of  the  Ordinary. 

4.  To  exercise  a  general  supervision  over  all  inferior  tribunals.      May  cor- 

.  1  -1  -^      1    1       -,  1       rect  errors  of 

and  to  review  and  correct  in  the  manner  prescribed  by  law  the  inferior  tri- 

^  ^      ^  bunals. 

judgments  of  the  Justices  of  the  Inferior  Court,  the  Justices  of 
the  Peace,  Corporation  Courts  or  Councils,  or  any  inferior  judi- 
cature, or  any  person  exercising  judicial  powers,  and  of  the  Ordi- 
nary, except  in  cases  touching  the  probate  of  wills  and  the  grant- 
ing of  letters  of  administration,  when  there  must  be  a  special 
jury  impanneled. 

5.  To  punish  contempt  by  fines  not  exceedino;  two  hundred  dol-     May  pun- 

,  IT..  , .  ,  ish  for  con- 

lars,  and  by  imprisonment  not  exceeding  twenty  days.  tempts. 

6.  To  exercise  such  other  powers,  not  contrary  to  the  Constitu-    ^^ay  exer- 

■■•  '  •^  cise  all  other 

tion,  as  are  or  may  be  given  to  such  Courts  by  law.  legal  powers 

§  237.  The  Judges  of  the  Superior  Courts  have  authority — 


58  PT.  1.— TIT.  5.— CHAP.  3.— Judicial  Department. 


Article  1.— The  Superior  Court  and  its  Judges. 


Judges  may      1.  To  grant  for   their  respective   Circuits   writs   of  certiorari^ 
ff^certiV-  siipersededs,  quo  warranto,  mandamus^  habeas  cor'pus,  and  bails  in 

rar%  sioper-  .  it, 

sedeas,  etc.   actions  ex-deticto. 
May  grant      2.  To  grant  bills  quia-timet,  writs   of  injunction,  prohibition, 

bills  quia-         -,  . 

timet,  etc.     and  Tie-cxeat. 

3.  To  grant  all  other  writs,  original  or  remedial,  either  in  law 
May  grant  or  equitv,  that  may  be  necessary  to  the  exercise  of  their  iurisdic- 

other  writs.      .....  "^  i  m  .       i 

tion,  which  is  not  expressly  prohibited. 

4.  To  hear  and  determine  questions  arising  upon  writs  of  habeas 
.^nd^^diter-  ^^^P^^  ^1'  ^^^^5  whcn  propcrlj  brought  before  them  ;  all  motions  to 
to^jTaTJas  gi'^ii^j  revive,  or  dissolve  injunction,  to  give  new  security  or  lessen 
tkuS'to  dis-  ^^®  amount  of  bail,  and  to  perform  any  and  all  other  acts  required 
?fons,'er"  of  them  at  Chambers. 

'     5.  To  administer  oaths  and  to  exercise  all  other  powers  neces- 
Mayadmin-  sarily  appertaining  to  their  jurisdictions,  or  which  maybe  granted 
them  by  law. 

§  238.  The  authority  granted  in  the  preceding  Section  to  each 
When  a  Judge  in  his  own  Circuit  may  be  exercised  by  any  Judo-e  of  an- 

Judge  IS  ab-  o  ./  */  ./  o 

sentfrombis  other  Circuit  whencvcr  the  resident  Judge  is  absent  from  the  Cir- 

C 1  r  c  u  1 1  or  a 

I'S^o'tT^V  ^^^*^5  ^0  that  the  business  can  not  be  done  as  speedily  as  necessary, 
ex^e?c?se  ^^  ^^  iudisposod  or  interested,  or  is  laboring  under  any  disqualifi- 
authonty.     q^lHou.  oy  inability  to  serve,  or  in  case  the  Circuit  should  be,  from 

any  cause,  without  a  Judge.     The  authority,  when  thus  exercised, 

should  show  the  grounds. 

§  239.  Said  Judges   can  not  exercise   any  power  out  of  term 
ex^e'^^cTse  ^i^®?  cxccpt  the  authority  is  expressly  granted  ;  but  they  may,  by 
frr^oilf^of  oi'cler  granted  in  term,  render  a  judgment  in  vacation. 
term  time.         §240.   When  from  any  cause  the  Judge  of  the  Superior  Court 
When  Judge  is  disqualified  from  presiding,  he  shall  procure   the  services  of  a 

is    disquab-     -fin  ^  n'  '  -t  -pit 

fiedbemust  J udgc  01  another  (Jircuit  to  try  said  cause,  ii  he  has  to  appoint 

obtain     tbe  ^  J  y  rr 


services  of  ail  adiournod  term  for  that  purpose.     If  the  parties  litigant  con- 

anotber  *^  ri  .    .  . 

Judge,  or  ggnt  thcrcto  and  select  any  attorney  practicing  in  the  Court  to 

an  attorney  ^  ./  ./    j.  o 

maypreside  preside  in  sucli  a  case,  the  Judge  shall  have  such  consent  entered 

Dy  consent.    ■■■  ^  o 

on  the  minutes,  and  the  attorney  so  selected  shall  exercise  all  the 
functions  of  Judge  in  that  case. 

§  241.  If  any  Judge  does  not  comply  with  the  provisions  of  the 
Maybe  preceding   Section  within  a  reasonable  time,  when  it   is  in  his 

Impeached.  . 

power  to  do  so,  it  is  a  ground  of  impeachment. 

§  242.  No  Judge  of  the  Superior  Courts  shall  have  authority  to 
form  no  ju-  perform  any  judicial  act  required  of  him  by  law  when  beyond  the 

dicialactout  .       .     ^.      .      '^    Z.     ,  .      ^  -"■  "^  "^ 

of  the  State,  jurisdiction  01  this  State. 


PT.  1. — TIT.  5. — CHAP.  3. — Judicial  Department. 


59 


Article  2.— The  Clerks  of  the  Superior  Courts. 


ARTICLE  II. 

THE    CLERKS    OF    THE    SUPERIOR    COURTS 


Section. 

243.  Election  Clerk  Superior  Court. 

244.  Can  not  practice  law. 

245.  Vacancy — how  filled, 

246.  Elected  to  fill  a  vacancy. 

247.  In  case  of  a  tie,  etc. 

248.  An  appointment  must  be  made. 

249.  Who  may  act. 

250.  Appointee  may  hold  to  end  of  term. 

251.  Judge  may  appoint  in  certain  cases. 

252.  How  long  such  appointee  may  hold. 

253.  Oath  of  Clerk  of  Superior  Court. 


Section. 

254.  Must  give  bond  and  security. 

255.  May  appoint  deputies. 

256.  The  place  of  the  office — duties. 

257.  Powers  of  the  Clerk,  etc. 

258.  Penalty  for  a  failure  of  duty. 

259.  Clerk  svibject  to  rule. 

260.  Subject  after  retiring  from  office. 

261.  How  removed  from  office. 

262.  His  office  svibject  to  be  examined. 

263.  Pay  when  not  otherwise  provided. 

264.  Proceedings  if  pay  is  refused. 


§  243.  The  Clerks  of  the  Superior  Courts  are  elected  for  the  Election 
term  of  two  years,  and  are  eligible  during  the  same  time  to  be  the  superior 
also  Clerks  of  the  Inferior  Courts. 

§  244.  No  person  is  elio^ible  to  the  office  of  Clerk,  or  to  perform    cierk  can 

r  o  7  r  not  practice 

any  official  duty  as   such,  who,  while  in  such  capacity,  practices  i-"^^^- 
law  in  his  own  name  or  another's,  as  a  partner  or  otherwise,  in 
any  Court  of  Law  or  Equity  in  this  State,  except  in  his  own  case. 

§  245.  If  a  vacancy  occurs  (or  will  shortly),  any  two  or  more     Vacancy 

J  \  J  n         J  — how  sup- 

Justices  of  the   Inferior  Court  of  the   County  where  it  happens  p^^^^- 

shall  give  notice  in  one  or  more  of  the  public  gazettes  of  said 

County  (if  any),  and  at  the  Court  House,  and  at  three  or  more  of 

the  most  public  places   of  said  County,  twenty  days  previous  to 

the  day  of  election,  which  shall  be  appointed  by  them. 

§  246.  The  person  elected  on  said  day  shall  hold  his  office  for  to  mf  a  va- 

the  unexpired  term  of  his  predecessor.     The  returns  of  the  elec-  only" the  un- 

.  -  1/-1  1  ••I-  expired 

tion  must  be  made  to  the  Governor,  who  must  commission  mm.      term. 
§  247.  Should  any  two  or  more  candidates,  at  an  election  to  fill    in  case  of 

^  '^  _  '  ^  a  tie  a  Clerk 

said  vacancy  or   at  a  rea;ular  election,  have  the  liio;hest  and  an  ^^  appointed 

^  ci  J  c^  jiufl  a  new 

equal  number  of  votes,  said  Justices  shall  appoint  and  advertise  ^ll^f^^  °^" 
another  election  in  the  manner  prescribed  in  the  preceding  Sec- 
tions, and  so  do  until  a  choice  is  made. 

§  248.  As  soon  as  a  vacancy  occurs,  or  in  anticipation  of  it,   ,  V-"^^^  ^^ 

*'  '  v:  J  election     i  s 

said  Justices,  or  a  majority  of  them  in  commission,  must  meet  and  j^^^^g^^^^^'^^^ 
appoint  some  qualified  person  to  discharge  the  duties  of  Clerk  P^i"*^^- 
until  the  vacancy  is  filled.  ^,  ,   ^^ 

••'  Clerk  of  In- 

§  249.  If  from  any  sudden  emergency  there  is  a  vacancy,  and  Jjay^cras 
it  is  not  immediately  supplied,  the  Clerk  of  the  Inferior  Court  perlm- court 
must  discharge  the  duties  of  said  Clerk  until  one  is  appointed ;  ^ejjJ;JetT^* 


60  PT.  1.— TIT.  5.— CHAP.  3.— Judicial  Department. 

Article  2. — The  Clerks  of  the  Superior  Courts. 

and  in  case  the  vacancy  occurs  at  the  same  time  in  both  offices, 

the'  Ordinary  or  his  clerk  shall  thus  act. 

§  250.  When   a  vacancy  occurs,  and  it  is  not  more  than  six 

If  oniysix  nionths  from  the  time  the  election  can  be  appointed  by  said  Jus- 
months  of  an  I  r  J 

?erin^heT-v  ^^^^^  ^^^  ^^-^^  Until  the  cxisting  term  will  expire,  the  person  or 
rv^aeancy  psrsons  appointed  shall  discharge  the  duties  of  the  office  for  the 
Si!°^"^^  ^^^^^^®  of  the  term,  and  there  shall  be  no  special  election. 

§  251.  If  there  is  a  vacancy,  or  the  Clerk  and  his   deputy  for 
Judge  may  anv  rcasou  do  not  act  as  Clerk  at  the   time  provided  by  law  for 

a  p  point  a        ^'^  ^  ^  -^^  *' 

Clerk  in  cer- l^ioldins;  any  of  said  Superior  Courts,  the  presidino;  Judc^e  thereof 

tain  eases.  .  .  . 

shall  appoint  a  Clerk,  who  holds  his  office  during   the  term  and 
'     for  ten  days  thereafter,  and  any  act  that  he  does  daring  said  time 
that  the  Clerk  could  have  done  is  valid. 

§  252.  If  by  the  expiration  of  said  time  there  is  no  one  else  to 
Such  ap-  act  as  Clerk,  said  last  mentioned  appointee  may  continue  as  such 

pointee  may  '  x  l  ^ 

ekction^^^'^"  ^-^^^^  tlicrc  is  an  appointment  or  election;  and  any  appointee  or 
other  person  lawfully  discharging  said  duties  shall  continue  to  do 
so  until  there  is  an  election  and  qualification. 

§  253.  The  Clerks,  before  entering  upon  the  discharge  of  their 
cSK the  ^^^^^^^'  whether  appointed,  elected,  or   such  by  operation  of  law, 
^^'^^P^^'^^^  must,  besides  the  oath  required  of  all  civil  officers  (unless  already 
taken),  take  and  subscribe  to  the  following  oath : 

"I  do  swear  that  I  will  truly  and  faithfully  enter  and  record 
all  the  orders,  decrees,  judgments,  and  other  proceedings  of  the 

Superior  Court  of  the  County  of  ,  and   all  other  matters 

and  things  which  by  law  ought  by  me  to  be  recorded ;  and  that 
I  will  faithfully  and  impartially  discharge  and  perform  all  the 
duties  required  of  me  to  the  best  of  my  understanding.  So  help 
me  God." 

When  said  oath  is  taken  by  the  Clerks  of  the  Inferior  Court, 
^Appointees  i\^q  Ordinaries,  or  their  deputies  acting  in  a  certain  contingency 
takeoSh^^^®  Clcrks  of   the   Superior   Court,  they  may  take  it  before   any 
person  authorized  to  administer  an  oath,  and  enter  it  on  the  min- 
utes of  the  Superior  Court. 

§  254.  They  shall  also  at  the  same  time  (except  those  appointed 
giveSmd.    ^y  ^^'^^  Judges  of  the  Superior  Courts  and  those  so  by  operation 
of  law)  execute  a  bond  in  the  sum  of  three  thousand  dollars,  with 
good  security. 

§  255.  They  shall  have  the  power  to  appoint  a  deputy  or  depu- 
ties, and  may  require  from  them  bonds  with  good  security,  who 


PT.  1.— TIT.  5.— CHAP.  3.— Judicial  Department.  61 

Article  2. — The  Clerks  of  the  Superior  Courts. 

shall  take  the  same  oath  as  the  Clerks  do  before   entering  upon  the  sujefior 
the  discharge  of  their  duties,  and  whose  powers  and  duties  are  app^nt^de- 
the  same   as  long  as    the  principal  continues  in  office,  and  not  J^Vsi  ^[^ke 
longer,  for  the  faithful  performance  of  which  they  and  their  secu-  give  bond! 
rities  are  bound. 

§  256.  It  is  the  duty  of  the  Clerks  of  the  Superior  Court — 

1.  To  keep  their  offices  and  all  things  belonging  thereto  at  the  officl^must 
County  site  and   at  the  Court   House,  unless  impracticable  from  ^^  ^^^^' 
any  cause,  when,  by  special  permission  of  the  Justices  of  the  In- 
ferior Court,  it  may  be  kept  at  some  other  designated  place  not 

more  than   one  mile  therefrom,  of  which  public  notice  must  be 
given. 

2.  To  attend  all  sessions  of  the  Courts  and  keep  fair  and  regu-    cierk  must 

■■■  ^  c5       attend  Court 

lar  minutes  of   their  proceedin2;s  from  day  to  day,  includini?  a  f^":^\^^PV^^ 

■■•  o  ./  ./  7  o         minutes,  m- 

transcript  of  the  Judge's  entry  on  his  dockets  when  not  more  f^^f^f  ^"^ 
fully  shown  in  a  book  kept  for  that  purpose.  ^        Docket^^^^ 

3.  To  issue  and  si2;n  (and  attach  seals  thereto  when  necessary)    Must  issue 

^       ^  ^  ^  ^^  ■'  processes  of 

every  summons,  subpoena,  writ,  execution,  process,  or  order,  or  ^^^  ^^^^^• 
other  paper  under  the  authority  of  the  Court. 

4.  To  keep  in  Court,  convenient  of  access,  the  followinsr  dock-    Must  keep 

■•■  .    .  certain  dock- 

ets— to  wit:  a  Common  Law  Docket  of  civil  cases,  in  which  must  ^^^  as  foi- 

'  _  lows :   Com- 

be  entered  by  appearance  term  the  names  of   the  parties   and  g^^^^^^^^^^^ 

attorneys,  the  nature  of  the  action,  and  the  Sheriff 's  return ;  an 

Appeal  Docket  and  an  Equity  Docket,  in  which  must  be  entered  Dof^gf^ 

all  the  cases  to  the  respective  terms  to  which  they  are  returned 

or  stand  for  trial,  together  with  other  entries,  as  in  the  case  of  the 

Common  Law.  Docket. 

A  Claim  Docket,  a  Certiorari  and  an  Illegality  Docket  in  the     ciaim 

'  &         J  Docket. 

same  manner.     A  Motion  Docket  for  entering;  all  motions  to  be    ,,  . 

®  Motion 

submitted  to  the  Court,  showing  the  nature  of  the  motion,  and  the  i^oc^^t. 
parties  and  attorneys  thereto. 

A  Subpoena  Docket  for  civil  cases,  and  one  for  criminal  cases,    Subpcena 
in  which  must  be  entered  the  case  in  which  the  subpoena  issues, 
the  date,  the  name  of  witness,  for  whom  issued,  and  to  whom  de- 
livered, and  any  return  of  the  Sheriff  thereon. 

In  the  former  must  be  likewise  entered,  and  in  the  same  man-   criminal 
ner  the  issuing  of  commissions.     A  Trial  Docket  of  Criminal  Cases 
in  which  must  be  entered  all  the  criminal  cases  in  the  order  the 
indictments  are  found,  the  nature  of  the  offense,  and  the  attorneys 
for  the  defense. 


62  PT.  1.— TIT.  5.— CHAP.  3.— Judicial  Department. 

Article  2. — The  Clerks  of  the  Superior  Courts. 

A  docket  in  which  must  be  entered  all  criminal  cases  which 
of  trfminai  ^^^^  been  on  the  Criminal  Docket  for  as  much  as  five  years  with- 
wMc^ there  ^^^  ^^J  ©xistiiig  arrcst,  and  which  must  be  inspected  by  the  Court 
forfive^yea?3  ^*  ^^^^t  oncG  a  jcar,  that  if  necessary  any  case  may  be  re-transfer- 
red to  the  Criminal  Docket. 

Execution  Docket,  and  enter  therein  the  names  of  plaintiffs, 

docke?^^^°^  their  attorney,  and  the  defendants,  the  amount  of  principal  and 

interest  and  costs  ;   the  date,  the  term  to  which  returnable,   to 

whom  and  when  delivered,  and  by  whom  and  when  returned,  and 

,v        an  entry  of  satisfaction  or  nulla  bona,  as  the  case  may  be,  with 

the  dates  thereof. 

Duplicates  of  the  Common  Law,  Appeal,  and  Criminal  Dockets, 
Copy  dock-  one  for  the  use  of  the  Bench,  the  other  for  the  use  of  the  Bar,  in 

€ts   for    the  -'  ' 

Bar.  which  last  must  be  copied  from  term  to  term  all  the  entries  made  in 

the  former.  All  appeal  cases  must  be  entered  on  the  same  Appeal 
Docket  in  the  order  they  are  entered  on  the  minutes,  and  from  the 
Inferior  Court  in  the  same  order  and  at  the  time  received.  Divorce 
cases  are  first  to  be  entered  on  the  Equity  Docket,  and  after  one 
trial  are  to  be  entered  on  the  Appeal  Docket  in  their  proper  order 
from  the  minutes. 

5.  To  record  in  well  bound  books  within  six  months  after  the 
Must  keep  final  determination  of  any  civil  suit,  all  the  proceedinp-s  relatino^ 

record    of  J  '  1  to  o 

civil  suits,    thereto. 

Must  keep      ^'  ^^  keep  wcll  bouud  books  for  recording  all  deeds,  mortgages, 
deeds.^^  ^^  ^^^  Other  lieus  and  bills  of  sale  separately. 

7.  To  have  properly  stamped  and  labeled,   and  numbered   or 
Must  label  lettered,  if  required,  all  the  books  herein  enumerated,  and  to  keep 

andindex  .  iii  ti     t  i  ^        /~i  \  •! 

the  books  of  for  cach  (cxccpt  the  dockets  called  by  the  Court),  a  proper  index, 
and  to  supply  any  of  said  books  or  indexes  needed,  and  to  tran- 
scribe the  contents  of  any  books  of  record  which  may  be  in  a  di- 
lapidated condition. 

8.  To  keep  all  the  books,  papers,  dockets,  and  records  belong- 
8 e^Tet hieing  to  their  office  with  care  and  security,  and  the  papers  filed, 
to  be^rrea-  arranged,  numbered,  and  labeled,  so  as  to  be  of  easy  reference. 

yre  erence      g^  ^^  procurc  and  prcscrvo  for  public  inspection  a  complete  file 
Must  pre-  of  all  newspapcrs  in  which  their  advertisements  appear,  and  have 

serve    and  i     jr  x  x  7 

have  bound  them  bouud  in  volumes  of  suitable  size  to  be  deposited  and  kept 

news  papers  x  r 

idvlr^tises.^^  with  their  other  records. 

Must  keep      ^^'  ^o  keep  at  their  offices  all  publications  of  the  Laws  of  the 
ces^au  bo^^s  United   States  furnished  by  the    Grovernor,  and  the  Laws  and 


PT.  1.— TIT.  5.—  CHAP.  3.— Judicial  Department.  63 

Article  2. — The  Clerks  of  the  Superior  Courts. 
Journals  of  this  State,  all  Statute  Laws,  Dig-ests,  this  Code,  theanddocu- 

'  >         CD  1  ■>       ^     ments  a  i  s  - 

Supreme  Court  Reports,  and  all  other  law  books,  or  other  public  *'|{jjfj^*|:/^^ 
documents  distributed  to  them  for  the  public  convenience.  venience. 

11.  To  procure  within  thirty  days  after  their  qualification  (if    Must  keep 
not  already  done),  a  substantial  seal  of  office  with  the  name  of  the  teai.'^ 
Court  and  County  inscribed  thereon. 

12.  To  make  out  and  deliver  to  any  applicant,  upon  payment    Mustcerti- 

.fy  copies  of 

of  legal  fees,  a  correct  transcript,  properly  certified,  of  any  mm-  papers. 
ute,  record,  or  file  of  their  office. 

13.  To  make  out  transcripts  of  the  record  of  all  cases  for  the   Mustmake 

,  ^       ^  out    records 

Supreme  Court  as  the  laws  require.  ^^^  supreme 

14.  To  make  a  minute  on  all  conveyances  or  liens  of  the  day  Mustmake 
left  for  record,  and  the  day  recorded,  to  be  signed  officially,  which  record  of 
shall  be  evidence  thereof,  and  to  attest  deeds  and  other  written  attest  deeds 

^  lor  registra- 

instruments  for  registration.  t*^"- 

15.  To  administer  all  oaths  durina;  term  time  required  by  the     Must  ad- 

.  minister 

Court,  and  to  record  all  oaths  required  by  law.  oaths. 

16.  To  perform  such  other  duties  as  are,  or  may  be  required  by      Must  do 

,  .,  '       .       ,^     '        re*  other  duties 

law,  or  as  necessarily  appertain  to  their  omces.    .  of  office. 

§  257.  The  Clerks  of  said  Courts  have  authority — 

1.  To  administer  oaths  and  take  affidavits  in  all  cases  permit-  May  admin- 

ister oaths 
ted  by  law,  or  where  the  authority  is  not  confined  to  some  other  ^y  la^^. 

officer. 

2.  To  receive  the  amounts  of  all  costs  due  in  the  Court  of  which      May  re- 
they  are  Clerks,  and  other  sums  whenever  required  to  do  so  by  due. 
law,  or  order  of  the  Judge,  and  not  otherwise. 

3.  To  advertise  under  the  same  rules  and  restrictions  as  Sheriffs.       May  ad- 

vertise. 

4.  To  exercise  such  other  powers  as  are  or  may  be  conferred    May  exer- 

,  ,        ,  cise  other  le- 

upon  them  by  law.  gai  powers. 

§258.  Any  such  Clerk  failing  to  perform  any  duty,  or  to  exer-   penaityfor 
cise  any  authority  when  required,  set  forth  in  the  two  preceding  duty .^^^ 
Sections,  is  subject  to  be  fined  for  each  offense  by  the  presiding 
Judge,  during  term  time,  as  for  a  contempt,  on  information  of  any 
party  aggrieved,  of  which  he  shall  have  notice  in  writing. 

§  259.  If  any  of  such  Clerks  receive  any  money  on  any  suit  or    cierk  sub- 
judgment  from  their  Courts,  or  otherwise,  and  do  not  faithfully  "'^''^ '"^ '''^^* 
account  for  it,  they  are  liable  to  rule  as  Sheriffs  are,  and  they  and 
their  sureties  are  likewise  liable  on  their  official  bond. 

§  260.  They  are  subject  to  the  rule  and  order  of  their  respective    subject  to 

riilp  {Lftpi*  out 

Courts  after  their  retirement  from  office  as  Sheriffs  are.  of  office. 


64 


PT.  1.— TIT.  5.— CHAP.  3.— Judicial  Department. 


Article  3. — The  Receiver. 


§  261.  They  are  subject  to  be  removed  from  office  by  the  Judge 

m^ed  ft^om'  ^^  ^^^  Said  Court  for  any  sufficient  cause,  including  incapacity  or 

°^"®'         misbehavior  in  office,  charges  for  which  must  be  exhibited  to  the 

Court  in  writing,  and  the  facts  tried  by  a  special  jury,  such  Clerk 

being  entitled  to  a  copy  of  the  charges  three  days  before  trial. 

§  262.  Their  offices  are  subject  to  an  examination  by  the  Grand 

Clerk's  of-  Juries,  their  committees,  or  any  person  whom  they  may  especial- 
Ace    subject  '  7  ./    r  j         j        i 

to  examina-  ly  empowcr  to  rcport  to  the  same,  or  a  succeeding  Grand  Jury, 
Grand  Jury  qj.  to  the  Jud<2;e  of  the  Supcrior  Court,  who  shall  submit  in  writing 

or    commit-  o  i  ^  o 

*®®-  the  condition  of  said  offices,  and  specify  any  neglect  of  duty,  or 

any  thing  done  wrongly  or  corruptly  by  such  Clerks. 

§  263.  For  any  services  rendered,  or  expenses  incurred  legally, 
compen-  by  Said  Clerks  for  their  offices  where  no  pay  is  specially  provided, 

sation  when     "^  n     ^         r-i  i  n     y 

none  pre- they  must  be  paid  out  of  the  County  treasury  by  order  of  the 
Justices  of  the  Inferior  Court,  after  examining  and  passing  upon 
their  accounts  and  vouchers,  and  finding  them  correct  and  reason- 
able. 

§  264.  If  said  Justices  refuse  to  allow  and  order  such  accounts 
ferSi^*colrt  paid.  Said  Clerks  may  apply  for  and  obtain  a  mandamus  from  the 
iow%ay^  Judge  of  the  Superior  Court,  who  shall  hear  and  determine  the 

mandamus  ,•  jv*i  j'         iif*-.  •!• 

lies.  questions,  and  submit  any  disputed  tact  to  a  special  jury. 


ARTICLE  III. 


THE     RECEIVER. 


Section. 

265.  Receiver  may  be  appointed — when. 

266.  Funds  invested  pending  litigation. 

267.  Duties  and  liabilities  of  Receiver. 


Section. 

268.  Receiver  required  to  give  bond, 

269.  Receivers  of  banks,  etc. 


§  265.  When  any  fund  or  property  may  be  in  litigation,  and 

Eeeeiver  i]^q  rights  of  either  or  both  parties  can  not  otherwise  be  fully  pro- 
may  be  ap-  ^  .  ■"■  *^ 

Fs°a"n^offic°er  toctcd,  or  whcn  thcro  may  be  a  fund  or  property  having  no  one  to 
rior^courr*  manage  it,  a  Receiver  of  the  same  may  be  appointed  (on  a  proper 
case  made),  by  the  Judge  of  the  Superior  Court  having  jurisdic- 
tion thereof,  either  in  term  time  or  vacation,  and  such  Receiver  is 
an  officer  of  said  Court. 
Pending  a      §  ^^^'  The  presiding  Judge,  in  his  discretion  under  the  law, 
fSmaVbe  may^ordcr  any  fund  in  the  hands  of  a  Receiver,  or  any  other  of- 
Stete  bonds^  ficcr  of  Court  awaiting  the  determination  of  a  protracted  litiga- 


PT;  1.— TIT.  5.— CHAP.  3.~JuDiciAL  Department. 


65 


Article  3. — The  Receiver. 


Duty  and 
liability  of 
Etceiver. 


tion,  to  be  invested  in  State  bonds,  as  executors  and  administra- 
tors are  authorized  to  do. 

§  267.  The  Receivers  so  appointed  must  discharge  their  trust 
according  to  the  order  or  decree  of  the  Courts  appointing  them, 
and  are  at  all  times  subject  to  their  orders,  and  may  be  brought  to 
account  and  removed  at  their  pleasure. 

§268.  The  Judges  of  the  Superior  Courts  may,  in  their  discre-    Judge  may 

^  _  ,  ^    ^  require    Re- 

tion,  require  such  Receivers  to  ffive  bonds  conditioned  for  theceiverto 


give  bond. 

faithful  discharge  of  the  trust  reposed,  and  if  they  require  them, 
they  must  fix  the  amount  and  the  sufficiency  of  the  security,  and 
also  regulate  their  compensation. 

§  269.  Receivers  of  banks,  or  other  corporations  hereafter  ap-  Eeceivers 
pointed  by  any  power,  are  amenable  to,  and  must  make  their  re-  tions^'^\m[st 
turns  to,  the  Superior  Court  of  the  County  where  they  reside  at  the  to"  superior 

p     ,  .  Court. 

time  01  the  appointment. 


CHAPTER     [V. 

THE    COUNTY    COURT    AND    ITS    OFFICERS. 


Article  1. — Tlie  County  Court, 

Article  2. — The  County  Judge, 

Article  3. — The  County  Solicitor. 

Article  4. — The  Clerk  of  the  County  Court, 

Article  5. — The  Sheriff  and  Bailiffs, 


ARTICLE  I. 

county   court. 


Section. 

270.  Organization  and  name. 

271.  Sessions  and  time  of  holding. 

272.  Where  to  be  held. 

273.  Who  presides  when  Judge  is  disabled 
271.  Jurisdiction  generally. 

275.  At  semi-annual  sessions. 

276.  Quarter  sessions. 

277.  Extra  sessions, 

278.  Criminal  jurisdiction. 

2T9.  A  Court  of  Inquiry — when. 

280.  Is  a  Court  of  Record. 

281.  Its  powei's. 

282.  Proceeding  at  semi-annual  sessions. 

283.  Quarter  sessions. 

284.  Attachments — when  returned. 

285.  Jury  box  and  Grand  Jury. 

286.  Petit  Jury. 

5 


Section. 

287.  Oath  of  Juries. 

288.  Amendments. 
Defenses. 

Time  of  trial — continuances. 
Mode  of  trial. 
Claims — how  tried. 
Attachments— how  tried. 
Attendance  of  witnesses. 
Moulding  verdicts,  etc. 

296.  Appeals. 

297.  Certiorari  in  civil  cases. 

298.  In  criminal  cases. 

299.  Duty  of  Solicitor  General. 
Sales — how  made. 
Criminal  practice. 
Indictment— when  tried. 
Counsel  and  witnesses  for  accused. 


289. 
290. 
291. 
292. 
293. 
294. 
295. 


300. 
301. 
302. 
303. 


66  PT.  1.— TIT.  5.— CHAP.  4.— Judicial  Department. 

Article  1. — Count}^  Court. 

§  270.  A  Court  shall  be  organized  in  each  County  in  this  State, 
Name.      to  be  Called  the  County  Court. 

§  271.  The  County  Court  shall  hold  semi-annual  sessions  in  the 
Sessions.  Several  Counties  on  the  same  days  as  the  Inferior  Courts  are  now 
held ;  and  two  additional  terms,  which  shall  be  known  as  quarter 
sessions,  which  shall  be  held  at  times  as  near  equi-distant  between 
the  semi-annual  sessions  as  practicable — said  time  to  be  fixed  by 
the  County  Judge. 

§  272.  Said  Court  shall   be  held  at  the  Court  House  of  the 

Where  held.  CoUUty. 

§  273.  In  case  of  a  vacancy,  or  when  the  Judge  can  not  preside, 
Vacancy  or  from  sickucss  or  from  any  other  cause,  either  of  the   Justices  of 

disability  of  .  "^     .  ^ 

Judge.         the  Inferior  Court  may  preside  until  such  vacancy  la*  filled  or  such 
disability  is  removed. 

§  274.  The  County  Court  shall  have  the  jurisdiction  in  all  civil 
jurisdic-  and  criminal  cases  hereinafter  specified,  and  such  jurisdiction  shall 
be  exercised  as  hereinafter  provided. 

§  275.  Said  Court,  at  its  semi-annual  sessions,  shall  have  con- 
At  semi-  currcut  jurisdiction  with  other  courts  of  law  in   all  civil  cases 
^ilnT^  ^^^'  where  the  amount  involved  is  over  fifty  dollars,  of  which  exclu- 
sive jurisdiction  is    not  vested  in  some    other   Court,   including 
jurisdiction  in  legitimating  persons  and  changing  names. 

§  276.  The  jurisdiction  of  said  Court  at  the  quarter  sessions 
At  quarter  shall  be  coufined  to  criminal  cases,  and  to  civil  cases  without  limit 
sessions.  ^^  ^^  amount,  arising  out  of  the  relation  of  master  and  servant, 
whether  suits  for  wages,  applications  to  enforce  performance,  or 
for  other  purposes ;  also  applications  for  the  eviction  of  trespass- 
ers, intruders,  and  tenants  holding  over,  for  the  partition  of  per- 
sonal property,  for  the  trial  of  possessory  warrants,  or  proceed- 
ings under  distress  warrants,  and  habeas  corpus  cases. 

§  277.  The  Judge  of  said  Court  shall  have  power,  whenever  he 
Extra  ses-  shall  deem  it  necessary  for  the  delivery  of  the  jail  or  for  the  trial 
sions.  ^f  ^jjQ  cases  specified  in  the  preceding  Section,  to  call  extra  ses- 

sions of  said  Court ;  but  at  such  extra  sessions  there  shall  be  no 
jury  trial  in  civil  cases  unless  demanded  by  one  of  the  parties 
thereto,  in  which  case  the  Judge  shall  cause  a  jury  of  five  to  be 
immediately  summoned  to  try  the  same.  In  all  other  cases  the 
proceedings  shall  be  the  same,  in  both  semi-annual  and  quarter 
sessions. 

§  278.  The  criminal  jurisdiction  of  the  County  Court,  at  its 


PT.  1.— TIT.  5.— CHAP.  4.— Judicial  Department.  67 

Article  1. — County  Court, 
semi-annual  and  quarter  sessions,  extends  to  all  offenses  of  which      criminal 

.     -,.      .         .  .  1  /~i  jurisdiction. 

exclusive  jurisdiction  is  not  vested  in  some  other  Court. 

§  279.  If  any  offense  is  charged  which  is  within  the  jurisdiction  ^^^^^0^ ^  ^ 
of  the  County  Court,  and  upon  the  trial  thereof  it  shall  appear  ^^^^y- 
that  the  crime  committed  is  of  a  grade  beyond  its  jurisdiction? 
the  trial  thus  begun  shall  be  regarded  as  if  before  a  Court  of  In- 
quiry, and  the  Court  shall  dispose  of  the  case  accordingly. 

§  280.  The  County  Court  is  a  Court  of  Record,  and  the  pro-     conrt  of 
ceedings  shall  be  recorded  as  in  the  Superior  Court.    ' 

§  281.  The  powers  of  said  Court  to  punish  for  contempt  shall    Powers. 
be  the  same  as  those  of  the  Superior  Court;  and  the  general  pro- 
visions of  this  Code,  from  Section  191  to  Section  197,  inclusive, 
concerning  tKe  powers  of  a  Court,  apply  to  the  County  Court. 

§  282.  In  the  semi-annual  sessions  the  mode  of  commencing     Euies  of 
suit,  service,  and  proceedings  in  general,  shall  be  the  same  as  in  ^^ 
the  Superior  Court,  and  said  County  Court  shall  exercise  its  juris- 
diction under  the  rules  of  said   Superior  Court,  unless  specially 
excepted. 

§  283.  In  all  civil  cases,  not  herein  excepted,  brought  to  the  summons. 
quarter  sessions,  the  plaintiff  shall  procure  from  the  Court  a  sum- 
mons, in  which  shall  be  set  forth  the  ground  or  grounds  of  com- 
plaint and  the  time  of  trial,  which  summons  shall  be  served  by 
the  Bailiff  or  other  officer  at  least  five  days  before  the  time  of 
trial. 

§  284.  Attachments,  claims,  garnishments,  and  other  like  pro-     Attach- 
ceedings  returnable  to  the  semi-annual  sessions,  shall  be  served  at  ^^^  ^'  ^  ^' 
least  fifteen  days  before  the  first  day  of  the  session  to  which  the 
same  are  returnable ;    and  the  same  class  of  cases,  returnable  to 
the  quarter  sessions,  shall  be  served  not  less  than  ten  days  before 
the  first  day  of  the  session  to  which  the  same  are  returnable. 

§  285.  Immediately  after  his  election  and  qualification,  the  jury  box 
Judge  and  Sheriff  shall  make  out  a  list  of  persons  from  the  Re-  jury. 
ceiver's  digest  who  are  liable  to  jury  duty,  which  shall  be  depos- 
ited in  a  jury-box.  At  each  semi-annual  and  quarter  session  the 
Judge  shall  draw  therefrom  not  more  than  eighteen  nor  less  than 
thirteen  Grand  Jurors,  in  the  manner  pointed  out  by  law  for  the 
drawing  of  Grrand  Jurors  in  the  Superior  Court.  They  shall  be 
summoned  to  attend  at,  and  shall  serve  for,  the  term  next  after 
being  drawn,  and  at  any  called  sessions  which  may  be  held  previ- 
ous to  the  next  term,  and  shall  be  organized  and  sworn  in  the* 


^ 


^  fi 


68  PT.  1.-— TIT.  5.~CHAP.  4.~-Jui)Icial  Departmej^t. 

■■■■»■■■■    -f-'^- -  ■.■■..■■.■        ■■■ m        .  — ■ — ' • 

Article  1. — County  Court 


same  manner  as  Grand  Jurors  in  the  Superior  Court.     The  pro- 
ceedings in  all  respects,  so  far  as  applicable  to  said  Court,  shall 
conform  to  the  laws  and  usages  which  govern  the  Superior  Court, 
§  286.  From  the  same  jury-box,  and  at  the  same  time,  and  in 
other  ju-  the  Same  manner,  the  Juda^e  shall  draw  a  iury  of  twelve,   who 

ries.  y  a  k,      ^  ' 

shall  also  serve  for  the  term  next  after  being  drawn,  and  at  any 
called  sessions  which  may  be  held  previous  to  the  next  term ;  and 
if  from  any  cause  there  should  be  a  deficiency  of  the  original 
panel  at  the  session  of  said  Court,  the  Judge  shall  cause  to  be 
summoned  a  sufficient  number  of  taleB  jurors  to  make  up  the  origi- 
nal panel,  for  the  trial  of  civil  cases,  and  shall  also  summon  twelve 
tales  jurors  so  as  to  make  up  a  panel  of  twenty-four  jurors  for  the 
trial  of  criminal  cases,  from  which  by  strikes,  as  in  the  Superior 
Court,  a  jury  may  be  selected. 

§  287.  The  jurors  serving  in  the  County  Court  shall  take  the 
Oath  of  same  oath  as  is  provided  for  like  jurors  in  the  Superior  Court, 
and  they  shall  be  paid  in  the  same  manner. 

§  288.  The  provisions  of  this  Code  concerning  amendments  ap- 
merits.         ply  to  the  (Jouuty  (Jourt  at  either  session. 

§  289.  The  provisions  of  this  Court  concerning  defenses  also 
apply  to  the  County  Court  at  either  session. 

§  290.  Trials  shall  be  had  at  the  second  session  after  service  of 
Time  of  proccss,  at  the  term  succeeding  that  to  which  such  process  is  re- 
turnable, unless  on  cause  shown  for  continuance;    and  continu- 
ances may  be  allowed  under  the  same  rules  as  in  the  Superior 
Court. 

§  291.  All  civil  cases  before  the  quarter  sessions  shall  be  tried 
Mode  of  ^y  t^®  Judge,  without  the  intervention  of  a  jury,  unless  a  jury  is 
*^^^^'  demanded  by  one  of  the  parties  to  the  record. 

§  292.   Claims  to  personal   property  in    the  quarter    sessions. 
Claims—  whcrc  the  execution  or  order  issues  from  said  Court,  shall  be  tried 
in  the  same  manner  as  in  Justice's  Court;  and  in  the  semi-annual 
sessions,  in  the  same  manner  as  in  the  Superior  Court. 

§  293.  In  all  cases  of  attachment  returnable  to  the  semi-annual 
or  quarter  sessions,  the  trial  and  proceedings  shall  be  the  sam.e  as 
in  the  Superior  Courts. 

§  294.  The  Judge  shall  have  the  power  to  compel  the  attend- 
Witnesses,  ance  of  witnesses  by  siibfcena  or  otherwise. 

§  295.  Verdicts  or  judgments  may  be  so  moulded  as  to  subserve 
the  ends  of  justice,  and  may  be  either  for  a  sum  certain,  for  the 


PT.  1.— TIT.  5.— CHAP.  4.— Judicial  Department.  69 

Article  1. — County  Court 

delivery  of  specific  property,  for  the  eviction  of  an  intruder,  or 
the  performance  of  a  Court  contract,  or  in  such  other  form  as 
may  seem  just  and  proper,  and  may  be  in  the  alterative. 

§  296.  Appeals  as  novf  taken  from  the  Inferior  Court  may  be    Appeals. 
taken  to  the  Superior  Court  (in  ail  cases  tried  at  the  semi-annual 
sessions),  and  either  party  in  a  civil  case  may  in  like  manner  ap- 
peal from  the  judgment  rendered  at  the  quarter  sessions. 

§-297.  A  certiorari  may  be  had  upon  the  application  of  the  party  Certiorari. 
complaining  of  error  to  the  County  Judge,  within  ten  days  after 
the  trial,  with  notice  to  the  opposite  party  or  his  attorney,  stating 
the  ground  of  complaint,  and  giving  a  brief  of  the  material 
evidence,  upon  which  it  shall  be  the  duty  of  the  Judge  to  proceed 
as  under  a  writ  of  certiorari^  to  certify  the  proceedings  of  the 
County  Court  to  the  Judge  of  the  Superior  Court  within  ten  days 
after  such  application,  and  the  Judge  of  the  Superior  Court  shall 
hear  and  finally  determine  the  same  at  Chambers,  or  the  session 
of  the  Superior  Court  as  may  seem  proper. 

§  298.  In  criminal  cases  a  certiorari  at  the  instance  of  the  de- .   Certiorari 

"  in    cnmmal 

fendant  may  be  had  as  provided  in  the  preceding  Section,  and  ^'^^^^• 
upon  notice  to  the  Judge  of  the  application,  the  sentence  shall  be 
suspended  until  the  certiorari  is  decided.  On  hearing  such  writ 
of  certiorari^  the  Judge  of  the  Superior  Court  may  either  grant  a 
new  trial  or  pass  such  judgment  or  sentence  as  in  vievf  of  the 
whole  case  is  consistent  with  justice. 

§  299.  When  any  case  is  carried  up  as  provided  in  the  preceding 
Section,  the  Solicitor  or  Attorney  General  of  the  Circuit  shall  take 
charge  of  and  prosecute  the  same,  for  which  he  shall  have  the  same 
fees  allowed  in  bills  found  in  the  Superior  Court. 

§  300.  The  regulations  for  sale  under  execution  or  order  from    saies. 
the  County  Court  for  sums  exceeding  fifty  dollars  shall  be  as  in 
the  Superior  Courts,  and  for  fifty  dollars  or  less  as  in  Justice's 
Court ;  and  in  case  of  perishable  property,  the  Judge  may  so  or- 
der the  time  of  sale  as  to  subserve  the  ends  of  justice. 

§^01.  All  the  proceedings  in  preferring  bills  of  indictment  or    Practicein 
presentment,  and  submitting  the  same  for  trial,  shall  conform  to  S™^"*  ^' 
the  laws  and  rules  governing  in  the  Superior  Court  in  similar  pro- 
ceedings. 

§  302.  Every  indictment  in  the  County  Court,  either  at  its  semi-  criminal 
annual  or  quarter  sessions,  shall  be  in  order  for  trial  at  the  term  ZltV^^^"^ 
at  which  it  is  found,  but  it  shall  be  the  duty  of  the  Judge  to  al- 


;3 


TO 


PT.  1.— TIT.  5.— CHAP.  4.— Judicial  DepaetmenTo 


Article  2. — The  County  Judge. 


low  reasonable  time  to  both  parties  to  summon  witnesses,  and  to 
the  defendant  to  procure  counsel. 

§  303.  If  the  accused  has  no  counsel,  and  is  unable  to  employ 
Counsel  couusel,  it  sliall  be  the  duty  of  the  Judge  to  assign  counsel  to  the 

and  witness-  i  i     .       •  ?  /»  i         •  j  i 

esfor  accus-  accuseci,  and  to  issue  subpoenas  tor  such  witnesses  as  he  may  rep- 
resent to  be  material  for  his  defense,  and  if  necessary  to  compel 
their  attendance  :  provided^  the  Judge  may  exercise  his  discre- 
tion in  compelling  the  attendance  of  witnesses  whose  testimony, 
in  the  opinion  of  the  Judge^  would  be  immaterial  to  the  case. 


ARTICLE  II. 


THE     COUNTY     JUDGE, 


Section. 

304.  Office—where  held. 

305.  Election  and  official  term. 

306.  Vacancy — how  filled. 

307.  Commission  and  oath. 

308.  Qualifications. 


Section. 

309.  May  practice  law — ^when- 

310.  His  duties. 

311.  His  a>uthority. 

312.  His  compensation. 

313.  His  fees  and  costs. 


§  304.  The  Judge  of  the  County  Court  shall  be  entitled  the 
tie'^^'Jffice—  "County  Judge,"  and  shall  have  his  office  at  the  Court  House  of 

where  kept    ^he  CoUUty. 

§  305.  He  shall  be  elected  on  the  first  Wednesday  in  May,  1866, 
Election  ou  the  first  Wednesday  in  January,  1870,  and  every  fourth  year 
office.      ^  thereafter,  and  shall  in  all  cases  hold  his  office  until  his  successor 
is  elected  and  qualified. 

§  306.  Any  vacancy  in  the  office  of  County  Judge  shall  be 

'hff^'mS~  fi^^6^  ^s  i^  ^^s®  ^^  *^®  Clerk  of  the  Superior  Court  (as  provided 

in  Sections  245  and  246  of  this  Code),  upon  fifteen  days'  notice. 

§  30T.  The  County  Judge  shall  be  commissioned  by  the  Gov- 

_  commis-  emor,  and  shalh  take  the  oath  of  office  prescribed  for  Judaies  of 

sion     and  '  ^  ^  ° 

oath.  i]^Q  Superior  Court,  and  no  other  oath. 

§  308.  No   disqualification   for    holding   the    office   of    County 
May  hold  Judgc  shall  arise  from  being  Clerk  of  the  Inferior  Court,  or  from 

other  offices.  ,     ,  °  ,  -^  .  ,    .  ,      .         .  -i  i  •  i 

holding  any  other  omce  not  involving  duties  incompatible  with 
the  duties  of  the  County  Judge. 

§  309.  The  County  Judge  may,  if  an  attorney  at  law,  practice 

May  prac-  ,  .  . 

tice  law  in  in  cascs  nover  connected  with  his  own  Court. 

certain  cases         po^AT^  ^  c     ^  t     ^ 

§  310.  It  shall  be  the  duty  of  the  County  Judge — 

1.  By   himself  or  hi^   clerk,   to  keep   a  strict  accoun.t  of  all 


PT.  1.— TIT.  5.— CHAP.  4.— Judicial  Department.  71 


Article  2. — The  County  Judge. 


fines  and  forfeitures,  out  of  which  he  shall  pay  himself  and  the    ^j.^  ^^^.^^ 
officers   of   said  Court,  p^o    rata,  all  costs  which  have  accrued  enumerated. 
in  said  Court  known  as  insolvent  cost ;   the  remainder,  if  any, 
after  such   payments,  and   all    other   moneys,  except  his  costs, 
which  come  to  his  hands  as  County  Judo;e,  or  into  the  hands  of    ^. 

'^  °    ^  Fines  and 

his  clerk  in  his  official  character,  he  shall  pay  over  to  the  County  forfeitures— 

,  *^  ''   now  disx)OS- 

Treasurer,  and  report  receipts  and  disbursements  to  the  Grand  ^^  o^- 
Jury  of  the  Superior  Court;  and  if  such  fines  and  forfeitures  are 
not  sufficient  to  pay  said  insolvent  costs,  the  same  shall  be 
paid  out  of  the  County  treasury,  or  such  part  as  may  be  inspected 
and  approved  by  the  Grrand  Jury  of  the  County:  provided^  that 
no  insolvent  costs  shall  be  allowed  for  more  than  two  witnesses  to 
the  same  material  point. 

2.  He  shall  keep  an  index  of  Court  contracts,  and  a  list  of  all    shaii  keep 
certificates  and  discharges  granted  by  him,  which  shall  be  subject  iist. 

to  the  inspection  of  any  one  interested  therein. 

3.  He  shall  provide  a  seal  for  the  County  Court,   and    shall    court  seal 

.  ..  ...       — inspection 

inspect,  revise,  and  pass  upon  all  jail  fees  arising  under  his  juris-  of  jaiifees. 
diction  before  the  same  are  paid  by  the  Inferior  Court. 

4.  It  shall  be  his  duty  to  have  a  clerk  in  office,  in  case  of  his    shaiihave 

.    ,  ,  a  clerk. 

own  sickness  or  absence. 

§  311.  The  County  Judge  shall  have  authority — 

1.  To  -issue  bail  process  in  civil  cases,  admit  to  bail  in  criminal  nisanthor- 

■"•  '  Ity  defined. 

cases,  issue  attachments,  foreclose  mortgages  on  personal  property, 
issue  warrants  of  distress  for  rent,  issue  possessory  warrants,  writs 
of  haheas  corjjus,  and  other  writs  or  warrants  not  within  the 
exclusive  jurisdiction  of  some  other  Court  or  officer. 

2.  He  may  attest  contracts  or   deeds  for  registry,  administer    May  attest 

contrcicts 

oaths,  and  exercise  all  the  powers  of  a  Justice  of  the  Peace  in  administer 

.    .,,..-,.  .    .  ^       ,  oaths  and  is- 

matters  civil  and  criminal,  issue  warrants  requiring  offenders  to  be  sue  warrants 
brought  before  him  or  some  other  Judge,  or  some  Justice,  and  sit 
singly  or  in  conjunction  with  others,  as  by  law  required,  on  a 
Court  of  Inquiry. 

3.  He  may,  at  any  time,  hear  and  determine  the  cases  of  all       May  try 

".*'  criminals 

persons  charged  with  crimes,  upon  accusations  drawn  up  by  the  T^r^^^^l^* 
County  Solicitor,  without  a  jury;  provided  the  person  or  persons 
so  accused  shall,  in  open  Court,  declare  that  he,  or  she,  or  they, 
waive  an  indictment  or  presentment  by  a  Grand  Jury,  and  arraign- 
ment and  trial  by  a  Petit  Jury,  which  declaration  shall  be  entered 
on  the  accusation,  and  also  on  the  minutes  of  said  County  Court. 


72  PT.  1.— TIT.  5.— CHAP.  4.— Judicial  Department. 

Article  2. — The  County  Judge. 

4.  He  sliall  have  power  to  use  the  County  jail  for  the  detention 
Count^^  "¥  ^^  accused  parties,  and  for  the  punishment  of  those  convicted  of 

offenses,  or  guilty  of  contempt.     Commitments  by  him   shall  be 
lawful  warrants  to  the  Jailor  and  shall  be  obeyed  by  him. 

5.  The  enumeration  in  this  Section  is  not  exhaustive,  but  the 
other    County  Judge  may  in  general  exercise  all  such  powers  as   are 

essential  to  the  functions  granted. 

§  B12.  The  County  Judge  shall  receive  no  salary  from  the  State, 
Has  no  sal-  but  shall  reccivc  compensation  for  his  services  in  the  way  of  fees 
named  in  the  Section  next  following,  which  fees  shall  be  taxed  in 
his  bill  of  costs. 

§  313.  In  cases  not  specially  excepted,  the  Judge's  costs  in  the 
His  fees  scmi-annual  Courts  shall  be  the  same  as  those  of  the  Clerks   of 

and  costs. 

the  Superior  and  Inferior  Courts  for  like  services.  In  cases  in 
the  quarter  and  extra  sessions  if  the  sum  in  damages  claimed 
exceed  fifty  dollars,  then  two-thirds  of  such  costs,  and  if  not 
over  fifty  dollars,  then  one  third  of  such  costs  shall  be  taxed  as 
the  Judge's  costs  ;  and  in  all  other  cases  in  which  he  is  authorized 
to  act,  he  shall  have  such  fees  as  are  now  allowed  by  law  to 
other  officers  for  similar  services.  The  Judge's  costs  in  criminal 
cases  shall  be  two  dollars  for  every  case  begun,  and  two  dollars 
additional  for  every  case  tried  or  transmitted  to  the  Superior 
Court.  His  costs  for  a  case  in  which  discharge  or  specific  per- 
formance is  prayed,  or  other  like  case  not  claiming  money,  shall 
be  two  dollars.  For  the  foreclosure  of  mortgages,  the  partition 
of  personalty,  the  removal  of  intruders,  trespassers,  or  tenants 
holding  over,  the  trial  of  claims,  for  the  certiorari  of  any  case, 
forcible  entry  or  detainer,  abatement  of  nuisances,  for  proceed- 
ings usually  tried  at  Chambers,  such  as  possessory  warrants,  liaheas 
corjyus  cases,  and  the  like,  three  dollars.  He  shall  receive  one 
dollar  for  every  Court  contract  which  he  may  approve.  In  cases 
in  which  no  fees  are  prescribed  by  law,  the  Ordinary  or  any  three 
Justices  of  the  Inferior  Court  may  determine  what  shall  be  the 
Judge's  costs. 


PT.  1.— TIT.  5.— CHAP.  4.— Judicial  Department. 


73 


Article  3. — The  County  Solicitor. 


ARTICLE  III. 


THE     COUNTY     SOLICITOR. 


Section. 

314.  His  designation. 

315.  Election  and  commission. 

316.  His  qualifications. 

317.  How  sworn  and  removed. 


Section. 

318.  Solicitor  pro  tern. 

319.  Fees  of  Solicitor. 

320.  Is  collecting  officer. 


314.  There  shall  also  be  a  prosecuting  attorney,  who  shall  be    coimtySo 


called  ''County  Solicitor.'* 


licitor. 


315.  The  County  Solicitor  shall  be  elected  at  the  same  time  How  elect- 
ed and  com- 
missioned. 


Qualifica- 
tions. 


and  commissioned  in  the  same  manner  as  the  County  Judge. 

§  316.  Such  County  Solicitor  shall  have  been  a  practicing  at- 
torney, and  after  his  election  shall  reside  in  the  County  for  which 
he  is  elected. 

§  317.  He  shall  be  qualified  and  sworn  as  Solicitors  and  Attor-  iiow  sworn 
ney  General   are  qualified   and  sworn,   except  that  his   oath  of 
office  shall  be  taken  before  the  County  Judge  or  the  Justices  of 
the  Inferior  Court,  and  shall  be  removable  from  office  in  the  same 
manner  as  Solicitors  General  are  removable. 

§  318.  In  case  of  vacancy,  absence,  sickness,  or  other  disability     solicitor 
of  the  County  Solicitor,  the  Judge  may  appoint   any  practicing 
attorney  to   perform   his   duties  during  such  absence,  sickness  or 
other  disability,  or  until  such  vacancy   can  be  filled  by  a  new 
election. 

§  319.  The  County  Solicitor  shall  receive  the  same  fees  as  are 
now  allowed  to  the  Solicitor  General  of  the  Circuit  in  the  Superior 
Court  for  such  cases  as  come  within  the  jurisdiction  of  the  County 
Court. 

§  320.  He  shall  be  the  collecting  officer  for  the  County  Court, 
and  shall  collect  all  fines,  forfeitures,  and  bonds,  and  pay  the  same  i^^g  officer. 
over  to  the  County  Judge,  who  shall  disburse  them   according  to 
the  provisions  of  Section  310  of  this  Code. 


His  fees. 


Is  collect- 


ARTICLE  lY. 

CLERK     OP     THE     COUNTY     COURT. 


Section. 

321.  His  appointment  and  removal. 

322.  How  paid. 

323.  Record  of  appointment. 


Section. 

324.  Oath  and  powers. 

325.  Shall  keep  minutes,  etc. 

326.  Shall  keep  dockets. 


74  PT.  1.— TIT.  5.— CHAP.  4.— Judicial  Department. 

Article  5.— Tlie  Sheriff  and  the  Bailiffs  of  County  Court. 

§  321.  The  Clerk  of  the  County  Court  may  be  either  the  County 
Clerk.       Judge  himsolf  or  any  person  appointed  by  the  Judge,  removable 
at  his  pleasure. 

§  322.  The  Clerk  shall  be  paid  by  the  Judge,  who  is  responsi- 
Howpaid.  ble  for  the  good  conduct  of  such  Clerk. 

Eecord  of      ^  ^^^'  ^^^^  appointment  and  removal  of  the  Clerk  shall  be  en- 
appointment  tercd  ou  the  minutes. 

§  324.  He  shall  be  sworn  to  the  faithful  and  impartial  discharge 
Oath  and  of  liis  dutics,  and  shall  be  competent  to  discharge  all  of  the  duties 

powers.  '     1      •        •         ^  i 

of  the  Judge  not  judicial  in  their  character. 

§  325.  The  Clerk,  or  Judge  acting  as  such,  shall  keep  the  min- 
Minutes  utcs  of  the  Court,  rccord  its  proceedings,  and  issue  its  orders  and 

and  Records.  ^  ^  °  ^ 

processes. 

§  326.  Such  Clerk,  or  Judge  acting  as  such,  shall  also  keep 
Dockets,  proper  dockets — to  wit :  One  Subpoena  and  one  Execution  Docket, 
for  all  sessions  of  said  Court ;  for  the  quarter  and  extra  sessions, 
one  Docket  of  Civil  Cases  generally,  and  also  one  for  Criminal 
Cases  ;  for  the  semi-annual  sessions,  one  Common  Law  Docket,  one 
Docket  for  Claims,  Motions,  Illegality,  and  other  like  proceedings, 
and  any  other  docket  for  either  session  which  the  Judge  may  di- 
^    rect. 


ARTICLE  V. 

THE   SHERIFF  AND  THE  BAILIFFS   OF   COUNTY   COUHT. 


Section. 

327.  Sheriff 's  duty. 

328.  His  fees. 

329.  Bailiffs — appointment  of. 

330.  Special  Bailiff. 

331.  Their  bond  and  oath. 


Section. 

332.  Special  Bailiff 's  duty. 

333.  Temporary  Bailiffs. 

334.  Bailiff's  fees. 

335.  Costs— garnishment  for. 


§  32T.  The  Sheriff  and  his    deputies,  when   required   by  the 
Duty  of  County  Judge  or  the  Clerk,  shall  execute  any  writ,  process,  or  or- 
deputy.        (Jer  of  the  County  Court  or  Judge,  as  if  from  the  Superior  Court, 
and  shall  attend  the  sessions  of  the  County  Court. 

§  328.  For  cases  in  the  County  Court,  within  the  jurisdiction 
Sheriff's  of  the  Justico's  Court,  the  Sheriff's  fees  shall  be  the  same  as  a 

fdCS 

Constable's,  and  in  other  cases  they  shall  be  the  same  as  in  the 
Superior  Court.  For  summoning  juries  for  the  semi-annual  ses- 
sions, five  dollars ;  for  the  quarter  sessions,  three  dollars. 

§  329.  Bailiffs  may  be  appointed  by  the  County  Judge,  not  to 


PT.  1.— -TIT.  5.— CHAP.  4.— Judicial  Department.  75 

Article  5. — The  Sheriff  and  the  Bailiffs  of  County  Court. 

exceed  four   in   number,  one  of   wliom  shall  be  called    Special    BaiUffs. 
Bailiff. 

§  330.  The  Special  Bailiff  shall  siive  bond,  as  now  provided  by  Bond, duty, 

^  .  .  ...  "^   and  liability 

law,  for  the  faithful  discharge  of  his  duties,  in  the  same  manner  $f  special 

,  .  Bailiff. 

as  the  Sheriff  of  the  County.  He  shall  have  all  the  power  in  the 
execution  of  the  duties  of  his  office  as  the  Sheriff,  and  be  subject 
to  the  same  pains  and  penalties.  All  orders  and  processes  shall 
be  directed  to  him  as  well  asgfche  Sheriff,  and  he  shall  have  the 
same  power  to  sell  property  under  execution  or  orders  issuing  from 
said  County  Court  as  the  Sheriff  has. 

§  331.  The  other  Bailiffs  shall   each  give  bond  in  a  sum  to  be      Bond  of 

Y'  other  Bailiffs 

fixed  by  the  County  Judge,  and  they  and  the  Special  Bailiff  shall 

be  sworn  to  the  faithful  and  impartial  discharge  of  their  duties  ; 

and  the  appointment  and  removal  of  all  Bailiffs  shall  be  entered 

on  the  minutes. 

§  332.  It  shall  be  the  duty  of  the  Special  Bailiff,  unless  the      Duty  of 

Judge  shall  assign  the  duty  to  the  Sheriff  or  his  deputy,  to  collect  nff  as  col- 
li -r*  I'll  1  -T  Ifcting    of- 

all  executions  tor  costs ;  and  m  ail  cases  where  costs  are  not  paid  ficer. 
instanter,  executions  therefor  shall  be  issued,  and  ten  per  cent, 
additional  collected  as  commissions  of  the  collecting  officer. 

§  333.  One  or  more  temporary  Bailiffs  for  particular  occasions   Temporary 
may  also  be  appointed,  who  need  not  give  bond,  but  must  be  sworn 
and  their  appointment  entered  on  the  minutes. 

§  334,  A  Bailiff's  fee  shall  be  the  same  as  a  Sheriff's,  in  like     Bailiff's 

fees. 

cases. 

§  335.  In  cases  between  master  and  servant,  which  shall  go  Garnish- 
against  the  servant,  the  judgment  for  costs,  upon  written  notice  costs  in  ce?- 
to  the  master,  shall  operate  as  a  garnishment  against  him,  and  he 
shall  retain  a  sufficient  amount  for  the  payment  thereof  out  of  any 
wages  due  to  said  servant,  or  to  become  due,  during  the  period  of 
service,  and  may  be  cited  at  any  time  by  the  collecting  officer  to 
make  answer  thereto.* 

*  For  tlie  law  as  to  the  County  Court  and  its  officers,  see  Acts  of  1865-6,  pp." 
64-7i,  and  Acts  of  1866,  pp.  53-54 


tain  cases. 


76 


PT.  1.— TIT.  5.— CHAP.  5.— Judicial  Department. 


Article  1. — The  Inferior  Court  and  its  Justices. 


CHAPTER   V. 

THE    INFERIOR    COURT  :    ITS    JUSTICES    AND    CLERKS. 


Article  1. — The  Inferior  Court  and  its  Justices. 
Article  2. — The  Clerh.       4 


ARTICLE  I. 

the     INFERIOR     COURT     AND     ITS     JUSTICES, 


Section. 

336.  Election,  oath,  and  official  term. 

337.  Vacancies — ho\7  filled. 

338.  Vacancies  need  not  be  filled — wlicn. 

339.  Persons  elected  to  fill  vacancies. 

340.  Persons  eligible. 

3-il.  Number  necessary  to  hold  Court. 


Section. 

342.  When  Justices  are  equally  divided. 

343.  Their  disability,  privilege,  etc. 

344.  When  a  majority  are  interested. 

345.  May  punish  contempts. 

346.  In  relation  to  County  property,  etc. 

347.  Other  powers  and  duties  of  Court. 


Number, 
election,  of- 
ficial term, 
and  oath  of 
Justices. 


Vacancies 
— how  filled. 


No  special 
election  — 
when. 


Those 
elected  to  fill 
vacancies. 


Who  are  eli- 
gible. 


§  336.  The  presiding  officers  of  the  Inferior  Court  consist  of 
five  persons,  styled  the  ''Justices  of  the  Inferior  Court,"  who  are 
elected  by  the  people  of  their  respective  Counties  at  the  times  and 
in  the  manner  hereinafter  prescribed,  and  who  hold  their  offices 
for  four  years,  unless  sooner  removed  in  the  manner  prescribed 
by  the  Constitution.  Before  entering  upon  the  duties  of  their 
office,  they  must  take  the  oath  required  of  all  civil  officers,  and 
in  addition  the  oath  taken  by  the  Judges  of  the  Superior  Courts. 

§-  337.  When  a  vacancy  occurs,  any  two  or  more  of  said  Jus- 
tices, and  one,  if  only  one  in  the  County  qualifies,  and  if  not  one, 
then  the  Ordinary  of  the  County  shall  order  an  election  as  pre- 
scribed in  the  case  of  a  vacancy  in  the  Clerkship  of  the  Superior 
Court. 

§  338.  If  there  are  as  many  as  three  of  said  Justices  in  com- 
mission and  in  the  discharge  of  their  duties,  and  the  vacancy 
takes  place  not  exceeding  eight  months  prior  to  the  next  regular 
electiyon  for  such  Justices,  there  must  not  be  any  special  election. 

§  339.  The  persons  elected  to  fill  the  vacancy  are  commissioned 
for  the  unexpired  terms  of  the  outgoing  Justices,  and  hold  their 
offices  accordingly. 

§  340.  No  person  is  eligible  to  such  Justiceship  unless  he  has 
been  a  resident  citizen  in  the  County  in  which  he  is  to  preside  for 


PT.  1.— TIT.  5.— CHAP.  5.— Judicial  Depaktm&jstt.  T7 

Article  1. — The  Inferior  Court  and  its  Justices, 
at  least  one  year  next  precedinc^  his  qualification.    Persons  elected       can  not 

•^  .1  1  .,.  ,  practice  law 

Justices  of  suck  Court  can  not  practice  law  therein,  directly  nor 

indirectly. 

§  341.  Not  less  than  three  of  such  Justices  can  hold  a  Court,  vbat  num- 
ber may  hold 
and  when  three  preside  it  requires  the  concurrence  of  two  to  make  court. 

a  judgment.     When  more  than  three  preside  there  must  be  a  con- 
currence of  three. 

S  342.  When  four  of  said  Justices  preside  and  are  equally  di-         when 

.  ,  .    ,      .  .  equally     di- 

vided  in   their  opinions,  the  question  or  case  on  which  it  arises  vided    in 

■'■-'■  ^       •  opinion    the 

must  be  postponed  until  the  fifth  Justice  can  preside,  or  until  the  c^^e  stands 
next  term  of  the  Court. 

§  343.  They  are  disqualified  from  holdinsr  any  other   County    Disability, 
office,  but  are   eli^-ible  as  members  of  the  General  Assembly,  to  ^n^  exemp- 

'  °  ....  tions. 

military  offices,   and  are  exempt  from  jury,  militia,  and    patrol 
duty. 

§  344.  Suits  can  not  be  entertained  by  such  Justices  where  a      cases  go 

^  ^  "^  to    Superior 

majority  of  their  number  are  interested,  and  in  such,  and  in  all  comt-when 
cases  where  such  majority  are  disqualified,  suits  must  be  brought 
in  the  Superior  Court ;  but  if  brought   before   said  Justices  they 
do  not  abate,  and  there  may  be  an  appeal  to  the  Superior  Court, 
as  in  other  cases. 

§  345.  The  Inferior  Courts  have  authority —  May  pun- 

To  punish  for  contempt  by  fines  not  exceeding  fifty  dollars,  or  tempts.*^ ^ ° ' 
imprisonment  not  exceeding  five  days. 

§  346.  To  exercise  original  and  exclusive  jurisdiction,  when  sit-     Exclusive 

on,  1        p  n        •  1  .  •         jurisdiction. 

ting  lor  County  purposes,  over  the  lollowmg  subject-matters — viz  : 

1.  In  directing  and  controlling  all  the  property  of  the  County  AatoCoun- 
as  they  may  deem  expedient  according  to  law\ 

2.  In  levying  a  general  tax  for  general,  and  a  special  tax  for  AstoCoun- 
particular.  County  purposes,  according  to  the  provisions  of  this 

Code. 

3.  In  establishing,  altering,  or  abolishing  all  roads,  bridges,  and  As  to  roads, 

P        .  .  P  .  ,  °  bridges,  and 

terries,  m  coniormity  to  law.  ferries. 

4^  In  establishing  and  changing  election  precincts  and  militia       ^s    to 

,  o      o  i  changing 

districts.  election  pre- 

cincts. 

5.  In  supplying  by  appointment  all  vacancies  in  County  offices,      as  to  va- 
and  in  ordering  elections  to  fill  them.  county  ofa- 

CCS 

6.  In  examining,  settling,  and  allowing  all  claims  against  the  as  to  claims 

r\  J.  against    the 

County.  County. 


7.  In  examining  and  auditing  the  accounts  of  all  officers  hav-     as 


to  ac- 


78  PT.  1.— TIT.  5.—CHAP.  5.— Judicial  Departjment. 

Article  1. — The  Inferior  Court  and  its  Justices, 
counts    of  ino'  tlie  care,  manao-ement,  keeping,  collection,  or  disbursement  of 

financial       ^  7  &  7  r      &7  ? 

County  offi-  monej  belonging  to  the  County^  or  appropriated  for  its  use  and 
benefit,  and  in  bringing  them  to  a  settlement. 

8.  In  making  such  rules  and  regulations  for  the  support  of  the 
Coimt  \w^  P*^^^'  ^^  ^^^  County,  for  County  police  and  patrol,  for  the  promo- 
tion of  health  and  quarantine,  as  are  granted  by  law,  or  not  in- 
consistent thereyfith. 
As  toped-       9.  In   regulating   peddling    and    fixing    the    costs   of    license 

therefor. 
Authority—      §  347.  The  Justiccs  of  the  Inferior  Court  have  authority — 
To  appoint      1-  [To  appoint  some  fit  and  proper  person  to  open  and  adjourn 
Sp^en^andad^  their  Court,  in  the  absence  of  an  officer  to  do  so.]  (a) 
journ   our .      ^^  rj}^  ^-^^  ^^  ^^^^  ^j^^^  ^^  ^  Court  for  Couuty  purposcs,  and  for 

any^w^or  *^®   cxcrcise  of  any  power   they  possess   as   Justices,  as   a  quasi 
posS!^  ^^^'  corporation,  contradistinguished  from  their  power  as  a  Court. 

3.  To  appoint  any  person  to  discharge  any  trust  authorized  by 
May  ap-  their  powers,  where  no  other  person  is  designated  by  law,  and  to 

point  agents.  i     ,      i  •  ,  •  i,  itii 

regulate  his  compensation,  and  to  take  bond  and  security. 
Attest        4.  To  attest  deeds  and  other  written  instruments  for  register. 

deeds.  ^  ^  "^^ 

5.  To  approve  of  all  official  bonds  required  of  them  by  law  and 
Approve  scut  them  by  the  Governor  with  the  dedimus,  to  qualify  such  offi- 

officialbonds  t,it  ii  ,t      •  •• 

cers  and  to  aeliver  them  tneir  commissions. 

Mayactas      6.  To  act  as  members  of  the  Board  of  Education  of  their  re- 
Board  of  Ed-  . 

ucation,  SpCCtlVC  CoUUtieS. 

7.  To  exercise  such  other  powers  as  are  granted  by  law,  or  are 

other  pow-  ....  • 

^^^  indispensable  to  their  jurisdiction. 


ARTICLE  II. 

THE  CLERKS  OF  THE  INFERIOR  COURTS. 


Section. 

348.  Election,  qualification,  etc. 

349.  Vacancies — how  filled. 

350.  Oath,  bond,  etc. 


Section. 

351.  May  appoint  a  deputy. 

352.  Duties  enumerated. 

353.  His  compensation  in  certain  cases. 


§  348.  The  Clerks  of  the  Inferior  Courts  are  elected,  qualified, 
Election  commissioued,  hold  their  offices,  and  are  removed  as  the  Clerks  of 

and  term  of  ,  i        c^  .         /-^         , 

office.         the  feuperior  Courts  are. 

(a)  Acts  of  1861,  p.  56. 


PT.  1.— TIT.  5.— CHAP.  5.— Judicial  Department.  79 

Article  2. — The  Clerks  of  the  Inferior  Courts. 


§  349.  Vacancies  are  supplied  as  they  are  in  the  offices  of  the  vacancies 
Clerks  of  the  Superior  Courts,  except  that  the  Justices  of  the  In- 
ferior Courts  appoint  in  the  particular  cases  where  the  Judges  of 
the  Superior  Court  appoint ;  and  where  the  contingency  happens 
mentioned  in  Section  250,  the  duties  devolve  upon  the  Clerks  of 
the  Superior  Courts,  if  any,  and  if  none,  then  as  provided  for  in 
said  Section. 

§  350.  The  Clerks  of  the  Inferior  Courts  take  the  same  oaths  oath,  bond, 

etc 

and  give  the  same  bond  as  the  Clerks  of  the  Superior  Courts,  and 
are  removable  in  the  same  manner. 

§  351.  They  may  appoint  deputies  and  require  bonds  of  them,  Mayappoint 
and  are  otherwise  under  the  same  disabilities ;  are  subject  to  the 
same  rules  and  regulations,  and  must  perform  the  same  duties  as 
the  Clerks  of  the  Superior  Courts  do  for  their  Courts,  whenever 
applicable  to  the  Inferior  Court  and  there  is  no  provision  to  the 
contrary. 

§  352.  In  addition,  it  is  their  duty —  Duties  of 

.  .  .  Clerk— 

1.  To  attend  all  sessions  of  said  Court,  and  all  sessions  of  said 
Justices  on  County  business,  and  keep  fair  and  regular  minutes  of  comt. 
their  proceedings. 

2.  Upon  the  request  of  any  one  of  them,  to  notify  the  Justices  ,.   ^r^'^p- 

*■  ^  «^  '  t/  ticc  of  special 

of  the  Inferior  Court  of  the  time  and  cause  of  every  special  ses-  sessions. 
sion. 

3.  To  keep  all  the  dockets,  books,  indexes,  and  files  required  Keepdock- 

,       ,  f,         •,  o        '  1    ^  ets  and  other 

by  law  for  the  use  of  said  Court.  books. 

4.  To  keep  a  well-bound  book  in  which  must  be  entered  a  copy  to  keep 
01  the  bonds  of  County  officers.  ficiai  bonds. 

5.  To  keep  other  books,  in  which  must  be  kept  the  records  of       Book  of 

I'l  -  111         T         n  Constables 

all  Constables   bonds,  and  m  the  other  the  oaths  and  bonds  of  all  and  retailers' 

.      .  Vi         .    .  ,.  bonds    and 

persons  who  obtain  permission  to  sell  spirituous  liquors.  oaths. 

6.  To  keep  a  book  for  entering  marks,  brands,  and  estrays,  and  to  keep 
a  book  for  the  registry  of  the  names,  descriptions,  and  oaths  of  marks^^a  n"d 

■..  -,  T  T-i  brands. 

licensed  peddlers. 

7.  To  enter  on  the  minutes  the  items  of  all  accounts  allowed  to  enter 
by  the  Justices  of  the  Inferior  Court,  as  well  as  the  order  for  aiiowTd.""  ^ 
their  payment. 

8.  To  keep  a  book  in  which  shall  be  entered  all  sums  received  to  keep  ac- 
hy them  on  account  of  the  County  and  paid  to  the  Treasurer,  and  ney^receive^d 

n  1      ,  •    1    r»       1     'p  and  paid  out 

tor  what  special  tuna,  it  any. 

9.  To  transmit  to  the  Clerk  of  the  Superior  Courts  all  eertio- 


80 


PT.  1.— TIT.  5.— CHAP.  6.— Judicial  Department. 


Article  1. — The  Ordinaries  and  their  Courts. 


Other  du- 
ties. 


To  trans-  Tari,  and  other  papers  of  wliicli  the  Superior  Court  obtains  iuris- 

mit  appeals.    ,.      . 

diction. 

10.  To  perform  such  other  duties  as  are  or  may  be  required  of 
them  by  law,  or  as  are  indispensable  to  those  required. 

§  353.  For  the  services  they  are  required  to  perform  for  the 
Compensa-  Justices  of  the  Inferior  Court  on  account  of  their  Counties,  for 

tion  for  cer-       i.t^  -n  •ttit-i 

tain  services  "vyliich  uo  foes  are  Specially  provided,  they  shall  receive  an  annual 
salary,  to  be  fixed  by  such  Justices  at  the  close  of  each  year,  to 
be  regulated  by  the  services  performed  and  the  means  of  the 
County,  which  shall  be  not  less  than  fifty  nor  more  than  two  hun- 
dred dollars. 


CHAPTER    VI. 

ORDINARIES. 


Article  1. 
Article  2. 
Article  3. 


■The  Ordinaries  and  their  Oo7irts. 

■The  Ordinaries  as  Clerks. 

■The  Ordinaries  as  School  Commissioners,  etc. 


ARTICLE  I. 


THE    ORDINARIES    AND    THEIR    COURTS. 


Skction. 

354.  Name  and  style  of  the  Ordinary. 

355.  His  election  and  term  of  office. 

356.  His  oath  of  office. 

357.  His  bond. 

358.  Vacancies — how  filled. 

359.  Ordinaries  elected  to  fill  vacancies. 
3G0.  Must  complete  unfinished  business. 

361.  When  Ordinary  is  disqualified. 

362.  Eligibility  and  disability. 

363.  His  trust  as  executor,  adm'r,  etc. 


Section. 

364.  Who  takes  administration. 

365.  Where  Ordinary's  office  must  be  kept. 

366.  Jurisdiction  and  powers  of  his  Covirt. 

367.  May  punish  for  contempt,  etc. 

368.  May  grant  administration — when. 

369.  Administration  in  certain  cases. 

370.  Must  report  estates  unrepresented. 

371.  Failing  to  account  as  executors,  etc. 

372.  Can  not  practice  law  in  his  own  Court 

373.  May  administer  oaths. 


§  354.  The  Court  established  pursuant  to  the  amended  Consti- 
jN-ame  and  tutiou,  approved  the  second  time  December  5th,  1851,  has  the 

style  of  Or-  ?      i.  i  77 

his  oouii;^  *^  ^^^®  and  style  of  the   Court  of   Ordinary,  and  the  incumbent 
thereof  has  the  name  and  style  of  the  Ordinary. 

§  355.  The  Ordinaries  are  elected  by  the  people  of  their  respect- 
Election  iye  Countics,  at  the  time  and  in  the  manner  hereinafter  prescribed, 

ana  term  of  -^  -«•  -^ 

who  hold  their  offices  for  four  years,  unless  sooner  removed  in  the 
manner  prescribed  by  law. 


office.^ 


PT.  1.— TIT.  5.— CHAP.  6.— Judicial  Department.  81 

Article  1. — The  Ordinaries  and  their  Courts. 

§  356.  Before  entering  on  the  duties  of  tlieir  offices,  they  must    oath. 
take  and  file  the  oaths  required  of  all  civil  officers,  and  in  addi- 
tion the  following  oath : 

''  I  do  swear  that  I  will  well  and  faithfully  discharge  the  duties 

of  Ordinary  for  the  County  of ,  during  my  continuance 

in  office,  according  to  law,  to  the  best  of  my  knowledge  and  ability, 
wilhout  favor  or  affection  to  any  party,  and  that  I  will  only  receive 
my  legal  fees.     So  help  me  Grod." 

§  357.  They  must  also  give  bond  and  surety,  in  the  sum  of  one    Bond, 
thousand   dollars,   for  the   faithful  discharge  of  their  duties  as 
Clerks  of  the  Ordinary. 

^  358.  When  a  vacancy  occurs  in  the  Ordinary  there  shall  be    Yacancy— 

^  ''  -^  how  filled. 

an  election  to  supply  the  same,  ordered  by  the  Justices  of  the  In- 
ferior Court,  in  the  same  manner  as  for  Clerk  of  the  Superior 
Court,  and  until  the  same  is  filled,  the  Clerk  of  the  Superior  Court 
shall  perform  all  the  duties  which  the  Ordinary  could  perform  as 
Clerk,  and  no  more. 

§  359.  The  person  elected  to  supply  the  vacancy  must  be  com-  q  ^  (?^^nTr"/ 
missioned  for  the  unexpired  term,  unless  it  does  not  exceed  three  vac^ancy.^^^^ 
months  from  the  time  the  election  can  be  ordered  and  held ;  if  so, 
th^re  must  not  be  any  special  election. 

§360.  All  citations  and  other  unfinished  proceedings  of  the     citations, 
former  Ordinary  must  be  disposed  of  by  the  successor  as  though  disposed  of 

-  by  successor 

there  had  been  no  vacancy. 

§  361.  When  the  Ordinary  is  disqualified,  the  proceedings  shall      Proceed- 
be  carried  as  though  by  consent  of  parties,  by  appeal,  to  the  Su-  ordinary  is 

_,  -,    .        T  .  /in-  disqualified. 

perior  Court ;  and  m  the  meantime  temporary  letters  shall  issue, 
or  other  legal  means  used,  if  necessary,  to  preserve  the  estate. 

§  362.  The  elioribility  and  disabilities  of   the  Ordinary,   aside    Eligibility 

•^  o  J  '^ '  and  disabili- 

from  the  Constitution,  are  the  same  as  the  Clerks  of  the  Superior  tyofOidina- 
Courts  for  their  offices,  with  the  addition  that  they  can  not,  during 
their  terms  of  office,  be  executors,  administrators,  or  guardians, 
or  other  agent  of  a  fiduciary  nature  required  to  account  to  their 
Courts ;  but  they  may  be  administrators,  guardians,  or  executors, 
in  cases  where  the  jurisdiction  belongs  to  another  County,  or 
where,  in  special  cases,  they  may  be  allowed  by  law  and  required 
to  account  to  the  Ordinary  of  another  County. 

§  363.  When  any  persons  holdinsr  such  trusts  are  elected  Ordi-     ^is  trust 

•^    ^  a  as  executor, 

naries,  their  letters  and  powers  (immediately)  abate  on  their  qual-  on^'j^ig^eiec- 
ification.  *^<^°' 

6 


..I 

iiiiii-'fliil 


82  PT.  1.— TIT.  5.— CHAP.  6.— Judicial  Department. 

Article  1. — The  Ordinaries  and  tlieir  Courts. 

§  364.  When  the  Ordinary  is  also  the  Clerk  of  the  Superior 
Who  takes  Court,  and  there  is  no  public  administrator,  or  other  person  upon 

£idministra-       ■,  i        ^  i  i      •     •  •  r- 

tion  when  whom  the  law  casts  the   administration   of  unrepresented  estates, 

theOrdina-  ... 

ry  is  Clerk  guc^  administrations  are  cast  upon  the  Clerks  of  Inferior  Courts, 

of  Superior  _  .... 

Court.       unless  they  too  are  Ordinaries ;  in  which  last  event  the  Sheriffs  of 
the  several  Counties  must  become  such  administrators. 

§  365.  The  Ordinaries  must  keep  their  offices  at  the  place  and 
Where  his  in  the  manner  prescribed  for  Clerks  of  the  Superior  Courts,  and 
be  kept.  '    must  hold  their  Courts  at  the  place  prescribed  for  the   Superior 
Courts,  or  in  their  offices. 

§  366.   Courts  of  Ordinary  have  authority  to  exercise  original, 
jurisdic-  cxclusi^ve,  aiid  general  jurisdiction  of  the  following  subjects-matter : 

tion    and  - --..  ..,--.■—« 

power  of      1.  Probate  of  wills. 

Courts  of 

Ordinary.      2.  The  granting  of  letters  testamentary,  of  administration,  and 
the  repeal  or  revocation  of  the  same. 

3.  Of  all  controversies  in  relation  to  the  right  of  executorship 
or  administration. 

4.  The  sale  and  disposition  of  the  real  property  belonging  to, 
and  the  distribution  of,  deceased  j)ei^sons'  estates. 

5.  The  appointment  and  removal  of  guardians  for  minors  and 
persons  of  unsound  mind. 

6.  All  controversies  as  to  the  right  of  guardianship. 

7.  The  auditing  and  passing  returns  of  all  executors,  adminis- 
trators, and  guardians. 

8.  The  discharge  of  former,  and  the  requiring  of  new  surety, 
from  administrators  and  guardians. 

9.  The  issuing  commissions  of  lunacy  in  conformity  to  law. 

10.  Of  all  such  other  matters  and  things  as  appertain  or  relate 
to  estates  of  deceased  persons,  and  to  idiots,  lunatics,  and  insane 
persons. 

11.  Of  all  such  matters  as  may  be  conferred  on  them  by  the 
Constitution  and  laws. 

12.  [And  concurrent  jurisdiction  with  the  County  Judge  in  the 
binding  out  of  orphans  and  apprentices,  and  all  controversies  be- 
tween master  and  apprentice.]  (a) 

§  367.  Such  Courts  may  issue  rules  and   attachments  for  con- 
May  pTin-        ^  *' 

tem^r  \mi  *®^P^^  offered  the  Court,  or  its  process,  by  any  executor,  admin- 
d^Ince^o^ati  istrator,  guardian,  or  other  person,  and  may  punish  the  same  by 

orders. 


(a)  Acts  of  1865-6,  p.  6. 


PT.  1.— TIT.  5.— CHAP.  6.— Judicial  Department.  83 


Article  1. — The  Ordinaries  and  tlieir  Courts. 


a  fine  as  high  as  fifty  dollars,  or  imprisonment  not  exceeding  five 
<iays  (one  or  both). 

§  368.  The  Ordinary  can  grant  administration  upon  no  person's       in  what 

„  cases    Ordi- 

estate  who  was  not   a  resident  oi  the  Uounty  wiiere  the  applica-nary   may 

.  .  grant        ad- 

tion  is  made  at  the  time  of  his  death,  or,  being  a  non-resident  of  ministration 
the  State,  has  property  in  said  County,  or  a  bona  fide  cause  of 
action  against  some  person  therein. 

§  369.    When   such   non-resident  deceased   persons,  have  such       in  what 

,  (,  .  .  ,  ^  County    ad- 

pronerty  or   such    cause    oi    action    m    more    than  one  County,  ministration 

*'mavbe 

such  letters  may  be  granted  in  either  County,  and  the  Ordinary  granted. 
first  granting  them  acquires  exclusive  jurisdiction. 

§  370.  Such   Ordinaries    shall    at   each  term    of   the  Superior      Must  re- 
Courts    of  their   respective    Counties    report    to    the    presiding  unrepresent- 
Judge  the  estates  in  their   hands    unrepresented,   together  with 
their  condition. 

§  371.  If  any  Ordinary  fails  faithfully  to  account  as  executor.    Failing  to 

"«'''•'  '  account     as 

administrator,  or  guardian,  after  becomins;  such  Ordinary,  which  f'^ecutor  etc. 
trusts  he  held  at  the  time  of  his  election,  he  is  ineligible  to  a  re-  reSfctlon^*' 
election. 

§  372.  No  Ordinary  shall  engage,  directly  or  indirectly,  in  the       can  not 
practice  of  law  in  his  own  or  in  the    name  of  another,  as  a  part-  j.^  ^}^  own 
ner,  open   or  silent,  or  otherwise,  in  any  cause  or  proceeding  in 
his  own  Court,  or  in   another  Court  of  which  his  own  Court  has, 
or  has  had,  or  may  have,  jurisdiction. 

§  373.  FThe  several  Ordinaries  of  this  State  are  authorized  to  Mayadmin- 

,      .     .  ,       .  .         .  .  ister  oaths. 

administer  oaths  in  all  cases  where  the  authority  is  not  specially 
delegated  to  some  other  officer,  and  receive  the  same  fees  therefor 
as  are  allowed  Justices  of  the  Peace.]  (a) 


ARTICLE  11. 

THE     ORDINARIES    AS     CLERKS. 


Section. 

374.  Ordinaries  may  appoint  clerks. 

375.  Powers  of  such  clerks. 


Section. 

376.  The  Ordinary  may  require  bond,  etc. 

377.  Special  duties  of  the  clerk. 


§  374.  The  Ordinaries  are,  by  virtue  of  their  ofiices,  Clerks  of    ^  ^     . 

"  -"      ./  7  Ordinaries 

their  own  Courts,  but  they  may,  at  their  own  expense,  appoint  ?Jei?^' own 
one  or  more  clerks,  for  whose  conduct  they  are  responsible,  who  ^""^^'^^• 
hold  their  offices  at  the  pleasure  of  such  Ordinary. 

(a)  Acts  of  1865-6,  p.  41. 


84  PT.  1.— TIT.  5.— CHAP.  6.-— Judicial  Department. 

Article  2.— Tlie  Ordinaries  as  Clerks. 

■  inr  . .  '■      — ——————— _______^ 

Powers  of     §  ^'^5.  Such  appointed  clerks  may  da  all  acts  the  Ordinaries- 
Clerk.        could  do,  not  judicial  in  their  nature. 

§  376.  When  clerks  are  thus  appointed,  before  entering  on  the- 
May  give  dutics  of  their  offices,  they  may  give  to  the  Ordinary  a  bond  and 
security  in  the  sum  of  one  thousand  dollars. 

§  377.  It  is  the  duty  of  such  clerks,  or  the  Ordinaries  acting 

The  dutics  as    such 

of  the  Clerk 

of  ordSy!      ^*  ^^  issuc  all  citatious  required  by  law. 

2.  To  grant  temporary  letters  of  administration. 

3.  To  grant  marriage  licenses. 

4.  To  issue  all  ji.  fas.  for  costs  on  all  judgments  of  the  Ordi- 
nary or  other  process  necessary  to  enforce  them. 

5.  To  issue  subpoenas  for  witnesses,  and  all  similar  process  for 
ripening  a  trial. 

6.  To  issue  any  paper  or  process  by  order  of  the  Ordinary, 
and  bearing  test  in  his  name  as  other  Clerks. 

7.  To  keep  fair  and  regular  minutes  of  each  session  of  the 
Court,  entered  in  a  well- bound  book,  and  such  other  services 
during  term  time  as  the  Ordinaries  may  require. 

8.  To  keep  in  their  offices  other  suitable  books  for  the  following 
Books  to  purposes — viz  : 

he    kept   m  -"^       ••• 

the  office  of     ^  \io6k  for  the  record  of  wills. 

the  Orainary 

Another  for  the  record  of  all  letters  of  administration  and 
guardianship. 

Another  for  the  record  of  all  bonds  given  by  administrators 
and  guardians. 

Another  for  the  record  of  all  appraisements,  inventories,  and 
schedules. 

Another  for  the  record  of  all  accounts  of  sales. 

Another  for  the  record  of  all  accounts  current  authorized  to 
be  made  to  the  Ordinary,  together  with  the  vouchers  accompany- 
ing the  same. 

Another  for  the  record  of  all  marriage  licenses,  and  the  returns 
thereon. 

Another  as  a  docket  in  which  to  enter  all  applications  and 
other  proceedings,  in  the  order  they  are  made,  and  which  shall  be 
called  in  like  order  at  each  session. 

Another  for  the  record  of  all  official  bonds  required  to  be 
recorded  in  the  Ordinary's  office. 

9.  To  procure  and  preserve,  for  public  inspection,  a  complete 


PT.  1.— TIT.  5.— CHAP.  6.— Judicial  Department.  85 


Article  3. — The  Ordinaries  as  Scliool  Commissioners. 


-4!fc- 


file  of  all  newspapers  in  wliicli  their  advertisements  appear,  as  the 
Clerks  of  the  Superior  Court  are  required. 

10.  To  keep  their  books  and  papers  arranged,  filed,  and  labeled 
and  indexed  as  said  Clerks  are  required. 

11.  To  give  transcripts  likewise  as  thej  are  required,  and  when 
the  Ordinary  and  the  Clerk  are  the  same  person,  so  to  state  in  the 
certificates. 

12.  To  perform  any  other  duty  required  of  them  by  law,  or 
which  is  indispensable  to  those  required. 


ARTICLE  III. 


THE    ORDINARIES  AS    SCHOOL   COMMISSIONERS. 


Section. 

378.  Ordinaries  are  School  Commissioners 

379.  Shall  give  additional  feond. 


Sectiox. 

380.  Special  duties  of  the  Ordinary. 


§  378.  The  Ordinaries  are,  by  virtue  of  their  offices,   School    ordinaries 
Commissioners,  members  of  the  Board  of  Education,  and  treas- commis- 

sioners,  etc. 

urers  thereof  for  their  respective  Counties. 

§  379.  Before  entering  on  the  duties  of  their  offices,  in  addition  oatha^nd 
to  the  oath  and  bond  already  prescribed,  they  shall  take  an  oath 
'' faithfully  to  discharge  all  the  duties  imposed  upon  them  as  such, 
and  to  faithfully  apply  and  account  for  all  money  coming  to  their 
hands  in  said  capacity,"  and  shall  also  give  bond  and  surety, 
payable  to  and  approved  by,  the  Justices  of  the  Inferior  Court, 
in  double  the  sum  of  the  whole  School  Fund  arising  from  all 
sources,  conditioned  for  the  faithful  discharge  of  their  duties  and 
application  of,  and  accounting  for,  said  fund  for  the  purposes  and 
in  the  manner  prescribed  by  law,  as  treasurer  of  said  Board  of 
Education,  which  oath  and  bond  shall  be  entered,  filed,  and 
recorded  as  his  other  oaths  and  bonds  are. 

§  380.  It  is  their  duty  in  said  capacities — 

1.  To  enter  yearly,  as  soon  as  received,  in  a  book  to  be  kept   special  du- 

«^  *'  '  ^  •*■      ties   of    the 

for  that  purpose,  the  names  of  all  children  entitled  to  the  benefit  ^tc'^^^'^'^^' 
of  the  School  Fund. 

2.  To  attend  the  sessions  of  the  Board  of  Education,  and  once      Must  at- 
in  each  year  to  report  to  them  the  condition  of  the  funds  in  their  ings  of^the 
hands,  the    amounts    due   teachers,  the  probable   revenues  and  ucTtion. 
necessities  for  the  current  year. 


86 


PT.  1.— TIT.  5.— CHAP.  6.— Judicial  Department. 


Article  3. — The  Ordinaries  as  School  Commissioners. 


3.  To  lay  said  reports  before  the  first  Grand  Juries  of  their 
His  report  respectivo  Counties  at  the  first  session  thereafter,  and  to  each 

t;o  Grand  •"■  .         . 

J^i'y-  successive  Grand  Jury  until  action  is  had  thereon,  together  with 

the  action  of  said  Board  of  Education,  and  specially  to  inform 
said  jury  of  the  number  of  children  entitled  to  the  benefit  of  the 
School  Fund,  and  the  amount  of  funds  on  hand  after  paying 
teachers  for  the  previous  years,  aside  from  what  may  be  raised 
from  County  taxation. 

4.  To  keep  full  and  fair  accounts  of  all  his  receipts  and  dis- 
Mustkeep  burscmcnts  in  a  well-bound  book  kept  for  that  purpose,  showing 

of    receipts  the  different   amounts  received,  when  received    and   from  what 

anddis- 

bursements.  sourcc,  to  whom  and  when  paid  and  for  what  purpose ;  which  shall 
be  laid  before  the  Grand  Jury  for  their  inspection  whenever  they 
require  it. 

5.  To  pay  teachers  of  such  children  and  any  other  charge  on 
Must  pay  such  fund,  in  the  manner  prescribed  by  law  and  said  Board  of 

'     '  Education,  taking  and  filing  proper  vouchers  for  the  same. 

6.  To  keep,  by  themselves  or  their  clerks  (if  any),  the  minutes 
Must  keep  of  Said  Board  of  Education  in  a  book  to  be  kept  for  that  purpose, 

tlitj  minutes  ...  x       i  y 

of  the  Board  ^hich  shall  be  deposited  in  their  offices  for  public  inspection. 

7.  To  issue,  in  such  capacity,  any  order  or  process  such  Board 
<^^«iers  of  i]Qay  require. 


CHAPTER    VII. 

SHERIFFS    AND    THEIR    DEPUTIES, 


Sectiox. 

381.  Sheriffs— how  elected. 

382.  A  surety  for  Tax  Collector. 

383.  Vacancies  in  the  office  of  Sheriff. 

384.  His  oath  of  office. 
385..  Must  give  bond. 

386.  Bond  to  be  examined. 

387.  His  bond— where  recorded. 

388.  Judge  of  the  Court  may  examine. 

389.  "When  a  Sheriff. is  succeeded. 

390.  Sheriff's  office — where  to  be  kept. 

391.  May  appoint  deputies. 


Section. 

392.  The  Sheriff  is  Jailor. 

393.  Jailors  must  take  an  oath. 

391.  Bond  and  oath  must  be  recorded. 

395.  Jailors  bound  to  receive  prisoners. 

396.  Sheriff  liable  for  acts  of  deputy. 

397.  Sheriff's  duty  in  executing  orders.. 

398.  His  book  of  entries  when  filled. 

399.  Can  not  purchase  at  his  own  sale. 

400.  When  allowed  fees.- 

401.  Defaulting  Sheriffs. 


§  381.  The  Sheriffs  are  elected,  qualified,  commissioned,  hold' 
Sheriffs—  their  offices  for  the  same  term,  and  are  subject  to  the  same  disa- 
anrquaiified  biUtics  as  the  Clcrks  of  the  Superior  Courts. 
office!"^^"^  ^       §  382.  A  security  for  any  Tax  Collector  or  other  holder  of 


PT.  1.— TIT.  5.— Judicial  Department.  87 

Chapter  7. — Sheriffs  and  their  Deputies. 

public  money  is  ineligible  to  tbe  office  of  Sheriff,  until  all  moneys    r>isqx;aiifi- 
for  whicli  he  is  bound  shall  have  been  paid  to  the  proper  authority. 

§  383.  Vacancies  are  filled  and  the  after  proceedings  are  as  in  vacancies 
case  of  vacancies  in  Clerks  of  the  Superior  Courts,  except  that"  ^^^ 
in  case  there  is  a  failure  to  appoint,  as  set  forth  in  Section  24-8, 
the  Coroner  of  the  County  shall  act  as  Sheriff,  and  if  there  is  no 
Coroner  the  Ordinary  shall  make  a  temporary  appointment,  and 
on  failure  of  both,  the  Sheriff  of  any  adjoining  County  is  author- 
ized to  act  as  Sheriff  until  the  Justices  of  the  Inferior  Court 
shall  make  their  appointment  or  there  is  an  election. 

§384.  Before  entering  on  the  duties  of  their  office  they  shall  His  oath  of 
take  and  subscribe,  besides  the  oath  of  all  the  civil  officers,  the 
following  oath,  before  the  Judge  of  the  Superior  Court  or  Justices 
of  the  Inferior  Court — viz :  ^'I  do  swear  that  I  will  faithfully  exe- 
cute all  writs,  warrants,  precepts,  and  process  directed  to  me  as 
Sheriff  of  this  County,  or  which  are  directed  to  all  Sheriffs  of  this 
State,  or  to  any  other  Sheriff  specially,  I  can  lawfully  execute, 
and  true  returns  make,  and  in  all  things  well  and  truly  and 
without  malice   or  partiality,  perform  the  duties  of  the  office  of 

Sheriff  of County,  during  my  continuance  therein,  and  take 

only  my  lawful  fees.     So  help  me  God." 

§  385.  They  shall  also  give  a  bond,  with  at  least  two  sureties.  Must  give 
in  the  sum  of  [ten]  (a)  thousand  dollars  (unless  changed  to  a  less 
or  greater  amount  by  local  acts  now  in  force  or  hereafter  to  be 
enacted),  conditioned  for  the  faithful  performance  of  their  duties 
as  Sheriffs,  by  themselves,  their  deputies,  and  their  jailors,  and 
upon  the  terms  required  by  law. 

§  386.  Such  bonds  shall  be  approved  by  three  Justices  of  the  ms  bond- 
Inferior  Court  of  the  County,  and  then  deposited  in  the  office  of  to  bo  exam- 
the  Clerk  of  the  Superior  Court  until  the  first  session  of  that  proved. 
Court  thereafter,  when  the  presiding  Judge  shall  examine  said 
bonds,  and  if  taken  in  conformity  to  the  law,  and  the  sureties  are 
sufficient,  so  declare  by  order,  and  have  them  spread  upon  the 
minutes  of  the  Court;  and  if  it  has  not  been  so  taken  they  shall 
give  another  bond,  which  said  Judge  is  authorized  to  take  and 
have  entered  on  said  minutes. 

§  387.  "When  said  bonds  are  thus  approved  by  the  Justices  of  guch  bond 
the  Inferior  Court,  and  before  deposited  in  said  office,  they  shall  ld^!Jfrde- 
be  recorded  in  the  office  of  the  Clerk  of  the  Inferior  Court,  and  ^''''^^^' 

(a)  Acts  of  1866,  p.  17. 


88  PT.  1.— TIT.  5.— Judicial  Department. 

Chapter  7. — Sheriffs  and  then*  Deputies. 

after  being  passed  upon  by  the  Judge  of  the  Superior  Court,  shall 
be  returned  to  the  office  of  said  Clerk  of  the  Inferior  Court  and 
by  him  filed;  and  if  the  Judge  of  the  Superior  Court  compels 
said  Sheriff  to  give  a  new  bond,  after  having  been  approved  and 
entered  on  the  minutes,  it  shall  be  filed  in  the  office  of  the  Clerk 
of  the  Inferior  Court  and  be  recorded  therein  without  further 
approval. 

§  388.  If  a  term  of  the  Superior  Court  is  held  in  the  County 
Judge  of  sa-  before  the  Justices  of  the  Inferior  Court  shall  have  approved  the 

perior  Court  ■■•  ••• 

may  exam-  Sheriflf's  boud,  the  Judffe  of  the  Superior  Court  may  do  so  in  the 

ine       said  7  n  r  j 

firstinitaice  "^^^^  instancc,  being  careful  to  take  the  opinion  of  such  Justices, 
cases!'^^^^^  or  a   part  of  them,    or  the  Ordinary,  as   to    the  solvency  and 
sufficiency  of  the  sureties,  and,  having  so  approved,  the  other  pro- 
ceedings are  as  hereinafter  set  forth. 

§  389.  When  a  Sheriff's  deputy  is  the  succeeding  Sheriff,  the 
sheTi^ff^i?  sureties  must  be  essentially  different  from  those  on  such  Sheriff's 

succeeded  by  'k^-,-,^ 
his  deputy.      L>OUU. 

§  390.  Sheriffs  must  keep  their  offices  at  the  same  place  and  on 
fice.^'^    ^^'the  same  terms  as  Clerks  of  the  Superior  Court  are  required. 

§  391.  They  are  authorized,  in  their  discretion,  to  appoint  one 
poinf  a^dep-  ^^  Hiorc  dcputies,  from  whom  they  must  take  a  bond  with  sureties. 
^*^^*  §  392.  They  are,  by  virtue  of  their  offices,  Jailors  of  the  Coun- 

May  ap-  tics,  and  have  the  appointment  of  Jailors,  subject  to  the  super- 
pom    aiors  yjg-Qj^  q£  ^jjg  Inferior  Court,  as  prescribed  in  this  Code. 

§  393.  Before  entering  on  the  duties  of  their  office,  such  Jailors 

Jailors  must  givc  to  the  Sheriff  bond  and  surety  for  the    sum  of  one 

oath   and  thousand  dollars,  conditioned  for  the  faithful  performance  of  their 

give  bond.  .  .  ^  » 

duties  as  Jailors,  and  shall  take  and  subscribe  before  some  one  of 
the  Justices  of  the  Inferior  Court  of  the  County  the  following 
oath — viz  :  "I  do  swear  that  I  will  well  and  truly  do  and  perform, 

all  and  singular,  the  duties  of  Jailor  for  the  County  of ,  and 

his^oat?.  ^^  that  I  will  humanely  treat  prisoners  who  may  be  brought  to  the 
jail  of  which  I  am  keeper,  and  not  suffer  them  to  escape  by  any 
negligence  or  inattention  of  mine.     So  help  me  God.'' 

§  394.  Such  bond  and  oath  must  be  filed  and  recorded  as  those 

Bond  and 

oath  record-  of  a  Sheriff's  deputy. 

ed  and  flkd,  r      j 

§  395.  It  shall  be  the  duty  of  the  keepers  of  the  several  jails 

Shall  keep  withiu  this  State  to  receive  into  their  respective  jails,  and  safely 

mttodunXr  keep  therein,  all  prisoners  committed  under  the  authority  of  the 

u.  stotel*^  United  States,  under  the  like  penalties  and  subject  to  the  same 


PT.  1.— TIT.  5.— Judicial  Department.  89 


Chapter  7. — Sheriifs  and  their  Deputies. 


action  as  in  the  case  of  prisoners  committed  under  tlie  authority 
of  this  State. 

§  396.  Sheriffs  are  liable  for  the  misconduct  of  the  Jailor  as       sheriffs 

•     •  1  1       T    •!        li'it>le  for  the 

they  are  liable  for  their  deputies,  and  persons  injured  by  the  Jailor  misconduct 
have  the  same  option  in  suing  the  Jailor's  bond  that  they  have  in  and  jaiiors. 
suing  the  deputy's  bond. 

§  397.  It  is  the  duty  of  the  Sheriff— 

1.  To  execute  and  return  the  process  and  orders  of  the  Courts  His  duty  in 

■•■  executing 

of  Record  of  this  State,  and  of  officers  of  competent  authority,  if  ^^^  entering 

'  ^  »'  ^        process,   or- 

not  void,  with  due  diligence,  when  delivered  to  them  for  that  pur-  ^^^^'  ^^• 
pose,  according  to  the  provisions  of  this  Code. 

2.  To  attend  upon  all  sessions,  by  themselves  or  deputies,  of .  i^  attend- 

■•■  '      «/  J-  -<         ing  upon  tlie 

the  Superior  and  Inferior  Courts  of  the  County,   [and  of  the  courts. 
County  Court,  when  required  by  the  Judge  thereof,]  (a)  and  of 
the  Court  of  Ordinary,  whenever  required  by  the  Ordinary,  and 
never  to  leave  said  Courts  while  in  session,  without  the  presence 
of  one  or  both  of  said  officers  if  required,  and  to  attend  in  like    in  attend- 
manner  at  the  place  of  holding  an  election  at  the  County  site,  on  ^°^  ^  ^*^  ^^"^ 
the  day  of  an  election,  from  the  opening  to  the  closing  of  the 
polls,  and.  to  take  under  their  charge  all  under  officers  present  as 
a  police  to  preserve  order. 

3.  To  publish  sales,  citations,  and  other  proceedings,  as  required  i;g|\^J}J"^; 
by  law,  and  to  kee-p  a  file  of  all  newspapers  in  which  their  official  t^tions,  etc. 
advertisements  appear,  in  the  manner  required  of  Clerks  of  the 
Superior  Courts. 

4.  To  keep  an  Execution  Docket,  wherein  they  must  enter  a  full      Keep  an 
description  of  all  executions  delivered  to  them,  the  dates  of  their    Docket. 
delivery,  together  with  all  their  acts  and  doings  thereon,  and  have 

the  same  ready  for  use  in  any  Court  of  their  County. 

5.  To  keep  a  book,  in  which  shall  be  entered  a  record  of  all  ,  a  record 

^  '  of  sales. 

sales  made  by  process  of  Court,  or  by  agreement  of  parties, 
under  the  sanction  of  Court,  describing  accurately  the  property 
and  process  under  which  sold,  the  date  of  the  levy  and  sale,  the 
purchaser,  and  price. 

6.  To  receive  from  the  precedino;  Sheriff  all  unexecuted  writs      shaii  re- 

"  celve       and 

and  process,  and  to  proceed  to  execute  the  same ;  to  carry  into  complete un- 
effect  any  levy  or  arrest  made  by  a  predecessor ;    to  put  pur-  ^^^^^  of  pro- 
chasers  into  possession,  and  to  make  titles  to  purchasers  at  his 
sales,  when  not  done  by  him. 

(a)  Acts  of  1865-6,  p.  66. 


90  PT.  1. — TLT.  5. — Judicial  Depaetment. 

Chapter  7.— Sheriffs  and  their  Deputies. 

7.  To  take  from  preceding  Sheriffs  custody  of  the  jail  and  the 
ceive^^\^aiit  ^odics  of  such  persons  as  are  confined  therein,  with  the  precept, 
from^prede-  Writ,  or  causc  of  detention. 

cesser.  g^   rp^  furnish  prisoners  with  medical  aid,  fire,  and  blankets,  to 

nish  prison-  be  reimbursed,  if  necessary,  from  the   County  treasury,  and  to 
S'^fiTetbian-  suffcr  a  penalty  for  neglect  as  prescribed  in  this  Code. 

9.  To  take  all  prisoners  arrested,  or  in  execution  under  any 
Takepris-  Criminal  or  civil  process,  to  the  jail  of  an  adjoining  County,  or  to 

oridjo^uing  the  jail  .of  some  other  County  when  more  accessible,  if  the  jail 
certain  cases  of  the  County  is  in  an  unsafe  condition,  under  such  rules  as  are 
prescribed  in  this  Code. 

10.  To  perform  such  other  duties  as  are  or  may  be  imposed  by 
law,  or  which  necessarily  appertain  to  their  ofiices. 

§  398.  All  books  the  Sheriffs  are  required  to  keep,  after  becom- 
ffis  books  insr  full    must  be   deposited  in  the  ofiice  of  the  Clerks  of  the 

when    filled  . 

must  be  de-  SuDcrior  Courts,  to  be  kept  as  their  other  books  of  record. 

posited.  ■'■  ■'  ■•■ 

§  399.  No   Sheriff  or    deputy,   or  other   officer  discharging  a 

Can  not  similar  duty,  will  be  permitted  to  purchase  any  property  whatever 

hisownsaie.  at  his  own  salc,  upon  his  own  bid,  nor  upon  the  bid  of  any  other 

person  for  him,  directly  or  indirectly  ;  and  all  such  sales  and  deeds 

in  pursuance  thereof,  intended  to  vest  in  such  officer  the  title  to 

property  so  purchased,  shall  be  null  and  void. 

§  400.   Sheriffs  are  only  entitled  to  such  fees  or  compensation  as 

When  ai-  the  law  prcscribcs,  or,  upon  an  omission  of  the  law,  to  such  reason- 

anT amount  able  compcusation  as  the  Court  shall  award;  and  where  they  use 

property  themselves,  or  hire  it  out  after  being  levied  upon,  they 

are  not  allowed  a  loer  diem  allowance  for  diet,  and  are  liable  to 

the  proper  party  for  the  hire  received. 

§  401.  If  any  Sheriff  or  deputy  fails  to  comply  with  the  pro- 
Defauiting  visions  of  Soctiou  397,  he  shall  be  fined  for  a  contempt,  as  the 
ed  for  con-  Clerk  of  thc  Superior  Court  is  in  similar  cases.     Section  261  also 
applies  to  Sheriffs. 


CHAPTER    VIII. 

STATE'S   ATTORISTEYS   AKD    ATTORNEYS    AT    LAW. 


Article  1. — Attorney  G-eneral. 
Article  2. — Solicitors  G-eneraL 
Article  3. — Attorneys  at  Law. 


PT.  1.— TIT.  5.— CHAP.  8.--JUDICIAL  DepartxMent. 


91 


Article  1. — Attorney  General. 


ARTICLE  I. 


ATTORNEY     GENEEAL, 


Section. 

402.  The  Attorney  General. 

403.  Must  give  bond  and  surety. 

404.  His  duties  enumerated. 


Section. 

405.  May  render  service  out  of  Circuit. 

406.  May  render  service  anywhere. 


§  402.  The  Solicitor  General   of  the  Circuit  which   embraces      Attorney 
the  seat  of  Government  is,  by  virtue  of  his  office,  the  Attorney 
General  of  the  State. 

§  403.  Before  entering  on  the  duties  of  his  office  he  must  give    Must  give 
bond  and  surety,  satisfactory  to  the  Governor,  in  the  sum  of  ten  cmity. 
thousand  dollars,  and  upon  hi^  requisition  must  give  additional 
bond  -whenever  the  public  interest  demands. 

§  404.  It  is  the  duty  of  the  Attorney  General — 

1.  To  give  his  opinion  in  writing,  or  otherwise,  on  any  question    Must  give 
of  law  connected  with  the  interests  of  the   State,  or  with  the  opinion. 
duties  of  any  of  the  Departments,  when  required  by  the  Gov- 
ernor or  either  of  the  State  House  officers. 

Prepare 

2.  To  prepare  all  contracts   and  writings  in  relation  to  any  contracts 

^       J-  '  o  »/   -vviien      the 

matter  in  which  the  State  is  interested  when  requested.'  ^eiSted  ^^' 

3.  To  attend,  on  the  part  of  the  State,  to  all  criminal  causes  Attend  on 
in  any  of  the  Circuits,  when  the  Solicitor  General  thereof  is  tht  s^ta\e  to 
prosecuted,  and  to  all  other  criminal  or  civil  causes  to  which  the  cnminai  ca- 
State  is  a  party,  when  ordered  by  the  Governor. 

4.  To  perform  such  other  duties  as  are  or  may  be  required  of  iiisgener- 
mm,  or  which  necessarily  appertain  to  his  office. 

§405.  When  the  services  of  such  Attorney  General  shall  be  Maybere- 
needed  in  either    of  the  Judicial   Circuits  the  presiding  Judcre  tend  out  of 

his  Circuit. 

thereof  shall  notify  the  Governor  twenty  days  before  of  the  time, 
place,  and  cause,  and  the  Governor  may  (in  his  discretion)  order 
the  Attorney  General  to  comply,  unless  the  law  in  the  case  pre- 
sented makes  it  his  imperative  duty  to  do  so. 

§406.  It  is  in  the  discretion  of  the  Comptroller  General  to  Theservi- 
require  the  Attorney  General,  when  the  services  of  a  Solicitor  ney  General 
Cieneral  are  necessary,  m  collecting  or  securing  any  claim  oi  the  quired  out 
State,  in  any  part  of  the  State,  either  to  command  the  services  of  c^it    by 

'  "^    -^  '  Comptroller 

said  Attorney  General  in  any  or  all  of  such  cases,   or  of  the  General. 
Solicitors  General  in  their  respective  Circuits. 


92 


PT.  l.'-t-TIT.  5.— CHAP.  8.— Judicial  Department. 


Article  2. — Solicitors  General. 


ARTICLE  II. 


SOLICITORS    GENERAL. 


Section. 

407.  Solicitor  General. 

408.  His  oath. 

409.  Vacancy — how  filled. 

410.  His  qualifications. 

411.  On  the  same  footing  as  the  Judge. 

412.  His  special  duties  enumerated. 

413.  May  be  ruled  as  attorneys. 

414.  Failing  to  attend  Court. 


Section. 

415.  May  nol.  pros,  indictments. 

416.  Penalty  for  exacting  illegal  costs. 

417.  Who  must  certify  such  proceedings. 

418.  Tampering  with  Grand  Jury. 

419.  May  be  appointed  by  the  Court. 

420.  An  attorney  so  appointed. 

421.  Charges  against  Solicitor  General. 


§  407.  Eacli    Superior    Court   Judicial  Circuit   must   have    a 

His  eiec-  Solicitor  General,  elected  by  the  people  thereof  respectively,  who 

term  of  of-  holds  his  officc  four  years,  unless  sooner  removed  in  the  manner 

fice.  .  .        . 

prescribed  by  the  Constitution. 

§  408.  Before  entering  on  the  duties  of  their  offices,  beside  the 
Hie  oath,  oaths  required  of  all  civil  officers,  they  must,  in  addition,  take  the 
following — viz : 

"I  do  swear  that  I  will  faithfully  and  impartially,  and  without 
fear,  favor,  or  affection,  discharge  my  duties  as  Solicitor  General, 
and  will  take  only  my  lawful  fees  of  office.     So  help  me  God." 

And  must  also  give  such  bond  and  surety  as  is  required  of  the 
Solicitor  who,  by  virtue  of  his  office,  is  Attorney  General. 

§  409.  Vacancies  occur  and  are  filled  as  prescribed  in  cases  of 
Vacancy—  the  Judges  of  the  Superior  Courts,  and  the  manner  of  proceeding 

how  filled.      .      .  1  1  r»  11 

IS  m  every  respect  the  same,  except  that  the  person  elected  to  fill 
the  vacancy  holds  his  office  only  for  the  unexpired  term,  and  must 
be  so  commissioned. 

§  410.  No  person  is  eligible  to  the  office  of  Solicitor  General 
His  quail-  who  has  Hot  been  a  resident  citizen  of  this  State  five  years  just 
preceding  his  election  or  appointment,  [and  who  does  not  perma- 
nently reside  in  the  Circuit  at  the  time  of  his  election  or  appoint- 
ment,] (a)  and  who  has  not  attained  the  age  of  twenty-one  years, 
and  who  has  not  been  duly  admitted  and  licensed  to  practice  law 
in  the  Superior  Courts  of  this  State  for  at  least  three  years. 
On  the      §  4H'  -^  person  having  been  appointed  or  elected  a  Solicitor 
as^jud-e^'as  ^^^  ^^J  Circuit  is  on  the  same  footing  of  a  Judge  of  the  Superior 
Ms  circSit.^  Court,  as-  set  forth  in  Section  230  (as  to  retaining  his  office). 
§  412.  Their  duties  within  their  respective  Circuits  are — ■ 


(a)  Acts  of  1865-6,  p. 


PT.  1.— TIT.  5.— CHAP.  8.— Judicial  Department.  93 

Article  2. — Solicitors  General. 

1.  To  attend  each  session  of  the  Superior  Courts,  regular  or     Must  at- 
adjourned,  unless  excused  by  the  Judge  thereof,  and  remain  until  pTiiorOourts 
the  business  of  the  State  is  disposed  of. 
.  2.  To  attend  on  the  Grand  Juries,  advise  them  in  relation  to  ^  Must  at- 

^  ^  tend    Grand 

matters  of  law,  and  swear  and  examine  witnesses  before  them.       J»ry. 

3.  To  administer  the  oaths  the  laws  require  to  the  Grand  and  jj^g^  ^d- 
Petit  Jurors,  to  the  Bailiffs,  or  other  officers  of  Court,  and  other- ^thl^^^^^ 
wise  to  aid  the  presiding  Judge  in  organizing  the  Courts  as  he 

may  require. 

4.  To  draw  up  all  indictments  or  presentments,  when  requested  ind^cTmen"? 
by  the  Grand  Jury,  and  to  prosecute  all  indictable  offenses.  melua^.^^^^*^' 

5.  To  prosecute  or  defend  any  civil  action  in  the  prosecution  or  ecute^ordl- 
defense  of  which  the  State  is  interested,  unless  otherwise  spe-  the^^gtaTels 
cially  provided  for.  •        interested. 

6.  To  attend  before  the   Supreme   Court   when   any  criminal  ^  Must  at- 

.  ..  tendSu- 

cause  is  tried  emanating  from  their  respective  Circuits,  argue  the  p^cme  Court 
same,  and  perform  any  other  duty  therein  the  interest  of  the  State 
may  require. 

7.  To  collect  all  moneys  arising  from  fines  and  forfeited  recog-  Must  coi- 
nizances,  all  costs  on  criminal  cases  when  paid  into  Court  before  and  forfeit- 
judgment,  and  not  otherwise ;  and  at  the  Fall  Term  of  each  Court,  tie  with  the 

T  '  1        t        /-A  n^  ^  County 

every  year,  to  settle  with  the  County  Treasurer,  and  pay  over  to  Treasurer. 
him  all  moneys  due  him  according  to   law,  after  a  fair  and  full 
settlement. 

8.  To  settle  at  the  same  time  with  the  preceding  Solicitor,  and    Must  set- 
pay  over  to  him  any  moneys  collected  to  which  he  maybe  enti- preceding 
tied,   and  to  render  to  him,  whenever  required  by  him,  a  just 
statement  of  the  condition  of  his  interests. 

9.  To  collect  all  moneys  due  the  State  in  the  hands  of  any  Must  coi- 
escheators,  and  pay  over  to  the  Educational  Fund ;  and,  if  neces-  ey  due^the 
sary,  compel  them  to  pay  by  rule  or  order  of  Court,  or  other  hands  ^fes- 

,         ,  cheators. 

legal  means. 

10.  To  collect  all  claims  of  the  State  they  may  be  ordered  to  Must  coi- 
do  by  the  Comptroller  General,  and  to  remit  the  same  within  d!?ethest™l 
thirty  days  after  collection ;  and  on  the  first  day  in  October  every  ed  by  the 
year  to  report  to  him  the  condition  of  the  claims  in  their  hands  General. 

in  favor  of  the  State,  particularly  specifying  the  amounts  col- 
lected and  paid,  from  what  sources  received  and  for  what  pur- 
poses; to  whom  paid,  what  claims  are  unpaid,  and  why;  what 
judgments  have  been  obtained,  when,  and  in  what  Court ;    what 


94  PT.  1.— TIT.  5.— CHAP.  8.— Judicial  Department. 

Article  2. — Solicitors  General. 

.     suits  are  instituted,  in  what  Courts,  and  their  present  progress 
and  future  prospects. 

11.  To  perform  such  other  duties  as  are  or  may  be  required  by 
erai  duties,   law,  or  which  nocossarily  appertain  to  their  office. 

§  413.  If  a  Solicitor  General  fails  to  comply  with  the  provisions 
May  be  ml- of  the  preceding  Section,  he  is  liable    to  rule   as  attorneys   at 
neys  at  law.  law  are,  with  all  the  penalties  and  remedies ;   and  on  failure  to 
comply  with  the  terms  of    a  rule  absolute,  within  twenty  days 
from  the    time  it    becomes    final,  it    shall    be    a  ground   of  im- 
peachment. 

§  414.  If  he  fails  to  attend  on  the  Courts  of  his  Circuit  as 
attend  clurt  required,  he  is  liable  to  be  fined  for  each  failure  fifty  dollars,  to 
—liable  to  be  1^^  retained  out  of  his  salary. 

§  415.  He  has  authority,  on  the  terms   prescribed  by  law,  to 

May  nolle  enter  a  nolle  prosequi  on  indictments  ;  and  if,  in  any  cases,  a  So- 

ments,  etc.    Hcitor  General  accepts,  directly  or  indirectly,  in  money  or   other 

valuable  thing,  or  exacts  more  than  his  lawful  costs  from  the  de- 

g^^JJf^g^^"^^  fondant  or  any  body  else,  it  is  a  subject-matter  of  investigation 

legal  costs,    by  the  Grand  Jury. 

§  416.  If  the  Grand  Jury  presents  the  Solicitor  for  having  so 
How  pro-  received  more  than  his  lawful  costs,  he  shall  be  disqualified  from 
gainst  ^  f  o'^r  further  discharging  his  ofiicial   duties  until  a  trial  shall  be  had 
legal  costs,    upou  an  indictment,  and  if  the  trial  results  in  a   conviction,  he 
shall  be  fined  and  imprisoned  at  the  discretion  of  the  Court,  and 
conviction,    it  is  also    a  grouud  of  impeachment.     The   disqualification  con- 
tinues until  the  adjournment  of  the  next  session  of  the  General 
Assembly. 
Clerk  shall      §  ^-^'^'  ^^  shall  bo  the  duty  of  the  Clerk  of  said  Court  to  certify 
notify  the  immediately  such  proceedings  to  the  Governor. 

Governor.  J  r  o 

§  418.  If  they  take,  or   agree  to  take,  from  any  person,  money 

Penalty  for  or  any  Other  valuable  thing,  the  consideration  whereof  is  a  prom- 

greSSg^"^  to  ise  or  undertaking  to  procure,  or  to  try  to  procure,  a  finding  by 

or    other  the  Grand  Jury  of  "a  bill"  or  "no  bill"  upon  an  indictment, 

thing  of  val-  ^ 

ue  to  influ-  or  to  make  or  not  to  make  a  presentment,  or  to  prolong  or  pro- 
Grand  Jury  crastinate  a  State  case  or  an  arrest,  or  to  advise  it  done,  or  how 

in  their  de- 

liberations,   it  may  be  douc,  the  penalty  and   proceedings  are  the  same  as  in 
the  two  preceding  Sections. 

§  419.  When  a  Solicitor  is  absent,  or  indisposed,  or  disqualified 

The  soiic- from  interest  or  relationship  to  engage  in  a  prosecution,  the  pre- 

bdng  ^'^dis-  siding  Judgc  must  appoint  a  competent  attorney  of  the  Circuit  to 


PT.  1.— TIT.  5.— CHAP.  8.— Judicial  Department. 


95 


Article  2. — Solicitors  General. 


act  in  his  place,  or  he  may  command  the  services  of  the  Solicitor 
of  any  other  Circuit  accessible,  or  he  may  make  a  requisition  on 
the  Governor  for  the  Attorney  General,  as  the  emergency  in  his 
discretion  may  require. 

§  420.  An  attorney  acting  as  such  Solicitor  is  subject  to  all  the 
laws  governing  Solicitors  General ;  he  is  entitled  to  the  same  fees 
for  what  he  does,  and  incurs  the  same  penalties  in  the  discharge 
of  his  duties. 

§  421.  When  any  person  makes  affidavit  before  the  Court  or 
Grand  Jury,  that  in  his  judgment;  the  Solicitor  General  is  guilty 
of  an  indictable  offense,  and  that  he  desires  to  prosecute  him,  or 
the  Grand  Jury  may  present  him  for  such  an  offense,  it  is  the 
duty  of  the  Court  instanter  to  appoint  some  competent  attorney 
at  law  to  draw  a  bill  of  indictment,  and  when  there  is  a  true 
bill  found,  or  presentment  made,  to  put  the  Solicitor  under 
recognizance  or  in  prison,  according  to  the  offense,  until  the  ap- 
pearance of  the  proper  prosecuting  officer. 


qualified,  fhe 
Court  may 
supply  h  i  s 
place. 


An  attor- 
ney, acting 
as  Solicitor, 
is  entitled  to 
the  same 
fees,  etc. 


Proceed- 
ings when 
Solicitor  is 
prosecuted. 


ARTICLE  III. 

.ATTORNEYS     AT     LAW. 


Section. 

422.  Attorneys  at  law. 

423.  Rii^hts  of  persons  admitted. 

424.  Qualifications  of  applicant. 

425.  Aliens. 

426.  Application  for  admission. 

427.  Evidence  of  preparation. 

428.  Must  be  examined. 

429.  The  manner  of  examination. 

430.  Examination  not  satisfactory. 

431.  Order  of  admission. 

432.  Form  of  the  oath  to  be  taken. 

433.  Graduates  of  Lumpkin  Law  SchooL 

434.  Attorneys  of  other  States. 

435.  Order  of  the  Court  necessary. 

436.  Prohibited  in  certain  cases. 

437.  Attorneys  removing  to  this  State. 

438.  How  admitted  in  Supreme  Court. 

439.  Failing  to  render  the  service. 

440.  Tra,nsferring  fee  note. 

441.  The  rule  for  settling  fees. 

442.  Attorneys  may  be  ruled. 

443.  May  bind  their  clients — when. 

444.  Can  receive  nothing  but  money. 

445.  Parties  acting  by  advice  of  attorneys. 


Section. 

446.  Appearing  without  authority. 

447.  Penalty  therefor. 

448.  Required  to  produce  authority. 

449.  Wlien  two  are  employed. 
460.  Leading  counsel  defined. 

451.  If  more  than  one,  preference  given, 

452.  Special  duties  of  attorneys. 

453.  Causes  for  striking  an  attorney,  etc, 

454.  May  be  reinstated,  and  how. 

455.  Proceedings  against  attorneys. 

456.  Accusation  must  be  in  writing. 

457.  Proceedings  must  be  under  oath. 

458.  Ptequiring  the  accuser  to  appeax". 

459.  Appearance. 

460.  Answer. 

461.  If  objections  be  overruled. 

462.  Plea  of  guilty,  or  refusal  to  answer. 

463.  The  judgment  and  efi"ect  thereof. 

464.  Proceedings  instituted  by  the  Court. 

465.  The  attendance  of  witnesses. 

466.  Costs — how  taxed  and  collected. 

467.  Death  of  the  informa.nt. 

468.  Jury  may  find  proceedings  malicious. 

469.  Failing  to  pay  tax — how  dealt  with. 


§422.  The  following  persons,  if  not  specially  declared  ineligi-  persons  en- 
ble,  are  entitled  to  practice  law  in  the  Courts  of  this  State :  pjacuce  law! 


96  tT.  1.— TIT.  5.— CHAP.  8.^Judicial  Department. 

Article  3. — Attorneys  at  Law 

1.  Those  who  have  been  regularly  licensed  under  the  laws  of 
the  State  before  the  adoption  of  this  Code. 

2.  Those  who  are  hereafter  licensed  in  the  manner  prescribed 
by  law. 

§  423.    Those  who  are  admitted  to  practice  in  the   Superior 
Eights  of  Courts  may  practice  in  any  other  Court  of  this  State,  except  the 

persons    ad-  •'    ■■•  "^  7  i 

mittedinthe  Supreme  Court,  for  which  another  and  special  license  must  be 

Superior         -t^  ^  ^ 

Court.         obtained. 

§  424.  Any  white  male  citizen  of  good  moral  character,  who 
Quaiiflca-  has  read  law  and  undersioes  a  satisfactory  examination  before  a 

tlons  of  ap-  .  ®  "^ 

piicant.       Judge  of  the  Superior  Court,  as  hereinafter  prescribed,  is  entitled 
to  plead  and  practice  law  in  this  State. 

§  425.  Aliens  who  have  been  two  years  resident  in  the  State, 
Aliens.      ^^^  ^^^®  declared  their  intention  to  become    citizens,  pursuant 
to  the  act  of  Congress,  are  eligible  to  admission  as  attorneys  at 
law. 

§  426.  For  the  purpose  of  admission,  one  must  apply,  by  peti- 
Appiica-  tion  in  writing,  to  a  Superior  Court  durins;  one  of  its  sessions, 

tion  for  ad-  .  . 

mission— in  a  Circuit  of  which  he  is  resident,  or  has  read  law  therein,  and 

now  made.  '  ^ 

must  show — 

1.  His  citizenship. 

2.  That  he  is  of  good  moral  character. 

3.  That  he  has  read  law. 

4.  That  he  has  been  a  resident  of,  or  has  read  law  in  the  Cir- 
cuit, as  aforesaid. 

§  427.  The  evidence  of  such  facts  must  be  by  certificate  of  two 
Certificate  attorneys  of  the  Court,  or  of  other  evidence  satisfactory  to  the 

of   prepara-  r^         l 
tion.  Court. 

§  428.  The  applicant  must  also  be  examined  in  open  Court, 

Authorities  touchiug  his  knowlcdgc 

be  examined      1.  Of  the  principles  of  the  Common  and  Statute  Law  of  Eng- 
land of  force  in  this  State. 

2.  Of  the  Law  of  Pleading  and  Evidence. 

3.  The  Principles  of  Equity,  and  Equity  Pleading  and  Prac- 
tice. 

4.  The  revised  Code  of  this  State,  the  Constitution  of  the 
United  States  and  of  this  State,  and  the  rules  of  practice  in  the 
Superior  Courts. 

§  429.  No  portion  of  such  examination  must  take  place  out  of 
exSnTtion!  op^^^  Court ;  and  to  enable  the  Judges  to  have  proper  examina- 


PT.  l._TIT.  5.— CHAP.  8.— Judicial  Department.  9T 

Article  3. — Attorneys  at  Law. 


tions,  they  are  required,  if  there  is  not  ample  time  during  a  term, 
to  appoint  a  time,  at  least  twice  a  year,  at  some  County  site  in 
their  respective  Circuits,  which  has  a  bar  of  attorneys  sufficient 
in  numbers  and  qualifications  to  conduct  the  examinations,  and, 
if  necessary,  to  request  and  require  the  attendance  of  such  attor- 
neys from  other  places  Avithin  the  Circuit,  of  which  appointment 
public  notice  shall  be  given  thirty  days  prior  to  said  time  in  some 
public  gazette.  Application  for  admission  may  be  made  to  the 
Judge  of  each  Circuit  (as  otherwise  required)  at  any  time. 

§430.  Such  Judges  are  required  to  be  strict,  and  to  reject  any     such  ap- 

1         -.  1  r.   n  T  •    n  .  plicanttobe 

applicant  who  does  not  undergo  a  luii  and  satisiactory  examma-  rejected. 
tion. 

§  431.  If,  on  examination,  the  applicant  is  found  duly  qualified     How  ad- 
in  all  the  branches  required,  the  Court  must  direct  an  order  to  practice. 
be  entered  on  the   minutes,  that,  being  examined  and  found  to 
possess  the  requisite  learning  and  ability,  and  having  otherwise 
complied  with  all  the  conditions  of  the  law,  that,  upon  taking  the 
oath  prescribed,  that  the  Clerk  issue  to  him,  on  the  payment  of  ^^l^^  *^^® 
the  fees  and  costs,  a  license  to  plead  and  practice  law^  in  the  Su- 
perior Courts  of  this  State. 

§  432.  The  oath  is  as  follows  : 

"  I, ,  sw^ear  that  I  will  justly  and  uprightly  demean  my-    Form  of 

self,  according  to  the  laws,  as  an  attorney,  counselor,  and  solic- 
itor, and  that  I  will  support  and  defend  the  Constitution  of  the 
United  States  and  the  Constitution  of  the  State  of  Georgia.  So 
help  me  God." 

Which  oath  must  be  taken  in  open  Court,  and  entered  on  the 
minutes  thereof. 

§  433.  None  of  the  preceding  requisitions  are  applicable  to  any    'Graduates 
graduate  of  the  Lumpkin  Law  School,  but  upon  presentation  of  Law  school 
a  diploma,  and  payment  of  fees,  the  Court  shall  cause  his  name  mitted. 
to  be  enrolled  among  the  attorneys. 

§  434.  Attorneys  at  law  residing  in  other  States  of  the  Union,     Attorneys 
having  license  to  practice  law  in  a  Circuit  Court  therein,  where,  states- how 

111  n      1  •      n  •-.  '         1  admitted    in 

by  law,  the  attorneys  oi  this  btate  are  permitted  to  practice  law,  this  state. 
may  practice  in  the  Superior  Courts  of  this  State — 

1.  By  presenting  a  petition  in  writing  for  such  purposes  to  the 
Judge  of  the  Superior  Court  of  any  Circuit,  either  in  term  time 
or  vacation. 

2.  By  producing  before  him  a  certificate  from  a  Judge  of  the 

7 


98  PT.  1.— TIT.  5.— CHAP.  8.— Judicial  Depaetment. 

Article  3. — Attorneys  at  Law. 
Must  pro-  Circuit  or  District  Court  of  the  State  of  which  they  are  citizens, 

duce   a  cer-  r»         •  t    /^  • 

tificate.  under  the  seal  of  said  Court,  stating  that  the  applicant  is  of  good 
moral  character,  and  has  been  legally  admitted  to  practice  law 
in  such  Circuit,  and  that,  by  the  laws  of  such  State,  the  attor- 
neys of  this  State  are  allowed  to  practice  law  therein. 

§435.    On  reading  such  petition  and  certificate,  such  Judge 
Order  of  shall  grant  an  order  that  the  applicant  be  admitted  to  practice 
law  in  this   State,   and    shall    order  the  Clerk    of    the  Superior 
Court  of  the  County  to  enter  it  on  his  minutes  and  file  the  pro- 
ceedings, on  the  payment  of  his  legal  fees ;  which,  when  done,  is 
a  sufficient  license. 
from Tuch      §  ^^^-  ^^^^^  attomoys  at  law  of  any  State  adjoining  this  are 
not^^irfow  ^^*  ^^^^  permitted  to  practice  law  herein,  unless  those  of  this 
yeSfo'v^Z'-  State  are  not  likewise  permitted  to  practice  law  in  their  Courts. 
courS/^^"      §437.  Those  attorneys  at   law  of   other  States,   who  become 
Lawyers  rosidcnts  of  this  State  and  do  not  come  under  the  provisions  of 

from     other  tcn  i  i*  ^        r>t  •    n 

states   may  the  prcccdms:  Sections,  by  producing  to  the  Court  satisfactory  ev- 

be  admitted  r  &  5      J    r  &  ^  J^ 

to  this,  etc.  idence  that  they  were  attorneys  at  law,  in  good  standing,  in  a 
'  Court  of  similar  jurisdiction  in  the  State  from  which  they  came, 
may  be  immediately  admitted  to  plead  and  practice  law  in  this 
State,  without  undergoing  the  examinations  as  other  resident  ap- 
plicants. 

h^v^admit^      §  ^^^'  ^^y  attorney  authorized  to  practice  law  in  the  Superior 

tic^e  *?n^^The  Courts  of  this  State  is  permitted  to  practice  law  in  the  Supreme 

mt"^'  Court- 

1.  By  exhibiting  to  the  Court  proof  of  good  private  and  pro- 
Proof  of  fessional  character,  and  otherwise  complying  with  the  terms  of 

character.       . .  ^ 

its  rules. 

2.  By  taking  the  oath  prescribed. 

§439.  Attorneys  are  prohibited  from  collecting   any  note  or 
Attorneys,  other  coutract  in  writins:  given  as  a  fee  in  any  cause,  which  cause 

when     em-  .  o  °  ./  ? 

ployed,  fail-  they  havo  failed  to  attend  to  in  person  or  by  some  competent  at- 

ing   to  ren-  "^  •••  .... 

der  the  ser-  tomcy,  from  the  time  of  employment  until  the  rendition  of  judg- 
ment, and  the  same  shall  be  null  and  void  unless  they  were,  by 
contract,  released  from  such  duty. 

§  440.  The  transfer  of  such  notes  or  obligations  subjects  them 
Transfer-  to  forfeit  and  pay  to  the  person  from  whom  the  same  was  taken 

ring  fee  note    ■,■•■,■,  ,  «  ti«  n  !••• 

or  obligation  doublc  the  amouut  thereof,  recoverable  m  any  Court  navinsi;  luris- 

andfailingto  .  ^  '^  ,. 

render    the  dictiou  of  the  Same,  unlcss  such  person  is  saved  harmless  aeramst 


service. 


all  fees,  costs,  and  other  necessary  expenses  on  account  thereof. 


PT.  1.— TIT.  5.— CHAP.  8.— Judicial  Department.  99 


Article  3. — Attorneys  at  Law. 


§  441.  Unless  otherwise  stipulated,  one-half  of  the  fee  in  any     The  rule 

^  ,  ,     "^    for    settling 

cause  is  a  retainer,  and  due  at  any  time,  unless  the  attorne}^,  with-  tees. 
out  sufficient  cause,  abandons  the  case  before  rendering  service  to 
that  value ;  but  in  cases  where  he  has  rendered  such  service,  and 
can  not  render  the  balance  of  service — from  the  act  of  his  client, 
providential  cause,  election  to  office,  or  removal  out  of  the  State — 
he  is  entitled  to  retain  the  amount,  or  a  due  proportion,  if  col- 
lected, or  sue  for  it  and  collect  it,  if  not ;  where  no  special  con- 
tract is  made,  the  attorney  may  recover  for  the  services  actually 
rendered. 

§  442.  Where  attorneys  retain  in  their  hands  the  money  of  their      May  be 

rulccl      for 

clients,  after  it  has  been  demanded,  they  are  liable  to  rule  (and  money  coi- 

'  ,  .  .  lected. 

otherwise)  as  Sheriffs  are,  and  incur  the  same  penalties  and  con- 
sequences. 

§  443.  They  have  authority  to  bind  their  clients  in  any  action     Attayneys 
or  proceeding,  by  any  agreement  in  relation  to  the  cause,  made  their  clients 
in  writing,  and  in  signing  judgments,  entering  appeals,  and  by 
an  entry  of  such  matters,  when  permissable,  on  the  dockets  of  the 
Court,  but  they  can  not  take  affidavits  required  of  their  clients 
unless  specially  permitted  by  law. 

§444.  Without  special  authority,  attorneys  can  not  receive  any  can  notre- 

•^  ^  '^  ^  "^  ♦'ceive    any 

thins;  in  discharo^e  of  a  client's  claim  but  the  full  amount  in  cash,  thing  but 

<-*  a  money,  etc. 

§445.  Clients  shall  not  be  relieved  from  their  liability  to  dam-  Partiesnot 
ages  and  penalties  imposed  by  law  on  the  ground  that  they  acted  the^^gro-.nd 
under  the  advice  of  their  counsel,  but  are  entitled  to  redress  from  acted  nr.aer 

,^  (^  ^  '^^  c*   ^       1    '  '  the  advice  of 

them  tor  unskiiliul  advice.  counsel. 

§446.  If  it  be  alleged  by  a  party  for  whom  an  attorney  appears  a  party 
that  he  does  so  without  authority  the  Court  may,  at  any  stage  of  ate  an  auor- 

•^  "^  "^  °  ney  atteu:pt- 

the  proceedings,  relieve  the  party  for  whom  the  attorney  assumed  jng  to  appear 
to  appear  from  the  consequences  of  his  acts,  if  fully  satisfied  such 
allegation  is  true. 

§  447.  Any  attorney  appearing  for  a  person  without  being  em-     Attorneys 
ployed,  unless  by  leave  of  the  Court,  is  guilty  of  a  contempt  of  without'au? 
Court,  and  must  be  fined  in  a  sum  not  less  than  five  hundred  dol-    °"  ^' 
lars. 

§  448.  The  presiding  Judge,  or  Justice,  may,  on  motion  of  either      May  be 
party,  and,  on  showing  reasonable  grounds  therefor,  require  any  produco  au- 
attorney  who  assumes  the  right  to  appear  in  the  cause  to  produce, 
or  prove  the  authority  under  which  he  appears,  and  to  disclose. 
whenever  pertinent  to  any  issue,  the  name  of  the  person  who  em- 


100 


PT.  1.— TIT.  5.— CHAP.  8.— Judicial  Department. 


Article  3. — Attorneys  at  Law, 


When  two 
or  more  at- 
torneys are 
employed  on 
the  same 
side. 


Leading 
eonnsel  de- 
fined. 


If  more 
than  one, 
preference  is 
given  to  the 
one  first  em- 
ployed. 


Special  du- 
ties enumer- 
ated. 


Special 
causes  foj. 
which  an  at. 
torne}^  vavs^ 
be  removed 

For  crimes. 


Failing  to 
pay  over 
money  when 
ruled. 


ployed  him,  and  to  grant  any  order  that  justice  may  require  on 
such  investigation ;  but,  prima  facie^  attorneys  shall  be  held  au- 
thorized to  properly  represent  any  cause  they  may  appear  in. 

§  449.  When  two  or  more  attorneys,  being  employed  on  the 
same  side,  dispute  about  the  direction  to  be  given  to  their  cause^ 
and  the  client  is  not  present,  the  Judge  shall  hear  all  the  facts  and 
give  preference  to  the  leading  counsel. 

§  450.  The  leading  counsel  is  he  who,  at  the  time  of  the  trial, 
or  raising  of  any  issue  connected  with  the  cause,  is,  in  the  judg- 
ment of  the  Court,  the  counsel  upon  whom  the  client  relies  more 
than  any  other. 

§  451.  If  there  is  more  than  one  upon  whom  the  client  thus  re- 
lies, the  Court  shall,  as  between  them,  give  him  preference  who 
was  first  employed. 

§  452.  It  is  the  duty  of  attorneys  at  law — 

1.  To  maintain  the  respect  due  to  Courts  of  Justice  and  judi- 
cial officers. 

2.  To  employ,  for  the  purpose  of  maintaining'  the  causes  con- 
fided to  them,  such  means  only  as  are  consistent  with  truth,  and 
never  to  seek  to  mislead  the  Judges  or  juries  by  any  artifice  or 
false  statement  of  the  law. 

3.  To  maintain  inviolate  the  confidence  and,  at  every  peril  ta 
themselves,  to  preserve  the  secrets  of  their  clients. 

4.  To  abstain  from  all  offensive  personalities,  and  to  advance  no 
fact  prejudicial  to  the  honor  or  reputation  of  a  party  or  a  witness, 
unless  required  by  the  justice  of  the  cause  with  which  they  are 
charged. 

5.  To  encourage  neither  the  commencement  nor  continuance  of 
an  action  or  proceeding  from  any  motives  of  passion  or  interest. 

6.  Never  to  reject,  for  a  consideration  personal  to  themselves^ 
the  cause  of  the  defenseless  or  oppressed, 

§  453.  An  attorney  must  be  removed  for  the  following  causes 
by  the  Superior  Court  of  the  County  of  his  residence  : 

1.  Upon  his  being  convicted  of  any  crime,  or  misdemeanor  in- 
volving moral  turpitude.  In  either  case  the  record  of  his  convic- 
tion is  conclusive  evidence. 

2.  When  any  judgment,  or  rule  absolute  has  bee-n  rendered 
against  him  for  money  collected  by  him,  as  an  attorney,  which  he 
fails  to  pay  within  ten  days  after  the  time  appointed  in  the  order ; 
in  which  case  the  record  of  the  judgment  is  conclusive  evidence, 


■:x 


PT.  1.— TIT.  5.— CHAP.  8.— Judicial  Department.  101 

Article  3. — Attorneys  at  Law. 


unless  obtained  without  any  service  under  some  law  authorizing 
such  a  proceeding. 

3.  Upon  it  being  shov/n  to  the  satisfaction  of  the  Court  that  he     Unprofes- 

•■\  (*  T  Ml  f»  1        •  1  •       1  •  o        sioual     con- 

has  been  guilty  of  any  deceit  or  willful  misconduct  m  his  proles-  duct. 

-sion. 

4.  For  want  of  a  sound  mind,  or  for  indecent  behavior  in  or      indecen- 
out  of  the  Court  House,  whereby  he  becomes  a  nuisance  to  the  mind,  etc. 
Court,  his  brother  members  of  the  Bar,  or  the  public. 

§  454.  When  an  attorney  at  law  is  thus  removed,  after  the  lapse  Maybere- 
of  twelve  months  (unless  removed  under  the  first  ground  of  the  iiow. 
preceding  Section),  it  is  in  order  for  him.  to  be  restored  upon  the 
application  of  two-thirds  of  the  members  of  the  Bar  of  the  County 
where  lie  was  removed,  and  of  those  who  usually  practice  in  the 
Superior  Court  of  said  County,  if  approved  by  the  Judge  of  the 
Circuit. 

§  455.  The  proceeding's  to  remove  an  attorney  may  be  taken  by     Summary 

^  c>  ^    ./  ./  *'     proceedings 

the  Court  of  its  own  motion,  or  upon  the  motion  of  an  attorney  at  against  at- 

■'  *■  •'  torneys. 

law  or  other  citizen. 

§  456.  The  accusation  must  be  in  vmtinff,  signed  by  the  movant,    The  accu- 
or  his  attorney  at  law,  and  when  the  proceeding  is  taken  by  the  be^  in  writ- 
Court,  it  may  be  drawn  up  by  the  Solicitor  or  the  Clerk,  under 
the  direction  of  the  Court. 

§  457.  If  the  proceedings  are  upon  the  information  of  another,      Proceed- 

1  .  ■,  '  n     -i     T  ^  if»i  !•  i"^^  must  be 

the  accusation  must  be  verified  by  the  oath  oi  the  person  making  under   oatii 

,  ^  —when. 

it,  or  some  other  person,  and  presented  to  the  Court. 

§  458.  The  Court  must  then,  if  of  opinion  that  the  accusation     order  re- 
would,  if  true,  be  grounds  of  removal,  make  an  order  requiring  accused    to 
the  accused  to  appear  and  answer  the  same  at  a  specified  day  dur- 
ing the  same,  or  at  the  next  term,  and  must  cause  a  copy  of  the 
order  and  accusation  to  be  served  on  the  accused  within  a  pre- 
scribed time  before  a  day  appointed  in  the  order. 

§  459.  The  accused  must  appear  at  the  time  appointed  in  the       Appear- 
order,  and  answer  the  accusation,  unless,  for  sufiicient  cause,  the  accused. 
Court  assign  another  day  for  that  purpose ;  if  he  does  not  appear,    Failing  to 
the  Court  may  proceed  and  determine  the  accusation  in  his  ab-  ^^^^^^'  ^*^' 
sence. 

§  460.  The  accused  may  answer,  either  by  objecting  to  the  suf-    Answer  of 
ficiency  of  the  accusation,  or  by  denying  its  truth — -either  of  which 
must  be  entered  on  the  minutes. 

§461.  If  the  objection  to  the  sufficiency  of  the  accusation  be    objections 
not  sustained,  the  accused  must  answer  it  forthwith.  ciiser.  ^ 


,/ 


102         PT.  1.— TIT.  5.— CHAP.  8.— Judicial  Department. 

Article  3. — Attorneys  at  Law. 

§  462.  If  he  pleads  guiltj,  or  refuses  to  answer  the  accusations^ 
Plea  of  the  Court  must  proceed  to  iuds^ment  of  removal;  if  he  denies  the 

guilty,  or  re-  ■■■  .^       o  i 

swer°*^^^  accusation,  the  Court  must  immediately,  or  at  such  time  as  it  may 
appoint,  proceed  to  try  the  same — the  accused  Laving  a  right  to 
demand  a  trial  by  jury. 

§463.  A  judgment  of  acquittal  is  final,  but  from  a  judgment 
Effect  of   of  removal  there  may  be  a  motion  for  a  new  trial,  and  a  review  by 

the    judg-       ^       CA  ' 

ment.  the  Supreme  Court,  as  in  other  cases. 

§  464.  The  proceedings,  when  instituted  by  the  Court  of  its  own 

Proceed-  motiou,  are  conducted  in  the  name  of  the  State — the  Solicitor  ap- 
ings, when  .  .  ,        ••• 

instituted,  peariug  to  sustain  the  accusation — and  when  on  the  information  of 
another,  in  the  name  of  the  State  on  the  information  of  such  per- 
son. 

§  465.  Either  party  has  a  right  to  subpoenas  and  other  process 

Either  par-  to  compcl  the  attendance  of  witnesses,  and  testimony  may  be  taken 

ty  may  com-  ......  .  i     •         i  . 

pel  the  at-  by  dcposition  m  such  cases  and  m  the  same  manner  as  m  actions 

tendance    of     "^ 

witnesses,     at  law,  and  the  Court  may,  in  its  discretion,  require  the  inform- 
^j^^  .    ant  to  give  security  for  costs  ;  and  failing  so  to  do  within  the  time 
in™tT^5ve"  prescribed,  the  proceedings  must  be  dismissed  at  the  cost  of  the 
security, etc.  informant. 

§  466.  When  the  proceedings  are  in  the  name  of  the  State,  the 
Costs—  costs  are  paid  as  in  criminal  cases  ;  when  in  the  name  of  the  State 

how    taxed  if»  .r»  ^  •  c     ^'  ••  •        i 

and  collect-  on  the  information  of  another,  if  the  accusation  is  not  sustained, 

ed.  .  .  .        '  ,  .  ,  ' 

judgment  is  rendered  against  the  informant  and  his  security  for 
the  costs,  if  the  same  has  been  given ;  hut  if  the  accusation  is 
sustained  against  the  accused,  judgment  for  costs  must  be  rendered 
against  him. 

§  467.  Upon  the  death  of  the  informant,  if  there  be  but  one^ 
TTpon  the  the  procecdiugs  abate,  unless  some  other  person  is  substituted  in 
informant,    his  placc,  which  may  be  done  on  application  to  the  Court ;  if  there 
is  more  than  one  informant  the  proceedings  continue  on  the  infor- 
mation of  the  survivor. 

§  468.  It  is  in  the  province  of  the  jury  who  try  such  proceed- 
The  jury  iugs,  if  thov  find  lu  favor  of  the  accused,  also  to  find  they  were 

whotrysuch        *=  .'  .  .;;  i     r>      t  i  •    i 

case  may  malicious.  if  thev  SO  believe  1  and  upon  such  findma;  the  ri2;hts  oi> 

iiudthepro-  ^  J  >  L  »  to 

ceedingsma-  the  accuscd  agaiust  the  informant  are  the  same  as  in  cases  of  ma- 
licious. _  ^ 

licious  prosecutien  on  the  criminal  side  of  the  Court.  - 

§  469.  [And  whenever  it  shall  be  made  to  appear  to  any  Judge 
Attorneys  ^^  ^^^  Supcrior  Courts  that  any  attorney  at  law  practicing  in  said 
faii^ingtopay  Qq^^^  ]^j^g  failed,  or  fails,  to  pay  his  professional  tax  levied  ac- 
cording to  the  laws  of  this  State,  and  execution  has  been  issued 


PT.  1.— TIT.  5.— CHAP.  8.— Judicial  Department./        103 


Article  3. — Attorneys  at  Law. 


Proceed- 
ings against. 


for  the  same  by  the  Tax  Collector  and  returned  by  the  j^roper  of- 
ficer, no  property  to  be  found,  it  shall  be  the  dutv  of  the  Judge 
presiding  in  the  Superior  Court  of  the  County  -in  which  the  said 
attorney  resides  to  cause  the  Clerk  of  said  Court  to  issue  a  rule 
requiring  said  attorney  to  show  cause,  by  the  next  term  of  said 
Court,  why  he  should  not  be  struck  from  the  list  of  attorneys  and 
his  license  to  practice  declared  of  no  effect,  for  his  failure  to  pay 
his  said  professional  tax — which  rule  shall  be  served  by  the  Sheriff 
upon  said  attorney  twenty  days  before  the  next  term  of  said  Court ; 
and  if,  at  said  term  of  said  Court,  said  attorney  fails  to  show  suf- 
ficient cause,  said  Judge  shall  pass  an  order  striking  said  attorney 
from  the  list  of  attorneys,  and  declare  his  license  to  practice  in  the 
Courts  of  Law  and  Equity  in  this  State  null,  and  of  no  effect.]  (a) 


Shall  be 
stricken 
from  the  roll 


CHAPTER    IX. 

JUSTICES  OF  THE  PEACE,  JUSTICES'  COURTS,  AND  CONSTABLES. 


Article  1,— Justices  of  the  Peace  and  their  Courts. 
Article  2. — Constables, 


ARTICLE  L 


justices  of  the  peace  and  their  courts. 


Section. 

470.  Two  Justices  in  each  district. 

471.  How  removed  from  otfico. 

472.  Vacancies — how  filled. 

473.  Election — how  and  by  whom  held. 

474.  Inferior  Covirt  may  order  an  election. 

475.  Qualifications  of  a  Justice. 

476.  Inferior  Court  may  appoint — when. 

477.  The  oath  of  a  Justice. 

478.  Oath — before  whom  to  be  taken. 

479.  Criminal  jurisdiction  of  the  Justice. 

480.  Civil  jurisdiction  of  the  Justice. 

481.  Debts  may  be  divided. 

482.  Territorial  and  criminal  jurisdiction. 

483.  Justice  may  be  sued  in  his  owndist. 


Section. 

484.  If  the  Justice  be  disqualified. 

485.  When  there  is  no  Justice. 

486.  Suits  may  be  transferred. 

487.  When  transferred. 

488.  Transferred  suits. 

489.  Co-obligors,  joint  contractors,  etc. 

490.  Residents  in  districts  not  organized. 

491.  Special  powers  and  duties  of  Justices. 

492.  Justices'  Courts. 

493.  Changed  once  in  four  years. 

494.  Justices  newly  elected. 

495.  Times  and  places  now  established. 

496.  Judgments  rendered. 


§  470.  There  shall  be  two  Justices  of  the  Peace  in  each  militia 
district  of  the  several  Counties  of  this  State,  elected  by  the  peo-  p 


Two  Jus- 
tices of  the 
e  a  c  e   in 


(a)  Acts  of  1861,  p.  16. 


104  PT.  1.— TIT.  5.~CHAP.  9.— Judicial  Department. 

V 

V  Article  1. — Justices  of  the  Peace  and  their  Courts. 


each  district,  pie  c^f  eacli  district,  in  the  manner  hereinafter  prescribed,  who 
hold  their -©ffices  for  four  years,  unless  sooner  removed. 

§  471.  They  a.:-  removed  from  office  in  the  manner  prescribed 
How  re-  bj  the  Constitution,  and  also  on  conviction  for  malpractice  in  of- 

moved  from  n  i        -  '     n 

office.  hce,  or  oi  any  lelonious  or  miamous  crime. 

§  472.  Vacancies  are  filled  in  the  following  manner  :  If  there  is 
Vacancies  a  Justicc  of  the  Peaco  in  the  district  where  the  vacancy  occurs, 

—how filled.  ,  ,      ,,  .  ri  T  •  1  ^   -    1       '  ■  n         I 

he  shall  appoint  some  featurday  m  a  month,  which  is  a  time  fixed 
for  holding  the  Justice's  Court  of  the  district,  and  advertise  the 
same  at  three  of  the  most  public  places  therein  at  least  fifteen 
days  before  the  day  appointed. 

§  473.   On  said  day  said  Justice,  with  two  freeholders,  must  hold 
Election  Said  elcctioii  in  the  same  manner  that  a  regular  election  for  Jus- 
tice of  the  Peace  is  held,  and  duly- certify  the  same  to  the  Gov- 
commfssioa^  omor,  who  must  commissiou  the  person  elected  for  the  unexpired 

ed    by     the  . 
Governor.      term. 

§  474.  If  there  is  no  Justice  of  the  Peace  in  the  district  where 
If  no  Jus-  the  vacancy  occurs  the  Justices  of  the  Inferior  Court  of  the  County 

tice   of    the  *^  .         .  .  '^ 

Peace  in  the  must  Order  an  election  in  the  same  manner,  through  their  Clerk, 

district,  etc.         ,  .        . 

which  may  be  held  by  three  freeholders  of  the  district,  who  must 
hold  and  certify  said  election  in  the  same  manner. 

§  475.  All  persons  are  eligible  to  the  office  of  Justice  of  the 
Quahfica-  Pcaco  who  are  entitled,  in   the  County  in  which  the  district  is 

tions   of    a       .  "^ 

Justice   of  situated,  to  vote  for   members  of    the  General   Assembly,  who 

the  Peace.  '  ... 

have  been  three  months  in  the  district  next  preceding  the  elec- 
tion, and  who  do  not  labor  under  any  disqualification.  [Being  a 
clerk  shall  be  no  disqualification.]  (a) 

§  476.  When  any  district  is  without  a  Justice  of  the  Peace,  and 

On  failure  an  olectiou  has  been  legally  ordered  to  supply  the  vacancy,  and 

Justice     of  none  is  bona  fide  held  at  the  time  and  place  appointed,  it  is  the 

the    Inferior  ^       ,  .  i  rr  ? 

Court  may  duty  of  the  Justicos  of  the  Inferior  Court  to  appoint  two  persons, 
resident  in  the  district,  such  Justices  to  have  it  certified  to  the 
Governor,  who  must  commission  the  appointees  for  the  required 
term. 

§  477.  Justices  of  the  Peace,  before  entering  on  the  duties  of 

of  'a^jusSce  ^^^^^  office,  bosides  the   oath  required  for  all  civil  officers,  must 

of  the  Peace.  ^^^  ^^^^  following  Oath  I 

*'  I  do  swear  that  I  will  administer  justice  without  respect  to 

(a)  Acts  of  1862-3,  p.  42. 


PT.  1.— TIT.  5.~CHAP.  9.— Judicial  Department.         105 

Article  1, — Justices  of  the  Peace  and  their  Courts. 


persons,  and  do  equal  rights  to  the  poor  and  to  the  rich,  and  that 
I  will  faithfully  discharge   all  the  duties  incumbent  on  me  as  a 

Justice  of  the  Peace  for  the  County  of ,  agreeably  to  the 

Constitution  and  laws  of  this  State,  and  according  to  the  best  of 
my  ability  and  understanding.     So  help  me  God." 

§  478.   Such  oaths   shall    be  taken  and  subscribed  before  the    such  oath 

r»-!/^  •  •  1  — before 

Justices  of  the  Inferior  Court  of  the  County  m  session,  but  may  whom  taken. 
be  taken  before  any  one  of  such  Justices,  and  so  the  dedimus 
potestatem  for  such  purpose  should  state. 

§479.    They  have  criminal   jurisdiction   in  the   followins:  in-  Their  crim- 

'i  ^  c  inal  jurisdic- 

stances :  tion. 

1.  In  acting  as  conservators  of  and  preserving  the  public  peace 
in  their  respective  districts  and  Counties. 

2.  In  issuing  warrants  for  the  apprehension  of  any  person 
charged  on  oath  with  a  violation  of  any  portion  of  the  Penal 
Code,  or  who  are  so  known  to  them  officially. 

3.  In  examining  such  persons  when  brought  before  them,  and 
to  commit,  bind  over,  or  discharge,  according  to  the  directions 
of  this  Code. 

4.  In  such  other  cases  as  jurisdiction  may  be  constitutionally 
given. 

§  480.  They  have  a  general  and  original  civil  jurisdiction —        civiijuris- 

1.  Of  all  suits  or  attachments  on  any  liquidated  demand,  or 
an  account  not  exceeding  S^/^d:^ars,  exclusive  of~interest,.tpr 
where  the  debt  has  been  larger,  and  the  balance  due  is  not  more 
than  said  amount,  or  on  the  trial  is  reduced  to  said  amount  by 
bona  fide  payments,  or  other  lawful  set-off. 

2.  Of  contests  for  the  mere  possession  of  personal  property. 

3.  Of  forcible  entries  and  detainers,  or  either,  with  the  aid  of  a 

jury  of  twelve  men,  as  prescribed  by  this  Code.  ^i    \  .:^^^      ^ 

4.  Of  all  other  causes  when  jurisdiction   is    constitutionally    ^  ^ 
given  them  in  their  capacity  as  Courts  or  Justices.                                 v  \  ^ '  * 

§481.  Debts  which  in  the  aggregate  amount  to  more  than  Debtsmay 
Justice's  Court  jurisdiction  may  be  divided  into  liquidated  de-  etc.  ^^^^^^^' 
mands,  so  as  to  bring  them  each  within  such  jurisdiction. 

§482.  Their  criminal  jurisdiction  extends  over  persons  of,  or  Their  crim- 
crimes  committed  in,  their  respective  Counties,  and  their  civil  ju-  ti'oi*'extend3 
risdiction  over  persons  residents  of  their  respective  districts  and  county,  etc! 
itinerant  persons,  and  to  persons  of  other  districts,  in  certain  par- 
ticular cases  provided  for  in  this  Code. 


# 


106  PT.  1.— TIT.  5.— CHAP.  9.— Judicial  Department. 

Article  1. — Justices  of  the  Peace  and  their  Courts. 
May  be      §  483.  Ohg  JustlcG  of  the  PeacG  may  sue  or  be  sued  before  the 

sued  in   his  ,.        . 

own  district,  other  In  his  own  district. 

§  484.  When  a  Justice  of  the  Peace  is  disqualified  from  presi- 

whenthe  ding,  aiid  there  is  no  other  Justice  of  the  Peace  in  his  district 

disqualified,  -^ho  is  Qualified,  any  Justice  of  the  Peace  of  the  County  is  quali- 

who     may  ■■•  ^         »/  ^         ^  ^  i 

act.  fied  to  issue  all  process  and  to  preside  in  his  district ;  and  if  a 

Justice  of  the  Peace  is  sued  under  such  circumstances,  the  suit 
may  be  located  in  any  adjoining  district. 

§  485.  Where  there  is  no  Justice  of  the  Peace  in  any  district 
to^b^ebrmfght  whcro  a  defendant  resides,  or  there  is  one  and  he  refuses  to  serve 
S^^no  *jus^  generally,  or  in  any  particular  case,  the  suit  may  be  located  in 

tice,  or  he  re-  -■ .    .     .  t    ,    •    • 

fuses toserve  any  adjommg  district. 

§  486.  If  suits  are  already  commenced  and  are  suspended  for 
Suits  may  the  waiit  of  a  Justice  of  the  Peace  to  preside,  such  suits  shall  be 

^  be    transfer-  ...  .  ■ 

red  in  cer-  removcd  to  the   adioining   districts,  unless  the  evil  is  removed 

tarn  cases.  .^  o  ? 

within  sixty  days. 

§  487.  If,  from   any  cause,  all  such  suits  can  not  be  located  or 

Maybe   prosecuted  in   some  adjoining  district,  they  may  be  commenced 

totheCoun-  or  rcmovcd  to  the  Justice's  district  which  embraces  the  County 

ty  site.  •/ 

site. 
The  Jus-       §  488.  The  Justices  of  the  Peace  and  Constables  of  any  dis- 
constabres  trict  whcro  a  suit  is  thus  begun  or  removed  have  the  same  power 
v\  ftlJ    ^'^^  as  those  officers  have  in  the  proper  districts. 

"^    *^^       y^  489.  Suits  vs.  makers  and  ind'tjffeers,  and  against   co-obligors 
co-obiig- /Or  joint-makers,  may  be  located  in  the  district  where  the  princi- 

ors,      join^         iii  n      ^  it  ••  i  i  i 

contractors,  pal  debtor  or  one  oi  the  co-obiigors  or  loint-makers  can  be  sued, 

and  m^ers  ,,,  .,.  ,.-,  •,.        .        f. 

anTendors-  and  the  othcr  parties,  who  may  reside  m  a  dmerent  district  from 

.er  s — h  0  w  ,  ^  ... 

sued.  such  in  the  same  County,  may  be  joined  in  the  suit  on  the  same 

terms  such  persons  residing  in  different  Counties  may  be  sued  in 
/pl^T^/%  --the  Superior  Courts,  but  by  the  process  used  in  Justice's  Courts ; 
/lAA^  ^  ^4/  ^^^  ^^  s^^^  cases  the  Constable  of  the  district  where  the  suit  is 
S jJi^fi  "^  jf  ^  located  may  serve  such  process  in  any  part  of  the  County. 

§490.  Persons  resident  in  any  portion  of  a  County  whose  resi- 

Personsre-  dcncc,  from  any  cause,  is  not  embraced  in  any  organized  Justice's 

portiSn  of  a  district,  are  subjected  to  suit  in  the  district  whose  court-ground  is 

nearest  their  residence   where  there  is  an  acting  Justice  of  the 

Peace. 

Special      §491.  Justices  of  the  Peace  have  authority,  and  it  is  their 

powers    and  /l,ifA7 

duties  of  the  *^^V 

umerSedr"      !•  To  sclect  somc  Central  and  convenient  place  in  their  respect- 


PT.  1.— TIT.  5.— CHAP.  9.— Judicial  Department.         lOT 

Article  1. — Justices  of  the  Peace  and  tlieir  Courts. 

ive  districts  at  which  to  hold  their  Courts,  and  some  stated  day  in 
each  month  as  the  time,  of  which  they  shall  give  ample  public 
notice,  and  also  to  keep  their  offices  within  said  districts ;  but  in 
towns  or  cities  which  embrace  more  than  one  district,  they  may 
hold  their  Courts  and  keep  their  offices  at  some  central  and  con- 
venient place  within  the  limits  of  said  towns  or  cities. 

2.  To  fine  not  more  than  five  dollars,  nor  imprison  more  than 
five  hours,  any  person  guilty  of  a  contempt  of  Court,  and  to  pay 
the  fine  to  the  County  Treasurer  for  County  purposes. 

3.  To  issue  attachments  returnable  to  their  own  and,  in  certain 
cases,  to  the  Superior  and  County  Courts  of  the  County. 

4.  To  issue  all  process  necessary  to  maintain  their  jurisdic- 
tions and  enforce  their  authority  under  the  sanction  of  law. 

5.  To  administer  oaths  and  take  affidavits,  except  the  power  is 
expressly  restricted  to  some  other  officer,  and  to  take  the  ac- 
knowledgment or  probate  of  any  conveyances  required  to  be 
recorded. 

6.  To  keep  a  docket  of  all  causes  brought  before  them,  in 
which  must  be  entered  the  names  of  the  parties,  the  returns  of 
the  officer,  and  the  entry  of  the  judgment,  specifying  its  amount 
and  the  day  of  its  rendition. 

7.  To  carefully  file  away  and  label  all  papers  appertaining  to 
any  cause,  and  all  fi,  fas.  and  other  process  returned,  after  being 
satisfied,  entered  ''nulla  bona,''  or  have  otherwise  discharged 
their  functions. 

8.  To  attend  the  Superior  and  Inferior  Courts  of  their  Counties, 
whenever  required,  with  such  docket  or  papers  of  file. 

9.  To  establish,  when  lost,  in  the  manner  prescribed  by  law, 
any  paper  appertaining  to  any  suit  or  otlier  proceeding  in  their 
respective  Courts. 

10.  To  answer  interrogatories  from  Courts  of  other  Counties, 
as  to  the  contents  or  condition  of  any  of  the  dockets,  files,  or 
papers  of  their  office,  and  to  attach  thereto  copies  of  such,  when 
such  interrogatories  are  propounded  and  such  copies  required. 

11.  To  perform  such  other  duties  as  are  or  may  be  required 
by  law,  or  which  necessarily  appertain  to  their  office. 

§  492.  If  any  Justice's  Court  is  held  at  an  inaccessible  or  incon-  justice's 
venient  portion  of  any  district,  or  such  a  place  is  hereafter  piac"?^^ 
selected,  the  qualified  voters  of  such  district  may  petition  such  howchan^- 
Justice  to  change  the  place  to  some  other  place,  naming  it,  and 


108 


PT.  l.—TIT.  5.— CHAP.  9.— Judicial  Department. 


Article  1. — Justices  of  the  Peace  and  their  Courts. 


if  he  refuses  to  cliange,  they  may  apply  to  the  Justices  of  the 
Inferior  Court ;  and  if  such  Justices  are  satisfied  that  the  place 
where  such  Court  is  held  works  an  inconvenience  to  a  majority  of 
the  citizens  of  such  district,  they  shall  change  the  place,  to  take 
effect  after  the  expiration  of  thirty  days,  have  it  entered  on  their 
minutes,  and  published  in  the  district. 

§  493.  Vv^hen  a  place  for  holding  such  Court  is  once  fixed  it 
can  not  be  changed  except  in  the  manner  stated,  and  then  but 
once  during  the  four  years'  official  term;  nor  can  the  time  be 
changed  by  the  Justices  but  once. 

§494.  When  new  Justices  of  the  Peace  are  qualified,  and 
they  desire  to  change  the  place  or  time  of  holding  such  Courts, 
they  may  do  so  by  giving  public  notice  of  the  fact,  stating  the 
place  and  the  time  to  which  changed,  or  either,  and  the  first 
Court  to  be  thus  held,  which  change  shall  not  go  into  effect  short 
of  sixty  days  from  the  time  of  advertising. 

§  495.  The  times  and  places  now  established  for  holding  Justices' 
Courts  are  not  disturbed  by  the  enactment  of  this  Code,  and  the 
militia  districts  now  established  by  law  remain  the  same,  but  they 
may  be  altered  and  new  districts  formed  by  Justices  of  the 
Inferior  Court  of  each  County  as  hereinafter  prescribed. 

§  496.  All  judgments  of  such  Justices  rendered  in  any  civil 
cause  anywhere  else  than  at  the  place  and  time  for  holding  their 
Courts  lawfully  appointed,  are  void. 


The  place 
and  time  of 
holding  Jus- 
tices' Courts, 
etc. 


New  Jus- 
tices may 
change  the 
time  and 
placeofhold- 
i  n  g  their 
Courts. 


Time  and 
place«>fhold- 
ing  Justices' 
Courts  not 
disturbed  by 
the  adoption 
of  this  Code. 


Judgments 
—when  void. 


ARTICLE  II. 


CONSTABLES. 


Section. 

497.  Two  Constables  in  each  district. 

498.  How  removed  from  office. 

499.  Vacancy — how  filled. 

500.  Justices  failing  to  agree. 

501.  If  there  is  but  one  Justice. 

502.  Justice  failing  or  refusing  to  appoint. 

503.  Qualifications  of  Constable. 

504.  Disqualifications. 

505.  His  oath  of  office. 


Section. 

506.  In  cases  of  emergency. 

507.  Must  give  bond  and  surety. 

508.  Clerk  must  certify. 

509.  Additional  surety — when. 

510.  May  be  ruled  and  attached. 

511.  May  be  ruled  in  Superior  Court. 

512.  His  special  duties  enumerated. 

513.  Penalty  for  acting  after  retiring. 


Two  Con 

stables      for 


5497.  There  shall  be  two  Constables  in  each  militia  district  of 
lach  ^strict  th®  several  Counties  of  this  State,  elected  by  the  people  of  each 
the^^^peop^ie  district  as  hereinafter  prescribed,  who  hold  their  offices  for  two 
years  unless  sooner  removed. 


for      two 

years, 


PT.  1.— TIT.  5.— CHAP.  9.— Judicial  Department.         109 

Article  2. — Constables. 

§498.  Thej  are  subject  to  be  removed  from  office  on  the  same       How  re- 
grounds  and  on  the  same  proceedings  as  Clerks  of  the  Superior  office. 
Court  are,  and  on  conviction  for  malpractice  in  office  as  Justices 
of  the  Peace  are. 

§  499.  Vacancies  are  filled  by  appointment  of  the  Justices   of     vacancies 

^  ...  — ^ow  filled. 

the  Peace  of  the  district  in  the  following  contingencies : 

1.  When,  from  any  cause,  there  is  a  failure  to  elect,  qualify.    Failure  to 
and  give  bond  at  the  regular  time. 

2.  When  there  is  a  death,  resignation,  or  removal  of  Constable.  .  i'eath,res- 

'  o  7  ignation,    or 

3.  When  from  sickness,  or  other  providential  cause,  the  district  ^'^^'^^i^^- 

is  without   a   Constable,    there   may  be    an    appointment,  if  an  sent  %lm 
emergency  arises,  to  continue  until  the  regular  Constable  enters  cause. 
on  the  discharge  of  his  duties. 

4.  When  the  Constables  of  the  district  are  absent  temporarily     Tempora- 

■•■  "^    ry     absence 

from  the  district  the  like  power  may  be  exercised.  fro«»>tne  dis- 

§  500.  If  there  are  two  Justices  of  the  Peace,  and  they  can  not       Justices 

-  failing  to  a- 

agree  upon  an  appointment,  the  one  who  has   served  lonsrer  as  g'-ee  on  ap- 

1  •  IT-  \-         ^  T  1      -.1  •  pointmentof 

such  continuously  and  immediately  preceding,  shall  appoint;  if  constables. 

there  are  two  Constables  to  appoint,  each  Justice  shall  appoint 

one. 

§  501.  If  there  is  only  one  Justice  of  the  Peace,  he  may  make  .when there 

•^  -^  »'  IS    but    one 

the  appointment,  but  it  shall  be  in  the  discretion  of  the  Justices,  Justice    he 

-'■•'■•'  '  may  appoint 

whether  one  or  two,  to  appoint  the  second  Constable  or  not,  if 
there  is  one  in  office,  or  one  or  two  if  there  is  none  in  office. 

§  502.  If  the  Justice  of  the  Peace  of  any  district  fail  or  refuse       in  case 

Justice      of 

to  have  as  much  as  one  Constable  in  their  district,  for  as  Ions:  as  tii«     Peace 

.     ^  ff^il    to     ap- 

thirty  days  from  the  time  such  a  vacancy  occurs,  the  Justices  of  p^^^t'  etc. 
the  Inferior  Court  of  the  County  shall  fill  the  appointment. 

§  503.  The  eligibility  for  Constables  is  the   same  as  that  for     Quaiisca- 
Justices  of  the  Peace,  but  any  person  may  be  appointed  Consta-  constable. 
ble  to  fill  vacancies  or  to  answer  some  emergency,  who  are  at  the 
time  residents  of  the  district. 

§  504.  Constables  can  not  be  Sheriffs  or  Sheriffs'  deputies,  nor     DisquaM- 
can  they  be  either  Clerks  of  the  Superior  or  Inferior  Courts,  nor 
can  such  officers  be  Constables. 

§  505.  Each  Constable,   before  enterins;  on  the  duties  of  his     oath  of  a 

fY,  1  TTMT'iT  Constable. 

onice,  must  take  and  subscribe,  beside  the  oath  for  all  civil  officers, 
before  the  Clerk  of  the  Inferior  Court  of  his  Countv,  the  follow- 
ing  oath:  ''I  swear  that  I  will  duly  and  faithfully  perform  all  the 
duties  required  of  me  as  Constable  of  the  County  of  , 


110         PT.  1.— TIT.  5.— CHAP.  9.— Judicial  Department. 

Article  2. — Constables. 

according  to  the  best  of  my  ability  and  understanding.     So  help 
me  God." 

§  506.  Constables  appointed  to  answer  some  sudden  emergency, 
Constables  as  in  Scction  499,  may  take  and  subscribe  said  oath  before  the 
an  emergen-  Justiccs  of  the  Pcacc  appointing  them,  who  shall  file  the  same  in 
qualified,      thc  officc  of  the  Clcrk  of  the  Inferior  Court. 

§  50T.  All  Constables,  except  those  thus  appointed,  must,  before 
Constables  entering  on  the  discharge  of  their  duties,  give  a  bond  payable  to 
bond   W  the  Justices  of  the  Inferior  Court  of  the  County  and  their  suc- 
cessors, with  two  good  sureties  resident  in  the  County,  in  the 
sum  of  five  hundred  dollars,  to  be  approved  by  such  Justices, 
„    ,      which  shall  be  by  the  Clerk  of  said  Court  filed  in  his  office  and 

Bond—  '^ 

when  filed,    recorded  in  a  book  kept  for  that  purpose. 

§  508.  When  such  oath  is  taken  and  filed  and  such  bond  given. 
Clerk  In-  guch  Clcrk  shall  issue  to  such  Constable  a  certificate  of  such  facts 

fenor  Court 

must  certify  ^nd  make  an  entry  thereof  on  his  minutes,  which  certificate  shall 

to  filing  affi-  t/  7 

bond     ^"^  answer  as  his  commission. 

§  509.  Constables  may  be  compelled  to  give  additional  bonds 

May  be  upou  couiplaiut  made  on  oath  before  any  one  of  the  Justices  of 

give    addi-  the  Inferior  Court,  if  after  the  hearing  such  Justices  so  order  it 

tional  surety  ,  , 

done,  and  upon  failure  to  do  so  shall  be  removed  by  such  Justices. 

§  510.  They  are  liable  to  rule,  attachment,  and    penalties  in 

May  be  their  rcspectivc   districts,   but  in  default  of  any  Justice  of  the 

how, '  in   a  Pcaco  in  sucli  district,  or  if  there  are  such  who  refuse  to  serve, 

Court.         they  may  be  ruled  before   any  Justice's  Court  of  an  adjoining 

district  or  the  Superior  Court. 

§  511.  It  is  optional  with  parties  to  rule  Constables  before  the 
May  be  SuDcrior  Court  of  their  respective  Counties,  in  term  time,  on  the 

ruled  in  Su-         •»•  l  j  / 

perior Court,  same  tcrms  that  Justices  of  the  Peace  are  ruled. 
§  512.  It  is  their  duty — 

1.  To  attend  regularly  all  terms  of  the  Justice's  Court  in  their 
respective  districts. 

2.  To  attend  all  terms  of  the  Superior  or  Inferior  Courts  of  their 
Special  du-  respcctivc  Countics,  when  summoned  by  the  Sherifi"  for  that  purpose. 

ties  enumer-  ■••  .  it-iiii 

ated.  3.   To  give   receipts   for   notes    or   other   liquidated  demands 

placed  in  their  hands  for  collection. 

4.  To  pay  over  money  promptly  as  collected  to  the  party  enti- 
tled thereto,  and  in  case  of  conflicting  claims  to  any  money,  to 
report  the  same  to  the  next  Justice's  Court  of  the  district  where 
they  are  amenable,  for  its  order  in  the  premises. 


PT.  1. — TIT.  5.— Judicial  Depahtment.  Ill 

Chapter  10. — Corporate  Courts. 

5.  To  execute  and  return  all  warrants,  summons,  executions, 
and  other  process  to  them  directed  by  lawful  authority. 

6.  To  perform  such  other  duties  as  are  or  may  be  required  of 
them  by  law,  or  which  necessarily  appertain  to  their  offices. 

§  513.  If  any  Constable  exercises  the  duties  of  his  office  after     Any  per- 

•^  ^  ^     son      acting 

removal  from  the  district  where  he  was  elected  or  appointed,  he  is  as  constable 

i  i  '  after   he    is 

subject  to  a  fine  of  fifty  dollars  for  every  such  act,  to  be  recovered  g^^vgct^^to 
before  any  Justice  of  the  County  in  which  he  resides  by  any  one  ^'^®- 
suing  for  the  same — one-half  to  the  use  of  such  person,  the  other 
half  to  the  use  of  the  County. 


CHAPTER    X. 

CORPORATE     COURTS. 

1^  JSection  514.  Corporate  and  Police  Courts— how  affected  by  the  Code. 

§  514.  The  organization  of  the  various  Corporate  and  Police     corporate 

"  o  r  and      Police 

Courts  of  this   State,  and   the  laws  relative  thereto,  are  undis-  affectedT^T 
turbed  by  the  adoption  of  this  Code,  unless  additional,  concur-  *^^^  ^^^®- 
rent,  or  exclusive  jurisdiction,  or  cumulative  remedies,  are  con- 
ferred by  it  upon  them,    or   other   Courts,  or  other  magistracy, 
and  then  they  are  altered  only  to  that  extent. 


TITLE    V 

COUNTY      ORGANIZATION. 


Chapter  1. — Militia  Districts. 

Chapter  ^.—Incorporation  of  Counties,  County  Contracts,  etc. 

Chapter  3. —  County  Revenue. 

Chapter  ^.^County  Officers  not  before  specified. 

Chapter  5. — Roads,  Bridges,  Ferries,  Turnpikes,  etow^''^'^^'^^ 

Cravteu  6.— The  County  Poor.                         ,.       :.  ^^'^-^^Vl- 


>-... 


^^<V% 


112 


PT.  1. — TIT.  6. — County  Organization. 


Chapter  1. — Militia  Districts. 


CHAPTER   I. 

MILITIA     DISTRICTS 


Section. 

515.  Counties  divided  into  militia  districts 

516.  Districts  to  remain  the  same. 

517.  Must  contain  a  captain's  company. 

518.  How  laid  out  or  changed. 

519.  Survey  and  compensation  therefor. 


bECTIOX. 

520.  Proceedings  to  be  recorded. 

521.  To  be  transmitted  to  the  Governor. 

522.  Elections  to  be  ordered  by  Clerk. 

523.  Officers  not  removed  by  making. 

524.  Not  to  affect  pending  suits. 


§  515.  Each  County  of  this  State  is  divided  into  militia  dis- 
divided"hito  *^'^^^^  accoi'ding  to  their  respective  territory  and  population  liable 
Siits.^  ^^'-  to  bear  arms. 

Districts      §  516.  Such  districts  as  at  present  organized  are  to  remain  the 
etc.  '  same  until  changed  in  the  manner  hereinafter  prescribed. 

§  517.  Each  district  hereafter  organized  or  chano;ed  must  con- 
Must  con-  taijj  within  its  limits  at  least  as  many  persons,  resident  at  the  time 

tarn    a    cap-  v'  tr  ^ 

panv  ^^^'  ^^  ^^®  organization,  liable  to  militia  duty  as  are  necessary  to 
form  a  captain's  company  according  to  the  militia  laws,  and  in 
its  formation  must  not  leave  any  older  district  with  a  less 
number. 

§  518.  Whenever  it  may  be  necessary  and  expedient  to  lay  out 
How  laid  a  ucw  militia   district,   or   to   chanofe   the  lines   of  old  ones,  the 

0  u  t,      0  r  ^  ,  °  . 

changed.  Justiccs  of  the  Inferior  Court  may,  at  any  time,  appoint  three 
commissioners,  citizens  of  the  district  or  districts  from  which  it  is 
proposed  to  make  the  new  district,  or  change  the  lines  thereof, 
whose  duty  it  shall  be  to  lay  out  and  define  such  lines,  and  report 
the  same  to  the  Clerk  of  such  Inferior  Court. 

§  519.   Such  commissioners  have  authority  to  engage  the  ser- 

survey  and  vices  of  a  Competent  surveyor  to  assist  them  in  their  duties,  who 

compensa-  -■■  *'  ' 

tion  therefor  shall  be  paid  for  his  services,  out  of  the  County  Treasury,  the 
same  compensation  County  Surveyors  have  for  similar  services 
rendered  a  citizen. 

§  520.  If  the  Inferior  Court  approves  their  report,  they  shall 
Proceed  havc  all  proccedincrs  in  the  matter  entered  on  their  minutes,  after 

ings  record-  ... 

^^'  which  the  district  laid  out,  or  line  changed  or  defined,  shall  be 

known  and  regarded  accordingly. 

§  521,  It  is  the  duty  of  such  Clerk,  if  a  new  district  is  laid 
inc-s^Tr^be  ^^^'  *^  transmit  instanter  to  the  Governor  such  proceedings  from 
te'd^  "to^'the  ^^-^^^^  minutes,  duly  certified,  and  to  publish  them  for  thirty  days 
?nd^  Ydve'r-  ^*  *^®  ^^°^  ^^  "^^^  Court  Housc  and  in  the  public  gazette  where 
dfys.  ^'^"^^  ^^^J  ^^  \h^\Y  official  advertising. 


PT.  1.— TIT.  6.— County  ORaANizATiON.  113 


Chapter  2. — Incorporation  of  Counties,  County  Contracts,  Property,  and  Claims. 
§522.  As  soon  as  such  is  done,  such  Clerk  must  immediately   cierkmust 

order    an   e- 

order  an   election  for  the  requisite  number   of   Justices   of  the  Section    for 

^  Justices,  etc. 

Peace  and  Constables  (for  such  district),  after  advertising  the 
same  for  thirty  days  in  three  of  the  most  public  places  of  the 
new  district. 

§  523.  If,  in  layino;  out  a  new  district,  or  in  changing  the  lines    Making  or 

^  ^'  ./o  y  &0  changing 

of  old  districts,  the  residences  of  Justices  of  the  Peace  or  Con- ^,i  str^icts 

•'  ^  snail  not  re- 

stables  elected  are  included  in  the   new  district,  or  cut  off  from  ^^^"^^    ^^- 

'  cers. 

the  district  for  which  they  were  elected,  they  have  authority  to 
discharge  their  duties  for  the  district  for  which  they  were  elected 
until  their  terms  of  office  expire  and  their  successors  in  such 
district  are  qualified,  unless  elected  to  the  same  office  in  the  new 
district  to  which  they  are  eligible. 

§  524.    Suits    pending   in    any   Justice's    Court    must   not    be     r»oes  not 
changed  because  the  residence  of  a  defendant  is  included  in  the  pending. 
new  district  or   cut  off  into  another  district,  but   they  must  pro- 
ceed as  though  no  such  change  had  been  made. 


CHAPTER    II. 

INCORPORATION    OF    COUNTIES,  COUNTY  CONTRACTS,  PROP- 
ERTY, AND   CLAIMS. 


Section. 

525.  Each  County  is  a  body  corporate. 

526.  Suits  against  a  County. 

527.  Contracts  with  the  Inferior  Courts. 

528.  Grants,  deeds,  etc. 

529.  Property  of  the  County. 

530.  County  buildings — by  whom  erected. 
631.  Preservation  of  buildings,  etc. 

532.  Occupancy  of  rooms  in  Court  House. 

533.  Court  Houses,  Jails,  etc. 


Section. 

534.  Injuries  to  public  buildings,  etc. 

535.  Dimensions  and  construction  of  Jails 

536.  Tax — by  whom  levied. 

537.  On  failure  to  levy  such  tax. 

53S.  Public  buildings,  etc.,  to  be  inspected 

539.  Duty  of  the  Judge. 

540.  Claims  against  the  County. 

541.  Must  be  presented  in  twelve  months. 

542.  Judgments  against  the  County. 


§  525.  Every  County  which  has  been  or  may  be  established  in  EachCoun- 
this  State,  is  a  body  corporate,  with  power  to  sue  or  be  sued  in  corpoiitS*^^ 
any  Court.  [And  all  inhabitants  of  Counties  in  this  State,  who  are 
competent  jurors  in  other  cases,  are  declared  and  shall  be  holden 
to  be  competent  jurors  in  any  case,  in  any  Court,  where  such 
Counties  are  parties  to  the  suit  or  interested  therein  in  their  capa- 
city as  corporations  or  qiian  corporations.]  (a) 

§  526.    Suits  against   a  County  must  be   against   the    Inferior     suits  m. 
Court,  and  personally  served  on  the  Clerk  of  such  Court,  who  howYi-onght 

(a)  Acts  of  18G3-4,  pp.  72-3. 
o 


114  PT.  1. — TIT.  6. — County  Organization. 

Chapter  2. — Incorporation  of  Counties,  County  Contracts,  Property,  and  Claims. 


must  make  an  entry  thereof  on  his  minutes,  and  suits  by  the  County 
must  be  in  the  name  of  the  Inferior  Court. 

§  527.  All  contracts  entered  into  by  the  Justices  of  the  Infe- 
Contracts  yioy  Court,  with  Other  persons  in  behalf  of  the  County,  must  be  in 

with  the  In-         _    ^  '  ^  ^  ''  ^ 

ferior  Court  -^i-itinsj  and  cntcred  on  their  minutes. 

must   be  m  o 

writing.  g  528.   All  dccds,   conveyances,   grants,  or  other  instruments, 

Deeds  which  havo  been  or  may  be  made  to  any  officer  or  person  for  the 

made  for  the  iir»pi/-N  ♦  ^     n\  i-i 

benefitofthe  usc  and   Deneiit  01  the  County,  vests  m  such  County  the  title  as 
fully  as  if  made  to  such  County  by  nanae. 

§  529.  The  Justices  of  the  Inferior  Court  have  the  control  of 
The  Jus-  all  property  belonging  to  the  County,  and  may  by  order,  to  be 

tices  of  the  ,..  ,.  it  ir>  i 

Inferior  entered  on  their  minutes,  direct  the  disposal  oi  any  real  property, 

troitheprop-  which  Can  lawfully  be  disposed  of,  and  appoint  a  commission  to 

County.       make  titles  thereto,  and  the  conveyance  of  such  commission  in 

accordance  with  such  order,  vests  the  grantee  or  vendee  with  the 

title  of  the  County. 

§  530.  The  County  buildings  are  to  be  erected  and  kept  in  order 
County  and  repair  at  the  expense  of  the  County,  under  the  direction  of 

buildings  -^      ,  ^  ^  '' 

—by  whom  guch  Justiccs,  who  are  authorized  to  make  all  necessary  contracts 

erected,  etc.  '  '' 

for  that  purpose. 

§  531.  It  is  the  duty  of  the  Justices  of  the  Inferior  Court  to 
Duty  of  erect  or  repair,  when  necessary,  their  respective  Court  Houses, 

the  Justices  .  . 

of  the  infe-  and  Jails  and  all  other  necessary  County  buildin2;s,  to  furnish 

nor  Court  m  ./  t/  o    7 

'^ubiicbuiid'-  ^^^  ^\-^  all  the  furniturc  necessary  for  the  different  rooms,  offices, 
co?ds^^^  ^■®"  or  cells,  and  to  procure  a  fire-proof  safe  or  safes,  sufficient  to  hold 
at    least  all  the  minute  books  and  books  containing  records  of 
judgments,  books  of  officers'  bonds,  all  recognizances,  the  bonds 
of  administrators  and  guardians,  the  record  of  wills   and  of  ap- 
praisements and  sales,  unless  the  Court  House  has  a  fire-proof 
vault ;  such  books  and  papers,  and  all  others  that  can,  must  be  placed 
in  such  safes  or  vaults  at  night,  or  when  the  officers  are  absent. 
§  532.  Such  Justices  shall  designate  the  rooms  in  the  Court 
Eooms  in  Housc  to  bc  occupicd  by  each  of  the  County  officers,  and  enter  the 

th  e     Court  .  .  .  . 

House.        same  on  their  minutes,  which  they  may  change  from  time  to  time 
as  convenience  may  require. 

§  533.  The  Court  Houses,  as  well  as  Jails,  the  public  grounds 

Court  and  other  County  property,  are  placed  in  the  keeping  of  the  Sher- 

Jails,  etc., in  iffs  of  the  respectivc  Counties,  subject  to  the  order  of  such  Jus- 

the  keeping     .  i»'i«i  i  r»  •• 

of  the  Sher  ticcs,  and  it  IS  their  duty  to  preserve  them  from  injury  or  waste 
and  to  prevent  intrusions  upon  them. 


PT.  1.— TIT.  6.— County  Organization.  115 


Chapter  2. — Incorporation  of  Counties,  Count}'-  Contracts,  Property,  and  Claims. 


§  534.   If  any  person  designedly  destroy,  injure,  or  deface  any    injuries  to 
of  the  public  buildinsi-s,  the  appurtenances  thereto,  or  the  furni-  i^?^^   etc.— 
ture  inside,  or  shall   use  either  for  any  indecent  purpose,  such  ^d. 
person  shall  be  guilty  of  a  misdemeanor,  and  on  conviction  be 
fined   or   imprisoned,   or  both,   at    the  discretion    of  the    Court, 
besides  being  liable  for  the  damages. 

§  535.  The  County  Jails  hereafter  constructed  must  be  of  suffi-  Dimen- 
cient  size  and  strength  to  contain  and  keep  securely  the  prisoners  construction 

of  i  11 1  s 

and  debtors  which  may  be  confined  therein,  and  must  contain  at 
least  three  apartments,  properly  ventilated,  so  as  to  secure  the 
health  of  those  confined  therein — one  for  debtors,  one  for  criminals, 
and  one  for  females. 

§  536.  The  Justices  of  the  Inferior  Courts  of  the  several  Coun-     The  jus- 

.  tices  of  the 

ties  have  the  power  to  levy  an  extra  tax  sunicient  to  carry  into  inferior 

■^  "^  ,  ^  "^  Courts   may- 

effect  Sections  530   and  531,  without    a  recommendation  by  the^evyatax. 

Grand  Jury,  whenever  the  necessities  arise. 

§  537.  If  such  Justices  fail  to  comply  with  the  requirement  of    on  failure 
said  Sections,  or  to  levy  the  tax,  or  levy  an  exorbitant  tax,  or  levy  extra  tax  a 
one  when  unnecessary,  their   conduct  may  be  reviewed  by  the  «s  may  issue 
Judge  of  the  Superior  Court,  by  mandamus  or  injunction,  as  the 
nature  of  the  case  may  require,  at  the  instance  of  any  tax  payer 
of  the  County. 

§  538.  It  is  the  duty  of  the  Grand  Juries  to  inspect  all  the  pub-  Grand  Ju- 
lie buildings  and  other  property  of  the  County  and  the  County  sp?ct  puwic 

1  1,  ,    '       .T      •  ^  1      '  T     l)ullding?,re- 

records,  ana  to  report  m  tneir  general  presentments  their  condi-  cords,  etc. 
tion,  and  if  they  report  that  such  Justices  have  failed  to  comply 
with  the  law  touching  the  same,  it  is  the  duty  of  the  Solicitor 
General  of  the  Circuit  to  commence  proceedings  against  them, 
that  they  may  be  compelled  so  to  do,  if  they  do  not  in  good  faith 
comply  by  the  next  term  of  the  Superior  Court. 

§  539.  The  Judges  of  the  Superior  Court  shall,  when  necessary.  Duty  of  the 
call  the  attention  of  the  Grand  Jury  to  the  duties  required  of  such  s  u^pVrVo? 
Justices  in  this  chapter. 

§  540.  Such  Justices  must  audit  all  claims  against  their  respect-    ah  claims 
ive  Counties   and  every  claim,   or  such  part  thereof  as  may  be  county  to  be 
allowed,  must  be  registered,  and  the  Clerk  of  said  Justices  must 
give  the  claimant  an  order  on  the  Treasurer  for  the  amount. 

§  541.  All  claims  against  Counties  must  be  presented  within  Must  be 
twelve  months  after  they  accrue  or  become  payable,  or  the  same  with  intone 
are  barred,  unless  held  by  minors  or  other  persons  laboring  under  ^^^^' 


116 


PT.  l.~-TIT.  6.—CHAP.  3.— County  Oeganization. 


Article  1. — ^From  Taxation. 


disabilities,  who  are  allowed  twelve  months  after  the  removal  of 
such  disability. 

§  542.  The  private  property  of  the  citizens  of  a  County  shall  not 
Judgments  be  bound  by  any  judgment  obtained  ag-ainst  the  County,  but  such 

against    tlie  ,  ^  ,/   ^       <s>  g  j  7 

c^y^u^tj- judgment,  if  binding,  shall  be  satisfied  from  money  raised  by  law- 


how 

fied 


fui  taxation. 


CHAPTER   III 

COUNTY    REVENUE. 


Article  1. — From   Taxation. 
Article  2. — From  Other  Sources. 


ARTICLE  I. 

FROM    TAXATION 


Section. 

543.  Tax  for  County  ptrrposes. 

544.  Duty  of  Justices  Inferior  Court. 

545.  Failure  of  Grand  Jury  to  recommend 

546.  When  there  are  several  Grand  Juries. 

547.  Creditors  of  the  County. 

548.  Objects  of  a  County  tax. 

549.  When  debts  exceed  amount  raised. 

550.  The  order  i^ust  specify  the  object. 

551.  Must  be  advertised  for  thirty  days. 

552.  Specific  taxes. 


Skction. 

553.  How  entered,  collected  and  paid  out, 

554.  Collector's  fees  and  liabilities. 

555.  Mode  of  allowing  commissions. 
55G,  Payment  of  County  tax,  etc. 

557.  Persons  holding  County  tax. 

558.  Failing  to  pay,  execution  may  issue, 

559.  Illegality — when — how  tried. 

560.  Persons  borrowing  County  funds. 

561.  Fi.fa.  or  ca.  sa.  may  issue. 

562.  The  Inferior  Court  may  remit. 


§  543.  The  Justices  of  the  Inferior  Court  have  power  to  raise 

Tax  for  a  tax  for  County  purposes,  over  and  above  the  tax  they  are  here- 

poses— how  inbefore   empowered  to    levy,  and  not  to  exceed  fifty  per  cent. 

upon  the  amount  of  the  State  tax  for  the  year  it  is  levied,  provided 

Two-thirds  two -thirds  of  the  Grand  Jury  at  the  first  or  Spring  Term  of  their 

of  Grand  Ju-  •         /^  ,  •  it,  " 

ry  must  re-  rcspective  Uountics  rccommend  such  tax. 

§  544.  It  is  the  duty  of  such  Justices  to  see  that  by  the  time  of 
Duty  of  the  organization   of  such  Grand  Jury  they  shall  have  prepared 

«l  lis C ICC' S    ill"  

ferior  Court.  \yj  their  County  Treasurer,  under  their  supervision,  a  statement 
^    of  the  financial  condition  of  the  County,  and  the  amount   of  tax 

County  . 

Treasurer,  required  to  dischargc  the  County  liabilities  for  that  year,  which 
condition^^of  ^hall  bc  by  the  Treasurer  presented  to  the  Foreman  of  the  Grand 
etc.  ^^""^■■^'  Jury  on  the  first  day  of  Court  for  inspection  by  that  body. 

§  545.  If  from  any  cause  such  Grand  Jury  is  not  impanneled, 


PT.  1.— TIT.  6.— CHAP.  3.— County  Organization.  117 


Article  1. — From  Taxation. 


or  they  adiourn  without  takino^  any  action  tliereon,  or  they  refuse      if    tte 

->         ^  o         ./  .  Grand  Jury 

to  make  such  recommendation  sufficient  to  discharge  any  iuda;ment  fan  to  rec- 
that  may  have  been  obtained  against  the  County,  or  any  debt  for  ^^^'• 
the  paymetit  whereof   there  is    a  mandamus,   or   the   necessary 
current  expenses  of  the  year,  such  Justices  may  levy  the  neces- 
sary tax  without  such  recommendation. 

§  546.  When  there  are  several  Grand  Juries  impanneled  durinsc     ^^   ^^^^^ 

^  -^  ^  be      several 

such  term  the  recommendation  of  either  panel  shall  be  sufficient  <^rand    ja- 

■■•  ^  ries,  etc. 

authority,  but  if  there  are  counter  presentments  on  the  subject  it 
shall  be  as  though  there  had  been  an  entire  failure  to  report 
thereon. 

§547.  The  right  of  a  creditor  of  a  County  to  compel  such  tax   ^  c^^e^li^rs 

"^  o  ./  i  of  the  Coun- 

levied,  or  of  a  tax  payer  to  resist  it,  is  the  same  as  set  forth  in  *^  ^^^  ^^ 
Section  537,  touching  tax  for  building. 

§  548.   County  taxes  shall  be  assessed  for  the  following  pur- ,  objects  of 

•'  a    i.  levying        a 

poses  :  County  tax. 

1.  To  pay  the  legal  indebtedness  of  the  County  due,  or  to 
become  due  during  the  year,  or  past  due. 

2.  To  build  or  repair  Court  Houses  or  jails,  bridges  or  ferries, 
or  other  public  improvements,  according  to  the  contract. 

3.  To  pay  Sheriiis,  Jailors,  or  other  officers'  fees  that  they  may 
be  legally  entitled  to,  out  of  the  County. 

4.  To  pay  Coroners  ail  fees  that  may  be  due  them  by  the 
County  for  holding  inquests. 

5.  To  pay  the  expenses  of  the  County  for  Bailiffs  at  Courts, 
non-resident  witnesses  in  criminal  cases,  fuel,  servant  hire,  sta- 
tionery, and  the  like. 

6.  To  pay  jurors,  when  by  the  local  law  they  are  allowed  2.  per 
diem  compensation. 

7.  To  pay  expenses  incurred  in  supporting  the  poor  of  the 
County,  and  as  otherwise  prescribed  by  this  Code. 

8.  To  pay  charges  for  educational  purposes,  to  be  levied  only 
in  strict  compliance  with  the  law^ 

9.  To  pay  any  other  lawful  charge  against  the  County. 

§  549.  When  debts  have  accumulated  against  the  County  so  that  whendebts 
one  hundred  per  cent,  on  the  State  tax,  or  the  amount  specially  amount raia^ 
allowed  by  local  law,  can  not  pay  the  current  expenses  of  the  tioD,^tc.*^* 
County  and  the  debt  in  one  year,  they  shall  be  paid  off  as  rapidly 
as  possible,  at  least  tvfenty-five  per  cent,  every  year. 

§  550.  As  soon  as  the  County  tax  is  assessed  for  the  year,  it 


118         PT.  1.— TIT.  6.— CHAP.  3.— County  Organization. 

Article  1. — From  Taxation. 
The  order  shall  be  done  by  order  of  such  Justices  and  entered  on  their 

must  specify       ^  *^ 

tiie    object,  minutes,  which  must  specify  the  per  cent,  levied  for  each  specific 

per  cent,  le-  '  i.  ./  j,  r 

eite'red*^  on  V^^^V^^^-  ^hc  asscssmont  applies  to  every  species  of  value  or 
the  minutes,  specifics  which  is  taxed  by  the  State,  [including  the  value  of  shares 
in  any  railroad  that  is  in  running  condition,  or  banking  com- 
pany owned  by  any  person  either  in  their  own  right  or  in  the 
right  of  another;  and  such  owner  shall  return  the  number  and 
value  of  such  shares  with  his  other  taxable  property;  but  such 
shares  shall  not  be  so  taxed  if  it  interferes  with  the  previous  vested 
rights  of  the  railroad  or  bank  under  its  charter.]  (a) 

§  551.  The  Clerk  of  the  Inferior  Court  must  advertise  imme- 

The  order  diatoly  a  copy  of  such  order  for  thirty  days  at  the  door  of  the 

tised  thirty  Court  Housc  and  in  a  public  gazette,  if  one  is  published  within 

days  by  the  .  .  .  .  . 

Clerk.  the  limits  of  their  respective  Counties,  and  furnish  the  Tax  Col- 
lector with  another  copy,  and  if  he  fails  so  to  do,  shall  be  fined  by 
such  Justices  not  less  than  fifty  dollars. 

§  552.  Taxes  raised  for  educational  purposes,  or  the  support  of 
Taxes  for  the  poor,  OT  any  other  specific  purpose,  must  be  used  for  such 
purpose.      purpose  respectively,  and  none  other. 

§  553.  All  taxes  so  levied  for  County  purposes  must  be  assessed 
How  enter-  upou  the  Tax  Rccciver's  books  for  each  year,  and  collected  by 

ed  collected  ./-'./ 

and  paid  out.'  the  Tax  Collcctor,  who  shall  pay  the  same  to  the  County  Treas- 
urer, except  educational  tax,  which  shall  be  paid  to  the  Ordinary. 
§  554.  The  Tax  Collectors  shall  be  allowed  the  same  commis- 
Coiiector's  sious  and  fees  for  such  collections  as  they  are  allowed  by  law  for 
Muty.^    la-  ^j^^  collection  of  the  State  tax,  and  are  liable  to  the  same  fines 
and  forfeitures  for  any  default  or  improper  conduct. 

§  555.  [The  Inferior  Courts  in  allowing  Collectors  their  com- 
Mode  of  niissions  for  collecting  the  taxes  levied  by  their  respective  Coun- 
commis^sionl  ^^^^  ^^^  authorized  and  required  to  aggregate  the  taxes  for  the 
various  purposes  levied,  and  to  allow  commissions  on  the  whole 
amount,  in  accordance  with  the  schedule  from  which  the  Comp- 
troller General  is  authorized  to  allow  commissions  to  Collectors 
for  collecting  the  State  tax.]  (b) 

§  556.  Any  other   remedy    or  right  allowed  by   law   for   the 
Payment  onforccment  of  the  collection  and  payment  of  the  State  taxes, 
forced.    ^^'  either  by  the  Comptroller  General  or  Tax  Collector,  may  be  used 
for  the  County  taxes  by  the  Justices  of  the  Inferior  Courts. 

(a)  A.cts  of  1862-S,  p.  60.    (b)  Acts  of  1861,  p.  8L 


PT.  1.— TIT.  6.— CHAP.  3.— County  Organization. 


119 


Article  1. — From  Taxation. 


^557.  Such  Justices  shall  also  have   authority  to  compel  all    Persons 

.  ..  *^  .         ^  holding 

persons,  their   heirs,  executors,  or  administrators,  who  have  or  county  tax 

r  7  '  ^  compelled  to 

may  have  in  their  hands  any  County  money,  collected  for  any  p^J^^^^^  *^® 
County  purpose  whatever,  to  pay  over  the  same. 

§  558.  On  failure  to  pay  the  same,  such  Justices  shall  cause    on  failure 
their  Clerk  to  issue  executions  asrainst  such  persons  and  their  potion  may 

°  ^      ^  issue. 

securities,  if  any,  for  the  full  amount  appearing  to  be  due,  as  the 
Comptroller  General  issues  executions  against  defaulting  Tax 
Collectors. 

§  559.  If  such  execution  shall  issue  for  too  much,  or  if  defend-     niegaiity 

^  '  — on      -what 

ant  denies  on  oath  owing  any  part  thereof,  he  may,  by  filing  an  grounds. 
affidavit  of  illegality,  according  to  the  rules  governing  other  ille- 
galities,  cause  an  issue  to   be  formed  thereon,   which  shall  be    ^, 

^  ,  ,  .  When  and 

tried  by  a  special  jury  at  the  first  term  of  the  Superior  Court  ^o'^  tried. 
thereafter. 

§  560.  The  provisions  of  the  foresroinp;  four  Sections  are  appli-      ah  per- 

■"■  .  .  sonsborrow- 

cable  to  all  persons  and  their  sureties  who  may  borrow,  or  pre-  ["?    money 

•••  t/  ^  1  belonging  to 

tendedly  borrow,  any  County  money  from  any  person  having  cus-  gy^-e^t^^^? 
tody  thereof,  and  shall  be,  in  all  respects,  held  as  holders  of  ^^|j^^^p^^; 
County  funds.  t^'*"^- 

§  561.  Where  the  Justices  of  the  Inferior  Court  are  authorized    J^»-  /«•  or 

ca.  9a.  may 

to  issue  ji.  fas.,  they  are  also  authorized  to  issue  ca.  sas.  on  the  issue. 
same  terms  as  other  plaintiffs. 

§  562.  In  all  cases  where  persons   have  been  overtaxed,  or  for     The  Jus- 

tlces  of  the 

any  other  cause  taxes  are  claimed  to  be  remitted,  refunded,  or  in  inferior 

•^  .  .  '  '  Court     may 

any  manner  claimed  against,  the  Inferior  Court  shall  be  author-  remit     the 

*'  .  .  County  tax. 

ized  to  hear  and  determine  such  application  to  the  extent  of  the 
interest  of  the  County  therein. 


ARTICLE  11. 

FROM     OTHER     SOURCES     THAN     TAXATION 


Section. 

563.  Sources  of  the  County  revenue. 

564.  Retail  licenses — shows,  etc. 

565.  Licenses  issued  for  one  year. 

566.  Retailing  spirits  without  license. 

567.  Exhibiting  shows,  etc. 

568.  Peddling  without  license. 

569.  Disabled  soldiers  may  peddle. 

570.  Tax  payer  may  demand  a  license. 


Section. 

571.  Violations  of  preceding  Sections. 

572.  Duty  of  Clerk  in  relation  to  shows. 

573.  Special  defense — how  made. 

574.  Damages  against  defendants. 

575.  Not  to  interfere  with  Penal  Code. 

576.  Money  raised — how  appropriated. 

577.  The  Clerk  failing  to  pay  over  money. 


120  PT.  1.— TIT.  6.— CHAP.  3.— County  Organization. 

Article  2. — From  Other  Sources  than  Taxation. 

§  563.  All  sums  which  are  paid  into  the  County  Treasury  for 
Coun^Tev-*^®  following  accouuts  make  a  part  of  the  County  revenue — viz: 
timabyta?-  ^'  ^^^  ^^^®  authorized  sale  of  any  County  property,  unless 
ation.  otherwise  directed. 

2.  For  the  rent  or  hire  of  any  County  property. 

3.  For  shows  or  exhibitions. 

4.  For  licenses  to  sell  spirituous  liquors  in  any  quantity. 

5.  From  estrays. 

6.  From  licenses  to  peddle. 

7.  From  any  other  sources. 

§  564.  The  County  charges  for  such  licenses  are  as  follows : 

Eetaii  li-       To  retail  spiritiious  liquors $25  00 

CGHSGS   cxlii- 

bitions,  aad        To  sell  spirituous  liquors,  not  by  retail,  in  quantities  less  than 

^^'''^'-  one  gallon 5  00 

To  peddle  within  the  County,  unless  otherwise  provided  by  the 

Inferior  Court  under  the  law 50  00 

To  exhibit  shows  with  horses 10  00 

To  exhibit  animals,  beasts,  and  the  like 10  00 

To  exhibit  pictures  or  figures 5  00 

To  exhibit  any  other  show,  not  less  than  $5.00,  nor  more  than 

$25.00,  as  the  Justices  of  the  Inferior  Court  may  order. 
To  exhibit  theatricals  or  musical  entertainments,  for  profits  to 

the  proprietor,  not   more  than  $5.00  on  each  exhibition, 

and  subject  to  contract  Vv'ith  the  Court. 

§  565.  All  such  licenses,  except  exhibitions,  are  for  the  term  of 
Licenses,  One  year,  extending!;  to  the  County  limits ;  but  license  to  retail  or 

excei)t    for  "      .    .  .  . 

exhibitions,  sell  spirituous   liouors  will  only  authorize,  either  by  the  person 

issue       for    ^  -•■  ^  ^    ^  ^  '^  ^  ./  r 

one  year,      in  whoso  name  it  issues  or  his   clerk,  to  sell  at  some  one  fixed 
place  in  the  County,  which  must  be  specified  in  the  license. 
§  566.  If  any  person  retails  or  sells  spirituous  liquors  without 
Retailing  first  obtaininsT  such  license,  or,  having  obtained  it,  sells  at  any 

without     li-  °  . 

cense.         other  Or  more  places  than  the  one  fixed  in  the  license,  or  trans- 
'fers  it  and  allows  it  used  by  any  other  person  than  himself  or  an 
authorized   clerk,  he  forfeits  to  the  County,  for  each  violation, 
twenty-five  dollars. 

§  567.  If  any  person  exhibits  any  show  without  first  obtaining 
Exhibiting  such  liccnse,  or  exhibits  a  show  diiferent  from  that  for  which  he 

shows,    etc., 

without   li-  obtained  license,  he  forfeits  to  the  County  three  times  the  cost  of 

eense.  ,  _  "^ 

license  for  each  exhibition. 

§  568.  If  any  person,  except   a  disabled  soldier  of  this  State, 

Peddling  poddlos  without  first  obtaining  such  license  in  Counties  where  the 

cense.       '  Justices  of  the  Inferior  Court  take  no  action  regulating  peddling, 


PT.  1.— TIT.  6.— CHAP.  3.— County  Organization.  121 

Article  2. — From  Other  Sources  than  Taxation. 

he  forfeits  to  the  County  one  hundred  dollars  for  the  first  act  of 
peddling,  and  for  each  month  thereafter,  twenty-five  dollars  more. 

§  569.  [It  shall  be  lawful  for  any  disabled  soldier  of  this  State       Maimed 
to   peddle  in  any  County  or  Counties  thereof  without  paying  for  pedd?e  wTth^ 
license  for  the  privilege  of  so  doing ;  and  a  certificate  from  the  ^^ 
Justices   of  the  Inferior  Court  of  any  County,  stating  the  fact 
of  his  being  such    disabled  soldier,   shall  be   sufficient  evidence 
thereof:   j)7'ovided  tha^t  this  Section  shall  not  authorize  peddling 
ardent  spirits,  and  provided  also  that  the  privilege  hereby  granted 
shall  not  be  transferred  to  or  used  by  any  other  person.]  (a) 

§  570.  Any  tax  payer  of  a  County  may  call  upon  any  person      Any  tax 

•^  '^         ,  ."  .  .  payer     may 

in  pursuit  of  any  occupation  for  which  a  license  must  be  obtained  demand  a  ii- 

-••  .  .  cense. 

to  exhibit  his  license,  and  if  he  fails  so  to  do,  it  shall  be  sufficient 
grounds,  on  making  affidavit  of  the  fact,  to  cause  such  forfeiture ; 
and  if,  on  investigo,tion,  it  appears  that  he  has  such  license,  he 
forfeits  the  sum  of  ten  dollars  and  costs. 

§  571.  If  any  Justice  of  the  Inferior  Court,  or  Clerk  thereof,      violation 
of  their  own  knowledge,  knows  of  the  violation  of  the  foregoing  preceding 
three  Sections,  or  if  any  person  will  make  affidavit  of  such  fact,  bowpumsh- 
it  is  the  duty  of  the  several  Clerks  of  the  Inferior  Courts  of  this 
State,  unless   they  know  to  the  contrary,  to  issue  a  process  di-  . 

vviciK.   LOIS* 

rected  to  all  and  singular  the   Sheriffs  and   Constables  of  this  sue  process. 
State  for  the  amount  of  such  forfeit,  commanding  them  to  levy    j^      ^^^^ 
on  sufficient  of  the  property,  real   or  personal,  of  the  defendant  ®^^" 
to  satisfy  the  same  and  costs,  and  to  levy  and  sell  the  same  as  in 
case  of  attachments  ;  and  in  default  of  finding  goods  enough  for 
such  purpose,  to  arrest  such  defendant  and  him  safely  keep  as  in    Defendant 
cases  01  perso-ns  under  ca.  sa.     ouch  process  must  be  returned  to  rested. 
the  Court  from  whence  it  issues. 

§  572.  If  any  show  is  on  exhibition  in  any  County  without  the      Duty  of 

...  J  J  the  Clerk  of 

license  required,  it  is  the  duty  of  the  Clerk  of  the  Inferior  Court  th«  inferior 

^  ''       ^  Court  in  re- 

instanter  to  place  such  process  in  the  hands  of  such  officer ;  and  ^^^'^^      ^^ 
if,  on  presentation,  the  license  fee  required  and  all  costs  are  in- 
stanter  paid,  it  shall  discharge  the  same,  but  not  otherwise ;  but 
if  such  course  is  not  taken,  it  is  no  waiver  of  such  forfeiture. 

§573.  Persons  against  whom  such  process  may  issue  may  ar-    Persons 
rest  the  same  by  swearino;  that  they  have  not  violated  the  law  on  ^^li'^st  may 

•^  ,  .  defend. 

account  of  which  process  has  issued,  and  by  otherwise  complying 

(a)  Acts  of  1866,  p.  46. 


122  PT.  1.— TIT.  6.— CHAP.  3.— County  Organization. 

Article  2. — ^From  Other  Sources  than  Taxation. 

with  the  provisions  of  the  Section  against  persons  holding  County 

funds,  and  which  shall  be  returned  and  tried  in  the  same  manner. 

§  574.  If,  on  the  trial  of  such  issue,  the  jury  who  tries  shall 

a^^aSsr^de-  ^^^^^^^  ^^^*  ^^^^  affidavit  was  filed  for  delay  only,  or  is  without 

fendants.      g^y  cxcuso  to  sustaiu  it,  they  shall  so  state  in  their  verdict,  and 

if  they  so  find,  the  defendant  shall    pay  twenty-five   per  cent. 

additional. 

§  575.  The  penalties  and  forfeitures  hereinbefore  set  forth  are 
terSrwUh  ^^*  *^  interfere  with  any  provision  of  the  Penal  Code,  that  is  or 
(?ode.  ^^""^^  ^^y  ^®  enacted,  making  such  acts  penal. 

§  576.  The  moneys  arising  from  such  licenses  are  to  be  paid  to 
pr^^riatedr  *^®  County  Treasurer  to  be  used  for  County  purposes,  but  one- 
half  of  moneys  arising  from  forfeitures  go  to  the  informers. 
§  577.  When  any  Clerk  of  the  Inferior  Court  shall  neglect  to 
Proceed-  pay  over  to  the  County  Treasurer,  if  he  is  not  County  Treasurer, 

mgs  against  -i-     •/  ^  »/  '  «/  ' 

for  failing  to  or  shall  retain  in  his  hands  any  money  collected  on  account  of  the 

pay        over  «/  «/ 

money.  Couuty,  or  belonging  thereto,  the  Justices  of  the  Inferior  Court 
may  compel  him  to  do  so  by  rule  at  any  time,  and  if  he  then  fails 
so  to  do  they  may  issue  fi.  fa.  against  him  and  his  securities  as 
against  defaulting  Tax  Collectors,  and  the  proceedings  then  and 
afterwards  shall  in  every  respect  be  the  same. 


CHAPTER   IV. 

COUNTY    OFFICERS   NOT   HEREIN   BEFORE    SPECIFIED. 


Article  1. — County  Treasurer, 
Article  2. — County  Surveyor, 
Article  3. — County  Coroner, 


PT.  1.— TIT.  6.— CHAP.  4.— County  Organization. 


128 


Article  1. — County  Treasurers. 


ARTICLE  I. 


COUNTY    TREASUREES. 


Section. 

578.  Election  and  term  of  office. 

579.  Failure  to  elect  at  a  regular  time. 

580.  When  such  election  should  be  held. 

581.  Must  give  bond  and  take  an  oath. 

582.  Term  of  office. 

583.  Vacancies— how  filled. 
581.  Qualifications. 

585.  Clerk  being  appointed  Treasurer. 

586.  Oath  of  the  County  Treasurer. 

587.  Amount  of  his  bond. 

588.  Appointment  to  fill  vacancies. 

589.  County  funds,  by  whom  received,  etc. 

590.  His  office— where  kept. 

591.  Treasurer's  duty,  etc.  t 

592.  Books  to  be  furnished. 


Section. 

593.  Books,  etc., — where  deposited. 

594.  Debts  of  County — what  order  paid. 

595.  County  orders — when  payable. 

596.  Persons  holding  orders. 

597.  Orders  not  paid  for  want  of  funds. 

598.  County  orders  negotiable. 

599.  Treasurer  shall  not  purchase. 

600.  Buying  at  a  discount,  etc. 

601.  Clerk  failing  to  render  a  statement. 

602.  Duty  of  the  Treasurer,  etc. 

603.  Both  offices  held  by  same  person. 
601.  Treasurer  failing  to  pay  over. 

605.  Must  turn  over  books,  etc. 

606.  Final  settlement  on  retiring. 


County 
Treasurer  — 


§  578.  County  Treasurers  are  biennially,  on  the  second  Monday 
in  January,  appointed  by  the  Justices  of  the  Inferior  Court  of  |JJJJ[  ^^^^^^^^^ 
each  County,  except  when  there  is   a  regular  election  for  such  ^®^®- 
Justices,  when  it  must  be  done  as  soon  after  their  qualification  as 
possible. 

§579.  If  there  are  not  as  many  as  three  of  such  Justices  in    Justices  of 

"  "Z  tuo    Inferior 

commission,  who  meet  at  the  time  designated  for  such  appoint-  ^'^^[J/nd^"" 
ment,  it  may  be  adjourned  from  time  to  time  until  there  are  at 
least  three  present. 

§  580.  Such  appointment  should  take  place  as  Ions;  as  possible    when  the 

^  ^J-  ^  or  appointment 

before  the  first  session  of  the  Superior  Courts  in  each  County  for  ^^^^^^  ^® 
the  year. 

§581.  No  appointment  is  effectual  until  bond  and  security  is  ^^^^J^  *jj^ 
given  and  the  oath  of  ojffice  taken.  give  bond. 

§  582.  When  once  appointed  or  elected,  and  qualified,  they  hold    May  bere- 

^  ^  7  i  7  »/  moved  from 

their  offices  [for  two  years  and]  (a)  until  their  successors  are  quali-  ^J^J^'    ^^^ 
fied,  unless  sooner  removed,  and  they  may  be  removed  in  the  same 
manner  that  Clerks  of  the   Superior  Courts  may  be,  to  be  judged 
of  by  the  Justices  of  the  Inferior  Court,  unless  elected  by  the 
people,  and  in  that  case  by  the  Superior  Court. 

§  583.  Vacancies  are  filled  by  the  appointment  of  such  Justices,     vacancies 
whether  the  Treasurers  are  originally  elected  by  the  people,  or 
appointed  by  them. 


(a)  Acts  of  1863-4,  p.  18. 


124  PT.  l.—TIT.  6.— CHAP.  4.— County  Organization. 

Article  1. — County  Treasurers. 

§584.  ISTo  other  conditions  of  eligibility  are  required  save  those 
His  quaii-  that  apply  to  all  other  officers,  but  no  other  officer  can  be  County 
Treasurer  except  a  Clerk  of  the  Inferior  Court. 

585.  When  a  Clerk  of  the  Inferior  Court  is  thus  elected  or  ap- 
The  Clerk  pointed,  he  shall  take  the  oath  and   siive  the  bond  required  of  a 

of  the   Infe-  J^  ^  ^  c  ^ 

nor     Court  Countv  Trcasurcr,   but   the   securities  on   his   Treasurer's    bond 

being       ap  ^  ' 

po  i  nted  g^all  be  different  from  those  on  his  Clerk's  bond,  unless  they  are 
SthindAve  clearly  able  to  satisfy  both.  His  oath  of  office  must  be  entered 
^°^^'  on  the  minutes  of  the  Inferior  Court  and  filed  in  the  office  of  the 

and    bond  Ordinary,  and  his  official  bond  must- be  filed  and  recorded  in  said 

must  be  re- 
corded,        office. 

§  586.   County  Treasurers  before  entering  on  the  duties  of  their 

The  form  offico,  bcsidcs  the  oath  required  of  all  civil  officers,  must  take  the 

of  the  oath,  .  . 

following  oath — viz  :  "  I,  ,  do  swear  f  will  faithfully  collect, 

disburse  and  account  for  all  moneys  or  other  effects  of  the  County, 
and  otherwise  faithfully  discharge  all  the  duties  required  of  me 
by  law,  as  County  Treasurer.     So  help  me  God." 

§  587.   They  shall  also,  within  ten  days  from  their  election  or 

Amount  of  appointment,  give  a  bond  payable  to  the  Justices  of  the  Inferior 

IS  bond,      QQ^x:t  of  the  County,  with  securities  to  be  by  them  approved,  in  a 

^  sum  which,  in  their  judgments,  will  be  double  the  amount  of  the 

County  tax  for  the  ensuing  year,  receipts  from  other  sources,  and 

cash  on  hand. 

§  588.   The  bonds  of  appointees  to  fill  vacancies  shall  be  like- 
Appointees  wise  in  their  discretion,  taking  into  consideration  the  amount  that 

to  fill  vacan-  i      •      i  i  i    f>         i       t  i  t 

cies     must  may  come  to  their  hands  and  lor  aouble  such  amount. 

give  bond. 

§  589.  All  County  funds  are  to  be  paid  to  and  disbursed  by  the 

^o-u^nty  County  Treasurer,  except  such  as  may  be  specially  excepted  by 

SivS   and  ^^^'  ^^*^  i^Qii  to  be  Collected  and  disbursed  as  specially  directed. 

paid  out.  g  590^  jjq  must  keep  his  office  at  the  County  site,  or  at  some 

oifice—  place  within  one  mile  of  the  Court  House. 

where  kept,  o  r  cx-t      -r     •       ^     •       i 

§  oyl.  it  IS  their  duty — 
-p^^    ^^      1.  To  diligently  collect  from  all  officers  and  others  all  County  dues. 
S-easureMa      '^'  ^^  cxamiue  the  minutes  and  execution  dockets  of  the  differ- 
coiiectmg.     ^^^  Courts  of  the  Counties,  to  demand  and  receive  all  moneys  ap- 
pearing to  be  due  thereon,  and  to  institute  proceedings  against 
defaulters. 

3.  To  pay  without  delay,  when  in  funds,  all  orders,  according 
the  County  to  their  dates  (or  other  debts  due),  and  when  not  in  funds  as  here- 

Treasurer  in  ^ 

paying  out.  inaftcr  prescribed. 


PT.  1.— TIT.  6.~-CHAP.  4.— County  Organization.  125 

Article  1. — County  Treasurers. 


4.  To  take  a  receipt  on  each  order  when  paid  and  carefully  file    Must  take 

■•■  i.  ./  receipts 

it  away. 

5.  To  keep  a  well-bound  book  in  which  shall  be  entered  all  re- 
ceipts, stating  when  received,  who  from,  and  on  what  account,  and 
all  amounts  paid  out,  stating  when  paid,  to  whom,  and  on  what 
account. 

6.  To  keep  a  well-bound  book  in  which  shall  be  entered  a  full  shaii  keep 
description  of  all  County  orders,  or  other  forms  of  indebtedness,  the  indebt- 
as  they  are  presented ;  to  record  a  copy  of  the  orders  of  the  Infe-  the  county. 
rior  Court  levying  County  taxes. 

7.  To  exhibit  to  the  first  Grand  Jury  at  the  first  session  of  the  shaii  ex- 
Superior  Court  of  each  year,  a  full  statement  of  the  condition  of  same  to  the 
the  County  Treasury  up  to  that  time,  and  on  the  second  Monday 

in  January,  annually,  to  file  with  the  Clerk  of  the  Inferior  Court 

A    S  t  1 1  G- 

a  full  statement  of  his  account,  accompanied  by  his  vouchers  for  ment  of  the 

...  .  County 

the  preceding  year,  together  with  his  estimate  of  the  indebtedness  f"n<is  to  be 

^  °  "^  '        °  ,  .     ,         tiled      with 

of  the  County  for  the  ensuing  year,  and  the  means  of  providing  cierk  of  the 
therefor,  and  to  place  his  books  before  either  of  said  bodies  for  c^^"'<^- 
examination  when  called  upon. 

8.  To  appear  before  either  of  said  bodies  to  render  an  account 
of  his  actings  and  doings  as  County  Treasurer,  and  to  exhibit  his 
books  and  vouchers  whenever  notified. 

9.  To  publish  at  the  door  of  the  Court  House,  and  in  a  public     Annual 

gazette,  if  there  is  one  published  in  the  County,  a  copy  of  his  be  advertis- 

annual  statement  to  the  Justices  of  the  Inferior  Court. 

§  592.  All  books  and  stationery  the  County  Treasurer  may  re-   Books, etc., 
,  .  -^  -^  "^         to  be  fur- 

quire  must  be  furnished  at  the  expense  of  the  County.  tl^^^r     ^^ 

§593.   When  the  books  of  such  Treasurer  are  full,  they,  to-     Books, 
gether  with  the  vouchers  or  other  files  relating  thereto,  or  con-  Itc."-^  when 
nected  with  the  office,  must  be  deposited  in  the  office  of  the  Clerk   ^^^^®'**  • 
of  the  Inferior  Court  and  afterwards  be  part  of  their  records. 

§594.  When  there  are  funds  enough  to  pay  all  outstanding  The  order 
orders  and  other  forms  of  indebtedness  due,  which  the  Treasurer  debts  of  the 

T'T  ^  1  .  T     ......  -,       County  shall 

may  be  authorized  to  pay,  tliey  may  be  paid  indiscriminately  be  paid, 
without  regard  to  their  dates ;  when  there  is  enough  to  pay  all 
dated  anterior  to  some  particular  dates,  all  such  may  be  likewise 
paid  indiscriminately ;  when  there  is  not  enough  to  pay  all  of 
equal  degree,  they  shall  be  paid  ratably ;  under  all  other  cir- 
cumstances, they  shall  be  paid  in  tfie  order  of  their  dates. 

§  595.  No  order  shall  be  paid  until  after  five  days  from  its  date 


126         PT.  1,— TIT.  6.— CHAP,  4.~County  Okganization. 

Article  1. — County  Treasurers. 

Cou&tyor-  and  delivery,  unless  otherwise  specially  ordered,  that  the  Clerk  of 
paid.  the  Inferior  Court  may  furnish  in  the  meantime  the  County  Treas- 

urer with  a  full  statement  of  all  orders  issued,  which  shall  be  by' 
him  immediately  registered,  and  when  so  registered  shall  be  paid 
according  to  law  without  further  notice  to  the  Treasurer  previous 
to  the  time  of  payment. 

§  596.  If  any  person  holding  County  orders  shall  fail  to  pre- 
Persons  sent  them  by  the  first  day  of  December  of  each  year  to  the  County 

holding  /  "^  '^  •^ 

County   or-  Trcasurcr  for  payment,   they  shall  be   postponed  to  all  orders 
to   present  ^hich  wcrc  SO  presented  and  not  paid  for  want  of  funds. 

§  597.  On  the  first  day  in  December  of  each  year  such  Treas- 
ordersurer  shall  make  an  entry  of  all  orders  entitled  to  payment  which 

not  paid  for  *'  '■     '^ 

want  of -^erenot  so  presented  for  payment,  and  what  orders  not  of  equal 
dignity  have  been  paid  instead,  in  whole  or  in  part,  and  what 
others  are  entitled  to  payment  before  such  non-presented  orders. 
Persons  holding  such  orders,  who  present  them  without  receiving 
their  pay  before  said  day,  may  have  the  Treasurer  annually  to 
mark  thereon  ''Presented,'''  the  day  of  presentation,  and  not  paid 
for  want  of  funds. 

§  598.  All  County  orders  are  negotiable  by  delivery  or  endorse- 
Connty  or- ment,  and  the  endorser  liable  according  to  the  terms  of  his  en- 

dersnegotia-  .  i  i  r> 

bie.  dorsement,  as  m  commercial  paper,  but  no  such  transfer  can  take 

place  so  as  to  prevent  a  Treasurer  from  setting  ofi*  any  sum  that 
the  payee  may  be  due  the  County  at  the  date  of  the  order. 

§  599.   Such  Treasurer  ig  forbid  to  buy  up  any  County  orders 
Treasurer  or  claims  for  Icss  than  their  full  par  value,  either  by  himself  or 
purchase  or-  agcuts,  dircctly  or  indirectly,  or  by  paying  for  them  in  property 
count.         at  an  estimated  value  above  its  true  value. 

§  600.  If  any  County  Treasurer  shall  thus  buy  up  any  County 
Penalty  order  or  claim,  or  refuse  to  pay  an  order  when  he  has  funds  to 

for     buring  ^     '^ 

orders  at  a  pay  the  samo,  or  illegally  postpone  one,  he  shall  be  removed  from 

refusing   to  office  on  complaiut  and  proof  being  made  to  the  Justices  of  the 

Inferior  Court,   and  is  moreover-' guilty  of  a  misdemeanor,  and, 

upon   conviction,  shall   be  fined  not  less   than  one  hundred  nor 

more  than  five  hundred  dollars. 

§  601.  If  any  Clerk  of  the  Inferior  Court  shall  fail  to  render 

The  Clerk  iH  at  the  time  required,  to  the  County  Treasurer,  a  full  statement 

rend^er    a  of  the  County  ordcrs  as  they  are  passed  (except  from  providen- 

statement  to.,  •  i    t  i  'ini'm  n  i* 

the  Treasur-  tial  causc  or  Unavoidable  accident),  he  is  guilty  oi  a  contempt  oi 
Court,  and  shall  be  fined  not  less  than  one  hundred  dollars  for 


PT.  1.— TIT.  6.— CHAP.  4.— County  Organization.         127 

Article  1. — County  Treasurers. 
each  failure ;  and  in  case  such  Justices  fail  so  to  fine  such  Clerk,     shaii  be 

fined  not  less 

thej  are  also  guilty  of  a  misdemeanor,  and,  on  conviction,  shall  than  $100. 
be  likewise  fined. 

§602.  If  the  Clerk  is  unable  to  render  such  schedule,  or  fails     Duty  of 

^  the  Treasur- 

so  to  do  by  the   end   of  five  days,  it  is  the  duty  of  the  County  ^'^j.^^^^j  ^J^^' 
Treasurer  to  examine  the  proper  books,  minutes,  or  files  of  such  *^^^  j.**^ 
Clerk,  and  take  therefrom  such  schedule,  and  on  failure  so  to  do,  ^^™®- 
except  from  providential  cause,  he  incurs  the  same  penalty  that 
the  Clerk  does. 

§  603.  When  the  Treasurer  and  the  Clerk  of  the  Inferior  Court    when  the 

offices        of 

are  the  same  person,  separate  books  must  be  kept,  the  same  sepa-  Treasurer 

^  '        ^  .-•■'.  -^       and  Clerk  is 

rate  duties  must  be  performed,  so  far  as  possible ;  and  if  a  Clerk  held  by  the 

■••  '  ^  ^  same      per- 

who  is  Treasurer  is  removed  as  Clerk,  it  works  his  removal  as  ^oa. 
Treasurer. 

§604.  When  the  County  Treasurer  at  anytime  fails  to  pay  county 
any  order  which  is  entitled  to  payment,  or  other  legal  demand  faiiiDg  to 
upon  him,  or  to  pay  any  balance  that  may  be  in  his  hands  to  his  money,  exe- 

^  '  X     ./  ./  ^  J  ^  cutiou    uiay 

successor,  or  to  the  person  entitled  to  receive  it,  the  Justices  of  ^ssue. 
the  several  Inferior  Courts  may  issue  execution  against  him  and 
his  sureties  for  the  amount  due,  as  against  a  defaulting  Tax  Col- 
lector. 

§'605.  In  case  of  the  resignation,  expiration  of  the  term,  or     county 

Treasurer 

removal  from  office,  such  Treasurer,  or  if  he  is  dead,  his  personal  must    turn' 

^  ■^  ^  over    to  his 

representative,  must  state  his  accounts,  and  deliver  all  the  money,  successor 

DOO-KSa  6XC* 

books,  papers,  and  property  of  the  County  to  his  successor,  as 
other  officers  do,  who  must  report  the  same  immediately  to  the 
Justices  of  the  Inferior  Court. 

§  606.  When  such  County  Treasurer  or  his  representative  has    rinai  set- 
made  a  fair  and  full   statement  of  all  his  accounts  and  liabilities  a     retiring 
as  such,  an  exoneration  of  himself  and  sureties,  together  with  the 
details  of  such  settlement,  must  be  entered  on  the  minutes  of  the 
Inferior  Court,  and  be  final,  except  for  fraud. 

» 

Note. — In  many  Counties  the  Treasurer  is  elected  by  the  people.  See  local 
acts  as  to  each  County,  none  of  which  are  included  in  this  Code,  or  repealed  by 
its  adoption,  unless  expressly  mentioned. 


128 


PT.  1.— TIT.  6.— CHAP.  4.— County  Organization. 


Article  2. — County  Surveyors, 


ARTICLE  II. 

COUNTY     SURVEYORS, 


Section. 

607.  How  elected  and  removed  from  office. 

608.  Failing  to  elect  at  the  regular  term. 

609.  Appointed  by  the  Court. 

610.  His  oath  and  bond. 

611.  May  be  removed  from  office. 

612.  One  for  each  County. 

613.  Assistant  must  take  an  oath. 

614.  May  keep  his  office  at  his  residence. 


Section. 

615.  General  duty  of  County  Survej'or. 

616.  Fees  for  surveys — how  paid. 

617.  Survey  made  between  Counties. 

618.  Charges  for  survej's — how  contested. 

619.  Surveys  and  plats — when  evidence. 

620.  When  there  is  no  County  Surveyor. 

621.  Others  acting  as  County  Surveyors. 

622.  Making  false  survey — how  punished. 


§  607.   Count  J  Surveyors  are  elected,  commissioned,  qualified, 
County  and  removed  as  Clerks  of  the  Superior  Courts  are,  and  hold  their 

Surveyor  —      ™  n        ^ 

how  elected,  omces  lor  two  Ycars. 

etc.  "^ 

§  608.  In  case  there  is  a  failure  to  elect  a  person  who  is  com- 

on  failure  missioucd  and  qualified  at  the  regular  time,  or  a  vacancy  occurs, 

reguiar^ime.  the  Justiccs  of  the  Inferior  Court  must   appoint  such   Surveyors, 

which  appointment  takes  efi'ect  as  prescribed  in  the  case  of  County 

Treasurers. 

§  609.  If  a  County  Surveyor  derives  his  authority  from  aj^point- 
if  ap-  ment,  he  needs  no  commission  beyond  the  order  of  such  Justices 
the    Court,  entered  on  their  miautes,  of  which  appointment  the  Governor  of 
eommission.  the  State  must  be  informed  by  their  Clerk  without  delay. 

§  610.  Before  entering  on  the  duties  of  his  office,  besides  the 
His  oath,  oath  required  of  all  civil  officers,  he  must  take  the  following : 

"  I,  ,  swear  that  I  will,   to  the  best  of  my  skill  and 

knowledge,  discharge  the  duties  of  Surveyor  of County, 

and  that  I  will  not  admeasure,  survey,  or  lay  out  any  land  in 
my  capacity  as  such,  or  knowingly  permit  or  cause  it  to  be  done, 
without  a  warrant  first  obtained  for  that  purpose.  So  help  me 
God." 

He  shall  also,  at  the  same  time,  give  bond  and  security  in  the 
sum  of  one  thousand  dollars. 

§  611.  Whether  appointed  or  elected,  besides  the  causes  of  re- 
May  bo  moval  which  apply  to  all  officers,  he  may  be  removed  by  the  Jus- 
th^Tustice'^  tices  of  the  Inferior  Court  for  want  of  capacity,  on  the  same  pro- 
rior  Court,    cccding  before  them,  and  hj  them  to  be  decided,  that  officers  are 
removed  in  the  Superior  Courts. 
Must  be      §  612.  There  must  be  one  for  each  County,  and  he  is  empow- 

one  for  eacn  i.  •,  •,,  ii*i*i 

County.       ered  to  appoint  one  or  more  assistants  or  deputies,  tor  whose  con- 
an^aSistont  ^^^t  he  IS  responsible. 


PT.  1.— TIT.  6.— CHAP.  4.— County  Organization.  129 

Article  2. — County  Surveyors. 
§  613.  When  such  an  assistant  is  appointed  he  must  take  the    Must  take 

'^  ^  ■•■  ^  an  oath. 

same  oath  the  Surveyor  takes,  and  the  fact  of  the  appointment 
must,  at  the  same  time,  be  entered  on  the  minutes  of  the  Inferior 
Court. 

§  614.  The  County  Surveyor  may  keep  his  office  at  his  place  of  j^.^^^^^^^^^p^ 
abode,  if  within  the  limits  of  the  County.  ws residence 

§  615.  It  is  his  duty — - 

1.  To  punctually  observe  and  carry  into  effect  all  such  orders  ^^  Sll^comf 
as  he  may  receive  from  the  Surveyor  General  or  other  officer  ^y  surveyor. 
who  may  lawfully  command  him. 

2.  To  admeasure  and  lay  off  dower,  to  partition  lands,  to  make 
re-surveys,  to  give  plats  of  all  surveys,  and  to  administer  all  oaths 
required  by  law  in  such  cases. 

3.  To  survey  County  lines  and  district  lines,  or  other  surveys,    Mnstsur- 

•^  -^  ^  ''     ■'  vey  County 

in  which  his  County  may  be  interested,  whenever  required  by  the  j^^^g^^^^"^^ 
Justices  of  the  Inferior  Court. 

4.  To  execute  all  surveys  required  by  the  rule  of  any  Court  of 
competent  jurisdiction. 

5.  To  keep  a  well-bound  book  in  which  shall  be  entered  plats    Must  keep 
of  all  surveys  made  by  him,  with  a  minute  of  the  names  of  the 
chain-bearers,  when  executed,  by  whose  order  and  to  whom  plat 
delivered,  if  any ;  which  book  shall  belong  to  his  office  and  be 
turned  over  to  his  successor,  and  when  full  shall  be  deposited  in 

the  office  of  the  Clerk  of  the  Inferior  Court. 

§616.  When  surveys  are  made  for  private  or  corporate  benefit.     Fees  for 

If*  1  •  1    T  1  •         surveys  — 

the  lees  are  to  be  paici  by  the  person,  or  persons,  or  corporation  tow  paid, 
who  orders  the  survey;  when  by  order  of  the  Justices  of  the 
Inferior  Court,  out  of  the  County  funds ;  and  when  by  rule  of 
Court,  unless  otherwise  agreed  upon,  they  are  to  be  taxed  in  the 
bill  of  costs,  and  shall  have  the  effect  of  a  judgment  lien  upon  the 
land  surveyed,  if  not  paid  by  the  party  bound  for  costs. 

§  617.  When  a  surve}^  is  made  by  agreement,  or  in  compliance    survey  be- 
with  the  law,  between  two  or  more  Counties,  the  County  Surveyor  tie?^ 
who  performs  the  survey  is  to  be  paid  by  his  County,  which  must 
collect  from  the  other  Counties  their  proportion. 

§  618.  If  after  a  County  Surveyor  has  made  a  survey  for  any     payment 
person,  who  neglects  to  pay  him,  such  Surveyor  upon  making  or's  fe'eY— 
oath  before  the  Clerk  of  the  Inferior  Court  of  his  County  of  the  ed. 
performance  of  such  service  and  its  value,  such  Clerk  shall  issue 
di>fi.fa.  in  the  name  of  the  Justices  of  the  Inferior  Court,  for  the 
9 


130 


PT,  1.— TIT.  6.— CHAP.  4.--C0UNTY  Organization. 


Article  2. — County  Surveyors. 


use  of  such  Surveyor,  against  such  defaulter,  who  may  defend 
himself  therefor,  in  the  same  manner  as  persons  against  whom 
executions  issue  who  detain  County  funds. 

§  619.  Surveys  or  plats  of  land  made  by  the  County  Surveyor, 
Surveys  or  under  ordcr  of  Court,  and  on  notice  to  all  the  parties  of  lands 

plats  of  land  i-/^  •  tit-  rY»-n  i 

—when  evi-  withm  his  Couuty,  Signed  by  him  officially,  and  stating  the   con- 
tents,  courses,  distances,  of  any  land  surveyed  by  him,  are  pre- 
sumptive  evidence   of  the  facts,  if  all  the  requisites  of  the  law 
touching  such  surveys  and  the  reports  thereof  are  complied  with. 
§  620.  When  there  is  no  County  Surveyor,  any  competent  per- 
When there  SOU,  a  citizen  of  the  County,  may  perform  his  duties,  when  spe- 
ty  Surveyor  ciallv  required,  if  first  sworn  to  do  the  same  skillfully,  faithfully, 

who  may  act.  .  .  .    »'  ' 

and  impartially,  to  the  best  of  his  knowledge;  or  in  default  of 
such  person  the  County  Surveyor  of  an  adjoining  County  may 
officiate. 

§  621.  Persons  performing  such  service  are  on  the  same  footing 
Persons  as  Couuty  Survcyors  as  to  the  special  service  rendered,  and  are 

actlns:     "=•'•'  ^ 


County  su-  personally  liable  as  such  Surveyors  are  officially. 

veyor  liable  ^  '^  *^  »' 

as  such.  §  (322.  When  any  County  Surveyor,  or  other  person  acting  as 

False  sur-  such,  lias  kuowiugly  surveyed  land  as  vacant  land  which  is  not,  or 

lilj.^  '      so  made  any  other  false  survey,  he  is  guilty  of  a  misdemeanor, 

and  on  indictment  and  conviction  shall  be  imprisoned  not  longer 

than  six  months. 


ARTICLE  III. 


CORONERS. 


Section. 

623.  How  elected  and  removed  from  office 

624.  Justices  Inferior  Court  may  appoint 

625.  Coroner's  oath. 

626.  Must  give  bond  and  surety. 

627.  Additional  surety  may  be  required. 
62S.  Jailor,  when  Sheriff  is  imprisoned. 

629.  Shall  serve  process  in  certain  cases. 

630.  Shall  hold  inquests  in  certain  cases. 


Section. 

631.  May  disinter  dead  bodies. 

632.  Subject  to  indictment. 

633.  Inquest  unnecessary  in  certain  cases. 

634.  Death  by  accident,  etc. 

635.  Costs  paid  out  of  County  funds,  etc. 

636.  On  conviction,  costs  a  part  thereof. 

637.  Justice  of  the  Peace  may  act,  etc. 


§  623.  Coroners  are  elected,  commissioned,  qualified,  and  re- 
coroners-  movcd,  as   Clcrks  of   the   Superior  Courts  are,  and  hold   their 

how  elected  - 

and  remov-  officcs  lor  two  years. 

ed. 


PT.  1.— TIT.  6.— CHAP.  4.— County  Organization         131 

Article  3. — Coronei'S. 


§  624.    The  Justices  of  tlie  Inferior  Courts  appoint  Coroners   Justices 
on  the  same  terms  and  m  the  same  manner  that  they  do  County  nor    com-t 
Surveyors,  which  appointments  take  effect   as  those  of   County 
Treasurers. 

§  625.  Before  entering  on  the  duties  of  his  office,  besides  the  coroner's 
oath  required  of  all  civil  officers,  he  must  take  the  following:  "I 
swear  that  I  will  well  and  truly  serve  the  State  of  Georgia  in  said 
office,  and  will  faithfully  and  truly  execute  all  writs  and  precepts 
to  me  directed,  or  which  I  may  lawfully  execute,  when  placed  in 
-my  charge,  and  return  the  same  according  to  the  best  of  my 
knowledge,  skill,  and  judgment ;  that  I  will,  in  no  case,  knowingly 
use  or  exercise  my  office  illegally,  corruptly,  or  unjustly,  and  that 
I  will  not,  under  any  pretense,  take,  accept,  or  enjoy,  any  fee  or 
reward  pertaining  to  my  office,  other  than  such  as  are  allowed  by 
law,  but  that  I  will,  in  all  things  touching  the  duties  of  my  office, 
demean  myself  honestly,  fairly,  and  impartially,  according  to  the 
best  of  n^y  ability.     So  help  me  God." 

§  626.  He  must  likewise,  at  the  same  time,  give  bond  and  surety    Must  give 
in  the  sum  of  five  hundred  dollars,  which  may  be  for  a  greater  or  surety.' 
less  amount,  according  to  the  local  law  now  or  hereafter  in  force. 
He  is  liable  for  retaining  moneys  collected,  or  otherwise  failing  to     Liable  as 
do  his  duty,  as  Sheriffs  are,  and  is  subject  to  the  same  proceed- 
ings. 

§  627.  When  a   Coroner  has  to  act  in  the  place  of  a  Sheriff,     Addition- 

.    -,,  1  x         •  n       ^  T  /-i  al  bond  may 

generally  or  specially,  the  Justices  of  the  Inferior  Court  may  be  required. 
require  of  him  an  additional  bond,  in  such  sum  and  with  such 
sureties  as  in  their  discretion  they  may  think  sufficient  to  meet 
the  contingency. 

§  628.  He  is  keeper  of  the  jail,  when  the  Sheriff  is  imprisoned    Keeper  of 

1  r*  ^        r^  ,         t  •  i  j^i's — when. 

or  absent  trom  the  County,  leaving  no  deputy. 

§  629.  When  a  Sheriff  is  disqualified,  and  it  does  not  appear   shaii  serve 
upon  the  face  of  the  proceedings,  or  he,  or  his  deputy,  refuses  to  l^'ha  ca^s!"^ 
perform  a  service,  if  any  person  makes  affi_davit  thereof,  the  Clerk 
of  the  Court  from  which  it  issues  shall  place  the   process  in  the 
hands  of  the  Coroner  for  execution,  and  may  compel  its  return  to 
his  office  for  such  purpose. 

§  630.  It  is  the  duty  of  the  Coroner  to  take  inquests —  si^^n  i,oid 

1.  Of  all  violent,  sudden,  or  casual  deaths.  Sm  casTs."^ 

2.  Of  all  deaths  in  prison,  without  an  attending  physician. 


182         PT.  l.-— TIT.  6.— CHAP.  4.— County  Oegakizatios^. 

Article  3. — Coroners. 

3.  Of  all  dead  bodies  fonnd,  whether  of  persons  known  ar  un- 
known. 

4.  Of  all  dead  bodies  of  persons  who  have  died  or  disappeared 
under  suspicious  circumstances. 

5.  Of  the   dead  bodies  of  persons  of  whom   affidavit  may  be 
made,  that  they  came  to  their  death  by  violence  or  foul  play. 

6.  Whenever  ordered  by  a  Court  having  criminal  jurisdiction. 
§  631.  They  are  authorized,  in  order  to  carry  into  effect  the 

May  disin- preceding  Section,  to  disinter  any  body  already  buried,  and,  like 

XBV  ClGJlCl    DO*  ^ 

dies.  a  Sheriff,  to  command  the  power  of  the  County  for  that  purpose, 

§  632.  If  any  person  makes  affidavit  to  facts  to  authorize  such 

Person  proceeding  by  the  Coroner,  or  the  Coroner  does  so  of  his  own 

making  affi-  -^        .  °        "^ 

davit  subject  motiou,  and  it  is  done  without  srood  grounds,  or  from  malice  or 

to  indict-        ^  /  ^      *=  ^  ' 

ment.  mischicf,  the  person  so  swearing,  or  the  Coroner  so  officiating,  is 

subject  to  indictment,  and  if  convicted  shall  be  fined  not  less  than 

On  convic-  ^^^  hundred  dollars  and  imprisoned  not  less  than  thirty  days.     In 

finedSidim^  such  cases  all  the  circumstances  shall  go  to  the  jury,  and  if  they 

pnsone  .      "j^giieve  there  were  reasonable  grounds  for  the  disinterment  at  the 

time  it  took  place,  it  is  their  duty  to  acquit. 

§  633.  When  persons  have  come  to  their  death  by  violence,  and 
An  inquest  tlierc  are  witnesses  to  it,  and  the  person  accused  is  under  arrest 

unnecessary.  .         .  ,      /  -tit 

and  undergoes  an  examination  beiore  a  competent  tribunal,  there 
need  not  be  an  inquest. 

§  634.  There  also  need  be  no  inquest  where  persons  come  to 
Death  by  their  death  by  accident  or  act  of  Grod,  in  presence  of  witnesses, 

accident    or  ^      *^  •"■ 

the   act  of  and  there  is  no  reason  to  suspect  foul  play  and  no  person  makes 
affidavit  of  facts  raising  such  suspicions. 
Cost  to  be      §635.  The  costs  of  such  inquests  shall  be  paid  out  of  the  County 

paid  by  the  n       -i 
County.  funds. 

If  the  par-  §  ^^^'  ^^  ^^7  p^i^sou  is  coiivictcd  of  murdcr  or  manslaughter  in 
is  convict^i^  a  case  where  an  inquest  has  been  held  over  the  body  of  the  person 
Saice  a^part  for  slaying  whom  he  is  convicted,  the  costs  of  the  inquest  make 
viction.  '^°^'  a  part  of  the  costs  of  the  conviction,  and  must  be  so  charged. 

§  637.  When  there  is  no  Coroner  in  a  County,  or  he  is  absent 

A  Justice  from  the  County  when  needed,  or  will  not  or  can  not  take  an  in- 

of  tliG  Pghcg 

may  act       qucst,  any  Justice  of  the  Peace  of  the  County  may  act  as  Coro- 
ner. 


PT.  1. — TIT.  6.— CHAP.  5.— County  Organization. 


133 


Article  1, — Public  Roads. 


CHAPTER    V. 

OADS,    BRIDGES,   FERRIES,   TURNPIKES,   CAUSEWAYS, 

CROSSINGS,  ETC. 


Article  1. — Public  Roads. 

Article  2. — Road  Commissioners  and  their  Duties. 

Article  3. — Bridges,  Ferries,  Turnpikes,  and  Causeways. 

Article  4. — Railroad  Crossings. 

Article  5. — Private  Ways. 

Article  6. — Mininq. 


ARTICLE   L 

PUBLIC      ROADS.. 


^SKCTION. 


638.  What  roads  are  considered  public. 

639.  Shall  be  thirty  feet  wide. 

GiO.  Bridges  and  Causeways,  16  feet  widCo 

641.  Districts  laid  out,  et-c. 

642.  Roads  and  Districts  to  be  registered- 

643.  How  laid  out  or  altered. 

644.  Notice  of  application  advertised,  etc» 
^45.  Holders  of 'land — how  notified. 

Roads  established,  etc. 
Application  must  be  in  writing. 
Laid  out  the  nearest  and  best  way. 
Persons  subject  to  road  duty. 
What  roads  to  be  worked. 

651.  Number  of  days  required  to  work. 

652.  Lists  of  hands  to  be  furnished. 
Must  be  summoned  one  day. 
What  the  notice  must  contain. 
Duty  of  the  overseer. 
Sudden  obstructions  in  roads. 
Special  working  to  be  deducted. 
Defaulters  fined  one  to  three  dollars.. 
Extraordinary  implements. 
Road  may  be  apportioned. 
Persons  to  whom  road  apportioned. 
Applicant  refusing  to  accept. 
Failing  to  work  after  acceptan-ee. 
Complaint  against  Commissioners. 


646, 
647, 
648, 
.649, 
650 


653. 
654. 
,655. 
656, 
657. 
658, 
«59 
660 
661 
662 
663 
664 


Section. 

665.  Defaulters  may  file  excuse. 
QQQ.  Executions  against  defaulters. 

667.  Fine  money — how  appropriated. 

668.  Constables  collecting,  etc. 

669.  Lien  of  j^.  fa. 

670.  Timbers  used  for  road  purposes. 
67L  Public  roads  measured,  and  posted. 

672.  Sign-boards  to  be  put  up  at  forks. 

673.  Failure  to  put  up  posts,  etc. 

674.  Overseer  may  be  indicted. 

675.  Railroad  hands — how  exempted. 

676.  Land  owners  aggrieved,  etc 

677.  Persons  claiming  damages,  etc. 

678.  Trial — how  conducted. 

679.  Notice  to  Justices,  etc. 

680.  The  time  and  place  of  meeting. 

681.  Objections  to  jurors. 

682.  Continuances,  etc. 

683.  Mistrial. 

684.  Certiorari. 

685.  Final  judgment  and  payment. 

686.  Value  of  the  land — how  estimated. 
^687.  Consequential  damages. 

688.  Overseer  may  be  fined. 

689.  Altering  or  obstructing  public  roads. 

690.  By  a  fence  or  tree. 

691.  Main  streets  in  towns  or  cities. 


§  638.   AH  roads  laid  out  for  public  use  by  an  act  of  the  Gen-  Pubiicroads. 
eral  Assembly,  if  not  otherwise  provided,  or  by  an  order  of  the 
Justices  of  the  Inferior  Court,  are  declared  to  be  public  roads. 

§  639.  They  shall  be  cleared  of  all  trees,  stumps,  grubs,  and    shaii  be 
bushes,  at  least  thirty  feet  wide,  and  of  such  limbs  of  trees  as  wide, 
may  incommode  horsemen  or  carriages ;  stumps  must  be  cut  as 


134         PT.  1.— TIT.  6.— CHAP.  5.— CouirrY  Organizatioj^. 

Ai'ticle  1. — Public  Roads. 

^ k__,_ . 

nearly  even  with  the  surface  as  possible,  and  the  carriage  tracl: 
must  be  at  least  five  feet  six  inehes  wide. 

§  640.  All  bridges  or  causeways  over  small  wr.?ter  com^ses,  and 

Bridges  causcways  over  swamps  or  low  lands,  shall  be  made  and  Itept  in 

ways.         repair  by  hands  subject  to  work  on  roads ;    th©  pieces  shall  be- 

Shall  be  l^id  across  the  road  at  least  sixteen  feet  long,  well  secured,  made 

sixteen  ee  ^^^^^  ^^^  covorcd  with  earth. 

§  641.  The  Justices  of  the  Inferior  Court  must  lay  off  their  re- 
Eoad  dis-  spoctivc  Counties  into  road  districts,  and  apportion  the  roads  and 

tricts  laid  oft'  ,.    .  r»i 

and    hands  hands  SO  as  to  dividc  the  labor  and  expense  on  account  ot  roads^ 

apportioned. 

causeways,  and  bridges,  equally  througho'dt  said  Counties ;  all  of 
which  proceedings  must  be  entered  on  the  minuter. 

§  642.  They  must  cause   their   Clerk   to  keep  registered,  in  a 
public  book  in  his  office,  a  list  of  all  public  roads  and  road  districts  in 

roads       and  tit,!  i  10-  ♦ 

road  districts  the  Countv,  to  bc  added  to  and  corrected  from  time  to  time,  as 

to  be  regis-  .         .  . 

tered.    ^     new  roads  or  new  districts  are  laid  out,  or  old  ones  altered  or 

discontinued. 

§  643.   On  application  to  them  for  any  new  road,  or  alteration 

Public  in  an  old  road,  they  shall  appoint  three  Road  Commissioners,  re- 
roads — how  '  y  X  J.    ^     ^ 

laid  out  or  siding*  as  near  where  such  road  is  intended  to  pass  as  possible,  and 

altered.  ^  _  ...  r  r  :' 

if  they  find  it  of  public  utility  they  must  proceed  to  mark  it  out, 
and  make  their  report  under  oath  to  such  Justices  that  it  was  laid 
out  and  marked  conformably  to  law. 

§  644.  If  such  Justices,  on  the  investigation  had,  are  willing  to 
Notice  of  frrant  such  road,  or  make  alteration  in  an  old  road,  they  shall 

application  ,  ,  .    ,  .         .  -*  (^ 

must  be  ad-  causc  the  Clcrk  to  publish  a  citation  for  thirty  days  at  the  door  of 

vertisedfor  ^         ^  ^  . 

thirty  days  the  Court  Houso,  and  in  a  public  gazette,  if  there  is  one  in  the 
County,  giving  a  particular  description  of  th^e  new  road,  or  the 
alteration,  notifying  all  persons  that  on  and  after  a  certain  day 
therein  named,  said  new  road  or  alteration  will  be  finally  granted, 
if  no  good  cause  is  shown  to  the  contrary. 

§  645.  All  persons,  their  overseers  er  agents-,  residing  on  land 

Persons  in  which  such  road  goes  through,  except  the  applicants  for  the  road 

posses&ion  to  .  "  7»-». 

be  notified,  or  alteration,  must  be  at  the  same  time  notified  m  writing,  per- 
sonally, or  by  leaving  it  at  their  most  notorious  place  of  abode, 
that  they  may  put  in  their  claim  for  damages,  or  forever  after  be 
estopped. 

§  646.  All  public  roads  established  without  a  substantial  com- 

void  roads,  pliauco  with  the  provisions  of  the  last  named  Sections,  are  void. 

§  64T.  Applications  for  the  discontinuance  af  an  old  road^  in 


PT.  1.— TIT.  6.— CHAP.  5.— County  Organization.         135 

Article  1. — Public  Roads, 
whole  or  in  part,  raust  likewise  be  made  to  such  Justices  in  wri-  Application 

.  TIT  •  must  be    in 

ting,  and  likewise  published,  before  it  shall  take  effect.  writing. 

§648.  All  public  roads  shall  be  laid  out  the  nearest  and  best,  .Must  be 

,  .  Ifiid  out  the 

way  to  the  place  to  which  they  are  intended,  and  as  little  as  can  ll^l\^l^  ^^^ 
be  to  the  prejudice  of  any  private  person's  enclosed  grounds. 

§  649.  fAll  male  inhabitants,  white  and  black,  in  this  State,       Persons 

■-  ^  ^  subject  to  do 

between  the  ages  of  sixteen  and  fifty  years,  are  subject  to  work  road  duty. 
on  the   public   roads,  except   ordained   or  licensed  ministers  or 
preachers  of  the  gospel,  professors   of  any  college,  or  teacher  of      z.^^/  /^4.- 
any  County  or  public  school  in  this  State,  so  long  as  they  are 
engaged  in  teaching,  and  such  other  persons  as  are  specially  ex- 
empted.] (a) 

§  650.  The  same  road  hands  shall  not  be  compelled  to  work  on      on  what 

1  T   •    1  •    1   •  1  "1         ^^^^^     hands 

more  than  one  public  road,  which  must  come  withm  three  miles  compelled  to 

.  .  -  work. 

of  their  residence,  except  in  opening  a  new  road,  when  all  the 
road  hands  of  the  road  district  are  subject  to  work  upon  it. 

§651.  Road  hands  are  not   required   to  work  exceeding  five    Notrequir- 

•1  1  ^  n  1  T  ^^    ^^    work 

days  at  one  time  consecutively,  nor  more  than  fifteen  days  alto-  more    than 

•^  .  "^ '  .  -^ .  five  days. 

gether,  in  twelve  months,  unless  sudden  emergencies  require  the 
immediate  repairing  of  the  roads,  causeways,  and  bridges  within 
their  respective  districts. 

§  652.  The  several  managers  or  employers  of  male  fpersons  of     Aiistof 

hands  to  be 

color]  (b)  shall,  whenever  required,  furnish  the  overseers  of  the  furnished. 

road  district,  with  a  list,  in  writing,  of  those  who  are  liable  to 

work  on  the  public  roads,  signed  by  them,  under  a  penalty  of   Penalty  for 

refusin''". 

paying  three  dollars  for  each  male  [person  of  color]  (b)  so  liable 
to  road  duty  and  whose  names  are  not  furnished,  to  be  collected 
as  fines  for  not  working  the  road. 

§  653.  Overseers  of  roads  in  their  respective  districts  shall  sum-      uamisto 

•n  ^     -  .,.,,..  ,  be  summon- 

mon  all  persons  liable  to  road  duty  witnm  the  district,  at  least  ed  one  day. 
one  day  before  the  time  of  working. 

§  654.  Such  summons  must  state  the  road  to  be  worked,  the     what  the 

notice  must 

time  and  place  for  meeting,  and  the  implements  required.  contain. 

§  655.  Such  overseers  shall  superintend   the  working  on  the      overseer 
roads  assigned  them  by  the  Commissioners,  cause  the  same  to  be 
worked  and  repaired  in  the  best  possible  manner,  and  make  a  re- 
turn thereof  to  the  Commissioners  in  writing,  within  five  days    Defaulters 
after  each  time  of  working,  of  all  defaults  and  deficiencies  which  ed.  ^^^"'^'^ 
may  have  taken  place. 

(a)  Acts  of  1865-6,  pp.  23  and  78,  and  Acts  of  1851-3,  p.  283.     (b)  Acts  of 
1865-6,  p.  33. 


136         PT.  1.— TIT.  6.— CHAP.  5.— County  Organization. 

Article  1. — Public  Roads. 

§  656.  When  any  road,  or  bridge,   or  causeway,  may  become 
Eoads-etc,  Suddenly  impassable,  it  is  the  duty  of  such  overseer  to  call  out  as 

suddenly  be-  i  i  •         i 

comin^c  im-  many  hands   as  necessary  to  repair  the  same,  after  giving  one 
day's  notice. 

§  657.  They  shall  take  notice  of  the  time  such  hands  are  em- 
Time  of  ployed  ou  such  SDCcial  workings,  and  shall  excuse  them  from  road 

special  work-  J-       «/  ■•■  <->    ' 

dmjtei  ^  '^^'  ^^*^  ^^  equal  number  of  days  out  of  the  whole  number  all  hands 
are  required  to  work  during  the  year. 

§  658.  Every  individual   liable  to  road   duty  who,  being  duly 
Defaulters  summoucd  to  work,  shall   neglect   to  obey  such  summons,  and  to 

to   be    lined  7  n  J  ^ 

SVoTm^e  c^^^y  ^^^®  implements  as  ordered,  or,  appearing  with  or  without  the 

than  $3.       implements,  neglects  or  refuses  faithfully  to  work,  [shall  be  fined] 

(a)  not  less  than  one  nor  more  than  three  dollars  for  every  day  he 

or  they  fail  to  work,  [or  be  imprisoned  at  the  discretion  of  the 

Commissioners.]  (a) 

§  659.  If  any  other   instrument  than  ordinary  farming  tools 

ExtraoHi-  arc  ncccssary  to  keep  the  road  in  repair,  the  overseer  may  receive 

ments— how  them  iu  exchange  for  the  labor   of  hands,  or  may  apply  to  the 

obtained  ,  n      ^        V    c      •         r^  ^  ^         •         ^   - 

Justices  01  the  interior  Court,  who  may  authorize  him  to  contract 
for  such  as  may  be  necessary,  and  pay  for  the  same  out  of  the 
County  Treasury. 

§  660.  When  a  person  liable  to  road  duty  makes  an  application 
Pubiicroads  to  the   Road  Commissioners  for  a  proportion  of  road  for  himself 

mav   be   ap- 
pointed   to  and  hands  to  work  on  and  keep  in  repair,  they  shall  parcel  oif 

to  each  applicant  some  equal  and  just  portion  of  said  road,  to  be 

increased  or  diminished  according  to  the  number  of  hands,  and  to 

be  judged  of  by  the  Commissioners. 

§  661.  Persons  to  whom  portions  of  roads  are  thus  apportioned 

Dutyofper-  must    make    annual   returns  to  their   respective   Commissioners, 

sons    taking  .  n      ^      ' 

a  portion  of  whenever  they  require  them,  ot  the   number  and  names  ot  their 

the  road    to  »/         .  i  . 

^^^^'  hands  liable  to  road  work,  and  after  they  have  received   and  put 

in  good  repair  their  respective  portions,  such  hands  shall  not  be 

transferred  to  any  other  part  of  the  road,  or  compelled  to  do  any 

other  road  work,  so  long  as  they  perform  their  work  satisfactorily 

to  the  Commissioners. 

Persons  re-      §  ^62.  If  the  applicants  do  not  accept  the  portion  of  road  as- 

cep°^a^''por'-  slgucd  thcm  by  the  Commissioners,  they  must  still  work  in  com- 

roads?  ^^^  mou  with  the  other  hands  of  their  road  districts. 

(a)  Acts  of  1865-6,  p.  23. 


PT.  1.— TIT.  6.— CHAP.  5.— County  Organization.         137 

Article  1. — Public  Roads. 

§  663.  If,  after  having  accepted  such  portions,  they  neglect  to    Penaityfor 
keep  them  in  good  repair,  they  are  liable  to  all  the  penalties  and  keep/'  such 
forfeitures  to  which  Commissioners  are  liable  for  neglect  of  duty, 
besides'the  usual  road  fines  on  the  hands. 

§  664.  If  such  Commissioners  assign  any  person  a  portion  of    complaint 

,  ag-ainst  com- 

road  thus  to  work,  which,  taking  into  consideration  his  number  of  missioners. 
hands  as  compared  to  the  number  liable  to  do  road  duty  on  such 
road,  is  not  an  equal  shar'e  of  the  labor,  any  white  male  road 
worker  of  the  same  road  and  district  may  complain  to  the  Jus- 
tices of  the  Inferior  Court  at  any  time,  and  on  giving  such  per- 
son three  days'  notice  thereof  in  writing,  such  Justices  may  sum-  Three 
marily  hear  all  the  evidence,  and  if  they  believe  the  complaint  is 
just,  they  shall  revoke  such  grant  by  the  Commissioners,  and  so 
have  them  instantly  informed  by  their  Clerk. 

§  665.  All  defaulters  must  file  their  excuses,  if  any,  on  oath  be-    Defaulters 

'  •'  '  may  file  ex- 

fore  the  Commissioners,  who  must  meet  at  some  place  within  the  ^^^^ 
district  for  fininsr  defaulters,  of  which  place  of  meeting  they  shall 

,  .  .  .   .  1  Commis- 

sive ten  days'  notice,  in  writino^,  at  one  or  more  of  the  most  pub-  sionersmust 

i=>  J  ^     7  ^  &'  ^  ■'^giveteii 

lie  places  in  the  district,  and  no  other  notice  shall  be  necessary,  days' notice, 
§  666.   Such  Commissioners  must  issue  executions  under  their   Executions 
hands  and  seals  [or  their  warrants  of  arrest,  as  the  case  may  be,]  fauiters. 
(a)  against  each  defaulter  who  fails  to  render  a  good  excuse,  di- 
rected to   any  lawful  Constable,  who  shall  levy  and   collect  the 
same  as  executions  issued  from  the  Justices'  Courts  [or,  as  the 
case  may  be,  arrest  the  defaulter  and  bring  him  before  the  Com- 
missioners to  abide  the  judgment  of  the  same.]  (b) 

§  667.  When  such  fi.  fas.  or  warrants  are  collected  within  ten       Fines— 

1  1  /.  1  1  •  1  PI       ^^^^  dispos- 

days  thereafter,  the  amounts  must   be  paid  to   any  one   oi  tneedof. 
Commissioners,  one-half  of  which  shall  be  paid  to  the   overseer 
having  had  charge  of  the  hands  fined ;  the  other  half  to  the  County 
Treasurer,  to  be  used  in  the  building  or  repairing  of  bridges. 

§  668.  If  Constables  nesrlect  their  duty  in  collectina:  such    fl.    constables 

^  ^   .,  ,  r        o  11  mayberuled 

fas.,  or  fail  to  pay  over  the  money,  [or  fail  to  make  such  arrests 
and  bring  the  parties  arrested  before  the  Commissioners,  they 
shall  be  subject  to  rule  and  suit  at  the  instance  of  such  Commis- 
sioners, as  though  the^.  fas.  or  warrants  had  issued  from  a  Jus- 
tice's Court.  In  all  cases  where  executions  may  be  issued  against 
road  hands  in  the  employment  of  others,  notice  to  the  employer 

(a)  Acts  of  1865-6,  p.  33.    (b)  Acts  of  1865-6,  p.  2d.  . 


138         PT.  1.— TIT.  6.— CHAP.  5.— County  Organization. 

Article  1. — Public  Roads. 

of  the  existence  of  such  execution  shall  have  the  force  and  effect 
of  a  garnishment,  and  shall  operate  as  a  lien  on  what  is  due  or 
to  become  due  from  such  employer  to  such  employee,  and  may  be 
collected  as  in  cases  of  garnishment.]  (a) 

§  669.  The  liens  of  such  judgments  are  the  same  as  any  other 
Lien  of  judgment,  and  claim  according  to  their  priority  in  the  distribu- 

commission-     .  p  ,  .  i  n  i 

ers'     judg-  tiou  01  moucy,  oxcopt  that  no  property  is  exempt  thereirom,  and 
if  illegalities  or  claims  are  interposed,  they  must  be  returned  as 
orciaim!^^^^  though  issued  from  a  Justice's  Court  in  which  the  road  district  is 
situated  in  whole  or  in  part. 

§  670.  Overseers  are  authorized  to  make  use  of  any  timbers  for 
Timbers  tho  usc   of  the  roads,  and  may  make   contracts  with  owners  of 

may  be  used  ^  \  *^ 

land  for  other  timber,  if  indispensable,  and  if  they  disagree  as  to 

the  value,  the  overseer  shall  appoint  one  arbitrator  and  the  owner 

another,  who,  without  further  formality,   shall  assess   the  value, 

Timber  for  and  if  they  disagree,  to  call  in  an  umpire,  whose  decision  is  final. 

sestobepSid  The  Valuation  so  awarded  must  then  be  reduced  to  writing  and 

tain  cases,     signed  by  the  arbitrators,  and  upon  the  production  of  the  same, 

with  a  certificate  of  the  overseer  that  he  used  the  timber  assessed, 

must  be  allowed  by  the  Justices  of  the  Inferior  Court  and  paid 

out  of  the  County  Treasury. 

§  671.  They  shall  measure  all  that  part  of  the  road  to  which 
Roads  to  they  may  be  appointed,  besrinnino:  at  the  Court  House,  and  at  the 

be  measured  *^  "^  ^ /^  ^        o  r>  7  ^ 

end  of  each  mile  set  up  a  post  or  mark  on  some  conspicuous 
place,  which  shall  designate  the  number  of  miles  from  thence  to 
said  Court  House ;  and  the  overseer  in  the  next  adjoining  dis- 
trict shall  likewise  begin  to  measure  and  mark  at  the  last  mile 
Mile  posts  post  in  the  district  thus  measured ;  but  when  such  district  shall 
end  at  some  County  line,  he  shall,  by  some  post  or  mark,  desig- 
nate the  distance  from  such  County  line  to  their  respective  Court 
Houses. 

§  672.  They  shall,  at  the  fork  of  each  public  road,  place,  in 
Sign-boards  some  Substantial  and  conspicuous  manner,  a  board  or  other  mark, 
designating  thereon  the  most  public  place  to  which  each  road  di- 
rects;  and  if  any  road  is  altered  so  as  to  make  the  fork  at  some 
other  place,  or  as  not  to  make  necessary  such  sign-boards,  they 
shall  be  removed  and  replaced,  or  either,  if  necessary. 

§  673.  If  any  overseer  fails  to  comply  with  the  provisions  of 

^  (a)  Acts  of  1865-6,  p.  23. 


PT.  1.— TIT.  6.— CHAP.  5.— County  Oeganization.         1S9 

Article  1. — Public  Roads. 

the  two  immediately  preceding  Sections,  he  forfeits  not  exceeding  fam?gtop5 
fifty  dollars,  to  be  imposed  and  collected  as  other  fines  against  him.  bJaf^s!^^^*^ 
§  674.  If  any  overseer  omits  to  do' his  duty  with  respect  to  the  fam^rto  d^o 
roads,  bridges,  and  causeways  under  his  charge  for  as  much  as^^^'^^^y- 
thirty  days  from  the  time  the  necessity  for  any  immediate  work 
occurs,  unless  hindered  by  extreme  bad  weather  or  other  provi-    Maybein- 

,    ^  "^      ^  ,  ■■•  dieted. 

dential  cause,  he  shall  be  indicted  for  a  misdemeanor,  and,  on  con- 
viction, shall  be  fined  or  imprisoned,  at  the  discretion  of  the  Court, 

i-iTTir»  Til  1  •         n  ••  t        Li'ible  for 

and  is  also  liable  for  all  damages  at  the  suit  oi  any  person  injured  damages. 
by  such  omission. 

S  675.  Hands  liable  to  road  work  employed  as  laborers  on  the  ^    Railroad 

^  i       ./  hands       ex- 

line  of  any  railroad  of  this  State  belonging  to  an  incorporated  f^Plg?? ^£  ■  / 
company,  or  by  any  contractors  constructing  railroads,  are  6x- ^^•;v***;*''«^ 
empted  from  work  on  the  public  roads,  provided  the  public  road  t.*.^^^^  ' 
overseer  having  charge  of  them  respectively  is  paid  [two  dollars  /^-^^^f^ 
and  fifty  cents]  (a)  per  day  for  each  hand  so  liable,  which  money 
shall  be  expended  in  hiring  hands  to  work  on  the  roads. 

§676.  When  any  person  shall  feel  aggrieved  by  any  road  pro-    Landiioid- 

,       '^    ^  ,  ./  ./  ^  ^        ers  aggriev- 

posed  to  be  laid  out  through  any  of  his  land,  unless  otherwise  ed— Ww  re- 

^  o  »/  7  dressed. 

provided  in  the  charter  thereof,  or  some  special  law,  he  may 
petition  in  writing  the  Justices  of  the  Inferior  Court,  either  of 
whom  shall  direct  their  Clerk  to  issue  a  warrant  under  his  hand, 
directed  to  the  Sheriff  of  the  County,  to  summon  from  the  vicin- 
age a  jury  of  freeholders  to  try  such  question  of  damage,  who  shall  ,  Trial  by 
be  sworn  by  some  Justice  of  the  Peace  to  truly  and  impartially 
assess  any  damage  the  owner  will  sustain  by  means  of  such  new 
or  altered  road,  and  said  Justice  shall  preside  over  their  delibera- 
tions- 

§  677.  No  person  is  competent  as  a  iuror  who  claims  any  damage      incompe- 

^  ^  ''  .      .  tency  of  ju- 

of  the  County  or  person  for  the  same  or  any  similar  road,  or  who  ^^^^ 
would  be  disqualified  if  the  trial  was  before  the  Superior  Court. 

§  678.  The    iury  shall  inspect  the  road  and  land  in   person,  Triai-bow 

*^  ,  .  ,  r  7  conducted. 

unless  already  familiar  with  them,  and  swear  any  witnesses  that 
the  owner  or  any  person  on  the  part  of  the  County  may  ofi'er,  as 
to  their  opinion  of  the  damages  sustained. 

§  679.  The  Sherifi*  shall  notify  the  Justice  of  the  Peace  and       Jnstices 

•^  andKoad 

the  Road  Commissioners  of  the  district  where  the  road  lies,  and^'^™™^^- 

"  sioners  to  be- 

the  owner  of  the  land,  the  day  and  place  of  trial,  and  shall  notify  ^"^i^^^^^ 

(a)  [Acts  of  1863-4,  p.  47.] 


140         PT.  1.— TIT.  6.— CHAP.  5.--County  Organization. 

Article  1. — Public  Roads. 


er^'TndTS'-  ^^  attend  then  and  there,  as  witnesses,  any  persons  he  may  be 
notified!^  ^^  requested  to  by  such  Commissioners,  or  the  owner. 

§  680.  He  shall  fix  the  time  and  place,  the  time  not  less  than 
sheriflffive  nor  more  than  twenty  days,  and  the  place  as  near  the  land  as 

shall  fix  time     ,  ■  i  i        .        -, 

and  place  of  the  propor  house-room  can  be  obtained. 

meeting.  o  na-i        \  i  •    i  •        • 

§  Dol.  At  the  trial  any  person  m  interest  may  object  to  the 
Objections  impanncling  of  any  juror  for  cause,  and  if  from  this  or  any  other 

to  jurors.  .  .  i     i  i  -i 

cause  there  are  not  twelve  jurors    impanneled   and    sworn,   the 
Sheriff  must  proceed  to  procure  tales  jurors. 

§  682.  The  trial  may  be  postponed  or  continued  from   day  to 

be  postpon-  day  Until  completed,  and  if  the  Justice  of  the  Peace  summoned  to 

Justice  attend  should  fail  to  preside,  the  Sheriff  must  supply  the  vacancy, 

failing  to  at-  .  p  p  .^  t    ,    •    , 

tend.  II  necessary,  irom  some  other  district. 

§  683.  If  a  mistrial  occurs  the  Sheriff   shall  proceed  de  novo 
Mistrial,    to  summou  Other  jurors,  and  all  the  proceedings  shall  be  as  at 
first,  and  so  on  until  there  is  a  verdict. 

§  684.  The  judgment  in  such  cases  may  be  certioraried  by  the 
Certiorari.  County  or  the  owucr  of  the  land,  as  in  certiorari  from  forcible 
entry  and  detainer  trials,  and  if  a  new  trial  is  ordered,  they  shall 
proceed  to  procure  a  trial  as  previously. 

§  685.  When  such  judgment  becomes  final,  all  the  papers  apper- 
Finaijudg-  tainiiis:  thereto  must  be  filed  in  the  Clerk's  ofiice  of  the  Inferior 

ment.  '-> 

Court;  the  Justices  thereof  must  grant  an  order  for  the  damages  as- 
howpafcL  sessed  in  favor  of  the  land  owner,  but  if  such  Justices  are  satisfied 
that  such  damages  transcend  the  utility  of  such  road,  or  that  part  of 
it,  they  may  revoke  the  road  altogether,  or  order  the  same  altered 
so  as  to  avoid  the  land  so  damaged,  or  make  the  owner  an  offer 
of  such  compensation  as  they  may  think  just. 

§  686.  In  estimating  the  value  of  land  when  taken  for  public 
Value  of  uses  it  is  not  restricted  to  its  agricultural  or  productive  qualities, 

land — how,  .  .  ,  ,  n         t  i       •    • 

estimated,    but  inquiry  may  be  made  as  to  ail  other  legitimate   purposes  to 
which  the  property  could  be  appropriated. 

§  687.  Prospective  and  consequential  damages  resulting  there- 
coEsequen-  from  may  be  also  taken  into  consideration,  if  the  same  are  plain 
and  appreciable,  and  on  the  other  hand  the  increase  of  the  value 
of  the  land  from^  the  proposed  public  improvement  may  be  con- 
sidered, but  in  no  case  shall  the  owner  be  deprived  of  the  actual 
damages  by  such  estimated  increase. 
Overseer       §  ^88.  If  any  ovorsccr,  within  twelve  months  after  his  appoint- 
dJtyt'2'ta^  ment  neglects  faithfully  to  discharge  the  duties  required  of  him, 


PT.  1.— TIT.  6.— CHAP.  5.— County  OuaANizATiON. 


141 


Article  1. — Public  Roads. 


Finos  not 
less  than 
$25  nor 
more  than 
$1000. 


he  is  subject  to  a  fine  not  exceeding  fifty  dollars  by  the  Commis-     Fine  im- 
sioners  under  whom  he  serves,  who  shall  notify  him  of  his  neglect,  cSlectcd. 
and  unless  a  good  excuse  is  rendered  to  them  within  twenty  days 
from  the  time  of  such  notice  they  shall  issue  execution  for  the 
fine  assessed. 

§689.  If  any  person  shall   alter  any  public  road  or  cut  any    Aitemsror 

,.-,  •  1  .  n  t      '  ^  obstructing 

ditch  across,  or  alter  the  location  of  any  bridge,  or  make  any  puWicroad. 
new  bridge  necessary  by  his  act,  without  first  obtaining  an  order 
therefor,  he  is  guilty  of  a  misdemeanor,  and  on  conviction  thereof 
shall  be  fined  not  less  than  twenty-five  nor  more  than  one  thousand 
dollars,  and  shall  be  liable  besides,  by  suit,  for  all  damages  any 
person  may  sustain  thereby. 

§  690.  When  any  person  shall  make  any  fence  or  cut  any  tree,      obstmc- 
or  make  other  like   obstructions  m  or   across  any  public  road,  fence  or  tree, 

•^     ^       ,  '  if     not     re- 

w^hich  is  not  removed  in  two  days  and  a  safe  and  convenient  way,  moved. 
at  the  time  of  the  obstruction,  made  for  travelers,  he  shall  pay  a 
fine  of  twenty  dollars  for  each  obstruction,  to  be  recovered  by 
execution  issued  by  the  Commissioners,  as  in  cases  of  road  fines,  ^^^^^ 
and  shall  be  liable  for  any  damages  caused  by  the  obstruction, 
from  the  first  to  the  last,  if  the  person  injured  used  ordinary 
caution. 

§  691.  And  when  the  main  streets  of  an  incoroporated  town  or  ,  streets  in 

^  ^  towns  or  ci- 

city  continue  in  a  state  of  neglect  for  three  months,  the  Justices  ^(f^fo^jffJfiJe 
of  the  Peace  therein  are,  by  virtue  of  their  office.  Road  Commis-  ^^^^^^^  ^tc. 

.  •1111  Justices  to 

sioners,   and  shall  appoint   overseers,   apportion  the   hands   that  act  as  Eoad 
would  be  liable  to  road  duty  throughout  the  town,  have  the  streets  sioners. 
worked  on,  as  though  they  were  public  roads,  and  must,  in  every 
other  respect,  perform  the  duties  of  Road  Commissioners,  and  for    Maybe 
neglect  of  any  other  duty,  or  violation  of  any  of  the  road  laws,  neglect 
are  liable  to  fine  as  such  Commissioners. 


Fine  $20 
for  each  of- 


ARTICLE  II. 

COMMISSIONEES    OF    PUBLIC    ROADS. 


Section. 

692.  Three  for  each  district. 

693.  How  appointed. 

694.  Compelled  to  serve  unless  excused. 

695.  Must  be  notified  within  ten  days. 

696.  Clerk  failing  to  give  sucli  notice. 

697.  Exempt  from  patrol  and  militia  duty 

698.  Duty  of  Commissioners  generally. 

699.  Persons  exempt  from  road  duty. 


Section. 

700.  Pay  of  overseers. 

701.  Proceedings  against  for  neglect. 

702.  Failing  to  appear  when  cited. 

703.  Executions  against  Commissioners. 

704.  A  public  road  being  a  district  line. 

705.  Necessary  books  shall  be  furnished. 

706.  Certificate  of  discharge. 


142         PT.  1.— TIT.  6.— CHAP.  5.— County  Organization. 

Article  2. — Commissioners  of  Public  Roads. 

§  692,  There  shall  be  three  Commissioners  for  each  road  district, 
Three  Com-  any  two  of  whom  may  act,  and  in  case  there  is  only  one  in  a  dis- 
for  each  dis- tpict,  that  onc  is  invested  with  all  the  powers  of  the  three  until 

■tnct  —  two"  r      ' 

may  act.      ^q  vacancics  are  filled. 

§  693.  Such  Commissioners  are  appointed  or  re-appointed  by 

Commis-  the  Justiccs  of  the  Inferior  Court,  biennially  at  their  first  meet- 
's loners—  ^  "^  • 
how  appoin-  jng  of  the  ycars  of  the  appointments,  and,  whenever  necessary, 

to  fill  vacancies  at  any  time. 

§  694.  Those   thus   appointed   are  compelled   to  serve,  unless 

Compelled  cxcuscd  by  such  Justiccs,  who  shall  receive  for  such  ^xcuse  provi- 

to  serve.  j       ,  •    i  i 

dential  cause  onlj^. 

§  695.  As  soon  as  appointed,  they  shall  be  notified  thereof  in 
Must  be  writins;  within  ten  days  thereafter  by  the  Clerk  of  the  Inferior 

notified  in  i   •  p  i  •  i  •  ^  -  i 

writing  Court,  and  it  such  appointees  do  not,  withm  ten  days  alter  receiv- 

within  ten  '  .  ■'•-'•.  ... 

^ays.         ing  such  notice,  file  their  excuse  in  writing,  under  oath,  in  such 
Clerk's  office,  they  shall  be  considered  as  having  accepted. 

§  696.  If  a  Clerk  fails  to  give  such  notice,  he  is  guilty  of  a  con- 
faiiki^  tono^  tcmpt,  aiid  shall  be  by  such  Justices  fined  twenty  dollars  for  each 

tify       Com-  f^f^aXt^o'c 
missioners.     iitJgiUOl. 

Road  Com-      §  ^^"^ '  ^uch  Ccmmissioncrs,  while  in  office,  are  exempt  from  all 
Sempt,^e[c!  J^^T?  P^^rol,  militia,  and  other  road  duty. 

§  698.  It  is  their  duty — 
ione??Sl!st      "'■•   "^^  appoint,  within  fifteen  days,  one  or  more  persons  in  their 
^^PJiVi*  ^^"  respective  districts  as  overseers  of  the  road. 

2.  To  apportion  the  roads  and  hands  under  their  charge  a-t  the 
Apportion  Same  time  as  equally  and  fairly  as  possible,  and  to  furnish  the 
several  overseers  with  a  list  of  the  roads  and  hands  under  their 
respective  charge. 

E.  To  hear  and  determine  upon  all  cases  of  default  or  other 

Trydefani-  violatiou  of  the  road  laws  within  their  jurisdiction  (if  not  indicta* 

ble  only)  at  a  Court  to  be  held  by  them  twenty  days  after  every 

road  working,  or  as  often  as  emergencies  may  require,  and  to 

issue  executions  or  other  process  against  the  convicted. 

4.  To  keep  a  book  in  which  to  enter — 

'Fir%t.  The  several  hands  in  their  respective  districts  subject  to 
Names  of  road  duty ;   to  what  roads  and  what  parts  thereof  assigned,  and 

road  hands  to         ,  ^  .  ,  •  •       r»  <•  x 

be  register-  uudcr  What  oversccr ;   changing  and  correcting  it  irom  time  to 
time,  as  may  be  necessary. 

Second.  A  list  of  all  defaulters  and  persons  fined,  the  amounts 


PT.  1.— TIT.  6.==^CHAP.  5.~CouNTY  Organization.  143 

Article  3.— Commissioners  of  Public  Roads. 
fined,  amounts  paid,  what  disposition  made  of  the  money,  what    a  list  of 

'  1  1  .  1  defaulters, 

executions  issued  and  unpaid.  etc* 

5.  To  pay  to  the  County  Treasurer,  as  soon  as  collected,  that      Disposi- 
portion  01  the  nne  money  belonging  to  the  County,  to  be  used  m  ney  raised 
the  repairing  or  building  of  public  bridges  and  causeways,  and 
annually,  on  the  first  of  December,  to  report  to  the  Justices  of 

the  Inferior  Court  the  condition  of  the  public  roads  and  bridges  tion  ir^ni'" 
in  their  respective  districts,  the  state  of  the  finances,  what  execu-  bridges,  etc' 
tions  are  outstanding  unpaid,  and  their  condition. 

6.  To  inspect,  from  time  to  time,  the  public  roads,  bridges,  and         Roads, 

,  .        .  .  o      7  biidges,  and 

ferries  within  their  districts,  notice  the  character  of  the  repairs,  ferries  to  be 

^  ^  ■•■  ■'  inspected. 

and  observe  if  such  road  is  regularly  posted  and  direction  boards 
put  up  as  required  by  law,  and  if  said  bridges  and  ferries  are  in 
proper  repair. 

7.  To  exercise  a  general  supervision  over  their  respective  over-      commis' 

1  f*  -,  (,  1  r»   1  1  1  sioners'  gen* 

seers,  and  to  nne  them  tor  neglect  ot  duty,  and  to  see  that  persons  erai  duty. 
are  indicted  for  the  offenses  set  forth  in  the  road  laws. 

8.  To  administer  all  oaths,  relative  to  the  road  laws,  connected 
with  their  duties. 

§  699.  In  makina;  up  the  list  of  road  workers,  they  must  not     Ministers, 

.       1      T        1        r.  n        •  1  •       •  P  T  teachers  and 

include  the  following  description  of  persons,  w^ho  are  exempt  from  others    ex^ 

^  ■••,_■*■  ■'■  empt     from 

such  duty — viz  :  Licensed  ministers,  teachers  and  students  of  col-  ^^ad  duty. 
leges  and  schools,  keepers  of  public  grist  mills,  public  ferrymen, 
keepers  of  toll  bridges,  turnpikes,  causeways,  and  plank  roads, 
engineers  and  white  persons  in  charge  of  cars  or  trains  running 
on  railroads,  officers  of  the  United  States,  this  State,  or  any 
County  thereof,  and  all  others  exempted  by  any  special  law. 

§  700.  They  are  authorized  to  pay  overseers  one-half  of  the  overseer  of 

•^  ^  .  .  roads     paid 

fine  money  as  compensation  to  him  as  informer.  as  informer. 

§  701.  [Whenever  the  G-rand  Jury  in  any  County  in  this  State      Proceed- 

in  -r»i/-i  ••  o  1  r>  1  ^°?s  against 

shall  present  any  Koad  (jommissioners  tor  neglect  of  duty  generally,  commission- 
or  in  any  particular,  it  shall  thereupon  be  the  duty  of  the  Clerk  lectofduty. 
of  the  Court  to  issue  a  summons  in  writing,  directed  to  such  Com- 
missioners, commanding  them  to  be  and  appear  at  the  next  term 
of  the  Superior  Court  in  which  the  presentment  is  made,  to  answer 
the  accusation  of  the  Grand  Jury,  which  said  summons  shall  be 
served  by  the  Sheriff  upon  the  Commissioners  at  least  twenty  days 
before  the  Court  to  which  the  same  is  returnable ;  and  if,  upon  the 
investigation  of  the  case,  it  shall  appear  that  the  accusation  is 
made  out  by  the  proof,  the  Judge  shall  thereupon  impose  upon 


4r 


lU 


PT.  1.— TIT.  6.— CHAP.  5.— County  Organization. 


Article  2. — Commissioners  of  Public  Roads. 


such  Commissioners  a  fine  of  not  less  than  fifty  dollars  nor  more 
than  t^'O  hundred  dollars.]  (a) 

§  702.  If  they  have  been  duly  cited  and  served,  and  fail  to 
appear,  the  Court  may  proceed  ex  parte. 

§  703.  The  Clerk  of  the  Court  is  directed  to  issue  executions 
against  them  for  the  fine  and  costs,  which  shall  be  executed  by 
the  Sheriif.  The  lien  of  such  executions,  and  the  property  subject 
thereto,  are  the  same  as  those  against  defaulting  road  workers. 

§  704.  When  any  public  road  may  be  on  a  road  district  line, 
and  the  Justices  of  the  Inferior  Court  have  not  specially  assigned 
it  to  any  particular  district  or  set  of  Commissioners,  the  Commis- 
sioners of  each  district  shall  co-operate  in  arranging  the  hands 
and  appointing  the  overseers  for  such  road. 

§  705.  The  books  such  Commissioners  are  required  to  keep 
must  be  furnished  by  the  Justices  of  the  Inferior  Court  at  the 
expense  of  the  County,  and  out  of  the  road  money,  if  any,  and 
when  full  must  be  deposited  in  the  office  of  the  Clerk  of  the  In- 
ferior Court. 

§  706.  After  the  Commissioner  has  faithfully  served  through 
the  term  of  his  appointment,  he  may  obtain  from  the  Clerk  of  the 
Inferior  Court  a  certificate  of  such  fact. 


FailiDg  to 
appear. 


Execution 
to  issue  by 
the  Clerk  of 
the  Inferior 
Court. 


A  public 
road  being  a 
district  line. 


Books  sball 
be  furnished 
by  Inferior 
Court 

Shall  be 
deposited  in 
Clerk's  of- 
fice. 


Certificate 
of  discharge 
— by  whom 
granted. 


ARTICLE  III. 

BRIDaES,   FERRIES,    TURNPIKES.   AND   CAUSEWAYS. 


Section. 

707.  Public  ferries,  bridges,  etc. 

708.  Regulations  concerning  the  same. 

709.  Erected  for  benefit  of  the  County. 

710.  Power  and  duty  of  Inferior  Court. 

711.  Condition  of  contractors'  bond. 

712.  Bond  must  be  approved. 

713.  Additional  bond  may  be  required. 

714.  Roads,  bridges,  etc. 

715.  Contractor  failing. 

716.  Defendant  resisting  payment. 

717.  Contractors  incompetent  as  jurors. 

718.  Bridges,  etc.,  crossing  County  lines. 

719.  County  refusing  to  contribute. 

720.  Toll  bridges  crossing  County  lines. 

721.  Private  bridges,  etc. 

722.  Distance  in  such  cases. 

723.  Rates  of  toll  to  be  posted  up. 


Section. 

721.  Land  owner  may  erect  a  bridge,  etc. 

725.  Excessive  rates  shall  not  be  charged. 

726.  Rates  to  be  examined  annually. 

727.  Persons  making  excessive  charges. 

728.  Fords,  bridges,  etc. 

729.  Public  bridges,  etc. 

730.  Proprietors  liable  for  neglect. 

731.  County — when  liable  for  damages. 

732.  Persons  detained  at  public  crossings. 

733.  No  toll  after  expiration  of  charter. 
731.  Owner  of  private  ferry,  etc.,  liable. 

735.  Breaking  toll  gate,  etc. 

736.  Right  of  way. 

737.  Grant  to  land — what  passes. 

738.  Grant  for  a  ferry. 

739.  Value  of  land  taken— how. 


(a)  Acts  of  1866,  p.  18. 


PT.  1.— TIT.  6.— CHAP.  5.— County  Organization.  145 


Article  3. — Bridges,  Ferries,  Turnpikes,  and  Causeways. 


§  707.  All  bridges  or  ferries,  turnpikes   or  causeways,  erected     .     puWic 
or  permitted  by  any  act  of  the  General  Assembly,  if  not  other-  r'^s,"  ckuse- 

r  ■J  >/  ^  ^  y  ^  ways,  etc. 

wise  provided,  or  by  order  of  the  Justices  of  the  Inferior  Court, 
for  public  purposes,  are  declared  to  be  public. 
§  708.  They  are  divided — 

1.  Those  established  by  the  County  which  are  free  to  every       Bridges, 

•^  "^  "^    ferries,  etc. 

one. 

2.  Those  established  by  the  County  where  toll  is  charged  gen- 
erally or  specially. 

3.  Those  established  by  individuals  under  the  authority  of  law 
or  by  virtue  of  a  prescriptive  right. 

4.  Those  established  by  individuals  without  such  rights,  who 
accommodate  the  public  or  any  portion  of  them  for  compensation. 

§709.  The  Justices  of  the   Inferior  Court  may  put  a  ferry  or  Justicesin- 

11  1T1  ni'ip  11  n      f^''i<'''   Court 

causeway,  or   both,  or  may  establish  a  toll  bridge  tor  the   benent  may  estab- 

1/^  1      •  1  n  lishforbene- 

of  the  County;  but  when   on   any  such  County  bridge,  ferry,  or  fit  of  county. 
causeway,  toll  is  charged,  the  County  is  liable  as  individuals  own- 
ing them,  and  the  owners  of  lands  must  be  compensated  as  in 
other  cases. 

§710>  The  Justices  of  the  Inferior  Court  of  the  several  Coun-  Powerofin- 

^  .         .  ferior   Court 

ties  have  authority —  over  public 

l)ri(l*^^GS    fcr- 

1.  To  appoint  the  places  for  the  erection  of  public  bridges,  nes,''  cause- 

:  ,  .  ways,  etc. 

County  ferries,  turnpikes,  and  causeways,  and  to  make  suitable 
provision  for  their  erection  and  repairs  by  letting  them  out  to  the 
lowest  bidder,  hiring  hands,  or  in  any  other  way  that  may  be  for 
the  public  good  and  agreeable  to  law. 

2.  To  require  sufficient  bond  and  good  security  for  the  faithful  Undertaker 

^  .  to  give  bond. 

performance  of  all  such  works  and  contracts,  and  to  indemnify 
for  all  damages  occasioned  by  a  failure  so  to  do. 

3.  To  license  any  person  to  establish  such  bridge,  ferry,  turn-    License  to 

•  1  ,  T  ,  1  •    1  1  establish. 

pike,  or  causeway,  not  exceeding  ten  years,  which  may  be  re- 
newed at  the  expiration  thereof. 

4.  To  fix  the  rates  of  toll  for  crossing  any  such  where  the  toll  Eatesoftoii 
can  lawfully  be   charged,   and  regulate  those    previously  estab- 
lished or  that  may  afterwards  be  established,  so  as  to  conform  to 

what  is  both  reasonable  and  usage  on  such  water  courses,  pro- 
vided such  charges  are  not  specially  regulated  by  the  General 
Assembly  in  some  act  of  incorporation  to  the  exclusion  of  such 
Justices. 

5.  To  exercise  a  general  supervision  over  such,  and  see  that 

10 


146         PT.  1.— TIT.  6.— CHAP.  5.~County  Organizatioit. 

Article  3. — Bridges,  Ferries,  Turnpikes,  and  Causeways. 


General  thev  are  kept  in  proper  order  and  properly  attended  to,  and  to 

supervision  ''  „..  ., 

over  public  require  from  tnne  to  time,  as  the  occasion  may  demand,  sufficient 

bridges,  fer-         -"■  -y  •         c  ^  • 

ries,  etc.  bond  and  good  security  from  the  proprietors  thereof,  conditioned 
for  their  keeping  in  repair  a  sufficient  and  safe  bridge,  flat  rope, 
turnpike,  or  causeway,  and  all  other  appointments  necessary  for 
a  good  ferry  and  competent  and  faithful  attendance  by  day  and 
night,  and  to  indemnify  the  public  against  all  damages  by  reason 
of  a  failure  so  to  do. 

§  711.  When  a  public  bridge,  ferry,  turnpike,  or  causeway,  is 
Condition  let  out,  the  coutractor  must,  in  his  bond,  make  a  condition  also  to 

of  the  bond  ,  .      .  t  .      /.  t  t 

of   contrac-  keep  it  m  good  repair  tor  at  least  seven  years,  and  as  many  more 
years  as  the  contract  may  be  for. 

§  712.  All  bonds  taken  from  contractors  or  proprietors  must 
Bond  must  be  approvcd  by  the  Justices  of  the  Inferior  Court,  filed  in  the 
"  office  of  the  Clerk  of  the  Inferior  Court,  and  by  him  recorded  in 
books  kept  for  that  purpose. 

§  713.  If  when  an  additional  bond  is  required,  it  is  not  given 
b  ^1  ma^^be  "^^^^^^  ^^^  days  from  the  time  the  proprietor,  or  his  agent,  is  noti- 
required.      gg(j  by  the  Clerk  of  the  Inferior  Court,  the  license  must  be  re- 
voked, 

§  714.  When  any  such  work  shall  require  repairing,  it  is'  the 
Eoads,  duty  of  any  one  or  more  Road  Commissioners  in  whose  road  dis- 

bridges,  etc ,  ^^  "^  _ 

to  be  kept  in  trict  the  Same  is,  to  ^ive  notice  in  writing  to  the  contractor,  or 

repair.  ^  o  o  7 

one  of  his  sureties,  stating  the  repairs  necessary  to  be  made,  and 
requiring  them  to  be  done  within  a  reasonable  time,  stating  the 
time. 

§  715.  If  such  repairs  are  not  made  within  the  time  required. 

Repairs— 

by  whom  to  they  shall  employ  some  other  person  forthwith  to  make  them,  and 

be  made.  J  if      J  r  i 

upon  report  to  the  Clerk  of  the  Inferior  Court  of  their  cost,  he 

Contractor     ;"    ,,    .  .  .  i    -i  • 

failing,  exe-  shall  issuo  an  exccution  aai-amst  such  contractor  and  his  sureties 

cution    may  ^  _ 

issue  against  for  tlio  exponso  of  such  repairs  and  the  costs. 

§  716.  If  the  defendant  resists  the  payment  of  said  execution 
If  defend-  at  law,  it  must  be  returned  for  trial  by  iury,  if  demanded,  either 

ant      resists  '         ->    r\  o  .., 

payment  of  to  the  Justicos   Court  of  the  district  where  the  defendant  resides 

such   execu- 
tion     how  upon  whose  property  the  levy  is  made,  or  to  the  Superior  Court 

of  the  County,  according  to  the  principal  amount  thereof. 

§  717.    Persons  who  have  undertaken  the  building  or  keeping 

Contrac-  in  repair  any  bridge,  ferry,  turnpike,  or  causeway,  or  are  surety 

"tors  cs-ii  not  _^ 

be    Eoad  for  such  pcrsous,  Can  not  be  Road  Commissioners  of  the  road  dis- 

Commis-  ^  ' 

sioners.       ^rict  which  embracos  such,  and  if,  after  having  been  appointed, 


PT.  l.-~TIT.  6.— CHAP.  5.— County  Organization.  147 


Article  3. — Bridges,  Ferries,  Turnpikes,  and  Causeways. 


they  become  such  contractor  or  surety,  the  Justices  of  the  Infe- 
rior Court  must  declare  a  vacancy  and  appoint  some  other  persons 
in  their  stead. 

§  718.  When  a  bridge  or  ferry  is  necessary  over  any  water       Bridges, 

c)  »/  xi  'J  etc.,  crossing 

course  which  divides  one  County  or  more  Counties  from  each  other,  county  lines 

•^  ''  to    be    kept 

each  County  must  contribute   equally  toward    the  building   and  ^n^^  ^^y^  ^^uch 
keeping  the  same  in  repair,  or  in  such  proportion  as  would  be  just,  J^^°^^^- 
taking  into  consideration  the  taxable  property  of  each,  and  the 
amount  expended  by  each  in  the  construction  of  bridges  and  other 
passways. 

S  719.  If  any  County  refuses  to  undergo  its  fair  proportion  of  ,  Thereme- 

'^  »/  ./  CD  \.       L  ^y  when  one 

such  expenses,  the  other  County  or  Counties  may  construct  the  ^^^^l^y  ^'^^ii- 

y.  '  t/  v'  ses    to    con- 

work,  compel  the  other  to  contribute  by  suit,  and  until  such  con- *"^^^®- 

tribution  takes  place,  may  have  exclusive  control   thereof,  and 

charge  toll  thereon  against  all  the  citizens  of  the  refusing  County. 

§  720.  The  toll  bridges  or  ferries  over  water  courses  makinsi:  Toiibridges, 

^°  ^  ^  etc., crossing 

County  lines,  may  be  licensed  by  either  County,  and  in  such  cases  County  lines 

'J  '  *i  «/  «^  ^  may    be    li- 

the bonds  must  be  approved,  filed,  and  recorded  in  the  County  ^?°^^^^     ^^ 

where  the  license  is  granted. 

§  721.  No  private  ferry  charging  toll  shall  be  established  on    no  private 
any  water  course  within  three  miles  of  where  public  bridges  are  be  estnbu&h- 
previously  erected  and  kept  up,  but  bridges  may  be  erected  at  the  three  miies 
public  expense  at  places  on  the  same  stream,  other  than  those  fcndge. 
where  bridges  are  previously  erected,  if  not  violative  of  any  spe- 
cial provision  of  the  law. 

§  722.  When  exclusive  right  is  granted  to  any  person  to  pre-    Distance— 
vent  others  irom  erecting  bridges  or  terries,  or  the  like,  within  a  ted. 
given  distance  from  the  same,  it  shall  be  computed  by  the  course 
of  the  stream. 

§  723.    Every    proprietor   of  bridges,    ferries,    turnpikes,    and  Eatesoftoii 
causeways,  where  toll  is  allowed  to  be  charged,  must  fix  a  board  up.    ^'^^  ^ 
in  a  conspicuous  place,  as  near  the  same  as  practicable,  with  black 
ground,  on  which  shall  be  the  various  rates  of  toll ;  and  if  such  is 
neglected,  he  shall  be  subject  to  indictment,  and,  on  conviction, 
shall  be  fined  not  less  than  fifty  dollars  for  every  week  he  so  neg-  neliect.^  "^^ 
lects. 

§  724.  Any  person  who  may  be  the  owner  of  any  land  through  Landown- 
"Which  a  stream  may  pass,  on  both  sides  thereoi,  may  establish  any  struct  bridg- 
bridge  or  terry  thereon,  at  his  expense,  and  may  charge  lawful  ws  own  land 
toll  for  crossing,  according  to  the  rates  of  other  bridges  and  fer- 


148  PT.  1.— TIT.  6.— CHAP.  5.-~County  Oeganization.^ 

Article  3.— Bridges,  Ferries,  Turiipil<:es,  and  Causeways. 


ries  on  the  same  stream^  or  if  none  other,  the  customary  rates  over 
such  streams  elsewhere. 

§  725.  If  such  person  shall  demand  excessive  rates,  any  person- 
Excessive  may  complain  to  the  Justices  of  the  Inferior  Court  of  the  County, 

rates     shall  i    •  ^      i  • 

not  be  de-  and  if  the  rates  are  excessive,  they  must  reduce  and  fix  them. 

§  726.  The  Justices  of  the  Inferior  Court  of  each  County  must 
Hates  to  once  each  year  examine  the  rates  charged  in  their  Counties,  and 
annually,      kcop  fixcd  the  ratcs  of  toll  for  the  several  bridges,  ferries,  turn- 
pikes, and  causeways  within  the  limits  of  their  County,  which  have 
the  right  to  charge  them,  and  must  enter  the  same  on  their  minutes, 
§  727.   If  any  person  shall  charge  more  than  the  lawful  rates. 
Persons  or  morc  than  indicated   by  the  board,   he  is  guilty  of  a  misde- 

taaklni?    ex-  .      .        -^  .  ,.  , 

ces  sive  mcanor,  and  on  conviction  must  be  fined  in  the  discretion  of  the 

charges — 

how  punish-  Court,  and  for  the  second  offense,  in  addition  to  the  fine,  he  for- 
feits  his  franchise. 

§  728.  No  person  authorized  to  have  a  bridge  or  feny  on  his 
Fords,  own  land  will  be  permitted  to  stop  up  or  obstruct  any  ford,  bridge,. 

bridges,  etc.,  ^  ,  ^    '         \       -  ^^i.        c  -    ^  ^ 

nottobeob-  or  terry,  and  upon  so  doing  he  is  guilty  ot  a  misdemeanor,  and  on 
conviction  must  be  fined  or  imprisoned,  or  both,  in  the  discretion 
of  the  Court. 

§  729.  After  a  person  has  once  established  such  bridge  or  ferry, 

Bridge?, etc.,  he  shall  iiot  discontinue  the  same  without  first  giving  public  notice 

nottbbedis-  ...  .  i        /",  tt  i 

continued,  thorcof  by  advertisement  posted  on  the  Court  House  door  and  m 
a  public  gazette,  if  there  is  one  published  in  the  County,  for  at 
least  sixty  days. 

§  730.  Any  proprietor  of  any  bridge,  ferry,  turnpike,  or  cause- 
Proprie-  Way,  whether  by  charter  or  prescription,  or  without,  or  whether 

tors      liable  ,  .    ,  p  .  i       i         i  i  ^  i 

for  neglect,  by  right  01  owumg  the  lands  on  the  stream,  are  bound  to  prompt 
and  faithful  attention  to  all  their  duties  as  such ;  and  if  any 
damage  shall  occur  by  reason  of  non-attendance,  neglect,  careless- 
ness, or  bad  conduct,  he  is  bound  for  all  damages,  even  if  over 
and  beyond  the  amount  of  any  bond  that  may  be  given. 

§  731.   The  provisions  of  the  preceding   Section   apply  to  all 
On  failure  coutractors  for  the  establishment  of  such,  when  damages  accrue 

to  take  bond  ,p.,.  ,,.,. 

the   County  from  a  Want  of  good  faith  in  performinp;  their  several  contracts. 

13  liable  for  .  °  ,  r  &  i  i  i        t 

damages,      and  if  uo  bond  or  sufficient  guarantee  has  been  taken  by  the  Jus- 
tices of  the  Inferior  Court,  the  County  is  also  liable  for  the  damages. 
Persons      §  732.  Any  person  unreasonably  detained  at  a  public  ferry,  toll 
detained  at  bridge,  tumpikc,  or  causeway,  may  for  each  detention  recover  of 
i'^gs.^'^  "^^^^^  the  owner  ten  dollars  before  any  Justice  of  the  County^^. 


PT.  1.— TIT.  6.— CHAP.  5.— County  Organization. 


149 


Article  3. — Bridges,  Ferries,  Turnpikes,  and  Causeways. 


§733.  If  any  person  demands  or  receives  toll  for  crossing  any       Persons 

.  '1  n  1  '  n  ^   •      charging  t-o'll 

ferry,  briage,  or  causeway,  or  turnpike,  after  the  revocation  oi  his  after  expir^i- 


license  or  forfeiture  of  his  charter,  or,  having  a  rio-ht  for  a  ferry,  ter,  or  failing 
allows  the  banks  on  either  side  to  be  out  of  repair  for  more  than  ^r^a  boatsin 

•••  order. 

five  days  at  any  one  time,  or  to  provide  good  and  safe  boats  of  a 
size  sufficient  for  the  accommodation  of  the  public,  furnished  with 
competent  and  sufficient  ferrymen  for  the  safe  and  speedy  passage 
of  all  persons,  vehicles,  horses,  and  stock,  or,  in  case  of  a  toll 
bridge  or  causeway,  fails  to  keep  the  same  in  good  repair,  without 
a  reasonable  excuse  for  such  failures,  to  be  determined  by  the 
Court,  he  is  guilty  of  a  misdemeanor,  and  on  conviction  must  be  fined $20.  ^ 
fined  not  less  than  tw^entj  dollars. 

§  734.  If  any  person  who  keeps  a  private  bridge,  ferry,  turn-    owners  of 
pike,  or  causev/ay,  passes  any  person  for  toll,  the  owners  incur  the  nesaiabie. 
same  liability  and  peni?.ities  as  those  permitted  by  law. 

§  735.   If  any  person  break  or  iniure  any  gate  to  a  toll  bridfje,      Breaking 

^    ^  .     .  °    '  or     injuring 

turnpike,  or  causeway,  or  obstruct,  iniure,  or  destroy  such  brids;e  pteoravoid- 

i-         ^  ./'  ...  .      ing  payment 

or  causeway,  pass  round  or  under  the  same  with  intent  to  avoid 
the  payment  of  toll,  such  person  forfeits  to  the  owner  ten  dollars 
for  each  of  such  acts,  and  is  also  liable  for  the  damages. 

§  736.  Damages  for  the  right  of  way  are  to  be  assessed  in  the  Eight  ofway 
manner  prescribed  for  public  roads  and  private  ways. 

§  737.  Grants  to  land  on  water  courses,  with  the  appurtenances,    Grants  to 
convey  no  right  of  public  bridge  or  ferry. 

§  738.  The  grant  of  a  ferry  franchise  conveys  no  right  to  build    Grant  for  a 
a  bridge,  or  the  contrary. 

§  739.  In  determining  the  value  of  land  taken  for  a  bridge,  its       vaiueof 

,     .,  .  ,    .  ,  %  land     taken 

prospective  value  as  a  bridge  site  and  its  present  value  as  a  terry,  for  a  bridge 
r.     ^   .    .  -,        ?      .         •,        1     1    .  -^«^^  ^«i- 

II.  one  is  m  use,  may  be  taken  into  the  calculation.  mated. 


ARTICLE  lY. 


EAILROAD   AND   OTHER  CROSSINGS. 


Sectiox. 

740.  Roads  at  railroad  crossings. 

741.  Extent  of  sucli  crossings. 

742.  Erecting  posts  and  blowing  ^vhistle. 

743.  Neglecting  to  erect  such  posts. 
■744.  Failing  to  blow  the  whistle. 

,745^  Pjoof  ef  damage'— on.Ms  on  Company, 
'74fi.  Suite— when  to  be  brought. 


Section. 

747.  Failing  to  keep  crossings  in  order. 

748.  Must  be  done  by  overseer  of  Roads. 

749.  Executions  against  defaulting  Co. 

750.  Money  raised — to  whom  paid. 

751.  Railroad  company  maj'  defend. 

752.  Planli,  macadamized  and  other  rQadSp 

753.  Public  highways,  bridges,  etc. 


150         PT.  1.— TIT.  6.— CHAP.  5.— County  OEGANizATioi^. 

Article  4. — Kailroad  and  other  Crossings. 

§  740.  All  railroad    companies  shall    keep    in  good  order,  at 
Public  and  their  expense,  the  public  roads  or  private  ways  established  pursu- 

private  Avays  j.  /  j.  i.  ^  i 

tobekeptiip  ant  to  law,  where  crossed  by  their  several  roads,  and  build  suita- 

at    crossings  ^  ^  *'  ' 

of  Railroads.  |)ig  bridges  and  make  proper  excavations  or  embankments,  accord- 
ing to  the  spirit  of  the  road  laws. 

§  741.  Such  crossings  include  the  width  of  land  on  both  sides 
Extent  of  of  the  road  allowed  by  charter  or  appropriated  by  the  Company 

such     cross-  <^  rr       x  ,;  r        j 

in^s-  therefor,  and  for  as  many  feet  beyond,  each  way,  as  is  necessary 

for  a  traveler  to  get  on  and  off  the  crossing  safely  and  conveniently. 

§  742.  There  must  be  fixed  on  the  line  of  said  roads,  and  at  the 

A  post  to  (distance  of  four  hundred  yards  from  the  center  of  each  of  such 

D8  erected.  •^ 

road  crossings,  and  on  each  side  thereof,  a  post,  and  the  engineer 
shall  be  required,  whenever  he  shall  arrive  at  either  ©f  said  posts. 
Blowing  to  blow  thc  whistlc  of  the  locomotive  until  it  arrives  at  the  public 
*  road,  and  to  simultaneously  check,  and  keep  checking,  the  speed 
thereof,  so  as  to  stop  in  time  should  any  person  or  thing  be  cross- 
ing said  track  on  said  road. 

§  743.  Should  any  company  fail  or  neglect  to  put  up  said  posts 
to^rfcfsucf  ^^^  superintendent  thereof  shall  be  guilty  of  a  misdemeanor,  and 
P°^*'  upon  indictment  and  conviction  thereof  in  the  County  where  such 

failure  occurs,  shall  be  subject  to  a  fine  of  not  less  than  five  hun- 
dred dollars  nor  more  than  one  thousand  dollars. 

§  744.  If  any  engineer  neglects  to  blow  said  whistle,  as  required, 
Failing  to  and  to  clicck  the  speed  as  required  in  Section  742,  he  is  guilty  of 

blow      tlie  .-  ,.,.  ,  ...,^ 

whistle.      a  misdemeanor,  and  on  indictment  and  conviction  m  the  bounty 
where  such  failure  occurs,  he  shall  be  punished  by  fine  not  ex- 
ceeding five  hundred  dollars,  and  imprisoned  not  exceeding  ninety 
Fine  and  days,  or  either,  which  the  company  by  whom  he  is  employed  is 
Sent''^^"  bound  to  pay. 

When  an       §  745.  When  such  injury  occurs,  the  onuB  is  upon  the  company 
curs."  to  prove  such  fault  on  the  part  of  the  injured  persons. 

Suits  in       §  746.   Such  suits  may  be  located  in  the  County  where  the  in- 

the  County  ^  t/  ^ 

where  inju-  j^^y  occurs,  and  scrvicc  perfected  as  in  case  for  killino-  stock. 

ry  occurs,       «;       ./  ?  1  o 

§  747,  When  any  road  over  which  a  crossing  is  required  shall 

Railroads  bc  obstructcd,  or  not  in  good  order  at  such  crossing,  a  Road  Com- 

crossings  missioner,  or  an  overseer  of  the  road  district  where  the  crossing 

are  required.  .  -pi  i  f»     i 

IS,  must  notiiy  the  nearest  agent  or  employee  oi  the  company,  m 
writing,  to  remove  such  obstructions,  or  ta  put  such  crossing  in 
proper  order  within  thirty  days  from  the  date  of  such  notice. 
§  748.  If  such  requisition  is  not  complied  with,  it  must  be  done 


PT.  1.— TIT.  6.— CHAP.  5.~C0UNTY  ORaANIZATION. 


151 


Article  4. — Railroad  and  other  Crossings. 


bj  the  overseer  of  the  road,  and  within  five  days  after  he  shall 
have  discharged  such  duty,  he  must  report,  under  oath,  in  writing, 
to  the  Commissioners  of  the  district,  the  amount  and  value  of  the 
services  performed. 

§  749.  The  Commissioners  shall  then  issue  execution,  under  their 
hands  and  seal,  directed  to  any  lawful  officer,  for  the  amount  of 
such  value  and^  the  costs  of  the  proceeding  against  such  default- 
ing railroad  company,  as  in  case  of  other  road  defaulters. 

§  750.  The  amount,  when  collected,  must  be  paid  to  the  persons 
who  performed  the  labor,  pro  rata,  and  according  to  the  labor  per- 
formed by  each,  and  for  other  expenses  of  said  work,  if  any. 

§  751.  The  defendants  may  defend  themselves  from  such^.  fas. 
as  other  defaulting  road-workers  may. 

§  752.  The  provisions  of  this  article  are,  so  far  as  applicable, 
extended  to  any  plank,  macadamized,  turnpike,  or  other  road,  be- 
longing to  private  individuals  or  a  joint  stock  company. 

§  753.  Public  highways,  bridges,  or  ferries,  can  not  be  appro- 
priated to  railroads,  plank  roads,  or  any  other  species  of  road,  un- 
less express  authority  is  granted  by  some  constitutional  provision 
in  their  charters. 


Eequisition 
must  be 
c  o  m  p  1  i  e  d 
with  in  five 
days. 


Execution 
shall  issue. 


Money- 
raised —  how 
disposed  of. 


Defenses — 
how  made. 


Plank  and 
other  roads 
subject  to 
the  same 
provisions. 

Public 
brid  g-es, 

highways, 
etc. 


ARTICLE  V. 


it^  PRIVATE    WAYS. 


Section. 

754.  Private  ways — by  whom  granted. 

755.  Must  be  kept  open. 

756.  How  obtained. 

757.  How  laid  out — notice  of  application. 

758.  Damages — how  assessed. 

759.  Applicant  may  decline  to  open. 

760.  May  be  established  by  agreement. 

761.  Protected  as  public  roads. 

762.  Persons  may  join  in  opening,  etc. 


Sectiox. 

763.  May  apportion  work,  etc. 

764.  Private  way  over  wild  lands. 

765.  Seven  years'  uninterrupted  use. 

766.  Can  not  be  closed  after  one  year. 

767.  Special  damages  in  certain  cases. 

768.  When  there  is  but  one  bluff,  etc. 

769.  Application  for  use  of  landing. 

770.  Damages  omitted  in  the  grant. 

771.  May  be  converted  into  a  public  road. 


§  754.  The  Justices  of  the   Inferior   Court  have  authority  to        Private 

T    .1       T  /.  1  -I     .     ways  —  by 

grant  private  ways  to  individuals  to  go  irom  and  return  to  their  whom  grant- 
farms  or  places  of  residence. 

§  755.  They  must  not  exceed  fifteen  feet  in  width,  and  must     Not  more 
be  kept  open  and  in  repair  by  the  persons  on  whose  application  wide. 
they  are  established,  and  may  be  as  much  less   as  the  applicant 
may  choose. 


152  PT.  1.— TIT.  6.— CHAP.  5.— County  OEOANizATioisr. 

Article  5. — Private  Ways. 

§  756.  Any  person  desiring  such  passway  over  the  land  of  an- 
How  ob-  other,  must  petition  the  Justices  of  the  Inferior  Court,  settinsj  forth 

tained.  /  ^        .       ^  _  ^  '  ° 

particularly  the  distance  and  direction  of  such  road,  over  whose 
land  it  is  to  go,  through  what  improvements,  if  any,  and  their  na- 
ture, and  the  special  purpose  for  which  it  is  desired. 

§  757.  After  all  persons  over  whose  land  said  passway  is  to  be 
Land  own- made  sliall  have  had  twenty  days'  notice,  in  writinsr,  of  such  ap- 

ersmust  .  ,  . 

have  twenty  plicatiou,  and  such  Justices  shall  be  satisfied  such  applicant  is  en- 

daj's' notice.  -"-^  _  \^  ^ 

titled  to  the  same,  they  shall   appoint  five  commissioners,  who 

shall  be  disinterested  persons,  any  three  or  five  of  whom  may  act, 

Private  to  vicw  and  lay  out  such  road,  so  as  to  do  the  least  possible  dam- 
ways —  tiow 
laid  out.       age  and  inconvenience  to  the  land-owners,  who  shall  make  their 

rej)ort  within  thirty  days  from  their  appointment.  They  shall 
make  out  their  report  in  writing,  and  furnish  all  the  parties  in 
interest  with  copies  thereof;  and  if  either  party  is  dissatisfied  with 
such  report,  by  giving  the  other  five  days'  notice  in  writing,  he 
Either  par- may  take  an  appeal  to  the  Justices  of  the  Inferior  Court,  who, 
p^a™^"^  ^^'  after  having  all  the  evidence,  fro  and  co^^,  may  confirm  said  re- 
port or  alter  the  same,  which,  when  done,  shall  be  final. 

§  758.  If  the  person  then,  over  whose  land  the  passway  is,  con- 
Dama<^es—  ceivcs  that  he  will  be  damaged  thereby,  he  may  proceed  to  have 
how  assessed  ^^  damages  assessed  in  the   same  manner  that  damages   are  as- 
sessed in  case  of  public  roads,  and  the  applicant  therefor  stands 
in  the  place  of  the  County  and  Road  Commissioners. 

§  759.  After  the  damages   are  thus   assessed,  the  person  who 
Applicant  has  them  to  pay  may  decline  to  open  the  same,  but  he  is  bound 

may  decline  r,  ■,  f>ni  t  ^       ^  ^  ^ 

to  open  the  tor  the  costs  01  all  the  proceedings,  whether  he  uses  the  passway 

or  not,  for  which  the  Clerk  of  the   Inferior  Court  may  issue  an 

Costs.  ;  .  •  .     -^ 

execution ;  and  in  all  cases  the  damasjes  must  be  paid  before  the 

Damages  ^-^  ■■• 

mil  St       be  ^r^y  |g  opeucd. 
paid.  "^  ^ 

§  760.  Private  ways  may  be  established  by  an   agreement  in 
Maybe  es-  writins;  of  all  parties  concerned,  in  which  may  be  stipulated  any 

lablished  by  °  ^    /  ^  i    /      i        p     i        r^ 

a-reement.  damages,  wliich  must  be  spread  on  the  road  book  of  the  County, 
and  when  so  done,  has  the  same  efi"ect  as  though  established  by 
the  forms  of  law. 

§  761.  When  a  private  way  becomes  established,  it  must  be  en- 
Eeoorded  tcrod  ou   and  fully  described  in  the  road   book,  and  the  owner 
ed  as  public  thereof  is  entitled  to  be  protected  in  the  use  of  the  same  as  a 
public  road. 

§  762.  Several  land  owners  may  join  together  in  opening  a  pri- 


PT.  1.— TIT.  6.— CHAP.  5.— County  Organization.  153 


Article  5. — Private  Ways. 


vate  way,  or  in  keepiD^  it   up  afterwards,  or  both;   and  when  so        several 

•^  ^  A       o  1  7  /       ^    ^  YaDd  holders 

done  and  entered   on  the  road  book,  the  duties  and  privileges  ex-  may  j<nn  in 

'  ^  "-'  openinga 

tend  to  vendees  of  the  same  real  estate.  '^^'-'y- 

§763.  When  several  so  join,  they  may  apportion  the  road  for  Mayappor- 

./ii  ^tiont  he 

work  among  themselves,  or  work  it  under  the  road  laws,  selecting  work. 
one  of  their  number  as  Road  Commissioner,  whose  powers  are 
the  same  touching  such  road  and  the  hands  thereof  as  the  three 
Road  Commissioners  of  the  district. 

§  764.  If  a  private  way  is  established  over  the  wild  lands  of  a      On  wild 

■•■  ,   '^  .  lands. 

person  who  has  no  notice  of  the  proceeding,  as  soon  as  he  does 
have  such  notice,  and  within  six  months  thereafter,  he  may  pro- 
ceed to  have  his  damages  assessed  against  all  persons  who  are 
land  owners  and  are  in  the  habitual  use  of  such  private  way, 
and  not  after. 

§  765.  When  a  person  has  laid  out  a  private  way,  and  has  been  seven  years' 

,  ,  "^  .  .    .    tin  interrupt- 

in  the  use  and  enjoyment  of  it  as  much  as  seven  years,  of  which  ed  use. 

the  owners  have  had  six  months'  knowledge,  without  moving  for 

damages,  his  right  to  use  becomes  complete,  and  such  owners  are 

barred  of  damages. 

§766.  When  a  road  has  been  used  as  a  private  way  for  as    can  not  be 

closGcl    &ft6r 

much  as  one  year,  an  owner  of  land  over  which  it  passes  can  not  one  year 

,  .  PI  without  no- 

close   it  up  without   first   giving   the   common   users  of  the  way  tice. 

thirty  days'  notice  in  writing,  that  they  may  take  steps  to  have  it 

made  permanent. 

§  767.  When  a  private-way  is  established  over  the  land  of  an-  spedaUvays 
other  for  the  purpose  of  hauling  wood  or  timber,  or  other   com- 
modity, to  any  place  of  landing  whereat  the   business  of  rafting 
or  shipping  is  carried  on,  or  to  any  railroad   depot,  it   shall  not    Extent  of. 
extend  to   the  use   of  any  landing  erected  by  a  person   for  his 
own  benefit. 

§768.  If,  however,  there  should  be  but  one  bluff  or  place  of  if  there  is 
landing,  the  owner  can  not  appropriate  such  to  himself  exclu- 
sively, if  he  will  not  be  damaged  by  the  admission  of  others  to  its 
use,,  or,  if  damaged,  he  is  properly  compensated  therefor;  but  no 
person  shall  be  entitled  to  use  the  wood-slide  or  other  improve- 
ment erected  for  one's  own  use,  nor  timber  landing,  while  he  is 
using  it. 

§  769.  When  the  applicant  for  a  private  way  desires  also  to  use       The  use 
another's  landing,  he  must  so  state  in  his  petition,  that  proper  finmng^^^^V 
damages  may  be  assessed  therefor. 


154  PT.  1.— TIT.  6.— CHAP.  5.— County  Organization. 

Article  6. — Mining. 

§  770.  If  a  private  way  is  established  and  there  is  an  omission 
Omission  to  to  have  considered  the  damages  for  using  such,  it  maybe  done 

assess  dama-  ■  ^  o  y  j 

s^^-  afterwards  if  within  a  reasonable  time. 

§  771.  When  a  private  way  is  once  established,  it  is  in  the 

vSd  inTo^'a  P^^^®^  ^^  *^®  Justices  of  the  Inferior  Court  to  declare  it  a  public 

public  road,  road,  provided  it  is  of  sufficient  length   and  importance,  and  the 

number  of  persons  who  habitually  use  it  can  and  will  do  as  much 

work  thereon  as  is   their  proper  share,  in  w^orking  the  same  alone 

or  in  connection  with  adjacent  public  roads. 


ARTICLE  VI. 

MINING. 

Section.  [  Section. 

772.  Eight  of  way  for  miners.  774.  Diversion  of  water  courses. 

773.  Return,  of  award.  |        775.  Rendition  of  award. 

§  772.  [In  all  cases  where  any  partnership,  corporation,  or  indi- 
Eisht  of  vidual,   may  be  hereafter    actually  engaged  in   the    business    of 

way  to  mln-        ...  i  n  i  n   i  i  • 

iiig  compa-  mining  iron,  copper,  gold,  coal,  or  any  other  useiul  metal  or  min- 
eral, or  in  making  copperas,   sulphur,  saltpeter,  alum,  or  other 
similar  articles   of  utility,  and  such  partnership,  corporation,  or 
^  individual,  shall  be  of  the  opinion  that  it  is  necessary  to  the  suc- 

cessful operation  of  their  works  that  they  shall  have  the  right  of 
way  for  either  a  railroad,  turnpike,  or  common  road  of  travel 
across  the  land  of  others,  upon  failure  to  agree  with  the  owner  of 
the  lands  across  which  such  right  of  way  is  desirable,  to  have 
iTecessity  botli  the  nccossity  and  value  of  the  same  settled,  as  follows :  The 
how  settled.  Said  Corporation,  partnership,  or  individual,  shall  select  one  per- 
son, the  owner  of  the  land  another  person,  and  any  one  of  the 
Justices  of  the  Inferior  Court  of  the  County  where  the  land  lies 
shall  be  the  third  man,  who,  together  with  the  two  chosen  as 
above  provided,  shall  summon  the  parties  and  such  witnesses  as 
they  may  deem  necessary  to  appoint,  after  reasonable  notice,  and 
after  fully  hearing  evidence  and  reasons  on  both  sides,  they  shall 
decide  both  as  to  the  necessity  of  the  right  of  way  and  the  value 
of  the  same.]  (a) 

§773.  [They  shall  return  their  award  to  the  next   Superior 
Court  of  the  County  where  the  land  is  situated ;  whereupon,  the 

(a)  Acts  of  1863^,  pp.  171-3. 


PT.  1.— TIT.  6.-— CHAP.  5.— County  Okganization. 


155 


Article  6. 


-Mining. 


Assessment 
of  damaees. 


same  shall  be  made  the  iudgment  of  said  Court,  binding  and  con-     Award  to 

,  .  be    returned 

elusive  upon  both  partie^,  unless  then  and  there  set  aside  for  rea-  to  superior 
son  now  applicable  in  other  cases  of  arbitration.]  (a) 

§  774.  In  all  cases  where  it  may  be  deemed  desirable  and  ne-  May  divert 

■    v_^         ^ .  f.  .  ^  n  water   cour- 

cessarj  to  divert  any  water  course  from  its  usual  channel,  for  any  ses. 
of  the  purposes  specified  in  Section  772,  it  shall  be  lawful  to 
organize  the  board  of  arbitrators,  as  provided  in  said  Section  772, 
whose  duty  in  relation  to  the  same  shall  be  to  decide  both  as  to 
the  necessity  of  diverting  the  water  course,  and  who  are  damaged, 
and  how  much.  It  shall  be  the  duty  of  the  arbitrators  to  sum- 
mon before  them  all  the  parties  interested  in  the  question,  and 
to  return  their  award  to  the  Superior  Court  as  provided  in  Sec- 
tion 773,  subject  to  be  there  set  aside  for  reasons  now  applicable 
in  other  cases  of  arbitration ;  otherwise  to  stand  as  the  judgment 
of  the  Court.]  (a) 

§  775.  [It  shall  be  the  duty  of  the  arbitrators  in  all  cases  aris- 
ing under  the  provisions  of  this  Article  to  make  return  of  their  right  of  ap- 

peal. 

award  on  the  first  day  of  the  Superior  Court  held  thereafter,  in 
the  County  where  the  same  is  awarded;  and  at  such  time  all  and 
any  of  the  parties  affected  thereby  shall  have  the  right  of  appeal 
to  said  Superior  Court,  provided  such  appeal  is  entered  within 
four  days  from  the  time  said  award  is  filed;  the  said  appeal  to  be  Appeal- 
entered  and  disposed  of  under  the  same  rules  and  regulations  ed  of. 
which  now  govern  other  cases  of  appeal.]  (b) 


Eeports  of 


CHAPTER    VI 


THE     COUITTY     POOR. 


Section*. 

776.  Paupers.  , 

Poor  House. 
Pauper  farms. 
Tax  to  buy  farms. 
Regulation  of  farms. 
Workshops,  etc. 
Commissioners  of  the  Poor, 
Receipts,  disbursements,  amounts. 

784.  Applications  by  the  poor,  etc. 

785.  Who  are  considered  paupers. 


777. 
778. 
779. 
780. 
781. 
782. 
783. 


Section. 

786.  Parents  and  children  bound,  etc, 

787.  Certificate  of  the  Clerk. 

788.  Burial  of  paupers. 

789.  Persons  removing  paupers. 

790.  Such  persons  being  insolvent, 

791.  Paupers  left  by  companies,  etc. 

792.  Security  required,  etc. 

793.  Bond  filed  with  Clerk  Inferior  Court. 

794.  Party  failing  to  give  security. 

795.  Pauper  found  to  be  a  lunatic. 


§  776.  The  general  supervision  of  all  paupers  is  vested  in  the    paupers. 
Justices  of  the  Inferior  Court  of  each  County. 


(a)  Acts  of  1863-3,  pp.  171-2.    (b)  Acts  of  1862-3,  pp.  171-2. 


156  PT.  1. — TIT.  6. — County  Organization. 


Chapter  6. — The  County  Poor. 


§  777.  They  have  authority  to  purchase  lands  for  a  Poor  House, 
Poor  Houses  the  title  thereto  vesting  in  the  County,  or  to  rent  improvements 
for  such  purpose^  or  to  board  out  the  poor  and  to  make  ail  neces- 
sary contracts  in  relation  to  them. 

§  778.   [Upon  the  recommendation  of  the  Grand  Juries  of  their 
Pauper  rcspectivo  Counties,  said  Justices  shall  have  power  and  authority 

fcirm  s  • 

to  purchase  a  house  and  farm  in  their  respective  Counties,  upon 
which  farm  they  may  require  all  paupers  in  said  Counties  to  labor 
who  are  not,  from  old  age  and  disease,  unable  to  work.]  (a) 

§  779.  [The  said  Justices  have  authority  to  lay  and  collect  a  tax 
Tax.        fo^  ttie  purpose  of  purchasing  said  house  and  farm.]  (a) 

§  780.  [They  are  also  authorized  to  establish  all  necessary  rules 
Eeguiation  and  regulations  in  the  management  of  said  farms.]  (a) 

§781.   [They  are  farther  authorized  to  establish  any  workshops, 
Workshops,  any  school-houses,  or  churches  on  said  farms,  as  they  may  deem 
proper,  and  may  do  any  and  every  thing  necessary  to  be  done,  in 
carrying  out  the  provisions  of  this  and  the  three  Sections  imme- 
diately preceding  it.]  (a) 

§  782.  They  shall,  if  necessary,  appoint  a  Commissioner  of  the 
Oommis-  Poor,  and  the  money  arising  from  the  poor  tax  shall  be  paid  into 

sionersofthe  t  >      i  t      ■,  -,        r^  n^  ^  ^    •      i  •      n 

Poor.  nis  hands  by  the  County  Treasurer  on  orders  granted  m  his  lavor 

by  such  Justices,  or  in  favor  of  any  other  person. 

§  783.  Whoever  receives  and  disburses  such  fund  must  once  in 
Eeceiver  cvcry  year,   at  the   time  such  Justices  may  order,  or  oftener  if 

and  disbars-     ,  .  ii-  iii  i      n  ^ 

er.  they  require,  make  up  his  accounts  and  lay  the  same  beiore  them, 

who  shall  allow  or  disallow,  and  whenever  there  is  a  deficiency  or 
Ma  berui  li^^^^^^J   ^^'^  the  part  of   such  person  he  may  be  ruled  for  the 
^^-  amount  as  an  ofiicer  of  Court. 

§  784.  Application  to  be  provided  for  as  a  pauper  may  be  made 
Application  at  any  time  to  the  Commissioner  of  the  Poor,  a  Justice  of  the 
t  o  ^wTom  Inferior  Court  or  a  Clerk  of  such  Court,  upon  which  a  hearing 
must  be  had,  with  the  least  possible  delay,  by  the  Justices,  and 
the  person  to  whom  such  application  is  made  is  authorized  to  pro- 
vide for  such  applicant  as  other  County  poor  until  the  hearing  is 
had. 

§  785.  No  person  shall  be  entitled  to  the  benefits  of  the  provi- 

who  are  sion  for  the  poor  who  is  able  to  maintain  himself  or  herself  by 

paupeis.      ;[g^]3Qj.^  qj.  ^f  tqqj^^  j^r^g  snfficient  means,  and  in  cases  where  females 

(a)  Acts  of  1865-6,  p.  230. 


PT.  1 TIT.  6.— County  Orgahizatio^s.  157 

Chapter  G. — The  County  Poor. 

are  unable  to  maintain  themselves  and  the  helpless  children  they 
may  have  also,  they  may  be  aided  to  the  extent  required  in  the 
furnishing  of  food,  clothing,  oj:  shelter. 

§  786.  If  any  such  person  has  father,  mother,  or  child  of  suffi-        Parents 

and  children 

cient  ability,  he  or  she  must  be  supported  by  them,  and  failinfj;  so  i'""»d      to 

"  ^  -^  ^     _  '^  _    ^  °  support  each 

to  do,  any  County  in  the  State,  having  made  provision  for  such  other. 
persons,  may  sue  persons  of  full  age  standing  in  such  relation  to 
them,  and  recover  for  the  time  such  County  has  made  provision 
for  such  person  ;  always  provided,  the  person  sued  was  possessed  of 
such  ability. 

§  787.   On  the  trial  the  certificate  of  the  Clerk  of  the  Inferior    certificate 
Court  that  the  person  was  poor  and  unable  to  sustain  himself,  evidence.^'^ 
and  that  he  was  maintained  for  such  a  time  at  the  expense  of  the 
County,  is  presumptive^evidence  of  such  maintenance  and  the  costs 
thereof. 

§  788.   [Whenever  any  free  w^hite  person  shnll  die  in  this  State,     Paupers— 
whose  family  and  immediate  kindred  are  indigent  and  unable  to 
provide  for  the  decent  interment  of  such   deceased  person,  and 
where  the  deceased  is  a  pauper,  and  destititute  of  the  means  of 
paying  for  a  decent  interment,  the  Justices  of  the  Inferior  Court 
of  the  County  where  said  death  shall  occur  are  authorized,  and  it  is 
hereby  made  their  duty,  in  case  there  be  any  pauper  funds  belong- 
ing to  the  County  unexpended,  to  appropriate  a  sufficient  amount 
thereof  to  provide  a  decent  interment  for  such  deceased  pauper ; 
or  to  reimburse  such  person  as  may  have  expended  the  same  vol- 
untarily;  said  appropriation  not  to  exceed  what  is  necessary  to    Amount  of 
defray  the  ordinary  funeral  expenses  of  persons  dying  in  humble    tSu."^^^^ 
circumstances  in  this  State.]  (a) 

§  789.  When  any  inhabitant  of  any  County,  city,  town,  or  vil-  Persons  re- 

-,  .  n      1       a  1  /-H  •         ^  '     moving  pau- 

lage,  m  or  out  oi  the  otate,  sends  a  pauper  to  some  County  in  this  persperson- 

ci  1  •  1  c  •  t  1         ^^^y  respon- 

btate,  by  paying  the  expense  oi  transportation,  or  otherwise  has  siwe. 
him  removed  for  the  purpose  of  burdening  some  other  community, 
the  person  so  engaged  shall  be  personally  liable  for  the  support  of 
the  pauper  in  the  County  where  he  locates. 

§790.  If  the  person  so  engaged  in  transporting  a  pauper  is  in-  suchperson 
solvent  or  does  not  respond  to  such  demand  from  any  cause,  the  y^Jrft  ^Th^e 
County  from  which  the  transportation  took  place  shall  be  liable.     SaWe!^     ^^ 

§  791.  If  any  person  commanding  any  vessel,  or  the  manager 

(a)  Acts  of  1863-4,  p.  60. 


158  PT.  1.— TIT.  6.— County  Organization. 

Chapter  6. — The  County  Poor. 


Paupersieft  or  proprietor  of  any  theatrical  circus,  or  any  other  migratory 

by   migrato-  ij      '  . 

ty  compa-  compaiiy,  or  tneir  agents,  or  any  person  passing  or  moving 
through  this  State,  shall  bring  and  leave  or  abandon  herein,  any 
infant,  lunatic,  maimed,  deaf  and  dumb,  blind,  aged  or  infirm 
person,  who  is  or  is  likely  to  become  chargeable  to  the  County,  he 
may  be  brought  by  warrant  before  any  judicial  officer. 

§  792.  If  such  officer  is  satisfied  that  such  person  is  or  will  pro- 
May  be  re- |)a]3lj  become  such  charge,  he  must  require  such  person  to  enter 
give  bond,  i^to  bond,  payable  to  the  Governor  of  the  State  and  his  succes- 
sors in  office,  with  sufficient  securities,  resident  in  the  State,  for 
the  sum  of  five  hundred  dollars,  for  each  of  such  persons  so 
brought,  conditioned  to  pay  all  such  expenses,  as  any  County  in 
the  State  may  lawfully  incur  in  their  support. 

§  793.  Said  bond  must  be  filed  in    the   Clerk's   office  of  the 
Sucii  bond  Inferior  Court  of  the  County  where  the  paupers  are  at  the  time 

must  be  filed  ^  ,  "^         _   ^  r       r 

^^    Clerk's  of  its  cxecution.  and  upon  condition  broken  may  be  sued  on  and 

office  of  the  '  '^  ^  "^ 

the  infeiior  pecoveries  had,  until  exhausted  in  different  actions  in  behalf  of 

Court.  ^ 

any  County  or  person  who  may  have  properly  contributed  to  the 
maintenance  of  such  pauper. 

§  794.  On  failure  to  give  such  bond,  such  person  must  be  com- 
Failure  to  mitted  to  iail  until  it  is  done,  or  until  the  next  term  of  the  Supe- 

iErive  bond.  %)  ' 

rior  Court  of  the  County,  when,  if  not  done,  or  he  does  not  take 
May  be  fin-  carc  of  Said  paupcr   and  pay  all  costs,  he  is  guilty  of  a  misde- 
dred  dollars,  mcauor,   and,  on  conviction,  shall  be  fined  five  hundred  dollars? 
and,  in  default  thereof,  shall  be  imprisoned  ninety  days. 

§  795.  When  a  pauper  is  found  to  be  a  lunatic,  idiot,  deaf  and 
Lunatics,  dumb,  or  blind,  they  must  be  dealt  with  according  to  the  laws  re- 
lating to  them.  . 


PT.  1.— TIT.  7.-^CHAP.  1.— Public  Revenue.  159 

Article  1. — Persons  and  Property  Exempt 

TITLE    VII. 

PUBLIC       REVENUE. 


CHAPTER    L 

TAXATION     BY     THE      STATE. 


Article  1. — Persons  and  Property  JSxe7npt. 

Article  2. — Si/stem  of  Taxation — Persons  and  Property  Taxed* 

Article  3. —  Taxes  on  BanJcs,  Railroads,  etc. 

Article  4. — Taxes — liow  Returned  and  Collected, 

Article  5. — Proceedings  against  Delinquent  Tax  Payers, 

Article  6. — Pelinquent  Collectors  and  Receivers,  etc. 

Article  T. —  Tax  Receivers,  ^ 

Article  8. — Tax  Collectors, 

Article  9. — Compensation  of  Collectors  and  Receivers. 

Article  10. — Miscellaneous  Provisions, 


ARTICLE  L 

PERSONS     AND     PROPERTY     EXEMPT. 
Section  796.  Persons  and  property  exempt  from  taxation  enumerated. 

§  796.  The  following  persons  and  property  are  exempt  from      Property 

exempt  from 
taxation  :  taxation. 

1.  All  property  specially  exempted  by  the  Constitution  of  the 
United  States  or  of  this  State. 

2.  All  lands,  mines,  and  minerals  belonging  to  this  State  or 
the  United  States. 

3.  All  buildings  erected  for  and  used  as  a  college,   incorpo- 
ated  academy,  or  other  seminary  of  learning. 

4.  All  buildings  erected  for  and  used  for  public  worship,  or  for 
school  houses,  or  both. 

5.  All  Court  Houses,  Jails,  or  other  County  buildings. 

6.  [All  public  buildings  owned  by  any  incorporated  city  or 
town  in  this  State.]  (a) 

(a)  Acts  of  1862-3,  p.  180. 


160 


PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenuk 


Article  1. — Persons  and  Property  Exempt. 


7.  All  poor  houses,  alms  houses,  houses  of  industry,  and  any 
house  belonging  to  any  charitable  institution. 

8.  The  real  and  personal  estate  of  any  public  library,  and  that 
of  any  other  literary  association. 

9.  The  several  lots  and  buildings  attached  to  the  five  last  men- 
tioned exemptions,  including  all  necessary  furniture  belonging  to 
each. 

10.  All  books  and  philosophical  apparatus,  and  all  paintings  and 
statuary  of  a  company  or  association  kept  in  a  public  hall,  not 
held  as  merchandise  or  for  the  purpose  of  sale. 

11.  All  stocks  owned  by  the  State,  or  by  literary  or  charitable 
institutions,  for  the  legitimate  purpose  of  such. 

12.  All  plantation  and  mechanical  tools,  and  all  household 
and  kitchen  furniture,  not  above  the  value  of  three  hundred  dol- 
lars, not  held  for  sale  or  as  merchandise. 

13.  All  poultry,  and  two  hundred  dollars  in  value  of  other 
property,  besides  the  special  exemptions,  but  which  latter  do  not 
obtain  in  favor  of  non-residents. 

14.  All  annual  crops  and  provisions,  all  fire-arms  and  all  mu- 
nitions, and  all  wearing  apparel  not  held  as  merchandise. 

15.  All  owners  of  stocks  in  any  incorporated  company  liable 
stockhoid-  to  taxation  on  its  capital  for  such  stock  shall  not  be  taxed  as  in- 

e  r  s — \v  hen  •■• 

exempt.       dividuals.     As  to  County  tax,  see  Section  488. 

16.  All  places  and  monuments  of  the  dead  and  implements  of 
burial. 

17.  The  property  of  revolutionary  soldiers  and  their  widows, 
to  the  value  of  one  thousand  dollars. 


ARTICLE  11. 

SYSTEM  OF  TAXATION,  AND  PERSONS  AND  PROPERTY  TAXED. 


Sectiox. 

797.  Taxable  property — what. 

798.  Bonds,  notes,  and  other  obligations. 

799.  Lands  held  by  warrant  or  ungranted. 

800.  Lands,  etc.,  held  by  non-residents. 

801.  Taxable  property — assessments. 

802.  Assessments — when  and  by  whom. 

803.  Amount  of  taxes  to  be  assessed, 

804.  Tax— in  what  funds  to  be  paid. 


Section. 

805.  Default  and  insolvent  list. 

806.  Specific  taxes— items  enumerated. 

807.  Property  specifically  taxed,  etc. 

808.  License  to  exercise  a  privilege. 

809.  Taxes  to  be  paid  before  other  debts^ 

810.  Conveyances  and  judgments,  etc. 

811.  Person  to  whom  conveyance  is  made. 


§797.  All  real  and  personal  estate,   whether  owned  by  indi- 
Taxabie  viduals  or    corporatious,  resident  or  non-resident,   are  liable  to 
taxation,  unless  specially  exempted. 


PT.  1.— TIT.  T.— CHAP.  1.— Public  Revenue.  161 

Article  2. — System  of  Taxation,  and  Persons  and  Property  Taxed. 


§  798.  Bonds,  notes,  or  other  obligations  for  money,  on  persons  Bonds,notes, 

etc.,  of  uon- 

in  other    States,   or  bonds   of   the  United   States,    or  of   other  residents, 

bonds  of oth- 

States,  or  bonds  of  corporations  of  other   States,  and  shipping,  erstates,etc. 
are  the  subjects  of  return  and  taxation  in  this  State.  ^^' 

§  799.  All  lands  held  under  warrants  and  certificates,  but  not    ungranted 
granted,  are  liable  to  taxation,  and  all  monied  or  stock  corpora-  stock  corp°o. 
tions,  unless  exempted  or  differently  provided  for  in  their  charters, 
are  liable  to  taxation  upon  such  capital  stock  as  other  property. 

§  800.  Lands  or  other   property  belonging  to  citizens  of  the     Non-resi- 

.  .,  f     1  •      c\  1  11-1         ^®°*  owners 

United  States,  not  resiaent  oi  this  otate,  can  not  be  taxed  higher  subject     to 

.  °  same  tax  as 

than  the  property  of  residents,  but  all  the  property  of  such  non-  citizens, 
residents,  whether  their  property  be  real  or  personal,  in  this  State, 
tQust  pay  taxes  on  the  same  herein. 

§  801.  All  property,  or  other  thing  of  value  subject  to  taxation.       Taxable 
must  be  given  in  by  the  tax  payers  as  hereinafter  set  forth,  at  its  br^SsJssed 

ft  .  -,  ',  1  ,  T  -,.  .  ,  ad  valorem^ 

lair  market  value,  and  must  be  taxed  according  to  its  value  on  an  and      by 
assessment  to  be  made  by  the  Governor,  which  must  not  exceed 
one-eighth  of  one  per  cent,  per  annum,  without  the  assent  of  the 
General  Assembly.   , 

§  802.  Such  assessment  must  be  made  each  year  as  soon  as  the  Assessment, 

.  -Ill  -If       wben  and  by 

.value  01  the  taxable  property  is  substantially  known  by  the  whom  made. 
Comptroller  General,  who  shall  assist  the  Governor  in  making 
the  assessment,  and  immediately  send  written  or  printed  notices 
to  each  Tax  Collector,  of  the  Governor's  order,  and  publish  also 
a  copy  thereof  for  the  space  of  thirty  days,  in  some  public  gazette 
at  the  seat  of  Government. 

§  803.  The  amount  of  taxes  assessed  shall  not  exceed  the  actual    Amountof 
annual  wants  of  the  State  Government,  exclusive  of  the  commis-  assessed! 
sions  of  Collectors  and  Receivers,  and  any  other  expense  that  may 
be  lawfully  incurred  in  assessing  and  collecting  them. 

§  804.  Taxes  must  be  paid  in  gold  or  silver,  or  in  the  bills  of  How  paid. 
such  banks  as  pay  specie  promptly,  unless  specially  excluded  by 
law  or  otherwise  directed  by  the  Governor. 

§  805.  In  netting  the  digest  the  default  list  shall  be  deducted  Default  and 
for  the  Receivers,  and  the  insolvent  list  for  the  Collectors.  usts. 

§  806.  Besid  es  the  ad  valorem  tax,  the  following  specific  taxes  shall      specific 
be  assessed  per  annum,  and  estimated  in  fixing  the  rate  per  cent : 

1.  Practitioners  of  law,  physic,  and  dentistry,  five  dollars  each. 

2.  Daguerreian,  ambrotype,  photographic,  and  similar  artists, 
five  dollars. 

11 


162 


PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue. 


Article  2. — System  of  Taxation,  and  Persons  and  Property  Taxed. 

3.  Every  free  white  person  between  the  ages  of  twentj-one  and 
sixty,  twenty-five  cents. 

4.  To  carry  on  the  business  of  an  auctioni^er,  ten  dollars. 

5.  To  keep  a  pool  or  billiard  table  for  public  play,  twenty-five 
dollars. 

Bagatelle      g.  Tq  keep  a  bagatelle  table  for  public  play,  ten  dollars. 

7.  To  keep  a  ten  pin  alley,  or  alley  of  like  kind  for  public  play. 

Ten  pin  ,-,.-,  -^  ^  "^  '  "^  ^  r     J7 

alley.  ten  aoilars. 

8.  To  keep  any  other  table,  stand,  or  place,  for  any  other  game 
table  with  or  or  play,  with  or  without  a  name,  unless  for  exercise  or  amusement 
name.         Only,  and  not  prohibited  by  law,  ten  dollars. 


AuctioneerB 


table, 


9.  To  keep  a  public  race-track,  fifty  dollars. 
Property       §  ^07.  Where  persons  are  taxed  specifically  for  keeping  a  bil- 
tSed^^no"t  Hard  or  pool  table,  bagatelle  table,  or  ten  pin  alley,  they  need  not 
give  in  the  value  thereof. 


to    be    re- 
turned. 


License—      §  808.  No  asscssmeut  or  payment  of  tax  to  the  State  is  to  exoner- 
sary     after  atc  the  pcrson  from  taking  out  license  from  the  County,  or  city,  or 

payment    of  .  .  .  •        i   i       i  t 

tax.  incorporated  town,  m  cases  where  they  are  required  by  law  so  to  do. 

V*  r  ■/     Taxes    to 

/   and  property  whatsocver,  and  the  property  returned  or  held  at  the  time  of  giving 

(      always  sub-  .  .  i  •       , 

\^ct.  in,  or  alter,  is  always  subject. 

Conveyanc- 
es and  judg- 

^^^.^^  *  p^y*'.  property  of  any  kind,  made  to  avoid  paying  taxes,  or  judgments 
es^  void.*^^  procured  to  be  rendered  for  the  same  purpose,  are  null  and  void. 

§  811.  The  person   holding  such   property,  or  to  whom  such 
Donee,  etc.,  conveyancc  may  be  made,  is  liable  for  such  taxes,  and  the  property 
bie.  also,  whenever  found,  no  matter  in  vfhose  possession  it  may  be. 


809.  Taxes  shall  be  paid  before  any  other  debt,  lien,  or  claim 


810.  All  deeds  of  gift,  mortgages,  sales,  and  assignments  of 


ARTICLE  III. 

TAXES  ON  BANKS,  RAILROADS,  AND   OTHER  CORPORATIONS. 


Section. 

812.  Banks,  etc. — how  taxed. 

813.  Railroads  and  other  corporations. 

814.  Private  banks  and  bankers. 

815.  Special  provisions  for  railroads. 

816.  Foreign  banks— agents. 


Section. 

817.  Foreign  insurance  companies. 

818.  Express  companies. 

819.  Lotteries. 

820.  Illegal  sale  of  lottery  tickets. 

821.  How  contested  by  defendant. 


§  812.  The  several  banks,  or  other  corporations  in  this  State 
Banks—  having  banking  privileges,  shall  pay  a  tax  annually  of  forty  cents 
on  every  hundred  dollars  of  the  highest  amount  of  their  capital 
stock  paid  in  within  the  limits  of  their  respective  charters. 

§  813.  The  several  railroads  and  other  incorporated  or  unincor- 
porated  companies  of   every  kind,  except  banks  which  are  not 


YT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue.  16B 

Article  3. — Taxes  on  Banks,  Railroads,  and  other  Corporations. 


exempt  by  their  charter  or  otherwise,  or  for  which  there  is  not  a  Taxom-aii- 

-in  •  n  '1       ^  ^  roads        and 

different  method  of  taxation  speciallj  prescribed,  pay  the  same  other   com- 
rate  per  cent,  upon  the  whole  amount  of  their  capital  stock  paid  in 
as  is  levied  on  other  capital,  together  with  the  same  rate  per  cent, 
upon  their  net  annual  profits. 

§  814.  The  provisions  of  the  preceding  Sections  apply  to  private  banke^sret? 
bankers,  brokers,  or  exchange  merchants. 

§  815.  The  several  railroads,  by  whose  charters  a  higher  tax  is  when^to^^p^ 
forbidden,  and  such  as  are  now  or  may  hereafter  be  in  operation  one  per  cent 
that  do  not  pay  a  dividend  exceeding  six  per  cent.,  shall  pay  only 
one-half  of  one  per  cent,  upon  the  net  annual  income  of  each, 
until  they  pay  a  dividend  of  eisrht  per  cent,  per  annum,  in  which    when  oth- 

*^    ^     "^  o        1  ^       i.    ^  y  erwise  taxed 

shall  be  included  the  reserved  fund,  at  which  time  they  are  to  be 
taxed  as  other  capital. 

§816.  Every  agent  of  any  forei2;n  bank  or  individual  not  a  ,,    ^g^nt 

'^  ...  ^^  foreigji 

citizen  of  this  State,  doina;  business  herein,  with  or  without  an^^^^^  .^^^ 

'  o  y  non-resident 

office,  or  through  a  citizen  of  this  State  or  other  person,  shall  pay  ho\v  t^xed~~ 
the  same  rate  of  tax  as  is  imposed  upon  the  chartered  banks  upon 
one-third  of  the  highest  amount  of  loans  or  paper  discounted,  or 
exchange  purchased  by  him  and  running  to  maturity  at  any  one 
time  during  twelve  months  immediately  preceding  such  returns, 
together  with  the  same  rate  per  cent,  upon  the  net  annual  profits 
of  the  agency. 

§  817.  All  insurance  companies  out  of  this  State,  doins;  business  Tax  on  for- 
herein,  shall  pay  one  per  cent,  upon  premiums  received.  anc?    com- 

^  ^     '^  i-  A  A  ^  panics. 

§  818.  Every  express  company  doing  business  in  this  State  shall 
pay  a  tax  of  one  per  cent,  upon  the  gross  amount  of  their  profits  compan?eT^ 
for  each  year  on  business  done  at  offices  in  this  State. 

§  819.  Each  manager  of  any  lottery,  if  authorized  by  the  laws  on  lotteries. 
of  this  State,  shall  pay  to  the  State  Treasurer  one  thousand  dollars 
annually,  free  of  all  costs  of  collection. 

§  820.  If  any  person  makes  affidavit  that  any  one  is  selling  lot-    illegal  sale 
tery  tickets  without  the  authority  of  the  laws  of  this  State,  the  tickets  — 

*!   .  bow  punish- 

Tax  Collector  of  any  County  shall  issue  s^  fi.  fa,  or  ca.  sa.,  or  both,  ed. 
for  the  sum  of  one  hundred  dollars  for  each  act,  sworn  to  against 
the  offending  person  as  tax  executions  are  issued. 

§  821.  The  defendant  may  contest  the  collection  of  such  process  M.fa.xnay 
as  defendants  in  ordinary  ^. /as.  may.*^ 

*Laws  to  levy  and  collect  taxes,  being  generally  for  one  year  only,  and  being 
in  their  nature  temporary  and  changing,  are  not  inserted  here.  The  reader  is 
referred  to  the  Acts  of  the  Legislature  on  that  subject. 


164 


PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue. 


Article  4< — Taxes-^how  Returned  and  Collected. 


ARTICLE  IV- 


TAXES  —  HOW  RETUR^^ED  AND  COLLECTED, 


823. 
824. 
825. 
826. 
827. 
828. 


Sectiok. 

822.  Return  of  banks,  etc.— how  made. 
Other  returns— to  whom  made. 
Mines  and  farms — where  taxed. 
Mine  or  farm  on  County  line. 
Xon-residents. 
Lands,  etc.,  of  non-residents. 
Returns  to  Comptroller— how  made. 
829.  In  what  funds  taxes  payable* 
§30.  Returns  may  be  by  agent. 

831.  Oath  of  agent. 

832.  By  one  of  a  firm  suflBcient. 

833.  Who  may  administer  oath. 
Evidence  of  oath. 
When  Receiver  must  assess. 
Proceedings  thereon. 
Who  may  complain  of  returns. 
Oath  of  Assessors. 
Defaulting  tax  payers. 
Relief  against  double  tax. 

841,  Defaulter's  oath, 

842.  Blanks — by  whom  furnished. 
Lands — how  returned. 
How  entered  in  digest. 
Digests — when  and  where  filed. 
Mistakes — how  rectified. 
Tax  overpaid  refunded. 
Before  reaching  Treasury, 

849.  Doubtful  cases. 

850.  Defaulters  double  taxed. 


834. 

835. 
836. 
837. 
838. 
839. 
840. 


843. 
844. 
845. 
846. 
847. 
848. 


Sectiox. 

851.  Double  tax  on  property* 

852.  Double  tax — how  avoided, 

853.  Agent  of  non-resident  liable. 

854.  When  Collector  must  pay,  etc, 

855.  insolvent  list — how  allowed,: 

856.  When  allowed. 

857.  On  what  tax  allowed, 

858.  Copy  of  list  to  be  retained* 

859.  List  must  be  recorded. 

860.  Comptroller  may  wait  for  list, 

861.  When  not  allowed. 

862.  New  officers  exciised. 

863.  When  their  liability  attaches, 

864.  Collector's  duty  as  to  digests, 

865.  Further  time  may  be  allowed. 

866.  Taxes  for  former  years. 

867.  Estates  not  liable — when. 

868.  Land  maps  to  be  made, 

869.  Digests  of  lands, 

870.  Lands  returned  by' number, 

871.  Improved  lands — where  returned. 

872.  Wild  lands — where  returned, 

873.  List  of  wild  lands  to  be  made, 

874.  List  to  be  advertised. 

875.  Wild  lands  sold— when, 

876.  Owner  maj'  redeem. 

877.  Sale  shall  not  affect  minors,  etc. 

878.  Additional  clerk. 


Eeturns  and 
taxes  of 
banks,  etc. 


Eeturns  — to 
whom  made. 


Eeturns 
of  mining 
companies 
etc. 


§  822.  The  returns  of  all  banks,  railroad,  and  insurance  and 
express  companies,  and  agents  of  foreign  companies,  authorized  in 
this  State,  shall  be  made  to  the  Comptroller  General  hj  the  first 
day  of  May  in  each  year,  and  the  taxes  thereof  shall  be  paid  to 
the  State  Treasurer  by  the  first  day  of  October  in  each  year. 

§  823.  All  other  companies  or  persons  taxed  shall  make  their 
returns  to  the  Receiver  of  the  respective  Counties  where  the  per- 
sons reside  or  the  office  of  the  company  is  located,  except  in  case 
of  mining  companies  and  of  persons  who  cultivate  lands  in  Coun- 
ties not  their  residence. 

§  824.  Mining  companies  must  make  their  returns  in  the  County 
where  the  mine  is  worked,  and  those  who  have  such  plantations 
must  make  the  returns  for  them,  together  with  the  stock  and  other 
property  employed  thereon,  in  the  Counties  where  they  are  re- 
spectively situated. 


PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue.  165 

Article  4. — Taxes — how  Returned  and  Collected. 
§  825.  If  there  is  a  mine  or  plantation  on  the  line  between  two      Mine  or 

_^    ■  111        plantation 

Counties,  and  in  two  or  more  Counties,  the  returns  shall  be  made   on  county 

'  '  _  line. 

in  the  County  where  the  improvements  or  most  of  the  improve- 
ments are. 

§  826.  The  provisions  of  the  two  preceding:  Sections  apply  to     Non-resi- 

^  ^  .  dents  includ- 

non-residents  who  hold  such  property  in  this  State.  ed. 

§  827.  Lands  and  other  property  of  non-residents  must  be  re-  EetumBof 
turned  and  paid  for  in  the  County  where  the  lands  or  other  prop-  den^s,  etc!^" 
erty  are  respectively  situated. 


The  returns  of  all  banks,  or  companies,  or  persons,  re-       Eeturns 

,  ^        r^  n/->i  i  !•••  made    to 

quired  to  be  made  to  the  Comptroller  (jrenerai,  must  be  m  writing  comptroller 
and  sworn  to  by  the  presiding  officer  or  agent  of  a  foreign  com- 
pany to  be  a  just,  true,  and  full  return  of  the  capital  stock,  net 
annual  profits,  or  other  property  or  effects,  for  which  said  bank  or 
company  is  subject  to  taxation  by  the  laws  of  this  State. 

§  829.  Such  payments  must  be  made  in  the  funds  in  which  taxes   Paymenir- 
may  be  paid  at  the  State  Treasury,  free  of  any  expense  to  the 
State. 

§  830.  Returns  of  other  companies  and  individuals  may  be  made     other  re- 

.  turns — how 

by  themselves  or  accents  to  the  proper  Tax  Receiver,  by  the  first  made ;  tax— 

•^  ^  r      r  7      .;  how  paid. 

day  of  July  in  each  year,  for  property  held  and  subject  to  taxa- 
tion on  the  first  day  of  April  previously ;  and  payments  to  the 
Tax  Collector  by  the  first  day  of  October  in  each  year. 

§  831.  When  anv  of  the  oaths  of  a  tax  payer  are  taken  by  an      oath  of 

"  ^     '^  *'  agent. 

agent,  there  shall  also,  at  the  proper  place,  be  inserted  that  he 
does  so  as  agent  for  a  certain  person  or  persons,  or  company, 
naming  them. 

§832.  Such  oaths  taken  by  any  one  member  of  a  firm  or  unin-  oathofone 

'^  ,     ,  .  partner  snf- 

corporated  company  without  a  presiding  officer,  shall  be  sufficient  ficie^t- 
as  to  said  firm  or  company  property. 

§  833.  They  are  taken  before  the  Tax  Receiver,  who  is  author-  Oaths— how 
ized  to  administer  them ;  but  the  oath  of  non-residents,  females, 
absentees,  and  sick  persons,  may  be  written  out  in  full  and  taken 
before  any  person  authorized  to  administer  an  oath,  and  delivered 
to  the  Receiver,  who  shall  file  such  oaths  in  the  office  of  the 
Clerk  of  the  Inferior  Court. 

§  834.  The  entry  in  the  digests  of  the  tax  payers'  returns  shall    ,  Digest— 

t/  o  JT    *'  when      evi- 

hQ  prima  facie  evidence  of  his  having  taken  such  oath,  and  if  aftTforfeise 
false,  he  is  guilty  of  false  swearing  and  is  liable  to  be  indicted  ^^*^' 
and  to  be  punished  therefor,  as  prescribed  for  other  cases  of  false 
swearing  in  the  Penal  Code. 


166  PT.  1.— TIT.  7.— CHAP.  1.— Public  Revextte. 


Article  4. — Taxes — hovr  Returned  and  Collected. 


§  835.  Each  return  shall  be  scrutinized  carefully  by  the  Tax 
In  case  of  Receiver,  and  if  in  his  iud^ment  he  shall  find  the  property  em- 

false    return  o       ^^  r       r        j 

Tax  Eeceiv-  "braced  iu  the  return,  or  any  portion  of   it,  returned  below  its 

er  to  'assess  7  »/     jr  7 

yiane.  yaluc,  he  shall  assess  the  value  at  once  or  within  thirty  davs 
thereafter. 

§  836.  If   such  assessment  is  not  made  bj  the    Receiver   in- 
snbseqnent  stautcr,  he  shall  ^ivo   the   tax   payer   notice  of  his  assessment, 

proceedings.  ,  j.     .^ 

and  in  either  case  it  shall  be  the  tax  payer's  privilege  to  have  it 
left  to  three  disinterested  persons,  one  of  whom  he  shall  select, 
the  other  shall  be  selected  by  the  Receiver,  and  these  two  shall 
select  a  third  if  they  disagree,  a  majority  of  whom  shall  fix  the 
assessment. 

§  837.  It  is  the   privilege  of   any  tax    payer   of    the  County 
Property  whcrc  a  rctum  is  made  to  complain  to  the  Receiver  at  any  time 

returned  be-  ,      ^  ,  .       t.  .  iii  'ii  i 

low  its  value  before  his  digest  is  completed  that  any  return  is  below  the  true 
value  of  the  property;  in  which  case  he  shall  notify  the  person 
who  made  the  return  complained  of,  if  practicable,  verbally  or  by 
writing,  giving  him  the  name  of  complainant  and  the  ground  af 
complaint,  and  shall  proceed  to  have  a  new  assessment  in  the 
terms  of  the  preceding  Secti^i. 

§  838.  "Whenever  such  assessors  are   called  in,  they  shall  take 
Oath  of  as- an  oath  before  the  Receiver  to  do  justice  between  the  parties  at 

sessors. 

variance  touching  the  true  assessment  of  the  tax  return. 

§  839.  "When  a  tax  payer  has  been  returned  as  a  defaulter  and 

Defatating  doublc  taxcd,  either  by  the  Receiver  or  Collector,  the  Justices  of 

iiow  're- the  Inferior  Court  are  authorized  to  relieve  the  defaulter  of  the 

lieved  when 

double  tax-  penaltv  for  default  at  the  time   said  Justices  allow  the  Collector 

ed.  -^  -^ 

his  insolvent  lists,  provided  that  said  tax  payer  shows  to  such 
Justices,  by  satisfactory  evidence,  that  either  from  providential  or 
other  good  cause  he  had  not  an  opportunity  to  make  his  return 
to  the  Receiver  of  Tax  Returns,  and  at  the  time  of  such  release 
promptly  pays  his  pro|>er  tax  and  one  dollar  to  the  Collector  as 
his  fee,  the  Collector  shall  promptly  inform  the  Comptroller  Gen- 
eral of  such  release  and  the  amount  of  taxes  paid. 

§  840.  All  defaulters  may  at  any  time  and  for  the  same  causes. 

Defaulters  bcforo  the  digost  is  made  up  and  ready  to  be  sent  to  the  Comp- 

edfromdou-  trollcr,  savo  the  double  tax  by  likewise  giving  in  to  the  Clerk  of 

the  Inferior  Court  and  paying  him   one  dollar,  who  shall  give  a 

copy  of  such  returns  instanter  to  the  Receiver,  and  he  shall  enter 

it  in  the  several  digests. 

§  841.  The  Clerk,  in  the  cases  set  forth  in   Sections  839  and 


PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue.  167 

Article  4. — Taxes — how  Returned  and  Collected. 

840,  shall  require  the  tax  payer  to  swear  to  the  cause  of  his  de-    Defaulter's 
lay,  and  shall  state  the  same  in  the  copies  furnished  the  Comp- 
troller or  Receiver. 

§  842.  The  Comptroller  General  shall  furnish  all  the  Receivers    oomptroi- 

■•■_  ler    General 

of  Tax   Returns  with  a  sufficient  number  of  blank  forms  to  con- 1()     furaish 

K  e  c  e  i  V  e  rs 

form  to  the  tax  laws,  by  which  they  shall  make  out  their  three  ^lank  forms, 
digests,  and  each  digest  shall  be  of  uniform  size,  and  when  re-  Digests- 
turned  shall  be  bound  and  labeled. 

§  843.  In  making  a  return  of  taxable  property,  the  person  re-     Return  of 

^  °  .  .  land  — how 

turning,  when  making  a  general  return,  shall  give  in  each  tract  Q^ade. 
or  lot  of  land  he  may  own,  specifying  its  location  by  number, 
district,  and  section,  if  known,  the  number  of  acres,  if  known, 
and  its  aggregate  value,  in  which  must  be  included  the  value  of 
the  buildings,  machinery,  toll  bridges,  ferries,  or  other  improve- 
ments thereon  or  appurtenant  thereto. 

§  844.  Such,  too-ether  with  the  returns  of  personal  estate  and     Eetums— 

,  .  tow  entered 

other  interests  the  subject  of  taxation,  must  be  returned  and  set  in  digests. 
down  in  the  digest  in  separate  columns  according  to  the  classifica- 
tion furnished  the  Receivers  by  the  Comptroller  General  in  each 
year,  and  their  aggregate  value  carried  out,  less  the  exemptions, 
such  being  specified. 

§  845.  The  Receiver  must  make  out  three  of  such  digests  in  a    Number  of 

«...  digests  —  to 

fair  and  legible  handwriting,  and  furnish,  by  the  first  day  of  Au-  whom    fur- 
gust  in  each  year,  one  to  the  Comptroller  General,  one   to  the 
Clerk  of  the  Inferior  Court,  and  one  to  the  Tax  Collector. 

§  846.  If  a  Receiver  makes  a  mistake  in  his  digest,  it  is  the      Mistakes 

J  r      1        n  r^  .  In— howcor- 

duty  of  the  Comptroller  General,  with  the  sanction  of  the  Gov-  rected. 
ernor,  to  correct  such  mistake  by  making  the  necessary  entries  in 
the  digest  furnished  the  Comptroller,  and  must  in  writing  notify 
the  Clerk  of  the  Inferior  Court  and  the  Tax  Collector  of  the 
County  from  which  such  digest  comes  of  such  mistake  and  correc- 
tion. 

§  847.  If,  by  reason  of  such  mistake,  or  from  any  other  cause,     ^ax  over- 

\   '^  .       .  '  "^  '  paid    to    be 

a  tax  payer's  money  is  in  the  Treasury  for  a   ejreater  amount  ^?^^P^^,<i 

,        ,  *^  .  "^  °  when  m  the 

than  he  is  liable  for,  of  which  such  officer  is  clearly  satisfied,  he  Treasury. 
may  certify  the  same  to  the  Governor,  who  shall,  if  he  approves, 
draw  his  warrant  on  the  Treasurer  in  favor  of  such  tax  payer  for 
the  proper  amount,  out  of  any  moneys  not  otherwise  appropriated. 

§848.  If  such  mistake  is  ascertained  before  the  Tax  Collector    And  before 

.  .  T      I  .  1        m  reaching  the 

has  paid  the  amount  into  the  Treasury,  the  Comptroller  General,  Treasury. 


168  PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue. 

Article  4. — Taxes — how  Returned  and  Collected. 

with  the  sanction  of  the  Governor,  shall  authorize  such  Collector 
to  refund  the  amount,  or  if  he  has  not  collected  it,  to  order  him 
to  desist. 

§  849.   When  any  similar  cases  arise  which  are  doubtful  in  the 
Doubtful  opinion  of  the  Governor,  he  shall  refer  the  matter  to  the  General 

cases. 

Assembly. 

§  850.  If  a  person  fails  to  make  a  return  in  whole  or  in  part, 
Defaulters  Or  fails  to  affix  a  value  to  his  property,  it  is  the  duty  of  the  Ke- 

to  be  doubly        ,  ,  ,  ,  .  1  ,  .  -, 

taxed.  ceiver  to  make  the  valuation  and  assess  the  taxation  thereon,  and 
in  all  other  respects  to  make  the  return  for  the  defaulting  person 
from  the  best  information  he  can  obtain,  and  having  done  so,  he 

\  ^^  shall  double  the  tax  in  the  last  column  of  the  dis^est  ao;ainst  such 
defaulters,  after  having  placed  the  proper  market  value  or  specific 
return  in  the  proper  column ;  [  and  for  the  second  year's  default 
the  defaulter  shall  be  taxed  fourfold,  and  increasing  in  the  same 
ratio  until  a  return  is  made.]  (a) 

§  851.    If  there   is    taxable  property,   real    or   personal,   in  a 

A  Property  Couuty,  cxccpt  vacant  or  wild  lands,  that  to  the   satisfaction  of 

not  returned    -i-r*.  ■,  ^  iit-t  •  i 

to  bo  doubly  the  lieceivcr,  when  he  comes  to  conciude  his  dia^est,  is  not  returned 

taxed  by  Ke-  i     i         i  i 

ceiver      or  by  any  person,  and  he  does  not  know  the  owner  or  possessor,  it 

Collector.       _^Ji  '  ^  .... 

is  his  duty  to  assess  and  double  tax  it,  describing  it  particularly; 

and  the  same  power  is  conferred  to  the  Tax  Collector  as  to  such 

property,  when  not  assessed  or  overlooked  by  the  Receiver. 

§  852.  If  persons    who   are    required  to  give  in    land  in   the 

When  de-  Countics  whcro  situatcd  fail  so  to  do,  they  shall  be  liable  only  for 

iSbfr^  for  the  real  tax  assessed  by  the  Receiver,  unless  they  fail  to  pay  the 

amount  by  the  time  required;  in  which  event  the  Collector  shall 

collect  the  double  tax  and  issue  process  therefor. 

§  853.  All  persons  who  give  in  property  for  persons  not  resi- 
non-resi-  dent  in  the  State  shall  be  personally  liable  for  the  taxes,  as  well 

dents      per-  .       ,  ^  ■*•  "^ 

sonaiiy  lia-  as  the  principal  and  his  property. 

§  854.  The  several  Collectors  must  pay  into  the  State  Treasury 
When  Col-  the  taxcs  of  their  respective   Counties  by  the  twentieth  day  of 

lectors       to  ■  ^     . 

pay  taxes  in-  December  of  each  year,  and  shall  at  the  same  time  present  their 

to    Treasury  .  .  *^ 

and  present  insolvcut  list,  duly  Certified   to  have  been  allowed  them  by  the 

insolvent  hst  ^  */  %> 

Grand  Jury,  or  the  Justices  of  the  Inferior  Court  if  the  Grand 
Jury  has  not  acted  in  the  premises.  * 

§  855.  [Such  insolvent  lists  shall  be  presented  and  allowed  as 

(a)  Acts  of  1863-4,  pp.  49,  50. 


PT.  1.— TIT.  T.— CHAP.  1.— Public  Revenue.  169 

Article  4. — Taxes — how  Returned  and  Collected, 
follows:  The  Tax  Collectors  in  every  County  shall,  on  oath,  be     insolvent 

*^  .  lists— how 

obliged  to  lay  before  the  Grand  Jury  or  Inferior  Court  of  each  allowed. 
County  a  list  of  such  insolvents  as  may  be  in  such  County,  who 
shall  allow  or  disallow  the  same.]  (a) 

§  856.  [The   said  Inferior   Court  or  Grand  Jury  may  at  any     insolvent 
time  before  the  fifteenth  day  of  December  in  each  year,  allow  said  allowed. 
insolvent  lists,  and  such  lists  can  be  allowed  or  disallowed  either 
upon  the  list  of  names  furnished  by  the  Collector  on  oath  as  re- 
quired in  the  preceding  Section,   or  on  fi  fas  with  the  proper 
entries  thereon.]  (a) 

§  857.  [The  Inferior   Courts  or  Grand  Juries  in  making  out      On  what 
such  lists  shall  be  required  to  state  how  much  is  allowed  the  Col- 
lector on  account  of  the  State  tax,  and  how  much  is  allowed  on 
the  County  tax.]  (a) 

§  858.  [When  the.Collector  shall  have  his  insolvent  list  credited       inferior 
it  shall  be  the  duty  of  the  Inferior  Court  or  Grand  Jury  to  retain  tain  a  copy. 

•^  .  .  *'  .  of  list. 

a  copy  of  such  list  and  direct  the  Collector  to  issue  executions 

for  the  same,  and  place  them  in  the  hands  of  some  Constable  of 

the  County  for  collection,  who  shall  be  entitled  to  the  same  fees 

as  he  is  entitled  to  for  other  executions,  and  two  and  one-half  per 

centum,  and  the  balance  shall  be  paid  by  the  Constable  to  the 

Clerk  of  the  Inferior  Court,  whose  duty  it  shall  be  to  transmit  the 

same  to  the  Treasury.]  (a) 

§  859.  When  such  lists  are  allowed  they  must  be  entered  on  the  Disposition 

minutes  of  the  Court,  and  the  Clerk  thereof  must  furnish  the  iist  when  al- 
lowed. 
Collector  certified  copies  thereof,  stating  in  the  certificate  when 

and  by  what  tribunal  allowed. 

§  860.  [Whenever  the  Comptroller  General  shall  be  satisfied  that  comptroller 

a  Tax  Collector  has  exercised  due  diligence  in  his  efi'orts  to  have  wait  for  in- 

.  ^  T     n      '  r^  solvent  lists 

nis  insolvent  list  allowed  by  a  Grand  Jury  or  the  Inferior  Court,  — i^ow  long. 
within  the  time  prescribed  by  law,  the  said  Comptroller  General 
shall  be  authorized,  if  in  his  judgment  the  public  interests  will  not 
suffer  thereby,  to  wait  with  the  Collectors  fifteen  and  not  exceeding 
thirty  days  for  said  insolvent  list  before  issuing  fi.  fa,  for  the 
same.]  (b) 

§  861.  They  shall  not,  under  any  circumstances,  be  allowed  or    when  not. 
credited  with  such  lists  after  executions  are  issued  ao-ainst  them 
for  taxes,  until  they  go  to  the  Comptroller  General  and  settle 
fairly  and  fully  with  him. 

(a)  Acts  of  1861,  p.  80 ;  Acts  of  1857,  p.  132.     (b)  Acts  of  1861,  pp.  80-1. 


\ 

■J 

1 

\ 

170  PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue. 

Article  4. — Taxes — how  Returned  and  Collected. 

§  862.  The  time  by  which  digests  shall  be  completed  and  the 
When  taxes  paid  does  not  apply  to  Receivers  and  Collectors  who  have 

time  shall  be  ^       .  r  i    ./ 

granted    to  not  been  in  office  Ions;  enough  to  make  such  compliance,  but  in 

Eeceivers  o  o  17 

tSj  ^°^^^*^"  ^'^  such  cases  such  officer  must  respond  to  the  requirements  of  the 
Comptroller  General. 

§  863.  Such  officers  are  not  liable  for  the  penalties  fixed  for 

Newly  el-  thosc  rcgularlj  elected,  until  the  time  allowed  by  the  Comptroller 

ceivers  and  General  has  expired,  unless  they  have  been  so  loner  in  office  as 

Collector   to  •'^  '  .  "^  ° 

have  time,    would  havc  been  sufficient  for  the  regular  officers. 

§  864.  It  is  the  duty  of  the  Collector  to  examine  the  digest  of 

Collector  the  Receivcr,  and  if  he  knows  of  any  default  not  entered,  to  make 

schedule  of  a  schcdulc  of  such  in  the  same  manner  as  done  by  the  Receiver, 

defaulters 

and  to  dou-  and  of  any  other  that  he  may  then  or  afterwards  learn,  and  of 

ble    tax  the  .  "^  *^  ' 

same.  their  property,  and  assess  a  double  tax  in  the  same  manner  the 

Receiver  is  allowed  to  do,  one  copy  of  which  shall  be  furnished 

to  the  Comptroller  General  to  add  to  the  digest  in  his  office,  and 

another  to  the  Receiver,  who  shall  likewise  correct  his  digest. 

§  865.  And  in  other  cases  where  any  unexpected  obstacles  occur 

Comptroller  to  Completing  the  digest  or  paying  over  the  taxes  within  the  time 

General  may  .....  ^ 

allow    fur-  prescribed,  it  is  in  the  discretion  of  the  Comptroller  General  to 

ther  time.       ^  ^  ^  ^ 

allow  further  and  sufficient  time. 

§  866.  Receivers  and  Collectors   are   required   to   receive  the 
Taxes  for  rcturns  and  to  collect  the  taxes  thereon  for  former  years,  when 

former  years  "^ 

—how     re-  any  person  or  County  are  in  default,  which  taxes  shall  be  assessed 

turned     and         "^    ■*■  *'  ' 

collected,      according  to  the  law  in  force  at  the  time  the  default  occurred,  and 

shall  be  so  specified  in  the  digest. 
tt    -V    ^       §867.  The  estate  of  any  person  shall  not  be  liable  for  default 
Estate  not  whcn  Said  person  may  have  died  before  the  time  expired  for  giv- 

liable  for  de-  .  .  -^  *^  .  ,      . 

fault-when;  ing  in  taxcs  for  the  year,  and  the  representatives  or  any  heir  may 

and    in     no      ^°      ^  J  ^  r  J  J 

event  to  be  giye  in  the  same,  and  in  any  event,  for  that  year,  such  estate  shall 
ed  the  first  not  be  liable  to  double  tax. 

year. 

§  868.  [The  Surveyor  General  is  authorized  and  required  to  have 
Secretary  published  a  sufficicut  numbcr  of  maps  of  those  lands  which  have  been 

of   state    to  ^  .  .  ^ ,  .  .   , 

furnish  maps  survcycd  as  will  enable  him  to  furnish  each  Receiver  with  two,  em- 
bracing all  the  lands  in  his  County,  and  one  to  file  in  the  Clerk's 
office  of  the  Superior  Court.]  (a) 

§  869.  [Each  Receiver  shall  make  a  separate  digest  of  all  the 

Digest  of  lots  or  parts  of  lots  in  his  County  which  have  not  been  returned 

V.    '         (except  the  same  be  in  a  town  or  city),  and  shall  designate  by  ap- 

(a)  Acts  of  18G6,  pp.  166-7-8. 


PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue.  171 

Article  4. — Taxes — how  Returned  and  Collected. 


propriate  letters,  whether  they  be  improved  or  unimproved  lands.  ^ 

He  shall  forward  a  copy  of  said  digest  to  the  Comptroller  Gen-  (j^/^  ,  '>  i 
eral's  office.  The  improved  lands  not  returned  shall  be  assessed  A  ^  ^  \ 
and  the  tax  collected  as  is  now  required  by  law.]  (a)  '    T  ) 

§  870.  [It  shall  be  the  duty  of  the  Receiver  to  require  all  per-    Landstobe 

^  L  ./  i  X  returned  by 

sons  making  returns  of  land  in  his  County  to  return  the  same  by  number,  etc. 
district,  number,  and  section,  if  the  lands  have  such  designation ; 
and  where  lands  have  no  such  designation,  then  by  such  descrip- 
tion as  will  enable  the  Receiver  to  identify  them.     Receivers  are 
prohibited  from  receiving  any  return  of  lands  which  does  not  so  >  ^ 

designate  them,  and  the  Comptroller  General  is  prohibited  from 
allowing  any  Receiver  compensation  or  per  centage  for  his  ser- 
vices who  receives  returns  in  any  other  manner.]  (a) 

§  871.  [All  persons  o\fning  improved  lands  which  have  a  tenant  jandT^wtTete 
or  tenants  thereon,  shall  return  the  same  in  the  County  where  the  ^^^^^^'^^^i- 
land  lies.]  (a) 

§  872.  [All  persons  owning  unimproved  or  wild  lands,  in  Coun-   wild  lands 
ties  without  the  County  of  their  residence,  shall  be  required  to  turned. 
make  returns  of  the  same  to  the  Comptroller  General,  or  to  the 
Receiver  of  the  County,  where  the  land  lies.     Said  returns  may  be   (/Ll- 
made  by  forwarding  by  mail  or  other  safe  conveyance  to  either  of 
said  officers  a  statement,  under  oath,  of  the  lands  owned  and  the  1 

value  thereof;  and  when  the  rate  of  the  ad  valorem  tax  has  been 
fixed,  and  the  collection  of  taxes  ordered,  the  taxes  due  upon  said 
wild  lands  shall  be  paid  to  that  officer  to  whom  the  return  was 
made.]  (a) 

§  873.  [When  the  several  digests  of  the  Receiver  of  Tax  Returns    comptroi- 
of  the  several  Counties  of  the  State  have  been  received,  it  shall  list  of  unre- 

.  turned  wild 

be  the  duty  of  the  Comptroller  General  to  compare  said  returns  ^^nds. 
with  each  other,  and  to  make  out  a  comxplete  list  of  all  the  unim-  ^,^  c  ' 
proved  or  wild  lands  not  given  in.]  (a) 

§  874.  [When  such  list  is  completed,  the  Comptroller  General    ^^^t  to  be 

■-,  ^'  *■  advertised. 

shall,  for  sixty  days,  make  advertisement  of  the  same  in  one  news- 
paper in  each  Congressional  District,  and  require,  in  said  publica-      "  .  ^ 
tion,  the  owner  of  said  lands  to  come  forward  and  give  in  and  pay       '  / 

taxes  upon  said  lands,  and  in  default  thereof  that  said  lands  will 
be  sold.  A  copy  of  said  list  shall  be  furnished  the  Clerk  of  the 
Superior  Court  of  each  County  in  the  State,  who  shall  post  the 
same  in  his  office.]  (a) 

(a)  Acts  of  1866,  pp.  166-7-8. 


172 


PT.  1.— TIT.  T.— CHAP.  1,— Public  Revenue. 


Article  4. — Taxes — how  Returned  and  Collected. 


*> 


§  875.  [On  the   expiration   of  the  time  of  advertisement,  the 
■cnreturned  Comptroller  General  shall  issue  execution  acrainst  all  unimproved 

wild  lands  to  ^  . 

be  sold-  lands  not  returned,  assessing  the  value  at  the  average  value  of 
such  land  in  the  County  where  it  lies,  which  execution  shall  be 
directed  to  the  Sheriff  of  the  County  where  the  land  lies,  and  the 
Sheriff  shall  forthwith  proceed  to  advertise  and  sell  the  same  un- 
der the  same  rules  and  regulations  as  govern  other  Sheriff  sales, 
%  and  make  his  returns  to  the  Comptroller  General.]  (a) 

§  876.  [The  owners  of  any  lands  thus  sold  for  taxes  shall  have 
Owner  may  the  privilege  of  redeeming  the  same  at  any  time  within  two  years, 
by  paying  to  the  purchaser  the  amount  of  his  purchase  money  and 
costs,  together  with  interest  at  the  rate  of  ten  per  cent,  per  an- 
num thereon ;  or  on  making  satisfactory  evidence  of  his  title  to 
the  Comptroller  General,  he  may  receive  the  purchase  money,  less 
the  amount  of  taxes  due  thereon  and  the  cost  expended  in  collect- 
ing said  tax.]  (a) 

§  877.  [No  sale  made  under  the  875th  Section  of  this  Code 
Sale  shall  shall,  in  any  way,  operate  to  affect  or  defeat  the  title  of  any  mi- 
minors,  etc.  uor,  idiot,  or  lunatic  of  this  State  to  the  land.]  (a) 

§  878.  If  the  duties  which  this  act  imposes  upon  the  Comptroller 
Additional  General,  in  the  opinion  of  the  Governor,  requires  additional  assist- 
ComptroUer.  aucc,  the  Govemor,  is  authorized  to  employ  an  additional  clerk 
in  the  Comptroller's  office  for  that  purpose.]  (a) 


a 


ARTICLE  Y. 

DELINQUENT  TAX  PAYERS,  AND  PROCEEDINGS  AGAINST  THEM. 


Section'. 

879.  Defaulting  corporations. 

880.  Forfeiture  of  charter,  etc. 

881.  Penalty  where  none  is  fixed. 

882.  Default  tax  on  foreign  corporations. 

883.  Penalty  on  lottery  dealers. 

884.  Assessments  in  absence  of  returns. 

885.  Fi.  fa.  vs.  corporation. 

886.  Fi.  fa.  vs.  agent — how  executed. 

887.  Duty  of  collecting  ofl&cer. 

888.  Relief  of  one  unjustly  put  in  default. 

889.  Collector's  fi.  fa. — how  issued,  etc. 

890.  Fees  of  officers. 

891.  By  whom  and  how  executed. 


Sectiok. 

892.  Authority  of  Constable. 

893.  Sales  under  tax  fi.  fas. 
891.  Excess— how  disposed  of. 

895.  Conveyance  to  purchaser. 

896.  Purchaser  to  have  possession. 

897.  Property  exempt  from  sale. 

898.  Claims — condition  of  claim  bond. 

899.  Unreturned  property— proceeding. 

900.  Owner  may  redeem  land  sold. 

901.  Tax  fi.  fa.  runs  to  any  County. 

902.  Penalty  against  defaulting  brokers. 

903.  Defaulting  corporations,  etc. 


§  879.  If  any  corporation,  company,  person,  agency,  or  insti- 


(a)  Acts  of  1866,  pp.  166-7-8. 


PT.  1.— TIT.  7.— CHAP.  1.— Public  Eevenue.  173 


Article  5. — Delinquent  Tax  Payers,  and  Proceedings  against  tliem. 


tution,  who  are  required  to  make  their  returns  to  the  Comptroller  jgj.^^^"gP*J^^^{ 

General,  shall  fail  to   return  the   taxable  property  or  specifics,  or  to  issue./- 

pay  annually  the   taxes  for  which   they  are  liable  to  the   State  qu^ntg,'^^"'' 

Treasurer,  the  Comptroller  General  shall  issue  against  them  an 

execution  for  the  amount  of  taxes  due,  according  to  law,  together 

with  the  costs  and  penalties. 

§  880.   The  penalty  against  all  such   corporations  shall  be  the       Penalty 

forfeiture  of  their  charters,  and   it  not  chartered  by  this  btate,  linquent  in- 
corporations 
then  the  immediate  suspension  of  their  business  therein. 

^  881-  The  penalty   or  default  tax    on   banks,   railroads,   and      .  Penalty 

"^  ■•■  «^  '  ■'  against    cor-- 

other  corporations,  where  there  is  no  special  provision,  shall  be  p^^^^^^^^^s 
three  times  the  amount  of  their  lawful  tax. 

§  882.  The  penalty  or  default  tax  on  foreign  insurance  compa-  g^„^^^^^f^l 
nies  shall  be  five  hundred  dollars  ;  on  foreisrn  bank  agencies,  two  31 .1"?,T 
thousand  dollars;  on  express  companies,  ten  thousand  dollars.        nie8,etc. 

§  883.  The  penalty  on  lottery  dealers,  if  there   should  be  any       Penalty 

,  -^  *^  v'  5  ^  J    a^rainst    lot- 

authorized  by  the  laws  of  this  State,  shall  be  three  times  the  tery  dealers. 
amount  of  the  taxes  assessed. 

§  884.  When  there  is  no  return  by  which  to  assess  the  tax,  the  where 
Comptroller  General  shall,  from  the  best  information  he  can  pro-  comptroller 

■"•  General    to 

cure,  assess  in  his  discretion.  assess  tax. 

§  885.    The    executions    issued    by   the    Comptroller    General       -Fl  fas. 

^  ^  issued       by 

against  any  bank  or  other  company  shall  be  directed  to  all  and  comptroller 
sinoiular  the  Sheriffs  and  other  lawful  officers  of  this  State,  with  against     a 

a  '  Company  — ■ 

directions  to  levy  the  same  on  the  property  of  the  corporation  or  er^etc^*^^*^*' 
company,  with  power  to  issue  and  serve  garnishments  upon  the 
debtors  of  the  corporation. 

§886.  The  executions  against  agents  of  foreign  institutions  as  Fi./as.m. 
aforesaid  shall  be  against  the  principal  agent  or  his  successor,  ei}?n  compa- 
and  shall  authorize  the  officer  to  levy  on  all  the  property  of  the 
agency,  to  seize  its  money,  notes,  or  other  eifects. 

§  887.  When  an  officer  collects  money  on  such  process,  or  on  Money 
any  other  issued  by  the  Comptroller  General,  he  shall,  without  above/./ae! 

11  '         ^  1*1  ft  1  to  be  imme- 

delay,  remit  the  same  to  nim  by  some  safe  and  speedy  method,  diateiy  sent 

1P-1  -i-iii  r./  '  toComptrol- 

and  on  lailure  to  do  so,  is  liable  as  he  would  be  to  other  plaintiffs,  ^^r  General. 
§888.  When  a  person  shall  have  lawfully  returned  and  paid  one  wrong 
his  taxes  in  one  County,  and  is  treated  as  a  defaulter  in  another  d^efiuitlr  — 
for  the  same  tax,  or  any  portion  thereof,  the  Grand  Jury  or  the  ed. 
Justices  of  the  Inferior  Court  of  the   County  claiming  the  tax 
may  discharge  said  defaulter,  which  will  exempt  him  from  liability 


1Y4  PT.  1.— TIT.  7.— CHAP.  I.^Public  Revenue. 

Article  5. — Delinquent  Tax  Payers,  and  Proceedings  against  them. 


for  it,  and  shall  authorize  the  Comptroller  to  credit  the  Collector 
for  the  same,  and  the  Governor  to  draw  his  warrant  therefor. 
§889.  Executions  for   non-payment  of   taxes  against  persons 
Tax  Col-  who  are  not  required  to  pay  to  the  Treasurer  are  issued  by  the 

lector's      >•  pn,  ^    n  p      t      •  •  ^ 

/as. —  when  lax  Collcctors  of  their  respective  Counties  as  soon  as   the  last 

and  how  is-  _     ^ 

sued.  day  for  payment  has  arrived,  and  must  be  directed  to  all  and 

singular  the  Sheriffs  and  Constables  of  this  State. 

§890.  [Tax  Collectors  shall  be  allowed  a  fee  of  fifty  cents  for 
Feeforis- issuino-  tax  fi.  fas, .'  but  no  Tax  Collector,  Sheriff,  or  Constable, 

suing      Tax  Q  J       t/  y  t  ■>  7 

ji.fas.  shall  receive  costs  on  said  fi.  fas.  unless  the  same  be  collected 
from  the  defendant.]  (a) 

§  891.  Executions  may  be  levied  by  either  of   the  officers  to 
By  whom  whom  directed,  or  other  officer  who  by  law  may  be  authorized  in 

levied      and  .  '  . 

sales  under,  their  placc :  wlicn  the  principal  amount  does  not  exceed  fifty 
dollars,  the  levy  and  sale  must  be  made  by  a  Constable,  and  not 
otherwise.  If  the  Constable  levies  on  land,  it  must  be  returned 
to  and  sold  by  the  Sheriff  of  the  County. 

§  892.  The  Tax  Collector  may  place  his  fi.  fas.  in  the  hands  of 
may^kvy  in  any  onc  Constablc  of  the  County,  who  shall  be  authorized  to  col- 
the  County.  Icct  or  Icvy  the  same  in  any  part  of  the  County. 

§  893.  Sales  under  tax  fi.  fas.  shall  be  made  under  the  same 
tax5-!?««^^  ^^•'^^^  governing  other  judicial  sales. 

§  894.  If  there  is  any  excess  after  paying  taxes  and  all  ex- 
Excess—  penses,  it  shall  be  immediately  paid  to  the  person  authorized  to 

how  paid.  .  . 

receive  it. 
Deed  made      §895.  The  deed  or  bill  of  sale  made  by  such  officer  shall   be 

at  sale  under  ^  ^  _  • 

tax  7?,  /a.  just  as  Valid  to  the  purchaser  as  if  made  under  the  ordinary  pro- 
cess of  law  issuing  from  the  Superior  Court. 
put^p?r°chas*^      §  ^^^'  ^^®  officcr  Selling  has  the  authority  to  put  purchasers 
6ion  ofTand'  ^^  posscssion  of  land  sold,  as  in  other  cases. 

Property      §  ^^7.  Property  exempted  from  levy  and  sale  ordinarily,  is  ex- 
exempt  rom  gj3j^p^g(j  from  Icvy  and  sale  for  taxes. 

§  898.  When  property  is  levied  on  under  a  tax  fi.  fa.  issued 
bf^^^terTs^  either  by  the  Comptroller  General  or  Tax  Collector,  it  may  be 
^^tfiev-  claimed  by  a  third  person  and  tried  in  the  same  manner  as  other 
L??t'  to'^^gi^e  claims  are,  except  that  the  claimant  shall  give  a  bond  and  secu- 
br?iaWe  as  ^^^J  f^^'  ^^^  cvcntual  Condemnation  money,  and  if  found  subject, 
Eond.^^^^  such  claimant  and  his  sureties  shall  be  in  all  respects  liable  as 
on  appeal  bond. 

(a)  Acts  of  1861,  p.  80. 


PT.  1.— TIT.  7.— CHAP.  l.~PuBLic  Revenue. 


175 


Article  5. — Delinquent  Tax  Payers,  and  Proceedings  against  them. 


Property 
not  returned 


§  899.  When  property  is  assessed  for  taxes  which  has  not  been 
returned  by  any  one,  as  soon  as  assessed  the  Tax  Collector  shall  ^ut  assessed 

J         »i  ^  to  be  sold  or 

at  once  issue  an  execution  aejainst  it  for  the  amount  due  and  costs,  ^1^"^'  «i'^r- 

o  '  plus     paid 

and  the  Sheriff  shall  advertise  it  for  sale  in  some  public  gazette  and^Sly^be 
ninety  days  before  the  day  of  sale,  and  if  by  said  day  the  taxes  txvSl^nS 
are  not  paid,  it  shall  be  sold,  provided  renting  or  hiring  will  not 
bring  the  requisite  amount.  Whatever  overplus  there  may  be 
shall  be  paid  over  to  the  Ordinary  as  a  part  of  the  Educational 
Fund,  with  a  statement  of  the  property  and  account  of  sales,  sub- 
ject to  the  claim  of  the  true  owner  within  four  years. 

§  900.  Whenever  any  land  is  sold  by  virtue  of  a  tax  execution     Land  sold 

•^  "^  _    ^  under  tasj?. 

issued  under  this  Code,  the  owner  thereof  shall  have  the  privilege /«•  may  be 

'  X  o     redeemed  by 

of  redeeming  said  land  thus  sold  within  one  year  by  paying  the  owner. 
purchaser  the  amount  paid  by  said  purchaser  for  said  land,  with 
ten  per  cent,   premium  thereon,  from  the  date  of  the  purchase  to 
the  time  of  payment. 

§901.  If  there  is  not  sufficient  property  in  the  County  where  Tax^^./a. 
the  tax  payer  resides  to  satisfy  the  taxes,  property  situated  in  cminty.  ^^^ 
any  other  County  is  the  subject  of  levy  and  sale. 

§  902.  If  any  broker,  private  banker,  or  exchange  merchant,  or  Brokers, 
their  aojents,  m  this  State,  fail  to  return  the  amount  of  capital  to     return 

,  .  •'•  amount      of 

they  intend  to  employ  during  the  year,  they  shall  pay  a  tax  of  ^^J'jf'^i  ^^'^^^ 
five  hundred  dollars,  to  be  levied  and  collected  as.  other  taxes. 

§  903.   Any  incorporated  or  other    company  making  default,    Defuuiting 

•^  -^  i        e/  o  -'  companies. 

shall  be  taxed  by  the   Collector  as  such  defaulters  are  by  the 
Comptroller  General, 


ARTICLE   VI. 

DELINQUENT  TAX  RECEIVERS  AND   COLLECTORS,    AND    PROCEEDINGS 

AGAINST   THEM. 


Section. 

904.  Penalty  for  not  completing  digest. 

905.  Penalty  for  improper  digest. 

906.  Penalty  for  useless  digest. 

907.  Receivers'  liability— how  enforced. 

908.  Penalty  for  false  digest. 

909.  Penalty  for  deceiving  tax  payer. 

910.  Altering  digest  by  Collector. 

911.  Fi.fa.  vs.  Collector  and  sureties. 


Section. 

912.  Amount  of  penalty. 

913.  Fi.fas.  vs.  Tax  Officers. 

914.  How  fi.fa-  may  be  suspended. 

915.  Property  bound  from  date  of  bond. 

916.  Sales  under  Jl.  fas.  vs.  Tax  Officers. 

917.  Collector  must  await  digest. 

918.  Mustgive  bond,  etc.,  before  he  collect 


§  904.  If  a  Tax  Receiver  fails  to  have  his  digest  completed  and 
deposited  by  the  first  day  of  August  .in  each  year,  unless  excused 


/ 


176  PT.  1.— TIT.  7.— CHAP.  1.— PtJBLic  Kevenue. 

Article  6.-— Delinquent  Tax  Receivers  and  Collectors,  and  Proceedings  against  tliem. 


Eeceiver  bv  the  terms  of  the  law  or  by  the  Comptroller  General,  he  forfeits- 
failing        tO*^  1,11  IPl.  l-P 

complete  di-  for  everv  week  s  delay,  one-tenth  of  his  commissions  ;   and  if  the 

gest  to   for-  -^  "^  '  ' 

feitcommis-  delay  extends  beyond  thirty  days  he  forfeits  one-half  his  commis- 

Biona.  .  tJ         J 

sions ;  and  if  beyond  the  time  when  the  Governor  and  Comptroller 
fix  the  rate  per  cent.,  he  forfeits  all  his  commissions, 

§  905.    If  he  fails  to  make  out  his  digest  in  the  manner  pre- 

Faiiingto  scribed  by  law,  or  to  comply  with  the  directions  given  him  by  the 

perdigest,to  Comptroller  General,  in  so  doing;  he  forfeits  one-half  his  commis- 

forfeit     half     .         ^  '  ° 

comiuissions  sionS. 

§  906.  If  such  digest  is  made  out  so  badly  as  not  to  answer  the 
Making  a  purposc  of  the  tax  laws,  he  forfeits  all  his  commissions,  and  must 

useless      di-  -^  . 

gest,  to  for-  be  removed  from  office  by  the  Justices  of  the  Inferior  Court,  on 

feit  all  com-  •'  ' 

missions  and  the  rcQuest  of  the  Comptroller  General. 

06  removed.  -■■  '■ 

§  907.   If  he  receives  commissions,  which  he  is  not  entitled  to 
Becoming  roceivc  or  retain,  or  in  any  other  manner  becomes  possessed   of 

Indebted    to  .  . 

the   State—  any  money  belonginjgc  to  the  State,  or  incurs  any  liability  thereto, 

process      to*'  *'  .  .  .  . 

iss^e  against  the  Comptroller  General  is  authorized  to  issue  execution  or  other 
legal  process  against  him. 

§  908.   If  a  Receiver  makes  a  false  return  in  either  of  his  di- 
Making  gests,  cxpressivc  of  more  than  is  returned,  he  shall  forfeit  to  the 

false    return  'I'li  iiiin  i«r»i 

to  answer  to  party  aofgrieved,  m  all   cases,  one   hundred  dollars,   and  ]i  the 

party        ag'  -^        "^       ^°  '      .  '  .  ' 

grieved.  amount  out  of  which  such  party  is  defrauded  by  such  return  is 
more  than  one  hundred  dollars,  then  ten  dollars  for  every  one  dol- 
lar over  that  amount,  to  be  recovered  by  a  qui-tam  action. 

§  909.   If,  by  any  device,  intentionally,  he  causes  the  tax  payer 
Liable  for  to  pay  morc  than  his  lawful  tax,  the  provisions  of  the  preceding 

deceiving 

tax  payer.      bection  apply. 

§  910.   If  any  Collector,  with  fraudulent  intent,  alters  the  digest 
Collector  rendered  to  him,  or  any  other  of  the  digests  of  his  County,  he  is 

fraudulently  '  '^  .      .  ,      „    ,  •    i       i  i        • 

altering  di-  guilty  of  forgery,  and,  on  conviction,  shall  be  punished  by  impris- 
of  forgery,    oumcnt  in  the  penitentiary  for  not  less  than  two  nor  longer  than 
ten  years, 

§  911.   If  any  Collector  shall  fail  to  settle  his  accounts  with  the 
Execution  Comptroller  General  in  the  terms  of  the  law,  he  shall  issue  execu- 

toissue-'-  ■' 

orfafiure^to  ^^*^^  against  him  and  his  sureties  for  the  principal  amount,  with 
counts'!'''^''"  the  penalty  and  costs. 

§  912.   The  penalty  is  twenty  per  cent,  per  annum,  upon  the 
Amount  of  amount  retained,  from  the  time  of  default  until  paid,  which  in- 
cludes interest. 
§  913.  All  executions  and  other  process  against  Collectors  and 


PT.  1.— TIT.  7.--CHAP.  1.— Public  Revenue.  17T 

Article  6. — Delinquent  Tax  Eeceivers  and  Collectors,  and  Proceedings  against  them. 
Receivers  must  be  directed  to  all  and  sino-ular  the  Sheriffs  of  this       Fi.fas. 

'-'  against  Col- 

State,  and  must  be  executed  by  them,  their  lawful  deputy,  or  other  ^^^f^^'J'^^^^^ 
officer  lawfully  in  their  stead.  executed. 

§  914.  Executions  so  issued  shall  not  be  suspended  or  delayed    Not  to  be 

,       7-v,  suspended, 

by  any  judicial  interference  with  them,  but  the  Governor  may  sus-    etc. 
pend  the  collection  not  longer  than  the  next  meeting  of  the  Gen- 
eral Assembly. 

§  915.  The  property  of  Collectors,  Receivers,  and  of  their  sure-  Property  of 

.  r      i         J  1  ^  ?  Collectors, 

ties,  is  bound,  from  the  execution  of  their  bonds,  for  the  pay-  Eeceivers, 
ment  of  taxes  collected  and  the  discharge  of  their  duties. 

§  916.  The  proceeding's  in  sellinsj  property  under  such  execu-  Levy  and 
tions  must  be  the  same  as  under  fi.  fas.  issued  from  the  Superior^-  /««., etc. 
Court. 

§  917.  If  any  Collector  shall  collect,  or  attempt  to  collect,  any      collector 
taxes  before  the  Receiver  has  completed  and  transmitted  his  di-  taxes,  etc. 
gest  to  the  Comptroller  General,  unless  specially  so  ordered  by 
such  officer,  or  allowed  by  special  enactment,  he  forfeits  to  the 
State  double  the  amount  so  collected,  or  attempted  to  be  collected, 
to  be  recovered  by  execution  issued  by  the  Comptroller  General. 

§  918.  If  any  Collector  collects,  or  attempts  to  collect,  any  tax      collector 

T     p  1        1  •  11  111  notto  collect 

before  he  has  2;iven  and  had  approved  the  necessary  bonds  and  tax    before 

°  ^  ^  ,  "^  giving  bond, 

security,  and  taken  the  oaths  of  office,  he  is  guilty  of  a  misde-  etc. 
meaner,  and,  upon  indictment  and  conviction,  shall  be  fined  not 
less  than  one  hundred  dollars,  and,  in  addition,  double  the  amount 
so  collected,  and  in  default  of  payment  three  months'  imprison- 
ment in  the  common  jail.     The  Governor  may  vacate  the  commis- 
sions of  defaulting  Tax  Collectors,  or  of  Tax   Receivers  failing     Governor 
or  refusing  to  do  their  duty,  and  in  such  event  the  vacancy  shall  SmilsSon? 
be  filled  in  the  manner  prescribed  for  other  vacancies. 


ARTICLE  YII. 


TAX     RECEIVERS. 


Section. 

919.  How  Receivers  are  elected,  etc. 

920.  Vacancies — how  filled. 

921.  Receiver's  oath. 

922.  Liability  on  bond. 

923.  Receiver's  duties  specified. 

924.  His  failure  to  advertise  no  excuse. 


Section. 

925.  Penalty  for  refusing  return. 

926.  Party  refused,  etc. 

927.  Clerk  must  forward  returns. 

928.  Claim  of  right  to  assess — no  refusal. 

929.  Receiver's  pay  from  County. 


§  919.  Tax  Receivers  shall  be  elected  on  the  first  Wednesday  in 
12 


178  PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue. 

Article  7. — Tax  Keceivers. 

Tax  Ee"  Januarj  of  each  year,  for  tlie  term  of.  one  year,  and  are  comnjis- 
eiected,etc.  sionod  and  qualified  as  Clerks  of  the  Superior  Court  are. 

§  920.  Yacancies  are  filled  as  vacancies  for  such  Clerks,  but  if 

^'^acancies  there  is  not  time  to  fill  the  same  by  the  first  day  of  May  in  each 

year  by  election,  the  Justices  of  the  Inferior  Court  shall  appoint 

one,  who  shall  discharge  the  duties  of  the  office  for  the  balance  of 

the  year. 

§  921.  Such   Receiver,  whether  elected   or   appointed,   before 
Eeceiver's  entering  on  the  duties  of  his  office,  besides  the  oath  required  of 
all  civil  officers,  must  take  and  subscribe  the  following  oath: 

"I  swear  that  I  will  truly  and  faithfully  perform  the  duties  of 
Receiver  of  returns  of  taxable  property,  or  of  persons  or  things 
specially  taxed  in  the  County  to  which  I  am  appointed,  as  required 
of  me  by  the  laws,  and  will  not  receive  any  return  but  on  oath  or 
affirmation,  and  will,  before  receiving  returns,  carefully  examine 
each,  and  will,  to  the  best  of  my  ability,  carry  out  all  the 
requirements  made  upon  me  by  the  tax  law.  So  help  me  God." 
[He  shall  also  at  the  same  time  give  bond  and  security  in  a 
Shall  give  gum  cQual  to  oue-lialf  of  the  amount  of  the  State  tax,  supposed 

bond  and  se-  ^  7        r  r 

curity.  -^o  })q  due  from  the  County,  for  the  year  in  which  he  shall  give 
bond;  the  amount  of  said  bond  to  be  filled  up  by  the  Comptroller 
General  before  being  sent  out  to  the  several  Counties  from  the 
Executive  Office.]  (a) 

§  922.  Receivers  and  their  sureties  are  liable  on  their  bonds  for 
Liability  all  penalties  or  forfeitures  they  may  incur  under  the  law,  and  for 

of  Receivers,  ^  ./  t/  7 

etc.  all  losses,  or  damage,  or  expense  the  State  may  sustain  by  reason 

of  their  conduct. 

§  923.  It  is  his  duty— 
Duties  of     1*  To  receive  all  returns  of  taxes  within  the  time  and  in  the 
umSated.^^  manner  prescribed  by  law. 

2.  To  make  out  and  perfect  the  three  digests  in  writing  and 
figures  plainly,  legibly,  and  neatly,  and  to  properly  deposit  them. 

3.  To  give  ten  days'  notice  in  writing  of  the  several  times 
and  places  at  which  he  will  attend  in  the  several  Militia  Districts 
of  the  County,  for  the  purpose  of  receiving  tax  returns. 

4.  To  attend  at  such  place  at  least  three  times  during  the  time 
allowed  in  which  to  make  returns. 

5.  To  keep  a  standing  advertisement  as  to  the  day  or  days 
when  he  will  be  at  the  County  site  for  such  purpose. 

(a)  Acts  of  1863-4,  p.  134. 

m 

m 


PT.  l.~TIT.  7.-- CHAP.  1.— Public  Revenue.  179 

Article  7. — Tax  Receivers. 

6.  To  receive  tax  retLirns  at  any  time  wlien  a  tax  payer  applies 
to  give  in. 

7.  To  embrace  in  his  digest  to  the  Comptroller  General,  the 
Clerk  of  the  Inferior  Court  and  the  Tax  Collector,  respectively, 
a  list  of  all  defaulters,  and  the  amount  of  their  true  and  double 
tax,  and  of  all  property  assessed  by  them  and  returned  by  no 
one,  or  other  special  action  had  in  conformity  to  the  laws. 

8.  To  publish  at  the  door  of  the  Court  House  for  thirty  days 
lists  of  all  the  defaulters  and  the  amount  of  their  double  taxes. 

9.  To  take  from  each  tax  payer  resident  of  the  County  at  the 
time  of  receiving  his  tax  returns  the  number  of  his  own  children 
between  the  ages  of  six  and  eighteen  years,  and  those  for  whom 
he  is  guardian,  and  enter  the  same  in  the  proper  place  and  column 
in  the  digests. 

10.  To  assess  upon  the  digests  deposited  with  the  Clerk  of  the 
Inferior  Court  the  County  taxes  according  to  law,  and  the  rate 
per  cent,  levied  by  the  Justices  of  the  Inferior  Court. 

11.  To  conform  to  such  rules  as  he  may  be  furnished  with,  and 
to  obey  such  orders  as  may  be  given  by  the  Comptroller  General. 

12.  To  perform  all  other  duties  that  the  law  requires,  and 
which  necessarily  under  the  law  appertain  to  his  office. 

§  924.  It  shall  not  be  an  excuse  to  any  person  for  not  making    Negiigenee 

^  ,  .  ,       ,  .  ,  1       T->         •  1        T  1  ^^  Keceiver, 

a  return  oi  his  taxes  as  the  law  requires,  that  the  KeceiTer  should  etc. 
fail  to  advertise  or  fill  his  appointments. 

§  925.  If  any  Receiver  refuses  to  receive  any  return  of  taxes     Eefusai  of 

IiBCGiv6r    to 

when  properly  tendered,  and  in  presence  of  a  witness,  and  in  the  receive    re- 
time  the  law  requires,  he  is  guilty  of  a  misdemeanor,  and  on  in- 
dictment and  conviction,  shall  be  fined  not  less  than  fifty  dollars. 

§  926.  The  person  whose  return  is  thus  refused  may  save  a  ^^^  whose 

^  i-  tJ  return      has 

double  tax  by  making  his  return  to  the  Clerk  of  the  Inferior  Court,  ^"^^  been  re- 

J  o  '  ceived,  etc. 

together  with  an  affidavit  in  writing  that  he  tendered  said  return 
to  the  Receiver,  stating  the  time  when,  place  where,  and  persons 
present,  and  that  it  was  refused. 

§  927.  Such  Clerk  shall  forward  a  copy  of  said  return  and  affi-  tum'ifmade 
davit  to  the  Comptroller  General  instanter,  and  retain  the  orio-inals,  ^^JfT\  f, 
for  which  he  shall  be  entitled  to  one  dollar  from  the  tax  payer.      ^^'^^^" 

§  928.  The  claim  of  the  Receiver  to  assess  a  tax  payer's  prop-  f^^  ,'^^["^2' 
erty  is  not  a  refusal  to  receive  a  return.  ^''^• 

§  929.  The  County  shall  pay  the  Receiver  one-half  of  what  the  ^^^^^l^^'^ 
Collector  gets  for  collecting  the  County  tax. 


180  PT.  1.— TIT.  T.— CHAP.  1.— Public  Revenue. 

Xtm ^ ■ — ■ ■ 

Article  8. — Tax  Collectors. 


ARTICLE  VIII. 


TAX     COLLECTORS. 


Section. 

930.  Election  and  qualification. 

931.  Vacancies — how  filled. 

932.  Collector's  oath. 

933.  Collector's  bond. 

934.  Bond  for  County  tax — ^how  approved. 


Section. 

935.  Mvist  give  bond  before  he  collects. 

936.  County  Collector  appointed — when. 

937.  Collector's  duties  specified. 

938.  His  failures  no  excuse  for  others. 


§  930.  Tax  Collectors  are  elected  at  the  same  time,  in  the  same 
Election,  manner,  for  the  same  term  of  office,  and  are  commissioned  and 

commission 

of  Tax  Col-  qualified  as  Tax  Receivers. 

lectors,  etc.    -*• 

§  931.  Yacancies  are  filled  as  they  are  in  the  office  of  Receiver, 
Vacancies  and  Section  No.  920,  respectins;  Receivers,  applies  to  Collectors, 

—h«>w  filled.  ?         r  &  ?     rr  > 

except  so  much  thereof  as  fixes  the  first  day  of  May,  and  in  lieu 

thereof  for  Collectors  the  first  day  of  August  shall  be  the  time. 

§  932.  Before  entering  on  the  duties  of  his  office,  besides  the 

Collector's  oath  required  of  all  civil  officers,  he  shall  take  and  subscribe  the 

following  oath : 


-,  Tax  Collector  of  the  County  of 


do  swear 


that  I  will  faithfully  discharge  the  duties  required  of  me  by  law 
as  Tax  Collector,  and  that  I  will  search  out  and  make  a  true  return 
of  all  defaulters,  polls,  professions,  and  all  taxable  property  not 
found  on  the  Tax  Receiver's  digest,  or  not  returned  to  the  Clerk 
of  the  Superior  Court  by  the  fifteenth  of  August,  and  that  I  will 
pay  over  all  taxes  collected  by  me  as  required  by  law.  So  help 
me  God." 

§  933.  [He  shall  also  give  bond  and  security  for  thirty-three 
Amount  of  and  one-third  per  cent,  more  than  the  State  tax  supposed  to  be  due 

bonds      and  ■*■  .  .  .       -, 

their  condi-  from  the  Couutv  for  the  vear  for  which  said  officer  is  required  to 

tions.  t/  •/  A 

give  bond,  the  amount  of  the  bond  to  be  filled  up  by  the  Comp- 
troller General  before  being  sent  out  to  the  County  from  the 
Executive  Office,]  (a)  and  shall  give  another  bond  with  sufficient 
security,  payable  to  the  Justices  of  the  Inferior  Court,  conditioned 
for  the  faithful  performance  of  his  duties  as  Collector  of  the  County 
tax,  in  a  sum  to  be  fixed  by  such  Justices. 

§  934.  Such  bond  for  County  taxes  when  given  must  be  approved 
Approyed  bv  three  Justices  of  the  Inferior  Court,  filed  in  the  office  of  their 

by    Inferior 

Court.         Clerk,  recorded  in  the  book  with  other  official  bonds,  and  in  ail 
respects  is  an  official  bond. 


(a)  Acts  of  1863-4,  p.  124. 


PT.  1.— TIT,  7.— CHAP.  1.— Public  Revenue.  181 

Article  8. — Tax  Collectors. 
§  935.  Tax  Collectors  shall  not  collect  any  portion  of  the  County    Bond  tobe 

"^  ,  .  ,  given,  etc. 

tax  until  such  bond  is  given,  and  if  they  fail  to  give  such  a  bond, 
or  one  satisfactory  to  such  Justices,  they  may  appoint  some  com- 
petent person  to  collect  the  County  tax. 

§  936.  When  such  an  appointment  is  made,  the  person  appointed       ©uty  of 

.  iiT  .  '        1       n  rr\  r^    ^^  ii       person  60  ap- 

shall  give  such  a  bond  as  is  required  oi   a  lax  Collector,  and  ne  pointed. 
shall  take  an  oath  faithfully  to  collect  and  pay  over  the  County 
tax,  and  in  all  respects  shall  have  the  same  privileges,  discharge 
the  same  duties  and  incur  the  same  penalties  as  the  Tax  Collector 
would  in  collecting  the  County  tax. 

§  937.  It  is  the  duty  of  the  Tax  Collector— 

1.  To  diligently  collect  and  promptly  pay  over  in  the  funds  ^^^jJJ®^**^'''! 
allowed  by  law  the  State  and  County  taxes  to  the  Comptroller  »i«™ted. 
General  and  the  County  Treasurer  respectively. 

2.  To  search  out  and  ascertain  as  far  as  possible  all  polls  and 
professions,  and  all  taxable  property  not  returned  to  the  Receiver 
or  not  found  in  his  digests. 

3.  To  enter  all  of  such  defaults  in  a  book  kept  for  that  purpose, 
to  assess  and  collect  thereon  a  double  tax  and  pay  the  same  over 
to  the  Comptroller  General  and  County  Treasurer  respectively, 
after  deducting  [single]  (a)  commissions,  and  to  deposit  said  book 
with  the  Comptroller  General,  and  a  copy  with  the  Clerk  of  the 
Inferior  Court,  before  the  day  of  final  settlement. 

4.  To  have  his  insolvent  lists  allowed  in  the  manner  required 
by  law  before  final  settlement  with  the  Comptroller  General. 

5.  To  issue  executions  against  all  defaulters  and  insolvents,  and 
place  them  with  the  proper  officer  for  collection. 

6.  To  give  notice  of  the  time  and  places  of  his  attending  to 
collect  the  taxes,  and  of  the  days  he  will  be  at  the  Court  House, 
and  there  to  attend  during  the  time  for  collection  as  required  of 
the  Receiver. 

7.  To  publish  at  the  door  of  the  Court  House,  for  thirty  days, 
his  insolvent  lists,  including  the  taxes  of  each  person  thereon. 
To  furnish  to  election  managers  of  the  County  lists  of  all  persons 
who  have  not  paid  their  taxes. 

8.  To  pay  the  Receiver  his  commissions,  upon  the  production 
of  the  Comptroller  General's  receipt  for  his  digest,  with  a  speci- 
fication therein  of  the  amount  of  commissions  to  which  he  is  enti- 

(a)  Acts  of  1862-3,  p.  57. 


182 


JL    _L.       JL. J-O-JL.        *. V/XJ-XiX   .     JL, Ju    UAJUXO     XtJCi  V  J2ji\  U  J3i. 


Article  9. — CompensaLion  of  CoilectOi's  and  Eectivers. 


tied,  and  not  otherwise ;  and  to  produce  said  Receiver's  receipts^ 
with  his  receipts  thereon,  to  the  Comptroller  General,  before  he 
shall  be  allowed  credits  for  such  commissions. 

9.  To  conform  to  such  rules  as  may  be  furnished,  and  to  obey 
such  orders' as  may  be  given  by  the  Comptroller  General. 

10.  To  perform  all  other  duties  that   the  law  requires,   and 
which  necessarily,  under  the  law,  appertain  to  his  office. 

Silence  §  ^^^'  ^^  ^^  HO  cxcuse  to  any  person  for  not  paying  his  taxes- 
to  dSit-  as  the  law  requires,  that  the  Collector  should  fail  to  advertise  or 
payer.  *^^  fiH  liis  appointments. 


ARTICLE  IX, 

COMPENSATION  05^  COLLECTORS  AND  RECEIVERS. 
Section  939.  Pay  of  Receivers  and  Collectors. 

§  939.  The  following  rates  of  commissions  shall  be  allowed  in 
Commis-  the  net  amount  of  each  dio^est  to  each  Receiver  and  Collector  of 

sions  of  Ee-  ^         " 

ceiver  and  the  State  taxcs,  \_^rovided,  that  no  Receiver  of  Tax  Returns  or 
Tax  Collector  shall  receive  more  than  fifteen  hundred  dollars, 
commissions  on  the  general  State  Tax]  (a) — to  wit : 

On  all  digests  over  $20,000. 3  per  cent. 


10,000  and  under  $20,000 4 


"     under 


6,000 
4,000 
3,000 
2,000 
1,000 
1,000. 


10,000... 5 

6,000 6 

4,000... 7 

3,000 8 

2,000 9 

.....10 


ARTICLE  X. 


MISCELLANEOUS     PROVISIONS, 


Section, 

940.  Comptroller  may  make  rules. 

941.  Rules  to  be  furnished  tax  officers. 


Section. 

942.  Rules  to  be  published. 

943.  Bonds  of  tax  officers  sued  on. 


§  940.  The  Comptroller  General  has  authority  to  make  all  need- 

r^TJnlrii  ^^  rulcs  and  regulations  for  the  government  of  Tax  Collectors 

rules Sr\S>f-  ^^id  Rcccivers,  and  any  other  rules  that  may  be  necessary  to  in- 


ter 

to 


(a)  Acts  of  1863-4,  p.  16. 


PT.  1.— TIT.  7.— CHAP.  1.— Public  Revenue.  183 

Article  10. — Miscellaneous  Provisions. 


sure  the  prompt  and  faithful  execution  of  the  tax  laws,  if  not  in  lectors   and 

■*•  ^  ^  ^  Eeceivers. 

violation  of  or  inconsistent  therewith. 

§  941.  These  rules,  when  made,  shall  be  entered  in  a  book  in     Enter  the 

-  -,  1    I       I  .     T.  T,  same    in    a 

his  oflace,  kept  tor  that  purpose,  and  be  binding  on  all  successors  book     and 

11  11-  n       ^  '    1        1      11    1  •  furnishthem 

until  amended  or  repealed,  copies  of  which  shall  be  printed  and  to  Receivers 
furnished  to  Receivers  and  Collectors  at  the  time  of  sending  them  tors. 
the  forms  required. 

§  942.  They  shall  also  be  printed  during  the  month  of  March  pu^'J^sJjthem 
every  year  in  a  public  gazette  published  at  the  seat  of  Govern- j^°jf  ^^^^p^' 
ment,  if  in  the  discretion  of  the  Comptroller  he  shall  deem  it  ben- 
eficial. 

§943.  Nothing  shall  be  so  construed  as  to  make  the  Collector's  c,?iie"cto?3 
and  Receiver's  bonds  not  subject  to  be  sued  according  to  due  co^j^fr^s 
process  of  law,  but  which  is  not  to  be  done  unless  some  emer-  te^uSon 
gency  should  make  it  necessary. 


CHAPTER    II. 

REVENUE     FROM     OTHER     SOURCES. 


Section. 

944.  Sources  of  revenue,  etc. 

945.  What  moneys  go  into  Treasury. 


Section. 

946.  What  fees  go  into  Treasury. 


§  944.  The  sources  from  which  the  State  does  or  may  derive    Revenueof 

•^  the     S  t  a  t  e 

revenue,  other  than  by  taxation,  are  as  follows  :  from  sources 

^  "^  '  other     than 

1.  The  net  earnings  of  the  Western  and  Atlantic  Railroad.        taxation  en- 

o  umerated. 

2.  Dividends  on  the  bank  stock  owned  by  the  State. 

3.  Dividends  or  interests  on  the  stock  owned  in  the  Main 
Trunk  Railroad. 

4.  Sale  of  State  bonds  at  a  premium. 

5.  The  use  by  individuals  of  any  other  property  of  the  State. 

6.  Receipts  for  military  or  other  claims  against  the  United 
States. 

7.  Receipts  from  assets  of  the  Central  Bank  and  other  old 
claims. 

8.  Receipts  on  claims  from  Tax  Collectors  or  other  officers 
for  previous  years,  which  were  in  litigation  or  regarded  as  in- 
solvent. 

9.  Dues  for  the  sale  of  reverted  or  other  land  to  which  the- 
State  may  have  the  title. 


Miscella- 
neous reve- 
nue to  be 
paid  into  the 
Treasury. 


Tees  to  be 
paid  to 
Treasurer ; 
those  of 
Governor's 
Secretary, 


184  PT.  1.— TIT.  7.— Public  Revenue. 

Chapter  2. — Revenue  from  Other  Sources. 

10.  Fees  which  the  Secretaries  of  the  Governor,  the  Secretary 
of  State,  the  Treasurer,  the  Comptroller  General,  and  Librarian, 
may  receive  for  official  duties. 

§  945.  All  the  receipts  from  the  resources  mentioned  in  the 
preceding  Section,  all  fees  not  specially  awarded  to  any  particu- 
lar officer,  all  fines  and  forfeitures  not  otherwise  disposed  of,  all 
moneys  collected  from  any  source  or  on  any  account,  to  which 
the  State  is  entitled,  not  otherwise  directed,  must  be  paid  into  the 
State  Treasury. 

§  946.  The  fees  which  officers  are  allowed  to  charge,  and  which^ 
when  collected,  must  be  paid  to  the  Treasurer,  are  as  follows: 

1.  Those  by  the  Secretaries  of  the  Governor : 

A  grant  for  100  acres  or  under $1  00 

A  grant  for  over  100  acres  or  under  oOO  acres 2  00 

A  grant  for  over  300  acres  or  under  500  acres 3  00 

A  grant  for  over  500  acres  or  under  1000  acres , 4  00 

A  grant  for  1000  acres  and  over,  one  per  cent,  per  acre  for  every 

additional  acre. 
Affixing  the  Great  Seal  of  the  State,  by  order  of  the  Governor,  to 

any  thing  of  a  private  nature 2  00 

For  every  examination  of  records  per  request 50 

Administering  oath  of  office  to  a  salaried  officer  and  giving  certifi- 
cate thereof 1  00 

Entering  a  testimonial 50 

Attaching  the  Seal  of  the  Executive  Department 1  00 

Certified  copy  of  any  record  not  more  than  300  words 1  00 

If  more  than  300  words,  per  100  words 10 

2.  Those  by  the  Secretary  of  State : 

For  a  grant  of  land  and  affixing  the  Seal  thereto,  the  same  as  is 
allowed  the  Secretaries  of  the  Governor,  according  to  the 
number  of  acres. 

For  registering  each  grant 50 

For  registering  bond  or  other  similar  writing 1  OO 

For  a  testimonial  without  the  Great  Seal 1  00 

For  a  testimonial  with  the  Great  Seal 2  00 

Affixing  the  Great  Seal  to  any  other  paper 1  00 

For  a  certified  copy  of  a  grant  to  land 1  00 

For  a  certified  copy  of  any  other  paper  not  of  more  words 1  00 

For  more  words,  per  hundred 10 

For  every  search  per  request 25 

Treasurer.      3.  Thoso  by  the  Treasurer  : 

For  every  extract  or  copy  from  any  book,  minutes,  or  file  of  office, 

not  more  than  300  words 1  00 

For  every  additional  100  words 10 

For  every  search  by  request 25 


Secretary 
of  State. 


PT.  1.— TIT.  7.— Public  Revenue. 


185 


Comptroller 
General, 


Surveyor 
General. 


Chapter  2. — Revenue  from  Other  Sources. 

4.  Those  by  the  Comptroller  General : 

Every  extract  or  copy  from  any  book,  minutes,  or  file  of  office,  not 

more  than  300  words 1  00 

For  every  additional  100  words. 10 

For  every  search  by  request 25 

5.  Those  by  the  Secretary  of  State  as  Surveyor  General : 

For  examining  a  plat 50 

For  recording  a  plat 1  25 

For  recording  a  plat  of  a  town,  township,  or  village 10  00 

Transmitting  a  caveat  to  Governor  and  attending  thereon 1  00 

Certified  copy  of  any  original  record  not  more  than  300  w^ords. ...  1  00 

For  every  additional  100  words 10 

Certified  copy  of  an  original  warrant 50 

Issuing  a  certificate  of  a  record 50 

For  every  search  per  request 25 

6.  Those  by  the  Librarian  : 

Certifying  to  the  existence  or  contents  of  any  manuscript,  map,  or 

other  document  intrusted  to  his  keeping 1  00 

Furnishing  copies  of  his  catalogue  of  books 50 


Librarian. 


TITLE    VIIL 

THE      PUBLIC      DEBT. 


CHAPTER   I. 


THE     PUBLIC     DEBT. 


Section, 

947.  State  bonds — how  authenticated. 

948.  Amount  of  bonds — time  of  payment. 

949.  Coupons— how  signed  and  paid. 

950.  Bond  must  accompany  coupon,  etc. 

951.  State  bonds — where  payable. 

952.  Bonds  may  be  exchanged— when. 

953.  Bonds  taken  up  not  to  be  re-issued. 

954.  New  bonds  may  issue  for  lost  ones. 

955.  On  what  showing  new  bonds  issue.      1 


Section. 

956.  State  must  be  indemnified. 

957.  Stolen  bonds — how  renewed. 

958.  Bonds,  etc.,  paid  off- how  kept. 

959.  Payment  of  bonds  provided  for. 

960.  Surplus  set  apart. 

931.  Overplus  paid  to  bonds  not  due. 

962.  Bonds  paid  before  due  to  be  reported. 

963.  Provisions  for  education,  etc. 


§947.  All  bonds  or  certificates  of  the  State  for  the  State  debt  state  bonds 
must  be  authenticated  by  the  signature  of  the  Governor,  the  Sec-  cates— how 
retary  of  State,  and  stamped  with   one  side  of  the  seal  of  the  ^''^^ 
State — to  wit,  that  side  which  has  on  it  the  motto,   ''Wisdom, 
Justice,  and  Moderation." 


186  PT.  1.— TIT.  8.— The  Public  Debt. 


■ 


Chapter  1.— the  Public  Debt. 


§  948.  They  shall  be,  unless  otherwise  specially  ordered  by  the 
Amoimts  General  Assembly,  in  sums   of  five  hundred  and  one  thousand 

of,  and  how  *' 

payable.  dollars  each,  payable  in  twenty  years  after  their  date,  bearing  in- 
terest at  six  per  cent,  per  annum,  which  interest  is  payable  semi- 
annually by  coupons  thereto  annexed. 

§  9 19.  They  may,  before  or  after  issued,  be  presented  to  the 
how^'^K^  State  Treasurer,  who  shall  sign,  in  his  official  capacity,  all  the 
and  paid,  coupous  thereto  attached,  which  then  may  be  paid  at  maturity  by 
the  Treasurer  without  the  presentation  of  the  bond,  or  further 
■warrant  or  authority. 
si<Snotto  §  ^^^'  ^^  coupons  are  not  thus  signed,  they  shall  not  be  paid, 
{Ss^^accom-  uulcss  accompanicd  by  the  bond  to  which  they  belong,  and  before 
the  bond.  ^^  payment  shall  be  by  the  Treasurer  detached. 

§  951.  The  principal  and  interest  shall   be  made   payable  at 
"When  pub-  such  placc  in  this  State  or  other  of   the  United  States   as  the 

iic    debt    to 

be  paid.       Govemor  may  in   his  discretion  direct,  and  he   may  direct  the 

principal  payable  at  one  place  and  the  interest  at  another. 

§  952.  Where  citizens  of  this  State  become  possessed  of  State 

Bonds  pay- bonds  payable  out  of  this  State,  the  Governor  may  give  in  ex- 

Sid  b  ^Sti'  c^^^g®  foi'  them  bonds  payable  herein,  provided  there  is  no  loss 

excha??d^^  to  the  State  by  the  exchange,  and  the  expense  thereof,  if  any,  is 

borne  by  the  holders  of  the  bonds. 

§  953.  When  such  exchange  occurs,  the  original  bonds  so  taken 
Suchorigi-  up  shall  not  be  re-issued  on  any  account  whatever,  unless  specially 
notto  here- provided  for  bv  the  General  Assembly. 

issued.  r  t/  j 

§  954.  When  any  bond  or  coupons  shall  be  lost,  mutilated,  or 
Lost  bonds  dcstroycd,  the  Governor  may  issue  to  the  holder  a  new  bond,  with 

or  coupons.  "^  '' 

proper  coupons  attached. 

§  955.  When  mutilated,  the  mutilated  bonds  must  be  surren- 
liiew  bonds,  dcrcd ;  when  lost  or  destroyed,  the  holder  must  make  affidavit  of 
ed.'  such  fact,  that  they  were  his,  in  his  own  or  some  other  right,  at 

the  time  of  the  loss  or  destruction ;  if  lost,  that  he  has  made  dili- 
gent search  without  avail,  and  despairs  of  ever  finding  them. 
§  956.  Having  made  such  affidavit,  he  shall  then,  before  receiv- 
Bond  and  incp  the  ncw  boud,  e^ive  bond  and  surety  to  the  Governor  in  a  sum 

surety  to  be       '^  '  ^  •^ 

given,  double  the  amount  of  the  principal  thereof  and  the  unpaid  in- 
terest thereon,  conditioned  to  save  the  State  harmless  on  account 
of  issuing  such  new  bond. 

§  957.  [The  Governor  is  authorized  to  issue  a  new  bond  or  bonds 
in  lieu  of  a  bond  or  bonds  of  the  State  which  may  have  been 


PT.  1.— TIT.  8.— The  Public  Debt.  187 

Chapter  1.— The  Public  Debt. 

stolen,  upon  the  holders  makins;  affidavit  as  provided  for  in  Sec-  New  bonds 
tion  955,  provided  said  holders  may  have  given  or  shall  give  those  stolen. 
twelve  months'  notice  of  the  loss  or  theft  of  said  bonds,  fully  de- 
scribing the  same,  at  the  Treasury  of  the  State,  at  least  twelve 
months  prior  to  the  time  when  said  new  bonds  may  be  or  shall  be 
issued ;  provided  that  no  new  bond  shall  be  issued  for  or  in  lieu  of 
any  lost  or  stolen  bond  until  the  owner  of  such  bond  shall  first 
give  to  the  State  a  bond  with  security,  to  be  approved  by  the  Gov- 
ernor for  the  time  being,  fully  indemnifying  the  State  against  the 
payment  of  the  bond  so  lost  or  stolen.]  (a) 

§  958.  When  bonds  or  coupons  are  paid,  they  must  be  stamped  Disposition 

1    .         1        m  ,         m  ■    1       ^  ^         of     bonds 

as  paid,  and  preserved  m  the  Treasurer  s  office  with  the  same  care  and  coupons 

■^  when  paid. 

as  the  funds  of  the  State. 

§  959.  An  amount  of  money  stands  annually  appropriated  suffi-    Appropria- 

1  1     1    1    1  r»      1       tionannually 

cient  to  pay  the  principal  and  interest  of  any  bonded  debt  of  the  for    bonded 
State  becoming  due  during  the  year. 

§  960.  Any  surplus  in  the   Treasury  after  allowing  for  all  the        surplus 

in   Treasury 

annual  charges   against  it,  includinsi;  such  claims,  is  likewise  ap-  appropriated 

^  °  '  ^  '  -^    to      bonded 

propriated  to  the  same  object.  debt. 

§  961.  Whatever  amount  may  remain  from  the  appropriations   surplus  ap- 
contained  in  the  two  preceding  Sections  more  than  enough  to  pay  may  be  ap- 

Tiii  -ir»i/-.  plied  by  the 

such  debts  may  be  applied,  by  the  order  of  the  Grovernor,  to  re-  Governor. 
deeming  any  particular  class  of  bonds  not  due  as  he  may  order, 
and  which,  in  his  judgment,  it  is  to  the  interest  of  the  State  to 
prefer  and  anticipate. 

§  962.  All  bonds  redeemed   before  maturity  must   be  by  the     Bonds  re- 

.  deemed   be- 

Governor  annually  reported  to  the  General  Assembly,  particu-  fore  due. 
larly  described,   and    the   terms   upon   which   they  were   so   re- 
deemed. 

§  963.  For  the  purpose  of  carrying  into  effect  the  changing  of     Provision 
the  public  debt  paid  with  the  net  earnings  of  the  Western  and  P^'^^^f  ^  i^ 

^    ,  ,  ^  °    .  W.  and  A.  R. 

Atlantic  Railroad  into  a  permanent  Educational  Fund,  the  Gov-  ^onaS^J'. 
ernor  is  authorized  to  substitute  other  State  bonds  bearing  the 
same  rate  of  interest  for  those  in  the  hands  of  holders,  and  to 
issue  new  bonds  and  arrange  them  upon  such  schedule  and  paya- 
ble at  such  periods  as  that  by  providing  annually  a  sinking  fund, 
the  whole  principal  of  the  public  debt  shall  be  extinguished  by 
the  time  the  last  bonds  shall  become  due.     This  sinking  fund, 

(a)  Acts  of  1866,  p.  18.  '"-v^ 


188  PT.  1.— TIT.  9.— Public  Property. 


Chapter  1. — Public  Buildings. 


Annual  when  ascertained,  shall  be  paid  out  of  the  net  earnincrs  of  the 

sinkinsfund  iAi'-r»-ii  ^ 

— how~"paid :  "Western  and  Atlantic  Railroad,  and  until  ascertained  the  Gov- 

pnbiic     debt 

— whenpaid.  emor  shall  use  so  much  of  the  earnings  of  said  road  as  shall  be 
necessary  to  meet  said  bonds  annually  falling  due. 


TITLE    IX. 

PUBLIC       P  Pv  0  P  E  R  T  Y  . 


CHAPTER    I. 

PUBLIC     BUILDINGS. 

Section.  i  Sectiox. 

964.  Buildings  owned  by  the  State.  |        965.  Buildings  the  State  is  interested  in. 

§  964.  The  buildings  and  those  appurtenant  thereto  belonging 
BuiidiDgs  to  the  State  are — 

owned       by 

the  State.         The  State  Capitol. 

The  Governor's  Mansion. 

The  State  Arsenals  at  Milledgeville  and  Savannah,  and  the 
Military  Institute  at  Marietta ;  the  Deaf  and  Dumb  Asylum  at 
Cave  Spring ;  the  Lunatic  Asylum  near  Milledgeville ;  the  Peni- 
tentiary at  Milledgeville;  the  buildings  of  the  Western  and  At- 
lantic Railroad. 

§  965.  The  State  has  an  interest  in — 
Partly      The  Univcrsitv  of  Georgia  at  Athens. 

owned  by  the  »'  " 

State.  The  Asylum  for  the  Blind  at  Macon. 


CHAPTER    II. 

THE     LANDS      OF     THE     STATE. 

Sectiox  966.    Lands  reserved  to  the  State. 

§  966.  The  lands  specially  reserved  to  the  State  are — 
The  lands  known  as  the  "Macon  Reserve"  on  the  Ocmulgee 
Lands  own- river  ;  the  lands  known  as  the  "Mcintosh  Reserve,"  on  which  is 

ed    by     the 

state.  situated  the  Indian  Spring ;  the  lands  known  as  the  "  Old  Agency 

Reserve"  on  the  Flint  river;  a  quantity  of  land  on  Flint  river, 


PT.  1.— TIT.  9.— Public  Property. 


189 


Chapter  2. — The  Lands  of  the  State. 


opposite  the  Old  Agency ;  one  mile  square  on  tlie  Chattahoochee 
river  at  Mcintosh  Ferry ;  one  mile  square  at  Marshall's  Ferry  on 
Flint  river,  including  the  ferry ;  five  miles  square  on  Chattahoo- 
chee river  at  Cusseta  Falls,  including  the  falls ;  all  islands  con- 
tained in  any  of  the  navigable  waters  not  disposed  of,  and  the 
western  bank  of  the  Chattahoochee  river  to  high-water  mark, 
where  it  forms  the  boundary  between  Georgia  and  Alabama ;  so 
much  of  the  Okefenokee  Swamp  as  is  in  this  State  and  ungranted ; 
the  lots  whereon  all  the  public  buildings  of  the  State  are  erected ; 
the  fractional  parts  of  surveys  created  by  the  different  land  divis- 
ions which  are  not  granted  or  otherwise  disposed  of ;  all  lands 
omitted  to  be  surveyed,  granted  or  sold ;  parcels  of  land  in  cer- 
tain cities,  to  wit : 

In  the  city  of  Atlanta ; 

In  the  city  of  Columbus  ; 

In  the  city  of  Chattanooga.* 


CHAPTER   III. 

THE   WESTERN  AND   ATLANTIC  RAILROAD  AND   ITS  GOVERNMENT. 


Sectiojt. 

967.  W.  &  A.  R.  R.  belongs  to  State,  etc. 

968.  Obligations  relative  to  W.  &  A.  R.  R. 

969.  What  laws  apply  to  W.  &  A.  R.  R. 

970.  Former  laws  still  of  force. 

971.  Laws  applicable  to  W.  &  A.  R.  R. 

972.  Appointment  of  Superintendent. 

973.  Superintendent's  bond.    . 

974.  His  oath  and  commission. 

975.  Superintendent's  authority. 

976.  Rules  of  road  to  be  recorded,  etc. 

977.  Such  rules  are  law. 

978.  Where  the  road  may  be  sued. 

979.  Demand  must  be  made  before  suit. 

980.  Books  of  road  prima  facie  evidcLce. 

981.  Debtors  to  road — pu.blic  debtors. 

982.  Appointment,  etc.,  of  Treasurer. 

983.  Treasurer's  oath. 

984.  His  bond;  oath  and  bond,  where  filed 

985.  Treasurer's  duties  specified. 

986.  Auditor's  appointment,  etc. 

987.  Auditor's  oath. 

988.  His  bond. 

989.  His  bond  and  oath — where  filed. 

990.  Auditor's  duties  specified. 

991.  Remedy  against  officers  W.  &  A.  R.R. 


Section. 

992.  Compellable  to  give  other  security. 

993.  Agents  must  report  monthly. 

994.  Officer  failing  to"  pay,  etc.,  dismissed. 

995.  Accounts  of  dismissed  officers. 

996.  Indebtedness  of  defaulters,  etc. 

997.  Oath  of  all  agents  of  the  road. 

998.  Their  bonds. 

999.  Bonds  renewed  annually. 

1000.  Settlements  with  agents. 

1001.  Governor  to  examine  bonds,  etc. 

1002.  Conductor's  oath. 

1003.  No  credit  to  be  given  for  freights. 

1004.  Conductor's  settlements. 

1005.  Disbursements— how  made. 

1006.  How  Auditor's  decisions  reviewed. 

1007.  Proceeds  of  road — how  disposed  of. 

1008.  Useless  iron  and  tackle  may  be  sold. 

1009.  Sale  may  be  for  cash  or  on  credit. 

1010.  No  officer  of  road  can  buy  at  sale. 

1011.  Sale  bill  to  be  kept  and  reported. 

1012.  Useless  land  of  road  may  be  sold. 

1013.  Who  may  go  over  road  free  of  charge. 

1014.  Laws  of  road  enforced  by  Sup't. 

1015.  Transportation  of  lime. 

1016.  Stock  gaps  may  be  built. 


*  Considerable  portions  of  tlie  above  mentioned  reservations  have  been  con- 
veyed by  the  State  to  private  companies  or  individuals,  which  will  appear  by 
reference  to  the  proper  records. 


190  PT.  1.— TIT.  9.— Public  Propekty. 


Chapter  3. — The  Western  and  Atlantic  Railroad  and  its  Government. 


§  967.    The,  railroad    communication  from  Atlanta,    in  Fulton 
w.&A.E.  County,  to  Chattanooga,  on  the  Tennessee  river,  is  the  property 
erty  of  the  of  tliis  State  exclusivelj,  and  shall  be  known  as  the  Western  and 
Atlantic  Railroad. 

§  968.  The   State  occupies  the  same  relation  to  said  road,  as 
Eeiationof  owncr,  that  any  company  or  incorporation  does  to  its  railroad,  and 

state  to  the  '  .  .         -^  ^       »^  ^  ' 

w.  &  A.  K.  the  obli|>;ations  of  the  State  to  the  public  concerninai:  said  road, 

E.;   recipro-  °  ^  O  ? 

cai    obiiga-  ^nd  of  the  public  to  said  road,  are  the  same  as  govern  the  other 

tions  of  the  ^  '  o 

pubiic^^  ^^^  railroads  of  this  State,  so  far  as  is  consistent  with  the  sovereign 
attributes  of  this  State,  and  the  laws  of  force  for  its  conduct. 
§  969.  All  the  public  road  laws  and  penal  laws  touching  the 
Eoad  laws  railroads  of  this  State,  whether  to  oblio-ate  or  protect,  apply  to 

and       penal  '  °  ^  .    . 

laws    apply  the  State  Road,  unless  specially  excepted,  or  some  other  provision 
E.E. proviso  jg  prescribed  in  lieu  of  some  one  or  more  thereof. 

§  970.  [All  laws  of  force  regulating  the  liability  of  railroad 
Lawsappii-  companics  in  this  State  for  damages  done  by  the  running  of  loco- 
&A.  E.E.  'motives,  cars,  and  other  machinery,  are  hereby  declared  to  apply 
equally  to  the  Western  and  Atlantic  Railroad ;  and  in  the  bring- 
ing of  all  suits  against  the  Western  and  Atlantic  Railroad,  the 
same  shall  be  regulated  by  the  laws  iu  existence  on  that  subject 
at  the  time  of  the  adoption  of  this  Code.]  (a) 

§  971.  All  laws  heretofore  enacted,  having  a  special  or  local 
Preceding  application  to  Said  road,  and  in  force  at  the  time  of  the  adoption 

laws  of  force 

of  this  Code,  are  kept  in  force,  unless  herein  repealed  expressly, 

or  by  implication. 

§  972.  The  principal  officer  of  said  road  shall  be  styled  the  Su- 
superinten-  perintcndont,  who  is  appointed  by  the  Governor,  and  holds  his 
pointed   by  offico  durius;  his  term,  unless  sooner  removed  at  his  pleasure.  TThe 

Governor.  . 

salary  of  the   Superintendent  shall  be  jive  thousand  dollars  'per 

His  salary.  -i    /-is 

annum.  \  (b) 

§  973.  Before  entering  on  the  duties  of  his  office,  he  shall  give 
To  give  bond  and  security,  to  be  approved  by  the  Governor,  in  the  sum  of 

bondandse-  "^ '  ^^,  '^  . 

curity.         twenty  thousand  dollars,  which  shall  be  j&led  in  the  office  of  the 
Comptroller  General  and  recorded  therein. 

§  974.  He  shall  also,  at  the  same  time,  besides  the  oath  re- 
Totakeoath.  quirod  of  all  civil  officers,  take  and  subscribe  before  the  Governor 
the  following  oath,  which  shall  be  filed  in  the  Executive  Office : 
"  I, ,  swear  that  I  will  faithfully  and  impartially  per- 

(a)  Acts  1862-3,  p.  183.    (b)  Acts  of  1865-6,  p.  249. 


PT.  1.— TIT.  9.— Public  Property.  191 


Chapter  3. — The  Western  and  Atlantic  RaHroad  and  its  Government, 

— tf —— — ' 


erated. 


form  all  i»he  duties  of  my  office  ;  that  I  will  make  no  appointment, 
nor  do  any  act  from  fear,  favor,  reward,  or  the  hope  thereof,  but 
in  all  things  I  will  be  governed  solely  with  regard  to  the  interest 
of  the  State  of  Georgia,  and  in  the  discharge  of  my  duties  I  will 
neither  make,  nor  permit  to  be  made,  any  discrimination,  unless 
so  directed  by  legislative  authority,  in  favor  or  against  any  rail- 
road company,  or  other  persons  or  parties  having  business  connec- 
tions with  or  relations  to  said  road.  So  help  me  God." 
§  975.  The  Superintendent  has  authority — 

1.  To  conduct  all  the  operations  of  said  road  connected  with  its  ^Powers  of 

•"■  STipennten- 

repairs,  equipment  and  management,  including  its  financial  affairs,  gj^tl^^"^' 

2.  To  appoint  or  remove  all  the  subordinate  officers  subject  to 
the  approval  of  the  Governor,  except  the  Auditor  and  Treasurer. 

3.  To  fix  the  rate  of  passage  and  freight,  and  to  make  all  neces- 
sary arrangements  touching  such  rates  and  other  business  with 
other  railroads. 

4.  To  contract  for  and  purchase  machinery,  cars,  materials, 
workshops,  and  all  other  contracts  necessary  for  the  general 
working  and  business  of  said  road  not  exceeding  three  thousand 
dollars,  and  over  that  amount  subject  to  the  approval  of  the 
Governor  in  writing. 

5.  To  make  contracts  with  the  Government  of  the  United 
States,  with  the  consent  of  the  Governor,  for  the  transportation 
of  the  mails  over  said  road. 

6.  To  arrange  the  schedules  for  running  trains  at  such  times, 
either  by  day  or  night,  as  he  may  deem  expedient. 

7.  To  settle  all  claims  against  said  road,  with  the  approval  of 
the  Governor. 

8.  To  sue  officially  for  any  claim  due  the  State  on  account  of 
said  road,  and  defend  all  brought  against  the  road. 

9.  To  make  all  necessary  rules  for  the  proper  conduct  of  the 
business  of  the  road  and  the  enforcement  of  discipline. 

10.  To  impose  penalties  for  a  violation  of  said  rules  and  for 
breaches  of  duty  by  all  persons  in  the  employment  of  the  road. 

11.  To  see  that  the  books  and  accounts  of  the  road  are  so  kept 
as  at  all  times  to  show  accurately  its  fiscal  aifairs. 

12.  To  have  settlements  weekly  with  all  fiscal  agents  of  said 
road  for  all  money  received  by  them,  by  himself  or  through  some 
authorized  person,  and  to  discharge  them  for  neglecting  or  refus- 
ing to  do  so. 


192  PT.  1.— -TIT.  9.— Public  Pkoperty. 


Chapter  3. — The  Western  and  Atlantic  Railroad  and  its  GoYernment. 


13.  To  fix  the  compensation  of  all  employees  of  said  road, 
with  the  approval  of  the  Governor,  whose  compensation  is  not 
fixed  by  law. 

14.  To  draw  his  warrant  on  the  Treasurer  in  favor  of  claimants 
according  to  the  law. 

15.  To  sue  and  cause  all  moneys  belonging  to  or  collected  on 
account  of  the  road  to  be  paid  promptly  to  the  Treasurer. 

16.  To  exercise  a  general  supervision  over  all  ofiicers,  agents, 
and  employees  under  his  charge,  and  see  that  they  strictly  comply 
with  all  the  requisitions  of  the  law. 

17.  To  make  out  and  transmit  to  the  Governor  a  quarterly 
statement  exhibiting  the  receipts  and  expenditures  of  the  road, 
and  once  every  year  a  full  statement  of  all  the  transactions  of 
the  road  in  detail,  which  report  shall  be  published  in  one  or  more 
of  the  public  gazettes  at  the  seat  of  Government  and  at  the  city 
of  Atlanta. 

§  976.  The  rules  adopted  by  the  Superintendent  for  the  gov- 

be  recorded*  ^^^^^^^^  of  Said  road  shall  be  recorded  in  a  book  kept  for  that 

fuJnished^"o  P^iT^^®?  shall  bc  printed  and  posted  in  a  conspicuous  part  of  his 

officers.       ofiice  and  copies  placed  in  the  hands  of  each  officer  of  the  road, 

who  shall  also  be  promptly  supplied  with  copies  of  any  alterations 

thereof. 

§  977.  Such  rules  shall  have  the  force  and  effect  of  law  when  ne- 
Force  of  ccssarv  to  carrv  into  full  effect  any  law  in  regard  to  said  road  and 

said  rules,  .  .  .        .  ^  .  .  •  i      i      i 

to  improve  its  organization  when  not  inconsistent  with  the  law. 
§  978.  All  suits  against  the  road  must  be  brought  against  the 
Suits  against  Superintendent  in  his  official  capacity  in  the  County  of  Fulton, 
Atlantic '^Jiere  the  office  of  said  road  is  located,  except  in  those  cases  of 
claims  where  by  the  law  other  railroads  are  allowed  to  be  sued 
elsewhere,  but  under  no  circumstances  are  suits  against  such  road 
to  be  allowed  against  such  road,  its  officers  or  agents  in  the  State 
of  Tennessee,  beyond  the  right,  if  any,  that  may  exist  under  the 
authority  granted  to  this  State   to  extend  said  road   into  Ten- 
nessee."^ 

§.979.  No  suits  shall  be  brought  against  the  Superintendent 
Demand  until  a  demand  has  been  made  upon  him  for  payment,  accompanied 

necessary  ■••  x     ./  /  x 

brou4t  ^^^*  ^^  *  Statement  of  the  nature  of  the  claim,  and  ten  days  shall  be 
allowed  the  Superintendent  to  pass  upon-  such  claim  before  suit 
shall  be  brought.   , 

*  See  Venue. 


PT.  1.— TIT.  9.— Public  Pkoperty.  193 


Chapter  3. — The  Western  and  Atlantic  RaHroad  and  its  Government. 


S  980.  In  suits  pending  or  to  be  brouorlit  by  or  aa-ainst  said  road,       Books  of 

n  1  I      V    n   1  .  ?      .  1  r»        1  i  ^^^^  prima 

the  books  of  said  road  shall  be  j:»n???a/«(?zg  evidence  of  what  thej/^c^*     evi- 
contain  pertinent  to  the  points  in  issue. 

§981.  All  debtors  to  said  road  are  as  debtors  to  the  State  or    1*5^^^*?^^ 

'^  ^  public  debt- 

public,  and  when  any  question  arises  warranting  it,  the  right  or  '^^^^ 

obligations  of  both  parties  are  to  be  determined  upon  by  the  laws 

governing  such  relation. 

§  982.  The  Governor  shall  appoint  an  officer  for  said  road,  who  ,   Governor 

^  ■'••'■  '^  to  appoint  a 

shall  be  styled  the  Treasurer,  who  holds  his  office  for  the  same  Treasurer. 
time  and  term  that  the  Superintendent  does. 

§  983.*' Before  entering  on  the  duties  of  his  office,  besides  the    nisoath. 
oaths  required  of  all  civil   officers,  he  shall  take  and  subscribe 
before  the  Governor  the  following  oath: 

^'I,  -,  do  swear  that  I  will  faithfully  and  diligently  re- 
ceive, keep,  and  disburse  the  funds  of  the  State  Road  according 
to  law,  in  my  capacity  as  Treasurer,  and  do  all  other  acts  that  are 
or  may  be  required  of  me  by  law  as  Treasurer  of  said  road,  to  the 
bestof  my  skill  and  knowledge.     So  help  me  God." 

§  98i.  He  shall  at  the  same  time  give  bond  and  security,  to  be    Bond  and 
approved  by  the  Governor,  in  the  sum  of  one  hundred  thousand 
dollars.     Said  bond  and  oath  of  office  shall  be  filed  and  recorded  oath     filed 

.  and  recorded 

as  the  Superintendent  s. 

§  985.  It  is  the  duty  of  the  Treasurer — 

1.  To  take  custody  of  all  funds  appertaining  to  the  road,  to    Duties  of 
receive  all  moneys  from  officers  or  agents  holding  the  same  and  numerated. 
receipt  them. 

2.  To  receive  all  such  sums  as  may  be  appropriated  by  law  for 
the  use  of  the  road. 

3.  To  pay  all  warrants  drawn  by  the  Superintendent  in  the 
terms  of  the  law. 

4.  To  pay  the  State  Treasurer  monthly  all  balance  in  his  trea- 
sury after  paying  all  the  current  expenses  of  the  road  and  other 
lawful  claims  upon  it,  and  to  take  his  receipt  for  the  same,  retain- 
ing such  amount  as  the  Superintendent  may  direct. 

5.  To  keep  a  book  or  books  to  enter  all  his  receipts  and  pay- 
ments and  other  official  transactions. 

6.  To  make  a  quarterly  statement  to  the  Superintendent  of  the* 
receipts  and  disbursements  of  his  office,  which  shall  be  published 
with  the  Superintendent's  report  to  the  Governor. 

7.  To  discharge  such  other  duties  as  the  laws  do  or  may  require. 

13 


194  PT.  1.— TIT.  9.— Public  Property. 

Chapter  3. — The  Western  and  Atlantic  Railroad  and  its  Government. 
Auditor ap-      §  986.  The  GovGrnor  shall  appoint  an  officer  for  said  road  who 

pointed     by  i     i     i         a       t 

Governor,     shall  be  stjled  the  Auditor. 

§  987.  Before  entering  on  the  duties  of  his  office,  besides  the 
His  oath.  Q^th  required  of  all  civil  officers,  he  shall  take  and  subscribe  before 
the  Governor  the  following  oath : 

'^I, ,  swear  that  I  will  promptly,  justly,  fairly  and  im- 
partially approve  or  reject  all  claims  against  the  State  Road  pre- 
sented to  me  for  such  purpose,  and  that  I  will  faithfully  and  dili- 
gently discharge  all  other  duties  that  are  or  may  be  required  of 
me  by  law  as  Auditor,  to  the  best  of  my  skill  and  knowledge. 
So  help  me  God."  * 

§  988.  He  shall,  at  the  same  time,  give  bond  and  surety,  to  be 

Give  bond        ^  '  .  n 

and  surety,    approved  by  the  Governor,  in  the  sum  of  twenty  thousand  dollars. 
Bond  and      §  989.  Such  boud  and  oath  of  office  shall  be  filed  and  recorded 
and  recorded  as  the  Superintendent's. 

§  990.  It  is  the  duty  of  the  Auditor — 

1.  To  examine  and  approve  or  reject,  without  unnecessary  delay^ 
Auditor's  all  bills  and  accounts  against  said  road  before  the  Superintendent 

duties    enu-  °  ^ 

merated.      shall  draw  a  warrant  for  the  same  on  the  Treasurer. , 

2.  To  keep  a  book  to  enter  all  accounts  passed,  stating  the 
person,  amount,  account,  and  time. 

3.  To  examine,  supervise,  and  control  all  books  kept  by  the 
subordinate  accounting  officers  or  clerks  of  the  road. 

4.  To  discharge  such  other  duties  as  the  laws  do  or  may 
require. 

Eemedyof  §  ^^^'  '^^^  remedy  of  the  State  against  the  Superintendent,  the 
a-ainst^offi-  Trcasurcr,  Auditor,  and  other  officers  and  agents,  is  the  same  as 
&A.  k!e^*  against  Tax  Collectors  or  Receivers. 

§  992.  The  Governor  may  require  each  of  such  officers  to  give 
Additional  additional  bond  and  surety  on  the  same  terms  and  conditions  that 
requiJedf  ^  he  may   require  it   of  the    Comptroller   General   or   the    State 
Treasurer. 

§  993.  Each  agent  of  such  road  having  the  funds  thereof  in 
Monthly  his  hauds  shall  make  out  monthly,  and  from  month  to  month,  on 

reports     of  . 

agents.        such  day  as  the  Superintendent  may  require,  a  full  statement  of 

his   account,   and  particularly  specify  what  amount  of  cash  on 

'hand,  what  amount  due  from  freight  delivered  or  to  be  delivered, 

showing  the  full  amount  due  from  all  sources  whatever,  and  shall 

sign  such  account. 

§  994.  Any  officer  or  agent  failing  to  pay  over  the  funds  col- 


PT.  1.— TIT.  9.— Public  Property.  195 

Chapter  3. — The  Western  and  Atlantic  Railroad  and  its  Government. 


lected  by  him  weekly,  or  failinsi;  to  furnish  the  Superintendent    Defanitiug 

''  ''  °  ^  officer    or 

with  a  monthly  statement  of  the  financial  condition  of  his  office,  agent    di«- 

•^  misseo, 

except  for  providential  cause,  shall  be  immediately  dismissed  by 
the  Superintendent. 

S  995.  When  such  dismissal  shall  take  place,  an  account  shall  Proceedings 

'■  '  on  a  dismis- 

at  once  be  had  of  all  the  freight  on  hand,  giving  the  person  dis-  ^ai. 
missed  a  credit  or  receipt  therefor,  so  as  to  show  the  amount  of 
his  indebtedness. 

S  996.  As  soon  as  an  agent,  or  any  other  person  having  funds       Amount 

^  ...  <iue   by   de- 

of  the  road  unaccounted  for,  is  in  default,  and  fails  to  pay  over  faniter  treat- 

'  '     ^  ■"•     *'  ed   as   eam- 

said  funds  on  demand  made  by  the  Superintendent,  or  bj  his  j°||  ^^  *^® 
authority,  or  shall  abscond  or  conceal  himself,  or  in  any  other 
way  evade  or  prevent  a  settlement,  said  officer  shall  promptly 
cause  the  true  amount  due  by  such  person  to  be  ascertained,  and 
transmit  the  same  to  the  Comptroller  General  as  earnings  of  the 
road,  stating  also  the  date  of  the  default. 

§  997.  Every  aarent  of  said  road,  before  entering  on  the  discharge      oaths  of 
of  his  duties  must,  besides  the  oath  required  of  all  civil  officers, 
take  and  subscribe  before  the  Superintendent,  who  is  hereby  made 

an  officer  for  such  purpose,  the  following  oath :  "I, ,  swear 

that  I  will  faithfully  perform  all  the  duties  of  my  appointment 
that  are  or  may  be  required  of  me  by  law,  to  the  best  of  my  skill 
and  knowledge,  and  that  I  will  render  a  true  account  of  my  official 
•conduct,  and  of  all  moneys  received  by  me  as  such,  and  pay  the 
same  over  to  the  person  authorized  to  receive  them,  as  often  as  the 
law  may  require.     So  help  me  God." 

§  998.  They  shall  at  the  same  time  give  bond  and  surety,  paya-     Bonds  of 
ble  to  the  Governor  and  his  successors  in  office,  to  be  approved  by 
the  Superintendent,  in  such  sum  as  he  may  require. 

§  999.  The  oaths  shall  be  filed  in  the  office  of  the  Superinten-    Disposition 
dent,  the  original  bonds  transmitted  to  the  Comptroller  General,  and  bond. 
and  copies  retained  by  the  Superintendent  in  a  book  kept  for  that 
purpose  in  his  office. 

§  1000.  Such  bonds  shall  be  renewed  annually,  by  the  tenth  day     Bonds  re- 
of  January,  after  a  full  and  satisfactory  settlement  has  been  had  aiiy. 
with  the  agents,  and  not  before. 

§  1001.  Said  settlement  must  be^'in  writing  and  signed  by  the  Settlements 

"^  &  to  .;  ^ith  agents 

agent  and  Superintendent,  and  shall  contain  a  full  statem.ent  of 
the  agent's  account  with  the  road,  whether  for  cash  received, 
freight  on  hand,  or  from  any  other  source  whatever. 


196  PT.  1.— TIT.  9.— Public  Propeety. 


Chapter  3.— The  Western  and  Atlantic  Eaih'oad  and  its  Government. 


§  1002.  The  Governor  shall  examine  every  bond  transmitted  to 
Bond  to  he  the   Comptroller  General  by  the  Superintendent,  and  in  case  of 

examined  by  ^       ,  ./  x  ? 

Governor  defect  therein,  as  to  matter  or  surety,  may  order  another  bond 

and       adcii-  _        ^  ^  ^         ^  t  j 

tionai  bond  nriven  in  licu  thereof  to  the  Superintendent,  and  he  or  the  Super- 
may   be  re-  G>  i  '  i 

quirecL  intendont  may  at  any  time,  when  in  the  judgment  of  either  the 
interest  of  the  State  requires  it,  require  such  officer  to  give  addi- 
tional bond  and  sureties,  as  he  requires  of  other  officers. 

§  1003,  Every  conductor   must,  in  the  same  manner,  take  and 

Conductors'  subscrJbe  this  oath  :    "  I, ,  swear  that  I  "will  faithfully  dis- 

■  charge  the  duties  of  my  office  to  the  best  of  my  skill  and  knowl- 

edge, and  that  I  will  pay  over  ?J1  the  money  that  may  comiC  to 
my  hands  belonging  to  the  State  Road,  as  required  by  law,  or  the 
order  of  the  Superintendent.     So  help  me  God." 

§  1004.  No  agent  at  any  station  of  said  road  is  permitted  to  give 

No  credit  Credit  for  any  freight  or  any  produce,  goods,  or  other  commodity 

conveyed,  but  shall  collect  the  freights  before  the  articles  are  taken 

away,  except  in  cases  where  the  freights,  by  arrangement,  are 

chargeable  to  some  other  railroad  company. 

§  1005.  Every  conductor  of  passenger  or  freight  trains  shall 

Conductor's  make  a  settlement  of  the  tickets  atid  money  received  by  them  with 

the  Treasurer  at  the  end  of  each  trip.     All  disbursements  made 

Disburse-  ^^  accouut  of  Said  road  shall  be,  by  warrant  of  the  Superintendent, 

ments— how  (jj-g^^j^  upou  the  Treasurer,  and  be  first  passed  by  the  Auditor. 

§  1006.  The  Superintendent  may  refuse  to  ratify  the  approval 
Cases  vaere  of  the  Audltor,  and  when  so  refusing  the  claim  shall  be  presented 

Superintend-  » 

ent  and  Au-  to  the  Govemor  to  decide ;   if  he  allows  the  claim,  or  any  part 

ditorditfer.  '  ">  J     I 

thereof,  the  Superintendent  shall  draw  his  warrant  and  express 

therein,  "By  approval  of  the  Governor."     If  he  concurs  with  the 

Superintendent,  the  party  may  accept  the  decision  or  bring  suit. 

§  lOOT.  The  proceeds  of  said  road,  after  deducting  expenses  and 

Proceeds  all  dcbts,  which  are  liens  upon  its  income,,  shall  be  paid  into  the 

to    b&    paid  f      ■%        c^  \  t  -iiTir'  1  TT  1 

monthly  in-  treasury  of  the  State  monthly,  and  shall  first  be  applied  to  the 

to  Treasury,  -^  "^  ^  i         r»      i         a 

^        „  ^  payment  of  the  principal  and  interest  of  the  bonds  of  the  State 

How  applied  ^     •'  ■*■  ^ 

issued  on  account  of  said  road. 

§  1008.  Whenever  any  iron,  or  any  tackle  or  apparel  may 
Useiessiron,  becomo  uselcss  to  ssid  roadj  and  the  Superintendent  can  not  have 
sold  on  30  the  same  converted  into  new  iron  on  reasonable  terms,  or  for  any 

days  notice*  . 

other  good  reason,  he  shall  sell  the  same  at  public  outcry,  at 
whatever  point  it  may  be  most  to  the  interest  and  convenience  of 
the  road,  to  tlie  highest  bidder,  after  giving  at  least  thirty  days' 


PT.  1.— TIT.  9.— Public  Property.  197 

Cliaptei"  3. — The  Western  and  Atlantic  Railroad  and  its  Government 


notice  of  the  time  and  place  of  said  sale,  with  a  description  of  the 
property,  in  a  public  gazette  at  Atlanta. 

§  1009.  He  ma}^  sell  said  property  for  cash  or  credit,  as  in  his    s.-je  may 
discretion  it  may  be   best  for  the    State;   provided^  that,  if  on  j'" ''-"  ^''^<^j*- 
credit,  it  shall  not  be  longer  than  twelve  months,  with  note  or  bond 
and  personal  security  thereto,  payable  to  the  Governor  and  his   rroceedsof 
successor  in  office,  or  bearer,  which  shall  be  deposited  in  the  State 
Treasury,  and  when  collected  be  as  part  of  the  net  earnings  of 
the  road. 

8  1010.  Neither  the  Superintendent,  nor  any  officer  of  the  State    omcernot 

"  .  .        .  .  to  be  a  pur- 

Road,  shall  he  a  purchaser,  directly  or  indirectly,  at  said  sales,  ciiaser. 

on  pain  of  forfeiting  to  the  State  the  property  purchased  and 

price  paid,  and  of  being  removed  by  the  Governor. 

§  1011.    The   Superintendent  shall  keep  a  record  of  ail  such    Record  or 

.  sales    to  be 

property  sold,   to  whom  sold,  at  what  price,  and  on  what  terms,  kept. 
and  shall  embrace  the  same  in  his  report  to  the  Governor. 

§  1012.  The  Governor  or  Superintendent  shall  not  sell  any  part   Eestriction 
of  the  right  of  way,  nor  any  property  or  land  of  the   road,  that  road  proper- 
may  be  necessary  for  the  erection  of  depots,  wood  yards,  water 
stations,  or  for  any  other  improvement  to  the  convenience  or  in- 
terest of  said  road ;  but  they  may  sell  any  land  of  the  road  if  of 
no  use  to  it,  in  the  manner  iron  is  sold — advertising  it  in  a  public 
gazette  at  Atlanta,  and  in  the  County  where  it  lies,  and  in  a  public    i^^^  may 
gazette  thereof,  if  one,  and  the  Superintendent  shall  execute  deeds 
thereto  in  his  official  capacity. 

§  1013.  All  lunatics  and  idiots,  and  the  persons  having  them  in       Persons 

1  1        /»  1  1  f-  traveling 

eharge,  not  more  than   one  to  each  of  such,  when  sent  irom  any  freeofctaTge 

°   '  .  '  .  "^   on  the  road. 

County  to  the  Lunatic  Asylum,  and  the  latter  returning,  and  all 
deaf  and  dumb  and  blind  pupils  partaking  of  the  State's  bounty, 
with  their  necessary  attendants,  when  going  and  returning  from 
their  schools,  shall  go  from  and  return  to  their  homes,  free  of 
charge  on  said  road. 

§  1014.  The  Superintendent  of  said  road  is  specially  charged  snperintend- 
with  the  due  execution  and  faithful  fulfillment  of  all  the  laws  for  the  laws, 
the  government  and  regulation  of  the  same. 

§  1015.  Said  road   shall   transport  lime  for   agricultural   pur-       Lime— 

■*•  ox  transporta- 

poses,  ,'by  the  car  load,  from  any  depot  thereof  to  Atlanta,  from  tion  of. 
the  first  day  of  May  to  the  first  day  of  August  of  each  year,  or  at 
any  oth'er  time  not  conflicting  with  the  interest  of  said  road,  at  a 
rate  not  exceeding  three  cents  per  bushel ;  provided^  connecting 


198  PT.  1.— TIT.  9.— PuBLie  Property. 

Chapter  4.— Stocks. 

roads  at  Atlanta  will  transport  lime  for  agricultural  purposes  at 
corresponding  low  rates,  and  give  the  Superintendent  of  the  road 
notice  thereof,  with  consent  to  be  bound  permanently  bj  such  rate. 
Any  connecting  road  at  Atlanta  failing  to  give  such  notice  and 
consent  shall  not  be  entitled  to  the  benefits  intended  to  be  secured 
to  the  agricultural  interest  contiguous  to  such  road.  Before  any 
person  shall  transport  lime  on  said  road,  or  any  road  in  connec- 
tion therewith,,  at  said  rate,  he  shall  make  oath  in  writing  before 
receiving  said  lime  and  paying  said  freight,  that  it  has  been  or  is 
to  be  transported  for  and  will  be  used  in  good  faith  in  improve- 
ment of  the  soil  in  the  State ;  which  affidavit  shall  be  filed  in  the- 
office  of  the  company  to  whom  the  freight  is  paid. 

§  1016.  [All  persons  in  this  State  owning  land  through  which 
Land  own-  the  Western  and  Atlantic  Railroad  passes  shall  have  permission 

©rs      may  ■>■  ^ 

build  stock  ^q  build  stock  gaps  on  said  road  when  the  line  of  their  fences  may 
cross  the  same,  and  shall  have  the  privilege  of  joining  their  fences, 
to  such  stock  gaps :  provided,  said  land  owners  shall  not  improp- 
erly interfere  with  the  bed  of  said  road,  or  render  it  less  safe,  of 
interfere  with  the  running  of  the  trains  thereon.]  (a) 


CHAPTER    IV, 

STOCKS. 


Section-. 

1017.  Bank  stock  owned  by  State. 

1018.  Railroad  stock  o-^vned  by  State, 


SeC5!10N. 

1019.  Stock  in  Main  Trunk  Railroad. 


Bank  stock      §  1017.  The  State  owns  the  following  bank  stock — 

owned      by         "  *-• 

In  the  Bank  of  the  State  of  Georgia 1833i  shares. 

In  the  Bank  of  Augusta 890      " 

In  the  Bank  of  Georgia  Eaikoacl  and  Banking  Company 18&     " 

Eaiiroad        §  1018.  The  State  owns  the  following  railroad  stock — 

In  the  Main  Trunk  Road 5000  shares. 

§  1019.  The  stock  in  the  Main  Trunk  may  be  extended  to  ten 
Extension  thousaud  sharcs,  on  the  condition  that  the   State  shall  own  as  she- 

of  stock   m  ■' 

E^h-J™'^^  does  now,  five-elevenths  to  be  taken  when  individuals  take  and  pay 
for  the  balance  according  to  the  act  of  incorporation  and  acts 
amendatory  thereof- 

(a)  Acts  of  1865-6,  pp.  261-2. 


PT,  1.— TIT.  9.— Public  Property. 


199 


Chapter  5. — Other  Public  Property. 


CHAPTER   Y. 

OTHER    PUBLIC    PROPERTY. 

Section  1020,    Library,  furniture,  arms,  etc. 

§1020.  The  State  owns  the  Library  at  the  Capitol,  the  furni-  Library,  ar- 

..,.  .     senal      con- 

ture  and  contents  of  her  various  public  buildins's,  and  the  public  tents  and 

■"■  .  ™^^'  proper- 

arms,  munitions,  and  accouterments  of  war  in  her  arsenals  and  in  ^7  of  state. 

the  charge  of  her  several  volunteer  companies,  and  of  the  Super- 
intendent of  the  Military  Institute. 


TITLE    X. 

PUBLIC       PRINTING. 


CHAPTER    I. 

PUBLIC   PRINTER:    HIS   DUTY  AND  COMPENSATION. 


Section. 

1021.  Election  of  Public  Printer. 

1022.  He  must  give  bond. 

1023.  On  failure  to  give  other  bond,  etc. 

1024.  Vacancy — how  supplied- 
1025-  Damages  for  breach  of  bond. 

1026.  Place  of  printing,  etc. 

1027.  Printing  during  Legislature. 

1028.  Failure  vacates  office. 

1029.  "When  Printer's  duties  begin. 

1030.  What  he  must  print. 

1031.  Ordered  matter — how  printed. 


Section. 

1032.  Laws  and  Journals — how  printed. 

1033.  Style  of  the  printing. 

1034.  Manuscripts  to  be  furnished. 

1035.  Number  copies  Laws  and  Journals. 

1036.  If  insufficient  others  may  be  printed. 

1037.  Printed  matter — delivered  to  whom. 

1038.  Compensation  of  Printer. 

1039.  Penalty  for  delay. 

1040.  Contract  and  bond  of  new  Printer. 

1041.  Pay  of  removed  Printer. 

1042.  Work  of  deceased  Printer. 


§  1021.  r  The  General  Assembly  shall  biennially  elect  a  Public   Election  of 

.    ■-  .    •^  .  •^  .  Public  Prin- 

State  Printer,  at  the  same  session  and  in  like  manner  with  the  ter. 
State  House  officers  of  the  State,  and  said  State  Printer  shall 
hold  his  office  for  and  during  the  term  of  two  years.]  (a) 

§  1022.  Within  ten  days  from  the  day  of  his  election  he  shall   his  bond. 
give  a  bond,  with  good  surety,  in  the  sum  of  ten  thousand  dol- 
lars, to  be  approved  by  the  Governor,  filed  in  the  Executive  Office, 
and  recorded  in  the  office  of  the  Secretary  of  State. 


(a)  Acts  of  1866,  p.  19. 


200  PT.  1.— TIT.  10.— Public  Phintinq. 

Chapter  1. — Public  Printer :  his  Duty  and  Compensation. 


§  1023.  The  Governor  is  authorized  to  require  from  the  Public 
Legislature  Printer  additional  bond  and  surety  as  he  may  from  a  State  House 

to  supply  va-  i  i  •      p   n  it 

cancy.         oiEcer,  and  on  his  failure  to  comply,  declare  a  vacancy. 

§  1024.  If  the  General  Assembly  is  in  session  when  such  fail- 
Additionai  urc   occurs,   the    Govcrnor   shall   communicate  the   fact  to  them, 

bond  may  be       i  i  i      n  i         i  i  i         • 

required, etc.  whcn  thcy  shali  supply  the  vacancy  by  election. 

§  1025.  If    a  Public  Printer,    after   having  been  elected  and 
Damages  mveu  boud,  commits  a  breach  of  it,"  on   the  trial  the  iury  shall 

on  breach  of  ^  ^  '  '^       '^ 

bond.  assess  not  less  than  one  thousand  nor  more  than  three  thousand 

dollars  as  liquidated  damages,  besides  the  actual  damages  sustained. 

§  1026.   Such  Printer  and  his  sureties  must  be  citizens  of  this 

Printer  and  State,  and  the  public  printing  must  be  bona  fide  performed  within 

citizens.       her  Kmits,  unless  special  permission  otherwise  is  obtained  from 

the  General  Assembly. 

§  1027.  All  printing  specially  ordered  by  the  proper  authority 
Printing  durino;  a  session  of  the  General  Assembly  shall  be  executed  with 

during    ses-  o  *' 

^^°"'  all  possible  dispatch  and  correctness,  at  the  seat  of  Government. 

§  1028.  If  the  provisions  of  the  two  preceding  Sections  are 

Yioiation  of  violated,  the  Governor  may,  in  his  discretion,  declare  a  vacancy 

]ast  two  sec-  .  . 

tions.  and  the  compensation  forfeited: 

§  1029.  The  duties  of  the  Public  Printer  do  not  begin  until  the 
.    Beginning  first  day  of  tlic   ncxt  session  of  the  General  Assembly  after  his 

of   Printer's  .      '^  '' 

duty.  election. 

§  1030.  He  shall  print  the  Laws  and  Journals,  and  such  bills, 
What  he  reports,  and  other  documents  as  may  be  ordered  to  be  printed  du- 
ring his  term  of  office,  which  includes  the  printing  of  all  extra 
sessions  held  during  that  time. 

§  1031.  All  papers  ordered  to  be  printed  by  either  House  shall, 
How  print-  uulcss  otlicrwise  directed,  be  printed  upon  paper 'that  can  be  easily 

ing  must  be.  -iti  ^  ii- 

done.  written  upon;    the  sections  and  lines  must  be  numbered,  having 

sufficient  margin  and  intervening   space  to  admit  of  interlinea- 
tions, for  which  service  the  Governor  shall  allow  extra  compensa- 
tion, not  exceeding  twenty  per  cent,  on  the  established  rates. 
Laws  and      §1032.  The  Laws  and  Journals  must  be  printed  upon  small 
how'^^prtnt^  pica  type,  on  good  paper,  and  delivered  to  the  Executive  within 
an     e  iver-  j^j^^gj-y  jg.jg  after  the  manuscripts  are  received  from  the  compiler. 
§  1033.  The  former  must  be  printed  of  a  uniform  size,  and  of  a 
Directions  style  cQual  in  mechaaical  execution  to  the  Laws  of  1853-4,  and 

as   to  Laws      ^j  y  '  ^ 

and  Journ-  the  latter  must  be  on  pages  the  size  of  the  Laws  of  the  United 
States,  and  have  like  intervals  between  the  paragraphs. 


PT.  1.— TIT.  10.— Public  Peinting.  201 

Chapter  1, — Public  Printer  :  his  Duty  and  Compensation, 


S1034.  The  Secretary  of  the  Senate  and  Clerk  of  the  House  sec.  ofsen- 

"  '^         ^  _  ate  and  Cl'k. 

shall   furnish    the    manuscripts    of    their    Journals    and   indexes  House   to 

-■-  furnish  MSS. 

thereto,  properly  prepared  for  the  press,  within  twenty  days  from 
the  adjournment  of  each  session  of  the  General  Assembly,  under 
a  penalty  of  five  hundred  dollars  each,  to  be  retained  out  of  their 
pay. 

§1035.  There  shall  be  printed  ftwol  (a)  thousand  copies  of  the  ^^nmberof 

"  ■  1  u  -I   \    /  J.  Journals  and 

Journal  of  each   branch  of  the  General  Assembly,  and  [four]  (a)  ^"^s. 
thousand  copies  of  the   Laws,  to  be  bound  by  said   Printer  in 
durable  style  and  equally  as  well  as  the  Laws  of  1853-4. 

S  1036.  If  such  number  should  prove  to  be  insufficient  for  the    Additional 

■"•  , .    .  .        copies    may 

use  of  the  State,  the  Governor  may  order  such  additional  copies  ^^  o^'^ered. 
as  in  his  opinion  the  public  interest  may  require,  and  allow  there- 
for reasonable  compensation. 

§1037.  As  the 'public  printios;  progresses  the  Printer  must  Pointed mat- 

^  ^  ^  ^  .  .  .  .  'tertobede- 

from  time  to  time,  with  all  possible  dispatch,  deliver  the  printed  '^},^l'^^l     ^^ 

matter  to  the  State  Librarian,  at  his  office,  free  from  any  expense 

to  the  State  for  transportation. 

§  1038.  If  said  Printer  shall  legally  and  faithfully  perform  his  ^iSiTfS' 
duties,  he  shall  be  compensated  as  follows:  [He  shall  be  paid  ^*'^^"'^*^''- 
thirty  per  cent,  on  the  actual  cost  of  the  material  and  labor 
employed  in  the  public  printing,  frovided^  that  before  being  paid, 
he  shall  make  out  an  account,  on  oath,  of  the  actual  cost  of  the 
material  and  labor  employed,  and  present  the  same  to  His  Excel- 
lency the  Governor,  who  may  allow  or  reject  said  account  or  any 
part  thereof,  as  in  his  judgment  may  seem  right  and  just.]  (b) 

§  1039.  Should  any  .delay  occur  in  the  prompt  delivery  of  the  ,  Forfeiture 

"  ^  xi  i  r  ./  ior  delay  in 

Laws  and  Journals  as  required,  the  Governor  shall  deduct  at  the  ^'i^^^^,'^®''^  ^^^^^ 
rate  of  ten  per  cent,  per  month  for  the  particular  work  delayed,  J^^^^^^s, 
until  the  date  of  delivery.  If  the  delay  shall  be  protracted  more 
than  six  months,  the  Governor  may  remove  the  Printer  from  office. 
If  any  portion  of  the  work  is  not  executed  so  as  to  be  a  substan- 
tial compliance  with  the  requisitions  of  the  law,  the  Governor 
shall  reject  it,  and  order  it  executed  over,  or  appoint  a  new  Printer, 
as  his  judgment  shall  dictate  or  the  emergency  may  require. 

§  1040.  When  a  new  Printer  is  appointed  under  the  two  prece- ^^«^  P'i"ter 

^^  ^  to  give  bond. 

ding  Sections,  he  shall  give  such  bond  and  surety  and  on  such 
conditions  as  the  Governor  may  require,  who  is  also  authorized  to 
make  a  special  contract  for  the  public  printing  in  such  an  event. 

(a)  Acts  of  1861,  p.  74.    (b)  Acts  1863-4,  p.  78. 


202  PT.  1.— TIT.  10.— Public  Printing. 

Chapter  2.— Other  Printing. 

§  1041.  When  the  Printer  is  removed,  the  Governor  is  authorized 
A  quantum  to  take  such  Dortion  of  his  work  as  he  has  executed  according  to 

inermt  may  *  ^  «-' 

be  paid  to  law,  and  allow  him  lawful  compensation  therefor,  but  he  must 

a     removed  '  ^  ^ 

Printer.       dcduct  thcrefrom  the  least  penalty,  and  the  damages  sustained  by 
his  failure. 

§  1042.  When  the  Printer  dies  before  completing  his  work,  his 
Representa-  legal  representatives  are  allowed  to  do  so,  it  being  understood  that 
ceased  Prin-  all  bouds   of  PubHc  Printers  cover  such  contingency,   and  the 

termay  ^  _  ^  .. 

complete  Govcmor  is  authorized  in  such  an  event  to  wait  thirty  days  for 

work,  •^  *' 

an  assurance  of  such  performance. 


CHAPTER   II. 

OTHER    PRINTING. 

Section.  i  Section. 

1043.  How  other  printing  is  done.  1       1044.  Public  Printer  entitled  thereto. 

§  1043.  All  printing  other  than  that  performed  by  the  Public 
Directions  Printer,  which  necessity  may  demand,  shall  be  printed  at  the  seat 

as  to  print-  ^  ./  »/  7  r 

ips  '^Wii^  of  Government,  or  such  other  place  as  may  be  necessary,  in  the 

printing.      discrction  of  the  Governor,  under  his  direction  and  supervision, 

upon  reasonable  rates,  to  be  paid  for  out  of  the  contingent  fund. 

§  1044.  If  the  Public  Printer  executes  his  work  at  the  seat  of 

Public  Government,  or  at  the  place  where  the  printing  referred  to  in  the 

Printer  pre-  .  .       ,  .  .         , 

ferred.        preceding  Section  is  required  to  be  done,  he  is  entitled  to  perform 
such  printing  if  he  will  do  so  at  reasonable  rates. 


CHAPTER   III. 

THE    COMPILER. 


Section. 

1045.  Compiler— how  appointed,  etc. 

1046.  His  duties  specified. 

1047.  Penalty  for  failure. 


Section. 

1048.  Another  appointed — when. 

1049.  Compiler's  compensation. 


§  1045.  The  Governor  shall  appoint  some  competent  person  to 
Compiler  of  prepare  and  compile  the  several  acts  of  each  session  of  the  General 

Laws  to   be  i  •    i  .  ,  i  •  •       i  • 

appointed.    Asscmbly,  which  appointment  must  be  made  at  any  time  in  ma 
discretion,  provided  it  is  done  before  such  session  adjourns. 
§  1046.  It  is  the  duty  of  the  Compiler — 


PT.  1.— TIT.  10.— Public  Printing. 


203 


Chapter  3. — The  Compiler. 


1.  To  distinguisli,  in  his  classification,  the  public  laws  from 
those  that  are  local  or  private,  and  to  arrange  the  former  under 
appropriate  heads. 

2.  To  prepare  for  publication  side  and  head  notes  for  reference. 

3.  To  add  notes  referring  back  to  such  previous  legislation  as 
may  be  modified  or  repealed,  and  notes  giving  the  decisions  of  the 
Supreme  Court  since  the  last  publication  of  the  Acts  upon  the  subject 
matter  of  each  act  of  a  public  nature. 

4.  To  prepare  and  append  a  copious  index. 

5.  To  furnish  the  Public  Printer  with  a  fair  copy  of  all  work 
required  of  him  in  the  preceding  portion  of  this  Section  within 
forty  days  from  the  adjournment  of  the  session. 

6.  To  read  the  proofs  of  the  same,  and  carefully  compare  then\ 
with  the  certified  copies. 

§  1047.  If  a  Compiler  fails  to  perform  his  work  in  the  time 
allowed  he  forfeits  his  compensation,  unless  in  the  opinion  of  the 
Governor  he  has  a  satisfactory  excuse. 

§  1048.  If  he  dies  or  becomes  disabled  before  completing  his 
work,  and  so  as  he  can  not  finish  it  within  the  time  prescribed,  the 
Governor  shall  appoint  another  Compiler  to  finish  it,  and  appor- 
tion the  compensation  ratably  between  them, 

§  1049.  He  is  under  the  supervision  of  the  Governor,  and  must 
enter  upon  and  continue  in  the  discharge  of  his  duties  as  the 
Governor  may  order,  and  shall  receive  for  his  services  compensa- 
tion to  be  fixed  by  the  Governor,  not  exceeding  [seven  hundred 
and  fifty  dollars ;  provided  the  Compiler  shall  employ  such  assist- 
ance as  may  be  requisite  to  have  the  Laws  ready  for  distribution 
in  the  shortest  possible  time,  to  be  judged  of  by  the  Governor.]  (a) 


Duty  of 
Cominler. 


Failing  to 
perform  his 
work. 


If  he  dies  or 
becomes  dis- 
abled. 


His  com- 
pensatloB. 


CHAPTER    IV. 


DISTRIBUTION  OF  THE  LAWS  AND  JOURNALS  AND  OTHER  DOCUMENTS. 


Section. 

1050.  Laws  and  Journals  to  be  distributed 

1051.  Number  of  copies  for  each  County. 

1052.  Five  copies  Journals  for  eachCounty 

1053.  Clerk  to  keep  two  bound  Journals. 

1054.  Reserved  copies  of  Laws. 

1055.  Acts  of  Congress  for  each  County. 

1056.  Distribution — how  let  out. 


Section. 

1057.  Distributors  must  give  bond. 

1058.  Damages  for  breach  of  bond. 

1059.  Bonds — where  filed. 

1060.  When  Gov.  may  appoint  distributors 

1061.  Residence  of  distributors. 

1062.  Distribution  in  advance. 


(a)  Acts  of  1865-6,  p.  251. 


204  PT.  1.— TIT.  10.— Public  PRiNTma. 

Chapter  4. — Distribution  of  the  Laws  and  Journals  and  other  Documents. 


§  1050.  After    the  Laws  and  Journals   are   compiled,  printed, 
Laws  and  bound,  and  delivered  to  tlie  State  Librarian,  he  shall,  under  the 

Joui-nals    to  •    •  n      t         r^  ^  i  t  '^  i  i 

be  distribut- supervision  ot  the  (jrovernor,  cause  them  to  be  distributed  to  the 
several  Counties  of  this  State. 

§  1051.  Each  County  is  entitled  to  one  copy  of  the  Acts  of  the 
Copies  of  General  Assembly  for  each  civil  officer,  both  judicial  and  minis- 
each  County  terial,   to   be  distributed  by  the  Clerks    of  the  Inferior   Courts 
under  the  order  of  the  Justices.* 

§  1052.  Each  County  is  entitled  to  [ten]  (a)  copies  of  the  Jour- 
copies  of  nals  of  each  branch  of  the  General  Assembly,  which  are  to  remain 

Journals  for  ..,  ^  ntr^iifTTn-r^ 

each  County,  on  dcposit  m  the  office  of  the  Clerk  of  the  inierior  Court,  and  to 
which  the  citizens  of  the  County  shall  have  free  access;  also  a 
copy  of  the  Laws  and  Journals  for  each  member  of  the  General 
Assembly. 

§  1053.  Two  of  the  copies  of  the  Journals  of  each  branch  of 

Journals  to  the  General  Assembly  shall  be  as  well  bound  as  the  "Acts" — one 

be  bound.  r-i 

by  such  Clerk  at  the  expense  of  the  County,  securely  kept,  and 
not  permitted  to  go  out  of  his  office. 

§  1054.  The  Librarian  shall  reserve  five  hundred  copies  of  the  Acts 
copfes!^^^^^^  for  such  further  distribution  as  the  General  Assembly  may  order. 

§  1055.  Each  County  is  entitled  to  two  copies  of  the  Acts  of 
Congress. ^^  Cougrcss,  to  be  kept  in  the  office  as  the  Journals  are. 

§  1056.  Immediately  upon  the  adjournment  of  each  session  he 
Advertise-  shall  advcrtisc  in  one  paper  in  the  cities  of  Augusta,  Atlanta, 
tribute  Laws  Athens,  Columbus,  Macon,  Milledgeville,  Rome,  and  Savannah, 
for  proposals  to  distribute  the  Laws  and  Journals  and  other  books 
and  documents  required  by  law  to  be  distributed,  for  one  distribu- 
tor of  such  for  each  Congressional  District  within  sixty  days 
from  the  time  received. 

§  1057.  Before  beginning  the  work  each  distributor  shall  give  a 
Distributor  boud,  with  2;ood  security,  in  the  sum  of  five  hundred  dollars,  to  be 

to  give  bond.  '  o  .   .  . 

approved  by  the  Governor,  conditioned  for  the  prompt  and  faith- 
ful delivery  of  the  books  (specifying  them)  to  the  Clerks  of  the 
Inferior  Courts  of  the  several  Counties  therein  named  within  thirty 
days  from  their  receipt. 

§  1058.  If  not  done  within  the  time  and  in  the  manner,   the 
Damages  wholc   boiid  is   recoverable  as  liquidated  damages,   providential 

for  breach  of  ■■■  o      -'     x 

bond.  causes  only  excepted. 

*  See  Acts  of  1861,  p.  75.    (a)  Acts  of  1861,  p.  75. 


PT.  1.— TIT.  11.— Public  Defense:. 


205 


Chapter  1. — Persons  Subject  to  Military  Duty,  Exemptions,  etc. 


8  1059.  Sucli  bonds  must  be  filed  and  recorded  in  the  Executiye    Bond  filed 

"  and  recorded 

Office. 

§  1060.  If  no  person  applies  for  the  distribution  of  any  district,    Distriimtor 

o  111  t/  /  — when    ap- 

tlie  Governor  is  authorized  to  appoint  such  distributor.  pointed. 

81061.  The  Librarian  is  required  to  select  an  applicant  for  a     Preferred 

"  -"-  distributors. 

Congressional  District,  if  physically  and  mentally  capable  of  the 
service  and  gives  the  requisite  bond  and  security. 

S 1062.  rSo  soon  as   the  Laws   are  ready,  notice  of  the  fact  pistnimtion 

"  L  .  ,/  '  m  advance, 

being  given  in  the  papers  at  Milledgeville,  the  number  of  copies  - 
assigned  to   any  Count}'-  shall  be  delivered  to  the   order  of  the 
Clerk  of  the  Inferior  Court  of  said  County,  or  sent  as  may  be 
directed  by  him,  in  advance  of  the  distribution  hereinbefore  pro- 
vided for.]  (a) 


TITLE    XL 


PUBLIC       DEFENSE. 


CHAPTER    L 

PERSOKS   SUBJECT  TO  MILITARY  DUTY,  EXEMPTIONS,  ETC. 


Section. 

1063.  Persons  subject  to  military  duty. 

1064.  Persons  exempt. 

1065.  Officers  of  militia — when  exempt. 

1066.  Non-commissioned  officers,  etc. 

1067.  Persons  employed  on  vessels,  etc. 

1068.  Persons  subject  must  be  x'egistered. 

1069.  Oath  of  persons,  etc. 

1070.  May  perform  service  or  pay  tax. 


Section. 

1071.  Commutation  tax — how  avoided. 

1072.  Compaxiy  drills — four  in  each  year. 

1073.  Volunteers  exempt  from  road  duty, 

1074.  Amount  of  commutation  tax. 

1075.  Receipt  therefor. 

1076.  Transient  persons — when  subject. 

1077.  Free  men  of  color — how  subject. 


§1063.  All  able-bodied  free  white  male  citizens  betvreen  the  who  are 
ages  of  twenty-one  and  forty-five  years,  residents  in  this  State,  mmtTry  dS 
and  not  exempted  by  this  Code,  are  subject  to  military  duty.         ^^' 

§1064.  The  following  exemptions  shall  be  recognized — viz:        who  are  e  - 

1.  The  chief  officers  of  the  several  Executive  Departments  of  ^™''*' 
State. 

2.  Judges  of  the  Supreme,  Superior,  and  City  Courts,  Justices 


I 


(a)  Acts  of  1865-6,  p.  351. 


206  PT.  1.— TIT.  11.— Public  Defense. 

Chapter  1.— Persons  Subject  to  Military  Duty,  Exemptions,  etc. 


of  the  Inferior  Courts  and  of  the  Peace,  SheriiFs  and  deputies, 
Clerks  of  Courts,  and  Ordinaries. 

8.  Members  of  the  Legislature  during  the  term  for  which  they 
shall  be  elected,  officers  of  the  Legislature  during  its  session  and 
for  seven  days  before  and  after  the  same. 

4.  Persons  employed  on  railroad  trains,  and  repairers  of  rail- 
roads, operators  and  messengers  of  telegraph  companies,  post- 
masters and  persons  employed  in  post-offices  and  the  transporta- 
tion of  the  mails. 

5.  Ferrymen,  bridge  and  toll  gate  keepers,  and  public  millers. 

6.  Ministers  and  preachers  of  the  gospel,  professors  and  stu- 
dents, and  tutors  in  all  colleges. 

7.  Aliens  and  persons  not  qualified  to  vote  for  members  of  the 
Legislature. 

8.  All  persons  exempted  by  the  acts  of  Congress. 

9.  All  persons  on  the  payment  of  the  commutation  tax  pre- 
scribed by  this  Code. 

10.  All  officers  and  non-commissioned  officers  of  the  militia 
who  may  entitle  themselves  to  the  privileges  as  hereinafter  pre- 
scribed. 

11.  Active  members  of  volunteer  corps  after  a  prescribed  term 
of  service. 

12.  Regular  members  of  any  fire  department  or  organization 
connected  therewith. 

§  1065.  Company  officers  of  the  militia  who  shall  uniform  and 
Militia  of-  equip  themselves  according  to  the  regulations  prescribed  for  the 
exempt.       drcss  and  uniform  of  the   army  of  the   United   States,  and  shall 
serve  in  their  respective  stations  continuously  for  the  term  of  eight 
years,  shall  not  be  liable  to  be  called  on  for  military  duty  there- 
Exception,  after,  except  in  case  of  war,  insurrection,  rebellion,  or  invasion. 
§  1066.  Every  non-commissioned  officer,  musician,  or  private, 
Non-com-    of  cverv  uuiform  volunteer  corps,  who   shall  uniform  and   equip 

missioned     ,  .  ,^  ,         ,  r>  i      n 

officers,    himself  and  whose  term  of  service  shall  amount  to  seven  years, 

musicians  ^  '^ 

^^iea  ^^^^'    ^^^^^  ^^^^  ^®  exempt  from  military  duty,  except  in  case  of  war, 

Exception,  rebellion,  insurrection,  or  invasion. 

§  1067.  Every  person  employed  by  the  year  or  season  on  board 
o^'^vlsS  ^^y  vessel,  or  in  the  merchant  service,  or  coasting  trade,  all  pi- 
Sores,' facto- iots  and  stcvcdores,  persous  employed  in  any  blooming  furnace, 
Sempt?^^"^^'  OY  glass  or  porcelain  factory,  cotton  or  wool  mill,  shall  be  exempt 

Exception,  from  militia  duty,  except  in  cases  above  enumerated. 


PT.  1.— TIT.  11.— Public  Defense.  207 

Chapter  1. — Persons  Subject  to  Military  Duty,  Exemptions,  etc. 


§  1068.  Receivers  of  Tax  Returns  shall,  at  the  time  of  receiv- 
ino"  returns  of  taxable  property  from  the  citizens  of  this  State, 
insert  in  appropriate  columns  in  their  digest  the  following  par- 
ticulars— viz  : 

1.  Whether  the  tax  payer  is  himself  subject  to  militia  duty.      tS^piyS.^^ 

2.  How  many  in   his   employ,  or  members   of  his  family,  are    his family 

•^  \.      %i  '  ^  '  an(j  employ 

subject.  ees. 

3.  The  cause  of  exemption,  if  any  exists.  exem  tion"^ 

4.  The  company  district  or  beat  to  which  the  tax  payer  belongs,  ms  district. 

5.  The  amount  of  commutation  tax  charo^eable  to   him  instead  Also  amount 

'-'  of  his    com- 

of  personal  service ;  and  the  amount  so  charged  shall  be  collected  mutationtax 
by  the  Tax  Collector  and  paid  over  to  the  Treasurer  of  the  State  tio^^S™^!!!- 
with  the  general  tax,  and  shall  constitute  the  military  fund  of  the  Tax  coiiec^ 
State. 

§  1069.  No  Receiver  of  Tax  Returns  shall  enter  an  exemption       cause  of 

"  ■'•  exemption  to 

from  military  duty  against  the  name  of  any  person  without  due  ^^  ^Jth"^^^*^ 
proof  of  the  existence  of  the  cause  on  which  the  exeinption  is 
claimed,  and  to  that  end  the  following  clause  shall  be  added  to 
the  oath  administered  by  the  Receiver  of  Tax  Returns:  "And 
that  I  believe  myself  exempted  from  militia  duty  in  this  State  for 
and  on  account  of  the  cause  set  forth  in  this  return." 

§  1070.  Every  citizen  subiect  to  military  duty  may  perform  the      Personal 

•^,  ^  ..  service       in 

same  in  lieu  of  paying  the  taxes  herein  prescribed,  but  the  certifi-  lieuoftax. 

cate  of  the  captain  or  commanding  officer  of  the   company  to 

which  he  belongs  and  in  which  he  is   actually  enrolled  shall  be 

the  only  evidence  which  the  Tax  Collector  is  authorized  to  receive 

in  place  of  the  amount  charged  on  the  Receiver's  digest,  and  the    certificate 

production  of  which  shall  be  noted  by  the  Tax  Collector  on  his  collector. 

return,  and  he  shall  be  allowed  the  same  in  settlement. 

§  1071.  The  captain  or   commandins;   officer  in  each  company    command- 

.  '  ^^  •  ..        i"o     ofScers 

district  shall  enroll,  from  time  to  time,  all  persons  in  the  limits  to  enroll 

■••  those  in  hi8 

of  the  district  subject  to  military  duty,  and  shall,  without  delay,  district. 
notify  such  persons  of  their  enrollment,  and  shall  give  a  certifi-     Notice  to 
cate  to  each  person  performing  military  duty  that  he  has  faithfully 
performed  the  same,  according  to  the  requirements  of  the  Code, 
for  twelve  months  preceding  the  31st  day  of  December  in  each 
and  every  year,  and  such   certificate  shall   be   produced  at  the 
time  of  returning  his  taxable  property,  and  on  failure  so  to  do.    Failure  to 
the  commutation  tax  for  militia  duty  shall  be  charged  against  him  ^mtlS,  ^^^' 
on  the  book  of  the  Receiver  of  Tax  Returns. 


208  PT.  1.— TIT.  11.— Public  Defense. 


Chapter  1. — Persons  Subject  to  Militar}^  Duty,  Exemptions,  etc. 


§  1072.   Captains  of  companies  shall  cause  to  be  mustered  for 
captfiins  parade  and  drill  all  persons  within   their  company  districts  who 

muster  com-  ■■■  ^  ^  i.        */ 

Smef  each  ^^  ^^*  P^^  ^^®  Commutation  tax,  the   only  proof  of  which  paj- 

year.  meut  shall  be  the  receipt  of  the  officer  authorized  to  collect  the 

Evidence  samc,  and  who  are  not  otherwise  exempt,  at  least  four  times  in 

of    pavmenj;  ^        •  ^ 

of  commuta-  eacli  joar,  at  such  times  as  they  may  direct ;  but  there  shall  be 
an  interval  of  at  least  one  month  between  each  muster,  and  they 
Company  shall  file  a  copy  of  their  company  roll  with  the  Clerk  of  the  Infe- 
rior Court  immediately  after  the  muster  which  succeeds  the  closing 
of  the  books  of  the  Receiver  of  Tax  Returns,  for  which  service 
they  shall  respectively  receive  the  sum  of  one  dollar. 

§  1073.  Members  of  volunteer  corps   actually  in  uniform  and 
compensa-  doiuff  dutv,  and  the  field  and  staff  officers  of  volunteer  reg-iments 

tlon  therefor  o  ./ '  .  ^         ^  i 

and  battalions,  so  long   as   they  remain   such,  shall  be  exempted 
Those  who  from  road  and  patrol  duty,  and  taxation  upon  property  by  any 

are    exempt  ..,  .  ,  iii-i-i«-i-i 

from     road  municipai  corporation,  except  such  as   shall  be   liable  to  taxation 

and       patrol  ,         ,  .  r  ^        a 

diity.  by  law  to  raise  a  revenue  lor  the  fetate. 

§  1074.  The   commutation  tax  for  non-performance  of  militia 

Commiita- duty  shall  be  ten  per  cent,  upon  the  State  tax,  provided  it  shall 

per  cent,  on  alwavs  amouut  to  twcntv-five  cents,  and  shall  be   collected  and 

state  tax.  .-^  *1  im 

paid  as  other  taxes  are  collected  and  paid  into  the  Treasury ;  the 
amount  thus  raised  shall  be  set  apart  as  a  separate  fund  charge- 
able with  the  entire  military  expenses  of  the  State. 

§  1075.  The  Tax  Collector's  receipt  to  the  tax  payer  shall  dis- 

Payment  to  tinctly  specify  the  payment  of  the  commutation  tax   for  militia 

in     coiiec-  duty,  whenevcr  paid,  in  order  that  the  same  be  made  available  in 

'  case   of  enrollment  by  the  captains  of  militia   districts   or  beat 

companies. 

§  1076.  Transient  persons  having  a  place  of  business,  and  doing 
Non-resi-  busiucss  in  tlic   State,  but  having  no  residence  or  home  therein, 

dents   doina;  tit  •^•    •        ^  i  n    •^ 

business  in  are  liable  to  militia  duty,  and  on  lailure  to  pay  the  commutation 

the  State  li-  .  .  . 

able  to  miii- tax,  or  perform  military  service,  shall  be  liable  to  an  additional 

tary  duty.  7  r  ./  7 

penalty  not  exceeding  twenty  dollars,  to  be  adjudged  by  any  court 
martial,  within  whose  jurisdiction  they  may  happen  to  be  for  a 
period  of  ten  days. 

§  1077.  Free  men  of  color  above  the  age  of  sixteen  years,  un- 
Free  men  less  belonsclnsi;  to  the  fire  department,  shall  be  subject  to  the  call 

of  color  sub-  T  .   .  .  .  .„      ,  1-1 

jectasmusi-  of  any  voluntecr  military  organization,  if  there  be  one  m  the  town 

cians.  /  .  .  . 

or  city  of  their  residence,  in  the  capacity  of  musician,  pioneer, 
mechanic,  or  servant,  and  if  there  be  be  such  volunteer  organiza- 


PT.  1.— TIT.  11.— CHAP.  2.— Public  Defense.  209 

Article  1. — Militaiy  Force — how  Composed. 

tion,  then  to  the  militia  in  one  of  the  aforesaid  capacities,  and 

they  shall  be  entitled  to  the  usual  waores  for  the  practice  of  such    Entitled  to 

«/  .  .  wages. 

occupations ;  but  on  failure  so  to  attach  themselves,  when  required 

so  to  do,  they  shall  pay  to  the  Clerk  of  the  Inferior  Court,  for  the  serve.^°^ 

use  of  the  County  in  which  they  reside,  the  sum  of  five  dollars.* 


CHAPTER  II. 

MILITARY    ORGANIZATION 


Article  1. — -Blilitary  Force — liow  composed. 
Article  2. —  The  Volunteers. 
Article  3. — Cavalry  Corps. 
Article  4. — The  Militia. 
Article  5. — Elections. 


ARTICLE  I. 

military  force— how  composed. 

Section.  i  Sectiox. 

1078.  The  military  force  of  the  State.         I       1079.  The  engineer  corps  of  the  Stat€. 

§  1078.  The  military  force  of  the  State  embraces  the  Georgia     Military 
Military  Institute,  the  volunteers,  and  the  militia,  to  which  may 
be  added  such  military  schools,  when  the  institution  is  of  a  mili- 
tary character,  as  may  avail  themselves  of  the  provisions  herein 
embraced. 

§  1079.  The  Georgia  Military  Institute  constitutes  the  engineer    The  engi- 
corps  of  the  State,  and  the  officers  in  the  Institute  having  jjiili- °^^^ '^°^^^' 
tary  rank  in  the  academic  staff  (cadet  officers  excepted),  shall  be 
commissioned  as  such  according  to  their  respective  grades.     (See 
Military  Institute.) 

"^  This  section  retained  because  specially  enacted  by  Acts  of  1865-6,  page  227, 
although  it  would  seem  to  be  conti'ary  to  the  Constitution,  and  laws  changing 
the  status  of  free  persons  of  color, 

14 


210 


PT.  1.— TIT.  ll.-CHAP.  2.-^PuBLic  Defense. 


Article  2.— The  Yolunteers. 


ARTICLE  II. 


HE    VOLUNTEEES. 


Section. 

1080.  Volunteer  forces  of  the  State. 

1081.  Battalions  in  respective  Counties. 

1082.  Their  rights,  privileges  and  duties. 

1083.  Number  of  officers,  etc.,  necessary. 

1084.  Companies— how  organized. 

1085.  Arms,  etc.,  supplied— when. 

1086.  Discipline  and  exercise  prescribed, 

1087.  Must  make  annual  returns. 

1088.  Independent  companies  disbanded, 

1089.  Resignation  of  captain. 

1090.  Regiments  and  battalions,  etc. 

1091.  May  adopt  by-laws. 


Section. 

1092.  Fines— how  imposed  and  collected. 

1093.  Elections— by  whom  ordered. 

1094.  When  by  Commander-in-Chief. 

1095.  Commissions  vacated— when. 

1096.  Suits  on  bonds  of  officers. 

1097.  Disbanded  companies,  etc. 

1098.  Artillery  companies  received,  etc. 

1099.  Volunteer  companies  corporate. 

1100.  Courts  Inquiry  and  Courts  Martial, 

1101.  Volunteers  exempt,  etc. 

1102.  Cumulative  provisions. 


Battalions, 
regiments, 
etc. 


§  1080.    The  volunteers  consist  of  sucli  corps,  uniformed  and 
Thovoiun-  equipped,  as  now  exist,  or  may  hereafter  be  formed  in  this  State. 

teer  force,  ±     ±  i.        ^  7  ^ 

They  may  organize  themselves  into  companies,  battalions,  regi- 
ments and  brigades,  at  their  option ;  but  the  whole  volunteer  force 
shall  constitute  one  or  more  divisions  conforming  to  the  organiza- 
tion of  the  United  States  Army,  except  when  otherwise  prescribed 
in  this  Code.  As  soon  as  such  shall  be  organized,  they  shall  be 
reported  to  the  commander-in-chief,  and  shall  remain  permanent 
until  changed  by  his  approval  or  by  special  enactment. 

§  1081.  Battalions  and  regiments  shall  be  organized  always 
within  the  limits  of  their  respective  Counties,  if  there  are  compa- 
nies enough  in  a  County  ;  if  not,  then  to  be  added  to  from  adjoining 
Counties,  unless  companies  in  other  Counties  are  more  accessible, 
to  be  judged  of  by  the  commander-in-chief. 

§  1082.  When  thus  organized,  they  have  the  same  rights,  privi- 
Eights  and  leges,  and  are  subject  to  the  same  duties  as  such  organizations  in 
cities.  If  there  are  not  cornpanies  enough  in  a  city  to  form  a 
battalion  or  regiment,  it  may  be  formed  by  the  addition  of  other 
companies  in  the  same  County,  if  such  exist,  and  if  not,  then  from 
adjoining  Counties. 

§  1083.  Volunteer  corps  may  be  formed  any  where  within  the 

corIsfo?med  State,  and  may  consist  of  citizens  of  the  same  or  adjoining  Coun- 

of  the^st^aS  ^^^^'     Such  as  may  hereafter  be  formed  shall  number  at  least  forty 

privates,  nine  non-commissioned  officers,  four  commissioned  officers, 

with  such  musicians  as  they  may  deem  sufficient. 

§  1084.  When  the  requisite  number  of  members  are  enrolled, 
their  first  duty  shall  be  to  uniform  themselves  according  to  the 


PT.  1.— TIT.  11.— CHAP.  2.— Public  Defense.  211 


Article  2. — The  Volunteers. 


©revisions  of  tkis  Code ;  they  shall  then  notify  the  commander-in-     wheu  en- 

r  ^  ./  1/  rolled  to  re- 

chief  of  the  number  enrolled  and  uniformed,  who  shall  order  an  T>ort  to  com- 

viixwx    w  ,  marider  -  in- 

•^lection  for  captain  and  subaltern  officers  under  such  superinten-  ^^^®f- 

dence  as  he  may  prescribe,  and  the  superintendents  shall  transmit 

the  return  of  the  same  to  the  Executive   Department,  and  the  ^ J^^^^gl^'^  ^^ 

'Governor  shall  commission  the  officers  elected,  unless  the  election 

is  contested  ;  in  which  case,  if  in  the  opinion  of  the  Governor  there 

be  sufficient  grounds  to  set  the  same  aside,  he  shall  order  a  new 

election. 

§  1085.  Arms  and  accouterments  shall  be  supplied  to  the  vol-    Arms,  etc., 

.        ,  .  p  .,  ,  ...  ,       to     be    sup- 

unteer  corps,  whether  umiormed   or  not,   oy  requisition   on   the  pHed  to  aii 

,  ,  ,  T  volunteer 

Governor,  in  such  manner  and  upon  such  terms  as  he  may  direct,  corps. 
from  the  quota  of  arms  distributed  to  the  several  States  under  the 
laws  of  Congress,  or  from  other  arms  belonging  to  this  State. 

§  1086.  The  system  of  discipline  and  exercise  shall,  as  near  as     Digcipuue 
may  be,  conform  to  that  prescribed  for  the  army  of  the  United  ^fg^^    ^^^^' 
States,  from  time  to  time,  by  Congress,  but  the  commander-in- 
chief  may  direct  such  text  books  for  use  as  a  guide  in  such  arms 
as  he  may  think  proper,  and  no  other  weapons  of  war  than  such 
as  are  used  by  the  soldiers  of  the  army  of  the  United   States,      i^™^'^  to 

•^  "^  '  confoim     to 

except  by  order  of  the  commander-in-chief,  shall  be  used  by  the  f^H'^^  "^  ^* 
volunteers. 

§  1087.  All  volunteer  corps,  except  such  as  may  be  organized    independ- 
into  regiments,  shall  make  a  full  return  to  the  Governor  of  the  make"p!iniiai 
number  of  men  in  each  corps  actually  in  uniform,  the  number  and  Governor.  ^° 
rank  of  the  officers,  the  arms  and  accouterments  in  their  possession 
supplied  by  the  State,  and  the  number  of  suck  as  may  be  unfit  for 
use  or  expended  in  service,  which  return  shall  be  made  up  to  the 
first  day  of  May  in  each  year,  and  signed  by  the  captain  of  such 
corps. 

§  1088.  Whenever  it   shall  appear  to  the   commander-in-chief     indepen- 
that  any  independent  volunteer  corps  is  deficient  in  the  number  dfsbanded— 
of  men  required  by  this  Code  to  constitute  a  company,  he  shall 
issue  an  order  requiring  the  return  of  such  equipments  as  may 
have  been  furnished  by  the  State,  and  disband  such  corps,  but  the  Exception. 
provisions  of  this  paragraph  shall  not  apply  to  any  volunteer  corps 
formed  previous  to  the  adoption  of  this  Code,  or  to  any  corps 
attached  to  and  constituting  a  portion  of  a  regiment  of  volunteers. 

§  1089.  The  resignation  of  a  captain  of  an  independent  volun- 
teer corps  shall  not  take  effect  until  accepted  by  the  commander-  of  l^iptuin?" 


212  PT.  1.— TIT.  11.— CHAP.  2,— Public  Defense. 

Article  2.— The  Yoliinteers. 

in-chief,  nor  until  a  full  return  is  made  to  the  Governor  of  all  the 
arms  and  accouterments  received  from-  the  State  and  in  possession 
of  the  corps  under  his  command,  inventoried  and  ready  to  be 
turned  over  to  his  successor,  and  as  often  as  a  captain  is  elected 
he  shall  receipt  to  his  p  edecessor  for  the  arms  and  accouterments 
so  turned  over  to  him. 

§  1090.  When  volunteer  corps  are  organized  into  a  regiment  or 
Eetm-usof  a  battalion,  the  coroiDany  returns  shall  be  made  to  the  adiutant. 

regimental  .  .  o  ^ 

companies,  and  bj  him  forwarded  to  the  Executive  Department. 

§  1091.  Volunteer  corps  may  adopt  their  own   by-law^s  and  reg- 

Gompanies  ulatioHS,  not  inconsistent  with  the  laws  of  the  State  or  military 

bj4aws,  etc.  laws  or  usagc,  and  may  adapt  them  in  such  mode  as  they  see 

proper  to  their  organization  into  a  regiment  or  a  battalio-n.     The 

commander-in-chief  shall  prescribe  the  uniform  of  volunteer  corps, 

and  in  all  matters  not  provided  for  in  this  Code  such  corps  shall 

be  governed  by  military  law  and  usage  and  the  custom  of  the  army 

S^SpSi!  of  the  United  States,  so  far  as  they  can  be  made  applicable. 

§  1092.  All  fines  for  delinquencies  in  military  duty  shall  be 

Fiuestobe  assessed  by  regimental,  battalion,  or  company  courts  martial,  as 

courtmartiai  the  case  may  be,  and  be  collected  by  execution  under  the  hand  and 

seal  of  the  President  of  the  Court,  and  directed  to  the  Sheriff  of 

the  County  in  which  the  delinquent  resides,  and  the  Sheriff  shall 

be  entitled  to  such  costs  and  subject  to  be  ruled  in  the  Superior 

Court,  and  the  execution  shall  have  like  form  and  effect  as  in  civil 

cases.     The  Sheriff  may  procure  the  service  of  such  executions  by  a 

Bailiff,  he  being  responsible  therefor  as  though  it  were  his  own  act. 

§  1093.  All  elections  for  officers  of  the  volunteers  and  to  fill 

Election  for  vacancies  shall  be  ordered  by  the  officer  within  whose  immediate 

haw  ardered  commaud  the  vacancy  to    be  filled   occurs.     For  subalterns,  by 

captains  of  the  companies  in  which  the  vacancy  exists,  unless  the 

company  be  attached  to  a  battalion  or  regiment ;   for  regimental 

officers,  by  colonels ;  for  colonels,  by  the  brigadier-general  of  the 

regiment,  he  being  attached  to  a  brigade ;   for  brigadier-general, 

by  the  general  of  division. 

§  1094.  In  case  of  a  regiment  not  attached  to  a  brigade,  or  of  a 
Eiection&in-com.pany  not  attached  to  a  regiment  or  a  battalion,  elections  for 

an  mdepen-.  ju        e/  o  ^  ^ 

dent     regi-  eolouel  and  captain  shall  be  ordered  by  the  commander-in-chief, 
company,     ^j^^  whcn   an  independent  battalion  exists,   not  belonging  to  a 

regiment  or  brigade,  the  election  for  its  commander  shall  be  ordered 

by  the  comniander-iR-chief. 


PT.  1.— TIT.  11.— CHAP.  2.— Public  Defense.  218 


Article  2. — The  Volunteers. 


§  1095.  Whenever  a  volunteer  corps  is  disbanded,  tlie  commis-  _  commis- 

Sxons  to  ^x~ 

sions  of  its  officers  shall  be  vacated,  but  they  shall,  nevertheless,  piie— wiien. 
be  liable  to  suit  on  the  bond  executed  for  the  safe  keeping  and 
delivery  of  the  arms  entrusted  to  then^,  /by  the  State,  if  there 
should  be  a  breach  thereof. 

§1096.   Suits  on  the  bonds  of  officers  of  volunteer  companies  suife  on  of- 
fer arms  and  accouterments  shall  be  brought  under  the  direction 
of  the  judge-advocate-general,  in  whose  office  such  bonds  shall  be 
filed  for  safe  keeping. 

§  1097.  When  any  volunteer  corps  disbands  of  its  own  accord,    corps  voi- 

Tintarily  <iis- 

the  members  thereof  shall  cause  the  fact  to  be  reported  to  the  banding. 
eommander-in-chief,  and  they  shall  forthwith  deliver  to  some  officer 
of  the  quartermaster-general's  department  all  the  public  property 
in  their  possession,  and  upon  filing  his  receipt  therefor  with  the 
judge-advocate-general,  a  discharge  shall  be  entered  on  their  bond. 

§1098.  Whenever  the  commanding  officer  of  any  volunteer  $200  to  be 
artillery  company  in  this  State  shall  certify  to  the  Governor  that  Snery'eo^ 
there  are  sixty  active  members,  officers  and  privates,  upon  the 
muster  roll  of  such  company,  (a  copy  of  which  muster  roll  shall 
accompany  the  certificate,)  and  that  said  company  has  been  exer- 
cised in  the  field  with  its  guns  for  not  less  than  two  hours  at  each 
drill,  and  not  less  than  tvfelve  drills  in  each  year,  the  Governor 
shall  draw  his  warrant  upon  the  Treasurer  of  the  State  for  the 
sum  of  two  hundred  dollars,  to  be  paid  into  the  fund  of  said  com- 
pany; lorovided^  nevertheless^  that  the  provisions  of  this  Section 
shall  not  extend  to  more  than  seven  companies,  not  including  such 
companies  as  may  be  already  organized,  and  who  may  comply 
with  the  provisions  of  this  Section. 

§  1099.  Volunteer  companies  of  infantry,  cavalry  or  artillery,   volunteer 

.  ^  ^  .  .  companies 

which  have  been  or  may  hereafter  be  organized,  with  not  less  mcoi-parat- 
than  forty  members,  and  have  their  officers  duly  comrjaissioned, 
are  made  a  body  corporate  and  politic,  under  their  respective 
names  and  styles,  and  made  capable  in  law  to  sue  and  be  sued,  to 
plead  and  be  impleaded,  to  have  a  common  seal,  to  hold  property, 
real,  personal  or  mixed,  and  to  pass  such  by-laws,  rules  and  regu- 
lations as  may  be  necessary  for  their  government,  not  inconsistent 
with  the  laws  and  Constitution  of  this  State  or  the  United  States. 

§  liOO.   Courts  of  inquiry  and    courts  martial,  for  companies      courts  of 

inquiry   and. 

incorporated  by  the  provisions  of  this  Code,  shall  be  constituted  cp"-^rts  mar- 
aad  regulated  by  the  laws  in  force  relating  to  volunteer  companies. 


214 


PT.  1.— TIT.  11.— CHAP.  2,— Public  Defehss. 


Article  3. — Cavalry  Corps. 


§  1101.  Each  member   of   any  company  incorporated   by  the 

Members  provisions  of  this  Code  sball  be  exempt  from  road  or  militia  duty, 

corps  ex- except  siich  as  may  be  required  of  tbem   as   members  of  their 

empt     from  ,  .^  ,   •       ,  •  c  -  ,•  • 

road  ormiii-  rospcctive  companies,  aK^/ji  except  m  tmaes  oi  msurreetion,  invasion^, 
rebellion,  or  ^yar ;  j)rovided,  the  commanding  officer  of  any  com- 
pany so  incorporated  shall  have  recorded  in  the  offices  of  the 
Clerks  of  the  Superior  and  Inferior  Courts  of  their  respective 
Counties,  a  full  and  complete  list  of  the  members  of  their  com- 
pany, and  that  the  above  exemption  shall  continue  no  longer  than 
actual  membership. 

§  1102.  The  five  preceding  Sections  shall  be  held  to-  be  cumula 
Certain  sec- tive  to   any  act   already  passed,   conferring  privileges  upon  any 
lative.         company  now  existing  under  the  laws  of  this  State,  or  which 
may  hereafter  be  organized. 


ARTICLE  IIL 


CAVALRY     CORPS 


Section". 

1103.  A  squadron  of  cayalry  defined. 

1104.  How  organized. 

1105.  AVhat  constitutes  a  troop,  etc,  - 


Sectton. 

1106.  Parade-  and  drill. 

1107.  Eines  for  non-attendance. 


§  1103.  A  squadron  of  cavalry  shall  consist  of  not  less  thaifc 
Squadron,  two  or  more  than  five  troops,  and  shall  be  commanded  by  a  major, 
elected  by  the  commissioned  officers  of  the  troops  composing  the 
squadron.  He  shall  appoint  his  own  staff,  and  determine  his  own 
uniform  and  that  of  his  staff,  with  the  approbation  of  the  com- 
mander-in-chief. 

§1104.  Any  two  or  more  troops  of  cavalry,  having  regard  to 
Two  or  their  neighborhood  and  facility  of  communieation  with  each  other, 
may  form  a  may  Unite  to  form  a  squadron,  and  whenever  such  formation  is- 
determined  on  they  shall  report  the  same  to  the  commander-in- 
chief,  who  shall  thereupon  order  an  election  for  major,  at  such 
time  as  he  may  think  proper,  and  shall  issue  a  commission  to  the 
officer  elected. 

§  1105.  Each  troop    of   cavalry    shall    consist   of    forty   men 

Arms,     besides  the  captain,  uniformed  and  mounted;  they  shall  be  armed 

with  cavalry  sabers   or  broad  swords,  and  dragoon  holsters,  or 


PT.  1.— TIT.  11.— CHAP.  2.— Public  Defense. 


215 


Article  4.— The  Militia. 


such  other  pistols  as  the  commander-in-chief  may  direct,  and  may 


,; 


carry  a  carbine  at  their  option. 

§1106.  The  major  commanding    a  stj'uadron  of  cavalry  shall  Majortopa- 
parade  and  exercise  the  same,  either  in  squadron  or  detachment,  ron  or  de- 

,  .  ,  f,  .     ,  TIT  tachmcntan- 

at  least  once  m  each  year,  tor  a  period  not  exceeding  three  days  nuaiiy. 
at  any  one  parade,  after  the  arrival  at  the  place  of  rendezvous. 
Orders  for  such  parade  may  be  given  verbally  at  any  parade,  or 
by  writing.     Commissioned  officers   shall   have  twenty,  non-com- 
missioned officers  and  men  ten  days'  notice. 

§  1107.  Fines  for  non-attendance  or  delinquency  at  any  squad     Fines  for 
drill,  or  parade,  or  muster,  shall  be  imposed  by  a  court  martial,  to  ance     at 
be  ordered  by  the  officer  commanding  the  squadron,  but  they  shall  dniis. 
not  exceed  double  the  amount  imposed  by  the  regulations  of  the 
troops  of.  which    the    delinquent   is   a   member,    for  offenses  of 
like  character,  and  shall  be  collected  as  provided  in  Section  1092. 


ARTICLE  IV. 

THE    MILITIA. 


Section. 

1108.  The  militia  of  the  State. 

1109.  How  organized. 

1110.  Companies — how  organized. 

1111.  Grade  of  militia  officers. 

1112.  New  divisions,  etc. — how  created. 


Section. 

1113.  Regiments — how  organized. 

1114.  Non-commissioned  officers. 

1115.  Captains  make  return  to  adjutant. 

1116.  Notice  of  drills — how  given. 

1117.  Register  of  commissioned  officers. 


§1108.  The  militia  of  the  State   consists  of  aAl   persons  not  Themiutia. 
heretofore  classified  within  its  limits  subject  to  military  duty,  and 
not  exempted  therefrom  by  the  acts  of  Congress  or  the  laws  of 
this  State,  or  belonging  to  some  volunteer  organization. 

§  1109.  The  militia  shall  be  organized  into  companies,  battal-  Organizaiion 

o  ••■  '  — now  num- 

ions,  regiments,  brigade's,  and  divisions,  which  shall  be  numbered  ^^pf^atedin 


commissions 


throughout  the  State,  by  order  of  the  commander-in-chief,  in 
such  manner  that  every  corps  of  the  same  denomination  shall 
bear  a  different  number,  by  which  number  every  company,  dis- 
trict, regiment,  brigade,  or  division,  as  the  case  may  be,  shall  be 
designated  in  the  commissions  of  the  officers  commanding  the 
same. 

§1110.  If,  from  exemptions,  there  are  not  persons  enough  lia- Deficiency  in 

,.  ,..  ^       numbers    in 

ble  to  do  militia  duty  m  any  district  or  beat,  a  company  may  be  any  district 

.  .         .  r       J  ^  company. 

organized  of  those  so  liable  from  adjoining  districts  or  beats,  of 


216  PT.  1.— TIT.  11.— CHAP.  2.— Public  Defense. 

Article  4.— The  Militia. 

not  less  than  forty  nor  more  than  one  hundred,  under  the  direc- 
tion of  the  colonel  of  the  regiment ;  and  when  so  done,  must  be 
accurately  reported. 

§  1111.  The  following  grades  of  militia  officers  shall  be  recog- 
Grades  of  nizcd  I  Commandinfii;  each  division,  a  maior-s^eneral ;  each  bri- 
gade,  a  brigadier-general ;  each  regiment,  a  colonel,  lieutenant- 
colonel,  and  major;  a  separate  battalion,  a  major;  each  company, 
a  captain,  first  and  second  lieutenants,  and  ensign.  Wherever 
other  grades  exist,  they  shall  continue  until  the  same  becomes 
vacant,  when  they  shall  respectively  cease  and  determine. 

§  1112.    New  divisions  and    brigades   shall    be  created   by  the 

New  divis- Legislature  ;    regimental  and  company  districts  by  order  of  the 

brigades,  commandcr-in-chief,  on  the  report  of  the  officers  commanding  the 

—regimental  ..... 

and  compa-  companics  in  the  resrimental  district,  but  in  all  cases,  when  prac- 

ny  districts.     _       •*•  ...  . 

ticable,  the  regimental  district  shall  be  coterminous  with  the 
County  in  which  it  is  situated. 

§  1113.    There  may  be  two   or   more  regiments  in  the  same 
Twoormore  Couuty,  and  two  or  more  Counties  may  be  united  to  form  a  regi- 

regiments  ,  ii«  i       i  i  •  i  n       i  ^ 

may  be  in  mcut,  Quc  regard  being  had  to   the  proportion  thereoi ;  but  the 

same  County         ..  •i-i-ii^Tn  it  t       i 

existing  arrangement  m  this  behali  shall  not  be  disturbed  except 
by  the  Legislature,  unless  upon  application  of  those  interested 
therein. 

§1114.  The  captain  of  each  company  shall  divide  his  company 

Captain  to  into  four  squads,  as  nearly  equal  as   may  be,  and  appoint  one  fit 

pany  into  and  propcr  person  in  each  as  sergeant,  and  one  as  corporal,  and 

he  shall  also  Sjpplsint  a  first'ft,sergeant :    they  shall  be  responsible 

for  the  proper  distribution  of  all  orders,  and  may  be  removed  by 

a  compare  court  n^artial  for  proper.cause.  ,. 

§1115.  Each'' captain  of  a  militia  Company  shall  make  out  and 

Eeturnsto  dclivcr  to  the  adjutant  of  the  regiment  to  which  he  belongs  a\full 

captain     to  rctum  of  the  number  and  names  of  th^  men  belonging  to  his 

company,  on  the.  first  day  of  May  in  each  year,  for  which  he  shall 

receive  such  compensation  as  is  paid  to  the  takers  of  the  State's 

census,  to  be  paid  out  of  the  military  fund. 

§  1116.  A  non-commissioned  officer,  or  any  other  person   ap- 

Summons  poiutcd  for  the  duty,  may  warn  persons  subject  to  militia  duty  to 

—by  whom  appear  at  parades,  musters,  or   drills,  and  he  shall  be  furnished 

"^      '         with  a  list  of  persons  to  be  warned.     Such  warning  may  be  given 

verbally  to  the  party  in  person,  or  by  leaving  a  written  summons 

at  his  most  notorious  place  of  abode ;  but  the  party  may  claim 


PT.  1.— TIT.  11.— CHAP.  2.— Public  Defense.  217 


Article  5.-  "^s^lie  bns. 

.x/ 


his  exemption  at  the  time  of  such  warnillg  and  produce  to  the 
warning  officer  the  evidence  thereof,  which  may  be  his  own  oath 
or  such  other  evidence  as  may  establish  the  fact,  and  it  shall  be 
the  duty  of  the  warning  officer  to  enter  the  exemption  claimed 
against  the  name  of  the  party  on  his  list. 

§  1117.  Each  colonel  of    a  militia  regiment  shall,  by  himself     Roster  of 

,.-,.  T  T  c      IT     1  •      '  1       m     o&cers  to  be 

or  his  adiutant,  keep  a  roster  or  list  ot  all  the  commissioned  offi-kept    by 

'J  ^  ir  ^  colonel. 

cers  of  his  regiment  below  the  rank  of  captain,  and  shall  revise 
and  correct  the  same  as  often  as  may  be  necessary,  and  annually, 
on  or  before  the  first  day  of  June,  shall  forward  to  the  Secretary 
of  State  copies  of  the  returns  so  delivered  to  the  adjutant  of  his 
regiment,  as  well  as  a  copy  of  the  roster  above  mentioned,  and 
for  habitual  failure  in  the  premises,  shall  be  liable  to  be  tried  by 
a  general  court  martial  and  cashiered,  or  otherwise  punished,  as 
said  court  may  direct. 


ARTICLE   V. 

ELECTIONS. 


Section. 

1118.  Election  of  militia  officers. 

1119.  Notice  of— how  given. 

1120.  Voters  failing  to  attend. 


Section. 

1121.  A  plurality  of  votes  will  elect. 

1122.  Elections— by  whom  ordered. 


§1118.  All  elections  of  militia  officers  shall  be  by  the  people;   Mmtiaoffl- 

CGI'S       to       t)S 

of  captains  and  subaltern  officers,  by  the  people  of  the  several  elected  by 
company  districts  subject  to  do  militia  duty ;  of  field  officers,  by 
the  citizens  of  the  Counties  subject  to  military  duty  under  the 
command  of  such  officers ;  brigadier  and  major-generals,  by  the 
citizens  of  the  respective  brigades  and  divisions  subject  to  mili- 
tary duty  under  such  commander  of  the  brigade  or  division,  and 
may  be  superintended  by  a  Justice  of  the  Peace  and  a  freeholder, 
or  by  two  freeholders  or  two  military  officers,  as  the  authority  howTewr" 
ordering  the  election  may  see  fit  to  prescribe. 

§1119.  Notices  of  such  elections  may  be  given  as  follows:   By    Notices  of 

iT;'«  1  •  1  11  electio  n — 

publication  m  one  or  more  gazettes,  by  notice  at  the  usual  place  how  given. 
of  posting  legal  notices,  or  by  orders  published  at  parade  or  drilL 
Twenty  days'  notice  shall  be  given  of  the  time  and  place  of  the 
election  of  any  officer  below  the  grade  of  brigadier-general. 

§  1120.  In  case  of  voters  failing  to  attend  at  any  election  for 
militia  officers,  and  no  vote  shall  be  polled,  it  shall  be  the  duty 


218 


PT.  1.— TIT.  11.— CHAP.  2.— Public  Defense. 


A}e  4.--i  5. — Elections. 


New  eiec-  of  the  Superintendents  to  return  the  fact  to  the  Executive  Depart^ 

tion  ordered  ■*■ 


or  officer  ap- xnent,  with  a  statement  of  the  interval  allowed  for  the  reception 

pom  ted —  _         •'■ 

when.  of  yotcs ;  whcrcupon  the  commander-in-chief  may,  in  his  discre- 

tion, order  a  new  election  or  appoint  an  officer  to  fill  the  vacancy, 
and  commission  him  accordingly. 

§  1121.  At  all  elections  of  militia  officers,  the  person  having 
Plurality  the  hiffhcst  numbor  of  votes  shall  be  declared  elected,  and  every 

of   votes    to  °  ^      ^  ^  -'  ♦^ 

elect.  officer  to  whom  a  commission  shall  issue  shall  declare  to  the  Ex- 

ecutive Department,  within  a  reasonable  time  after  its  reception, 
his  acceptance  or  declension  of  the  same.  After  two  months  have 
elapsed,  he  shall  be  deemed  to  decline  unless  he  shall  have  uni- 
formed and  equipped  himself. 

§  1122.  All  elections  for  militia  officers  of  and  above  the  rank 
Elections  of  Captain  shall  be  ordered  by  the  commander-in-chief,  and  below 

for     officers  ^  -^  .  '  . 

above  rank  that  rank  by  the  captain,  or  those  actincj  as  such,  and  on  failure 

of  captain.  »^  .  . 

to  elect,  such  captain  or  the  commanding  officer  of  the  company 
may  complete  the  same  by  appointment,  and  such  appointees  shall 
be  commissioned  as  in  case  of  elections.  All  officers  of  the  military 
force  of  this  State  shall  be  commissioned  by  the  Governor,  whether 
of  the  line,  field,  or  staff.  The  commission  of  staff  officers,  except 
the  chiefs  of  the  staff  department,  will  expire  with  the  commissions 
of  the  officers  on  whose  staff  they  may  be  appointed. 


CHAPTER    III. 

ORGANIZATION  OF  THE  STAFF  OF  THE  MILITIA. 


Section. 

1123.  Staff  department  of  the  militia. 

1124.  Of  the  Commander-in-Chief. 

1125.  Military  duties  of  Secretary  of  State. 

1126.  Staff  of  division. 

1127.  Battalion  entitled  to  a  staff—when. 

1128.  Secretary  of  State. 


Section. 

1129.  Paymaster-Greneral — his  duties. 

1130.  Expenses  of  Staff  department. 

1131.  Accounts  for  military  service. 

1132.  Chief  of  each  staff— his  duties. 

1133.  Secretary  of  State  chief  of  staff. 

1134.  Governor  shall  appoint  three  aids. 


§  1123.  The  staff  departments  of  the  militia  shall  be  as  follows — 


staff  depart-  yiz 
ments  of  the 
militia. 


1.  The  Secretary  of  State's  department. 

2.  The  Quartermaster-General's  department. 

3.  The  Commissary-General's  department. 

4.  The  Paymaster-General's  department. 

5.  The  Judge-Advocate-General's  department. 

6.  The  Surgeon-General's  department. 


PT.  1.— TIT.  ll.~PuBLic  Defense.  219 

Cliapter  3. — Organization  of  the  Staff  of  the  Militia. 


§  1124.  The  chiefs   of  the  several  staff  departments  shall  he     chiefs  of 

■*■  staft  depart- 

attached  to  the  staff  of  the  commander-in-chief.  ments  at- 

tached— how 

§  1125.  [The  office  of  the  Adjutant  and  Inspector  General  is 
abolished,  and  the  duties  heretofore  required  of  that  officer  shall 
hereafter  be  performed  by  the  Secretary  of  State — to-wit :  Hel  (a)  Military  du- 
shall  reside  and  keep  his  office  at  the  seat  of  Government.  He  tary  of  state. 
shall  obe}^  all  orders  given  him  by  the  commander-in-chief  in  rela- 
tion to  the  duties  of  bis  office,  and  keep  a  fair  record  of  all  orders 
and  communications  vfhich  he  shall  receive  from  time  to  time.  He 
shall  require  annual  returns  from  the  major  and  brigadier-generals, 
from  which  he  shall  make  out  a  general  return  of  the  whole  strength 
of  the  militia  and  forces  of  the  State.  He  shall  provide  accurate 
abstracts  of  annual  returns  for  divisions,  brigades,  regiments,  and 
companies,  both  of  the  militia  and  volunteers,  which  forms,  when 
made  out,  shall  exhibit  the  strength  of  arms  and  accouterments, 
equipments,  and  munitions  of  such  divisions,  brigades,  regiments, 
and  companies,  and  a  description  of  the  corps  composing  the  same; 
and  shall  transmit  these  abstracts  for  annual  returns  to  all  officers, 
who  are  required  to  fill  them  at  such  times  as  may  be  designated 
in  general  orders.  All  military  orders  and  commissions  shall  pass 
through  his  office.  He  shall  lay  before  the  Governor  every  com- 
munication he  may  receive  on  military  affairs  requiring  Executive 
action.  He  shall  attend  all  public  reviews  when  the  commander- 
in-chief  shall  review  any  portion  of  the  forces  or  the  whole  of 
them.  He  shall,  whenever  required  by  the  commander-in-chief, 
inspect  the  arsenals  and  armories  of  the  State,  which  shall  be 
under  his  charge ;  and  all  applications  for  the  distribution  of  arms 
shall  be  made  to  him.  He  shall  also  act  as  inspector-general  of 
the  State,  and  shall,  whenever  ordered  by  the  commander-in-chief, 
inspect  any  portion  of  the  military  forces  of  the  State. 

§  1126.  The  division  staff  shall  be  constituted  as  follow^s  :  A  Division 
division  inspector,  with  the  rank  of  lieutenant-colonel,  two  aids-de- 
camp, one  quartermaster,  one  judge-advocate,  and  one  surgeon, 
each  with  the  rank  of  major,  to  be  appointed  by  the  major-general. 
The  brigade  staff  shall  consist  of  a  brigade  inspector,  with  the  rank  Brigade 
of  major,  one  aid-de-camp  or  quartermaster,  each  with  the  rank  of 
captain,  to  be  appointed  by  the  brigadier-general.  The  regimental 
staff  shall  consist  of  an  adjutant,  a  quartermaster,  a  paymaster,  stefff^^^*'^^ 

(a)  Acts  of  1865-6,  p.  227. 


220  PT.  1.— TIT.  H.—PuBLic  Defense. 


Chapter  3. — Organization  of  the  Staff  of  the  Militia. 


commissary,  judge-advocate,  and  surgeon,  each  with  the  rank  of 
lieutenant,  to  be  appointed  by  the  colonel  of  each  regiment. 
staff  of       §  1127.  In  case  of  a  separate  battalion,  the  commandino;  officer 

independent     p,,  t  ^     m    i  t     ^ 

battalion.     01  the  battalion  shall  be  entitled  to,  and  shall  appoint  a  like  staff 
with  the  colonel  of  a  regiment. 
Arsenals,       §  1128.  The  Secretary  of  State  shall  keep  in  order  and  control 

magazines,  •'  ■■■ 

etc°u°nder  *^^  arscnals  and  magazines  of  the  State,  attend  to  the  due  preser- 
secretiy of  ^^^'^^^  of  the  ordnanco,  arms,  accouterments,  munitions  of  war, 
state.         ^j^(j  implements  of  every  description,  the  property  of  the  State  and 
in  its  possession,  and  he  shall  at  all  times  have  the  control  and 
disposition  of  the  same  for  that  purpose.     He  shall  report  annually 
to  the  commander-in-chief  the  actual  situation,  condition,  and  dis- 
position of  all  the  ordnance,  arms,  and  military  property  which  in 
any  wise  appertain  to,  or  respect  the  department  confided  to  his 
keeping. 
Paymaster      §  1129.   The  paymastcr-geueral  shall   annually  report    to    the 
make'annuai  commander-in-cliief  all  such  matters  connected  with  his  department 

reports. 

as  come  to  his  knowledge,  and  all  monej^s  received  by  him  shall 
be  deposited  in  the  Treasury  to  the  credit  of  the  military  fund, 
and  shall  constitute  a  part  of  the  same. 
Chiefs   01      §  1130.  Each  chief   of  a  staff  department  shall   keep   a  true 

staff  depart-  .     .  r>  i  •       n  i  •    i       i      n   i  i 

ments  to  account  01  the  expenses  oi  his  department,  which  shall  be  reported 

make     quar-  • 

teriyreturns  quarterly  to  the  commander-in-chief,  who  shall  draw  his  warrant 
on  the  military  fund  for  the  same.     An  abstract  of  such  warrants 
shall  be  laid  before  the  Legislature. 
Accounts      §  1131.  All  fees  for  military  service  shall  be  embraced  in  an 

for  military  '^ 

services.       account  made  out  and  certified  by  the  ofiicer  to  whom  the  same 
may  be  due,  and  delivered  to  the  officer  of  the  pay  department 
within  the  military  organization  where  the  same  accrues,  who  shall 
immediately  forward  the  same  to  the  paymaster-general. 
jiirisdic-      §  1132,  The  chief  of   each  staff  department  shall,  under  the 
of  staff.        direction  of  the  commander-in-chief,  have  command  over  all  subor- 
dinate officers  in  his  department,  and  shall,  from  time  to  time,  issue 
Blanks  and  orders  and  instructions  for  their  government  and  practice,  together 
provided,      with  sucli  printed  blanks  and  forms  as  may  be  necessary  to  carry 
all  orders  into  execution. 
Chiefs  of       §  1133.  The  Secretary  of  State  shall  be  .the  chief  of  the  staff 
organization.       The    quartermaster-general,    commissary-general, 
and  paymaster-general,  shall  each  rank  as  lieutenant-colonels,  and 
shall  also  be  appointed  by  the  Governoro     The  judge-advocate- 


PT.  1.— TIT.  11.— Public  Defense. 


221 


Chapter  4. — Courts  Martial. 


general  and  surgeon-general  shall  each  rank  as  lieutenant-colonels, 
but  shall  not  be  entitled  to  any  commands  (except  in  their  own 
departments)  as  such ;  they  shall  be  appointed  by  the  Governor. 
§  1131.  The  Governor  shall  appoint  three  aids-de-camp,  by 
warrant,  with  the  rank  of  colonel,  but  their  warrant  shall  expire  ^^^  etc, 
with  the  G-overnor's  term  of  office. 


Aids  to 
the  Govern- 


CHAPTER    IV. 


COURTS  MARTIAL. 


Sectiojt. 

1135.  Courts  martial — fines  and  penalties. 

1136.  Constitution  and  rules  of. 

1137.  HoTV  convened. 

1138.  Failing  to  attend  court  or  parade. 

1139.  Refusing  to  attend  court. 

1140.  Officers  detailed,  etc. 


Section. 

1141.  Pecuniary  penalties,  how  collected. 

1142.  jSTon-commissioned  officers,  etc. 

1143.  Cadets  of  the  Georgia  M.  Institute. 

1144.  Fi.fas.  for  fines — proceedings. 

1145.  Duty  of  collecting  officers. 

1146.  Disposition  of  fines,  etc.,  collected. 


§  1135.  Military  forfeitures,  fines,  and  penalties,  shall  be  ad-  courts  mar- 

.  .    ,     .  T  .   1         .,.  tial    to    ad- 

judged by  courts  martial,  m  accordance  with  military  law  and  the  J^f^ge  fines, 

usage  of  the  army  of  the  United  States.  Notices  to  officers 
charged  with  offenses,  to  appear  at  a  general  court  martial,  shall 
be  personally  served  at  least  twenty  days  before  the  time  pre- 
scribed for  holding  court,  and  may  be  contained  in  the  order  apr 
pointing  the  court. 

§  1136.  The  constitution  of  all  courts  martial  shall  be  in  accord-  Constitution 
ance  with  the  regulations  of  the  army  of  the  United  States,  ex-  courts  mar- 
cept  where  differently  prescribed  in  this  Code,  and  their  mode  of 
proceeding  regulated,  as  far  as  practicable,  by  the  same  rules,  but 
no  court  martial  shall  impose  sentence  of  death  on  any  offender  in 
time  of  peace,  or  imprison  an  offender  (except  for  contempt)  in 
time  of  peace. 

§  1137.  General  courts  martial  shall  be  convened  on  the  order       General 
of  the  commiander-in-chief ;  they  shall  have  cognizance  of  all  mill-  conveueci. 
tary  offenses,  and  shall  not  sit  with  less  than  five  nor  more  than 
thirteen  members,  except  where  supernumeraries  are  summioned, 
but  the  acting  members  of  the  court  shall  never  exceed  thirteen. 
Regimental  courts  martial  may  be  ordered  by  a  commander  of  a  Eegimentai 
regiment  or  battalion,  to  consist  of  three  or  more  commissioned  SdereJ  and 
officers  of  the  regiment  or  battalion,  at  least,  for  trial  of  offenses  "^^^ 
committed  within  the  battalion  or  regiment,  and  company  courts 


222  PT.  1.— TIT.  ll.—PijBLic  Defense. 

Chapter  4. — Courts  Martial. 

martial  may  assemble  by  the  order  of  any  captain  of  a  company 

for  the  trial  and  assessment  of  all  fines  for  delinquencies  at  any 

parade  or  muster,  to  consist  of  the  commissioned  officers  of  the 

company. 

§  1138.  Besides  the  penalties  usually  adjudged  against  military 

Officers  be-  offonscs,  officers  of  the  militia  shall  be  subiect  to  fine  for  non- 
sides  milita-  ^ 

^■y  jjj.i'^^°g^J;  attendance  at  parade,  drill,  or  muster,  and  for  other  non-perform- 
ject tonne.    ^xiQQ  of  duty,  but  no  fine  for  absence  at  company  parade,  drill,  or 
muster,  shall  exceed  ten  dollars,  exclusive  of  the  cost  of  collecting 
the  same,  except  as  herein  provided. 

§  1139.  If  any  officer  charged  with  a  military  offense  shall  refuse 
officersre-|Q  attend  a  court  martial  convened  for  the  trial  thereof,  the  case 

fusing  to  at-  ' 

martial ^^^^""^  shall  proccod  as  if  he  were  present.  Company  courts  martial  may 
proceed  and  assess  fines  without  the  presence  of  the  delinquents, 
provided  they  w^ere  duly  warned  to  perform  the  duty  concerning 
which  they  are  delinquent. 

§  1140.   Officers  detailed  on  a  general  court  martial  shall  be 

Pay  and  paid  the  sum  of  four  dollars  per  day  during  the  time  of  their  ac- 

officers    on  tual  session,  and  four  dollars  for  every  twenty  miles  in  goina;  and 

seneral,  reg-  J  ./  o         o 

fmeutai  and  returning  therefrom,  to  be  paid  by  the  Governor  by  warrant,  on 

c  0  m  p  any  o  ^    ^  i  ./  ^  ^    ^  ^ 

courts.  the  necessary  production  of  the  certificate  of  the  president  of  the 
court.  For  regimental  and  comjjany  courts  martial  the  pay  of 
each  member  shall  be  one  dollar  per  day,  to  be  paid  out  of  the 
fines  collected  by  the  commander  of  the  regiment,  battalion,  or 
company. 
Court  may      §  1141.   Courts  martial  shall  have  power  to  punish  contempts  in 

t)unish      for  .-i  '    '^  l 

contempt,     the  samo  manner  as  civil  courts. 

§  1142.  Pecuniary  penalties  assessed  by  any  court  martial  shall 
Fines  col- i^e  collected  by  execution  issued  under  the  hand  of  the  president 

iected        by  "^  ■■■ 

execution,  ^f  ^fie  court,  and  directed  to  the  Sherifi"  of  the  County  in  which 
the  delinquent  resides,  and  shall  have  the  same  force  and  effect  as 
civil  process  of  the  same  character,  according  to  the  laws  of  this 
State. 

§  1143.  Non-commissioned  officers  shall  be  degraded  to  ranks 
Degraded.  Only  by  Sentence  of  a  company  court  martial. 

§  1144.  Cadets  of  the  Q-eorgia  Military  Institute  must  be  tried 
uS^''^^'^  according  to  the  rules  and  regulations  of  said  Institute. 

§  1145.  All  executions  for  the  collection  of  any  penalty  ad- 
EsecutioQto  iudged  by  a  court  martial  shall  be  returned  to  the  officer  issuinsi: 

be    returned  o       id  ^  ?3 

in  60  days.    i\^q  game,  with  the  money  collected  thereon,  or  a  return  of  no 


PT.  1.— TIT.  11.— Public  Defense.  223 

Chapter  5. — Preservation  of  Order  at  Parades. 


property  to  be  found  on  which  to  levy  the  same,  within  sixty  days 
from  the  date  of  its  issue ;  and  the  Sheriff,  on  failure  to  make  a 
return,  shall  be  liable  to  be  ruled  for  the  amount  due  on  such  exe- 
cution, in  the  next  Superior  Court  after  such  failure,  in  the  same 
manner  as  in  civil  cases. 

S  1146.  All  officers  of  the  militia  receivinsr  fines  or  pecuniary    offlcersre- 

•J  a  r  */    ceivmg   mo- 

penalties,  collected  by  execution,  shall  make  a  return  thereof  to  J^J'^  collect- 
the  paymaster-general,  or  to  such  officer  of  his  department  as  he 
may  designate,  at  least  once  a  year,  or  oftener  if  necessary.     The 
paymaster-general  shall  lay  an  abstract  of  the  same  before  the 
commander-in-chief  annually. 


CHAPTER    V. 

PRESERVATION    OF    ORDER   AT    PARADES. 


Section. 

1147.  Disturbing  officer  or  soldier  on  duty 

1148.  By  persons  connected  with  military. 

1149.  Officer  has  power  to  arrest. 


Section. 

1150.  Sutlers— duties  and  privileges. 

1151.  Intoxication  on  parade  ground. 


§  1147.  No  bystander,  or  person  not  connected  with  the  military,    interfering 

,,,  ,  .  .,  ^Y,  ,-,.  -,.,  with    officer 

snail  molest,  interrupt  or  msult  any  omcer  or  soldier,  while  on  or  soldier  on 

duty. 

duty,  at  any  muster  or  parade,  and  the  commanding  officer,  where 
such  offense  may  haj^pen,  shall  have  power  to  confine  such  person 
under  guard  until  the  close  of  such  parade  or  muster,  who  is  lia- 
ble to  indictment  and  conviction  for  a  misdemeanor,  to  be  punished 
in  the  discretion  of  the  court. 

§  1148.  Any  person  connected  with  the  military  service  of  the    insubordi- 

o  1         1     n  1  •!  r«     T  fv  •  1   •        1  nation  in  the 

btate  who  shall  be  guilty  oi  the  onenses  mentioned  in  the  prece-  military. 
ding  Section,  or  shall  otherwise  violate  military  order  or  decorum, 
shall  be  arrested  and  punished  at  the  discretion  of  a  court  martial. 

§1149.  The  commander  of  companies,  battalions  or  regiments,    Command- 
brigades  or  divisions,  when   on  duty  with  their  respective  com-  fi^e  persona 

^  '  .  .  disturbing  a 

mands  or  parts  thereof,  shall  have  power,  in  their  discretion,  to  parade. 
arrest  and  confine,  not  exceeding  the  period  for  which  they  were  on 
duty,  any  person  who  shall  upon  or  near  any  parade  ground,  field, 
public  highway,  or  any  other  place  occupied  by  any  portion  of  the 
military  force  of  Georgia,  under  arms,  by  means  of  ludicrous  dis- 
guise, dress,  arms,  and  instruments,  noise,  or  other  means,  disturb 
the  peaceable  and  orderly  proceedings  of  those  under  arms,  and 


22 1 


PT.  1.— TIT.  11.— Public  Defense. 


Chapter  6. — Provisions  of  Local  Application. 


Offenders  such  disturbancG  may  be  viewed  as  a  misdemeanor,  and  the  oifen- 

may  be  in-  i        •      t  i  i  •      •  •    i      t    i        r>  i    • 

dieted  for  a  der  may  be  indicted,  and  on  conviction  punished  by  hne  and  im- 

miademean-        ,  '^  it  •  c     ^  r»i'ii 

or.  prisonment,  at  the  discretion  of  the  civil  court  before  which  he  is 

convicted. 

§  1150.  When  any  sutlers  shall  attend  any  military  muster  or 
Sutlers un-  parade  they  shall  be  under  the  direction  of  the  commanding  officer 

der  the  con-       .  .  . 

troi  of  coni-  -yyith  regard  to  the  time  and  place  of  sellinsi;  refreshments,  and  such 

Jiiandmg  of-  "="  i  o  7 

ficer.  commanding  officer  shall  have  power  to  grant  exclusive  privileges 

to  such  persons  as  may  engage  to  furnish  suitable,  spacious,  and 
convenient  places  of  parade,  and  the  sutler  aforesaid,  when  per- 
mitted, shall  not  be  liable  for  retailing  spirituous  liquors  at  any  of 
the  musters  aforesaid  under  the  law  for  retailing  spirituous  liquors 
without  license. 

§  1151.  Visitors  found  on  the  parade  ground  during  the  times 
Treatment  thcrcof  iutoxicated,  mav  bv  the  commander  be  marched  bevond 

of   mtoxica-  t  .)       ^  *i 

ted  visitors,  ^hc  lincs,  and  on  returning  in  the  same  state  may  be  put  under 
guard. 


CHAPTER    VI. 


PROVISIONS    OF   LOCAL    APPLICATION. 


Section. 
•  1152.  Cities — organization  of  companies. 

1153.  Each  beat  elect  a  captain,  etc. 

1154.  Removal  of  commissioned  officer. 

1155.  Captain  of  beat,  etc. 

1156.  Beat  company — bow  designated. 

1157.  Puegiments,  battalions,  etc. 

1158.  Volunteer  companies  of  Augusta. 

1159.  Commanding  officer — bow  elected. 


Section. 

1160.  Members  exempt  from  jury  duty. 

1161.  Same  privileges  to  other  cities. 

1162.  Volunteer  corps  of  Savannah. 

1163.  How  organized. 

1164.  Rights  of  the  regiment  secured. 

1165.  By  whom  commanded. 

1156.  Honorary  members^how  admitted. 


§  1152.  Cities  where  the  population  may  authorize  it  may  be 
Cities  di-  divided  into  beat  companies  by  law ;  each  district  in  which  two 

vided      into  ^  -.in 

beats.         Justices  of  the  Peace  are  elected  shall  constitute  two  beat  com- 

Eigiitbeat  pauics.     If  there  be  eight  beat  companies  or  more  they  shall  con- 

foJSfTr^eg^  stitute  a  regiment;  four  or  more  shall  constitute  a  battalion  to  be 

battalion.      Commanded  by  a  lieutenant-colonel  and  major;  two  or  more  shall 

constitute  a  battalion  to  be  commanded  by  a  major. 

§  1153.  The  citizens  of  the  several  cities  or  towns  arranged  into 

Election  of  beat  companics,  resident  within  their  respective  beats,  shall  elect 

beat  compa- one  Captain  and  two  subaltern  officers  for  each  beat  company; 

ions' andreg-  whcrc  a  battalion  exists  the  citizens  resident  within  the  battalion 

iments. 


PT.  1.— TIT.  11.— Public  Defense.  225 

Chapter  6. — Provisions  of  Local  Application. 

limits  shall  elect  the  lieutenant-colonel  and  major,  or  major,  as  the 
case  may  be,  and  where  a  regiment  is  formed  the  citizens  within 
its  limits  shall  elect  a  colonel,  lieutenant-colonel,  and  major. 

§1154.  In  cities  or  towns  the  removal  of  a  commissioned  officer  Wherecom- 

missioned 

shall  not  vacate  his  commission,  unless  it  be  beyond  the  corporate  ^^cer   may 
limits  of  the  city  or  town. 

^1155.  The  captains  of  all  beat  companies  in  the  State  shall    Captamsto 

ir»T'  •        appomt  non- 

appoint  four   sergeants   and  four   corporals  for  their  respective  commission- 
companies  ;  they  shall  hold  company  courts  martial  in  like  manner 
with  captains  of  company  districts. 

^  1156.  The  beat  companies  in  each  regiment  or  battalion  shall    Beat  com- 

■"■  °  .paniesof 

be  designated  by  the  first  ten  letters  of  the  alphabet,  commencins!;  regiments — 

o  vi  i-  '  o  howdesigna- 

with  "A"  and  continuing  regularly  to  *^K,"  omitting  ^'J."  ^'^'^^ 

§  1157.  Battalions  under  separate  command  by  the  name  of  the     Battalions 

city  or  town  in  which  they  are  located,  and  regiments  by  a  num-  ments.  ^^ 

ber  fixed  by  the  commander-in-chief. 

§  1158.  The  volunteer  companies  of   the   city  of  Augusta  are     Volunteer 

ora;anized  into  a  separate  battalion  called  the  ^'  Independent  Vol-  city  of  au- 

j)i  ir»  1  -I  •     gi'statoform 

unteer  Battalion  of  Augusta,     and  separated  from  the  tenth  regi-  independent 

^       .  .  .    ^      ^  .  °      battalion. 

ment.  Any  other  companies  which  may  be  organized  hereafter 
in  the  city  of  Augusta  may,  if  they  desire  it,  be  attached  to  the 
battalion,  and  when  the  number  of  companies  amount  to  eight, 
they  shall  constitute  a  regiment  to  be  called  the  '^  Independent 
Volunteer  Regiment  of  Augusta." 

§  1159.  The  battalion  shall  be   commanded    by  a  lieutenant-  commander 

^  *^  of   the    bat- 

colonel,  elected  by  the  members  of  the  companies  composing  the  taiion— how 

battalion,  who  shall  have  a  full  and  complete  regimental  staff. 
No  person  shall  be  eligible  as  lieutenant-colonel  or  to  an  appoint- 
ment on  the  staff  who  has  not  been  connected  as  a  regular  mem- 
ber with  one  of  the  companies  of  the  battalion  for  at  least  six 
months  previous  to  the  election  or  appointment. 

§  1160.  The  active  members  of  the  battalion  are  exempted  from      Battalion 
jury  duty  in  the  Courts  of  the  city  of  Augusta  and  in  the  County  jury  and  mi- 
of  Richmond,  and  from  the  performance  of  militia  duty,  except 
in  case   of  war,  riot,   insurrection,  or  invasion.      The  battalion 
shall  be  subject  to  the  orders  of  the  commanding  oflicer  when- 
ever he  may  deem  it  expedient. 

§  1161.  The  same  privilege  is  granted  to  the  volunteer  com-  city  voiun- 
panies  in  the  city  of  Macon,  and  any  other   city  in  the  State  panies  may 

T  .    ,      ,  ■■  .    .  ,  ft  form  a  bat- 

which  has  the  requisite  number  oi  volunteer  companies,  and  if  taiion   with 
15 


226  PT.  1.— TIT.  11.— Public  Defense. 


Chapter  6. — Provisions  of  Local  Application. 


like  priviie-  deficient,  thov  are  allowed  to  make  up  such  number  from  the 
County  in  which  such  city  is  situated,  and  if  not  in  the  County, 
elsewhere. 

§  1162.    The   volunteer    corps   of   the    city   of    Savannah    are 
Volunteer  formed  iuto  a  regiment  entitled  the  "  First  Volunteer  Regiment 

corps  of  Sa-  '-'         ^  ^  o 

^^^^^m^nt^  of  the  State  of  Georgia,"  embracing  as  many  corps  as  may  choose 
to  conform  to  the  regimental  organization ;  but  when  the  regi- 
ment numbers  sixteen  companies,  they  may  organize  themselves 
into  a  brigade  and  elect  the  necessary  officers  to  command  the 
same  in  such  manner  as  the  members  of  said  companies  may  see 
fit  to  adopt. 

§  1163.  The  first  volunteer  regiment  shall  be  commanded  by  a 

Offlcersand  coloncl,  licutenant-colonel,  and  maior,  and  shall  be  entitled  to  a 

staff.  '  ?  J      ' 

regimental  staff.  Orders  for  the  election  of  a  colonel,  as  often 
as  a  vacancy  occurs,  shall  be  issued  by  the  commander-in-chief, 
and  the  members  of  the  several  corps  constituting  the  regiment 
alone  shall  be  entitled  to  vote ;  all  other  elections  for  ofiicers  be- 
longing to  said  regiment  shall  be  ordered  by  the  colonel  or  com- 
manding officer. 

§  1164.  The  rights  and  privileges   accruing  to  said  regiment 
Eights  of  the  shall  not  fail  by  the  consolidation  of  two  or   more  companies,  or 

regiment  se-    ,.,,  iti  r»  -i 

cured.  the  Withdrawal  or  dissolution  of  one  or  more  companies,  but  the 
same  shall  vest  in  and  be  enjoyed  by  the  corps  composing  the 
"First  Volunteer  Regiment." 

§1165.  The  "First  Volunteer  Regiment"  shall  be  subject  ex- 

Commanded  clusivelv  to  the  commaud  of  its  own  officers  and  the  commander- 

by    its    own  ip  ■,  tit  •  •    i  n      ^   •        n 

officers  and  in-cliief,  excopt  whou  on  detached  service  either  of  this   State  or 

commander-  -*■ 

in-chief.       of  the  United  States,  when  it  shall  be  governed  by  the  military 

law  and  the  usage  and  custom  of  the  army. 

§  1166.  All  the  volunteer  corps  shall  each  have  the  privilege  of 

Honorary  enrollins;,  as  honorary  members  of  their  respective  corps,  not  ex- 
members  of  o'  *^  r  i    7 

cor^s^*^^^  ceeding  twenty  persons,  who  shall  be  exempt  from  ordinary  mili- 
tia duty  only  so  long  as  they  continue  their  membership  in  said 
companies,  on  paying  into  their  respective  treasuries  the  sum 
of  twenty  dollars  each  annually. 


PT.  L— TIT.  11.— Public  Defense. 


227 


Chapter  7. — Miscellaneous  Provisions. 


CHAPTER    VII. 

MISCELLANEOUS     PRO  VISIONS 


Section. 

1167.  Insurrection,  etc. 


-duty  of  Gov'nor. 


1168.  Discipline  of  military. 

1169.  Entitled  to  pay  and  rations — when. 

1170.  Duty  of  resident  commander. 

1171.  Requisition  of  militia  by  U.  States. 

1172.  Commanding  officer,  etc. 

1173.  Wlien  called  out  of  the  State,  etc. 

1174.  Pass  over'ferries,  etc.,  free — when. 

1175.  Under  arms  to  preserve  order,  etc. 


Section. 

1176.  Arms,  etc.,  exempt  from  sale. 

1177.  Number  of  votes  required  to  elect. 

1178.  Elections  and  returns  thereof. 

1179.  Commissions  and  effect  thereof. 

1180.  The  ratification  by  the  State. 

1181.  Officers  must  report  themselves. 

1182.  Substitutes  may  be  received. 

1183.  General  provisions  adopting,  etc. 

1184.  Incorporated  companies  not  affected 


In  case 
of   insurrec- 


§  1 167.   Upon  any  insurrection,  rebellion,  invasion,  or  probable 
prospect  thereof,  it  shall  be  the  duty  of  the  Governor  to  call  from  tipn,    inva- 
that  portion  of  the  State  then  threatened,  or  other  portion  if  ne-  ^^j^jj^^Jit^f^^ 
cessary,  such  part  of  the  military  force  of  the   State  as   he   may  ^^'^^®- 
think  proper,  and  detail  such  number  of  staff  officers  of  the  neces- 
sary grades  from  the  several  staff  departments  for  their  accommo- 
dation, equipment,  and  support,  as  may  be  necessary. 

^  1168.    Whenever  any   portion   of  the   military  force   of  this     Discipline 
State  shall  be  called  into  actual  service,  either  of  the  State  or  of  into  actual 

service. 

the  United   States,  they  shall  be  governed  by  the  regulations  of 

the  army  of  the  United  States  and  the  rules  and  articles  of  war, 

so  far  as   the  same   are  applicable ;  but  to  the  cashiering  of  any 

officer,  or  the  infliction  of  capital  punishment  within  the  limits  of 

this   State,  the   approbation   of  the   commander-in-chief  shall  be 
necessary. 

§  1169.  When  any  portion  of  the  military  force  of  the  State  is  or- 
dered by  the  commander-in-chief  for  actual  service,  or  for  drill  and 
instruction,  they  shall  be  allowed  such  pay  and  rations  and  other 
compensation  as  are  allowed  to  the  army  of  the  United  States. 

§1170.   If  a  sudden  invasion  should  be  made,  or  insurrection  Dutyofres- 
happen,  in  any  County  or  city  of  this  State,  the  commanding  offi-  mandeis   in 
cer  in  said  County  or  city  is  empowered   to  take  the  necessary  den  invasion 
steps  to  repel  the  same,  and,  upon  the  requisition  of  the  civil  au- 
thority, to  proceed  to  quell  the  insurrection,  reporting  the  condi- 
tion of  things  at  once  to  the  commander-in-chief. 

§  1171.  Whenever  any  detachment  of  the   militia  may  be  re-  Detachment 

ifi*n  11  1'  1  n      1       of  militia 

quired  oi  this   fetate,  by  trie  proper  authority,  on  the  part  of  the  caiiedforby 
United  States,  the  commander-in-chief  shall  cause  the  same  to  be 
apportioned  by  such  staff  officers  as  he  may  think  proper  to  detail 
for  that  purpose,  and  a  list  of  the  persons  so  detached  shall  be 


Pay  and 

rations. 


228  PT.  1.— TIT.  11.— Public  Defense. 

Chapter  7. — Miscellaneous  Provisions. 

made  out  and  forwarded  to  the  Executive  Department  forthwith, 
and  the  Governor  shall  assign  the  necessary  officers  to  said  detach- 
ment from  the  officers  of  the  militia  then  in  commission. 

§  1172.  When  a  division,  or  brigade,  or  companies  sufficient  to- 

Brigade  constituto  either,  shall  be  called  for  on  the  part  of  the  United 

of  militia  Statcs  and  detached  from  the  militia  of  this  State,  the  Governor 

called  into      ,     ,,  .  •      i  i         rY»  i     i  -i 

service  of  shall  appoint  a  suitable  omcer  to  command  the  same,  and  commis- 
sion him  accordingly,  unless  otherwise  provided  for  by  the  Consti- 
tution and  laws  of  the  United  States. 

§  1173.  Whenever  a  sufficient  number  of  the  militia  to  consti- 
Eegimentor  tutc  a  regiment  or  battalion  shall  be  detailed  for  service  to  operate 
militia  call- bevond  the  limits  of  the  State,  such  regiment  shall  be  furnished 

ed  out  of  the  ^  .,  ^  -i  • 

State.         \)j  the  Governor  with  two  nags — one  the  regimental  color,  bear- 
ing the  arms  of  the  State,  the  other  the  national  color,  bearing 
the  arms  of  the  United  States — both  inscribed  with  the  name  of 
the  regiment,  and  if  a  battalion,  the  regimental  color  only,  con- 
forming to  flags  of  like  description  in  the   army  of  the  United 
States,  and  at  the  close  of  the  service  it  shall  be  the  duty  of 
the  officer  commanding  such  regiment  or  battalion  to  return  the 
same  to  the  Governor,  or  report  the  reasons  for  his  default  there- 
in, which  shall  be  communicated  to  the  next  General  Assembly. 
§  1174.   All  officers,  whilst  on  duty,  and   any  militia  called  to 
Officers  and  musters,  paradcs,  or  drills,  or  to  courts  martial,  or  courts  of  in- 
pass  free  ov- quiry,  having;  to  pass  over  toll  bridges,  ferries,  or  through  turn- 
er toil  bridg- ^.-    *^'  ?    IT  11    ^  .        ^  .          n  ^       -,- 

63— when,     pike  gates,  shall  pass  toll  tree  going  to  or  returning  irom  the  dis- 
charge of  such  duty. 

§  1175.  For  the  purpose  of  preserving  order  on  any  day  of  parade, 
da?s  th^^ml-  drill,  or  muster,  the  militia  shall  be  considered  as  under  arms  from 
derTims  the  risiug  of  the  sun  to  its  setting  in  the  same  day,  and  shall  be 

from  sunrise  •     t    n  j     i       •  1 1      j    .  • 

to  sunset,     exempted  irom  arrest  during  that  time. 

§  1176.  All  arms,  ammunition,  and  equipments,  the  trooper's 

Arms,  ac-  horsc  and  furniture,  the  uniform  and  accouterments  of  the  soldier, 

etc.,  exempt  and  cvcry  horse  necessary  to  the  discharge  of  military  duty  in 

from  sale.  ,      "^  "^  °  J  J 

every  department  of  the  State's  service,  with  his  apparel,  shall  be 
exempt  from  seizure  and  sale  under  civil  process ;  nor  shall  any 
service  of  civil  process  be  effectual  upon  any  militia  man  while 
going  to,  continuing  at,  or  returning  from  parade,  drill,  or  muster, 
or  while  in  actual  service  of  the  State  or  of  the  United  States. 
§  1177.  At  all  elections  for  officers  of  the  militia,  the  person 
votes  to  elect  having  the  highest  number  of  votes  shall  be  declared  elected. 


PT.  1.— TIT.  ll.—PuBLic  Defense.  229 

Chapter  7. — Miscellaneous  Provisions. 
§  1178.   All  elections  for  militia  officers  shall  be  held  at  the  Elections— 

where  held. 

usual  place  of  holding  elections,  and  the  superintendents  shall  re- 
turn the  result  thereof  to  the  commander-in-chief,  who  shall  cause 
commissions  to  issue  accordingly ;  but  upon  due  proof  of  fraud  or 
illegality  in  holding  such  election,  the  commander-in-chief  may 
supersede  the  same  and  order  a  new  one  in  his  discretion. 

§  1179.  All  commissions  shall  bear  the  impression  of  the  Great      commis- 

n  n    ^       c^  •  '  11  slons  sealed 

Seal  of  the  State  in  print,  and  shall  run  during  good  behavior  ;  but  with  Great 

they  may  be  vacated  by  removal  from  the  command  in  which  the 

officer  belongs  by  death,  resignation,  sentence  of  a  court  martial, 

and  acceptance  of  another  inconsistent  commission.     Staflf  officers,  staff  officers 

except  the  chiefs  of  the  staff  departments,  may  be  removed  by  the  moved. 

officer  in  whose  staff  they  serve,  and  their  commissions  shall  expire 

with  his  commission. 

§  1180.  The  resolution  of  the   Senate  concurring  in  the  nomi-  Nomiriation 
nation  of  any  military  officer  shall  be  certified  by  the  President  officer  to  be 

•^  "^  '^  ,        certified. 

and  Clerk  of  the  Senate,  and  be  transmitted  to  the  Executive 
Department,  and  the  Governor  shall  cause  commissions  to  issue  in 
accordance  therewith. 

§  1181.  All  officers,  on  reception  of  their  commission  and  their    officers  to 

report  them- 

subscription,  and   the  attestation  of  the   oath  thereto   annexed,  selves. 
shall  immediately  report  themselves  to  the  proper  officer  in  com- 
mand. 

§1182.  Any  person  detached  to  serve  with  any  portion  of  the  May  provide 

.  .   ,  "^  a   substitute 

militia  called  into  the  service  of  the  United  States  may  offer  a  ?^ien  caiied 

^  into    service 

substitute  at  or  before  the  time  of  rendezvous,  and  such  substi-  ^^  u.  s. 
tute,  if  he  shall  be  an  able-bodied  man  of  the  age  of  twenty-one 
years  and  upwards,  and  shall  consent  in  writing  to  subject  himself 
to  all  the  duties,  fines,  forfeitures,  and  punishments  to  which  his 
principal  would  be  subject  were  he  personally  to  serve,  he  shall 
be  accepted  by  the  commanding  officer  of  the  detachment,  and 
ordered  to  be  enrolled  in  place  of  his  principal. 

§1183.  All  matters  of  detail  in  the  various  branches  of  the  General  pro- 
military  service  of  the   State,  not  specially  provided  for  in  this  ting  military 
Code,  which  may  occur  in.  the  execution  and  distribution  of  orders,   . 
reports  and  returns,  proceedings  of  courts  martial  and  courts  of 
inquiry,  discipline  and  etiquette,  rank  and  precedence  of  officers, 
military  badges  and  distinctions,  shall  be   determined,  as  far  as 
practicable,  by  military  law   and   usage  and    the  custom  of  the 
army  of  the  United  States. 


230 


PT.  1.— TIT.  11.— Public  Defense. 


Chapter  8. — The  Public  Arms  and  Arsenals. 


§  1184.  The  provisions  of  this  Code  shall  not  repeal  or  super- 

Oodenotto  sodo  any  rights,  privileges,  or  liabilities,  attaching  to  any  military 

leges    of  organization  by  any  act  of  the   Leaiislature  creating:  such  organ- 

mcorporateds       ^  t/  ./  ^        o  o  o 

companies,  ization  a  corporato  body ;  but  in  all  cases  where  volunteer  com- 
panies have  been  incorporated,  they  shall  be  called  on  by  gen- 
eral order,  published  by  the  commander-in-chief,  to  report  by  the 
first  day  of  May  next  ensuing  the  date  when  this  Code  shall  go 
into  effect ;  and  on  failure  to  report,  they  shall  be  deemed  to  have 
surrendered  their  franchise  as  corporations,  and  shall  be  dropped 
from  the  roll  and  disbanded ;  nor  shall  they  supersede  any  militia 
laws  now  of  force  that  may  not  be  inconsistent  with  them. 


CHAPTER    VIII. 

THE     PUBLIC     ARMS     AND     ARSENALS 


Section. 

1185.  The  public  arms — wliere  kept. 

1186.  Persons  receiving  must  give  bond. 

1187.  Delivery  of  arms. 

1188.  Bond  not  required — when. 

1189.  Brigade  inspector — his  duty. 

1190.  Commissary-general — his  duty. 


Section. 

1191.  City  volunteers  may  use  arsenal. 

1192.  Deposit  of  gunpowder. 

1193.  Military  storekeeper,  etc. 

1194.  Must  give  bond  and  surety., 

1195.  His  duties. 

1196.  Penalty  for  violation  of  duty.. 


§  1185.  The  public  arms  of  the  State  are  to  be  deposited  in  the 
Public  arms,  arscuals  at   Savannah  and  Milledgeville,  as  the  public  exigency 

where  kept.  ,  *  '  ,        .         ,  .    „ 

may  require,  and  at  such  other  place  as  the  commander-m-chief 
may  order,  or  the  G-eneral  Assembly  prescribe. 

§  1186.  Before  arms  and  accouterments  are   delivered  to  any 
Bond  and  voluntecr  corps,  bonds   and  sureties  must  be   executed  for  their 
^yII.  ^   ^  careful  preservation  and  faithful  return  according  to  law,  paya- 
ble to  the  commander-in-chief,  in  such  sum  and  under  such  other 
regulations  as  he  may  prescribe. 

§  1187.  When  such  is  done,  the  Secretary  of  State  shall  draw 
Delivery  of  ]iis  order  on  the  keeper,  who  shall,  without  delay,  deliver  them. 

arms.  ^       '  ^  "^ 

§  1188.  In  case  the  public  necessity  requires  it,  the  commander- 
Bonds  in-chief  may  permit  the  delivery  or  distribution  of  arms  without 

not  required  . 

—when.       taking  such  bond,  and  may  impose  suph  terms  as  he  may  see 

proper. 

§  1189.  The  brigade  inspectors  must  examine  into  and  report 

Brigade  the  couditiou  of  the  public  arms  and   accouterments  in  their  re- 
inspector  to  .  .  •\/r       1 

report.        spectivc  brigades  to  the   Secretary  of  State  by  the  first  Monday 
in  October  annually. 


PT.  1.— TIT.  11.— Public  Defense.  231 


Chapter  8. — The  Public  Arms  and  Arsenals. 


§  1190.  When  the  Secretary  of  State  is  satisfied  that  any  por-    Neglect  of 
tion  of  such  ai^e  being  injured  for  want  of  proper  care,  he  may 
prescribe  such  terms  for  their  preservation  as  he  may  see  fit,  and 
may,  in  his  discretion,  have  them  returned  to  the  arsenals. 

^  1191.  The  volunteer  corps  of  any  city  of  this   State  where      city  voi- 

'^  X  ./  ./  unteers  may 

there  is  an  arsenal  are  permitted  to  deposit  their  arms  there,  pro-  ^^^  arsenals 
vided  such  does  not  interfere  with  the  proper  keeping  of  the  arms 
therein  and  that  all  expense  of  so  doing  is  defrayed  by  such  corps. 

§1192.   Grunpowder  shall  not  be  deposited  in  any  arsenal  con-   Deposits  of 

•'■  -^         _  ...  gunpowder. 

trary  to  any  ordinance  or  by-law  of  the  city  where  it  is  situated. 

S 1193.  The  Governor  has  power  to  appoint  military  storekeep-       Military 

storekeepers 

ers  for  such  arsenals  or  other  places  where  the  public  arms   may 
be  kept,  who  hold  their  offices  for  one  year. 

§1194.  Before  entering;  on  the  discharge  of  their  duties,  all ,  s^^"  =^v® 

'^  o  o  'bond    and 

military  storekeepers  shall  give  bond  and  surety  in  such  sum  as  ^^^^^y- 
the  Governor  may  order,  and  shall  also  swear  faithfully  to  dis- 
charge the  duties  of  their  offices  to  the  best  of  their  skill  and 
knowledge. 

§  1195.  It  is  their  duty — 

1.  To  take  into  possession  and  safely  and  nicely  keep  all  the    The  duties 

^  ,  •^  "^  ■*■  of     military 

State   arms,   accouterments,  munitions,   or  other   State  property  storekeepers 
committed  to  their  care ;  to  deposit  them  in  the  State  Arsenal  if 
in  good  repair,  or  in  such  other  building  as  they  may  be  directed, 
and  to  keep  such  arsenal  or  building  in  proper  order. 

2.  To  make  annually,  or  oftener  if  required  by  the  Governor 
or  Secretary  of  State,  a  report  to  the  said  latter  named  officer 
of  the  number,  kind,  and  order  of  the  arms  and  accouterments ; 
of  the  condition  of  the  munitions  and  other  property  in  their 
keeping,  including  the  condition  of  their  buildings. 

3.  To  deliver  to  any  officer  or  person  having  the  order  of  the 
Secretary  of  State  the  arms  or  other  property  required,  if  in 
their  possession. 

4.  To  obey  all  lawful  orders,  and  to  perform  such  other  duty  as 
the  law  may  require. 

§1196.  If  such  keeper   shall  violate  any  portion   of  his  duty,    Penalty  for 

,.,.,^p.  ni  violation    of 

tor  each  violation  he  lorieits  twenty-five  dollars  of  his  salary,  and  duty. 
for  unfaithful  conduct  or  inefficiency  may  be   removed   by  the 
Governor. 


232 


PT.  1.— TIT.  12— Education. 


Chapter  1. — The  University  of  Georgia, 


TITLE    XII. 

EDUCATION 


CHAPTER   I. 

THE     UNIVERSITY     OF     GEORGIA. 


Section. 


I  Section. 


1197.  The  University  of  Georgia. 

1198.  Name  and  style— may  sue,  etc. 

1199.  Number  of  Trustees. 

1200.  Board  reduced  below  a  quorum. 

1201.  Powers  specified. 

1202.  Meeting — by  whom  called. 

1203.  Trustee  failing  to  attend,  etc. 

1204.  Disposition  of  stock  subscribed  for. 

1205.  Trustees  must  report  annually. 

1206.  Visitors — number  and  duty,  etc. 


1207.  Report  laid  before  the  Legislature. 

1208.  Officers — religion  of. 

1209.  Not  required  to  take  certain  oaths. 

1210.  Chancellor  may  attend  Legislature. 

1211.  University  may  confer  degrees. 

1212.  Graduates  of  Lumpkin  Law  School. 

1213.  Preparatory  school  connected. 

1214.  Campus  grounds  reserved. 

1215.  Permanent  income,  etc. 

1216.  Former  acts  not  repealed  by  Code. 


§  1197.  The  government  of  the  University  of  Georgia,  at  Athens, 
oF^GlwSis  vested  in  a  Board  of  Trustees,  who  are  subject  to  the  General- 

ertmenr"  AsSOmblj. 

§  1198.  For  such  purpose  they  are  a  body  corporate  and  politic, 
Name  and hy  the  name  of  the  ''Trustees  of  the  University  of  Georgia,"  by 
su^^^™be  which  they  shall  have  a  perpetual  succession,  have  and  use  a  com- 
mon seal,  and  be  a  person  in  law,  able  to  plead  and  be  impleaded, 
to  hold  and  acquire  real  and  personal  estate,  with  power  to  lease 
and  otherwise  manage  the  same  for  the  good  of  the  University. 
All  money  or  property  granted  by  the  State,  or  individuals,  for 
the  advancement  of  learning  in  general,  is  vested  in  such  Trus- 
tees. 

§1199.  Such  Trustees  shall  consist  of  citizens  of  this 

Number  of  State,  auv of  whom  shall  make  a  quorum,  with  power  to 

Trustees,  t  J  ^  ....  .. 

transact  all  business  within  their  authority. 

§  1200.  If  the  Board  shall  be  reduced  to  less  than  a  quorum, 
bS^^s  re^  ^^®  Governor  shall  fill  the  vacancies  until  the  quorum  is  complete, 
a^quorum?^^  and  then  the  quorum  shall  fill  the  remaining  vacancies. 
§  1201.  They  have  power— 

1.  To  elect  their  own  officers,  such  as  President,  Vice-President, 
Powers    Secretary,  Treasurer,  or  such  of  them  as  they  may  require,  and 
also  all  other  officers  they  may  deem  necessary  for  their  organi- 
zation. 


PT.  1.— TIT.  12.— Education.  23 


Q 


Chapter  1. — The  University  of  Georgia. 


2.  To  elect  a  presidino;  officer  of  said  University,  who  shall  be     Presiding 

.  *^  officer. 

styled  "the  Chancellor  of  the  University  of  Georgia,"  and  in  case 
of  a  vacancy  in  his  office,  unsupplied,  to  create  such  office  and 
make  such  arrangement  for  the  conduct  of  the  institution  as  to 
them  shall  seem  meet. 

3.  To  elect  or  appoint  professors,  tutors,  stewards,  or  any  other     '^J^y  ^^^^t 

,  ''  professors. 

officer  necessary,  to  discontinue  or  remove  them  as  the  good  of 
the  University  may  require,  and  fix  their  salaries. 

4.  To  prescribe  the  course  of  studies  to  be  pursued  by  the  stu-     course  of 

.  -,  studies. 

dents,  the  terms  and  manner  of  graduating,  and  of  conferring  all 
the  degrees. 

5.  To  establish  all  such  schools  of  learning  or  art  as  may  be      Establish 

,      °  .  schools. 

useful  to  the  State,  and  organize  the  same  in  the  way  most  likely 
to  attain  the  ends  desired. 

6.  To  call  on  all  persons  who  may  have,  or  have  had,  any  funds.        Books, 
property,  papers,  or  books  belonging  to  the  University,  to  deliver 

them  up  and  make  settlements. 

7.  To  adjust  and  determine  the  expenses   of  the  institution.    Expenses. 

8.  To  exercise  any  power  usually  granted  to  such  incorpora-  Powers  usu- 
tions  necessary  to  its  usefulness,  and  not  in  conflict  with  the  Con- 
stitution and  laws. 

§1202.  The  President  of  the  Board  and  two  of  its  members  J^eetings  of 

^  Board — how 

may  appoint  a  meeting  at  any  time,  by  giving  to  the  others  at  '^^^^^^• 
least  ten  days'  notice,  by  letter  or  otherwise.  When  the  Presi- 
dent does  not  act  the  senior  Trustee  present  shall  preside,  and  in 
all  other  respects  discharge  his  duties ;  when  the  Board  is  divided 
the  presiding  officer  shall  give  the  casting  vote,  or  may  vote  to 
make  a  tie.  A  majority  of  the  body  present  shall  govern  if  a 
quorum.  Nothing  done  at  a  special  meeting  shall  be  binding 
after  the  rising  of  the  next  annual  meeting,  unless  then  confirmed. 

§1203.  If  any  member  of  the  Board,  beins;  within  the  State,  ,.,  Trustees 

-  .  failing  to  at- 

shall  fail  to  attend  any  two  successive   annual  meetings  his  seat  *end. 
becomes  thereby  vacant,   unless  he  is  specially  excused  by  the 
Board  for  good  cause  shown. 

§  1204.  Such  Trustees  shall  never  dispose  of  the  stock  by  them  shaiinotdis- 

•^  pose  of  stock 

subscribed  for,  except  with  the  consent  of  the  General  Assembly,  subscribed 
but   the   dividends   therefrom  shall  be  drawn   and  used    as   the 
various  demands  of  the  University  may  require. 

§  1205.  It  is  the  duty  of  such  Trustees  to  make  an  annual  report      Trustees 

•z  i-  must   report 

of  their  business  to  the  Governor,  which  must  embrace  a  state-  annually. 


234  PT.  1.— TIT.  12.— Education. 

Chapter  1. — The  University  of  Georgia. 

merit  of  their  expenditures  and  receipts  on  account  of  the  Uni- 
versity, the  number  and  names  of  the  students,  their  different 
studies,  the  tuition  money,  and  all  information  and  suggestions 
which  the  Board  may  think  conducive  to  the  good  of  the  Uni- 
versity, and  the  cause  of  general  education  in  the  State. 

§  1206.   The  Governor  shall  appoint  annually  ten  citizens  of  this 
Special  State  as    a  special  Board   of  Visitors  to    attend  the  University 

Board  of  Vis-  .         .  ,.  ,  i  -t 

itors— how  exammations  preceding;    the    annual   commencements,   and   said 

appointed.  .  . 

committee,  by  three  of  their  number  chosen  by  them,  shall  report 
to  the  Governor  with  the  least  possible  delay,  the  character  of 
said  examination.  Such  Visitors  shall  receive  for  their  services 
five  dollars  per  diem,  estimating  from  the  date  of  their  leaving 
their  respective  homes. 

§  1207.  The  Governor  shall  lay  the  reports  respectively,  of  the 
Eeport  of  Board  of  Trustees  and  the  Board  of  Visitors,    annually,  before 

B  0  a  r  d  3   of  ^  /  "  ' 

Trustees  and  the  General  Assembly,  in  connection  with  his  annual  messaoie, 

Visitors.  •^ '  o   ^ 

with  such  comments  as  he  may  see  proper,  and  when  so  done  the 
General  Assembly  has  power  to  revise  and  approve  or  reject  the 
action  of  the  Board  of  Trustees. 

§  1208.  All  officers  elected  or  appointed  for  the  University  shall 
Officers  shall  be  of  the  Christian  religion,  but  no  person  of  any  religious  denom- 

be    of    the  .         ,  &         '  r  J  &  ^ 

Christian  re-  ination  shall  be  excluded  from  equal  advantages  of  education  and 

ligion.  •'■  '-'  ^ 

the  immunities  of  the  University  on  account  of  their  speculative 
sentiments  in  religion,  or  being  of  a  different  religious  profession 
from  the  trustees  or  faculty.* 

§  1209.   The  Chancellor  of  the  University,  its  professors  and 
Oaths  re-  tutors,  shall  not  be  required  to  take  certain  oaths  prescribed  in 

quired  in  the  , 

charter.       its  charter. 

§  1210.  The  Chancellor  has  the  authority  to  appear  before  the 
Chancellor  General  Assembly  once  at  each  session  and  address  them  in  person 

may    appear  ,  ,..  .  ,  r^TTT-' 

before   the  ou  the  couQition,  lutercsts,  and  wants  oi  the  University. 
§  1211.  The  University  may  confer  degrees  as  follows : 

1.  To  each  graduate  of  the  University  the  degree  of  Bachelor 

degrees.  01    xirtS, 

2.  To  each  graduate  of  the  University,  or  of  another  college  of 
three  years'  standing,  or  to  such  graduates  as  have  passed  a  year 
in  the  University  schools,  all  being  of  good  moral  character,  the 
degree  of  Master  of  Arts. 

*  See  5th  Clause,  1st  Article  Constitution  of  Georgia. 


PT.  1.— TIT.  12.— Education.  235 

Chapter  1. — The  University  of  Georgia. 

3.  To  all  law  students  who  have  attended  the  lectures  of  the 
professors,  and  are  recommended  by  them  for  the  same,  the  degree 
of  Bachelor  of  Laws. 

4.  To  the  graduates  of  such  medical  school  as  may  be  established 
by  the  trustees  of  the  University,  the  degree  of  Doctor  of  Medicine. 

5.  To  students  in  the  University  schools  of  two  years'  standing, 
and  proficient  in  two  or  more  of  them,  the  degree  of  Doctor  of 
Philosophy. 

6.  To  persons  distinguished  for  learning,  ability,  and  character, 
according  to  their  respective  vocations,  the  degree  of  Doctor  of 
Laws,  or  of  Divinity,  and,  where  appropriate,  both.  It  may  also 
confer  such  other  degrees  and  honors  as  may  tend  to  the  promo- 
tions of  the  arts  and  sciences. 

§  1212.  Any  law  student  having  a  diploma  of  graduation,  signed     Law  stu- 

,.  -.._-..  ..  •11  11  ^^^^^    may 

by  the  proper  authority  of  the   University,  is  entitled  to  plead  practice. 
and  practice  law  in  all  the  Courts  of  Law  and  Equity  of  this  State 
on  the  same  terms  of  the  graduates  of  the  Lumpkin  Law  School; 
and  all  .graduates  of  the  Medical   School  of  the  University  are 
entitled  to  practice  their  profession  in  all  its  branches. 

§  1213.  By  the  authority  of  the  Board  of  Trustees  there  shall  Preparato- 
be  established,  in   connection  with  the   University,   an  institute  in  connec- 

1  .     .  ,         .  .  n  •  •  1         .  1  tion    with. 

combining  the  instruction  usually  given  m  academies  and  to  the  college. 
lower  classes  in  colleges,  and  by  the  same  authority  there  may  be 
a  reduction  of  the  number  of  years  usually  spent  in  colleges  prior 
to  graduation.  University  schools  for  professional  education, 
including  the  application  of  science  to  the  industrial  arts  as  well 
as  to  the  more  abstruse  and  recondite  sciences,  and  especially  for 
the  promotion  of  medical  and  legal  education,  not  omitting  the 
application  of  chemistry  to  agriculture,  and  mathematics  to  civil 
engineering. 

§  1214.  There   is  reserved  and  set  apart  for  the    University       oampus 

T  .  -,..,.  „    ,  ^  grounds  not 

campus,  not  subject  to  alienation,  thirty-seven  acres  oi  the  tract  oi  subject  to 

111  11       XT  •  1/-^  Till  alienation.    " 

land  donated  to  the  University  by  the  late  Goyernor  John  Milledge. 

§  1215.  The  permanent  income  of  said  University  from  its  bank  The  perma- 
stock  shall  not  be  less  than  eight  thousand  dollars  annually,  and  not  less  than 

$8  000 

when  the  dividends  from  the  bank  shall  not  be  equal  to  said  sum, 
the  Governor  is  required  to  make  up  the  deficiency  semi-annually 
by  his  warrant  on  the  State  Treasurer  for  its  payment  out  of  any 
money  not  otherwise  appropriated. 

§  1216.  The  various  acts  of  the  General  Assembly  relative  to 


236 


PT.  1.— TIT.  12.— Education. 


Chapter  2. — Georgia  Military  Institute. 


Actsinreia-  Said  Universitv,  in  force  at  the  time  of  tlie  adoption  of  this  Code, 

tion  to  Uni-  i  t     i  •  i  •  .  .    ,  ,  . 

versity,  not  if  not  embraced  herein,   and  not  inconsistent  with   what  is   so 

repealed   by 

*M^.  ?^*^^'  embraced,  are  still  of  force. 

still  in  force.  ^ 


CHAPTER    II. 

GEORGIA    MILITARY    INSTITUTE. 


Section. 

1217.  Superintendent — appointment,  etc. 

1218.  His  rank  in  the  volunteer  force. 

1219.  Absence — how  supplied. 

1220.  Military  storekeeper  at  Institute. 

1221.  May  be  allowed  extra  pay — when. 

1222.  In  the  distribution  of  arms,  etc. 

1223.  Inspectors — appointment  and  duty. 

1224.  Visitors — appointment,  etc. 

1225.  Persons  disqualified  to  act. 

1226.  State  cadets — how  appointed. 

1227.  How  selected — vacancies,  etc. 

1228.  Transferred  to  pay  list — when. 


Section. 

1229.  Shall  teach  two  years— when. 

1230.  Quorum  of  Inspectors  may  act. 

1231.  Reasonable  expenses  allowed. 

1232.  Shall  appoint  See'y  and  Treasurer. 

1233.  Treasurer  must  report. 

1234.  Inspectors  report  to  the  Governor. 

1235.  Officers,  etc.— ineligibility  of. 

1236.  Rules,  etc. 

1237.  Suits  for  or  against  the  Institute. 

1238.  Expenses  of  State  cadets. 

1239.  Salary  of  the  Superintendent. 

1240.  Officers  resigning  without  notice. 


§  1217.  The  commanding  officer  of  said  Institute  is  styled  the 

^g/j^^P®"^  Superintendent ;    he  is  chosen  by  the  Board  of  Inspectors,  and 

and^term^of  holds  Ms  offico  at  their  will  and  pleasure.     He  may  appoint  all 

office.         j^.g  g|i]3 ordinate  military  officers,  subject  to  the  approval  of  said 

Board. 

§  1218.  By  virtue  of  his  office,  he  is  entitled  to  rank  in  the 
His  rank,  yoluntecr  forco  of  the  State  as  maior,  and  to  command  the  volun- 

eommission,  ^      ' 

®*^-  teer  battalion  of  which  his  cadets  form  a  part,  and  shall  be  com- 

missioned by  the  Governor  accordingly. 

§  1219.  In  the  absence  of  the  Superintendent  from  parade,  or 
Absence  of  other  timcs,  his    iunior  officers  of  the  Institute   take  his  place 

Superinten-  jo  x 

dent.         according  to  rank. 

§  1220.  The    Superintendent   is,  by  virtue   of  his   office,  also 
Military  military  storekeeper  of  the  public  arms  and  accouterments  at  the 

storekeeper  t/  x  x 

attheinsti-  Institute,  with  power  to  appoint  a  subordinate,  for  whose  conduct 
he  shall  be  responsible.  His  powers  and  duties  are  the  same  as 
other  military  storekeepers,  but  he  receives  no  salary  except  for  the 
safe  keeping  of  a  quantity  of  arms  largely  more  than  necessary 
for  the  institution. 

§  1221.  Should  the  Governor  place  a  large  quantity  of  the  public 
May  be  ai-  amis  in  his  keeping,  he  may  allow  him  just  compensation,  not  to 
pay— when,  excccd  the  Salary  of  other  military  storekeepers. 


PT.  l.-~-TIT.  12.— Education.  237 


Chapter  2. — Georgia  Military  Institute. 


^  1222.  In  the  distribution  of  the  public  arms,  or  any  portion  of  ^jQ(^i'st!ibu- 

'^  ^    '■  .       tionofarms, 

them,  the  Military  Institute  must  be  first  supplied  according  to  its  iDsutu^te 
necessities.  p^^^^^- 

§  1223.  The  affairs  of  the  Institute  shall  be  under  the  control  of     Board  of 

Inspectors 

a  Board  of  ten  Inspectors,  to  be  appointed  by  the  Governor,  of  — their  ap- 

••■  ^  .      •  pomtment 

which  the  Governor  shall  be  ex  officio  President ;  the  Board  may  ^^^  ^^^y- 
elect  a  President  pro  tern,  to  officiate  in  the  Governor's  absence. 
Three  of  tlie  Inspectors  shall  be  a  quorum.  It  is  the  duty  of  said 
Board  to  organize  such  departments  for  staff  duty  as  may  be  neces- 
sary to  establish  the  rank  and  grade  of  all  officers  of  the  Institute ; 
to  appoint  the  State  cadets  ;  to  fill  vacancies  in  the  academic  staff, 
and  to  make  and  ordain  all  regulations  for  the  government  of  the 
Institute ;  to  cause  to  be  kept  a  strict  account  of  all  moneys  received 
and  paid  out  on  account  of  said  Institute,  and  report  the  same  to 
his  Excellency  the  Governor  at  the  end  of  each  session,  together 
with  the  proper  vouchers  for  the  same  ;  all  of  which,  together  with 
the  report  of  the  Superintendent,  shall  be  by  him  laid  before  the 
General  Assembly  at  the  regular  session  thereof  in  each  and  every 
year. 

§1224.  A  Board  of  Visitors  to  the  Institute  shall  be  annually  Board  of 
appointed  by  the  Governor,  as  many  as  he  may  deem  conducive  to  pJTnTmeS', 
the  interest  of  the  Institute,  not  exceeding  seven,  who  shall  meet 
annually  at  the  institution  on  such  day  and  for  such  purpose  as 
may  be  designated  in  the  regulations.  They  shall  report  to  the 
Governor  such  matters  as  they  may  deem  advisable  touching  said 
institution.      * 

§1225.  No  cadet  who  has  been  dismissed  or  expelled,  or  has  Persons  dis- 
deserted  from  the  Institute,  shall  be  a  member  of  any  Board  con-  members  of 

.,      p,.  eitherBoard. 

nected  therew^ith,  nor  any  other  cadet,  until  after  the  expiration  of 
three  years  from  the  date  of  his  leaving  the  institution,  except  as 
an  instructor. 

§  1226.  The  Board  of  Inspectors  shall  appoint,  by  warrant,  one  state  cadets 
cadet  from  each  of  the  Congressional  Districts  of  the  State,  and  pointed. 
two  from  the  State  at  large.     They  shall  not  be  under  fourteen  or 
over  twenty-five  years  of  age,  and  must  be  of  insufficient  pecuniary 
means  to  maintain  and  educate  themselves  at  the  institution. 

§  1227.  They  shall  be  taken  in  turn,  from  each  County  in  the  How  select- 
District,  until  every  County  has  furnished  one,  before  any  County  cies— how 
shall  send  another ;  vacancies  shall  be  supplied  from  a  different 
County  than  that  from  which  the  regular  appointment  came.     If 


238  PT.  1.— TIT.  12.— Education. 

Chapter  2. — Georgia  Military  Institute. 

any  of  the  Districts  shall  fail  to  offer  one  applicant,  or  from  rea- 
sonable objections  there  shall  Be  no  appointment  from  a  District, 
the  board,  after  giving  due  notice  of  such  deficiency,  shall  fill  the 
vacancy  from  applicants  already  before  them.  The  Board  of  Ed- 
ucation in  each  County  may  select  and  recommend  one  applicant 
from  their  several  Counties. 

§  1228.  If  it  should  be  ascertained,  or  should  happen,  that  a 
dets  maybe  State  cadct,  after  his  appointment,  has  sufficient  pecuniary  ability 
to  the  list  of  to  defray  his  expenses,  he  shall  be  transferred  to  the  list  of  pay 
when!         cadets,  and  the  vacancy  shall  be  filled  by  another  appointment. 

§  1229.  Every  State  cadet  shall  sign  a  written  pledge  of  honor 
Must  teach  to  act  in  the  capacity  of  teacher  in   one  of  the  schools  of  this 

two  years  af-^  pi-tt-p  n  i 

ter   gradua-  fetato,  alter  leaving  the  Institute,  tor  a  term  oi  two  years,  unless 

tin?,    if    not  rv.  1  1        -r»  1        P    T 

excused.  excuscd  for  Sufficient  cause  by  the  Board  of  Inspectors,  receiving 
such  compensation  therefor  as  may  be  agreed  on  between  himself 
and  the  authority  of  the  school. 

§  1230.  A  quorum  of  said  Board  of  Inspectors  are  competent 
A  quorum  to  the  transaction  of  all  business,  except  making  or  changing  the 

of  said  board  .  .       .  mi      • 

may  act;  rulcs  aiiQ   regulations,  when  a  majority  must  be  present.      Iheir 
when  ht'id;  meeting's  shall  be  held  at  the  Institute  as  often  as  may  h^  neces- 

vacancies —  ^  ,  "^ 

how  filled,  sary.  Vacancies  in  the  Board  of  Inspectors  must  be  reported  to 
the  Governor,  who  shall  fill  the  same. 

§  1231.  All  reasonable  expenses  incurred  by  the  members  of 
Expenses—  both  of  Said  Boards,  in  the  discharge  of  their  duties,  shall  be  al- 

how  paid.  .  . 

lowed  them  by  the  Governor,  and  paid  by  his  warrant  on  the 
Treasury,  out  of  any  money  not  otherwise  appropriotted,  but  there 
shall  be  no  salary,  or  per  diem  compensation. 

§  1232.   The  Board  of  Inspectors  shall  appoint  a  Secretary  and 
Secretary  Trcasurcr  of  Said  Institute'  and  fix  his  compensation.     He  must 

and  Treasur-  ^ 

€r— appoint-  o;ive  a  boud  and    security  in  the  sum  of  five  thousand  dollars,  to 

ment,  etc.       o  J  ' 

be  approved  by  said  board,  a  copy  of  which  shall  be  sent  to  the 
Governor  and  filed  in  the  Executive  Ofiice. 

§  1233.   Such  ofiicer  shall  quarterly  render  to  the  Superinten- 
Treasurer  dcnt,  and  ofteucr  if  he  requires  it,  a  full  statement  of  his  receipts 
quarterly,     and  disbursements,  which  shall  be  reported  to  the  Board  of  In- 
spectors annually,  or  oftener  if  required  by  them. 

§  1234.   Said  Board  shall  annually,  and  up  to  the  first  day  in 
Inspectors  Octobcr,  make  to  the  Governor  a  written  report  of  all  the  affairs 

must  report      ,,,...  ,.  ,  •   ^       i  i  nio 

to  Governor.  01  tlic  institutiou.  Sending  therewith  the  annual  report  ot  tne  ou- 
perintendent,  and  shall  propose  such  alterations  or  improvements 


PT.  1.— TIT.  12.— Education. 


239 


Chapter  2. — Georgia  Military  Institute. 


as  they  may  desire,  which,  together  with  the  report  of  the  Board 
of  Visitors,  shall  be  by  the  Governor  laid  before  the  General  As- 
sembly, in  connection  with  his  annual  message. 

§  1235.  An  officer  or  professor  of  the  Institute  is  ineligible  as  ineligibility 

^  _    ^  ^  '-'  of  ofBcei's. 

one  of  the  Board  of  Inspectors  or  Visitors ;  neither  can  either  one 
of  said  Board  be  chosen  to  either  one  of  said  positions. 

§1236.  The  rules  and  regulations  of  the  Board  are  subiect  to    Rules,  etc., 

°  ^  of  the  Board. 

the  call  of  the  General  Assembly. 

§  1237.  Suits  for  or  against  the  Institute  must  be  in  the  name   suitsforor 

.  1         ci  •  1  against   the 

of  the  Board  of  Inspectors ;  service  on  the  Superintendent  shall  institute. 
be  sufficient. 

§  1238.  The  sum  of  two  thousand  dollars  is  annually  appropri-  Expenses  of 

^,  ,T^Tf,r-      ^^^^'^   cadets 

ated  to  said  Institute,  to  be  used  by  the  Board  of  Inspectors,  in  —iiow  paid. 
consideration  of  which  ten  State  cadets  must  be  furnished  board, 
tuition,  washing,  fuel,  light,  and  medical  treatment,  free  of  charge, 
they  providing  their  own  room,  furniture,  clothing,  etc.,  which  sum 
is  payable  quarterly  on  the  warrant  of  the  Governor  for  that  pur- 
pose. 

§  1239.  The  salary  of  'the  Superintendent  shall  be  paid  by  the 
State  out  of  any  money  in  the  Treasury  not  otherwise  appropri- 
ated, at  the  close  of  each  session,  by  the  warrant  of  the  Governor 
drawn  on  the  Treasurer  for  that  purpose. 

§1240.  No  professor,  assistant  professor,  or  the  Superintendent 
of  said  Institute  shall  resign  his  office  therein  without  giving  the 
Board  of  Inspectors  thirty  days'  notice  of  his  intention  so  to  do; 
and  for  a  violation  of  the  provisions  of  this  Section,  such  officer  so 
violating  shall  forfeit  to  said  Institute  one-fourth  of  his  annual 
salary,  to  be  retained  on  settlement. 


Salary  of 
Superinten- 
dent— liow 
paid. 


CHAPTER    III. 

ACADEMY    FOR    THE    BLIND. 


Section. 

1241.  Location  and  organization. 

1242.  A  body  corporate. 

1243.  Power  and  duty  of  Trustees. 

1244.  Pupils — who  entitled,  etc. 

1245.  How  appointed. 

1246.  Number — how  regulated. 

1247.  Pay  pupils — how  received. 

1248.  Treasurer  must  give  bond. 


Section. 

1249.  Trustees  must  report  to  Governor. 

1250.  Visitors— appointment  and  duty. 

1251.  Powers  of— must  report. 

1252.  Vacancies— how  filled. 

1253.  Statistics— how  obtained. 

1254.  List  of  indigent — by  whom  kept. 

1255.  Former  acts  continued  in  force. 


240  PT.  1.— TIT.  12.— Education. 

Chapter  3. — Academy  for  the  Blind. 
Location,      §  1241.  An  institutioTi  for  the  education  of  the  blind  is  located 

etc.,  of  Acad-  ^  ^  in  m 

em  J    for  at  Macon  under  the  control  oi  seven  Trustees  already  appointed. 

§  1242.  They  are  a  body  corporate,  and  have  all  the  powers  and 

Trustees  a  dutics  appertaining:  to  similar  institutions  of  this  State  in  their 

body  corpo-  ^  ■•■  o 

rate,  corporatc  capacity  as  Trustees  of  the  Academy  for  the  Blind. 

§  1243.  The  Trustees  have  the  power — 

1.  To  appoint  such  officers,  teachers,  and  matrons  as  may  be 
^^^^J^^js  of  necessary — to  prescribe    their  duties,   fix   their   salaries,  and   to 

remove  or  discontinue  them  at  pleasure. 

2.  To   prescribe  the  course   of  studies,  establish  the  rates  of 
tuition,  and  adjust  the  expenditures  of  the  institution. 

3.  To  adopt  such  rules  and  regulations,  not  in  conflict  with  law, 
as  the  interest  of  the  Academy  may  require. 

§  1244.  All  indigent  blind  persons,  residents  of  this  State, 
What  pupils  ]3etween  the  ages  of  seven  and  twenty-five  years,  shall  be  selected 

educated,  o  J  J  7 

fected^^  ^^  ^J  *^®  Trustees  from  the  different  Counties  of  this  State,  received 
into  the  Academy,  and  supported  and  educated  gratuitously  to  the 
extent  the  funds  will  permit. 

§  1245.  When  there  are  more  applicants  than  can  be  accommo- 
^Appiicants  dated  they  shall  be  apportioned  among  the  several  Counties, 
portioned,    according  to  representive  population. 

§  1246.  Unless  the    funds  will    otherwise   permit,  there    shall 
Number  of  hereafter  be  but  one  indigent  pupil  from  the  Counties  applyina:, 

pupils  regu-  ^  o  x     x  ^  x  i    ./       o/ 

lated  by  and  in  case  there  are  not  means  enough  to  receive  one  from  every 

funds    on  o  e/ 

hand.         Couuty   applying,   those  shall  be    received  first  who  first  make 
application.     A  beneficiary  shall  not  remain  at  the  charge  of  the 
institution  longer  than  four  years. 
Pay  pupils      §1247.  All  othors  than  the  indigent  are  to  be  received  upon 
ceiredJ  ^^"  such  tcrms  as  the  Trustees  may  impose. 
Treasurer       §  1248.   The  Treasurer  of  the  Board  shall  give  bond  and  security 
bond'.  ^^^^  i^  the  sum  of  three  thousand  dollars. 

§  1249.  The  Trustees  must  make  annual  reports  to  the  Gover- 
Trustees  nor,  as  is  required  of  the  Board  of  Inspectors  of  the  Military 
S^GoverSor.  lustitutc,  SO  far  as  applicable  to  the  affairs  of  the  Academy  for  the 
Blind,  and  the  Governor  must  make  a  like  disposition  of  them. 
§  1250.  The  Governor  shall  appoint  a  Board  of  ten  Visitors  for 
Board  of  Said  Acadomy,  who    shall   meet  the  Board  of  Trustees    at  the 
Academy  annually,  at  such  time  as  the  latter  may  designate. 
§  1251.  The  powers  and  duties  of  said  Visitors  are  the  same  as 
Powers  and  those  appointed  for  the  Military  Institute,  and  the  same  disposi- 
itors.  tion  is  to  be  made  of  their  report. 


PT.  1.— TIT.  12.— Educatioi^. 


241 


% 


Chapter  3. — Academy  for  the  Blind. 


§  1252.  The  Trustees  fill  vacancies  in  their  own  body  as  do  the  vacancy  m 

...  *^  Boardof 

Trustees  of  the  Georgia  University.     When  a  vacancy  occurs  and  Trustees— 

°  ^  ."^  .  how    sup- 

is  filled,  it  must  be  reported  to  the  Governor.     Their  ineligibility  pii^d. 

is  likewise  the  same  as  of  those  last  mentioned. 

8  1253.  The  Tax  Receiver  of  each  County  must  keep  a  column  statistics  of 

"  «  .  blind— how 

for,  and  receive  the  numbers  of  the  blind  between  the  ages  of  obtained. 
seven  and  twenty-five,  a  statement  of  wdiich  shall  be  obtained 
annually  hj  said  Board  of  Trustees,  from  the  Comptroller  Gen- 
eral's office.  Before  the  digest  is  sent  by  the  Tax  Receiver  to  the 
Comptroller,  the  Ordinary  of  each  County  shall  examine  with 
such  Receiver  his  list  of  the  blind,  and  correct,  by  memoranda 
thereto  attached,  any  mistake. 

8  1254.  The  Ordinary  shall  also  take  down  the  names  of  such  i^^^t  of  indi- 

"  ...  S^^^  bund. 

as  are  indigent,  and  procure  their  admission  into  the  Asylum,  if 
possible,  and  if  from  any  cause  they  are  not  received,-  he  shall 
report  to  the  Board  of  Trustees  the  names,  ages,  and  sex  of  such, 
who  shall  keep  a  record  of  all  such  reports. 

§1255.  Section  1216  (as  to  laws  kept  in  force,)  applies  to  the 
Asylum  for  the  Blind. 


CHAPTER    IV. 

ACADEMY    FOR    THE    DEAF  AND    DUMB. 


Section. 

1256.  Located  at  Cave  Spring. 

1257.  Trustees — how  appointed,  etc. 

1258.  The  Principal — how  appointed. 

1259.  Other  officers — how  appointed,  etc. 

1260.  Exclusive  power,  etc.,  of  Principal. 


Section. 

12G1.  Visitors  may  be  appointed, 

1262.  Contracts — how  made. 

1263.  Vacancy — how  filled. 

1204.  Chap.  3  of  this  Title  applies — when. 


S  1256,  The  Academy  for  the  Education  of  the  Deaf  and  Dumb  „   Academy 

•^  for  Deaf  and 

is  located  at  Cave  Spring,  and  is  under  the  management  of  three  ^^™^- 
Trustees. 

§  1257.  The  Trustees  need  not  reside  in  the  County  where  the  ^^^^^^^^^  °^ 
institution  is  located,  but  the  Principal  shall  be  required  to  resid® 
in  the  institution. 

§  1258.  The  Principal  of  said  institution  is  elected  by  said  Board  ,  Pi-incipai-. 

■••  •/  how  elected, 

of  Trustees.  He  is  responsible  to  them,  and  his  acts  subject  to  their  res'^onlibiT 
veto. 

16 


242  PT.  1.— TIT.  12.— Education. 

Chapter  4. — Academy  for  the  Blind. 

§  1259.  Said  Principal  has  authority  to  nominate  all  his  subor- 
Subordinate  dinate  officers  and  employees,  subject  to  the  approval  of  the  Board. 

officers,  reg-  r     ./         ?  j  ^  rr 

uiations,  etc.  He  shall  make  all  regulations  of  internal  police ;  shall  authorize 

all  purchases  of  ordinary  supplies,  and  examine  and  certify  to  the 

correctness  of  bills  of  such  supplies  before  paid  by  the  Treasurer. 

§  1260.  He  shall  be  the  sole  medium  of  communication  between 

Exclusive  |-}^@  Board  and  the  subordinate  officers  and  employees  of  the  in- 

powers  aucl  -i-       *^ 

^^\*^^^  j^^stitution,  and  shall  have  the  exclusive  direction  and  control  of  the 
system  of  religious  and  intellectual  instruction. 

§  1261.  The  Governor  may,  in  his  discretion,  appoint  a  Board 
Board  of  of  Yisitors,  to  consist  of  such  a  number  as  he  thinks  best,  and 

Yisitors,  .,,..,  . 

when  appointed,  their  rights  and  duties  are  the  same  as  those  of 
the  Visitors  of  the  Academy  of  the  Blind. 

§  1262.  No  contract  of  said  Board  of  Trustees  shall  be  valid  un- 
Contracts—  less  it  is  first  recorded  by  the  Secretary  in  a  book  kept  for  that 

how    made  ^  ''       ^  *'  ^ 

valid.  purpose,  signed  by  the  President  and  countersigned  by  said  Sec- 
retary. 

§  1263.  When  a  vacancy  occurs  in  said  Board,  the  Secretary  or 
in Boardo^  any  member  shall  notify  the  Governor  within  twenty  days,  and 
how  mied!  the  vacancy  must  be  filled  within  thirty  days  from  said  notice. 

§  1264.  All  the  provisions  of  the  preceding  Chapter  not  in  con- 
Provisions  ^{q^  -^^i^]^  \)^q  precediup;  Sections  of  this  Chapter  apply  to  the  Acad- 

of  previous  Jr  o  i  i  i    t/ 

^ncaWe^^  emy  for  the  Deaf  and  Dumb,  to  its  Board  of  Trustees  and  Visit- 
ors, its  officers,  and  other  officers  of  the  State  or  County  upon 
whom  any  duty  is  enjoined — the  words  deaf  and  dumb  being  sub- 
stituted whenever  the  words  "the  blind"  occur. 


CHAPTER  V. 

COUNTY    ACADEMIES. 


Section. 

1265.  Trustees  of  County  Academy. 

1266.  Vacancies— how  filled. 


Section. 

1267.  Authority  of  Trustees. 

1268.  Liability  of  holder  of  funds. 


§  1265.  When  it  is  not  otherwise  provided  for,  the  Justices  of 
Trustees  the  Inferior  Court  of  the  several  Counties  have  the  power  to  ap- 
Academies  polut  Trustccs  for  any  County  Academy,  whether  incorporated  or 
pointed,      not,  and  to  any  number  they  may  deem  expedient. 


PT.  1.— TIT.  12.— -Education. 


243 


Chapter  5. — County  Academies. 


§126(3.  When  vacancies  occur,  and  provision  is  not  made  as  to  Vacanciee— 

\  ^  ^  how  filled. 

the  manner  in  which  said  vacancies  are  to  be  filled,  such  Justices 
have  power  to  fill  the  same  in  their  respective  Counties. 

§1267.   The   authority   of   said   Trustees,   unless   specially  re- Authority  of 

.•^  .  Trustees. 

stricted,  is  to  elect  their  teachers,  fix  their  salaries  and  terms  of 
ofiice,  prescribe  the  course  of  studies,  manage  the  finances,  adopt 
all  such  rules  a'ld  regulations  for  the  government  of  their  respect- 
ive institutions,  as  they  may  think  prudent,  if  not  in  conflict  with 
the  laws. 

§  1268.  Any  person  holdins:  Academy  funds  and  failino;  to  pay      Liability 

1  ,-,.,.    i  ,  .  p  ^  .  of  holders 

over  when  bound,  is  liable  to  twenty  per  cent,  interest-  trom  time  of  Academy 

,        T         •  T        funds. 

of  demand,  and  to  be  proceeded  against  by  the  Justices  of  the  In- 
ferior Court  as  against  holders  of  County  funds. 


CHAPTER   VI. 

COMMON    SCHOOLS    AND    EDUCATION    OF    THE    POOR. 


Article  1. — Educational  Fmicl  of  tlie  State — Jioiu  made  up. 

Article  2. — Educational  Fund — lioiv  paid  out  hy  the  State. 

Article  3. — Educational  Fund  of  the  Counties — how  made  up. 

Article  4. — Educational  Fund  of  Counties — hy  ivhom  managed. 

Article  5. — The  Beneficiaries  of  the  Educational  Fund. 


ARTICLE  I. 


the  educational  fund  of  the  state -how  made  up. 


Sectiox. 

1269.  From  dividends  on  bank  stock. 

1270.  Proceeds  of  W.  &  A.  R.  R. 

1271.  Balances  in  the  Treasury. 


Section. 

1272.  From  donations. 

1273.  Such  donations — how  managed. 

1274.  Earnings  of  W.  &  A.  R.  R.,  etc. 


stock. 


§  1269.  The  Educational  Fund  of  the  State  is  made  up —  Educational 

1.  Of  the  dividends  upon  the  capital  stock  of  the  State  in  the  dwidendr'^ 

Bank  of  the   State  of  Georgia,  the  Bank  of  Augusta,  and  the 

Georgia  Railroad  and  Banking  Company. 

§  1270.  From   the   net  earnings  of  the  Western  and  Atlantic 

Railroad,  to  be  managed  and  disposed  of  as  follows : 


From  the 
net  earnings 
of  W.  &  A. 
Railroad. 


244  PT.  1.--TIT.  12.— CHAP.  6.— Education. 

Article  1. — The  Educational  Fund  of  the  State — how  made  up. 

1.  One  hundred  thousand  dollars  of  said  net  earnings  stand  an- 
nuallj  appropriated  for  such  purpose,  and  all  to  remain  with  the 
State  Treasurer  until  the  Governor  draws  his  warrant  for  the 
same,  or  any  part  thereof. 

2.  In  addition  to  said  sum  of  money  the  whole  of  the  net  earn- 
ings of  said  road  is  set  apart  as  an  Educational  Fund,  to  take  effect 
in  the  following  manner  : 

As  any  portion  of  the  present  public  debt  is  paid  under  the  ex- 
isting law  from  said  earnings,  the  Treasurer  shall  issue  scrip  or 
education  bonds  certifying  the  amount,  and  that  it  is  entitled  to 
draw  interest  thereon  from  the  Treasury  at  the  rate  of  six  per 
cent,  per  annum. 

3.  For  any  balance  of  said  one  hundred  thousand  dollars,  that 
may  not  be  drawn  from  the  Treasury  at  the  close  of  each  educa- 
tional year,  the  Treasurer  shall  issue  a  like  certificate  for  said 
amount. 

4.  Said  script  shall  be  in  favor  of  the  Secretary  of  State,  as 
Trustee  of  the  Educational  Fund,  which,  together  with  the  script 
for  bank  stock,  shall  remain  on  deposit  in  the  Treasury  to  the  cre- 
dit of  the  Educational  Fund.  The  Treasurer  shall  issue  to  said 
Secretary,  from  time  to  time,  certificates  of  said  deposits. 

5.  Any  amount  of  money  that  may  at  the  time  this  Code  goes 
into  effect  be  loaned  out,  or  on  deposit  under  the  Act  of  December 
11th,  1858,  shall  be  returned  to  the  Treasury,  and  appropriated  to 
taking  up  that  amount  of  the  public  debt  under  the  provisions  of 
this  Section. 

6.  The  Educational  Fund  thus  raised  shall  be  subject  to  appro- 
priation by  the  General  Assembly  to  any  educational  purpose  in 
this  State. 

§  1271.  From  any  balance  that  may  be  in  the  State  Treasury 
Balances  in  at  the  time  of  distributing  the  Educational  Fund,  over  and  above 
the  expenses,  ordinary  and  extraordinary,  of  the  State  Govern- 
ment for  the  then  political  year.  If  said  balance  is  not  drawn 
out,  scrip  for  it  is  to  be  issued  and  used  as  set  forth  in  preceding 
paragraph. 

§  1272.  From  any  money  donated  by  will,  deed,  or  otherwise,  for 

Donations.    SUCh  purpOSC. 

§  1273.  In  the  case  named  in  the  preceding  Section,  it  is  the 
fpi^'ES-  duty  of  the  Governor— 
mauage(?^'^      !•  UpoH  a  tender  of  the  sum  so  given  or  bequeathed  in  cash,  to 


PT.  1.— TIT.  12.— CHAP.  6.— Education.  245 

Article  3. — The  Educational  Fund — how  paid  out  by  the  State. 


have  the  same  deposited  in  the  State  Treasury,  and  the  State  shall 
thereby  become  pledged  for  the  payment  of  said  sum  according  to 
the  terms  of  the  donation,  and  if  thereby  the  interest  alone  is  to 
be  used,  said  interest  shall  be  paid  at  the  rate  of  six  per  cent,  per 
annum. 

2.  To  issue  scrip  or  educational  bonds  therefor,  to  the  person 
named  as  Trustee,  and  if  none  is  named,  then  to  the  State's  Trus- 
tee of  the  Educational  Fund. 

3.  The  interest  to  be  payable  in  the  same  manner,  and  the  fund 
to  be  managed  as  said  Educational  Fund,  unless  a  different  mode 
is  prescribed  hj  the  donor ;  then  according  to  said  mode,  if  possi- 
ble to  be  done.  In  no  case,  under  the  above  provision,  shall  the 
-State  be  liable  to  refund  the  principal  thus  paid  into  the  Treasury. 

§1274.  The   appropriations  of  the  net  earnings   of  the   State  EarDinssof 
Koad  and   of  the  balances  in  the  Treasury,  may  be  discontinued  may  Ve'cu- 

VGrt6(l 

by  the  State,  in  vrhole  or  in  part,  by  act  of  the  General  Assembly. 


ARTICLE  II. 

THE  EDUCATIONAL   EUXD-HOW   PAID    OUT  BY   THE   STATE. 


Section. 

1275.  A  list  of  cbiidren,  etc. 

1276.  Funds — how  rLi;propriated. 

1277.  Warrant  for  School  Fund. 


.Section. 

1278.  County  failing  to  make  returns. 

1279.  Penalty  for  false  return. 


§1275.  The   Ordinary  of  each  County  shall  annually,  by  the  Listofchii- 
third  Monday  in  JNovemxber,  report  to  the   Grovernor,  under  his  organized. 
hand  and,  seal  the  whole  number  of  children  in  his  County,  as  as- 
certained from  the  Tax  Receiver's  digest,  his  own  knowledge,  and 
the  knowledge  of  the  Grand  Jury,  as  hereinafter  set  forth. 

§  1276.  As  soon  as  that  is  done,  the  Governor  shall,  on  that  Funds-how- 
day,  make  an  estimate  of  the  amount  of  the  Educational  Fund  in  ^^^'^^^°"® 
the  Treasury,  and  of  the  number  of  children  in  each  County,  and 
make  a  pro  rata  division  of  the  same  among  the  different  Coun- 
ties, according  to  the  number  reported  from  each. 

§  1277.  For  the  amount  each  County  is  entitled  to  he  shall  draw  wanantfor 

-  .  1       rn  ^       n  r>     f  i  School  Fund, 

his  warrant  on  the  Treasury  m  tavor  of  the  several  Ordinaries  for 
their  respective  amounts.  The  Treasurer  shall  pay  the  same  to 
each  Ordinary,  or  his  order,  taking  a  receipt  for  the  same.  If  the 
Ordinary  is  not  Treasurer  of  tho  Board  of  Education,  the  war- 


246  PT.  1.— TIT.  12.— CHAP.  6.— Educatiois^ 


Article  3. — The  Educational  Fund  of  the  Counties — how  made  up. 


rant  must  be  in  favor  of  said  Treasurer,  and  tlie  Ordinary,  in  lii& 

report,  must  certify  wlio  is  such  Treasurer. 

Fund  lost      §  1278.  If  any  County  neglects  to  present  a  proper  return  to 

ie' return  the  Govcmor  hj  the  time  prescribed  it  loses  its  share  in  the  fund. 

§  1279.  If  any  Ordinary  certifies   to   the   Governor  a  greater 

Penalty  for  number  of  children  than  he  is  authorized  to,  he  is  ffuilty  of  mal- 

excessivere-  .         .         ^^  ,  .        .  o         ./ 

tui-n.  practice  in  office,  and  may  be  indicted  ;  and,  if  found  guilty,  may 

be  fined  and  imprisoned  in  the  discretion  of  the  Co-urt. 


ARTICLE  III, 

THE  EDUCATIONAL   FUND   OF   THE   COUNTIES-HOW   MADE  UP. 


Section. 

1280.  School  Fund  of  the  County. 
♦  1281.  Tax  for  education — how  levied. 
1282.  When  Grand  Jury  fail,  etc. 


Section. 

1283.  Wants  of  County  to  be  regarded. 
128-4.  School  Fund— to  whom  paid. 


§  1280,  The  Educational  Fund  of  the  respective  Counties  of 
School  Fund  this  State  is  made  up  of — 
—how  made      1.  The  sharc  of  the  State  Fund  which  may  be  distributed  to 

up.  "^ 

each. 

2.  The  amount  raised  by  taxation  for  such  purpose. 

3.  The  money  arising  from  the  sale  of  any  escheated  property. 

4.  The  money  arising  from  fines  and  forfeitures  over  and  above 
the  charges  upon  it,  and  from  the  result  of  qui-tam  actions,  where 
the  whole  or  one-half  goes  to  the  State  or  County,  and  is,  by  spe- 
cial enactment,  directed  to  be  paid  to  the  Educational  Fund. 

§1281.   The  Justices  of  the  Inferior  Court  of  the  several  Coun- 
Tnx  for edu- ties  havc  authority,  upon  the  recommendation  of  the  Grand  Jury, 

cation— how  n         m  r  t  •  ^  o 

levied.         to  Icvy  a   tax  upon   the  fetate  tax,  tor  educational   purposes,  oi 
such  per  cent,  as  said  Jury  may  recommend. 

§  1282.  If  the  Grand  Jury,  at  the  time  they  must  recommend 
Tax— how  the  general  County  tax,  fail  to  take  any  action  in  reference  to 

levied  when  ^  •  n     f  re  /-s  tt-  n      ^  ■\'  cr 

Grand  Jury  such  tax,  or  if  different  Grand  Juries  oi  the  same  term  diner- 

fails    to    re-  .,.,.., 

commend,     eutly  recommcud,  said  Justices  may,  in  their  discretion,  \qyj  a 

tax  for  such  purpose,  not  to  exceed  twenty-five  per  cent,  upon 

the  State  tax.     If  such  Grand  Juries  recommend  a  different  per 

cent,  said  Justices  may  levy  the  medium  between  the  two  extremes. 

§  1283.  When  the  levy  of  said  tax  is  entirely  in  the  discretion 

Country  %e-  of  Said  Justices,  they  shall  consult  the  other  members   of  the 


PT.  1.— TIT.  12.— CHAP.  6.— Education. 


247 


Article  4. — The  Educational  Fund  of  Counties — by  whom  managed. 
Board  of  Education,  to  ascertain  the  wants  of  the  County  before  gardedmie- 

*'  vying  tax. 

doinfT  so. 

§  1284.  All  moneys  from  all  said  sources  are  to  be  paid,  when  school  Fund 
collected  by  the  proper  officers,"to  the  Ordinary,  if  Treasurer  of  paid. 
the  School  Fund  of  the  County — if  not,  to  said  Treasurer. 


ARTICLE  IV. 

THE    EDUCATIONAL    FUND    OF   COUNTIES -BY   WHOM    MANAGED. 


Section. 

1285.  For  each  County,  etc. 

1286.  Board  of  Education— their  duty. 

1287.  Price  of  tuition. 

1288.  Course  of  study  prescribed. 

1289.  Teachers  must  be  examined. 
1290;  How  paid. 

1291.  Previous  accounts  may  be  paid. 

1292.  Teachers'  accounts — how  made  out. 


Section. 

1293.  Com.  schools  maybe  established. 

1294.  Board  failing  to  devise  a  plan. 

1295.  Ordinary  must  give  bond  as  Treas. 

1296.  Additional  bond  may  be  required. 

1297.  Treasurer  failing  to  pay,  etc. 

1298.  Secretary  of  Board— who  shall  be. 

1299.  Ordinary  must  report  to  Governor. 


8  1285.  The  Educational  Fund  of  each  County  is  under  the     Board  of 

,  .  .  .       Education — 

manasjement  of  a  Board  of  Education,  which  Board  is  to  consist  how  organ- 

■=*  ^  ^  ^  ized. 

of  the  Justices  of  the  Inferior  Court,  the  Ordinary,  and  some  other 
qualified  citizen,  to  be  selected  by  the  Judge  of  the  Superior 
Court  presiding  in  said  County.  The  person  so  selected  holds 
the  position  for  the  term  of  four  years,  unless  a  vacancy  occurs 
from  any  cause.  The  appointment  and  the  filling  of  any  vacancy 
by  the  said  Judge  shall  be  entered  on  the  minutes  of  the  Superior 
Court.  The  person  appointed  to  fill  a  vacancy  shall  hold  for  a 
full  term. 

§  1286.  It  is  the  duty  of  said,  Board — 

1.  To  disburse  the  school  fund  for  their  respective   Counties  ^^^^^."^y^J 
in  the  manner  that  in  their  judgment  will  best  promote  the  cause  Education, 
of  general  education  under  the  law. 

2.  To  act  by  themselves,  or  a  committee,  as  a  Board  of  Exam- 
iners, and  examine  all  teachers  who  participate  in  the  school 
funds  upon  the  elementary  branches,  and  also  upon  English 
grammar  and  geography,  if  the  teacher  applying  shall  desire,  and 
to  give  said  teachers  the  proper  certificates  of  their  qualification. 

3.  To  publish  annually  the  school  system  they  may  adopt, 
including  the  rates  of  tuition,  in  the  public  gazette  where  their 
respective  Sheriffs  publish  their  sales,  together  with  their  receipts 
from  difi'erent  sources  and  the  items  of  expenditure. 


248  PT.  l.~TIT.  12.— CHAP.  6.-Educatio^^ 


Article  4. — The  Educational  Fund  of  Counties — by  whom  managed. 

4.  To  meet  once  a  month  at  the  Court  House,  on  the  day 
the  Court  of  Ordinary  is  held,  and  as  often  as  may  be  necessary 
when  called  by  either  member  of  the  Board. 

§  1287.  [The  Board  of  Education  are  authorized  to  allow  the 
Price  of  toachers  of  children  entitled  to  the  benefit  of  the  poor  school 
fund,  the  same  'per  diem  pay  for  teaching  said  children  as  is 
charged  by  the  same  teachers  for  other  children  pursuing  similar 
branches  of  study;  provided,  said  charge  shall  not  exceed  sixteen 
cents  per  day.]  (a) 

§1288.  By  the  term  elementary  branches  is  meant  spelling, 
What  reading,   writing,   and  arithmetic;   but   children    entitled   to    the 

branches  be- 

neficiary  benefit    of  the    school   fund  may    study  English    grammar    and 

may  study.  >  i     t,      ^  •    •  -y 

geography,  or  any  other  study,  provided  the  tuition  does  not  then, 
nor  in  any  other  contingency,  exceed  the  rates  of  sixteen  cents 
per  day.  Under  said  permission,  such  children  who  may  be  well 
educated  in  said  branches  mentioned,  may,  by  special  permission 
of  the  Board,  study  exclusively,  at  the  same  rates  of  tuition,  higher 
branches  of  utility  with  any  teacher  competent  to  instruct  them. 
§  1289.  A  teacher  claiming  pay  out  of  the  school  fund  shall 
Certificate  to  not  be  >enti tied  thereto  for  any  teaching;  done  prior  to  his  exami- 

teachers.  .  .  .       .  , 

nation  before  the  Board  of  Education.  When  a  majority  of  the 
Board  know  of  the  competency  of  a  teacher,  they  may  give  him 
the  certificate  without  examination.  Teachera  shall  be  examined 
or  receive  the  certificate  whenever  they  apply. 

§1290.  Teachers  must  be  paid  quarterly  by  the  Treasurer, 
Teachers—  Avhon  their  accouiits  are  passed  by  the  Board,  provided  there  are 
funds;  if  insufficient  funds,  then  all  of  equal  dignity  are  to  be  paid 
pro  rata.  If  at  the  close  of  the  year  the  school  fund  is  not  suffi- 
cient to  pay  all  the  teachers'  accounts,  duly  passed,  said  accounts 
must  be  first  paid  out  of  the  funds  raised  for  the  next  year.  The 
rates  of  tuition  should  be  so  6xed  by  the  Board  of  Education  as 
to  give  all  the  children  the  benefit  of  the  fund  annually  who 
have  the  right  of  participation.  Teachers  who  do  not  have  their 
accounts  passed  on  by  the  first  of  January,  annually,  are  post- 
poned in  their  payment  until  the  next  year  unless  there  is  a  sur- 
plus fund.  All  teachers'  accounts  for  the  year,  and  passed  in  the 
year,  are  of  equal  dignity  without  regard  to  the  time  when  the 
teaching  was  done. 

(a)  Acts  of  1863-4,  p.  24. 


PT.  1.— TIT.  12.— CHAP.  6.— Education.  249 

Article  4. — The  Educational  Fund  of  Counties— by  whom  managed. 


8  1291.  Whenever  tlie  state  of  the  funds  will  warrant  it,  persons  ^   Accounts 

"  ^  for  previous 

who  have  in  good  faith  taught  poor  children,  prior  to  twenty-  ^^i^^^'^jfg^® 
first  December,  1859,  and  have  not  been  paid,  shall  have  their 
accounts  passed  by  the  Board  of  Education,  and  shall  rank  as  of 
the  year  when  so  passed,  but  in  no  other  case  shall  a  teacher  be 
paid  who  has  not  the  proper  certificate.     Two-thirds  of  the  Board 
of  Education  may,  however,  order  an  account  paid  when  the  neg- 
lect to  return  is  satisfactorily  explained.     The  Legislature  shall 
not  interfere  in  such  cases.     Children  who  reside  in  one  County    Tuition  to 
and  go  to  school  in  another  are  to  be  paid  for  out  of  the  fund  of  county    m 
the  County  of  their  residence ;  provided,  the  teacher  claiming  the  resides. 
pay  has  a  certificate  from  the  Board  of  Educatioi;!  of  the  County 
where  he  teaches. 

8  1292.  All  teachers'  accounts  shall  state  the  number  of  days  Teaciiers'ac- 

"  ^  *^      couuts — how 

each    child  was    taught,    the    studies  pursued,    and  the  rate   of  ™^*i'-- ^^^t. 
tuition  claimed,  which  shall  be  sworn  to. 

§  1293.  When  the  Educational  Eund  of  a  County  and  the  state      common 

soil  Ool  ^    T*T  T/V 

of  the  population  will  warrant  it,  the  Board  of  Education  of  each  be  estabiish- 
County  have  authority  to  establish  a  common  school,  or  schools, 
to  name  and  limit  the  number  of  scholars,  and  fix  the  salary  of 
teachers ;  provided,  all  the  children  of  the  County  entitled  to 
share  the  Educational  Fund  are  provided  for,  or  there  are  means 
reserved  for  that  purpose. 

§1294.  If  the  Board  of  Education  fail  to  devise  any  plan  of    what  laws 

govern   in 

education,  the  laws  of  force  prior  to  December  13th,  1859,  are  absence    of 
continued  in  force. 

§  1295.  If  the  Ordinary  of  any  County  shall  fail  to  2;ive  the      Ordinary 

"  «/  «/  t/  o  must      give 

bond  required  of  him  as  Treasurer  of  the  Board  of  Education,  scSiJJjfTj.g^s! 
said  Board  has  power  to  select  some  other  responsible  person  to  "^*'^- 
act  as  such,  who  shall  give  the  requisite  bond  and  security. 

§  1296.  The  Board  may  require  of  the  Treasurer  of  the  School    Additional 
Fund  an  additional  bond,  on  the  terms  required  by  the  Justices  of  required. 
the  Inferior  Courts  of  other  officers. 

8  1297.  If  Such  Treasurer  shall  fail  to  pay  out  any  School   Proceeding 

■'■     •^  "^  against     the 

Fund,  as  required  by  law,  on  knowledge  of  such  failure  coming  to  J''f''^^"i'^^f^'^ 

'  •••  .  ....  failure  to  pay 

the  Board,  they  shall  issue  a  rule  nisi  against  him,  requiring  him 
to  appear  before  them  within  ten  days,  to  show  cause  for  such 
failure,  and  upon  failing  to  show  good  cause,  the  Board  shall  order 
the  Clerk  of  the  Inferior  Court  to  issue  execution  against  him  and 
his  sureties :  said  execution  shall  be  directed  to  all  and  singular 


250 


PT.  1.— TIT.  12.— CHAP.  6.— Education. 


Article  5. — The  Beneficiaries  of  the  Educational  Fund. 


the  Sheriffs  of  the  State,  and  shall  have  the  form  and  effect  of  a 
tax  fi.  fa.  issued  by  the  Justices  of  the  Inferior  Court,  and  said  fi. 
fa.  shall  claim  twenty  per  cent,  per  annum  interest  from  time  of 
default. 

§  1298.  The  Clerk  of  the  Inferior  Court  shall  be  Secretary  of 
Secretary  the  Board  of  Education  in  the  absence  of  the  Ordinary  or  his 

of  Board  of  ^.      ,  ,  .   ,  .      .  , 

Education.    Clcrk,  or  whcn  either  is  interested. 

§  1299.  The  Ordinary  shall  furnish  the  Governor  any  informa- 
ordinary  tiou  he  may  desire  touching  the  plan  of  education  in  the  County, 
to  GoverDor.  and  the  number  of  children  pursuing  different  studies,  and  shall 
annually,  at  the  close  of  the  educational  year,  report  to  the  Gov- 
ernor what  balance,  if  any,  there  is  of  the  Educational  Fund,  and 
what  amount  was  raised  by  the  County  from  other  sources  than 
the  State. 


ARTICLE  Y. 

THE  BENEFICIARIES   OF  THE   EDUCATIONAL  FUND. 


Section. 

1300.  Persons  entitled  to  School  Fund. 

1301.  How  ascertained,  and  by  whom. 


Section. 

1302.  List  may  he  corrected. 


§  1300.  All  children  between  the  ages  of  six  and  eighteen  years. 

Who  enti-  withiu  their  respective   Counties,  are  entitled  to  the  benefits  of 

fund.  said  fund,  under  the  system  that  may  be  adopted  by  the  respective 

Boards  of  Education ;  but  children  of  parents  who  are  unable  to 

educate  them,  children  discarded  by  their  parents,  and  indigent 

orphan  children,  must  first  be  provided  for. 

§  ^  301.  Such  last  mentioned  children  shall  be  ascertained  as 

Poor  chil-  follows  : 

ascertained.  1.  The  Rccciver  of  Tax  Returns  of  each  County  shall  require  of 
each  tax  payer,  when  giving  his  tax  returns,  to  state,  under  oath, 
the  number  of  his  children  and  children  under  his  care  between 
the  ages  of  six  and  eighteen  years. 

2.  As  soon  as  the  digest  is  compiled,  the  Ordinary  shall  select 
from  the  whole  number  the  names  of  those  who,  from  the  poverty 
of  their  parents  or  otherwise,  have  not  the  means  of  being  edu- 
cated, and  shall  add  thereto  such  as  are  in  the  same  condition 
within  his  knowledge  who  have  not  been  returned. 

3.  The  list  returned  by  the  Tax  Receiver,  together  with  the 


PT.  1.— TIT.  12.~CHAP.  6.— Education. 


251 


Article  5. — The  Beneficiaries  of  the  Educational  Fund. 


Ordinary's  selection  therefrom,  shall  be  reported  to  any  panel  of 
Grand  Jurors  at  the  first  Court  held  thereafter,  and  said  Grand 
Jury  shall  examine  said  list,  and  ratify  the  Ordinary's  selection  in 
Tvhole,  or  correct  it,  according  to  their  best  judgment,  and  may 
also  add  to  the  lists  such  as  they  know  have  not  been  returned  to 
them. 

4.  If  the  Grand  Jury,  at  said  term,  fail  to  take  definite  action, 
the  list  of  the  Ordinary  shall  stand. 

5.  When  the  list  is  finally  made  up  it  shall  be  returned  to  the 
Board  of  Education,  and  be  entered  on  the  proper  book  by  the 
Ordinary. 

6.  Any  person  may,  from  time  to  time,  report -to  said  Board 
the  names  of  any  poor  children  not  already  reported,  which,  by 
order  thereof,  shall  be  added  to  the  list. 

§  1302.  If  the  Board  is  satisfied  by  proof  that  any  children  are  List  may  be 

corr6ctG(i 

on  the  list  who  are  not  entitled  to  be  there,  they  have  power  to 
have  them  erased  at  any  time,  and  to  inform  any  teacher  or  other 
person  interested  in  their  action ;  iirovided^  the  system  of  educa- 
tion they  may  have  adopted  renders  it  necessary. 


TITLE    XIII. 

ELECTIONS     BY     THE     PEOPLE. 


CHAPTER    I. 

QUALIFICATION    OF     VOTERS. 


Section. 

1303.  Who  may  vote  for  legislators. 

1304.  Voters  for  other  officers. 

1305.  When  one  may  vote  out  of  County. 


Section. 

1306.  Oath  of  voter  out  of  his  County. 

1307.  Additional  oath  may  be  required. 

1308.  Transferred  voters. 


§  1303.  The  qualification  of  voters  for  members  of  the  General     Quaiifica- 
Assembly  is  contained  in  the  followino;  oath,  which  must  be  taken  tersformem- 

,  ...  bers  of  Leg- 

when  the  managers  of  an  election  require  it :  isiature. 

["I  swear  that  I  have  attained  to  the  age  of  twenty-one  years ;  Voter'soath. 

that  I  am  a  citizen  of  the  United  States,  and  have  resided  for  the 

last  two  years  in  this  State,  and  for  the  last  six  months  in  this 


252       PT.  1.— TIT.  13.— Elections  by  the  People. 


Chapter  1. — Qualification  of  Voters. 


County,  and  have  considered  and  claimed  it  as  my  home,  and  have 
paid  all  legal  taxes  which  have  been  required  of  me  and  "which  I 
have  had  an  opportunity  of  paying,  agreeable  to  law,  for  the  year 
preceding  this  election.     So  help  me  God."]  (a) 

§  1301.  Persons  qualified  to  vote  for  members  of  the  General 
Sucii  oiec-  Assembly,  and  none  others,  are  qualified  to  vote  for  any  other  offi- 

torsmay  ..  ..  .. 

^ote  for  ail  cers,  civil  or  military,  unless   said  privilege  be  enlarged  or  re- 
^^^-  stricted  by  the  Constitution  or  some  special  enactment. 

§  1305.  Any  qualified  voter  for  members  of  the  General  Assem- 

when  eiec-  bly  may  vote  for  any  candidate,  or  upon  any  question  which  is 

vote  in  any  submitted  to  all   the  voters  of  the  State,  in  any  County  of  the 

part    of  the  ^  t  ^    J  J 

state,circuit  State,  and  for  any  candidate  or  question  which  is  submitted  to  all 

or  District.  ?  »/  i 

the  voters  of  any  District  or  Circuit,  in  any  County  of  the  Circuit, 

or  District,  in  which  is  embraced  the  County  of  the  voter's  residence. 

1306.  [A  voter  coming  under  the  preceding  Section  shall  take 

Oath  of  vo-  the  followins;  oath,  when  required  by  the  manasrers  of  an  election : 

ters      under  o  '  ^  J  ^  & 

last  section.  "J  swcar  that  I  have  attained  to  the  age  of  twenty-one  years; 
that  I  am  a  citizen  of  the  United  States,  and  have  resided  for  the 
last  two  years  in  this  State,  and  for  the  last  six  months  in  this 
District  or  Circuit  (as  the  case  may  be),  and  have  considered  and 
claimed  it  as  my  home,  and  have  paid  all  legal  taxes  which  have 
been  required  of  me,  and  which  I  have  had  an  opportunity  of  pay- 
ing agreeable  to  law,  for  the  year  preceding  this  election.  So  help 
me  God."]  (a) 

§  1307.  The  superintendents  may,  in  their  discretion,  or  if  de- 
snperin-  maudcd  by  a  qualified  voter,  compel  a  person  offering  to  vote  to 

may  require  alsO  take  this  Oath  : 

an  addition-  ^  t-t  t  i-iii 

aioathdeny-  "i  swcar  that  i  havc  not  this  day  voted  at  any  election  held  at 
vo'tedbefore!  any  placc  in  this  State  for  any  of  the  candidates,  nor  for  any 
other  person  for  any  of  the  offices  to  be  filled.  So  help  me  God." 
§  1308.  When  any  County,  or  portion  of  a  County,  is  changed 
Voterstrans-  from  ouc  Couuty,  or  ouc  District,  or  one  Circuit  to  another,  the 
one  District,  pcrsous  who  would  havc  been  qualified  to  vote  for  members  of  the 
Circuit  to  General  Assembly  in  the  County,  District,  or  Circuit  from  which 

another      to  ''  .  -^. 

vote  in  lat-  taken,  at  the  time  of  any  election,  shall  vote  in  the  County,  Dis- 

ter  District,        ...  .  . 

etc.  trict,  or  Circuit,  to  which  they  are  removed,  and  if  required  to 

swear,  the  oath  may  be  so  qualified  as  to  contain  this  fact.  This 
provision,  when  applicable,  appertains  also  tp  military  elections. 

(a)  Acts  1865-6,  pp.  80-1. 


PT.  1. — TIT.  13.— Elections  by  the  People. 


253 


Chapter  2. — Election  for  Members  of  the  General  Assembly. 


CHAPTER    II. 

ELECTION  FOR  MEMBERS  OF  THE  GENERAL  ASSEMBLY. 


Sectiox, 

1309.  Holders  of  elections  for  legislators. 

1310.  Oath,  of  superintendents. 

1311.  Before  whom  taken. 

1312.  Election  precincts. 

1313.  Time  of  liokling  elections. 

1314.  "When  freeholders  may  superintend. 

1315.  Elections — how  conducted. 


Section. 

1316.  Penalty  against  superintendents. 

1317.  Grand  Jury  to  examine  lists. 

1318.  Election  blanks — how  furnished. 

1319.  Misconduct  of  managers. 

1320.  Voters  exempt  from  civil  process. 

1321.  Vacancies  for  Legislature. 

1322.  Special  elections — how  conducted. 


Superin- 
tendents to 
take  oath. 


§  1309.  The  persons  qualified  to  hold  such  elections  are  Justices  superin- 
of  the  Inferior  Court,  Justices  of  the  Peace  and  freeholders,  elections  for 
There  must  be  three  superintendents,  and  one  must  either  be  a  the  Leg'isia- 

tvirs 

Justice  of  the  Inferior  Court,  or  a  Justice  of  the  Peace,  except  in 
a  certain  contingency  hereinafter  to  be  set  forth. 

1310.  Before  proceeding  with  the  election,  each  superintendent 
must  take  and  subscribe  the  following  oath: 

''All  and  each  of  us  do  swear,  that  we  will  faithfully  superin- 
tend this  day's  election ;  that  we  are  Justices  of  the  Inferior 
Court,  Justices  of  the  Peace,  or  freeholders  (as  the  case  may  be), 
of  this  County;  that  we  will  make  a  just  and  true  return  thereof, 
and  not  knowingly  permit  any  one  to  vote  unless  we  believe  he  is 
entitled  to  do  so  according  to  the  laws  of  this  State,  nor  know- 
ingly prohibit  any  one  from  voting  who  is  so  entitled  by  law,  and 
will  not  divulge  for  whom  any  vote  was  cast,  unless  called  on  un- 
der the  law  to  do  so.  So  help  me  God."  Said  affidavit  shall  be 
signed  by  the  superintendents  in  the  capacity  each  acts  in  full,  * 

both  as  to  name  and  station,  and  not  by  abbreviation. 

§  1311.   Said  oath  shall  be  taken  before  some  officer  qualified  to    oathofsu- 

T..  i.r»  ,  ^     'n  1  ,1  ,     Perintendent 

administer  an  oath,  it  present,  and  it  none  such  are  on  the  spot,  —before 
and  acting  at  the  time  required,  then  said  Superintendents  may 
swear  each  other,  and  the  oath  shall  be  of  the  same  eifect  as  if 
taken  before  a  qualified  officer. 

§  1312.  Such  election  shall  be  held  at  the  Court  Houses  of  the      Places  of 
respective  Counties,  and  if  no  Court  House,  at  some  place  within  tion.  ° 
the  limits  of  the  County  site,  and  at  the  several  election  precincts 
thereof  (if  any)  established  or  to  be  established.     Said  precincts  But  one  pre- 
must  not  exceed  one  in  each  militia  district.     Such  precincts  are  mmtia"  dS 
established,  changed,  or  abolished  by  the  Justices  of  the  Inferior 
Court  at  a  regular  term  of  the  Court — descriptions  of  which  must  changed,"tc! 
be  entered  on  their  minutes  at  the  time. 


254      PT.  1.— TIT.  13.— Elections  by  the  People. 

Chapter  2. — Election  for  Members  of  the  G-eneral  Assembly. 

§  1313.  The  day  of  holding  the  same  is  the  first  Wednesday  in 
Elections  October,  1861,  and  biennally  thereafter,  and  the  time  of  day  for 

biennial — on  .  . 

yhat  days—  keopinsc  ODcn  the  elections  is  from  seven  o'clock  A.  M.  to  six  o'clock 

during  what  r       o      r 

heiT  ^^  ^^  ^'  ^'  ^^  *^®  Court  House,  and  from  eight  o'clock  A.  M.  to  [three] 
(a)  o'clock  P.  M.  at  the  precincts. 

§1314.  If  by  ten  o'clock  A.  M.  on  the  day  of  the  election,  there 
Three  free-  ig  no  proDor  officor  proscnt  to  hold  the  election,  or  there  is  one, 

holders  may  i        i  i.  7  7 

eKou'^^"^  and  he  refuses,  three  freeholders  may  superintend  the  election,  and 
shall  administer  the  oath  required  to  each  other,  which  shall  be  of 
the  same  effect  as  if  taken  by  a  qualified  officer. 
Manner  of      §  1315.  All  Superintendents  shall  have  such  elections  conducted 

conducting  .       ,,        ^  ,, 

elections,    lu  the  loilowmg  manner  : 

bZio?  ^^"      ^'   -^^^  ^^^^  ^^^^^  ^^  given  by  ballot. 

2.  There  shall  be  kept  by  the  superintendents,  or  by  three 
Listofvot-  clerks  under  their  appointment,  three  lists  of  the  names  of  voters, 

€rs  and  tally      ,  .    ,        ,      n    ,  i  /»     i      • 

sheets  to  be  wliicli  shall  bo  numbered  in  the  order  of  their  votinsr,  and  also 

kept.  o' 

three  tally  sheets. 

3.  As  each  ballot  is  received  the  number  of  the  voter  on  the 
Number  of  list  shall  be  marked  on  his  ballot  before  beina;  deposited  in  the 

voter.  ^         ^ 

box. 

4.  When  any  voter  is  challenged  and  sworn  it  shall  be  so  writ- 

Voterchal-  .        ■,  .  i        t  i       i  i  •      i     n    . 

lenged.        ten  oppositc  his  name  on  the  list,  and  also  on  nis  ballot. 

5.  The  superintendents  may  begin  to  count  the  votes  at  any 
to  be^^coun^  ^^^^  ^^  their  discretion,  but  they  shall  not  do  so  until  the  polls 
date^oiJTcts"  ^^r©  closed,  if  a  candidate  in  person,  or  by  written  authority,  objects. 

6.  When  the  votes  are  all  counted  out,  there  must  be  a  certifi- 
Certificate  catc,  signed  by  all  of  the  superintendents,  stating  the  number  of 

tendents."^  votcs  cach  pcrsou  votod  for  received  ;  and  each  list  of  voters  and 
tally  sheet  must  have  placed  thereon  the  signature  of  the  super- 
intendents. 

7.  The  superintendents  of  the  precincts  must  send  their  cer- 
certificates,  tificates,  and  all  other  papers  of  the   election,  includino;  the  bal- 

etc.tobecar-  '  ^     ^  . 

ried  to  the  lots,  uudcr  the  Seal,  to  the  County  site  for  consolidation,  in  chars^e 

County  site.  ^  ^  '  *'  ^  70 

of  one  of  their  number,  which  must  be  delivered  there  by  twelve 
o'clock  M.  of  the  next  day.  Such  person  is  allowed  two  dollars, 
to  be  paid  out  of  the  County  Treasury,  for  such  service. 

8.  The  superintendents  to  consolidate  the  vote  of  the  County, 
consoMate  niust  cousist  of  all  thoso  who  officiated  at  the  County  site,  or  a 
their'd'ut^  majority  of  them — at  least  one  from  each  precinct.     They  shall 

(a)  Acts  of  1865-6,  p.  24. 


PT.  1.— TIT.  18.— Elections  by  the  People.      255 

Chapter  2. — Election  for  Members  of  the  General  Assembly. 


make  and  subscribe  two  certificates,  stating  the  whole  number  of 
votes  each  person  received  in  the  County  :  one  of  them,  together 
with  one  list  of  voters  and  one  tally  sheet  from  each  place  of  hold- 
ing the  election,  shall  be  sealed  up  and  without  delay  mailed  to  the 
Governor ;  the  other,  with  like  accompaniments,  shall  be  directed 
to  the  Clerk  of  the  Superior  Court  of  the  County,  and  by  him  de- 
posited in  his  office.  Each  of  said  returns  must  contain  copies  of 
the  original  oaths  taken  by  the  superintendents  at  the  Court 
House  and  precincts. 

9.  The  ballots  shall  not  be  examined  by  the  superintendents  or  saiiots  not 
the  bystanders,  but  shall  be  carefully  sealed  in  a  strong  envelope  ^^^^^^^  ' 
(the  superintendents  writing  their  names  across  the  seal),  and  de-  Tobedeiiv- 
livered  to  the  Clerk  of  the  Superior   Court,  by  whom  they  shall  ^^^ 
be  kept  unopened  and  unaltered  for  sixty  days,  if  the  next  Supe- ,  ^J^^  ^^p* 
rior  Court  sits  in  that  time,  if  not,  until  after  said  term ;  after 
which  time,  if  there  is  not  a  contest  begun  about  said  election,  the 
said  ballots  shall  be  destroyed  without  opening  or  examining  the    wiien  de- 
same,  or  permitting  others  to  do  so.     And  if  the  Clerk  shall  vio-  ^  ^^^^  ' 
late,  or  permit  others   to  violate  this  Section,  he  and  the  person    Penalty  of 
violating  shall  be  subject  to  be  indicted  and  fined  not  less  than  one 
hundred,  nor  more  than  five  hundred  dollars.     Such  Clerks  shall  cierktode- 

,  liver  lists  to 

deliver  said  list  of  voters  to  their  respective  Grand  Juries  on  the  G'^nd  Jury 

■*■        ^  — penalty  for 

first  day  of  the  next  term  of  the  Superior  Court,  and   on  failure  foiling. 
to  do  so,  are  liable  to  a  fine  of  not  less  than  one  hundred  dollars 
on  being  indicted  and  convicted  thereof. 

§  1316.  If  said  superintendents  do  not  deliver  said  lists  and       Penalty 
accompaniments  to  said  clerks  within  three  days  from  the  day  of  enntendents' 
the    election  they  are  liable  to  indictment,   and   on  conviction, 
shall  be  fined  not  less  than  fifty,  nor  more  than  five  hundred  dollars. 
Any  superintendent  of  an  election  failing  to  discharge  any  duty  peri^tSdent 
required  of  him  by  law  is  liable  to  a  like  proceeding  and  penalty,  cfuty.^^  ^'^^ 

§1317.  The  Grand  Juries  shall  examine  said  lists,  and  if  any  Grand  Jury 
voter  is  found  thereon  who  was  not  entitled  to  vote  they  shall  ii'^ts.^^^'^^"^ 
present  said  illegal  voter.  If  any  person  is  suspected  of  voting  Foreman 
for  members  of  the  General  Assembly  who  was  not  entitled,  but  iSaiiS"^" 
was  entitled  to  vote  for  some  other  candidate  at  the  same  election, 
the  foreman  of  the  Grand  Jury  may  examine  the  ballot,  and 
that  one  alone,  and  lay  it  before  the  Grand  Jury  and  return  it.  menuSinst 
If  the  superintendents  fail  to  return,  as  required,  the  lists  and  IX."''*^^^' 
the  ballots,  they  must  be  presented. 


256      PT.  1.— TIT.  13.— Elections  by  the  People. 


Chapter  2. — Election  for  Members  of  the  General  Assembly. 


§  1818.  The  Governor  sliall  furnish  the  several  Clerks  of  the 
Blanks  to  Inferior  Court  all  blank  forms  necessary  for  said  elections,  which 

be  furnished  inr»'iiT-  n     i       -r-\  n     t  /-< 

by  Governor  they  shall  lumish  the  Justices  01  the  Peace  of  their  Counties  at 

to  Clerk.  *^  ^  t      n  i  •  i 

least  ten  days  before  election  day,  and  on  failure  to  do  so,  shall 
Penalty  for  l^e  liable  to  a  fine  by  their  Courts  not  exceeding  one  hundred 
SlS'f'    '^dollars. 

§  1319.  If  the  superintendents  or  officers  of  such  election  shall 

Penaityand  make   a   fraudulent  return  thereof,   or    they  or  either  of  them, 

casesuperin-  wMlc  SO  officiating,  shall  influence,  or  attempt  to  influence  or  per- 

tendents  ,,.  , 

make  fraud-  suade   any  voter  not  to  vote  as  he  designed,  or  shall  take  any 

ulentre-  "^  .  •  .  "^ 

turns  or  in-  uiiduc  mcans  to  obtaiu  a  vote,  they  shall  forfeit  for  the  offense  one 

terfere  with  . 

voter.  hundred  dollars,  to  be  recovered  by  information,  and  if  the  per- 

son be  a  Justice,  he  forfeits  his  office  on  proceedings  for  removal. 
§  1320.  No  civil  officer  shall  execute  any  writ,  or  civil  process 
froS**^a/re?t  upon  the  body  of  any  person  qualified  to  vote  at  such  elections 
to,  reuifninf  while  going  to,  or  returning  from,  or  during  his  stay  there,  on  the 
ring'LiTstay  day,  uudcr  the  penalty  of  five  hundred  dollars,  to  be  recovered  by 
tion.  Penal-  action.     A  reasonable  and  full  time  shall  be  allowed  for  the  jour- 

ty  on  oflicer 

for  arrest,     ncy  to  and  irom  the  polls. 

§  1321.  Elections  to  fill  vacancies  for  members  of  the  General 
Twenty  Assembly  take  place  under  the  authority  of  a  writ  of  election, 

days    notice  . 

ofeiection  to  issued  by  the  Governor  to  the  Justices  of  the  Inferior  Court  of 

fill    vacancy  "^ 

fe^Sl-  ^^^^  County  where  the  vacancy  occurs,  who  must  order  and  publish 
a  day  for  holding  the  same,  by  giving  at  least  twenty  days'  notice. 
Elections      §  1322.  All  tlic  provisions   of   this  Chapter  apply  equally  to 
cies,  etc.      elcctions  to  fill  such  vacancies  and  any  other  special  election. 


for  m 

of 

ture. 


CHAPTER    III. 


ELECTION  FOR  GOVEENOR,  MEMBERS  OF  CONGRESS,  ELECTORS  FOR  PRES- 
IDENT AND  VICE-PRESIDENT,  JUDGES  OP  THE  SUPERIOR  COURTS, 
AND  SOLICITORS  GENERAL. 


Article  1. — Provisions  applicable  to  all. 

Article  2. — For  Cfovernor. 

Article  3. — For  Members  of  Congress, 

Article  4. — Electors  for  President  and  Vice-President. 

Article  5. — Judges  of  Superior  Courts  and  Solicitors  G-eneral 


PT.  1.— TIT.  13.— CHAP.  3.— Elections  by  the  People.      257 

Article  1. — Provisions  applicable  to  all. 


ARTICLE   I. 

PROVISIONS     APPLICABLE     TO     ALL. 

Sectiox  1323.    Such  elections — how  conducted. 

§  1323.  The  election  for  the  officers  headinor  this  Chapter  are    Particulars 

^  ,  °  '^^  in  which  el- 

governed  by  the  same  rule  as  elections  for  members  of  the  General  ections    for 

^  *>  Governor, 

Assembly  in  the  followinsi;  particulars :  members  of 

•^  c>r  Congress, 

1.  In  the  oaths  to  be  taken  by  the  voters.  ?oiifo"r^Pre- 

2.  In  the  class  of  persons  to  hold  the  elections  and  the  oath  vic^^presf. 
to  be  taken  by  them.  '  ^^erned'  % 

3.  In  the  places  and  the  time  of  the  day  to  hold  them.  STiections^ 

4.  In  the  manner  of  conducting  and  returning  them,  including  J? iSeTegTs- 
all  special  elections,  and  in  the  duty  of  the  Clerks  of  the  Superior  ^  ^^^■- 
Courts  and  the  Grand  Juries. 

5.  In  the  several  penalties  attached  to  the  Superintendent  or 
other  persons. 

6.  In  the  furnishing  of  blanks  by  the  Governor. 

7.  In  all  other  respects  where  applicable,  and  there  is  not  a  con- 
trary provision  by  law. 


ARTICLE  IL 

EOB  GOVERNOR. 

Sectiom.  j  Section. 

1324.  Governor's  election,  etc.  1      1325.  Retujga  of  vote  for  Governor. 

§  1324.  The  Governor  is  elected  biennially,  at  the  same  time     Governor 

to  1)G  clcctccl 

when  members  of  the  General  Assembly  are  regularly   elected,  Menniaiiy. 
and  a  vacancy  in  the  office  is  to  be  filled  as  required  by  the  Con- 
stitution and  the  regulations  of  this  Code  elsewhere  in  conformity  how^mS" 
thereto. 

§  1325.  At  the  election  for  Governor  a  third  packasie  must  be       separate 

1  •     .  'c  r»     1        /^  1  o  package 

made  up  containing  a  certificate  of  the  Governor's  vote  alone,  to-  ^^'th  certih- 

r^  '  cate  of  vote 

gether  with  the  other  papers   of  the  election,  as  in   the  case  of  ^^^  Govcfn- 

"  ^     ^  '  or  to  be  sent 

members  of  the  General  Assembly,  which  shall   be  directed  by  ^^  ™'^"'  ^*<'- 
mail  to  "the  President  of  the  Senate  and  Speaker  of  the  House 
of  Representatives." 
17 


258      PT.  1.— TIT.  13.— CHAP.  3.— Electiox^s  by  the  People. 

Article  3. — For  Members  of  Confess. 


ARTICLE  III. 


FOR    MEMBERS    OF    CONGRESS. 


Section. 

1326.  Congressmen — when  elected. 

1327.  Elections  for  extra  sessions. 

1328.  Qualification  of  voters. 


Section. 

1329.  Proclamation  of  result. 

1330.  Election  in  case  of  a  tie. 

1331.  Commissions — when  applied  for. 


§  1326.  Members  of  the  House  of  Representatives  of  the  United 
Elections  Statos  ConsTross  are  elected  at  the  same  time  and  places  that  the 

for  members  /-^  a 

of  Congress.  Govomor  and  members  of  the  General  Assembly  are  regularly 

elected,  by  the  voters  of  their  respective  Congressional  Districts. 

§  1327.  If  an  extra  session  of  Congress  should  be  called  after 

Governor  the  expiratiou  of  the  Cons^ressional  term,  and  before  the  next  resc- 

must    order  i.  o  ^  o 

an   election  ^j^r  time  for  holdinsT  such  elections,  the  Governor  must  issue  his 

— when.  o  y 

proclamation  ordering  an  election  of  such  Representatives  for  such 
extra  session. 

§  1328.  Besides  the  qualifications  required  by  the  Constitution, 
Candidate  a  residence  of  one  year  next  preceding  the  day  of  election  in  the 

must  reside      .  ,,.,„,. 

one  year  in  district  whoro  the  Candidate  oiiers  is  necessary  to  make  him  eligi- 

districttobe  "^  ° 

eligible.  ])\q  to  clcction. 

§  1329.  Within  twenty  days   after  the   election   the   Governor 
Governor  shall  couut  UD  the  votos,  and  immediately  thereafter  issue  his  proc- 

to   count  up  -"^  '  ^  ^ 

votes,  etc.  lamation,  declaring  the  person  having  the  highest  number  of  votes, 
and  otherwise  qualified,  to  be  duly  elected  to  represent  this  State 
in  the  House  of  Representatives  of  the  United  States,  and  for 
what  period. 

§  1330.  If  two  or  more  persons,  equally  qualified,  should  have 
In  case  of  the  Same  number  of  votes,  the  Governor  shall  issue  his  proclama- 

a     tie    new  '  ^ 

deTed^^  ^^'  ^^0^)  Ordering  a  new  election,  in  not  less  than  thirty  days. 

§  1331.  If  any  person  duly  elected  as  aforesaid  shall  not,  with- 

Members  jn  thirty  days  after  the  Governor's  proclamation,  apply  for  his 

ply  for  corn-  commissiou,  the  Governor  shall  order  a  new  election,  as  prescribed 

mission     in  '  '  r 

thirty  days,  jj^  ^^q  preceding  Section,  and  vacancies  for  any  cause  are  filled  in 
like  manner. 


PT.  i._TIT.  13.-~-CHAP.  3.-~-Elections  by  the  People.      259 


Article  4, — Electors  for  President  and  Yice-President. 


ARTICLE  IT. 

ELECTORS  FOR  PRESIDENT   AND   VICE-PRESIDENT. 


Section. 

1332,  Presidential  Electors — when  chosen 

1333.  When  and  where  to  cast  vote, 
1334:.  Vacancies — how  filled. 

1335.  Majority  failing  to  meet. 


Section. 

1336.  Electoral  college — hoAV  organized. 

1337.  Messenger  to  be  chosen. 

1338.  Pay  of  Electors  and  Secretary. 


§1332,  On  tke  first  Monday  in  November,  1868,  and  every    Dayofei- 


ection  for  El- 

fourth  year  thereafter,  until  altered  by  act  of  Congress,  there  shall  ^^tors  of 
be  an  election  for  Electors  of  President  and  Vice-President  of  the  pJ.eaidSJr" 
United  States. 

§  1333.  On  the  twentieth  day  after  said  election  shall  have  taken     Governor 
-place,  it  is  the  duty  of  the  Governor  to  consolidate  the  several  re-  date  returns 

^  ^  •^  _  ^  and     notify 

turns  and  immediately  notify  those  persons  of  their  election  who  tiie  persons. 
have  received  a  vote  amounting  to  a  majority,  and  to  require  their 
attendance  at  the  Capitol  on  the  first  Monday  in  December  there- 
after to  cast  the  vote  of  the  State  on  the  Wednesday  following  at 
twelve  o'clock  m. 

§1334,  In  the  event  all,  or  a  majority  of  said  Electors  may  not  Aiiorama- 
have  received  a  majority,  the  Governor  shall  communicate  the  fact  ectors    fail- 

ID*'*       to      TQ" 

to  the  General  Assembly,  if  in  session,  and  if  not,  he  shall  issue  cefve  a  ma- 

.  ,  .         .  j  o  r  1 1  y     of 

his  proclamation  convening  them  in  time  to  secure  the  vote  of  the  ^otes    cast, 
State  in  the  Electoral  Colkge.     The  General  Assembly  shall,  by 
joint  ballot,  elect  as  many  Electors  as  have  not  received  said  ma- 
jority.    If  a  majority  of  Electors  have  been  chosen  by  the  peo- 
ple, they  may  fill  the  remaining  vacancies  themselves  by  ballot, 
which  election  shall  be  communicated  to  the  Governor.     If,  when 
the  Electors  elected   by  the  people,  or  by  the  General  Assembly,      Electoral 
or  some  by  each,  convene  at  the  Capitol,  any  of  their  number  may  fiu^'^^S 
not  be  present  at  the  time  specified  for  counting  the  vote,  a  ma-"^^'^^* 
jority  of  the  elected  may  fill  all  vacancies,  which  shall  be  duly 
•communicated  to  the  Governor. 

§  1335.  If  a  majority  fail  to  attend  by  said  Wednesday  at  noon,    on  failure 
from  providential  cause,  those  who  do   attend  may  adjourn  from  ofeiSi-sto 
day  to  day  for  ten  days,  and  if  a  majority  is  not  present  at  the 
expiration  of  that  time,  the  Governor  shall  convene  the  General 
Assembly  on  ten  days'  notice,  who  shall  fill  the  vacancies  by  elec- 
tion. 

§  1336.  The  electors,  when  assembled  to  cast  the  vote,  shall 


260      PT.  1,— TIT.  13.— CHAP.  3.— Electtions'  by  the  Peoplk 


Article  5. — Judges  of  the  Superior  Courts  and  Solicitors  General. 


Eieetorai  choosG  a  President  of  their  body  from  their  number,  and  a  Secre- 

CoUege      to  ,  , 

chooseaPre-  tarv  not  of  their  number  ;  said  Secretary  shall  make  a  record  of 

sident,  etc.  .  . 

their  proceedings  in  a  book  from  the  Executive  Department  kept 
for  that  purpose. 

§  1337.   Such  Electors  shall  elect,  by  a  majority  vote,  a  mes- 

Electoral  senger  to  convey  the  vote  of  Georgia,  and  shall,  in  regard  to  that 

choose  a  Q^Y^^  g^n  other  matters,  proceed,  accordinp;  to  the  acts  of  Congress 

Messenger.  ?   r  7  o  o 

in  such  cases  made  and  provided. 

§  1338.   The  pay  of  Electors  shall  be  eight  dollars  per  day  for 
Pay  and  evory  day  required  in  remainino;  at  the  Capitol  on  their  mission,. 

mileage  of  »^  «^  ^  o  i  -' 

Electors,      g^j^^  eight  dollars  for  every  twenty  miles  in  going  to  and  returning 

therefrom,  said  mileage  to  be  computed  as  that  of  members  of  the 

and  of  their  General  Assembly.     The  pay  of  the  Secretary  shall  be  one  hun- 

Secretary.  .  . 

dred  dollars,  all  of  which  is  to  be  paid  either  out  of  the  contingent 
fund,  or  out  of  any  money  in  the  Treasury,  not  otherwise  appro- 
priated, in  the  discretion  of  the  Governor. 


ARTICLE  V. 

JUDGES   OF   THE    SUPERIOR^  COURTS   AND   SOLICITORS    GENERAL, 


Section. 

1339.  Judges — when  elected. 

1340.  Proclamation  of  result. 

1341.  Oath  of  Judges — how  taken,  etc. 


Section. 

1342.  New  election — when  ordered. 

1343.  Solicitors  General — when  elected, 

1344.  Must  give  bond. 


§  1339.  The  election  for  Judges  of  the  Superior  Court  takes 
election  for  placc  ou  tho  first  Wednesday  in  January  next  preceding  the  expi- 

Judges    eu-  r.  xi     •  •      • 

perior  Court  ration  01  their  commissious. 

§  1340.  The  Governor,  together  with   the   Secretary  of  State, 

Governor  shall,  within  twcnty  days  after  the  election,  count  the  votes,  and 

S count *^S!e  ^^^-^^j  immediately  thereafter,  issue  his  proclamation  declaring  the 

votes,  etc.    persou  rcceiviug  [a   majority  of  the  votes  cast]  (a)  for  Judge  in 

each  Circuit  to  be  elected,  and  also  requiring  said  person  elect  to 

appear  before  him,  or  two  or  more  Justices  of  the  Inferior  Court 

of  the  County  of  his  residence  to  take  and  subscribe  the  oaths  of 

office,  unless  otherwise  specially  permitted. 

§  1341.  When  said  oaths  are  taken  before  the  Justices  afore- 
cie?k^orti?f  said,  they  shall  be  entered  by  the  Clerk  of  the  Inferior  Court  of 
Court,  etc?  "^  su«h   Couuty  ou   their   minutes,   and  they  shall   transmit,  under 

(a)  Constitution— Art.  4,  Sec.  3,  Par,  1. 


PT.  1.— TIT.  13.— Electioi^^s  by  the  People.  261 

Chapter  4. — For  Justices  of  the  Inferior  Court,  Ordinary,  and  County  Officers. 


their  hands  and  seals,  to  the  Governor  copies  of  the  same  "without 
delay,  when  the  commissions  shall  be  issued. 

S  1342.  If  the  person  elect  shall  fail  to  appear  and   take  the    o^^e  de- 

"  A  ^  ^  clared      va- 

oath  within  thirty  days  from  the  dat^  of  said  proclamation,  unless  ^^^*'  ^^®- 
providentially  prevented,  the  Governor  shall   declare  said    office 
■vacant,  proceed  to  fill  the  vacancy,  and,  by  proclamation,  order 
another  ele<5tion  to  take  place  within  thirty  days  from  the  date  of 
his  proclamation  for  said  purpose. 

§  1343.  Solicitors  General  are  elected   on  the  first  Wednesday  ^  ^Ek<;^^«^ 

•^    for  Solicitors 

in  January  next  pre^seding  the  expiration  of  their  commissions.      General. 
§  1344.   The  Governor  shall  proclaim  the  election  of  Solicitors ,   Governor 

"  ■»■  to       declare 

General  in  the  same  manner  that  he  does  that  of  Judges,  with  the  J^^Jj^  is  eiec- 
■difference  that  he  shall  require  them  to  execute,  before  such  Jus- 
tices, to  be  approved  by  them,  their  official  bonds,  which  shall  be ,   Solicitors 

^  r  L  ^  y  y  to  gjye  bond 

hj  said  Clerk  transmitted  to  the  Governor,  together  with  a  certi- 
fied copy  of  the  oaths  from  his  minutes- 


CHAPTER    IT. 

POR   JUSTICES   OF  THE    INFERIOR   COURT,  ORDINARY   AND 

COUNTY  OFFICERS. 


foECTIOX. 

1345.  Election  of  Cotinty  ofFiccre,  etc.. 
1346-  Ordinaries  and  J.  I.  C.'s,  etc. 
1347.  Oilier  officers — when  elected. 


Section. 

1348.  County  Treasurer — when  elected. 

1349.  Election  of  other  County  officers. 
Io50.  Notice  of  election — how  given. 


§  1345.  Article  I.  of  Chapter  IIL,  Section  1323,  applies  to  the     Elections 

•^  .  r  ->  y      r-ir  f^^.  Justices 

officers  whose  elections  are  provided  for  in  this  Chapter.  of    inferior 

^  ^  ^  Court,  etc. 

§  1346,  Justices  of  the  Inferior  Court  and  Ordinaries  are  rj^^^  ^^ 
elected  on  the  first  Wednesday  in  January  next  preceding  the  ex-  ^^^^^^^"^ ®*<'- 
piration  of  their  commissions. 

§  1347.   Clerks  of  the  Superior  and  Iriferior  Courts,  and  Sher-     Time   of 

Tpm/^n  m  -rt  '  r^  r-t  t/-m  electing  oth- 

aiis,  lax  Ooliectors,  Tax  lieeeiv-ers,  County  Surveyors,  and  C or o -  er county of- 

'^  fleers. 

ners,  are  elected  on  the  same  day  and  month  mentioned  next  pr-e- 
ceding  the  expiration  of  their  commissions. 

§  1348.   Cousity  Treasurers,  where  ele-cted  by  the  Yoters,  are  county  trea- 

,  ,  ,  .  ,,  surers,  etc. 

elected  at  the  same  time,  sunnually. 

§  1349.  The  election  of  any  officer  not  mentioned,  whose  duties  General  pro- 


262  PT.  1.— TIT.  13.— Elections  by  the  People. 

Chapter  5. — For  Justices  of  the  Peace  and  Constables. 


vision  as  to  are  entirely  of  a  County  nature,  sball  be  elected  at  the  same  timev 

time  of  elee-  -^  •  i     i    r» 

tion,  etc.      unless  Otherwise  provided  for. 

§  1350.  When  either  of  the  officers  mentioned  are  to  he  elected^ 
Clerk  of  In-  ^hc  Justicos  of  the  Inferior  Court  shall  cause  their  Clerk  to  give- 

lerior  C-ourt  ^ 

to  give  no-  thirty  days'  notice  of  the  officers  to  be  elected,  and  the  time  of  the 

tice  ol  elec-  J         J  ? 

tions.  election,  which  shall  be  advertised  at  the  door  of  the  Court  House^ 

and  also  in  some  gazette  printed  in  the  County,  if  any. 


CHAPTER    Y. 

FOR   JUSTICES    OF    THE   FEA.CE   AND    CONSTABLES. 

SeCTIOX.  ;  &ECTIOX. 

1:351.  Election  of  Justices  of  the  Peace.     1       1354.  Election — how  negulated. 

1552.  How  superintended.  j       1355.  Election  of  Constables. 

1553.  RetxtTBS — how  made..  I       1356.  Constable's  ele«tion,  etc. 

§1351.  Justices  of  the  Peace  are  elected  on  the  first  Saturday 

Time  of  el- in  January  next  preceding   the  expiration   of  their   commissions 

Justices    of  by  the  voters  of  their  respective  districts,  provided  they  have  resi- 

the      Peace.     '^      .  .        .  ^  .  ^  ,  .  "^ 

etc.  ded  in  the  district  as  much  as  thirty  days,  immediately  preceding 

the  election,  and  are  otherwise  qualified.     The  election  must  be 

Place  of  held  at  the  place  of  holding  Justice's  Court  for  the  district :  if 

election..  -i  o 

none,  then  at  the  election  precinct;  if  tio  election  precinct,  then 

at  some  place  in  the  district  named  hj  the  Justices  of  the  Inferior 

Court,   of  which  ten   days'  written  notice  must  be   sjiven  in  the 

districts 

§  1352.  Such    elections  shall  be  superintended    \yj  three  free- 

who  shall  holders  of  the  district,  who  shall  take  the  oath  required  in  Chap- 
superintend  .  .  o-ir 
elections,     ter  II.,  of  this  Title,  Section  IblO. 

§  1353.   Said  superintendents  shall  transmit  one  return  of  said 

E-turns— to  elcctions  to  the  Governor  and  another  ta  the  Clerk  o-f  the  Supe- 

'  rior  Court  of  the  County,  who  shall  keep  the  same  on  file.     The 

Ballots  to  be  ballots  shall  be  likewise  sealed  up,  and  the  number  of  the  district 

sealed,  etc.  i      j     i 

marked  thereon  and  delivered  to  such  Clerk. 

§1354.   The  laws  ^overnins:  the  elections  f3r  members  of  the 
Elections—  General  Assembly  govern    in  the    elections    of   Justices  of   the 

how  govern-  ttt  •  •  •   \_ 

ed.  reace  whenever  they  may  be  applied  and  are  not  inconsistent  with 

those  of  this  Chapter. 


PT.  1. — TIT.  13. — Elections  by  the  People. 


263 


Chapter  6. — Contested  Elections. 


§  1355.   Constables  are  elected  on   the  same  day,  month,  and     Time  of 

place  that  Justices   of  the  Peace  are,  and  by  the  same  class  of  election;  vo- 
ters ;    term 
voters,  once  in  two  years.  of  office, 

§  1356.  Their  elections  are  to  be  conducted  in  the  same  manner    justice  of 

as   those  of  Justices   of  the   Peace,  with  the   exceptions  that —  preside    at 

Constables'' 

1.  A  Justice  of  the  Peace  must  be  one  of  the  persons  presiding  election    if 

^^      ^  ^  °  not  a  candi- 

at  a  Constable's  election,  if  there  is  one  in  commission  to  be  had,  <iate. 


and  he  is  not  a  candidate  at  the  same  election. 

2.  The  returns  must  be  made  to  Clerk  of  the  Inferior  Court  of  ^^^^^^^°®  J^ 
the  County.  Scou^t"'" 


CHAPTER   VI. 


CONTESTED      ELECTIONS. 


Section. 

1357.  Elections — how  contested. 

1358.  In  case  of  Legislators. 

1359.  Ballots  may  be  examined. 


Section. 

1360.  Set  off  of  illegal  votes. 

1361.  Contents  of  Bailiffs'  elections. 

1362.  What  defeats  election. 


§  1357.  When  the  election  of  a  person  by  the  people  to  any  Proceedings 

m  ••  '      '  n  ^        r^  r       ^  11^^    cases    of 

office  requiring  a  commission  from  the  Governor  is  contested  the  contested ei- 

_  ^  °  ections. 

proceedings  are — 

1.  The  adverse  party  shall  have  five  days'  notice  in  writing  of 
the  intention  to  contest,  and  the  grounds  of  the  contest. 

2.  The  notice  shall  state  the  time  and  place  where  the  contes- 
tant intends  to  take  testimony,  and  the  names  of  the  witnesses,  if 
any. 

3.  The  elect  shall  give  like  notice  of  the  time  and  place  where 
he  intends  to  take  testimony,  and  the  names  of  witnesses,  if  any. 

4.  Either  party  may  appear  by  himself,  or  attorney,  or  both, 
and  cross-examine  the  witnesses. 

5.  At  the  time  of  taking  testimony  any  judicial  officer  of  the 
County  w^here  the  testimony  is  taken  may  preside  to  preserve 
order,  to  swear  witnesses,  and  to  see  that  the  testimony  is  fairly 
and  impartially  taken  down,  but  all  the  testimony  offered  must  be 
written  down.  Said  officer  has  the  power  to  subpoena  witnesses 
and  compel  their  attendance,  if  in  the  State,  and  to  issue  commis- 
sions to  take  testimony  of  persons  out  of  the  State,  and  to  adjourn 
from  day  to  day. 


264  PT.  1.— TIT.  13.— Elections  by  the  People. 

Chapter  6. — Contested  Elections. 


6.  All  the  papers  and  proceedings,  or  copies  of  tliem,  must  be 
transmitted  to  the  Governor,  certified  to  by  the  presiding  officer, 
or  agreed  to  bj  the  parties. 

7.  When  the  Governor  has  notice  of  an  intention  to  contest,  he 
shall  not  issue  the  commission  until  the  contest  is  decided,  or  the 
time  has  elapsed  for  it  to  begin. 

8.  Both  parties  may  appear  bj  themselves  and  counsel,  and 
be  heard  before  the  Governor,  who  shall  have  both  notified  of  the 
day  when  he  will  hear  the  contest. 

9.  Testimony  going  to  prove  the  illegality  of  a  vote,  and  the 
want  of  qualification  in  a  voter,  must  be  taken  within  thirty  days 
from  the  day  of  the  election. 

10.  No  proceedings  can  be  begun  to  contest  an  election  after 
the  Governor  has  issued  the  commission. 

§  1358.   The  proceedings  to  contest  the  seat  of  a  member  of  the 
Proceedings  General  Assembly  are  the  same,  and  may  be  transmitted  to  the 

Tvnen  seat  of  •'  ^  j 

L^Tature^  Govcmor,  who  shall  send  the  same,  immediately  after  the  organ- 
is  contested,  izatiou,  to   the  presiding  officer  of  the   House  where  the  contest 
lies,  or  may  be  sent  direct  to  such  presiding  officer. 

§  1359.  When  an  election  is  contested,  on  the  ground  of  illegal 

When  sus-  votcs,  any  of  whom  it  is   claimed   on   affidavit   can   probably   be 

lots  may  be  provon  bv  resort  to  the  ballots,  specifyinor  what  ballots,  it  is  the 

examined.      r  J  ?     r  J       o  J 

duty  of  the  Clerk  of  the  Superior  Court  to  deliver  the  same,  to- 
gether with  the  list  of  voters,  to  the  person  who  presides  at  the 
taking  of  testimony,  who  shall  examine  said  suspected  ballots,  and 
none  other,  and  have  put  down  as  part  of  the  testimony  their 
contents,  and  all  other  testimony  attacking  and  defending  their 
legality. 

§  1360.  Illeocal  votes  bv  the  method  aforesaid,  and   otherwise, 
Illegal  votes  mav  bc  provcu  by  both  parties,  and  if  such  are  proven  on  both 

set  off  each     .     "  J  .     r  ^  r 

other     and  sidcs  ouc  shall  Stand  aojainst  another,  and  he  is  elected  who  has 

highest  ^ 

number    oi  \}^q  greatest  numbcr  of  legal  votes.     All  are  considered   legal  not 

legal     votes  o  c  c 

elects,  etc.    pj-Qven  to  be  illegal. 

§  1361.   In  all  elections  for  Constables,  corporation  officers,  or 
Who  decides  Other  officers  not  provided  for  above,  contests  as  to  elections  shall 

contest       in  ^ 

Constables'   be  heard  before  and  decided  by  the  Court  or  persons  who  bv  law 

election.  _  ^  l  %, 

issue  the  certificates  of  election.     For  each   day  an   officer   pre- 

Compensa-  sidcs  in  hearing  such  contest  he  shall  receive  two  dollars,  to  be 

siding   ?ffi-  paid  by  the  losing  party,  and  for  which  such  Justice  may  issue  a 

cer.  f,     y, 

fi,  fa. 


PT.  1. — TIT.  14. — Elections  by  the  General  Assembly.      265 

Chapter  1. — For  United  States  Senators. 
§1362.  No  election  shall  be  defeated  for  non-compliance  with  Election  not 

■^  void  bj'  rea- 

the  requirements  of  the  law,  if  held  at  the  proper  time  and  place  son  of  form- 
bj  persons  qualified  to  hold  them,  if  it  is  not  shown  that  by  that 
non-compliance  the  result  is  different  from  what  it  would  have  been 
had  there  been  a  proper  compliance. 


TITLE    XIV. 

ELECTIONS    BY    THE    GENERAL    ASSEMBLY. 


CHAPTER    I. 

FOR  UNITED  STATES  SENATORS. 

Section  1363.  Election  of  Senators  to  Congress. 

§1363.  The  elections  for  Senators  in  the  United  States  Con-    senatorsin 
gress  from  this   State,  shall  be  held  by  the   General  Assembly  when  eiect- 
during  the  sitting  or  session  which  immediately  precedes  the  be- 
ginning of  the  term  which  they  are  to  fill. 


CHAPTER  II. 

FOR    OTHER    OFFICERS. 

Section.  I  Section. 

1364.  Judges  of  the  Supreme  Court,  etc.     '        1365.  All  elections  by  Legislature — when. 

§1364.  The  Judges  of  the  Supreme  Court,  the  Secretary  of  Time  of  ei- 
State,  the  Comptroller  General,  the  State  Treasurer,  Printer,  and  es  supreme 
Bank  Directors,  are  elected  by  the  same  rule  as  to  time. 

§  1365.  All  ofiicers   created  for  the  service  of  the  State,  the  Legislature 
election  of  which  is  not  given  to  the  people,  or  some  other  tribunal,  officers,  etc. 
are  elected  by  the  General  Assembly,  in  the  same  manner  and 
time  as  the  officers  elected  by  them. 


266      PT.  1.— TIT.  15.— CHAP.  1.— Police  Regulations,  etc. 

Article  1. — The  Trustees. 


TITLE    XV. 


POLICE  AND    SANITARY    REGULATIONS 


CHAPTER  I. 

LUNATIC    ASYLUM. 


Article  1. —  The  Trustees. 

Article  2. — The  Superintendent. 

Article  3. — Admission  and  Disposition  of  Patients. 


ARTICLE  I. 


the   trustees. 


Section. 

1366.  Management  of  Asylum. 
13o7.  Trustees— how  appointed. 
.  1368.  Authority  of  Trustees. 


Section. 

1369.  Officers— how  appointed. 

1370.  Bond  of  Treasurer. 

1371.  Annual  Report  of  Trustees. 


m  e 

Trustees 


§  1366.  The  State  Lunatic  Asylum  at  Midway,  near  Milledge- 
Lunatic  yille,  is  solely  the  property  of  the  State,  and  is  under  the  man- 
agement of  three  Trustees. 

§  1367.  Said  Trustees  are  biennially  appointed  by  the  Gover- 
Appoiflt-  nor,  on  the  first  Monday  in  December,  and  in   such  manner  that 

)  n  t      of  '  "^  \ 

one  of  the  Trustees  shall  be  continued  in  office  for  a  second  term, 
that  there  may  be  always  one  member  of  the  Board  who  has  ex- 
perience in  the  affairs  of  the  Asylum. 
§  1368.  They  have  authority — 

1.  To  prescribe  all  the  rules  and  regulations  for  the  manage- 
Authority  mcut  of  the  institution,  not  conflicting:  with  the  law. 

of  Trustees.         ^      ^n  i  i      • 

2.  To  appoint  all  the  officers,  point  out  their  duties,  and  fix  their 
salaries. 

3.  To  create  such  other  offices,  and  select  the  incumbents,  if  in 
their  judgment  such  is  necessary  to  an  efficient  administration. 


PT.  1.— TIT.  15.— CHAP.  1.— Police  Regulations,  etc.       26T 


Article  1. — The  Trustees. 


4.  To  remove  from  office,  when  the  incumbents  fail  to  discharge 
well  their  duties,  or  are  guilty  of  any  immoral  or  unfaithful  eon- 
duct,  and  cause  to  be  prosecuted  any  officer,  or  other  person,  who 
shall  assault  any  inmate  of  said  institution,  or  use  toward  such 
any  other  or  greater  violence  than  the  occasion  may  require. 

5.  To  hold  in  trust  for  said  Asylum  any  grant  or  devise  of  land, 
or  bequest  or  donation  of  money,  or  other  property  for  the  gen- 
eral use  of  the  institution,  or  the  particular  use  defined. 

6.  To  visit  the  institution  monthly  by  at  least  one  of  the  Board, 
semi-annually  by  a  majority,  and  annually  by  all  of  them,  at  such 
time  as  they  may  agree  upon. 

7.  To  bring  suit  in  their  names  for  any  claim  the  institution 
might  have,  whether  arising  upon  contract  or  tort. 

§  1369.  The  officers  of  the  Asylum,  appointed  by  the  Trustees,     other  om- 

.         '^  .    .  '^  cers  appoin- 

are  a  Superintendent,  an  Assistant  Physician,  a  Treasurer,  a  Stew-  •ed  by  the 

f  '  .  .  Trustees.  . 

ard.  Assistant  Steward,  and  Matron,  whose  salaries  are  paid  quar- 
terly out  of  the  annual  appropriations. 

§  1370.  The  Treasurer  must  give  bond  and  security  in  the  sum     Bond  of 

*^  Treasurer. 

of  five  thousand  dollars. 

§1371.  At  the  close  of  each  fiscal  year,  which  terminates  on  Annual  re- 
the  first  day  of  October,  the  Trustees  shall  make  to  the  Gover-  tees. 
nor,  to  be  by  him  laid  before  the  General  Assembly,  in  connec- 
tion with  his  annual  message,  a  full  report  of  the  condition  of  the 
Asylum,  in  all  its  departments,  [embracing  the  amount  of  each 
kind  of  provisions,  drugs,  clothing,  and  bedding  purchased ;  of 
whom  purchased,  price  paid,  and  aggregate  cost ;  number  of  per- 
sons received,  died,  and  discharged ;  dates  of  reception,  discharge, 
and  death  ;  male  and  female,  pauper  and  pay  patients,  and  par- 
tial pay,  if  any  ;  and  also  whether  payment  was  made  in  cloth- 
ing, provisions,  or  currency.]  (a) 


ARTICLE  II. 

THE     SUPERINTENDENT. 

Section.  |  Section. 

1372.  Must  be  a  physician.  1        1373.  Duty  of  Superintendent. 

§1372.  The  principal  officer   of  said  Asylum  is  the   Superin-  superinten- 
tendent,  who  shall  be  a  skillful  physician.  ^'^"^^ 

(a)  Acts  of  1865-6,  p.  24 


268      PT.  1.— TIT.  15.— CHAP.  1.— Police  Regulations,  etc. 

Article  2. — Tlie  Superintendent. 

§1373.  It  is  his  duty— 

1.  To  reside  constantly  on  the  premises,  and  devote  his  profes- 
dS^dJSes  sional  services  exclusively  to  the  use  of  the  Asylum,  for  which 

purpose  he  must  be  furnished  with  a  suitable  residence. 

2.  To  take  charge  of  and  exercise  control,  subject  to  the  Trus- 
tees, over  every  department  of  the  institution,  and  have  control 
over  all  resident  officers,  attendants,  and  servants  employed  therein. 

3.  To  discharge  all  duties  any  way  connected  with  the  restora- 
tion to  health  or  sanity  of  the  inmates. 

4.  To  make  an  annual  report  to  the  Trustees,  on  the  first  day 
of  October,  of  all  the  affairs  of  the  institution  under  his  super- 
vision, [and  shall  account  for  all  liis  expenditures  on  vouchers,  in 
the  same  form  as  those  which  are  made  in  accounting  for  disburse- 
ments in  the  Commissary  Department  of  the  United  States.]  (a) 


ARTICLE  III. 

THE   ADMISSION,    MANAGEMENT,  AND    DISCHARGE   OF    PATIENTS. 


Sectiox. 

1374.  "Who  may  be  inmates. 

1375.  Inmates — how  classified. 

1376.  Apartments  of  Asylum. 

1377.  Georgians  preferred. 

1378.  Georgia  pay  patients. 

1379.  Non-resident  pay  patients. 

1380.  Pay  patients  classified. 

1381.  Certification  of  pauper  patients. 

1382.  Support  of  pauper  patients. 

1383.  Paupers  to  pay — when. 

1384.  Clothing,  etc.,  of  discharged  paupers 


Section. 

1385.  Inmates  may  be  tried. 

1386.  Trial — how  demanded. 

1387.  Admission  of  inebriates. 

1388.  Inebriates — how  kept. 

1389.  Insane  negroes,  etc. 

1390.  Insane  convicts. 

1391.  Convicts — how  supported. 

1392.  Cured  convicts — how  disposed  of, 

1393.  Uncertified  patients. 

1394.  Re-commitment  of  inmates. 

1395.  Insane  criminals. 


Who  maybe      §1374.  Porsous  who  may  bccomc  inmates  of  said  Asylum  are 
Asylum.       either  lunatics,  idiots,  epileptics,  or  demented  inebriates. 


Classifica- 
tion of  in- 
mates. 


1375.   The  inmates  are  divided  into  the  following  classes: 

1.  Pay  or  pauper  patients  residents  of  this  State. 

2.  Pay  patients  being  non-residents. 

3.  Insane  Penitentiary  <;onvicts, 

4.  Insane  negroes,  in  certain  cases. 

§  1376.  The  Trustees  of  the  Asylum  shall  see  that  proper  and 
Asylum  to  distinct  apartments  are  arranged  for  said  patients,  so  that  in  no 

be     divided  i  .  ^  i 

into  apart-  casc  shall  the  negro  and  the  white  person  be  together,  nor  the 
Penitentiary  convicts  with  either,  and  males  and  females  shall  be 
kept  separately. 


(a)  Acts  of  1865^6,  p.  34. 


PT.  1.— TIT.  15.— CHAP.  1.— Po-LiCE  Regulations,  etc.      269 


Article  S.^The  Admission,  Management,  and  Discharge  of  Patients. 
§  1877.   Citizens  of  our  own  State  shall  have  preference  to  non-  Georgia  in- 

•*•  n>ates     pie- 

residents  when,  at  the  time  of  the  application,  all  can  not  be  ac-  ^^rred. 
commoclated,  and  if  such  a  contingency  should  happen,  it  must  be 
reported  to  the  Governor  without  delay,  who   shall  communicate 
the  fact  to  the  General  Assembly. 

§  1378.  A  pay  patient  resident  of  this   State  shall  not  be  ad-      Eesident 
mitted  unless  accompanied  by  authentic  evidence   of  lunacy,  ac — how    ad- 
cording  to  law,  or  there  is  produced  the  certificate  of  three  rC'- 
speetable  practicing  physicians,  well  acquainted  with  the  condition 
of  the  patient,  or  one  from  such  physicians,  and  two  respectable 
citizens,  stating  the  cause  of  the  application. 

^  1379.  A  pay  patient,  not  a  resident  of  this  State,  shall  not  be  ^  ^"on-resi- 

^  r    ,/    r  7  :>  dent  pay  pa- 

admitted  unless  accompanied  by  an  authentic  record  of  a  convic-  ^'^iJJj^^t^^J^^^ 
tion  of  a  malady,  which  by  the  law  of  this  State,  is  a  ground  of 
admission,  from  a  Court  having  jurisdiction,  or  shall  produce  a 
certificate  like  that  required  in  this  State,  together  with  the  cer- 
tificate of  the  Judge  having  jurisdiction,  who  shall  state  ofiicially, 
that  the  certificate  of  said  physicians  and  other  persons,  are  genu- 
ine and  entitled  to  full  credit.  And  shall  then  not  be  received 
until  the  payment  of  expenses  is  secured. 

S  1380.  Pay  patients  may  be  divided  into  different  classes,  ac- Pay  patients 

-,.,.,,  .  ni'iy  be  clas- 

cording  to  the  accommodation  desired  and  their  means  of  paying,  sifieci. 
§  1381.  When  a  person  has  been  convicted  of  a  malady  requir-    ranperpa- 

^  -f^  ./I  tients,     and 

ins  him  to  be  committed  to  said  Asylum,  it  is  the  duty  of  the  hovrthejarQ 

o  J  '  J  cei  tinea. 

Court  presiding  at  the  trial  to  certify  if  said  person  be  a  pauper. 
He  shall  not  be  certified  a  pauper  unless  in  whole  or  in  part  sup- 
ported by  the  County,  or  the  County  is  bound  for  his  support  un- 
der the  law.  If  there  are  persons  who  by  law  are  bound  and 
able  to  support  him,  the  names  of  such  persons  must  be  given.  If 
the  person  has  means  enough  to  support  himself  in  part,  the 
amount  of  such  means  must  be  stated  and  must  be  paid  toward  his 
support. 

§1382.  A   certificate  of  pauperism  entitles   the  person  to  be    Pauper  pa- 
supported  at  the  expense  of  the  State.     Those  for  whose  support  ported     by 
others  are  bound  must  be  furnished  with  suitable  support  by  the 
State,  and  the  expense  collected  out  of  such  other  persons  by  the 
Trustees. 

§  1383.  If  a  patient  committed   as  a  pauper,  or  as  of  limited    Pauperism 

•11  -I'l  T     f         1         ceasing,    pa- 

means,  becomes  entitled  to  an  estate,  said  estate  is  bound  for  his  tient    must 

defray       ex- 

support  according  to  its  value,  and  whoever  holds  it  may  be  com-  penses. 


PT.  1.— TIT.  15.— CHAP.  1.— Police  Regulatiox^s,  etc. 

Article  3. — The  Admission,  Management,  and  Discharge  of  Patients. 


pelled  to  secure  to  the  Asylum  its  proper  charges,  or  to  turn  over 
to  the  Trustees  the  property  to  be  held  for  such  purpose. 

§  1384.  A  pauper  patient  shall  not  be  discharged  from  the  Asy- 
Discharged  lum  without  proDcr   clothlnff  and  a  sum  of  money  necessary  to 

pauper     pa-  ... 

ftient    must  carry  him  to  his  residence  or  the  County  from  whence  he  was  sent. 

be  clad,  etc.  -^  'J 

§  1385.  If,  before  or  after  admission  of  a  pay  patient,  resident 
Trial  of  lu-  or  nou-rcsident,  by  certificate,  the  person  alleged  to  be  a  lunatic, 

nacy  may  be  ,  ,  "^  ,  ^  ^  ^    ' 

demanded,    or  his  friend   or  relative,  may  make   a  demand  of  the  Superin- 
tendent for  a  trial  of  the  question  of  lunacy  by  jury,  which  shall 
be  had  without  delay,  according  to  law,  in  the  County  of  Baldwin. 
§  1386.  The  like  demand  and  trial  may  be  had  by  all  patients 
iTow  trial  who  havo  bccn  convicted  of  lunacy,  if  the  person  demandinsj  it, 

of  1  n  n  a  c  y        .  .  .  .  •^ '  ^     ,  . 

maj  be  de-  being  relative  or  friend,  will  make  an  affidavit  that  he  believes 

manded.  ^ 

the  alleged  cause  of  commitment  did  not  and  does  not  exist,  and 
that  the  conviction  was  obtained  by  fraud,  collusion,  or  mistake. 
The  same  right  exists  when  there  is  an  affidavit  that  the  cause  of 
commitment  has  ceased  to  exist,  and  there  is  a  refusal  by  the  Su- 
perintendent to  discharge  after  demand  made. 

§  1387.  When,  by  a  provision  of  this  Code,  elsewhere  made,  a 
Inebriates  person  is  declared  to  be  an  inebriate  and  incapable  of  manao-ing 

may  be    ad-  ^  .  . 

mitted.  j^ig  property,  such  person,  by  his  own  consent,  if  capable,  and  if 
incapable,  by  the  consent  of  his  nearest  relative,  or  when  a  per- 
son is  not  so  declared,  but  has  the  certificate  of  three  physicians, 
and  is  himself  willing,  such  person  may  be  received  into  said 
Asylum,  allowed  the  use  of  apartments  devoted  to  him,  or  such 
as  are  suitable,  and  be  treated  as  a  patient  thereof. 

§  1388.   Such  patients  shall  never  be  placed  in  company  with 
Inebriates  any  othor  class  of  patients  without  their  consent,  nor  placed  in 

—hew  kept.         J  i-  7  r 

confinement  unless  they  are  dangerous  to  themselves  or  others. 
[They  must  pay  for  their  support  as  pay  patients,  and  be  subject 
to  the  control  of  the  Superintendent  as  other  pay  patients  until 
discharged.]  (a) 

§  1389.  Apartments  must  be  provided  for  insane  negroes,  resi- 
insane  ne- dents  of  this  State,  who  are  able  or  unable  to  support  and  take 

groes,  etc.  ^  ^  ■•• 

care  of  themselves.  Those  negroes  who  are  able  must  pay  for 
their  support ;  those  unable  must  be  supported  as  other  pauper 
patients.     The  certificate  of  the  Justices  of  the  Inferior  Court 

(a)  Acts  of  1865-6,  pp.  24-5. 


con- 
liow 


PT.  1.— TIT.  15.-^CHAP.  1.— Police  Regulations,  etc.      271 

Article  3. — The  Admissiou,  Management,  and  Discharge  of  Patients. 

of  the  County  where  the  negro  resides  of  his  condition,  mentally 
and  pecuniarily,  shall  be  sufficient  to  grant  him  admittance. 

§  1390.  If  a  Penitentiary  convict  becomes  afflicted  so   as  the  insane 

"  ^  ''  victs  — 

affliction  would  entitle  another  person  to  a  place  in  said  Asylum,  admitted 
he  shall  be  received  therein  if  accompanied  by  the  certificate  of 
the  Physician  to  the  Penitentiary  and  the  Principal  Keeper  thereof 
of  said  fact.  The  certificate  shall  also  show  the  name  of  the  con- 
vict, the  offense  for  which  sentenced,  the  County  from  whence 
sentenced,  and  his  term  of  service,  which  shall  be  filed  away. 

§  1391.  If  said  convict  has  the  necessary  means,  he  shall  pay    h^^^  s"P' 
for  his  support  as  long  as  he  remains  at  the  Asylurd. 

§  1392.  If  such  convict  shall  recover  before  his  term  of  service    cured  con- 
victs—  how 
has   expired,  the  fact  shall  at  once  be  certified  by  the   Superin- disposed  of. 

tendent  to  the   Principal  Keeper  of  the  Penitentiary,  who   shall 

forthwith  have  said  convict  taken  back  into  the  Penitentiary. 

§  1393.  Whenever  there  shall  be  an  application  for  admission    Temporary 

'■  ■*■  disposition 

unattended  by  the  requisite  evidences,   the    Superintendent  has  S^^^"^'^^'^'*' 
authority  to  receive  and  provide  for  the  person  for  a  reasonable  *^^^^^- 
time,  provided  a  sufficient  sum  shall  be  advanced  for  his  mainten- 
ance in  the  meantime. 

§  1391.  When  a  person  has  been  properly  received  as  a  patient,    inmate  ab- 
but  is  absent  for  as  lonff  as  three  months,  either  from  discharge,    montiis 

°  .  '  ^    '     must  be  re- 

elopement,  or  removal  by  friends,  he  can  not  be  received  at  the    committed 

,  .  .  .  in  form. 

Asylum  without  going  through  the  process  required  in  this  Chap- 
ter, according  to  the  class  of  patients  of  which  he  may  be. 

§  1395.  When  a  person  has  been  acquitted  of  a  capital  crime     criminals 

*■  ^  ■*•  ^  ^^  acquitted  on 

on  the  ground  of  insanity,  and  such  person  is  committed  to  the  p'^a  of  in- 

°  •^  -^  ■■•  sanity,       or 

Asylum,  he  shall  not  be  discharged  thence  except  by  special  act  J^^^fjg  JJgl 
of  the  Legislature.     If  the  crime  is  not  capital,  he   shall  be  dis-  £!;JoAv^'deii't 
charged  by  warrant  or  order  from  the  Governor.     If  sentence  is  ^^*'^^' 
suspended  on  the  ground  of  insanity,  upon  restoration  to  sanity 
the  Superintendent  shall  certify  the  fact  to  the   presiding  Judge 
of  the  Court  where  he  was  convicted. 


272 


PT.  1. — TIT.  15. — Police  Regulatioxs,  etc. 


Chapter  2. — Health,  Hospitals,  Infection,  and  Quarantine. 


CHAPTER    II. 

HEALTH,  HOSPITALS,  INFECTION,  AND   QUARANTINE. 


5ECTI0X. 

1396.  Who  may  establish  hospitals. 

1397.  Regulation  of  quarantine. 

1398.  Quarantine  grounds. 

1399.  Removal  of  vessels  thither. 

1400.  Escaping  quarantine. 

1401.  Bills  of  health,  etc. 

1402.  Inland  travelers. 

1403.  Duty  of  pilots. 

1404.  Persons  on  board  of  vessels. 

1405.  Proclamation  as  to  contagions. 


Section'. 

1406.  Violation  of  quarantine. 

1407.  Concealment  of  small-pox,  etc. 

1408.  Fines,  etc. — how  disposed  of. 

1409.  Quarantine — how  certified. 

1410.  Fees  of  health  officers-how  paid. 

1411.  Small-pox  hospitals— how  provided 

1412.  Quarantine  regulations. 

1413.  Expenses — account  of. 

1414.  Expenses — how  paid. 

1415.  Vaccine— how  distributed. 


§  1396.   The  corporate  authorities  of  any  city  or  toTvn  may  estab- 
City  corpo-  lish  in  them,  respectively,  or  in  the  vicinity  thereof,  hospitals  or 

ration,    etc.,  i  i  i  •  i  i      •  i 

may   estab-  pest  liouses,  to  DC  suDiect  to  sucli  reoi;ulations,  not  contrary  to  law, 

lish     hospi-  ^  '  J  o  5  J  ? 

tais.  as  such  corporate  authorities  may  make  to  prevent  the  spread  of 

infectious  or  contagious  diseases,  but  in  all  cases  where  such 
authorities  of  a  town  may  establish  hospitals  or  pest  houses  out 
of  their  own  jurisdictional  limits  such  establishments  shall  be 
only  on  land  acquired  by  such  corporation  for  protection  against 
the  spread  of  disease  within  its  own  limits ;  in  all  other  cases  the 
Justices  of  the  Inferior  Court  of  each  County,  respectively,  are 
vested  with  the  power  to  establish  such  hospitals  and  make  such 
regulations. 

§  1397.   The  corporate  authorities  of  such  town  may,  from  time 
Quarantine  to  time,  prcscribo  the  quarantine   to  be  observed  by  all  vessels 

scribed  and  arrivincr  withiu  the  harbor  or  vicinity  of  such  town,  and  resrula- 
tions  therefor,  not  contrary  to  law;  and  such  regulations  may 
extend  to  all  persons,  goods,  and  effects,  arriving  in  such  vessels, 
and  to  all  persons  going  on  board  of  the  same.  Any  person 
violating  such  regulations,  or  any  of  them,  after  personal  notice, 
or  after  other  notice  thereof,  given  for  five  days,  in  such  manner 
as  may  be  prescribed  by  such  corporate  authorities,  or  in  the 
absence  of  any  mode  so  prescribed,  by  notice  of  such  regulation 
for  five  days  in  some  newspaper  in  such  town,  or  where  there  is 
no  newspaper  by  notice  posted  up  at  some  public  place  in  such 
town  for  the  same  length  of  time,  shall  be  guilty  of  a  misde- 
meanor, and  on  conviction  thereof  shall  be  liable  to  fine  of  not 
more  than  five  hundred  dollars;  provided,  nothing  herein  con- 
tained shall  prevent  the  infliction  by  the  corporate  authorities 


reculated. 


PT.  1.— TIT.  15.— Police  Regulations,  etc.  273 


Chapter  2. — Health,  Hospitals,  Infection,  and  Quarantine. 


having  power  to  pass  ordinances  or  by-laws  of  such  other  penalty 
not  exceeding  one  hundred  dollars  fine,  in  lieu  of  the  penalty  first 
above  named,  as  may  be  prescribed  in  any  such  ordinance  or 
by-law. 

§  1398.  Any  town  may  establish  a  quarantine  ground  therefor  Quarantine 

•    1   •  1         1         1  •  r»  1  •  1     ground  — 

at  any  place  withm   the  harbor,  it  a  seaport   town,  but  m  such  how   estab- 

.  o  •    1        1  •     1  n  '  lished. 

manner  as  not  to  mteriere  with  the  rights  ot  private  property; 
and  the  jurisdiction  of  the  corporation  of  Savannah  shall,  in  cases 
of  quarantine,  extend  to  all  ships  and  vessels  which  shall  enter  at 
any  port  or  inlet  from  Ossabaw^  sound  to  Tybee,  including  all 
inlets,  rivers,  and  creeks  within  those  limits. 

^  1399.   The  health  officer  or  visitina;  physician  of  such  town  Vessels  may 

*->    ^     '^  be   removed 

may,  under  the  direction  of  the  corporate  authorities,  cause  any  ^?    quaran- 

•^  '  *•  /  t/    tme  ground. 

vessel  arriving  therein,  or  in  the  vicinity,  if  the  vessel  or  cargo  is 
in  his  opinion  so  foul  or  infected  as  to  endanger  the  public  health, 
to  be  removed  to  the  quarantine  ground  or  other  proper  place  to  be 
inspected,  and  any  master,  seaman,  or  passenger  belonging  to  any 
vessel  supposed  to  have  any  infection  on  board,  or  from  a  port 
where  any  dangerous  infectious  disease  prevails,  refusing  to  answer 
on  oath  such  inquiries  as  may  be  made  by  any  health  officer, 
relating  to  any  infection  or  disease,  shall  be  guilty  of  a  misde- 
meanor, and,  on  conviction,  shall  be  liable  to  pay  a  fine  of  one 
hundred  dollars. 

§  1400.  If   any  person   ordered  to    perform    quarantine    shall  Persons  es- 

^  .  .     capin?  or  at- 

escape,  any  Justice,  on  complaint  thereof  on  oath,  may  issue  his  tempting  to 

•*■  *^  '  '■  T  */  escape  quar- 

warrant  to  the  Sheriff,  Constable,  or  Town  Marshal,  to  arrest  and  ^f '^',^^~:]i^^^ 

'  '  '  dealt  with. 

deliver  such  person  to  the  custody  of  the  officers  of  the  quaran- 
tine, and  any  person  attempting  to  escape  may  be  forcibly  detained 
at  the  place  of  quarantine  by  such  officers. 

§  1401.  The  master  of  any  vessel  ordered  to  perform  quarantine      Master  of 
shall  deliver  to  the  officer  appointed  to  see  it  performed  his  bill  of  deliver  bui 
health  and  manifest,  log-book  and  journal;  if  he  fails  to  do  so,  etc. 
or  to  repair,  in  proper  time,  after  notice,  to  the  quarantine  ground, 
or  shall  depart  thence  without  authority,  he  shall  be  guilty  of  a 
misdemeanor,  and,  on  conviction,  shall  be  fined  in  a  sum  not  less  default."^ 
than  tw^o  hundred  dollars. 

§  1402.  Any  person  coming  into  town  by  land  from  a  place  imand  trar- 
infected  with  a  contagious  disease  maybe  compelled  to  perform  peiied   to. 

°  ./  i  i  perform  qua- 

quarantine  by  the  health  officer,  under  the  direction  of  the  corpo-  ra^tine. 
rate  authorities,  and  restrained  from  traveling  until  discharged ; 
18 


274  PT.  1.— TIT.  15.— Police  Regulations,  etc. 

Chapter  2. — Health,  Hospitals,  Infection,  and  Quarantine. 

and  any  person  thus  restrained,  traveling  before  he  is  discharged, 
Penalty  for  shall  be  guiltj  of  a  misdemeanor,  and,  on  conviction,  may  be  fined 

violation    of  .  ,  ,.  i  i        i     i    tt 

quarantine,  in  a  sum  not  exceeding  one  hundred  dollars. 

§  1403.  It  shall  be  the  duty  of  any  pilot  before  entering  on 
Duty  of  board  of  any  vessel,  to  make  strict  inquiry  of  every  master  or 

pilots  before  ^  ^  i.        j  j 

entering  on  commaiider  of  the  same  as  to  the  state  of  health  in  such  vessel, 

board  of  ves-  ' 

^®^3-  and  in  case   it  be  found  that  any  malignant,   contagious,  or  in- 

fec  ious  disease  is  on  board  such  vessel,  such  pilot  shall  not  enter 
therein,  under  the  penalty  of  one  hundred  dollars  and  removal 
from  office;  and  any  such  master  or  commander  refusing  to  answer 
any  such  reason^able  inquiry,  or  giving  false  information  in  answer, 
may  be  fined  in  a  sum  not  exceeding  five  hundred  dollars. 

§  1404.  No  person  on  board  such  ship  or  vessel  in  which  such 
Persons  on  disease  shall  exist,  or  whilst  such  ship  or  vessel  is  performino; 

board  of  ves-  ^  ^  a  o 

seis shall  ob-  quarantine,  shall  come,  or  be  permitted  to  come  on  shore  or  land 

serve    quar-    ■•■  ... 

antine.  from  sucli  vcsscl,  witliout  permission  from  the  proper  authority, 
under  the  penalty  of  fine  and  imprisonment,  at  the  discretion  of 
the  Court,  and  any  person  going  on  board  such  vessel  (except  the 
health  officer  or  visiting  physician)  and  returning  without  such 
permission  shall  be  liable  to  the  same  penalty. 

§  1405.  The  Governor  of  this  State  may,  by  proclamation,  when- 
Prodama-  evcr  he  shall  deem  it  necessary,  p'ive  such  orders  to  prevent  the 

tion  of  Gov-  .  .  J?to^  .,.ici 

ernor  as  to  spread  of  coutao-ious  or  infectious  diseases  within  the  State,  and 

contagious        ^  ^ 

diseases.      make  such  appointments  and  regulations  concerning  the  same  as 

shall  by  him  be  deemed  proper,  and  be  stated  in  such  proclamation, 

and  any  person  violating  such  orders  or  regulations  may  be  fined 

or  imprisoned  at  the  discretion  of  any  Court  having  jurisdiction. 

§  1406.  Any  person  coming  into  this  State  by  land   or  water 

Yioiator-B  from  any  place  infected  with  contagious  disease,  and  in  violation 

of      quaran-  ''    ^  o  ^ 

indttey^^^^  quarantine  regulations,  may  be  indicted  in  any  County  in 
which  he  may  be  found,  and,  on  conviction,  be  fined  in  a  sum  not 
exceeding  five  hundred  dollars,  and  be  imprisoned  in  the  common 
jail  at  the  discretion  of  the  Court. 

§  1407.  Any  physician  or  other  person  who  shall  conceal  a  case 
co^ceau?^  of  small-pox,  or  varioloid,  or  any  modification  of  the  same,  within 
Sctabi?  ^^y  incorporated  city,  town,  or  in  any  County  in  this  State,  by 
not  giving  immediate  notice  thereof  to  the  Mayor,  Intendant,  or 
health  officer,  or  Justices  of  the  Inferior  Court,  may  be  indicted 
and  fined  in  a  sum  not  exceeding  five  hundred  dollars,  or  imprisoned 
at  the  discretion  of  the  Court. 


ft 


PT.  L— TIT.  15.— Police  Regulations,  etc.  275 


Chapter  2. — Health,  Hospitals,  Infection,  and  Quarantine. 


§  1408.  All  fines  and  forfeitures  arising  out  of  tlie  violation  of    Fines  for 

.  violating 

any  quarantine  or  other  sanitary  regulation  shall  be  paid,  after  quarantine- 

''     *■  .  .  ^^^  dispos- 

deducting  the  proper  expense  of  collection,  into  the  treasury  of  ^dof. 
the  city  or  County,  and  may  be  expended  in  aid  of  the  quaran- 
tine and  other  sanitary  laws,  and  toward  the  support  of  the  poor 
thereof. 

§  1409.  It  shall  be  the  duty  of  the  health  officer  of  any  port,      Perform- 
or  the  authorized  visiting  physician  thereof,  after  a  vessel  shall  rantine— 

b.ow      ccrti" 

have  duly  performed  quarantine,  to  give  a  certificate  thereof  to  the  fled. 
master  or  commander,  under  a  penalty,  for  every  refusal,  of  one 
hundred  dollars ;  and  in  case  of  such  refusal,  or  of  there  being  no 
3uch  health  officer  or  attending  physician  of  the  port  or  place, 
such  certificate  shall  be  granted  by  constituted  authorities  of  such 
port  or  place :  the  fee  for  such  certificate  shall  be  two  dollars  for 
every  vessel  of  more  than  two  hundred  tons,  and  one  dollar  for  certificate. 
every  vessel  of  not  more  than  two  hundred  tons. 

§  1410.  For  visiting  any  vessel  when  required,  and  granting  a     Fees    of 
certificate  of  the  health  of  the  crew  and  passengers  on  board,  the  cer  —  by 

\    ,  ,  whom  paid. 

fee  of  the  health  officer  or  visiting  physician,  to  be  paid  by  the 
master  of  such  vessel  before  she  shall  be  permitted  to  enter,  shall 
be  two  dollars — coasting  vessels  coming  from  one  inlet  in  the  State 
to  another  inlet  in  the  same,  excepted. 

§  1411.  [The  Justices  of  the  Inferior  Court  of  each  County,  or     smaii-pox 

•.    .  hospitals. 

the  corporate  authorities  of  any  town  or  city  in  this  State, 
within  the  limits  of  which  the  small-pox  has  appeared,  or  may 
appear,  are  authorized  and  empowered  to  provide  a  suitable  hos- 
pital for  those  so  afflicted,  and  to  furnish  them  with  medical  or  any 
other  attention  that  in  their  judgment  those  so  afflicted  may 
require.]  (a) 

§1412.  [Such  Justices  or  corporate  authorities  may  also  pro-   Quarantine 
vide  proper  quarantine  regulations  to  prevent  the  spread  of  said  ^^^"  ^<^io"s. 
disease;  provided,  that  no  person  shall  be  forced  to  leave  his  or 
her  home  to  go  to  the  hospital  aforesaid,  when  they  are  properly 
provided  for  and  guarded  at  their  own  expense;  said  Court  shall 
not  pay  any  expense  of  any  case  so  situated.]  (a) 

§  1413.   [Said  Court  or  corporate  authorities  shall  make,  or  cause  Expenses- 
to  be  made,  a  proper  and  just  account  of  all  expenses  accruing ''''^''''''*  "^' 
from   such   quarantine    and   other    attention,    either    medical    or 

(a)  Acts  of  18G5-6,  page  88. 


276  PT.  1.— TIT.  15.— Police  Kegulatioxs,  etc. 


Chapter  3. — Physicians  and  Druggists. 


nursing,  of  all  thej  may  have  under  control  and  who  submit  to 
the  regulations  of  said  Court  or  corporate  authorities.]  (a) 

§1414.  [Said  Courts  or  corporate  authorities  shall  have  all 
How  paid,  accounts  properly  audited,  and  forward  them  to  his  Excellency 
the  Governor,  who  shall  draw  his  warrant  on  the  Treasury  for  the 
amount  set  forth  in  said  account  or  accounts.]  (a) 

§  1415.  [The  Governor  is  authorized  and  required  to  procure 
"Vaccine—  the  nccessary  quantity  of  genuine  vaccine  matter,  either  by  pur- 
chase or  manufacture,  at  such  reasonable  compensation  as  he  may 
contract  for,  and  have  the  same  transmitted  to  the  Justices  of  the 
Inferior  Courts  of  each  County  in  this  State  for  immediate 
use.]  (a) 


uted. 


CHAPTER    III. 


PHYSICIANS     AND      DPvUGGISTS. 


Section. 

1416.  Wlio  may  practice  medicine. 

1417.  Allopathic  Medical  Board. 

1418.  Duty  of  the  Board. 

1419.  Temporary  license. 

1420.  Kecord  of  Board  evidence. 

1421.  Quorum  of  the  Board. 

1422.  Boformed  Medical  Board. 

1423.  Present  Boards  continued. 


Section*. 

1424.  Penalty  for  illegal  practice. 

1425.  Defendant  must  show  authority. 

1426.  Board  confined  to  its  school. 

1427.  License  fee. 

1428.  What  physicians  exempt. 

1429.  Druggist  must  obtain  license. 

1430.  Must  show  his  authority. 

1431.  Who  are  exempt. 


§  1416.  Any  white  person  who  has  received  a  diploma  from  any 
Who  may  ]\Xedical  College  of  the  State  of  Geororia,  without  regard  to  the 

practice  °  o^  o 

medicine,     school,  is    authorized  to   practice   to  the    extent   of   the   powers 
given  in  said  diploma,  subject  to  the  provisions  hereinafter  set 
.  forth.  , 

."^v  A  §1417.  There  is  established  in  this  State  a  Board  of  JPhvsi- 

Authority  ciaus  of  the  Allopathic  School,  who  have  the  authority — 

of  Board  of  ^  '  -^ 

Physicians.  \^  To  meet  annually,  or  oftener,  at  the  call  of  any  three  of 
their  number,  at  [the  seat  of  Government.]  (b)  Thirty  days' 
notice  must  be  given  of  annual  meetings. 

2.  To  elect  all  officers  and  to  fill  all  vacancies. 

3.  To  be  a  body  corporate,  with  the  right  to  exercise  all  the 
powers  usual  in  such  associations  that  are  necessary  to  their 
organization,  if  in  conformity  to  the  Constitution  and  laws. 

4.  To  grant  licenses  to   all  applicants  who  under  the  law  are 


(a)  Acts  of  1865-6,  p.  88.     (b)  Acts  of  1865-6,  p.  25. 


PT.  1. — TIT.  15. — Police  Regulations,  etc.  277 

Chapter  3. — Physicians  and  Druggists. 


entitled  thereto,  and  to  fix  the  fee  therefor  when  not  fixed  by 
law. 

5.  To  prescribe  a  course  of  reading  to  those  who  study  medi- 
cine under  private  instruction  which  shall  be  obligatory  upon  all 
who  may  apply  to  the  Board  for  examination. 

§  1418.  It  is  their  duty— 

1.  To   o;rant  licenses   to   practice  to   all  physicians   fof  their     Duty    of 

^  .         .      ^  .  the      Eoard 

school  who  present  their  diplomas  from  incorporated  Medical  Col- »?  Piiysi- 

^  ^         ^         ^  ^  cians. 

leges  of  Georgia  without  examination.]  (a) 

2.  To  grant  such  licenses  to  all  other  persons  who  undergo  a 
satisfactory  examination. 

3.  To  grant  license  to  practice  in  any  particular  branch  of  med- 
icine, or  to  treat  any  particular  form  of  disease,  if  satisfied  upon 
the  examination  that  the  applicant  is  thus  competent. 

4.  To  grant  licenses  to  apothecaries  upon  their  standing  a  sat- 
isfactory examination  as  to  their  knowledge  of  drugs  and  phar- 
macy. 

5.  To  keep  a  book  in  which  shall  be  entered  the  names  of  every  Vend  drugs. 
person  licensed  to  practice  or  vend  drugs,  and   the  extent  of  the 
license. 

§  1419.   One  member  of  said  Board  may  grant  a  license  to  an  Temporary 
applicant  to  practice  until  the  next  regular  meeting  of  the  Board,  be  granted 
when  he  shall  report  the  fact,  at  which  time  the  temporary  license 
is  at  an  end ;  but  such  a  license  shall  not  be  granted  by  a  mem- 
ber after  the  Board  has  refused  one. 
"   §  1420.  The  book  so  ordered  to  be  kept  is  a  book  of  record.    Transcript 

^  ^       _      of    record — 

and  a  transcript  from  it,  certified  to  by  the  officer  who   has  it  in  ^^^^    evi- 

'■  '  "^  ^  dence. 

keeping,  under  the  common  seal,  shall  be  evidence  in  any  Court 
of  this  State. 

§  1421.  FFourl  (a)  members  of  said  Board  constitute  a  quorum  for    Quorum  of 

.  .  the  Board. 

the  transaction  of  business,  and  should  a  quorum  not  be  present 
on  a  day  appointed  for  its  meeting,  those  present  may  adjourn 
from  day  to  day  until  a  quorum  is  present. 

§  1422.  There  is  also  established  a  Board  of  Physicians  of  the     Authority 

•^  and  duty  of 

Reformed  Practice   of  Medicine,  who    have   the   same   authority  ?,J^^^:<^.    ^^ 

/  •/    Physicians, 

and  must  perform  the  same  duties  hereinbefore  set  forth.  ^*^' 

§  1423.  The  persons  and  number  of  persons  constituting  both       Present 
of  said  Boards  at  the  adoption  of  this  Code  continue,  and  all  the  tinned!  ^'^^' 

(a)  Acts  of  1865-6,  p.  25. 


278  PT.  1.— TIT.  15. — Police  Regulations,  etc. 

Chapter  3. — Physicians  and  Druggists. 


provisions  of  their  respective  charters  are  likewise  preserved,  if 
not  lawfully  altered  herein. 

§  1424.  Any  person  who  shall  practice  surgery,  or  in  any  man- 
Penaity  ncr  prescribe  for  the  cure  of  diseases  for  fee  or  reward,  in  viola- 

for  violating     .  ^     .  ..  c     t  •      ny  ihtttt  -t 

the  provis-  tion  01  the  provisions  01  this  Chapter,  shall  be  liable  to  mdict- 

ions   of  this  ..  iniP-»  i  r>         i 

Chapter.  mcnt,  and,  on  conviction,  shall  be  fined  not  exceeding  five  hun 
dred  dollars  for  the  first  ofiense,  and  for  the  second,  imprisoned 
not  more  than  two  months  ;  one-half  of  the  fine  to  inure  to  the 
informer,  the  other  to  the  Educational  Fund  of , the  County. 

§1425.  On  the  trial  of  such  indictment,  it  is  incumbent  on  the 
pro"/onVe  defendant  to  show  that  he  has  authority  under  the  law  to  practice 
party  indict- p^^g.^  and  suFgcry,  to  exempt  himself  from  such  penalty. 

§  1426.  Neither  Board    can  license   persons   to    practice  in  a 

Power  of  school  of  medicinc  difi*erent  from  their  own.     Physicians  belong- 

confined  to  ing  to  a  school  of  medicinc  not  represented  by  a  board  of  physi- 

their  respec-      .  .  ti-ti  i  ^     •  n     a  ^ 

tiTe  schools,  ciaus  may  practice  under  their  diplomas  alone,  and  ii  they  have 
none,  are  liable  as  though  they  had  no  license  and  were  required 
to  have  them. 

§  1427.  The  fee  for  licenses  obtained  on  diplomas  shall  not  ex- 
License  fee.  ceed  five  dollars,  and  on  examination  shall  not  exceed  twenty-five 
dollars. 

§  1428.  Physicians  who  were  in  practice  prior  to  the  24th  of 
e:^S^1^'^°^  December,  1847,  [or  were  in  practice  under  legal  diploma  or  li- 
cense on  the  first  day  of  January,  1863,]  (a)  are  exempt  from  all 
the  provisions  of  this  Chapter. 

§  1429.  No  person  in  this  State  [shall  open  or  keep  a  drug  or 
Draggists  apothecarv  store  without  first   obtaininoj  a  license  therefor  from 

must  obtain     ■«•  »/  ^  o 

license.  the  Mmcdical  Board  of  his  own  school.  Such  license  shall  be  re- 
corded in  the  oflSce  of  the  Clerk  of  the  Inferior  Court,  and  the 
Clerk  is  required  to  keep  a  list  of  the  names  of  the  persons  li- 
censed in  a  conspicuous  place  in  his  office,  for  which  he  shall  re- 
ceive one  dollar  fee  for  each  license  so  recorded.]  (b) 

§  1430.  Any  person  violating  the  preceding  Section  is  liable  to 
Druggist  indictment,  and,  on  conviction,  to  be  fined  not  less  than  one  thou- 

In  dieted  '  '  ' 

must   show  sand  nor  more  than  five  thousand  dollars,  and  for  a  continuation 

his  authori-  ^  ^ 

tj-  after  said  conviction,  to  the  like  fine  and   imprisonment  not  ex- 

ceeding six  months.     The  onus  of  proof  is  upon  the  defendant  to 
show  his  authority. 

(a)  Acts  of  1865-6,  p.  26.    (b)  Acts  of  1865-6,  p.  25. 


PT.  1. — TIT.  15. — Police  Regulations,  etc. 


279 


Chapter  4. — Tavern  and  Retail  Licenses. 


§  1431.  Druo-orists  are  exempt  from  obtaining  said  license  who  whatdrug- 

o  GO  r  o  g^sts  are  ex- 

Tfere  engaged  in  said  business  prior  to  24th  of  December,  1847,  ^'^p*- 
and  who  continue  so  at  the  adoption  of  this  Code ;  and  merchants 
or  shopkeepers  may  deal  in  medicines   already   prepared,  if  pa- 
tented, or,  if  not  patented,   are  legally  warranted  by  a  licensed 
druggist. 

GO 


CHAPTER    IV. 

TAVERN    AND    RETAIL    LICENSES. 


Section. 

1432.  Retail  license— how  obtained. 

1433.  Oath  of  other  venders. 

1434.  Retailing— confined  to  one  place. 


Section. 

1435.  License  by  corporate  towns. 

1436.  Furnishing  liquor  to  one  drunk. 

1437.  "Retailor"  defined. 


§  1432.  Persons,  before   obtaining  license  to  retail   spirituous    License  to 

-.  ^  .        ^         ,  ft      ^         T     n      '  r^  n     1       retail  liquors 

liquors,  must  apply  to  the  Justices  or  the  Interior  (Jourt  ot  the —how  ob- 
County  in  which  they  desire  to  retail,  who  have  power  to  grant  or 
refuse  such  application.  When  such  application  is  granted  and 
entered  on  the  minutes  the  applicant  shall  execute  a  bond,  with 
sufficient  security,  in  the  sum  of  five  hundred  dollars,  payable  to 
such  Justices,  conditioned  to  keep  an  orderly  house,  and  to  abide 
faithfully  by  the  oath  to  be  taken  by  him ;  which  bond  shall  bo 
taken  and  approved  by  the  Clerk  of  the  Inferior  Court,  filed  in 
his  office,  and  recorded  in  the  book  kept  for  that  purpose.  Any 
person  aggrieved  may  bring  suit  on  such  bond.  Licenses  granted 
in  any  other  way  are  void.  They  shall  also,  at  the  same  time,  be- 
fore said  Clerk,  take  and  subscribe  the  following  oath : 

["  I  swear  that  I  will  not,  during  the  next  twelve  months,  sell, 
barter,  give,  or  furnish  spirituous  or  intoxicating  liquors  in  any 
quantity  to  any  minor,  either  white  or  colored,  without  the  con- 
sent of  his  or  her  parents  or  guardian,  and  that  I  will  not  allow 
others  to  do  so  for  me  with  my  knowledge  or  consent.  So  help 
me  God."]  (a) 

§1433.  By  the  first  day  in  June  in  each  year,  and   annually  oathofven- 
thereafter,  venders  of  any  quantity  of  spirituous  liquors  less  than  quors''  less" 
one  gallon  shall  take  and  subscribe  the  foregoing  oath,  and  upon  ion. 
neglecting  to  do  so  they  are  subject  to  all  the  penalties  of  retailers 
without  license. 

(a)  Acts  1866,  pp.  19,  20. 


i 


280  PT.  1.— TIT.  15.— Police  Regulations,  etc. 

Chapter  5. — Yendue  Masters  and  Auctioneers. 

§  1434.   Such  licenses  do  not  authorize  the  persons  to  whom  is- 

Saie  of  li-  sued  to  retail  at  more  than  one  place  in  the  County,  which  place 

fined  to  one  must  bo  Stated  in  the  license.     Different  licenses  are  necessary  for 

place.  •' 

different  places. 

§  1435.   Said  provisions  do  not  apply  to  any  corporation,  town, 
Corporate  or  city  which  by  charter  has  power  to  grant  licenses ;   wovided^ 

towns    may  ,/  %/  r  o  ^    r  ^ 

— ^hen^"^^  the  fees  for  licenses  are  at  least  as  much  in  said  city  as  are  re- 
quired by  law  in  the  County. 

§  1436.  A  retailer  of  spirituous  liquors  shall  not  sell  or  furnish 

-P^e^tai^^i:  liquors,  in  any  quantity,  to  any  person  who  is  at  the  time  intoxi- 

to  one  who  catcd  or  drunk  ;   and  for  violatino^  this  provision  he  shall  not  only 

\  IS  drunk.  '  o  i  j 

<^  be  liable  to  all  the  penalties  for  retailing  without  a  license,  but 

Ki.  t^  he  shall  not  recover  by  law  for  any  spirituous  liquors  furnished  to 

vi  such  person  during  the  current  year. 

1^.  §  1437.  The  sale  of  such  liquors  in  quantities  less  than  one 

retailer.  quart  make  the  seller  a  retailer. 


CHAPTER  V. 

VENDUE    MASTERS    AXD    AUCTIONEERS. 

Section-.  i  Section. 

143S.  "Who  may  be  vendue  master.  I        1439.  Sale  of  stolen  property. 

§  1438.  [Any  citizen  of  Georgia  shall  have  the  right  to  exer- 
whomay  cise  all  the  privileo;es,  powers,  and  functions  of  a  vendue  master, 

be     vendue  .  . 

master.  or  auctioneor,  in  any  city  or  town  in  this  State,  by  paying  such 
license  and  giving  such  bond  as  may  be  demanded  or  required  by 
the  by-laws,  rules,  or  ordinances  of  the  town  or  city  in  which  said 
person  may  wish  to  exercise  the  calling  of  a  vendue  master  or 
auctioneer.]  (a) 

§  1439.  [Any  vendue  master  who  may  sell  or   dispose  of  any 

Sale  of  prop- iiQi-se  or  mulc  shall  be  held  responsible  to  the  purchaser  for  dam- 
ages, in  the  event  that  it  be  shown  and  proven  that  the  horse  or 
mule  so  sold  by  him  w^as  stolen.]  (a) 

(a)  Acts  of  1865-6,  p.  260. 


PT.  1. — TIT.  15. — Police  Regulations,  etc. 


Chapter  6. — Estra3^s. 


CHAPTER  VI. 

E  STK  AYS. 


Section. 

144^0.  'Who  may  take  up  estrays. 

1441.  Estrays — how  disposed  of. 

1442.  Advertisement  of  estrays. 

1443.  Sale  of  estrays. 

1444.  May  be  sold  on  freehold — when. 

1445.  Proceeds  of  sale — how  disposed  of. 


Section. 

1446.  Estrays — how  reclaimed. 

1447.  Trial  of  conflicting  claims. 

1448.  Expense  of  estrays. 

1449.  Default  of  ta^er-up— how  punished. 

1450.  Stone  horses  may  be  gelded. 


§  1440.  Any  person  may,  upon  his  own  freehold,  or  the  highway     who  mny 
thereto,  or  being  in  charge  of  one,  and  not  elsewhere,  take  up  all  ^^^s^- 
estrays  of  animals  of  a  domestic  or  useful  nature,  either  for  their 
labor  or  flesh. 

§  1441.   The  taker-up  shall,  within  five   days,  exhibit  said  ani-     Estrays— 

,.  how  dispos- 

mal  to  two  freeholders  of  the  militia  district  where  taken  up,  who  edof. 
shall  take  down  in  writing  a  particular  description  of  its  marks, 
natural  and  artificial,  brands,  stature,  age,  and  color,  and  annex 
thereto  their  appraisement  of  its  value,  which  description  and  ap- 
praisement shall  be,  by  the  taker-up,  within  five  days  more,  handed 
to  the  Clerk  of  the  Inferior  Court  of  the  County.  He  shall,  at 
the  time  of  handing  the  same  to  said  Clerk,  make  an  affidavit  be- 
fore him  that  the  marks  and  brands  of  said  estray  are  correct,  and 
have  not  been  altered  or  disfigured,  to  his  knowledge,  since  he 
took  it  up. 

§  1442.   Such  Clerk  shall  then  copy  said  appraisement,  descrip-    cierk  shaii 

•■•  "^  ^  ^  ^  ,        copy  and  ad- 

tion,  and  affidavit   in  the   estray  book,  and  advertise  substantial  vertise    ap- 

^  '^  '  praisenients 

copies  of  the  two  first  named  at  the  door  of  the  Court  House  for  "^  estrays. 
sixty  days,  at  the  place  of  holding  Justice's   Court  of  the  district 
where  taken  up,  and  in  the  public  gazette  where  the  Sheriff  of  the 
County  advertises  his  sales. 

§  1443.  If  by  the  end  of  that  time  property  is  not  proven  and     Estrays— 

•^  ^  ±       1         ./  1  when  to  be 

taken  away,  the  Sheriff  of  the  County  shall  advertise  and  sell  said  ^ow. 
estray  as  he  does  property  under  execution,  stating  it  to  be  an 
estray  and  its  appraised  value. 

§  1444.  If  the  property  is  not  of  sufficient  value  to  p;w  the  ex-     when  an 

T  •  1     ^\^      ^  A     •/  estray    may 

penses  of  said  proceedings,  said  Clerk  may  order  it  sold  by  the  be  soM  on 
Sheriff,  after  ten  days'  notice,  on  the  freehold  where  taken  up ; 
but  he  shall  make  the  advertisement  in  writing,  and  have  one  in- 
sertion made  in  such  public  gazette. 

§  1445.  The  purchase  money,  after  deducting  all  lawful  ex- 


the  freehold. 


282  PT.  1.— TIT.  15.— Police  Regulations,  etc. 

Chapter  C. — Estrays. 


Proceeds  of  pensGS,  shall  be  paid  to  the  Treasurer  of  the  Educational  Fund  of 

sale  —  how  i  • i  t 

disposed  of.  the  Countj,  to  be  paid  to  the  owner  of  the  estraj,  if  property  is 
proven  therein  within  twelve  months. 

§  1446.  Property  may  be  proven  by  an  affidavit  of  ownership 
Howanes-  beforo  the  Clerk  of  said  Court,  and  the  filing  with  him  bond  and 

tray  may  be  _         _  ^  *-* 

reckimedby  securitv  in  doublo  the  appraised  value,   payable  to  the  Justices  of 

the  owner.  •'  ^  ^  ^     i     t/ 

the  Inferior  Court,  conditioned  to  answer  any  demand  thereon 
♦  that  may  be  proven  against  the  obligor  within  two  years. 

§  1447.  If  more  than  one  person  claims  said  estray  before  de- 
conflicting  liver v  is  made,  or  a  counter   affidavit  to  a  claim  is  filed  by  any 

claims — how  j  7  ,/  j 

tried.  persou,  an  issue  shall  be  made  thereon  and  tried  by  a  jury  in  the 

Inferior  Court,  with  privilege  of  appeal. 

§  1448.  [The  taker-up  of  any  estray  shall  be   entitled  to  and 
Expenses  rcccive  such  Compensation  as  shall  be  awarded  and  determined  by 

—how  deter-  *■  ^  _  *' 

mined.  the  freeholders  before  whom  said  estray  may  be  exhibited  as  pro- 
vided in  Section  1441  of  this  Code,  and  said  freeholders  are  em- 
powered and  required  to  award  and  determine  such  compensation 
as  to  them  may  seem  reasonable  and  just  from  all  the  circum- 
stances in  each  case.]  (a) 

§  1449.   The  taker-up  is  liable  to  the  County  or  the  owner,  as 
Penalty  the  casc  maybe,  in  five  times  the  value  of  the   estray;  if  after 

against  tak-  ./  •'  »/  7 

fluu'S^a^'-  ^^^i^g  it  up  ^6  f^ils  to  have  it  appraised  and  returned,  or  forth- 
praising,etc.  coming,  according  to  law,  providential  causes  only  excepted,  and 
if  he  appropriates  it  to  his  own  use,  and  fails  to  pay  said  forfei- 
ture after  demand  in  writing  by  the  Clerk  of  the  Inferior  Court, 
he  is  guilty  of  a  misdemeanor.  Suit  may  also  be  brought  cither 
by  the  owner  or  County  for  the  same.  He  is  liable,  in  like  man- 
ner for  any  damage  caused  by  w^illful  abuse  or  neglect  of  the  ani- 
mal. 

§  1450.  If  any  stone  horse  above  eighteen  months  old  shall  be 

stone  found  running  at  large,  it  is  lawful  for  any  person  to  take  him  up 

ning  at  large  and  takc  him  before  the  nearest  Justice  of  the  Peace,  and  by  per- 

maybegeld-       ,      ,  ,  .  ,  .     . 

ed-  mission  of  said  Justice,  may  geld  the  same,  taking  care  that  it  is 

done  by  a  person  competent  to  do  so,  and  that  the  horse  is  prop- 
erly cared  for  afterwards;  the  expenses  of  which  shall  be  paid  by 
the  owner. 

(a)  Acts  1866,  p.  20. 


PT.  1. — TIT.  15. — Police  Regulations,  etc. 


28B 


Chapter  7. — Marks  and  Brands. 


CHAPTER   VII. 


MARKS    AND    BRANDS. 


Section. 

1451.  Record  of  marks  and  brands. 

1452.  Recorded  mark  preferred. 

1453.  Oldest  record  preferred. 


Section. 

1454.  Marking  to  bo  done — by  whom. 

1455.  Change  of  recorded  mark. 


§  1451.  All  persons  having  marks  and  brands  on  cattle,  or  other    Marksand 
property,  in  this  State,  shall  have  them  recorded  by  the  Clerk  of  be  recorded. 
the  Inferior  Court  of  the  County  where  the  owner  resides,  or,  if  a 
non-resident,  where  the  property  uses,  in  a  book  kept  by  him  for 
that  purpose. 

§  1452.    If  property  shall  be  in  dispute  between  one  whose  |/'ffy[,r"^f 
marks  and  brands  are  recorded,  and  one  whose  are  not,  both  hav-  marks^'^^iSI 
ing  the  same  mark  and  brand,  and  such  property  is  found  in  the  coXd.    *^' 
possession  of  him  whose  marks  and  brands  are  recorded,  the  party 
claiming  can  not  get  possession  of  the  same,  but  must  sue,  and 
prove  property  and  damage. 

§  1453.  When  two  or  more  persons  have  the  same  marks  and    oi'^cst  re- 

,  ,        ,  .  cord  has  pre- 

brands,and  both  are  recorded,  the  prima  facie  right  is  with  the  ^ereace. 
older  record. 

§  1454.  Marking  and  branding  shall  not  take  place,  except  by  ^b''^'"5;Jm 
or   under    the    supervision    of  some    competent   person,  on  pain  ^^°®- 
of  forfeiting  fifty  dollars  for  each  violation,  to  be  recovered  at  the 
suit  of  the  informer,  who  shall  have  one-half  the  recovery;  the  violation, 
other  half  goes  to  the  Educational  Fund. 

§  1455.  Marks  and  brands  once  recorded  shall  not  be  changed,  Marks,  etc., 

.  '^^       ^  not     to     be 

SO  as  to  be  of  any  avail  to  the  owner,  without  leave  is  first  granted  changed 

•^  '  °  without 

by  the  Justices  of  the  Inferior  Court,  and  a  minute  made  thereof,  ^^ave. 


CHAPTER    VIII. 

ENGLOSUliES    AND    FENCES. 


Section. 

1456.  Requisites  of  a  fence. 

1457.  Of  other  enclosures. 

1458.  Owners  of  stock — when  liable. 


Section. 

1459.  Stock  may  be  killed — when. 

1460.  Poisoning  crops. 

1461.  Water  courses  deemed  fences. 


X 


8  1456.  All  fences  or  enclosures,  commonly  called  worm  fences,     what  is  a 

'\  n  ^  ■    ^  ■    ^  lawful  fence. 

shall  be  five  feet  high,  with  or  without  being  staked  and  ridered, 


284 


PT.  1. — TIT.  15. — Police  Regulations,  etc. 


Chapter  8. — Enclosures  and  Fences. 


and  from  the  ground  to  the  height  of  three  feet,  the  rails  shall 
not  be. more  than  four  inches  apart.     Ail  paling  fences  shall  be 
^  five  feet  from  the  ground  and  the  pales  not  more  than  two  inches 

apart. 

§  1457.  Any  enclosure,  made  bv  means  of  a  ditch  or  trench. 
Enclosures  shall  be  three  feet  wide  and   two  feet  deep,  and  if  made  of  both 
etc.         ^'  fence  and  ditch,  the  latter  shall  be  four  feet  wide,  and  the  fence 
five  feet  high  from  the  bottom  of  the  ditch. 

§  1458.  If  any  trespass  or  damage  shall  be  committed  in  any 
whenowner  enclosurc,  not  beins  protected  as  aforesaid  bv  the  breakino^  in  of 

is  liable  for  '  ^    ^  _  "  . 

trespass,  etc.  any  animal,  the  owner  of  such  animal  shall  not  be  liable  to  an- 
swer for  the  trespass,  and  if  the  owner  of  the  enclosure  shall  kill 
or  injure  such,  in  any  manner,  he  is  liable  ia  three  times  the  dam- 
age. 

§  1459.  When  fences  are  made  pursuant  to  law  and  any  animal 

"^H^^'V^-  breaks  in,  the  owner  of  the  enclosure  shall  not  kill  or  injure  him 

ers  of  eiielo-  '  ^ 

sures    may  f^^  ^\^q  £j,g^  breakiuor   and  not  until  after  notice  is  given  to  the 

kill        stock  o^  o 

for  breaking  Q-^j^cr  or  agent,  if  possiblc,  but  said  last  mentioned  owner  shall 
be  liable  for  double  the  damage  done  by  his  stock. 

§  1460.  If  stock  is  killed  or  injured  from  poisoning  crops,  or 
Poisoning  other  poisouing  upon  the  premise,  the  presumption  is,  that  it  was 
done  by  the  person  in  possession  and  charge  of  the  same. 

§  1461.   All  water  courses  that  are  or  have  been  navigable,  as 


crops. 


When  Tva-  far  as  navio^ation   has  ever   extended  up  said   streams, 

ter    courses  ° 


shall  be 
are  deemed  deemed  and  considered  fences,  whenever,  by  reason  of  freshets  or 

fences.  ^  . 

otherwise,  fences  can  not  be  kept  on  said  streams,  and  shall  be  sub- 
ject to  the  rules  applicable  to  other  fences. 


CHAPTER      IX. 

FIRIXG  THE  WOODS. 


Sectiox. 

1462.  Woods  may  be  fired — when,  etc. 

1463.  Xotice  must  be  given. 


Section. 

1464.  Penalty  for  firing  •withoat  notice. 

1465.  Woods  catching  fire  by  negligence. 


§  1462.  Iso  person  but  a  resident  of  the  County  where  the  firing 
WTien  and  is  douc.  Owning  lands  therein,  or  domiciled  thereon,  outside  of  any 

by       whom  .  •  i      i  t  i  i 

woods  may  towu  incorporation,  shall  set  on  fire  any  woods,  lands,  or  marshes ; 
nor  shall  such  persons,  except  between  the  twentieth  of  February 
and  the  first  of  April,  annually. 


PT.  1. — TIT.  15. — Police  Regulations,  etc. 


285 


Chapter  10.— Mills  and  Millers. 


§  1463.  When  sacli  person  shall  desire  to  set  fire  Avithin  said    one  firing 

^  ^  ....        woods  must 

i  time,  he  shall  notify  all  persons  who  occupy  lands  adjoining  him  give  notice. 
by  residence  thereon,  or  cultivation,  or  enclosure  of  any  portion 
of  the  tract  or  settlement,  of  the  day  and  hour  of  the  firing,  at 
least  one  day  prior  thereto.  Such  notice  need  not  be  given  if,  on 
a  sudden  emergency,  due  caution  should  require  firing  to  render 
one's  premises  safe. 

§  146-1.  Any  person  setting  fire  in  violation  of  the  two  prece-    Penalty  for 

T.  o(.  nr-r'tiTiti  i  •  n  Setting     fire 

ding  bections  lorieits  nve  hundred  dollars,  upon  the  suit  or  any  \yitbout  no- 
informer — the  one-half  to  him,  the  other  to  the  Educational  Fund 
of  the  County — and  is  also  liable  for  the  actual  damages  any  per- 
son may  have  sustained. 

§  1465.  Persons,  either  by  themselves  or  agents,  who  permit  ^  ^^^'^^l 
fire  to  get  into  the  woods,  lands,  or  marshes,  through  neglect,  are  woodscatch, 
within  the  meaning  of  said  Sections. 


CHAPTER    X. 


MILLS     AND      MILLERS 


Sectiox. 

l-iG6.  Grain — in  what  order  ground. 
1467.  Penalty  for  failure. 


Sectiox. 

14G8.  "Public  mills"  defined. 


§1466.  All  owners  or  occupants  of  mills  shall  well  2:rind   all  Grain  to  bo 

,  1    1  •  1    .        T  ground       in 

clean  and  dry  grain,  and  m  due  turn,  as  far  as  ten  bushels  in  the  turn. 
turn,  as  the   same   may  be   brought,  and   may  take  for   toll   one- 
eighth  part  thereof. 

§1467.  Every  such  person  who  shall  not  so   grind,  except  in  Penalty  for 

_    J  not  grinding 

time  01  drought,  or  for  other  sufficient  cause,  or  not  in  due  turn,  according  to 
or  take  or  exact  more  toll,  shall  forfeit  and  pay  for  each  off"ense, 
to  the  party  injured,  twenty  dollars;  provided  such  miller  may  do 
his  own  grinding  first. 

§  1468.  All  grist  mills  which  grind  for  toll  for  any  person  are     what  are 
public  mills  within  the  ii^eaning  of  this  Chapter. 


turn. 


public  mills. 


286 


PT.  1.— TIT.  15. — Police  Regulations,  etc. 


Chapter  11. — Gunpowder. 


CHAPTER    XI. 


GUNPOWDER. 


Section. 

1469.  Transported  gunpowder,  etc. 

1470.  Penalty  for  not  marking. 


Section. 

1471.  Keeping  gunpowder,  etc. 


§  1469.  All  owners,  agents,  or  others  who  have  any  gunpow- 
Gunpow-  der,  more  than  five   pounds,  transported  upon  water,  railroad,  or 

der  must  be  '  r  ?  1  r  ?  ? 


marked. 


otherwise,  shall  have  the  word  gunpowder  marked  upon  each  pack- 
age so  transported,  in  large  letters. 

§  1470.   Gunpowder  transported  in  violation  of  said  provision 
Penalty  shall  be  liable  to  seizure  and  forfeiture  by  any  ofiicer  who   may 

for  transpor-  .      .       ,  ,  r»  i  •  i 

ting  gun-  execute  a  crnnmal  warrant  under  warrant  for  that  purpose,  issued 

powder  con-  ^^  ,  . 

trarytoiaw.  by  any  officer  who  may  issue  such  first  named  warrants — one-half 
of  the  same  to  go  to  the  informer,  the  other  half  to  go  to  the 
Military  Fund  of  the  State,  after  public  sale,  by  order  of  the  offi- 
cer issuing  the  warrant,  or  one  of  like  power. 

§  1471.  The  several  incorporated  towns  or  cities  of  this  State, 
Roguia-  within  their   corporate  limits,  and  the   Justices   of   the   Inferior 

tionsiorkee-  ^       ^  ^  ■^ 

^owler^'^"  Court  within  their  respective  Counties,  out  of  said  corporate  lim- 
its have  authority  to  make  and  enforce  all  needful  rules  and  reg- 
ulations touching  the  keeping  of  gunpowder  so  as  not  to  endan- 
ger the  lives  and  property  of  the  citizens. 


TITLE    I VL 

REGULATIONS  OF  AGRICULTUKE,  TRADE,  AND  COMMERCE. 


CHAPTER    I. 


BANKS     AND     BANKING. 


Article  1. — Banh  Returns. 

Article  2. — Obligations  and  Penalties. 

Article  3. — Forfeiture  of  Charters  and  Liability  of  Stockholders. 


PT.  1.-— TIT.  16.— CHAP.  1.— Agriculture,  Trade,  etc.      28T 

Article  1. — Bank  Returns. 


ARTICLE  I. 


BANK     RETURNS. 


Section. 

1472.  Bank  returns — how  made. 

1473.  Contents  of  returns. 

1474.  Oath  of  officers  shall  be  annexed. 


Section. 

1475.  Expense  of  advertising. 

I47C.  Bank  refusing  to  make  returns. 

1477.  False  affidavit  perjury. 


Contenta 
of    the     re- 


§  1472.  It  is  the  duty  of  the  Governor,  twice  in  each  year,  to       caii  for 

_.  1    '    '  IT  1  bank  returns 

advertise  lor  at  least  two  weeks  m  a  pubnc  gazette  at  the  seat  of  tote  adver- 

.'"...  .  tisedby 

Government  a  call  upon  every  banking  institution  of  this  State,  (Governor, 
and  branch  thereof,  to   make   returns  to  him,  under  the  oaths  of 
their  several  presidents   and  cashiers,  of  their  respective   condi- 
tions at  a  time  to  be  specified  in  such  advertisement,  and  to  trans- 
mit the  same  to  him  within  thirty  days  from  said  dates. 
§  1173.  Such  returns  shall  embrace — 

1.  The  names  of  the  Presidents  and  Directors,  and  a  list  of  the 
stockholders  on  the  day  of  the  regular  weekly  meeting  of  the  Presi-  turns' 
dent  and  Directors  next  preceding  the  date  of  his  requisition. 
The  list  of  stockholders  may  be  given  but  once  a  year. 

2.  The  amount  of  stock  owned  by  each  individual  or  company, 
and  the  amount  of  money  actually  paid  in  on  each  share. 

3.  The  amount  of  bills  on  other  banks  of  this  State,  of  gold, 
silver,  and  bullion  in  their  vaults. 

4.  The  amount  of  debts  due  them,  within  and  without  the 
State,  so  designating  them,  which  may  be  denominated  specie 
funds. 

5.  The  active  or  running  paper,  the  amounts  in  suit  under  pro- 
test, and  not  in  suit,  clearly  stating  what  amount  of  all  such 
debts  is  good,  what  doubtful,  what  bad,  and  what  lost. 

6.  The  amount  of  bills  in  circulation,  the  amount  on  deposit, 
and  the  highest  amount  due  a.nd  owing  by  each  bank. 

§1474.  The  original  oaths  aforesaid  shall  be  annexed  to  said    oathofof- 
returns,   stating  them  to  be  just  and  true,   and  moreover,  that  fnnexJd  to 
since  the  last  return,  their  respective  banks,  to  the  best  of  affiants' 
knowledge  and  belief,  have  not  violated  nor  evaded  any  obligation 
imposed  by  law,  either  by  itself,  its  officer,  or  agents. 

§  1475.  The  banks  are  required  to  publish  their  several  reports      Expense 
in  some  public  gazette   of  this   State,   at  their  expense,   and  on  sing-by 
failing  to  do  so,  within  thirty  days,  it  is  the  duty  of  the  Governor 
to  make  public  advertisement  of  the  fact,  and  to  order  all  collec- 


288      PT.  1.— TIT.  16.— CHAP.  1.— Agriculture,  Trade,  etc. 


Article  2. — Oblio-ations  and  Penalties. 


tors  of  the  public  money  to  refuse  to  receive  their  bills.  The 
Governor  shall  also  publish  the  reports,  the  cost  of  which  the 
defaulting  banks  shall  be  bound  for,  as  a  tax  levied,  which  shall 
be  collected  by  execution  issued  by  the  Comptroller  General. 
§  1476.  Any  bank  refusing  to  make  out  and  return  said  reports, 
Penalty  for  as  required  by  law,  forfeits  and  pays  to  the  State  a  tax  of  two  per 

not    making  i.  ^  >  i     ./  i 

cent,  per  month  upon  their  capital  stock,  from  the  time  of  such 
refusal,  to  be  levied  and  collected  by  execution  at  the  end  of  each 
month,  by  the  Comptroller  General;  the  bills  of  said  banks  shall 
likewise  not  be  received,  as  prescribed  in  preceding  Section. 

§  1477.  Perjury  may  be   assigned  on   such  affidavits,   and  the 
^^-  name  of  a  person  signed  thereto,  authorized  to  administer  an  oath, 
shall  be  evidence  of  the  swearing. 


return. 


False 
davit  pe 
ry. 


w 


ARTICLE  II. 


OBLIGATIONS     AND     PENALTIES, 


Section. 

1478.  Prohibitions  imposed  on  banks. 

1479.  Qualification  of  Section. 

1480.  Certain  contracts  void. 

1481.  Violation  of  No.  3  Section  1478. 

1482.  Violation  of  Nos.  4  and  5,  Sec.  1478. 

1483.  Proof  prescribed. 

1484.  Violating  No.  6,  Section  1478. 


Section. 

1485.  Violating  No.  7  of  Section  1478. 
1488.  Obligations  imposed  on  banks. 

1487.  Violating  No.  1  of  Section  1486. 

1488.  Proceedings  for  such  violations. 

1489.  Violating  Nos.  2  and  3  of  Sec.  1486. 

1490.  The  term  Bank — vrhat  it  includes. 


§  1478.   The  banks  of  this  State  shall  not— 

1.  Loan  money,  directly  nor  indirectly,  on  any  note,  bill,  draft, 
Prohibi-  01'  contract  of  any  sort,  at  a  greater  rate  of  interest  than  seven 

tions  impos-  J  I  o 

ed  on  banks,  pej.  cent,  per  annum. 

2.  Discount  or  purchase  any  paper  or  debt  at  a  greater  discount 
than  said  rate. 

3.  Sell  any  kind  of  exchange,  except  sight  checks,  or  demand 
or  receive  for  exchange,  in  or  out  of  this  State,  of  any  citizen 
thereof,  a  greater  premium  than  one  per  cent,  upon  the  amount  of 
exchange  sold,  when  the  bills  of  the  bank  from  which  the  exchange 
is  sought  are  presented  at  its  counter  in  payment  thereof. 

4.  Issue  paper  or  promises  to  pay,  intended  to  be  used  as  money, 
redeemable  otherwise  than  with  gold  or  silver  coin,  at  the  standard 
value  thereof. 

5.  Issue  such  paper,   or  pay,  or  tender  in  payment,  any  paper, 


PT.  1.— TIT.  16.— CHAP.  1.— Agriculture,  Trade,  etc.      289 

Article  2. — Obligations  and  Penalties. 

payable  at  a  greater  length  of  time  than  three  days  from  the  date 
thereof. 

6.  Issue,  pay  away,  or  circulate  any  bank  bill,  note,  ticket,  or 
paper,  of  the  nature  or  appearance  of  a  bank  note  meant  for 
circulation,  or  of  a  denomination  less  than  five  dollars,  with  the 
exception  that  all  solvent  and  specie  paying  banks  may  issue  small 
bills  of  the  denominations  one,  two,  three,  and  four  dollars,  to  an 
amount  not  exceeding  twenty  per  cent,  of  their  capital  stock,  to 
be  computed  as  part  of  their  circulation. 

7.  Issue  bills  beyond  the  amount  specified  in  their  charter. 

§  1479.  Nothing  in  the  foregoing  shall  be  so  construed  as  to     Quaimca- 
restrict  the  bank  to  said  rate,  in  the  sale  or  purchase  of  foreioin  bills,  ceding  sec- 

...  .  .        tion. 

provided  that  the  said  foreign  bill  is  a  bona  fide  commercial  bill, 
and  not  a  loan  or  accommodation  by  the  bank ;  and  that  the  ex- 
change is  legitimate  commercial  exchange,  and  the  transaction  not 
in  fact  a  loan  or  accommodation  in  which  the  law  is  attempted  to 
be  evaded  by  resorting  to  the  form  of  a  bill  of  exchange,  foreign 
bill,  or  draft. 

§  1480.  Every  contract,  note,  bill,  draft,  or  paper  made  in  vio-  certain  con- 

";  '^     _  ^- ' '      — -    '  r__t^-      __  ^,..-^     tracts,    etc., 

lation_of  the  provisions  of  numbers  1  and  2  of  Section  1478,  and  >'oi<i- 
of  the  next  succeeding  Section,  are  declared  null  and  void. 

§1481.  For  a  violation  of  number  3   of  the  same   Section  the   Penalty  for 

,1  .  .1  ^'  1  ,   violating  the 

person  paying  the  premium  may  recover  three  times  the  amount  sa  item  ^of 
of  the  excess  by  a  summary  proceeding  before  any  Court  having 
jurisdiction,  on  which  judgment  may  be  rendered  at  the  first  term. 
The  suit  may  be  either  against  the  bank,  its  officer,  or  agent :  in 
either  case  the  property  and  effects  of  the  bank  are  subject  to  the 
judgment. 

§  1482.  For  a  violation  of  numbers  4   and  5  of  Section  1478  Penalty  for 

.  violating  the 

the  bank  forfeits  one  thousand  dollars  for  each  bill  or  paper  so  is-  4tii  and  5th 

■*•     ■■•  items  of  Sec- 

sued,  to  be  recovered  by  action  at  the  suit  of  the  informer — one- ^^<^^  i*"s. 
half  to  go  to  him,  the  other  half  to  the  Educational  Fund  of  the 
County  where  the  recovery  is  had. 

§  1483.  The  officer  or  agent  who  received  the  premium  shall  ap-      Mode  of 
pear  without  any  process  than  the  service  of  the  writ,  and  bring  Sribed.'^'^^" 
his  book  having  the  original   entry  of  the  transaction,  and  give 
evidence  in  the  case.     If  he  fails  to  appear,  the  affidavit  or  testi- 
mony of  the  plaintiff  shall  be  received. 

§  1484.  For  the  violation  of  number  6  of  Section  1478  the  bank 
forfeits  five  hundred  dollars  for  each  small  bill  so  issued  beyond 
19 


290      PT.  1.— TIT.  16.— CHAP.  1.— Agriculture,  Trade,  etc. 


Article  2. — Obligations  and  Penalties. 


Penalty  for  the  twentv  per  cent.,  or  amount  allowed  by  charter,  to  be  recov- 

TiolaiingGth  -  n  a  a  ^ 

item  of  Sec-  erecl  as  m  cases  oi  numbers  4  and  5,  unless  a  different  penalty  is 

tion  1478.  ^  .  .  c  j 

prescribed  by  charter. 

Penalty  for      §  1485.  For  the  vioktiou  of  number  7  of  Section  1478  the  bank 

"Violating  Ttn 

I^.^^S!j^^^'  so  violatins;  forfeits  its  charter. 

tion  1478.  o 

§  1486.  The  banks  of  this  State  shall — 

1.  Pay  specie  for  any  of  their  bills,  notes,  drafts,  or  other  obli- 
obiigations  ffations  whcu  duc  and  demanded  by  the  holder. 

imposed    o^^^-rs  •  i.  t  ^^^  -n 

banks.  2.  Reccive  their  OAvn  bills,  notes,  certificates  of  deposit,  or  other 

evidence  of  debt,  in  payment  of  debts  due  them. 

3.  Receive  their  own  bills  at  par,  whether  issued  or  made  pay- 
able at  the  parent  bank  or  any  of  its  branches,  in  settlement  of 
debts  or  balances  due  either,  and  when  notes  or  other  obligations 
are  discounted  by  any  bank,  and  become  transferred  to  another 
bank,  they  continue  payable  in  the  bills  of  the  bank  where  dis- 
counted. 

§  1487.  For  the  violation  of  number  1  of  Section  1486  the  bank 
Penalty  for  shall  pay,  bcsidcs  the  le^al  interest,  twenty-five  per  cent,  dam- 

^iolating  1st  i         r>        i  •    i  i  -n     ^    •         i  i  -i 

item  of  Sec-  ages,  cach  of  which  must  be  specified  in  the  verdict  and  iudgment, 

tion  1486.  o      '  ^         ^  ^  J       b  7 

and  the  execution  issued  thereon  shall  be  collected  in  specie. 
§  1488.  The  Governor  shall  also  cause  judicial  proceedings  to 
Proceeding  be  instituted  against  such  bank  for  the  forfeiture  of  its   charter, 
lation.         but  the  defaulting  bank  may,  within  five  days  after  such  demand 
and  refusal,  produce  satisfactory  evidence  that  there  was  an  in- 
debtedness then  due  to  said  bank  by  the  person  demanding  specie 
equal  to  the  amount  demanded,  and  the  Governor  may,  in  his  dis- 
cretion, forbear  or  postpone  the  proceeding. 

§  1489.  For  the  violation  of  numbers  2  and  3  of  Section  1486 

Penalty  for  the  bank   shall  forfeit  to  the   debtor  twenty  per  cent,  upon  the 

and  3d  items  amount  to  bc  rccovcrcd  by  special  suit  in  his  favor,  or  in  any  other 

of      Section  „,...,  ,  mi  -ii  •        f>    ^ 

14S6.  form  of  litigation  between  them.    Ine  special  deposit  oi  the  proper 

amount  in  another  bank,  or  in  the  hands  of  a  solvent  stakeholder, 
with  notice  to  the  bank,  is  a  payment. 

§  1490.  The  term  bank  includes  the  parent  bank,  its  branches, 
The  term  if  any,  and  agencies,  its  oflScers  of  every  description,  and  agents, 
ciudes%Mt'  in  construing  the  violation  of  an  obligation  or  the  imposing  a  pen- 
alty for  the  acts  of  whom  the  bank  or  branches,  as  the  case  may 
Jbe,  is  bound. 


PT.  l.-^TIT.  16.— CHAP.  1.— AaRicuLTURE,  Trade,  etc.      291 

Article  3.— Fcafeiture  of  Bank  Charters  and  Liability  of  Stockholders. 


ARTICLE  IIL 

FORFEITURE   OP  BANK   CHARTERS  AND   LIABILITY  OP  STOCKHOLDERS^ 


Section. 

1491.  Bank  eliarter  forfeited— for  what, 

1492.  Proceedings — how  instituted. 

1493.  Dut^  of  receiver. 

1494.  Compensation  of  receiver,  etc. 

1495.  Order  of  paying  debts,  etc. 

1496.  Debts  due  insolvent  banks. 


•SeCI'ION. 

1497.  Stockholders  may  be  sued — when. 

1498.  Abatement  of  suit. 

1499.  Assignment  by  bank. 

1500.  How  set  a^ide. 

1501.  Want  of  assignee — how  supplied. 

1502.  Stockholder  may  transfer  stock. 


§  1491.  Bank  charters  are  subject  to  forfeiture  for  the  same     For  what 
general  grounds  as  those  of  other  corporations,  and  also^ —  may  be  for- 

felted 

1.  For  the  violation  of  any  of  the  provisions  of  their  charters. 

2.  For  the  violation  of  any  obligation  imposed  by  law,  unless 
contrary  to  the  contracts  of  their  charters. 

3.  Whenever  it  is  demanded  by  special  enactment. 

§  1492.  When  the  Governor  is  informed  that  a  bank  incurs  the      Proceed- 
ings—  when 

penalty  of  a  forfeiture,  he  shall  cause  the  Attorney  General  to  ^^l^^T  ^^' 
institute  proceedings  therefor  in  the  County  where  the  bank  or 
parent  bank  is  located,  and  in  his  discretion  may  employ  assist- 
ant counsel  to  aid  therein,  and  pay  him  out  of  any  money  not 
otherwise  appropriated.  If  there  is  a  verdict  of  forfeiture  ren- 
dered on  the  trial,  the  Judge  shall  pronounce  the  judgment  for  Judgment. 
all  purposes  whatever,  saving  the  use  of  its  corporate  name  in 
collecting  and  paying  its  debts,  and  in  conveying  its  real  and 
personal  estate,  which  power  shall  be  exercised  by  a  receiver  ap- 
pointed by  the  Court  for  that  purpose  at  that  time,  or  any  time, 
upon  the  application  of  the  prosecuting  officer  showing  good 
cause. 

§  1493.  It  is  the  duty  of  such  receiver— 

1.  To  promptly  collect  the  debts  due  said   bank,  and  to   con-  Duty  of  re 
vert  the  property  into  cash  or  available  assets  as  soon  as  prac 
ticable. 

2.  To  pay  the   creditors  pro  rata  semi-annually,  according  to 
the  dignity  of  their  claims,  unless  there  is  sufficient  to  pay  all. 

3.  To  pay  the  holders   of   the   bills  before  other  creditors,  if 
they  give  notice  of  their  claims  within  six  months. 

4.  To  give  notice  to  said  bill  holders  and  other  creditors,  by  a 
three  months'  publication  in  some  public  gazette  of  the  State. 

5.  To  make  annual  returns  of  his  receipts  and  disbursements 
to  the  Judge  of  the  Superior  Court  of  the  County,  at  the  first 


ceiver. 


292      PT.  1.— TIT.  16.— CHAP.  1.— Ageiculture,  Trade,  etc. 

Article  3. — Forfeiture  of  Banli  Cliarters  and  Liability  of  Stockholders. 

term  held  every  year  ;  to  produce  vouchers  and  swear  to  the  re- 
turn,  which  shall  be  passed  upon  by  said  Judge,  and  entered  on 
the  minutes  by  the  Clerk. 

6.  To  distribute  the  assets,  after  paying  all  the  debts  of  the 

corporation,  among  the  stockholders  in  proportion  to  their  stock. 

§  1494.  On  failure  to   comply   substantially  with   any  of  the 

tionofrS-  ^hovo  requirements,  he  forfeits   his  compensation.     His   compen- 

ver,  etc.       gation  shall  be  the  same  as  that  allowed  administrators  ;  but  upon 

special  application,  the  Court  may  allow^,  for  good  cause  shown, 

additional  compensation. 

§  1495.  If  the  bank  is   insolvent,  the  order  of  paying  off  the 
Order  of  (Jebts   shall  be  the   same  as  is  prescribed  in  cases  of  administra- 

paymg  debts  ■•■ 

of  insolvent  tion^  to  the  cxtcnt  applicable,  except  where  special  preference  or 
postponement  is  given  by  law. 

§  1496.  Debtors  are  not,  in  such  a  case,  allowed  to  pay  their 
In  what  debts  to  the  receiver  in  bills  of  the  bank  at  their  par  value,  un- 

fnnds   debts  \  ■••  ' 

d^e^^i'e  to  be  iggg  accompanicd  by  an  affidavit  that  they  are  the  identical  bills 
received  from  the  bank  by  which  the  debt  was  created. 

g  1497.  If  the  assets  of  the  bank  are  insufficient  to  pay  all  its 
When  stock- liabilities,  the  receiver  shall  brinff  suit  against  the  stockholders 

holders    are  '  o  o 

sueabie.  j^  \^^^  q^^  name  for  their  unpaid  stock  to  an  amount  which  will 
be  their  proportion  fo-r  the  liquidation  of  all  the  debts ;  and  on 
his  failure  to  do  so,  any  creditor  may  use  his  name  for  that  pur- 
pose. 

§  1498.  Suits  do  not  abate  by  reason  of  a  vacancy  in  the  re- 
of^Ss™^^^  ceivership,  but  proceed  o-n  motion,  and  without  any  Bcire  facias 
in  the  name  of  the  new  receiver. 

§1499.  When  a  bank  surrenders  its  charter,  or  the  use  thereof, 
Assignment  it  mav  make,  in  good  faith,  an  assignment  of  all  its  effects  for 

by  banks.  ./  '  &  /  & 

the  payment  of  its  debts,  as  natural  persons  may,  but  it  can  not 
thereby  prevent  such  preference  among  its  creditors  as  the  law 
gives. 

§  1500.  A  creditor  or  stockholder  may  move,  in  six  months,  to 
How  it  may  set  aside  such  assignment,  by  petition  addressed  to  the  Superior 

be  set!  aside.  o  ?      ^    i  ^  l 

Court  of  the  County  where  the  bank  is  located,  setting  forth  the 
grounds  of  complaint,  which  shall  stand  for  trial  before  a  special 
jury  at  the  first  term  of  the  Court.  If  the  assignee  resides  in  the 
County,  he  must  be  served  as  in  other  cases  ;  if  not,  the  leaving 
a  copy  at  the  banking-house  shall  be  sufficient  service.  The  ser- 
vice shall  operate  as  an  injunction  until  the  judgment  of   the 


PT.  1. — TIT.  16. — Agriculture,  Trade,  etc. 


293 


Chapter  2. — Notaries  Public. 


Oourt.     If  the  assignment  is  set  aside,  a  receiver  must  be  ap- 
pointed. 

§  1501.  A  2;ood  assiojnment  shall  not  fail  for  the  want  of  an  as-    How  want 

^  G  r>  of    assignee 

signee,  but  the   Court,  in  vacation  or  term  time,  may  appoint  a  ^^^ved!*^  ^^' 
receiver  who  shall  execute  the  assignment. 

§  1502.  When  a  stockholder  in  any  bank  or  other  corporation  j,"^oide?^fn 
is  individually  liable  under  the   charter,  and  shall  transfer  his  ^^a^transfer 
stock,  he  shall  be  exempt  from   such  liability,  unless  he  receives  ^^^  ^^^^^ 
a  written   notice  from   a    creditor  within  six   months  after  such 
transfer,  of  his  intention  to  hold  him  liable  ;    provided,  he  shall 
give  notice  once  a  month,  for  six  months,  of  such  transfer,  imme- 
diately thereafter,   in  two   newspapers   in    or   nearest   the  place 
where  such  institution  shall  keep  its  principal  office. 


CHAPTER   II 


N^OTARIES     PUBLI.C. 


Section. 

1503.  By  wliom  appointed. 

1504.  Their  oath  of  office. 

1505.  Their  term  of  office. 

1506.  Their  qualification. 


-Section. 

1507.  Their  jurisdiction. 

1508.  Their  authority. 

1509.  Must  have  a  seal,  etc. 


§  1503.  The  power  to  appoint  Notaries  Public  is  vested  in  the  pu^ffc^^f^^ 
Justices  of  the  Inferior  Court  exclusively.  piinSd  '^^' 

§  1504.  Before  entering  on  the  duties  of  their  office,  they  shall        oath  of 
take  and  subscribe  before  the  Clerk  of  the  Inferior  Court  the  fol-  Public, 
lowing  oath,  which  shall  be  entered  on  his  minutes : 

[  I, ,  do  solemnly  swear,  or  affirm,  that  I  will  well  and 

truly  perform  the  duties  of  a  Notary  Public  for  the  County  of 

,  to  the  best  of  my  ability ;   and  I  further  swear,  or  affirm, 

that  I  am  not  the  holder  of  any  public  money  belonging  to  the 
State,  and  unaccounted  for.     So  help  me  God.J  (a) 

§1505.  They  hold  their  offices  for  four  years,  revocable  at  any   Their  term 
time  by  said  Justices,   at  the    end  of  which  time,  if   continued,  ^^  ^^^^' 
they  must  be  renewed  on  the  minutes.     The  Clerk  must  issue  to 
them  certificates  of  their  appointment  and  qualification,  and  keep  * 

a  register  of  their  names. 


(a)  Acts  of  186S-4,  p.  58. 


294  PT.  1.— TIT.  la— Agriculture,  Trade,  etc. 


Chapter  2. — ^Notaries  Public. 


Acre  and      §  1506.  A  Notaiy  must  be  twenty-one  jears  old,  or  an  attornej 
NoTaryf  ^^  ^^  ^^"^?  ^^^  ^^  good  moral  character. 

§  1507.  Their  notarial  acts  can  onlj  be  exercised  in  the  County 
ScT  S?^  ^^  their  residence  and  appointment.     Kem'Oval  from  the  County 

be  exercised  ^gg^|.gg   ^|^g  ^^gj^g^ 

§  1508.  They  have  authority — 

1.  To  take  the  acknowledgments  of  all    writings  relating  to- 
Authority  commcrce  or  navigation,  and  to  witness  such  deeds  and  mpers  as- 

of  Notaries.  . 

they  are  permitted  to  by  law. 

2.  To  dem^and  acceptance  and  payment  of  all  commercial  pa- 
per, or  paper  entitled  to  days  of  grace,  and  to  note  and  protest 
the  same  for  non-acceptance  or  non-payment. 

3.  To  certify  to  all  official  acts  when  req;uired. 

4.  To  administer  oaths  in  all  matters  incident  to  them  as  com?- 
mercial  officers,  and  [all  other  oaths  which  are  not  by  law  re- 
quired to  be  administered  by  a  particular  officer.]  (a) 

5.  To  exercise  all  other  powers  incumbent  upon  them  by  com- 
mercial usage  or  the  laws  of  this  State. 

§  1509.  For  the  authentication  of  their  notarial  acts,  each  No- 
Notarial  tary  must  provide  a  seal  of  office,  which  shall  have  for  its  impres- 
ister.  sion  his  name,  officially,  and  the  name  of  the  State  and  County 

for  which  he  was  appointed.  After  the  first  of  January,  1863,  a 
scrawl  shall  not  be  a  sufficient  notarial  seal.,  [No  seal  is  required 
to  his  attestation  of  deeds.]  (a)  He  must  keep  a  fair  register  of 
all  his  notarial  acts  sign,ed  by  him,  together  with  the  date  of  the, 
transaction. 


CHAPTER    III. 

SHIPB       AJ^B       SEAMEN 


Article  1 .  — Pilotage. 
ARTierLE  2'. — Seamen,. 


{ii\  Aets  of  186a-4„  p..  5.9i 


PT.  l._TIT.  16.— CHAP.  3.— Agriculture,  Trade,  etc.      295 

Article  1. — Pilotao-e. 


ARTICLE   I. 


PILOTAGE. 


Section. 

1510.  Commissioners — how  appointed. 

1511.  Their  powers. 

1512.  Pilot's  oath  and  license. 

1513.  His  bond. 

1514.  Forfeiture  of  license. 

1515.  Commissioners'  powers  and  duties. 

1516.  License — non-user  of. 

1517.  Pilot's  duty. 

1518.  Master  rejecting  pilot. 

1519.  Pilot  bringing  in  vessel. 

1520.  Pilot  may  have  a  substitute. 

1521.  Notice  to  pilots. 

1522.  Pilot  must  moor  vessel. 

1523.  His  fees — payment  of. 

1524.  Carrying  off  or  detaining  pilots. 

1525.  Fees  of  pilot  boat  in  certain  cases. 

1526.  Letters — delivery  of. 

1527.  Pilot's  fees  in  special  cases. 

1528.  Pilots  in  default — penalty. 

1529.  Damages  to — by  whom  settled. 


Section. 

1530.  Record  of  rules  must  be  kept. 
Subject  to  inspection. 
Commissioners'  office — where  kept. 
Compel  attendance  of  witnesses. 
May  punish  defaulting  witnesses. 
Witnesses  may  be  cited. 

1536.  Subpoenas  and  interrogatories. 

1537.  Fees  for  serving  and  executing. 
Appeal — when  allowed. 
Testimony  after  appeal. 
Fees,  etc. — how  disposed  of. 
Pilots  receive  certificates — when. 
Branch  pilots — how  appointed. 
Penalty  for  discharging  ballast,  etc. 
Proceedings  against  master. 

1545.  Pilot  failing  to  give  notice. 

1546.  Incorporated  towns — powers  of. 

1547.  Suits — by  whom  brought. 

1548.  Present  Commissioners  continue. 


1531. 
1532. 
1533. 
1534. 
1535, 


1538. 
1539. 
1540. 
1541. 
1542. 
1543. 
1544. 


§  1510.  The  corporate  authorities  of  Savannah,  Darien,  Bruns-    commis- 

•    1  1     n     •         A  r  •  sioners  of 

Wick,  and  Saint  Marjs,  shall  have  power  respectively  to  appoint  Pilotage- 
Commissioners  of  Pilotage,  not  exceeding  seven  in  number,  for  pointed. 
each  place,  of  whom  a  majority  shall  be  a  quorum,  as  follows — 
that  is  to  say :  The  authorities  of  Savannah  for  the  Bar  of  Tybee, 
and  River  Savannah,  and  the  several  bars  and  inlets  north  of 
Sapelo  Bar;  the  authorities  of  Darien  for  Sapelo  Bar,  and  Biver 
Altamaha,  and  for  the  several  bars  and  inlets  south  of  Sapelo 
Bar  as  far  as  St.  Simon's  Bar ;  the  authorities  of  Brunswick  for 
the  Bar  of  St.  Simons,  and  Turtle  Biver,  and  the  several  bars 
and  inlets  north  of  the  Great  Satilla  River  ;  and  the  authorities 
of  St.  Marys  for  the  Bar  of  the  Great  Satilla  River,  the  Bar  of 
St.  Marys,  and  all  bars  and  inlets  between  the  two.  All  vacan- 
cies shall  be  filled  by  such  corporate  authorities  respectively  in 
the  Board  of  Commissioners  in  which  a  vacancy  shall  occur,  but 
no  owner  or  part  owner  of  a  pilot  boat  shall  be  allowed  to  act  as 
Commissioner  of  Pilotage. 

§  1511.  The  said  Commissioners  are  empowered  to  license  such    powers  of 
persons,  being  citizens  of  the  United  States,  of  good  character,  sio^neJs™^  of 
as  they  shall  think  most  fit  to  act  as  pilots  for  the  conducting  of  ^  ^  ^^^' 
vessels  inward  to,  and  outward  from,  the  several  ports  for  which 
they  shall  be  licensed,  during  their  good  behavior.     Pilots  already 


296      PT.  1.— TIT.  16.— CHAP.  3.— Agriculture,  Trade,  etc. 

Article  1. — Pilotage. 

licensed  for  any  of  said  ports  shall  continue  to  act  until  removed 
for  cause.  No  person  other  than  a  duly  licensed  pilot  shall  he 
entitled  to  receive  any  fee,  gratuity,  or  reward,  for  conducting  or 
piloting  any  vessel  inward  to,  or  outward  from,  any  of  the  ports 
or  harhors  for  which  a  pilot  shall  be  licensed.  Any  person  so 
acting  without  authority,  or  interfering  with  or  disturbing  a  li- 
censed pilot  in  the  way  of  his  duty,  may,  on  conviction,  be  fined 
and  imprisoned  at  the  discretion  of  any  Court  having  jurisdic- 
tion ;  but  any  person  may  assist  a  vessel  in  distress  without  a  pi« 
lot  on  board,  if  such  person  shall  deliver  up  the  vessel  to  the  first 
pilot  who  comes  on  board  and  offers  to  conduct  it. 

§1512.  The  license  to  a  pilot  must  be  in  the  form  of  a  certifi- 

Piiot'sii-  cate  of  his   appointment,  which  must  be  signed  by  a  majority  of 

oath.   ,      the  Commissioners,  or  by  their  chairman,  by  their  direction,  and 

each  pilot,  on  receiving  his  license,  shall  take  and  subscribe  an 

oath  in  the  following  form : 

"  I,  A.  B.,  appointed  pilot  for  the  port  and  harbor  of  • — , 

^  do  swear  that   I  will  faithfully  and   according  to  the  best  of  my 

ability,  perform  the  duties  of  a  pilot  in  and  for  the  said  port  and 

harbor    of  ,   and  will,    at    all   times — wind,  weather,   and 

health,  permitting — use  my  best  endeavors  to  repair  on  board  every 
vessel  I  shall  see,  and  conceive  to  be  bound. for,  coming  into,  or 
going  out  of  the  said  port  and  harbor,  unless  I  am  well  assured 
there  is  some  other  licensed  pilot  on  board  the  same ;  that  I  will, 
from  time  to  time,  make  the  best  dispatch  in  my  power  to  con- 
vey any  vessel  committed  to  my  charge  coming  into  or  going  out 
of  said  .port  and  harbor,  and  will  at  all  times  well  and  truly 
observe,  fulfill  and  follow,  to  the  best  of  my  skill  and  judgment, 
all  such  orders  and  directions  as  I  may  receive  from  the  Commis- 
sioners of  Pilotage  in  all  matters  and  things  relating  to  the  duty 
of  a  pilot. 

§  1513.  Before  receiving  his  license,  the  pilot  must  make  and 

Pilot's  bond,  deliver  to  the  Commissioners  a  bond  payable  to  the  Chairman  of 
the  Board,  and  his  successor  in  office,  in  the  penal  sum  of  two 
thousand  dollars,  with  security,  to  be  approved  by  the  Commis- 
sioners, and  with  condition  faithfully  to  perform  his  duties  as 
pilot,  which  bond  shall  be  renewable  at  the  discretion  of  the 
Commissioners,  with  such  security  or  additional  security  as  they 
may  require. 

§  1514.  The  Commissioners  may  deprive  any  pilot  of  his  li- 


PT.  1.— TIT.  16.— CHAP.  3.— Agriculture,  Trade,  etc.      297 

Article  1. — Pilotage, 
cense  for  want  of  skillfiilness,  for  a  willful  violation  of  his  duties,     License  of 

pilot  —  how 

or  the  orders  or  regulations  of  the  Commissioners ;  for  negli-  forfeited. 
gently  or  carelessly  losing  or  injuring  any  vessel  in  his  charge; 
or  when  laboring  under  mental  derangement,  or  when  so  addicted 
to  habits  of  intoxication  as  to  unfit  him,  in  their  judgment,  to  be 
entrusted  with  the  charge  of  a  vessel;  but  in  every  such  case  an 
appeal  may  be  had,  as  is  hereinafter  provided. 

§  1515.  The  Commissioners  shall  have  power,   and  it  is  their         Power 
duty,  to  prescribe  rules   and  regulations  for   the  government  of  of  commis- 

•^  -^  ,  .  .  sioners  as  to 

pilots,  and  to  prescribe  the  fees  for  their  services,  and  they  may  pilotage. 
also  impose  such   penalties  for  neglect  of  duty,  not  inconsistent 
with  this  law,  as  they  may  think  proper ;  but  until  altered  by 
competent  authority,  the  fees  of  pilots   shall  remain  as  now  fixed 
by  law. 

§  1516.  Anv  pilot  who  fails  to  act  as  pilot  for  three  months,  or       License 

.  .  .   ,  f,  forfeited  by 

absents  himself  for   ten   days  at  anyone   time  without  les^ye  oi  ^on-user 

,  ,       ,  ,         and  absence, 

the  Commissioners,  may  be  deprived  of  his  license ;  and  any  pilot 
who  shall,  with  knowledge  of  the  arrest  of  any  vessel  under  civil 
process  from  any  Court  of  Record  of  this  State,  conduct  or  pilot 
such  vessel  out  of  the  port  or  harbor  where  such  arrest  is  made.  And  for  pi. 
and  whilst  such  vessel  is  in  charge  of  a  civil  officer,  shall  forfeit  seis  *  under 
his  license  and  be  forever  disqualified  from  acting  as  pilot,  be- 
sides forfeiting  such  sum  as  a  jury  may  assess  for  damages. 

§  1517.  Every  pilot  boat  cruising,  or  standing  out  to  sea,  must  Duty  of 
offer  the  services  of  a  pilot  to  the  vessel  nearest  the  bar,  unless  a 
vessel  more  distant  be  in  distress,  under  penalty  of  fifty  dollars 
for  each  and  every  neglect  or  refusal,  either  to  approach  the  near- 
est vessel,  or  to  aid  her  if  required,  or  to  aid  any  vessel  in  sight 
showing. signals  of  distress;  and  the  Commissioners,  or  a  majority 
of  them,  may,  for  such  neglect  or  refusal,  deprive  the  pilot  of  his 
license. 

§1518.  Any  person,  master  or  commander  of  a  ship  or  vessel    Master  re- 

*^  •■■  jecting  pilot 

bearing  toward  any  of  the  ports  or  harbors  of  this  State,  except  to  pay  ms 

,  ,  expenses. 

coasters  in  this  State,  and  between  the  ports  of  this  State  and 
those  of  South  Carolina,  and  between  the  ports  .of  this  State  and 
those  of  Florida,  and  who  refuses  to  receive  a  pilot  on  board,  shall 
be  liable,  on  his  arrival  in  such  port  of  this  State,  to  pay  the  first 
pilot  who  may  have  offered  his  services  outside  the  bar,  and  ex- 
hibited his  license  as  a  pilot,  if  demanded  by  the  master,  the  full 
rates  of  pilotage  established  by  law  for  such  vessel. 


I 


298      PT.  1.— TIT.  16.— CHAP.  3.— AGEicrLTrnE,  Trade,  etc. 

Article  1. — Pilotage. 

§  1519.   The  pilot  who  brings  a  vessel  into  port  shall  have  the 
Pilot  bring-  exclusive  rio;ht  to  take  her  out,  unless  the  master  of  such  vessel 

ing  in  a  ves-  *-■ 

sei    has    a  shall  provc,   to  the   satisfaction  of  the   Commissioners  that  such 

right  to  lead  r  ? 

it^out  pilot  misbehaved  himself  whilst  in  charge  of  the  vesssel,  or  was, 
in  the  meantime,  deprived  of  his  license,  or  that  such  pilot  had 
obtained  the  inward  pilotage  against  the  right  of  some  other  pi- 
lot first  offering  his  services,  and  in  any  of  these  cases  another 
pilot  may  be  employed. 

§  1520.  Any  pilot  having  the  right  to  take  a  vessel  out  of  port 
Pilot  may  mav  attend  in  person,  or  procure  another  person  out  of  the  pilot 

offer  SQbsti-  ^        ^  -,   .    ,     1         .  •,       1  ^    n        ^■  ^    •  n 

tute.  boat  to  which  he  is  attached  to  attend  tor  him  :  and  it  any  master 

or  owner  of  any  vessel  in  port  employ  any  other  pilot  to  carry  his 
vessel  down  the  river,  or  to  sea,  but  the  pilot  who  brought  her  in, 
or  one  belonging  to  the  same  boat,  unless  good  and  sufficient  cause 
shall  appear  therefor,  on  due  proof  thereof  before  the  Commis- 
Penaity  sioucrs.  he  shall  be  liable  to  a  fine  not  exceedinor  one  hundred  dol- 

against  mas-  ■  o 

ter  for  em-  j^TS — onc-half  to   the  pilot  lawfully  claimincr  the  pilotage  of  the 

ploying    an-  ^  •/  c  1  c 

other  pilot,    yesscl ;  but  should  such  pilot  neglect  or  refuse  to   attend,  and 
carry  down  such  vessel  when  ready  for  sea  (wind,  weather,  and 
tide  permitting)  when  thereunto  required  by  the  master,  owner,  or 
PenaTty  consiguec,  such  pilot  shall,  on  conviction  thereof  before  the  Board 
for  not  going  of  Commissioncrs,  forfeit  the  upper  pilotage  of  such  vessel,  and 
seL  be  liable  to  a  fine  not  exceeding  one  hundred  dollars,  and  any  pi- 

lot actingr  on  board  such  vessel  when  he   has  no  ri^ht  shall  be  lia- 
Penalty  blc  to  the  samc  penalty,  and  shall,  moreover,  be  liable  to  the  pilot 

for    piloting  .  i  •    i       n  •  i  •  i     t        i 

withou  t  having  the  right  for  carrying  the  same  vessel  out;  provided^  the 
Commissioners  have  not  sufficient  evidence  of  the  necessity  of  his 
acting. 

§1521.   The  master  of  a  vessel  in  readiness  to  leave. must,  if 
Pilot  to  be  practicable,  give  notice  to  the  pilot  entitled  to  conduct  the  vessel 

notified      of  ^  ,  . 

vessei-s  de-  out,  of  his  intention  to  leave,  or  to  some  other  pilot  beloncfina:  to 

parture.  '  '  r  c      o 

the  same  boat ;  provided^  such  pilot  be  at  the  place  of  departure 
of  such  vessel,  or  near  thereto. 

§  1522.  Every  pilot  in  any  of  the  harbors  aforesaid  bringing 
Pilot mr.st  any  vessel  to  anchor  in  any  of  said  harbors,  shall  moor  such  ves- 

moor  vessel.       .  .  t./.i  .-,,  ii 

sel,  or  give  proper  directions  tor  the  mooring  oi  the  same,  and  the 
safe  riding  thereof,  subject  only  to  the  legal  harbor  regulations  of 
each  port. 

§  1523.  A  pilot  bringing  a  vessel  into  port  shall  be  entitled  to 
his  fees  before  her  departure  from  port — to  be  paid  in  advance,  or 


PT.  1,— TIT.  16.--CHAP.  3.— Agriculture,  Trade,  etc.      299 

Article  1. — Pilotage. 


security  given  for  the  payment;  and  on  failure  thereof  he  may  piiofsfees 
refuse  to  carry  the  vessel  out,  and  all  fees  for  pilotage  may  be  de-  before  vessel 
manded  and  recovered,  in  any  Court  having  jurisdiction,  from  the 
owner,  master,  or  consignee  of  the  vessel ;  and  if  any  licensed  pi- 
lot shall  ask  or  demand  more  fees  for  his  services  than  are  specified 
in  the  rates  of  pilotage,  on  due  proof  thereof  before  the  Commis- 
sioners, he  shall  forfeit  double  the  amount  of  such  vessel's  pilot- 
age. 

§  1524.  The  owner,  master,  or  consignee  of  any  vessel  carryino;   Pen.iityfor 

•^  .  '  .  .  Jo  carrying  off 

off  any  pilot  of  such  vessel,  and  against  his  consent,  to  any  port,  or  detaining 
either  foreign  or  on  the  coast,  shall  be  liable  to  such  pilot,  in  an 
action  on  the  case,  for  the  payment  of  all  reasonable  expenses, 
and  for  the  further  sum  of  not  exceeding  three  dollars  a  day,  dur- 
ing the  necessary  absence  of  the  pilot;  provided^  the  carrying 
away  of  such  pilot  be  not  owing  to  any  default,  misconduct,  or 
negligence  on  his  part ;  and  the  master  of  a  vessel  detaining  a  pi- 
lot on  board  his  vessel,  the  wind  and  weather  permitting  him  to 
go  to  sea,  shall  be  liable  to  pay  such  pilot  three  dollars  a  day  for 
every  day  he  is  so  detained. 

§  1525,  When  any  pilot  boat  belonginoj  to  a  different  pilot  than    Fees  of  pi- 

1  1  11  1  ?  1  1        .     ^ot  boat  for 

the  one  who  may  have  conducted  a  vessel  out  to  sea  takes  such  pi-  taking  pilot 

•^  ,  ,  from  vessel. 

lot  off  from  such  vessel,  such  pilot  boat  shall  be  entitled  to  one- 
third  of  the  pilotage. 

§1526.  Whenever  a  vessel  shall  touch  off  the  Bar  of  Tybee  for   Pilot's  fees 

•  •  for    deliver" 

instructions,  any  pilot  delivering  on  board  such  vessel  any  letters  ing   letters, 

or  orders  shall  be  allowed  full  Bar  or  Cockspur  pilotage  in  and 

out. 

§1527.  Any  pilot  belonging  to  any  port  in  this  State,  meeting    pnot'sfees 
at  sea  with  any  vessel  bound  to  another  port  within  the  same,  vTsseuTa'S 
shall,  if  capable  and  thereunto  required,  take  charge  of  and  pi-**  ^'^  p^^*- 
lot  such  vessel  into  such  port,  and  shall  be  paid  two  dollars  per 
day  for  every  day   such  pilot  may  be   on  board  such  vessel  at 
sea,  Avithout  the  bars,  over  and  above  the  usual  rate  of  pilotage, 
and  no  other  pilot  shall  interfere  while  the  former  is  willing  to 
continue  his  services. 

§  1528.    If   any   vessel    whatsoever,    or   the    cargo    or  freight    Defanit  of 
thereof,    shall  receive    any  damage   or    miscarriage,    or   be  lost,  punLlTcci.^^ 
through  the  negligence  or  default  of  any  pilot,  after  such  pilot 
takes  charge  of  the  same,  and  the  claim  exceeds  one  hundred  dol- 
lars, the  said  pilot  shall,  in  such  case,  on  conviction  thereof  before 


V 


800      PT.  1.— TIT.  16.— CHAP.  3.— AaRicuLTURE,  Trade,  etc. 

Article  1. — Pilotage. 

any  Court  of  Record  in  this  State,  be  obliged  to  answer  and  make 
good  to  the  sufferers,  or  the  master  of  said  vessel,  all  and  every 
the  damages  which  he  shall  sustain  thereby. 

§  1529.  All  other  cases  of  damage  or  difference  that  may  arise 
other  cases  or  be  made  against  any  master  or  pilot,  for  or  concerning  the  pi- 

of    damages  "  *'  ■'-  '  ^  or 

to  be  settled  lotage  of  anv  vessel,  or  any  other  matter  relative  to  the  business 

by  Commis-  o  »/  /  ./ 

sioners.  qj.  q^^^q  q^  ^  pilot,  in  any  of  said  harbors,  shall  be  heard  and  de- 
termined by  the  Commissioners,  or  a  majority  of  them,  appointed 
for  the  care  of  the  pilotage  where  such  damage  or  dispute  shall 
arise,  who,  by  their  decree  or  order,  shall  lawfully  decide  and  reg- 
ulate every  such  damage  or  difference,  and  who  shall  have  power 
to  enforce  such  decree  or  order  by  execution  or  warrant  of  dis- 
tress under  their  hands  and  seals,  or  the  hands  and  seals  of  any 
three  of  them,  directed  to  any  Sheriff  or  Constable  of  the  County 
where  such  execution  issues,  commanding  the  sale  of  the  offender's 
goods,  or  so  much  thereof  as  shall  be  sufficient  to  satisfy  such 
execution  or  warrant,  and  all  sales  thereunder  shall  be  conforma- 
ble to  the  laws  of  the  State  in  other  cases  of  sale ;  and  such 
Sheriff  or  Constable  shall  be  liable  to  be  ruled  before  the  Judge 
of  the  Superior  Court  as  in  other  cases,  in  term  time  or  vacation, 
for  any  default  in  duly  executing  such  process ;  but  in  case  of  a 
sentence  or  judgment  for  more  than  twenty  dollars,  an  appeal 
may  be  had,  as  is  hereinafter  provided. 

§  1530.  The  Commissioners   shall  preserve,  in   a  neatly  bound 
Commis-  book,  a  rccord  of  all  their  acts,  and  of  the  rules  and  regulations 

sioners  must  p-p  i         t  •  i  p      i  • 

keep  a  re-  adoptcd  by  them  for  the  direction  and  government  of  the  pilots; 

cord  of  rules,  .  .  . 

«tc.  but  in  the  city  of  Savannah  such  rules  and  regulations  shall  not 

be  operative  until  approved  by  the  City  Council.  They  must  de- 
signate one  of  their  number  as  Chairman,  and  cause  a  record 
thereof  to  be  made,  and  prescribe  such  fees  for  the  service  of  the 
pilots,  and  impose  such  fines  and  penalties  not  inconsistent  with 
the  provisions  of  this  Chapter,  as  they  may  deem  expedient.  They 
must  also  preserve  upon  record  a  list  of  all  persons  appointed  pi- 
lots by  them,  as  well  as  those  by  them  suspended. 

§  1531.  All  persons  interested  shall  have  access  to,  and  be  per- 

Feesof  Sec-  mitted  to  havc,  copies  of  the  records  ;  and  copies  thereof  certified 

retary.  ^  -*■  ■*■ 

by  the  Chairman  or  Secretary  shall  be  presumptive  evidence  of 
the  facts  therein  stated.  The  Secretary  of  the  Commissioners 
shall  have  such  salary  or  fees  as  the  Commissioners  may  deter- 
mine, and  such  salary  or  fees  shall  be  paid  out  of  fines  and  for- 


PT.  1.— TIT.  16.— CHAP.  3.— AGRictJLTURE,  Trade,  etc.      301 


Article  1. — Pilotage. 


f 


feitures,  or  sncli  other  fund  as  shall  be  under  the  control  of  the 
Commissioners. 

§  1532.  The  office  of  the  Commissioners  must  be  kept  in  some  office 

f.,.,,  ,,.  ini  .  11-     ^"'^    records 

suitable  place,  ot  "wnich   the  public  shall  have  notice,  and  their  of  commis- 

,,,.  irr*  •         ^       sioners,  etc 

books,  papers,  and  records,  may  be  kept  m  such  office,  or  m  the 
office  of  any  Court  of  Record  in  the  County. 

§  1533.  When  the  attendance  of  any  person  shall  be  required      commis- 

1        /^  .      .  f.   T^.,  .  sioners  may 

as  a  witness  before  the  Commissioners  of  Pilotage   m  any  matter  compel    at- 

^  ,  "^  tendance    of 

or  claim  of  which  they  shall  have  jurisdiction,  it  shall  bo  the  ^vunesses. 
duty  of  their  Secretary,  on  application,  to  issue  summonses  in  the 
nature  of  writs  of  subpoena,  to  be  signed  by  him  and  directed  to 
the  persons  whose  attendance  shall  be  required,  when  such  per- 
sons reside  in  the  County  where  such  matter  or  claim  may  be  de- 
pending. The  summons  shall  express  the  cause  and  the  party 
at  whose  suit  it  shall  be  issued,  and  shall  be  served  on  such  wit- 
nesses at  least  twenty-four  hours  before  the  meeting  of  the  Com- 
missioners to  which  it  shall  be  returnable,  and  it  shall  be  served 
by  the  messenger  of  such  Commissioners,  or  a  Constable,  and  the 
return  of  such  officer  shall  be  evidence  of  the  service  of  the  subpoena. 

§  1534.  Any  witness   thus   summoned,   whose   testimony   shall     May  pun- 
-  .  ^        iiinr»'i  1  ^^^  default- 

appear  to   be  material,  and  who  shall  tail  to  appear,  may  be  at-  ing  witness- 

tached  by  the  Commissioners,  and  the  attachment  shall  be  di- 
rected to  a  Sheriff  or  Constable,  and  made  returnable  to  the  next 
Superior  or  Inferior  Court  of  the  County ;  and  such  Court  may 
fine  such  witness  in  a  sum  not  exceeding  one  hundred  dollars,  un- 
less a  good  excuse  be  made  to  the  Judge  of  said  Court,  but  such 
witness  shall  nevertheless  be  liable  to  action  at  the  suit  of  the 
party  injured  by  such  non-attendance. 

§  1535.  When  any  witness  may  be  a   seaman  or  transient  per-      May  cite 

,T         r^  •      '  .  -I  1         ',  1       witnesses  to 

son,  the   Commissioners  may  issue  subpoena  to  such  witness  by  answer   in- 

■1      •       ci  '    '  !•  •  terroga- 

tneir  secretary,  requiring  such  witness  to  appear  at  a  time  and  tories. 
place  therein   stated  before  any  Justice  of  the  Peace,  or  of  the 
Inferior  Court  of  the  County,  to  answer  written  interrogatories  to 
be  propounded  to  him. 

§1536.  The  subpoena  must  be  served  twenty -four  hours  before     service  of 
it  is  returnable,  and  notice  for  the  same  length  of  time  must  be  et".  ^^" 
given  to  the  adverse  party,  or  attorney,  agent,  or  consignee,  of  the 
time  and  place  of  putting  such  interrogatories.     The  officer  tak- 
ing the  depositions  shall  seal  up  and  properly  endorse  and  return 
such  depositions,  wdiich  may  be  offered  by  consent  or  by  order  of  the 


802      PT.  1.— TIT.  16.~CHAP.  3.— Agricultuee,  Trade,  etc. 


Article  1.— Pilotao-e. 


Commissioners,  and  sliall  stand  in  the  place  of  the  oral  examination 
of  such  witness,  when  his  personal  attendance  can  not  be  procured. 
§  1537.  The  Secretary's  fees  for  each  subpoena  shall  be  twenty- 
Fees  for  five  cents  ;  for  each  attachment  fifty  cents ;  for  examining  a  wit- 
serving  sub-  1       T        '  o     ^       Tt  Tn- 

pcenas,  etc.  noss  the  J ustice  of  the  Peace  shall  receive  one  dollar ;  the  Sheriff 
or  Constable,  for  serving  any  subpoena,  shall  receive  twenty-five 
cents,  and  for  executing  and  returning  an  attachment  to  Court, 
fifty  cents. 

§  1538.  In  any  case, where  a  pilot  shall  be  suspended,  or  where 

Appeal  from  a  fine  cxceedins;  the  sum  of  twenty  dollars  shall  be  imposed  by 

judgment  of  ^  ^    ^  "^  i  •/ 

c  ommis-  any  judgment  or  decision  of  the  Board  of  Commissioners,  or  where 

SToners,  etc,  t/  ^       o  ' 

the  license  or  warrant  of  a  pilot  shall  be  revoked,  then  the  person 
so  fined,  or  the  pilot  so  suspended,  or  whose  license  or  warrant 
shall  be  revoked,  may  petition  the  Judge  of  the  Superior  Court 
of  the  County  where  such  judgment  or  sentence  may  be  made, 
setting  forth,  on  oath,  the  circumstances  of  the  case,  a  copy  of 
which  petition  shall  be  served  on  the  acting  Chairman  or  Secre- 
tary of  such  Board  at  least  three  days  before  the  return  of  any 
rule  thereon ;  and  if,  on  reading  such  petition,  the  Judge  shall 
think  there  is  sufficient  ground  for  the  allowance  of  an  appeal,  he 
shall  therein  direct  an  issue  to  be  made  up  between  such  Commis- 
sioners and  the  appellant,  which ^issue  shall  be  tried  by  a  special 
jury,  as  in  other  appeal  cases,  at  the  next  term  of  the  Superior 
Court,  unless  good  cause  be  shown  for  a  continuance  ;  and  if,  upon 
such  trial,  a  verdict  shall  be  rendered  in  favor  of  the  appellant, 
the  said  Judge  shall  make  a  rule  remitting  such  fine,  or  restoring  the 
suspended  pilot,  or  the  pilot  whose  warrant  or  license  may  have 
been  revoked  as  aforesaid. 

§  1539.  In  the  case   of  an  appeal,   as  aforesaid,   commissions 
commis-  mav  issuc  to  take  the  depositions  of  any  person  not  a  resident  of 

sioners      to  "^  •■■  *^    -^ 

take    testi-  the  Couuty,  or  whose  oral  testimony  can  not  be  conveniently  had, 

mony,  etc.  *'  ■'  *^  <j  > 

as  in  other  cases,  before  such  Superior  Court,  but  no  such  com- 
missions shall  issue  but  upon  three  days'  notice  to  the  opposite 
party,  by  service  of  a  copy  of  the  interrogatories  to  be  exhibited 
as  in  other  cases. 

§  1540.  All  fines  and  forfeitures  collected  by  the  Commissioners 
Fines  and  shall  be  applied  toward  payment  of  the  ordinary  expenses  of  the 

forfeitures—  ^  ^  ^    «^  .      . 

"ow  dispos-  Board,  and  the  residue  shall  be  expended  by  the  Commissioners 
toward  improving  the  navigation  of  the  port  or  harbor  where  such 
fines  and  forfeitures  are  inflicted. 


PT.  1.— TIT.  16.-  CHAP.  3.— Agriculture,  Trade,  etc.      808 


Article  1. — Pilotage. 


§  1541.  No  person  shall  receive  a  certificate  to  act  as  pilot  until       Pilots— 

.  T  ■when  to  re- 

ne  shall  have  served  two  full  years  m  a  decked  boat,  and  have  ceive  certm- 

•^  '  cate. 

given  satisfactory  evidence  of  character  and  skill ;  and  every  cer- 
tified pilot  shall  serve  eighteen  months  before  he  shall  be  entitled 
to  an  increased  authority ;  but,  in  case  of  emergency,  such  addi- 
tional pilots  may  be  appointed  as  the  Mayor  or  other  chief  officer 
of  the  port  may  determine — -the  foregoing  restrictions  to  the  con- 
trary notwithstanding. 

§1542.  All  branch  pilots  must  be  appointed  by  the  Commis-    Branch  pi- 
sioners,  and  whenever  a  vacancy  occurs  in   a  branch,  the  person  appointed. 
who  has  served  the  longest  time  as  an  apprentice  must,  if  deemed 
competent  by  the  Commissioners,  be  appointed  to   the  vacancy ; 
but  no  person  can  hold  a  branch  who  is  not  engaged  in  pilotage, 

§  1543.  If  any  master  of  a  vessel,  or  water-craft  of  any  descrip-  Penalty  for 
tion,  shall  throw,  or  permit  to  be  thrown  from  on  board  such  ves-  i"?    baiiast 

'  ^  i-  in  bar  Dor. 

sel  or  water-craft,  into  any  of  the  waters  of  any  bay  or  harbor  of 
this  State,  or  within  three  miles  of  the  outside  bar  of  any  such 
bay  or  harbor,  any  stone,  gravel,  or  other  ballast,  he  shall  forfeit 
a  sum  not  less  than  five  hundred  nor  more  than  two  thousand  dol- 
lars for  any  such  oifense,  and  may  be  imprisoned  not  exceeding 
three  months,  at  the  discretion  of  the  Court — -one  half  the  for- 
feiture to  be  paid  to  any  one  first  giving  information  of  the  of- 
fense to  the  Commissioners,  and  the  other  half  to  the  use  of  the 
Commissioners  of  said  harbors  respectively,  for  improvement  of 
navigation. 

§  1544.  Upon  the  Commissioners  receivins;  satisfactory  evidence  Proceeding 

.  .  .  .for      violat- 

of  the  offense  specified  in  the  precedino;  Section,  it  shall  be  their  ing  preced- 

,  -  .  ^  ,      ing  Section. 

duty  to  proceed  to  recover  such  forfeiture  by  process  of  attach- 
ment, in  the  name  of  the  State,  which  may  be  issued,  as  other  at- 
tachments, on  the  oath  of  the  informer,  or  of  one  of  the  Commis- 
sioners, and  be  levied  on  the  vessel  from  which  the  offense  was 
committed.  The  vessel  may  be  replevied  by  the  master,  owner, 
or  consignee,  by  giving  bond,  payable  to  the  State,  in  double  the 
amount  of  the  penalty,  with  the  condition  to  have  the  vessel  forth- 
coming to  satisfy  such  judgment  as  may  be  rendered  in  the 
suit. 

§  1545.  It  shall  be  the  duty  of  every  pilot,  having  knowledge       penalty 
of  the  commission  of  the  offense  specified  in  the  two  preceding  fo^^conLa^ 
feections,  to  give,  as   soon  as  practicable  thereaiter,  information  fense< 
thereof  to  the  Commissioners ;    and,  failing  to  do  so,  such  pilot 


304      PT.  1.— TIT.  16.— CHAP.  3.— Agriculture,  Trade,  etc. 


Article  1. — Pilotasre. 


shall  be  deprived  of  his  license,  and  be  thereafter  forever  disqual- 
ified for  the  office  of  pilot. 

§  1546.  The  City  Council  of  Savannah  shall  have  authority  to 

incorpora-  prohibit,  Under  proper  penalties,  the   throwing  or  depositing  in 

may  pruhib-  the   Savaunah  River,  and  within  the  iurisdictional  limits  of  said 

it    the     (lis-      .  in  i         i 

charge     of  citv,  of  anv  substancc  of  any  nature  or  kind  which  might,  in  any 

ballast  in  na-         J^  ^  J  ^  &      ?  J 

vigabie  wa-  degree,  lessen  the  depth  of  water  in  said  river,  or  any  part 
thereof,  within  said  limits ;  and  the  same  authority  is  hereby 
vested  in  the  corporate  authorities  of  the  other  towns  respectively, 
as  to  navigable  waters  within  their  respective  jurisdictions. 

§  1547.  The  same  Boards  of  Commissioners  are  hereby  author- 
Suits  in  ized,  in  their  own  names,  or  in  that  of  their  Chairman,  respect- 

the     name.  ^ 

of  commis-  ivcly,  as   such,  to  sue  tor  and  recover,  to  their  own  use  and  the 
improvement  of  navigation,  any  forfeiture  which  may  accrue  un- 
der this  Chapter  which  is  not  otherwise  specifically  appropriated. 
§  1548.  All  existing   appointments  of  Commissioners  of  Pilot- 
Present  age,  and  of  officers  under  the  same,  as  well  as  their  rules  and 

Com  mis-      °  ' 

sione 

to 

good 


3rs  etc.,  regulations   not  contrary  to  law  at  the  time  of  the  adoption  of 

stand*^  .  ..  . 

this  Code,  shall  continue  good  and  valid  in  law,  according  to 
their  nature  and  terms,  until  superseded  by  authority  of  this 
Code. 


ARTICLE  II. 


seamen. 


Section. 

1549.  Defaulting  seamen— how  punished. 

1550.  Proceedings  against  deserters. 

1551.  Seamen  not  to  be  credited. 

1552.  Sale  of  liquors  to  seamen. 

1553.  Certificate  of  discharge. 

1554.  Shipping  an  articled  seamen. 


Section. 

1555.  Penalty  for  such  shipping,  etc. 

1556.  Boarding  vessel  to  abduct  seamen. 

1557.  Abducting  seamen. 

1558.  Harboring  deserted  seamen. 

1559.  Illegal  arrest  o£  seamen. 


§  1549.    Any  seaman    having   entered  or   shipped  himself  on 
Penalty  board  aiiy  vessel  within  this   State,  or  which   shall  come   to  the 

against   sea-  *' 

men  absent-  game,  and  haviug  signed  a  contract  with  the  master  or  commander 

mg      them-  '  o      o 

selves.  thereof  to  proceed  upon  any  voyage  therein  mentioned,  who  shall 
absent  himself  from  any  such  ship  or  vessel  for  twenty-four  hours 
without  leave  of  said  master  or  commander,  or  other  chief  officer 
having  command  of  such  vessel,  or  who  shall  neglect  or  refuse  to 
perform  his  duty  on  board  the  same,  or  refuse  to  proceed  on  the 


PT.  1.— TIT.  16.— CHAP.  3.— Agriculture,  Trade,  etc.      305 

Article  2. — Seamen. 


voyage  mentioned  in  such  contract,  may  be  apprehended  on  war- 
rant from  any  Justice  of  the  Peace  within  his  jurisdiction,  upon 
application  being  made  to  him  by  such  master  or  commander  un- 
der oath,  and  upon  proof  of  such  absence  without  leave,  or  of 
such  neglect  or  refusal  as  aforesaid,  he  may  be  committed  to  jail, 
or  other  secure  place,  for  any  time  not  exceeding  thirty  days,  or 
until  the  sailing  of  such  vessel,  and  the  charge  of  apprehending, 
committing,  and  maintaining  such  seaman  during  his  confinement 
as  aforesaid,  shall  be  paid  by  the  complainant,  and  by  him  be 
deducted  out  of  the  wages  due,  or  to  be  due,  such  SQaman ;  but 
no  seaman  shall  be  received  by  the  jailer  until  security  shall 
have  been  given  for  the  maintenance  and  jail  fees  of  such  sea- 
man. 

§  1550.  The  Judge  of   the   Superior  Court,  or  Judge  of  any      Trocecd- 

.  1         x  •         /^  ^"^^    against 

City  Court,  or  a  Justice  of  the  Inferior  Court,  or  Justice  of  the  seamen  and 

•^  .      .  apprentices. 

Peace  of  the  County,  or  any  similar  officer  of  any  seaport  or 
County,  on  oath  made  before  him  that  an  articled  seaman  or  ap- 
prentice has  deserted  or  absconded  from  a  vessel,  describing  said 
seaman  and  vessel,  and  that  he  is  harbored  or  secreted  by  some 
person  (describing  him)  in  a  certain  place  (describing  it),  may 
issue  his  warrant,  directed  to  any  lawful  officer  of  the  County, 
authorizing  a  search  for  and  seizure  of  such  person  in  the  place 
designated,  and  to  fully  execute  such  warrant.  Any  person  re- 
sisting such  search  or  seizure  may  be  fined  and  imprisoned  at  the 
discretion  of  any  Court  having  jurisdiction. 
A    §  1551.  It  shall  not  be  lawful  for  any  person  to  give  credit  to    credit  not 

W  ^  '  .  to  be   given 

any  seaman  belonging  to   any  vessel  within  this   State,  having  *»  seamen, 
signed  any  contract  to  proceed  therein,  for  any  sum  exceeding 
one  dollar,  except  by  leave  of  the  master  or  commander  of  such 
vessel,  on  pain  of  forfeiture  of  the  moneys  or  goods  so  credited. 

§  1552.  It  shall  not  be  lawful  for  any  keeper  of  a  tavern  or    Entertain- 

,.,  ,  ,,....  ..  ing  or  furn- 

tipplmg  house,  or  any  other  person  selling  intoxicating  or  spiritu-  isiung    sea- 
ous  liquors,  to  sell  any  such  liquors  to  any  seaman  belonging  to  spirituous ii- 
any  vessel,  and  who  may  have  signed  any  contract,  to  the  amount  iiibited. 
of  more  than  thirty  cents  in  any  one  day,  or  to  entertain  or  suf- 
fer any  such  seamen  to  drink  in  such  tavern  or  tippling  house, 
or  furnish  such  seamen  with  liquor  after  the  hour  of  nine  o'clock 
at  night,  unless  with  the  consent  of  the  master  or   commander  of 
such  vessel ;  and  any  person  ofi*ending  against  any  of  these  pro- 
visions may,  on  conviction,  be  fined  in  a  sum  not  exceeding  fifty 
20 


306      PT.  1.— TIT.  16.— CHAP.  8.— Agriculture,  Trade,  etc. 

Article  2, — Seamen. 

dollars,  or  be  imprisoned  in  the  common  jail  for  not  more  than 
thirty  days. 

§  1553.  Any  seaman  whose   contract  with  any  master  or  com- 
seamen  mandcr  of  any  vessel  within  the   State,  for  the  performance  of 

m  a  V      de- 

mand  certif-  any  voyagc  therein  specified  shall  be  determined,  may  demand 
charge.  from  him  a  certificate  thereof,  and  of  his  discharge,  and  on  refu- 
sing to  give  such  certificate,  without  just  cause,  any  two  Justices 
of  the  Peace,  upon  due  application  and  proof  thereof,  may  give 
the  same,  which  shall  be  of  equal  force  as  if  given  by  such  mas- 
ter or  commander,  who  shall  be  liable,  civilly,  to  pay  one  dollar 
for  such  certificate  so  given  by  such  Justices,  and  shall,  moreover, 
on  conviction  before  any  Court  of  competent  jurisdiction,  be  lia- 
ble to  a  fine  of  fifty  dollars  for  such  refusal. 

§  1554.  No  master  or  commander  of  any  vessel,  or  other  per- 
mring, re-son  withiu   this  State,  shall  hire,  receive,  entertain,  or  ship,  any 

ceiving,   en-  _  '  '  '  ?  r?         »/ 

Pertaining  scamau  bclonajinor  to  and  pretending  to  be  discharged  from  any 

or   shipping  .  .  .  .  . 

vbTd  '^^^'  ^^^^^h  without  a  certificate  of  discharge  being  in  possession  of 
such  seaman,  under  the  penalty  of  fifty  dollars  for  every  such 
offense ;  and  the  same  penalty  may  be  inflicted  on  any  person 
keeping  or  attending  any  ferry  within  this  State,  who  shall  will- 
ingly transport,  or  suffer  to  be  transported  over  such  ferry,  any 
fugitive  seaman  not  having  a  certificate  of  discharge  as  afore- 
said. 

§  1555.  If  any  sailor  boarding-house  keeper,  a  runner,  or  ship- 
Penaity  for  piup;  master,  or  other  person,  shall  hire,  receive,  or  entertain,  or 

lairing,      re-  -^    .  *=  '  .  .  .  . 

cQiying,  .  or  ghip,  any  Seaman  belonging  to  or  pretending  to  be  discharge 
s^^Dcen  con- f j.om  any  vessel,  without  a  certificate  of  discharge  being  in  pos- 
session of  said  seaman,  or  shall  aid  or  be  concerned  in  any  man- 
ner in  the  shipping,  or  offering  to  ship,  such  seaman,  the  person 
tbus  offending  shall  be  fined  and  imprisoned  a*t  the  discretion  of 
the  Court.  Any  order  given  by  such  seaman  for  advance  wages 
shall  be  void. 

§  1556.  If  any  person  shall  board  any  vessel  in  any  port  or 
Boarding  harbor,  or  on   any  of  the  waters  of  this  State,  with  intent  to  in- 

vessel       for  '         .  -^  .  ' 

t^e  purpose  vcigle,  entico,  convey  away,  abduct,  with  or  without  violence,  or 
ing  — ho  w  secretly  carry  ofi*,  any  articled  seaman  or  apprentice  from  such 

punished.  »/  v'  ?         j  rr 

vessel,  or  shall  afford  any  conveyance  or  facility  to  such  seaman 
or  apprentice  to  leave  such  vessel,  such  person  so  offending  shall 
be  liable  to  indictment,  and,  on  conviction,  shall  be  fined  or  im- 
pr^isoned,  p.r  l)oth,  at  the  discretion  of  the  Court. 


PT.  1.— TIT.  16.— CHAP.  3.— -Agriculture,  Trade,  etc. 


;07 


Article  2. — Seamen. 


§  1557.  If  any  person  shall  aid  any  articled  seaman  or  appren- 
tice to  desert  from  his  vessel  while  within  the  waters  of  this  State, 
or  shall  inveigle,  entice,  convey  away,  abduct,  or  carry,  with  or 
without  violence,  or  secretly  carry  off,  any  articled  seaman  or  ap- 
prentice from  any  such  vessel,  such  person  so  offending  shall  be 
liable  to  indictment,  and,  on  conviction,  shall  be  liable  to  fine  or 
imprisonment,  or  both,  at  the  discretion  of  the  Court. 

§  1558.  If  any  person  shall  harbor,  secrete,  entertain,  lodge, 
or  keep,  or  shall,  directly  or  indirectly,  suffer  to  be  harbored,  se- 
creted, entertained,  lodged,  or  kept,  in  or  about  hi.s  house  or 
premises,  any  articled  seaman  or  apprentice,  knowing  such  sea- 
man or  apprentice  to  have  deserted  from  his  vessel,  such  person 
shall  be  liable  to  indictment,  and,  on  conviction,  be  fined  in  a 
sum  of  not  more  than  five  hundred  dollars,  or  imprisoned,  or  both 
fined  and  imprisoned,  at  the  discretion  of  the  Court. 

§  1559.  The  law  in  respect  to  the  vexatious  arrest  and  deten- 
tion of  seamen,  and  to  summary  trial  of  causes,  civil  and  crimi- 
nal, in  which  seamen  and  the  captains  and  consignees  of  vessels 
may  be  concerned,  shall  be  as  is  provided  in  this  Code ;  but  if 
any  provision  in  this  Code  contained  shall  conflict  with  the  Code 
of  the  City  of  Savannah,  appended  hereunto,  the  said  Code  of 
Savannah  shall  prevail  within  the  corporate  limits  of  said  city. 


Aiding 
seamen  or 
apprentices 
to  escape — 
how  piin- 
ished. 


Harboring 
seamen  or 
apprentices. 


Vexatious 
arrest  and' 
detention  of 
seamen. 


Code. 


i 


CHAPTER    IV. 


INSPECTION 


Article  1. — Flour,   Corn  Meal,  and  Grain. 
Article  2. — -Wood,   Turpentine,   Timber,  etc* 


ARTICLE   I. 

FLOUR,   CORN   MEAL,   AND   GRAIN. 


-JSECTION. 

1560.  Inspectors — by  whom  appointed. 
156L  Bolted  flour  shall  be  merchantable. 

1562.  Flour  barrels — dimensions,  etc. 

1563.  Flour  shall  be  inspected — when. 

1564.  Fraudulently  packing  flour. 


Section. 

1565.  Inspector  can  not  purchase. 

1566.  Selling  without  inspection. 

1567.  Inspector's  oath. 

1568.  Corn  meal,  corn,  and  other  grain. 


308      PT.  1.— TIT.  16.— CHAP.  4.— Ageiculttjre,  Trade,  etc. 

Article  1. — Flour,  Corn  Meal,  and  Grain. 

§1560.  The  Inferior  Courts  in  the  several  Counties  of  this- 
Inspectors  State  shall  have  power  to  appoint,  annually,  one  person  of  good 
appointed,  reputo  to  be  inspector  of  flour  in  their  respective  Counties,  but 
the  same  power  may  be  exercised  exclusively  in  any  corporate 
towns  within  their  corpoi'ate  limits ;  vacancies  in  such  office  of  in- 
spector may  be  filled  by  the  appointing  powxr  as  soon  as  may  be 
after  the  happening  of  any  vacancy. 

§  1561.  All  bolted  wheat  flour,  and  every  cask  thereof,  brought 
Bolted flonr  to  the  placcs  aforcsaid  for  sale,  shall  be  made,  by  the  miller  or  man- 

s  h  a  1 1     be  ^  '  '     '' 

merchan- ufacturer  thcrcof,  merchantable  and  of  due  fineness,  and  without 

table. 

mixture  of  coarse  flour,    or  the  flour   of  any   other  grain  than 
wheat. 

§1562.  All  flour  barrels  packed  for  sale  shall  be  well  made,  and 

ourbar-  of  Q^ood  material,  twenty-seven  inches  in  length,  tiojhtened  with 

what    the^  ^^  least  tcu  hoops,  and  sufficiently  nailed,  with  the  tare  plainly 

must    con-  marked  on  the  head  thereof,  and  every  miller  or  bolter  sliall  put 

into  a  barrel  the  full  quantity  of  196  pounds  of  flour,  and  shall 

put  into  every  half  barrel  the  quantity  of  98  pounds  of  flour,  and 

on  failure   thereof  shall  forfeit  and  pay  the  sum  of  four  dollars 

for  each  barrel  or  bag,  to   be  recovered  by  any  informer  before 

any  Justice   having  jurisdiction    thereof — one-half  thereof  to  go 

to  the  informer  and   the  other  half  to  the  County  or  corporation 

having  the  appointment  of  inspector. 

§  1563.  All  barrels,  half  barrels,  and  bags  of  flour  brought  to 
Flour  shall  any  place  of  inspection   for  sale   shall  be   submitted  to  the  view 

be     submit-  ^  ..  f^     •,        .  iin  t*i- 

ted  for  in- and  examination  ot  the  inspector,  who  shall* expeditiously  inspect 
—when.  the  same  by  boring  into  the  barrel,  half  barrel,  or  bag,  from  head 
to  head,  or  end  to  end,  with  an  instrument  of  not  more  than  three- 
fourths  of  an  inch  in  diameter,  to  be  by  him  provided  for  that  pur- 
pose, and  if  he  shall  judge  the  same  well  packed  and  merchanta- 
ble, he  shall  plug  the  hole  and  brand  the  barrel,  half  barrel,  or 
bag  with  the  name  of  the  place  at  which  he  shall  be  inspector, 
with  a  public  brand,  or  mark,  to  be  by  him  provided  for  that 
purpose,  and  approved  by  the  Inferior  Court,  City  Council,  or 
corporation,  as  the  case  may  be,  and  shall  also  mark  the  degree  of 
fineness  which  he  shall  determine  the  flour  to  be  on  inspection, 
which  degrees  shall  be  distinguished  as  follows:  "Extra  Family," 
"Superfine,"  "Fine,"  "Middling,"  "First,"  or  "Second,"  for 
Fees  for  wMch  troublc  the  inspector  shall  receive  from  the  owner  or  con- 

inspeotion.         .  ,  f»    r»  i  i 

signee  at  the  rate  ot  live  cents  per  barrel. 


PT.  1.— TIT.  16.— CHAP.  4.— Agri€ulture,  Trade,  etc.      309 

Article  1. — Flour,  Corn  Meal,  and  Grain. 
§  1564.  If  any  person  shall  pack  flour  in  an  old  barrel  which       Frandn- 

lently  pack- 

"inay  have  been  marked  and  branded  as  aforesaid,  and  which  shall  ingfiour. 
still  have  the  brand  of  the  inspector  thereon,  or  shall  otherwise 
fraudulently  pack  flour  for  sale,  such  person  or  persons  shall  for- 
feit and  pay  the  sum  of  twenty  dollars  for  every  barrel  so  packed, 
to  be  recovered  by  any  informer  before  any  Justice  of  the  Peace, 
or  other  Court  having  jurisdiction  thereof — one-half  of  such  pen- 
alty to  go  to  the  informer,  and  the  other  half  to  the  miller  or  man- 
ufacturer injured  by  such  false  packing. 

§  1565.  No  inspector  shall  be  permitted,  directly  or  indirectly,      inspector 
to  purchase  anv  nour  by  him  condemned   as  unmerchantable,  or  chase  except 

"     ,  1  1  r»       1  •  /•        •!  for   his  own 

any  other  flour  whatever,  other  than  for  his  own  or  family  use  and  use. 
consumption,  under  the  penalty  of  thirty  dollars  for  every  barrel 
by  him  purchased,  to  be  recovered  by  any  informer  before  any 
Justice  of  the  Peace,  or  other  Court  having  jurisdiction — one-half 
of  which  shall  belong  to  the  informer,  and  the  other  half  to  the 
County  or  corporation  having  the  appointment  of  the  inspector. 

§  1566.  Any  person  who  shall  sell  flour  in  or  from  any  of  the  Penalty  for 

^  .  .  .  ''  selling  with- 

places  where  there  is  an  inspector  without  an  inspection  as  afore-  o^it  inspcc- 
said,  shall  forfeit  and  pay  the  sum  of  ten  dollars  for  each  barrel, 
half  barrel,  or  bag  so  sold,  to  be  recovered  by  any  informer  before 
any  Justice  of  the  Peace,  or  other  Court  having  jurisdiction — one- 
half  to  go  to  the  informer  and  the  other  half  to  the  inspector. 

§  1567.  Every  inspector,  before  entering  on  the  duties  of  his  of-  inspector's 
flee,  shall  take  and  subscribe  an  oath  or  afiirmation  before  the  Clerk 
of  the  Council,  or  Clerk  of  the  Inferior  Court,  of  which  a  minute 
shall  be  made,  that  he  will  faithfully  perform  the  duties  of  his 
office,  inspect  all  flour  offered  to  him  for  inspection,  and  faithfully 
brand  and  mark  the  barrels  or  bags,  as  by  law  directed.  Inspec- 
tors shall  be  liable  to  indictment  for  any  neglect  of  duty,  and 
upon  conviction  thereof  shall  forfeit  and  pay  a  sum  of  not  less 
than  thirty  dollars. 

§  1568.  It  shall  be  the  duty  of  every  inspector  of  flour  to  inspect    corn  meai, 
Indian  corn  and  corn  meal,  wheat,  and  other  grain  in  bags  or  in  otLl-  grain, 
barrels,  when  requested  by  the  owner  or  consignee  to  do  so,  and  spected. 
he  shall  brand  only  such  as  he  may  deem  to  be  sound  and  mer- 
chantable, for  which  his  compensation  shall  be  three  cents  per  bag 
or  barrel,  to  be  paid  by  the  owner  or  consignee,  as  aforesaid. 


310      PT.  1.— TIT.  16.— CHAR  4.— Agrictulture,  Trade,  etc. 


Article  2. — Wood,  Timber,  Turpentine,  Tobacco,  Guano,  etc. 

ARTICLE  II. 

WOOD,   TIMBER,   TURPENTINE,   TOBACCO,   GUANO,   ETC. 


I 


Section. 

1569.  Inspectors  and  rules  of  inspection. 

1570.  Drifted  timber — selling  of. 

1571.  Penalty  for  buying  the  same. 

1572.  Pitch,  tar,  etc.,  to  be  inspected. 


Section. 

1573.  Turpentine  barrels — dimensions  of^ 

1574.  How  marked. 

1575.  Corporate  autho-rities — powers  of. 


§  1569.  Inspectors  may  be  appointed,  their  duties  prescribed, 
V     Inspectors  their  fees  fixed,  and  inspection  and  markin»i;  reguhations  adopted, 

may  be  ap-  ^        -   •  p  •  p  i         •  •  /» 

pointed  for  Dj  the  corporatc  authorities  oi  any  city,  tor  the  inspection  oi 
guano  and  other  fertilizers,  tobacco,  salt,  pitch,  tar,  turpentine, 
rosin,  fish,  oil,  staves,  shingles,  timber,  wood,  lumber,  and  liquor, 
and  such  other  articles  and  things  as  are  usually  the  subjects  of 
inspection  and  measurements,  and  for  measuring  and  gauging 
the  said  articles,  or  any  of  them,  within  the  limits  of  said  cities ; 
and  the  same  power  may  be  exercised  by  the  Inferior  Court  of 
every  County,  outside  the  limits  of  such  town,  and  within  the 
limits  of  such  County ;  prGvided,  such  regulations  be  not  inconsis- 
tent with  the  following  provisions : 

1.  No  person  shall  be  permitted  to  inspect,  measure,  or  gauge, 
Appointees  cxccpt  such  as  may  be  regularly  appointed,  under  a  penalty  of 

spect.  five  hundred  dollars  for  every  ofi*ense,  one-half  to  go  to  the  infor- 

mer, and  the  other  half  to  the  incorporation  or  Court  having  the 
appointment  of  inspectors.  Every  person  so  appointed  shall  be 
Oath  and  required  to  take  an  oath  or  affirmation  faithfully  to  perform  the 

specters.  dutics  of  the  office  to  the  best  of  his  skill  and  ability,  and  shall, 
moreover,  give  bond  and  security  for  the  faithful  discharge  of  the 
duties  thereof.  All  vacancies  may  be  filled  by  the  appointing 
power. 

2.  In  all  seaport  towns^  where  timber  or  lumber  is  brought  for 
Inspection  exportation,  or  otherwise,  the  same  shall  be  inspected  and  meas- 

urement  of  urcd,  and  bills  for  such  measurement  shall  be  made  out  in  superfi- 

lumber. 

cial  measurement. 

3.  No  lumber  or  timber  inspector,  or  measurer,  shall,  during 
Inspector  }iig  term  of  office,  be  or  become  the  clerk  or  agent  of  any  lumber 

shall  not  be  ^  '  .  . 

of^'^humber  ^^  timber  buyer,  or  the  clerk  or  agent  of  lumber  mill,  on  pain  of 
mill  or  buy-  forfeiture  of  his  office  on  conviction,  and  fine  or  imprisonment,  at 
the  discretion  of  any  Court  having  jurisdiction. 

4.  All  square  timber  shall  be  measured  as  follows :  The  length 
shall  be  counted  from  pin-holes,  and  the  size  from  the  middle  of 


PT.  1.— TIT.  16.— CHAP.  4.— Agriculture,  Trade,  etc.      311 

Article  3. — Wood,  Timber,  Turpentine,  Tobacco,  Guano,  etc. 


the  stick,  takino^  the  smallest  side  and  the  face,  throwiDg  off  frac-        square 

^  ^  '-'  lumber  — 

tions,  and  allowino;  one-half  of  the  wainedge  on  the  size  and  face,  ^«^^   ^eas- 

'  <^  .  ured. 

and  other  flatted  timber,  usually  known  as  saw  or  mill  logs,  shall 
be  measured  one-third  from  the  smallest  end. 

5.  All  sticks  which  are  rotten,  hollow,  split,  or  broken,  shall  be  Kefuse  lum- 

'  ber. 

declared  refuse  by  the  inspector,  and  the  seller  shall  only  be 
allowed  one-half  the  measurement ;  but  if  the  defect  be  at  or  near 
the  end,  only  so  much  as  is  defective  shall  be  declared  refuse. 

6.  The  book  to  the  dip-rod  shall  not  be  less  than  one  inch  and     Length  of 

■"■  liook  to  dip 

three-quarters  long.  ^«^- 

7.  Ranging  timber,   scantlings,   and  boards,  shall   be  deemed  .    hanging 

<=      o  '  o   7  1  timber,  etc., 

merchantable  only  when  they  shall  have  square  edges,  and  be  "^antabie" 
sound,  and  without  decay ;  nevertheless,  if  any  scantling  or  board 
to  be  measured  and  inspected  shall  be  split,  decayed,  or  fractured, 
more  than  two  feet  and  less  than  six  feet  from  the  end  thereof, 
such  split,  decayed,  or  fractured  part  shall  be  left  out  and  not 
counted  in  the  measurement. 

8.  Heading  shall  be  two  and  a  half  feet  long,  six  inches  broad,        Length 

Till  p  ^^^    quality 

one  inch  thick  on  one  edge,  and  not  less  than  three-quarters  oi  an  of    heading 

1  iTpp  1  ^^^  shingles 

inch  on  the  other  edge,  sound  and  free  from  decay,  worm  or 
knot  holes ;  shingles  to  be  twenty-two  inches  long,  not  less  than 
three  and  a  half  inches  wide,  a  half  inch  thick  at  the  thick  end, 
not  decayed,  and  free  from  worm  or  knot  holes. 

9.  Pipe,  hogshead,  and  barrel  staves  shall  be  considered  mer-  pipe,  hogs- 
chantable  only  when  conditioned  as  follows  :     Pipe  staves  to  be  at  banei  staves 

~~~wIiGn  luGr*" 

least  fifty-four  inches  in  length,  three  inches  in  breadth,  and  one  chantaWe. 
inch  thick  on  the  thin  edge,  sound  and  free  from  worm  or  knot 
holes  ;  hogshead  staves  to  be  forty-two  inches  long,'  three  inches 
broad,  and  not  less  than  three-quarters  of  an  inch  thick  on  the 
edges,  sound  and  free  from  worm  or  knot  holes  ;  barrel  staves  to 
be  two  and  a  half  feet  long,  three  inches  wide,  and  not  less  than 
three  quarters  of  an  inch  on  their  edges,  sound  and  free  from 
worm  or  knot  holes. 

10.  [If  any  inspector  or  measurer  of  timber  shall  fail,  neglect,     iiiegaiin- 

.  .  MiiTi'i  spectiun     or 

or  retuse  to  measure  timber  as  is  now  prescribed  by  law,  the  said  measure- 
ment or  re- 
inspector  or   measurer  shall  be   guilty  of  misdemeanor,    and,   on  fusai. 

conviction,  be  subject  to  a  fine  of  five  hundred  dollars  and  impris- 
onment in  the  common  jail  of  the  County  for  the  term  of  three 
months.]  (a) 

(a)  Acts  of  1866,  p.  26. 


^ 


312      PT.  1.— TIT.  16.— CHAP.  4.— Agriculture,  Trade,  etc. 

Article  2. — Wood,  Timber,  Turpentine,  Tobacco,  Guano,  etc. 

11.  Every  cord  of  fire  wood  shall  measure  eight  feet  in  length, 
What  is  a  four  in  breadth,  and  four  in  height.     Any  person  to  whom  such 

cord  of  fire-  _  o  ./    r 

wood,  etc.  ^ood  is  offered  for  sale,  who  may  suspect  any  deficiency,  shall 
have  the  right  to  have  the  same  measured  and  corded  by  any 
sworn  inspector  or  measurer  of  the  place,  and  in  case  of  any  de- 
ficiency appearing,  the  seller  shall,  besides  paying  the  fees  of  the 
inspector,  make  good  the  deficiency  without  delay,  or  forfeit,  be- 
fore any  Court  having  jurisdiction,  the  sum  of  two  dollars  for 

inspector  —  cvcry  cord  so  deficient :    in  case  of  no  deficiency  appearing,  the 

paid.  fees  of  the  inspector  or  measurer  shall  be  paid  by  the  buyer. 

The  corporate  authorities  of  any  town  or  city  may  make  such 

of  corporis  further  regulations  on  this  subject  as  to  them  shall  appear  proper 

etc.  ^"  ^^^'  to  insure  the  objects  of  this  Section. 

§  1570.  No  raftman  or  other  person  shall  dispose,  or  attempt 

Penalty  for  to  disposc,   of   any  drifted    timber  or  lumber  taken  up  by  him 

disposing:  *'f      .   ,  .  ,  .       /-v,  .         ,. 

drifted  tim-  Within  this  State,  ou  pain  of  paying  not  exceeding  five  hundred 
dollars  for  every  such  offense,  to  be  recovered  in  any  Court  hav- 
ing jurisdiction  of  the  ^ame — one-half  of  the  penalty  to  go  to  the 
informer,  and  the  other  to  the  use  of  the  County  wherein  such 
off'ense  may  be  committed — -or  the  offender  may  be  imprisoned  not 
more  than  six  months ;  but  nothing  herein  contained  shall  pre- 
vent the  finder  of  drifted  timber  or  lumber  from  requiring  and 
receiving  from  the  owner  reasonable  compensation  for  delivering 
to  the  owner  such  drifted  timber  or  lumber. 

§  1571.  Any  person  detected  in  purchasing  drifted  timber  or 
Illegal  pur- lumber  as  aforesaid,  except  from  factors  or  timber  cutters,  shall 

chase  of  drif-  ,  ■"• 

ted  timber,  bc  liable,  on  couvictiou,  to  pay  a  fine  of  fifty  dollars  for  every 

offense,  or  to  "be  imprisoned  for  a  term  not  exceeding  six  months. 

§  1572.  No  person   shall  ship,  or  put  on  board  any  vessel  for 

Pitch, tar,  exportation,  from  this  State,  any  pitch,  tar,  rosin,  or  turpentine, 

etc.,    to     be  ,       , 

inspected  before  the  same  is  inspected  and  marked,  provided  there  beat 

hefore  it    is  '■  '■ 

shipped.  the  port  of  exportation  a  sworn  inspector  of  such  articles,  on 
pain  of  forfeiting  one  dollar  for  every  barrel  so  shipped— one-half 
to  go  to  the  informer,  and  the  other  half  to  the  use  of  the  town 
or  place  of  exportation.  The  true  contents  and  quality  of  every 
barrel  of  such  articles  must  be  branded  on  the  barrel. 

§  1573.  Every  barrel  of  soft  turpentine  shall  be  formed  of  good 
Quality  and  suflicient  staves,  three-quarters  of  an  inch  thick,  not  exceed- 

etc,  of  tur-  .  _  .       ,  .  ^  II- 

pentine  bar-  mg  fivc  luches  Wide,  not  Icss  than  thirty,  nor  more  than  thirty- 
two  inches  long ;  the  head  not  less  than  one,  nor  more  than  one 


PT.  1.— TIT.  16.— CHAP.  4.— Agkiculture,  Trade,  etc.      313 


Article  3. — Inspection  of  Liquors. 


and  a  half  inch  thick,  and  the  barrel  secured  with  twelve  good 
hoops.  If  the  turpentine  be  fraudulently  mixed,  it  shall  be  con- 
demned bj  the  inspector  and  delivered  to  the  owner. 

§  1574.  Each  barrel  of  soft  turpentine,  after  inspection,  if  found     Barrels  of 

'■  /  *  turpentine-- 

in  conformity  to  the  foregoing   provisions,  shall  be  branded  or  tow  marked 
marked  by  the  inspector  as  follows  :   The  pure  or  virgin  turpentine 
with  the  letter  ''V,"  the  yellow  dip  "  S,"  the  hard  "H." 

§  1575.  The   corporate   authorities   of   any  seaport  town   may        Powers 

1  ir»i  ^       •  n         '  '  n  •  '      1  °^  Corporate 

make  such  lurther  regulations  tor  inspection  oi  rosm,  pitch,  tar,  authorities. 
and  turpentine,   and  for  the  discovery  of   fraud  in  making  and 
vending   said   articles,  as  to  said  authorities,   respectively,   shall 
seem  proper. 


ARTICLE  III. 


INSPECTION     OF     LIQUORS, 


Section. 

1576.  Inspectors  of,  etc, — how  appointed. 

1577.  Duties  of  such  inspectors. 

1578.  Damaged  liquors. 

1579.  Evading  inspection  of  liquors. 


Section. 

1580.  Fees  of  inspector. 

1581.  Manufacturing  drugged  liquors. 

1582.  Monthly  inspections  required. 

1583.  Selling  liquors  without  inspection. 


§  1576.  It  shall  be  lawful  for  the  several  city  and  incorporated    inspectors 

1        •    •         •         1  •       ot  1  p  "^      liquors, 

town  authorities  in  this  State  to  elect  or  appoint  an  inspector  of  etc. —  how 

.  .        appointed. 

liquors,  spirits  and  wines,  and  vinegar,  within  their  respective 
jurisdictions,  and  the  Inferior  Court  of  the  several  Counties  shall 
have  the  same  authority  of  appointment  within  the  several  Coun- 
ties out  of  the  jurisdiction  of  the  city  authorities. 

§  1577.  Such  inspector,  after  being  duly  appointed  as  aforesaid,  oathand 
and  sworn  by  the  Clerk  of  the  Council,  or  Clerk  of  the  Inferior  inspector. 
Court,  faithfully  to  discharge  the  duties  of  inspector,  shall  exam- 
ine and  inspect  all  liquors,  spirits  and  wines,  or  vinegar,  kept  by 
any  person  within  the  jurisdiction  of  such  inspector,  for  sale  in 
any  quantities,  and  if,  upon  such  inspection,  any  such  shall  be 
found  to  contain  any  strychnine  or  other  poisonous  drug  or  drugs, 
or  offensive  matter  injurious  to  health  by  drinking  or  other  use, 
such  inspector  shall  immediately  give  notice  thereof  to  the  owner, 
who  shall  immediately  destroy  the  same  in  the  presence  of  the  in- 
spector, or  give  bond  and  security  to  return  the  same  to  the  per- 
son from  whom  he  purchased  without  the  limits  of  this  State. 

§  1578.  Any  person  who  shall  sell,  or  offer  to  sell,  any  liquor, 


314      PT.  1.— TIT.  16.— CHAP.  4.— Agriculture,  Trade,  etc. 


Article  3. — Inspection  of  Liquors. 


Penalty  for  wine,  OP  spii'its,  or  vinesrar,  knowinor  the  same   to  be  so  drucrored, 

selling  drug-  '  •  ^  •  i     i     n    i  co      ) 

ged  liquors,  or  after  notice  as  aforesaid  shall  be  given,  shall  be  indicted  in  the 
Superior  Court  of  the  County  where  such  offense  may  be  commit- 
ted, and  on  conviction  thereof,  shall  be  fined,  for  the  first  offense, 
one  hundred  dollars ;  for  the  second  offense,  two  hundred  dollars ; 
for  the  third  offense,  four  hundred  dollars ;  and  for  the  fourth  of- 
fense, one  thousand  dollars,  and  in  each  case  be  imprisoned  until 
such  fine  be  paid. 

§  1579.  If  any  person  shall  refuse,  or  in  any  way  prevent  such 

Penalty  for  inspoctor  from  makinor  such  examination  and  inspection,  after  a 

evading    in-  *T  .. 

spection  of  sccond  demand  made  by  such  inspector,  such  person  shall,  upon 
indictment  and  conviction  thereof,  be  fined  and  punished  as  in  the 
immediate  preceding  Section ;  jjrovided^  the  inspector  shall  make 
the  second  demand  in  the  presence  of  a  competent  witness  and 
prove  the  same  by  said  witness  on  the  trial. 

§  1580.   Such  inspector  shall  receive,  unless  other  rates  are  pre- 
Fees  of  li-  scribcd  by  the  authorities  appointing  him,  from  the  owner  of  said 

qnor  Inspec-  .    .  •  -, 

tor.  liquor,  wine,  or  spirits,  or  vinegar,  for  every  ten   gallons  so  in- 

spected, five  cents  ;  for  twenty  gallons,  ten  cents  ;  for  forty  gal- 
lons, fifteen  cents ;  for  eighty  gallons,  twenty  cents  ;  for  one  hun- 
dred and  sixty  gallons,  twenty-five  cents ;  and  at  the  same  rates 
and  proportions  upward  for  any  number  of  gallons  so  inspected, 
and  he  shall,  if  required,  give  a  receipt  and  certificate  therefor, 
and  sh"all  brand  the  barrels,  kegs,  or  pipes  when  the  means  are 
provided  by  the  owners  therefor,  and  he  shall  also  receive  one- 
half  of  all  fine  moneys  arising  under  conviction,  which  shall  by 
no  means  disqualify  him  from  being  a  witness  for  the  State  in 
cases  of  prosecution  under  any  of  the  foregoing  Sections. 

§  1581.  If  any  person  shall  manufacture  any  drugged,  poison- 
Penaityforous  or  Other  delctcrious  and  offensive  liquors,  wine,  or  spirits,  or 

manufac!;ur- 

ing  drugged  vinegar,  or  adulterate  any  liquor,  wine,  or  spirits,  or  vinegar,  with 
poisonous  material,  such  person  so  offending  shall  be  indicted  in 
the  Superior  Court  of  the  County  where  the  offense  may  be  com- 
mitted for  a  misdemeanor,  and  on  conviction  therefor,  shall  be 
fined  and  imprisoned  in  the  common  jail  at  the  discretion  of  the 
Court. 

§  1582.   Such  inspection  shall  be  performed  once  a  month,  or 
Inspection  whcncver  called  on  so  to  do  by  seller  or  buyer.     When  by  the  lat- 

to  be  month-  i  i        f» 

ly.  ter,  he  pays  the  tees. 

§  1583.  When  an  inspector  is  appointed  in  any  city  or  town, 


PT.  1. — TIT.  16. — Agriculture,  Trade,  etc. 


815 


Chapter  5. — Weights  and  Measures. 


and  due  notice  given  of  such  appointment,  any  vender  of  liquors,   Penalty  for 

°  ^  ^  'J  .  selling       li- 

in  any  quantity,  who  shall  offer  the  same  for  sale  before  or  with-  q^^ors  with- 

^  ,        *^  out    mspfcc- 

out  inspection,  or  a  bo7ia  fide  effort  to  have  the  same  inspected,  ^^on. 
shall  be  guilty  of  a  misdemeanor,  and,  on   conviction,   shall  be 
fined  or  imprisoned,  or  both,  at  the  discretion  of  the  Court. 


CHAPTER    V. 

WEIGHTS     AISTD     MEASURES. 


Sectiox. 

1584.  Seal  or  stamp  for  weights,  etc. 

1585.  Weights,  etc.,  must  be  marked. 

1586.  Selling  by  deficient  weights,  etc. 


Section. 

1587.  St:findard  of  weights,  etc. 

1588.  Clerk  of  I.  C.  to  give  notice. 


§1584.  The  Justices   of  the  Inferior   Court  must  procure  for        seaior 
their  respective   Counties  a  marking  instrument,  seal,  or  stamp,  mTHci n^g 
for  the  purpose  of  marking  all  weights  and  measures  which  the  mea^sm-es. 
Clerk  of  the  Inferior  Court  may  find  not  to  weigh  or  measure  less 
than  the  standard  established  by  the  Congress  of  the  United  States, 
which  is  the  standard  of  this  State. 

§  1585.  All  persons  engaged  in  selling  by  weights  and  meas-      vendors 
ures  shall  apply  to  the  Clerk  of  the  Inferior   Court  of  their  re-  weights  anci 
spective  Counties,  and  have  their  weights  and  measures  so  marked,  marked. 
and  in  default  thereof  shall  not  collect  any  account,  note,  or  other 
writings,  the  consideration  of  which  is  any  commodity  sold  by     ^ 
their  weights  or  measures. 

§  1586.  Any  citizen  may  complain  to  the  Clerk  of  the  Inferior    seiiing  by 

PIT  .  n  '    ^  deficient 

Court   of  the   deficiency   of  any  weights   and  measures,  whether  weights    or 

•^  .  .  measures  — 

marked  or  not,  and  when  done,  it  is  the  duty  of  said  Clerk  to  no-  howpunish- 

.  .  ed.       . 

tify  the  person  complained  of,  and  give  him  the  name  of  the  com- 
plainant, and  specify  a  day,  not  more  than  ten  days  distant,  when 
he  shall  submit  his  weights  and  measures  to  the  test  of  the  Jus- 
tices of  the  Inferior  Court,  and  if  the  complaint  is  found  to  be 
true,  within  the  seller's  knowledge,  he  shall  be  deemed  a  person 
selling  by  false  weights  and  measures,  and  shall  be  presented  by 
the  Grand  Jury  as  such,  if  no  person  appears  and  indicts. 

§  1587.  The  Governor  shall  procure  standards  of  weights  and  standards  of 

(,  1/^  I'll  1  -I  11  weights  and 

measures  tor  each  County  vmich  does  not   have  them,  and  they,  measures  to 

"^  '  be  procured. 

together  with  the  marks  provided  by  the  Inferior  Court,  shall  be 
kept  in  the  office  of  their  Clerk  for  the  inspection  of  the  citizens. 


316      PT.  1.— TIT.  16.— CHAP.  6.— Agriculture,  Trade,  etc. 


Article  1. — Cotton,  Rice,  etc. 


§  1588.  When  such   standards   are   obtained,  it  is  the  duty  of 
Clerk io  such  Clerk  to  erive  sixty  days'  written  notice  thereof  at  the  door 

give  notice.  Jr.  i   •        i 

of  the  Court   House,  and  in  the   public  gazette  where  the  Sheriff 


of  the  County  advertises  his  sales. 


CHAPTER  VI. 

REGULATIONS  FOR  PARTICULAR  BRANCHES  OF  TRADE  AND 

AGRICULTURE. 


Article  1. — Cotton.,  Rice.,  etc. 
Article  2. — Cultivation  of  Rice. 
Article  3. — Oysters,  Turtles. 
Article  4. — Fishing. 
Article  5. — Boats  and  Crews. 
Article  6. — Peddlers. 


ARTICLE  I. 


COTTOX,     RICE.     ETC. 


Section. 

1589.  Sale  of  cotton  and  other  produce. 

1590.  Purchaser  failing  to  pay. 

1591.  Acceptor  of  draft  failing  to  pay. 

1592.  Shall  not  be  convicted — vrhen. 

1593.  Evidence  of  receipt  of  cotton,  etc. 

1594.  Copartners — when  liable. 


Section. 

1595.  Oath,  etc. 

1596.  Weighing  without  oath,  etc- 

1597.  Tare  on  rice, 

1598.  Tare  on  other  articles, 

1599.  Xo  deduction  to  be  made. 

1600.  Weighing — how  regulated. 


§  1589.   Cotton,  corn,  rice,  or  other  products  sold  by  planters 
Ownership  and  coDimission  merchants  on  cash  sale,  shall   not  be  considered 

of       cotton, 

etc.,   not  as  the  property  of  the  buyer,  or  the  ownership  given  up,  until  the 

cnanged  un-  ij.*/  .)       7  lo  r^ 

til  paid  for.  same  sliall  be  fully  paid  for,  although  it  may  have  been  delivered 
into  the  possession  of  the  buyer. 

§  1590.  Any  person   engaged  in  the  business  of  buying  such 
Penalty  for  commodities,  either  on  his   own  account  or  for  others,  who  shall 

failing       to 

pay  for  cot-  buy  such  OH  Sale  from  a  planter  or  commission  merchant  for  cash, 

ton,  etc  "^  ^  ^  ' 

and  shall  fail  or  refuse  to  pay  for  the  same,  and  shall  make  way 
with  or  dispose  of  the  same  before  he  shall  have  paid  therefor, 
shall  be  deemed  guilty  of  fraud  and  embezzlement,  and  shall  be 
liable,  on  conviction,  to  be  imprisoned  in  the  Penitentiary  for  a 


PT.  1.— TIT.  16.— CHAP.  6.— AcxEicuLTUiiE,  Trade,  K£c.      317 

Article  1. — Cotton,  Kice,  etc. 

term  not  less  than  one  year,  nor  more  than  five  years^  at  the  dis- 
cretion of  the  Court. 

§1591.   [If  any  person  shall  accept  in  writing  any  bill  of  ex-    Penalty  for 
change  or  draft,  drawn  upon  him,  in  the  body  of  which  bill  or  pay  accepted 

°  '  ^  '  ...  draft  or  bill 

draft  shall  be  specified  the  amount  for  which  it  is  drawn,  and  the  of  exchange 
time  when  it  is  payable,  and  that  it  is  drawn  against  certain  bales 
of  cotton,  enumerating  them  and  referring  to  their  marks  on  the 
margin,  and  that  the  same  were  sent  to  the  drawee  of  said  bill  or 
draft,  subject  to  the  payment  of  said  bill  or  draft  to  the  payee  or 
his  order,  to  whom  the  title  to  said  cotton  was  conveyed,  and  after 
such  acceptance,  shall  fail  or  refuse  to  pay  to  such  payee  or  his 
order,  when  the  bill  or  draft  shall  fall  due,  the  full  amount  of  the 
proceeds  of  the  sale  of  said  cotton,  if  sold  by  such  acceptor,  or 
shall  fail  or  refuse  to  deliver  to  the  payee,  or  his  order,  the  bales 
of  cotton  specified  in  said  bill  or  draft,  when  demanded,  after 
non-payment  of  said  bill  or  draft,  then  such  acceptor  shall  be 
guilty  of  a  high  misdemeanor,  and,  on  conviction,  shall  be  pun- 
ished by  confinement  in  the  Penitentiary  for  not  less  than  one, 
nor  more  than  five  years,  at  the  discretion  of  the  Court.]  (a) 

§1592.  fNo  person  shall  be  convicted   under  the  provisions  of     Not  to  be 

1  •  CI         •  •  r»   1  11  •  convicted  — 

the  preceding  Section,  if  he   can  show  that  the  cotton  received  ^ben. 
by  him  was  destroyed  by  accident,  or  that  he  was  fraudulently  or 
forcibly  deprived  of  the  possession  thereof,  or  of  the  value  of  the 
same  after  it  was  sold.]  (a) 

§  1593.  FThe  acceptance  in  writing  of  the  bills  of  exchange  or       Accept- 

.  °  .  J,      ,  .    ance  prima 

drafts,  specified  in  Section  1591,  shall  be  held  as  jt?rma  facie  evi-/«c^■6     evi- 
dence of  the  value  of  the  receipt  by  the   acceptor  of  the   cotton 
specified  therein,   and  prima  facie  evidence  of  the  value  being 
the  amount  specified  in  the  bill  or  draft.]  (a) 

§  1594.  [If  such  bill  or  draft  shall  be  drawn  on,  and  accepted    copartners 
by  a  mercantile  copartnership  in  the  name  of  the  firm,  each  of  the  bie. 
copartners  shall  be  held  frima  facie  liable  to  all  the  provisions 
of  the  three  preceding  Sections.]  (a) 

§  1595.  It  shall  not  be  lawful  for  any  salesman,  or  other  per-       oath  of 

«    .1  .^.  .  .■■•■  p     1  •      o(  one    weigh- 

son,  m  any  oi  the  cities,  towns,  or  villages  oi  this  Stale,  or  at  any  ing    cotton 

•11'  1  •    1  iiT  1  n  **^d  rice. 

railroad  station  or  depot,  to  weigh  any  bale,  bag,  or  package  of 
cotton,  tierce  or  half  tierce  of  rice,  or  any  other  article  of  pro- 
duce disposed  of  by  weight,  without  first  taking  and  subscribing 

(a)  Acts  of  1859,  pp.  61-3. 


S18      PT.  1.— TIT.  16.— CHAP.  6.— Agriculture,  Trade,  etc. 


Article  1.— Cotton,  Rice,  etc. 


an  oath  before  some  person  authorized  by  law  to  administer  it, 
that  he  will  justly,  impartially,  and  without  deduction,  weigh  all 
such  produce,  and  all  other  articles  of  produce  disposed  of  by 
weight  that  may  be  shown  to  him  for  that  purpose,  and  tender  a 
true  account  thereof  to  the  party  or  parties  concerned,  if  so  re- 
quired. The  weigher  may,  nevertheless,  make  such  deductions 
for  wet  or  other  cause  which  may  be  reasonable,  when  the  seller 
or  his  agent  shall  thereto  consent,  and  for  such  tare  as  may  by 
law  be  allowed ;  but  no  tare  shall  ever  be  allowed  on  bales  of  un- 
manufactured cotton,  except  the  usual  deduction  of  two  pounds 
from  the  weight  of  every  bag  of  cotton  having  knobs  or  tugs 
thereon. 

§  1596.  Such  oath,  when  taken,  must  be  filed  in  the  Clerk's 
Oath  to  be  office  of  the  Inferior  Court  of  the  County,  and  a  minute  made 

recorded,  ^  ^  '' 

and  penalty  thcroof  I  and  if  auv  person  weis^hs  such  produce  without  having 

for  weighing  '  ./    r  o  i  o 

Without  oath  taken  and  filed  such  oath,  he  and  the  factor,  or  person  who  may 
employ  him,  are  liable  each  twenty  dollars  for  every  bag  of  cot- 
ton, five  dollars  for  every  tierce  of  rice,  twenty-five  cents  for 
every  bushel  of  corn,  and  one-third  the  value  of  any  other  pro- 
duct so  weighed — one-half  to  go  to  the  informer,  the  other  half 
to  the  Educational  Fund  of  the  County. 

§  1597.  The  tare  to  be  allowed  on  rice  shall  be  the  actual  tare, 

Tare  on  rice,  as  nearly  as  can  be  determined,  except  in  cases  of  the  sale  of  a 
single  tierce,  half  tierce,  or  barrel,  where  a  tare  of  ten  per  centum 
shall  be  allowed,  unless  otherwise  agreed  on,  between  the  buyer 
and  seller. 

§  1598.  In  other  cases  where  tare  is  usually  allowed,  the  actual 

Tare  on  oth-  tare,  as  nearly  as  the  same  can  be  ascertained,  shall  be  allowed, 

erarticlesv  ,  ,  -,i  i  i  i 

except  where  the  seller  and  purchaser  may  expressly  agree  upon 
a  different  rule. 

§  1599.  It  shall  not  be  lawful  for  any  purchaser  or  wergher  to 
No  deduc- ijiake  any  deduction  from  the  weight  of  any  article  for    or  on 

tion   to     be  "^  o  ./ 

made    for  account  of  the  draft  or  turn  of  the   scales  or  steelyard,  under  a 

t  u  r  n      or  ./  ^ 

scales,  etc  penalty,  for  every  such  offense,  of  five  hundred  dollars,  to  be  re- 
covered in  any  court  having  jurisdiction,  one-half  to  go  to  the  in- 
former, by  whom  the  suit  may  be  brought,  and  the  other  half  to 
the  use  of  the  County  where  the  offense  may  be  committed. 

§  1600.  The  corporate  authorities  of  all  cities  and  towns  may 
make  such  further  regulations  for  the  weighing  of  produce  of  all 
descriptions,  including  fees   for  weighing,  as  in  their  judgment 


PT.  1.— TIT.  16.— CHAP.  6.— Agriculture,  Trade,  etc.      819 


Article  2. — Cultivation  of  Rice. 


Corporal© 
authorities, 


maj  tend  to  eiFect  the  objects  of  the  foregoing  provisions,  and  the 
Inferior  Courts  of  the  respective  Counties  shall  have  the  same   etc.,    may 

i  regulate 

power,  to  be  exercised  outside  the  jurisdictions  of  said  incorporated  weighing. 
cities  or  towns ;   but,  until  altered  bj  such  authorities  or  Courts^ 
fees  for  weighing  shall  be  such  as  are  now  fixed  by  law. 


ARTICLE  II. 

CULTIVATION    OF    RICE. 


Sectio^t. 

IGOlv  Water  shall  not  be  diverted. 

1602.  Rice  dams — when  to  be  opened. 

1603.  Penalty  for  obstructing. 

1604.  Persons  injured — how  redressed. 
IGOoi.  Proceedings  for  redress. 

1606.  Award  of  freeholders. 


Section. 

1607.  Person  may  drain  his  own  land. 

1608.  Proceedings  in  case  of  obstruction. 

1609.  Dam  not  to  be  stopped — when. 

1610.  Inadequate  dams. 

1611.  Compensation  of  freeholders. 


§  1601.  No  person  shall  be  permitted  to  make  or  keep  up  any  water  not 
dam  to  stop  the  natural  course  of  any  water,  so  as  to  overflow  the  ^d. 
lands  of  any  other  person,  without  his  consent,  nor  shall  any  person 
stop  or  prevent  any  water  from  running  off  of  any  person's  field, 
whereby  such  person  may  be  prevented  from  planting  in  season, 
or  receive  any  other  injury  thereby,  nor  so  as  to  turn  the  natural 
course  of  any  Avater  from  one  channel  or  swamp  to  another,  to  the 
prejudice  of  any  person.  [And  whenever  the  owner  of  any  land  Drain  may 
in  this  State  shall  refuse  to  extend  any  drain  or  ditch  through  the  ed. 
same,  that  may  be  dug  to  the  line  of  his  lot  by  the  owner  or  occu- 
pant of  adjoining  land,  then  the  said  adjoining  owner  or  occupant 
shall  be  privileged  to  extend  his  drain  at  his  own  expense  through 
any  such  lands  to  a  proper  outlet ;  and  if  his  land  shall  be  injured 
or  decreased  in  value  by  reason  of  said  draining,  then  the  party 
injured  shall  receive  full  compensation  from  the  person  so  draining, 
for  the  injury  done.  The  question  of  such  injury  in  value  may  be 
submitted,  on  request  of  either  party  and  notice  given,  to  three, 
disinterested  freeholders,  to  be  chosen  by  the  Inferior  Court  of 
said  County,  and  they  shall  make  an  award  upon  the  same  rules 
and  regulations  as  are  now  provided  by  law  touching  arbitration 
and  awards ;  provided^  said  award  shall  be  made  and  just  compen- 
sation paid  before  the  drain  or  ditch  is  commenced.]  (a) 

§  1602.  Every  person  who  shall  keep  water  during  the  winter 


(a)  Acts  of  1866,  p.  27. 


320      PT.  1.— TIT.  16.— CHAP.  G.-^Agriculture,  Trai>e,  etc. 


Article  2. — Cultivation  of  Rice. 


^Eice  dams  upoii  grounds  where  rice  will  be  planted  the  ensuing  spring,  shall 
be  opened,    annually,  bj  the  fifth  day  of  March,  open  the  dams  which  keep 
up  the  water,  and  let  off  the  same. 

§  1603.  Upon  the  violation  of  the  provisions  of  either  of  the 
Penalty  for  preccdinp;  Sections,  the  person  offending  forfeits  five  hundred  dol- 

violatingthe  ^  o  ^  i  o 

in'VcSons"  ^^^'^  wpou  the  complaint  of  any  person  interested ;  one-half  of  the 
recovery  goes  to  the  informer,  the  other  to  the  Educational  Fund 
of  the  County. 

§  1604.  When   any  person  has  thus   offended   in  the  manner 
Person  in-  aforcsaid,  a  person  affected  thereby  may  apply  to  a  mao;istrate 

jured      may  ..,..  .  -,         ,.        •/.         >'       ^  ^    >'  o 

apply  for  who  has  jurisdiction  m  the  district  for  a  warrant  of  survey,  and 

warrant     of  *^  .  *' 

survey.  shall  also,  thereupon,  notify  the  defendant  of  the  complaint,  and 
of  the  time  and  place  of  meeting. 

§  1605.  The  magistrate  shall  have  summoned  three  disinterested 
Proceed-  froehoWers  of  the  neighborhood   or  district  where  the   cause  of 

Ings     under  .  .  r»        i  ^  ^ 

the  warrant,  complamt  exists,  ouc  01  whom  must  be  chosen  by  each  oi  the 
parties  and  the  other  by  the  magistrate ;  but  if  the  defendant 
neglects  before  the  day  of  meeting  to  make  a  choice,  the  magis- 
trate may  choose  for  him ;  they  must  be  sworn  before  such  magis- 
trate, to  determine  the  matter  in  dispute  justly  and  impartially ; 
shall  proceed  to  view  the  obstruction,  and  are  empowered  to  do  so 
without  the  attendance  of  either  party,  unless  such  are  providen- 
tially prevented,  and  must  report  their  proceedings  to  the  magis- 
trate without  delay. 

§  1606.  If,  on  view  thereof,  a  majority  of  said  freeholders  decide 
Award  of  that  Said  obstructions  do  or  may  prevent  the  party  complaining 

freeholders.  ^  ..  .  ... 

from  planting  his  crop  of  rice  in  due  time,  or  otherwise  injure 
him,  they  shall  furnish  an  immediate  remedy  in  any  w^ay  they 
think  necessary  to  give  the  most  effectual  relief,  the  losing  party 
paying  the  costs  of  the  proceeding. 

§  1607.  Such  proceeding  does  not  apply  to  any  person  who  shall 
Drainage  havo  made  throuo^h  his  own  land  sufficient  drainage,  of  which  said 

not     herein  ^  ,  •  i  i 

prohibited,  freeholder  shall  be  the  judge,  to  carry  off  the  waters  passing  through 
the  same,  in  as  expeditious  a  manner  as  they  could  have  passed 
through  the  natural  course  or  channels  if  no  such  banks  had  been 
erected. 

§  1608.  Any  person  between  said  fifth  of  March  and  the  first 
Proceed-  day  of  September  of  each  year  may  apply  in  like  manner  for  a 

ings  in  case        ''  ^  *^  ^       x  r  ,/ 

of  any  ob-  •v\'arrant  of  survey  on  any  obstructions  which  may  impede  the 

structions.  ^  ,/  ,;  ^  l      ^ 

conveying  of  any  surplus  water  on  his  rice  grounds,  and  which  by 


PT.  1.— TIT.  16.-  CHAP.  6.— Agriculture,  Trade,  etc.      321 


Article  3. — Cultivation  of  Rice. 


remaining  thereon  may  prove  injurious,  or  shall  keep  up  any  dam 
which  shall  stop  the  water  so  as  to  overflow  his  lands  to  his  injury. 
In  such  cases  the  proceedings  are  the  same  as  heretofore  set  forth. 

§1609.  If  any  person  shall,  by  himself,  or  throuo;h  his  orders,  Penaiityfor 

,        ,   .  T         "^  '  ,     *  .  ,  .    1     stopping  np 

or  by  his  agent,  stop  up  any  dam  or  replace  any  obstruction  which  dam  when 
has  been  opened  or  removed,  or  which  has  been  thus  done  by  him-  authority. 
self  on  the  said  fifth  of  March  until  the  first  day  of  July  next 
thereafter,  or  shall  obstruct  or  hinder  the  opening  of  any  dam  or 
removing  of  obstructions  decided  to  be  opened  or  removed,  he  for- 
feits, as  aforesaid  in  this  Chapter,  one  thousand  dollars  for  each 
ofi*ense  to  the  person  aggrieved,  besides  his  liability  for  the  actual 
damages. 

§  1610.  When  any  dam  has  been  made  to  form  reservoirs  of  inadequate 

.   ,  ry    •  1     •       •         1  •      (lams  to    be 

water  without  sumcient  waste-way,  and  is  inadequate  to  sustain  enlarged. 
the  weight  of  water,  the  owner  of  such  dam  shall  immediately 
cause  the  same  to  be  enlarged,  strengthened,  or  erected  in  a  sub- 
stantial manner,  with  a  sufficient  waste-way.  If,  on  a  survey  by 
freeholders,  he  neglects  to  make  the  improvements  they  require, 
within  the  time  they  may  designate,  he  shall  forfeit  to  any  person  in- 
jured, or  liable  to  be  injured,  as  last  aforesaid. 

§  1611.  The  freeholders  are  entitled  each  to  three  dollars  per    compensa- 
day,  and  if  duly  summoned  and  they  fail  to  attend,  without  provi-  holders,  etc. 
dential  cause  or  necessary  absence  from  the   district,  they  forfeit 
to  either  party  one  hundred  dollars.     The  magistrate  and  witness- 
es, if  any,  receive  the  costs  allowed  in  the  trial  of  forcible  entries 
and  detainers. 


ARTICLE  III. 


OYSTERS,    TURTLES,   ETC, 


Section. 

1612.  Oysters — manner  of  taking. 

1613.  Violating  preceding  Section. 

1614.  Planted  oyster-beds  protected. 


Section. 

1615.  Exclusive  right  of  land-owner. 

1616.  Turtles — when  to  be  taken. 

1617.  Violating  three  preceding  Sections. 


§  1612.  It  shall  not  be  lawful  to  take  or  catch  any  oysters  in  oysters- 
any  of  the  waters  of  this  State  with  or  by  a  scoop,  rake,  drag,  or  manner  u- 
dredge,  or  by  the  use  of  any  other  instrument  than  the  oyster 
tongs  heretofore  in  general  use  for  taking  oysters,  and  every  per- 
son taking  oysters,  in  violation  of  law,  shall  forfeit  such  sum  for 
every  offense  as  the  Court  having  jurisdiction  may  determine,  and 
21 


322      PT.  1.— TIT.  16.— CHAP.  6.— Agriculture,  Trade,  etc. 

Article  3. — Oysters,  Turtles,  etc. 

shall  forfeit  to  the  State  the  boat  or  vessel  employed  in  such  un- 
lawful business,  her  tackle,  apparel,  and  furniture. 

§  1613.   On  complaint  made  upon  oath  before  any  Judo^e  or  Jus- 

Proceed-  ticc  of  this  State,  in  any  County  where  the  offense  may  be  com- 

viSiator    of  mittcd,  of  the  violation  of  the  provisions  of  the  foregoinor  Section, 

preceding  ^  -^  o         o  7 

Section.  such  officer  shall  issue  his  warrant  for  the  arrest  of  the  offender, 
and  shall  commit  or  let  to  bail,  according  to  law,  and  in  such  war- 
rant, authority  shall  be  given  for  the  arrest  of  every  such  boat ; 
and  such  boat,  her  tackle,  apparel,  and  furniture  shall  not  be  re- 
leased, except  upon  bond,  with  good  security,  for  the  forthcoming 
of  such  vessel  and  appurtenances  to  answer  any  judgment  of  for- 
feiture. In  case  such  boat  and  appurtenances  be  not  replevied 
within  one  month  after  arrest,  the  same  may  be  sold  by  order  of 
such  Judge  or  Justice,  and  the  proceeds  shall  be  paid  into  the  of- 
fice of  the  Superior  Court  of  the  County,  there  to  await  the  or- 
der of  said  Court. 

§  1614.  Where  any  person  having  taxable  lands  upon  the  banks 
Planted  or  shores  of  any  of  the  rivers  or  creeks  of  this  State  shall  plant 

oyster    beds  to  ^  •         ^      ^^ 

protected,  bcds  of  oystcrs  upou  them,  it  shall  not  be  lawful  for  any  other 
person  to  take  from  such  beds  of  oysters  ;  pj^ovided,  the  same  shall 
be  distinctly  staked  or  othjerwise  marked. 

§  1615.  When  oyster  banks,  or  beds  of  oysters,  or  natural  for- 
Exciusive  matiou,  be  within  rivers  or  creeks  of  this  State,  not  exceeding  one 

right  of  cer-  ,,,,  r»«'iii  to  c 

tain  land- hundred  and  twenty  feet  in  width,  and  not  used  tor  purposes  01 

owners       to  _  '^  , 

oyster  beds,  navigation,  the  persons   having  the  ownership  of  the  lands  upon 

both  sides  of  such  creeks  or  rivers  shall  have  the  exclusive  right 

to  the  usufruct  of  such  banks  or  beds  of  oysters  as  aforesaid. 

§  1616.  It  shall  not  be  lawful  to  take  terrapins  and  turtles  with- 

Turties-^  in  tidc-watcr  at  any  time  other  than  from  the  first  day  of  May  to 

Avhen  to  be  i  p    o(  i  ./  ./ 

taken.         the  first  day  of  September.  .  ^ 

Violation      S  1617.  For  any  violation  of  the  three  precedins;  Sections  the 

of  tbe  three         "^  "^       .  r  o 

preceding  ofi*ender  shall  be  subiect  to  a  penalty  of  not  less  than   fifty  nor 

Sections—  o  r  j  */ 

how  punish-  more  than  five  hundred  dollars. 

ed. 


ARTICLE  IV. 

FISHING. 


Section. 

1618.  Fishing  regulated. 

1619.  Violating  preceding  Section. 


Sectiox. 

1620.  Vessels  engaged  in  fishing. 


1618.  It  shall  not  be  lawful  for  any  person  to  inhabit,  occupy 


PT.  1.— TIT.  16.— CHAR  6.-~Agriculture,  Trade,  etc.      323 

Article  4. — Fishing. 


or  reside  in   any  vessel,  ark,  or  flat   on   any  river  of  this   State      risWng 

•^  '  '  *^  regulated. 

which  shall  not  be  engaged  in  the  lawful  commerce  of  the  same, 
in  the  carriage  or  transportation  of  goods  or  produce  to  or*  from 
market,  unless  owned  by  the  proprietors  of  the  shores,  or  their 
lessees  ;  "provided^  nothing  contained  in  this  and  the  previous 
Section  shall  be  construed  to  prevent  the  owners  of  the  land  on 
said  rivers,  or  their  lessees,  from  taking  fish  in  the  river  opposite 
their  banks ;  but  no  seine  shall  be  permitted  to  be  used  in  said 
rivers,  either  by  such  owners  or  their  lessees,  from  sunset  on  Sat- 
urday to  sunrise  on  Monday ;  and  provided,  also,  that  every 
lease  or  license  to  fish  shall  be  recorded  within  ten  days  after  the 
granting  thereof  in  the  Clerk's  office  of  the  Superior  Court  of  the 
County  where  the  land  lies. 

§  1619.  Every  offense  against  any  of  the  foregoing  provisions       Penalty 

ini  '111  r»  T  1  Tiin  for  violating 

shall  be  punished  by  a  nne  not  exceedinp;  two  hundred  dollars,  to  the  preced- 

/  -f.  ^  ing  Section. 

be  applied  to  educational  purposes. 

§  1620.  It  shall  be  lawful   for  all  civil  officers,  at  all  times,  to  officers  may 

*^  •'  'visit    and 

visit   and    search  all  vessels,  covered    flats,   or    arks,   and    boats  search  ves- 

'  '  '  sels,  etc. 

engaged  in  fishing,  or  trading  illegally  on  any  river  of  this  State, 
and  to  cause  offenders,  therein  found,  against  any  of  the  laws  of 
this  State  to  be  committed  or  bound  o'ver  to  answer  for  offenses 
against  such  laws. 


ARTICLE  V. 


BOATS    AND    CREWS. 


Srction. 

1621.  Bills  of  lading  must  be  granted. 
1G22.  Penalty  for^-cfusing  such  bills. 


Section. 

1023.  Traffic  witli  bands,  etc>,  prohibited, 
1624:.  Shipping  of  articles  prohibited. 


§  1621.  It  shall   be  the  duty  of  all  owners   or  agents  of  boats    owners  of 
employed  in  the  navigation  of  the  navigable  waters  of  this  State,  graitwi^l^ 
to  grant  to  each  and  every  boat,  respectively,  previously  to  its  de-  '^  ^''^'  ^  ^' 
parture  from  the  wharf  or  landing,   a  certificate  or  bill  of  lading, 
showing  its  destination,   contents,   and  the  name  of  its  captain  or 
patroon,  and  consignee,  vfhich  certificate  or  bill  of  lading  shall  at 
all  times  be  subject  to  the  examination  of   any  free  w^hite  person 
requiring  the   same. 

§  1622.  Any  such  owner  or  agent  neglecting  or  refusing  to  fur- 
nish certificate  or  bill  of  lading,  and  any  such  captain  or  patroon 


324      PT.  1.— TIT.  16.— CHAP.  6.— Ageicultuhe,  Trade,  etc. 

Article  5. — Boats  and  Crews. 
Penalty  for  refusinaj  to  exhibit  the  same  on  demand  as  aforesaid,  may  be  sev- 

not  granting  ^      ^  >  ^ 

and  exhibit-  erallv  indicted,  and  for  every  offense,   be  fined  in  a  sum  not  ex- 

mg   bill     ot  "^  '  ./J 

lading.  ceeding  fifty  dollars — one-half  the  penalty  in  such  case  to  go  to 
the  informer,  and  the  other  half  to  the  use  of  the  County  where 
such  conviction  takes  place. 

§  1623.  It  shall  not  be  lawful  for  any  owner,  captain,  or  patroon 
Owner  of  of  a  boat,  navigating  any  of  the  navigable  rivers  of  this  State,  to 

boat   not  to  .  Ill  1  1  IT 

allow  illegal  suiier  or  permit  any  boat  hand  taput  on  board  such  boat,  any  corn, 

traffic     with  5  .    ,  ■  J  ^ 

bands.  cotton,  rice,  stock,  poultry,  or  other  articles  that  may  by  law  be 
prohibited,  as  an  article  of  traffic  to  such  boat  hand,  as  the  prop- 
erty of  such  boat  hand,  nor  shall  such  owner  or  patroon  suffer  the 
boat  hands  on  board  such  boat  to  barter  or  trade  the  one  with  the 
other,  in  any  such  article  or  articles  of  produce  under  any  pretext 
whatever,  under  penalty  of  fine  and  imprisonment  at  the  discre- 
tion of  the  Court,  on  conviction  of  the  party  for  violating  any  of 
the  foregoing  provisions. 

§  1624.  No  owner,  captain,   or  patroon  of  such  boat,  shall  per- 
ownernot  ^it  any  sucli  boat  hand  to  take  with  him  any  such  articles,  unless 

to  allow  ar-  •'  %i  < 

tides  ship-  i^Ijq  same  shall  be  stated  in   such   certificate  or  bill  of  lading,  and 

ped,    unless  o' 

Sng.'^  "^  ^^  ^^^  articles  shall  be  immediately  under  the  direction  of  such 
owner,  captain,  or  patroon,  or  the  agent  of  the  owner,  under  pen- 
alty of  fine  and  imprisonment,  at  the  discretion  of  the  Court  for 
every  ofi'ense  against  any  of  said  provisions-. 


AETICLE  YI. 

PEDDLERS. 


Section. 

1625.  License  to  peddle — lioW  obtained. 

1626.  License — when  unnecessary. 

1627.  Groods  not  to  be  sold  by  sample. 

1628.  Qualification,  etc.,  of  peddler. 


Section. 

1629.  Each  vehicle  mtfst  be  licensed. 

1630.  License-^powerof  J.  I.  C.  to  grant. 
1831.  Citizens  only  can  obtain  a  license. 
1632.  Indictment  and  trial. 


§  1625.  Every  peddler  or  itinerant  trader,  by  sample  or  other- 
License  to  wise,  in  any  article  not  manufactured  in  this  State,  must  apply  to 
the  Clerk  of  the  Inferior  Court  of  each  County  where  he  may  de- 
sire to  trade,  for  a  license,  which  shall  be  granted  to  him  on  the 
terms  the  Justices  of  the  Inferior  Court  have  or  may  impose.  If 
they  have  made  no  rule,  such  Clerk  shall  immediately  inform  such 
Justices.  They  are  authorized  to  impose  such  tax  as  they  may 
deem  advisable ;  'provided^  it  is  not  less .  than  fifty  dollars,  to  be 


PT.  1.— TIT.  16.~CHAP.  6.— Agriculture,  Trade,  etc.      325 

Article  6. — Peddlers. 


tised  for  County  purposes.     The  license  extends  only  to  the  limits 
of  the  County. 

§  1626.  None  of  the  provisions  of  this  Article  shall  extend  to  Exceptions, 
persons  selling  the  agricultural  products  of  any  State,  nor  toper- 
sons  selling  agricultural  implements. 

§  1627.  A  person  not  n  citizen  of  this  State  shall  not  sell  any    Goods  not 

-    to  be  sold  by 

article  not  manufactured  in  this  State  by  sample.  sample. 

§  1628.  The  peddler  shall  furnish  said  Clerk  with  evidence  of     Qualifica- 
tions   and 
his  good  character,  and  shall  take  and  subscribe  before  him  this  oath  of  ped- 

,  .  ...  ^^^r- 

oath:  ^'I  swear  that  I  will  use  this  license  in  no  other  County 

than  the  one  for  which  it  is  granted,  nor  suffer  any  person  to  use 

it  in  my  name^  and  that  I  am  a  citizen  of  this  State.     So  help  me 

God."     Said  oath  and  license  must  be  entered  in  the  book  kept 

for  that  purpose,  and  the  license  must  contain  a  description  of  tho 

person  of  the  peddler. 

§1629.  There  shall  be  separate  licenses  for  every  wagon,  cart,  Must  be  a 
or  other  vehiclo  (or  each  horse,  if  the  peddling  is  done  on  horse-  each  vehicle 
back),  employed  or  used  in  vending  such  goods,  wares,  or  mer- 
chandise, which  shall  be  shown  to  any  officer,  civil  or  military,  de- 
manding it,  and  on  failure  or  refusal  so  to  exhibit,  the  peddler  for- 
feits five  hundred  dollars,  to  >be  recovered  on  suit  of  the  informer — 
one-half  to  go  to  the  informer,  the  other  to  the  Educational  Fund 
of  the  County. 

§  1630.  The  Justices  are  authorized  to  grant  licenses  to  peddle     Authority 

.  °  ^  of  J.  1.0. 

to  indigent  and  infirm  persons  upon  such  terms  as  they  in  their 
discretion  may  impose^ 

§1631.  A  foreigner  not  a  citizen   shall  not  be  granted  license    Foreigaers 

Till  ...  ™ay  not  be 

to  peddle,  unless  he  shall  have  declared  his  intention  to  become  licensed. 
a  citizen,  and  he  shall  swear  to  such  fact,  instead  of  that  he  is  a 
citizen. 

§  1632.  On  the  trial  of  a  foreigner  for  illegal  peddling,  whether     inindict- 
with  or  without  license,  the  State  is  only  required  to  prove  the  onus  is  on 

1  IT  1      1        r        '  •        T    r>  T  defendant 

pedaling,  and  the  torei^ner  mus,t  show,  m  defense,  his  eligibility,  etc 


/ 


326 


PT.  1, — TIT.  17. — Salaries  and  Fees  &f  Officers. 


Chapter  1. — Officers  connected  with  the  Executive  Departments 


TITLE    XVIL 


SALARIES  AND  FEES  OF  OFFICERS 


CHAPTER    I. 


OFFICERS  CONNECTED  WITH  THE  EXECUTIVE  DEPARTMENT. 


Section. 

1633.  Salaries  appropriated. 

1634.  Salaries  of  Executive  officers. 


Section. 

1635.  Pay  of  those  without  fixed  salaries. 


§  1633.  [The  various  sums  of  the  annual  salaries  of  all  the  of- 
ficers of  this  State,  whose  salaries  are  fixed  by  law,  are  hereby 
appropriated  annually  to  pay  said  officers,  until  they  are  altered 
by  law.]  (a) 

§  1634.  The  salaries  per  annum  x)f  such  officers,  respectively^ 
Salaries  of  are  as  follows  : 

Executive 

officers.  j-^j^^  Governor $4000  00 

The  Governor's  Secretaries,  each 1800  00' 

The  Governor's  Messenger 950  00' 

The  Comptroller  General 3000  00 

The  Clerk  of  the  Comptroller  General 1600  00 

The  State  Treasurer 2000  00 

The  Secretary  of  State 2000  00 

The  Clerk  of  the  State  Treasurer 1600  00 

The  State  Librarian 1200  00](b> 

§  1635.  All  persons  employed  by  the  Governor  for  whom  no» 
Pay  of  of- compensation  is  prescribed  are  paid,  according  to  his  discretion, 
salaries  are  out  of  the  moncy  appropriated  therefor.     If  no  money  is  thus  ap- 
propriated, and  the  employment  is  indispensable,  he  has  the  priv- 
ilege  to  pay  them  out  of  the  contingent  fund. 


(a)  Acts  of  1865-^,  pp.  11, 12.    (b)  Acts  of  1865-«,  p.  16. 


PT.  1. — TIT.  17. — Salaries  and  Fees  of  Officers. 

Chapter  2. — Other  Officers  appointed  by  the  Governor. 

CHAPTER  II. 

OTHER    OFFICERS    APPOINTED    BY    THE    GOVERNOR. 

Section.  I  Section. 

1636.  Pay  of  officers  appointed,  etc.  '        1637.  Governor  may  fix  pay,  etc. 


\ 


§1636.  The  salaries  per  annum  of  such  officers,  respectively,  g^^^^y^^^^^; 
are  as  follows  :  Ste^L.'^ 

The  Trustees  of  the  Lunatic  Asylum,  each $  100  00 

[The  Principal  Keeper  of  the  Penitentiary 2000  00 

The  Assistant  Keeper  of  the  Penitentiary 1200  00 

The  Book-keeper  and  Salesman  of  the  Penitentiary 1200  00](a) 

The  Tanner  of  the  Penitentiary 1200  00 

The  Overseer  of  the  Penitentiary 800  00 

The  Physician  of  the  Penitentiary 500  00 

The  Chaplain  of  the  Penitentiary 150  00 

The  Military  Store-keeper  at  Savannah 300  00 

The  Military  Store-keeper  at  Milledgeville 150  00 

§  1637.    If  the  Governor   establishes   other   places  of  keeping  ^^a^^g^'^the 
the  military  stores  of  the  State,  he  may  regulate  the  salaries  of  g^  J^p^^j.g' 
all  the  keepers  thereof,  so  that  the  compensation  -will  be  in  pro- 
portion to  their  respective  duties  and  responsibilities,  which,  when 
done,  shall  be  reported  to  the  General  Assembly. 


CHAPTER    III. 

OFFICERS  APPOINTED  BY  THE  TRUSTEES  OF  CERTAIN  INSTITUTIONS, 
WHO  ARE  PAID  IN  WHOLE,  OR  IN  PART,  FROM  THE  STATE  TREASURY 
OR   OUT   OF   STATE   APPROPRIATIONS. 

Section  1638.    Salary  of  officers  of  Asylum,  etc. 

§  1638.  The  salaries,  per  annum,  of  such  officers,  respectively,    salary  of 

-      i»  n  officers       of 

are    as    tollOWS:  the  Asylum, 

etc. 

The  Superintendent  and  Principal  Physician  of  the  Lunatic 

Asylum $2500  00 

The  Assistant  Physician 1250  00  * 

The  Superintendent  of  the   Georgia  Military  Institute 2500  00 

(a)  Acts  of  1865-6,  p.  16.    *  See  second  paragraph  of  Section  1368. 


328 


PT.  1. — TIT.  17. — Salaries  and  Fees  of  Officers. 


Chapter  4. — Officers  connected  with  the  Legislative  Department. 


CHAPTER   ly. 

OFFICERS  CONNECTED  WITH  THE  LEGISLATIVE  DEPARTMENT. 

Section  1639.    Salary  and  fees  of  Legislative  officers. 

§  1639.  The  salaries,  per  session,  of  the  officers  connected  with 
Salaries  Said  department,  who  receive   such,  and  which  are   embraced  in 

and  fees  of  .       .  p  , 

Legislative  the  appropriation  for  the  pay  of  officers  and  members  of  the  Gen- 
eral Assembly,  are — 

The  Secretary  of  the  Senate ." $500  00 

The  Clerk  of  the  House  of  Representatives 500  00 

The  fees  of  said  officers  are— 

For  every  extract  of  a  private  nature,  per  copy  sheet 15 

For  certifying  an  extract  of  a  private  nature 50 

For  certifying  an  act  for  the  benefit  of  an  individual,  or  corpo- 
ration, or  society • 3  00 


CHAPTER  V. 

OFFICERS  CONNECTED  "WITH  THE  JUDICIAL  DEPARTMENT. 


Section. 

1640.  Salaries  of  Judges  and  Sols.  General. 

1641.  Certificate  of  service. 

1642.  Fees  of  Attorney  General. 


Section. 

1643.  Fees  of  Sol.  Gen'l  Supreme  Court. 

1644.  Fees  in  certain  cases. 


1640.  The  salaries,  per  annum,  of  such  officers,  are  as  foi- 


Salaries  of  loWS  : 
Judges    and 
Solicitors 
General. 


Fees  of  So- 
licitor Gen- 
eral. 


The  Judges  of  the  Supreme  Court,  each |3500  00 

The  Reporter  of  the  Supreme  Court 1000  00 

The  Judges  of  the  Superior  Court,  each 2500  00 

[The  Solicitors  General  of  the  several   Circuits,  each 300  00]  (a) 

The  fees  of  such  officers  are  as  follows : 
1.   Solicitor  General — 


For  each  person  prosecuted  to  conviction  for  a  capital  offense, 

For  each  person  prosecuted  [to  trial  or  plea  of  guilty]  (b)  for  any 

other  felony,  and  for  any  violation  of  the  laws  against  gam- 


bling. 


50  00 


25  00 


(a)  Acts  of  1865-6,  p.  250.      (b)  Acts  of  1866,  p.  21. 


PT.  1.— TIT.  17.— Salaries  and  Fees  of  Officers.         .  329 


Chapter  5. — Officers  connected  with  the  Judicial  Department. 

For  each  person  indicted  or  presented : $    5  00 

For  each  proceeding  to  enforce  a  recognizance 5  00 

For  every  amount  collected  on  such  proceedings,  five  per  cent. 

For  every  proceeding  instituted  to  forfeit  a  charter 100  00 

For  services  in  the  Supreme  Court — 

First — In  capital  cases 50  00 

Second — Other  felonies 30  00 

Third — All  other  cases 15  00 

Fourth — For  litigated  recognizance,  double  fees  and  commis- 
sions. 

For  drawing  a  capias  against  a  person  indicted  or  presented  and 

not  bound  over 50 

For  drawing  a  capias  against  each  defaulting  juror 50 

For  entering  a  nolle  prosequi 35 

For  attending  at  Judge's  Chamber  to  take  the  affidavit  of  any 

person  in  criminal  cases 1  00 

For  drawing  an  affidavit,- or  any  instrument  of  writing,  per  copy 

sheet 10 

[For  a  peace  warrant  tried  or  disposed  of  by  the  Court 5  00]  (a) 

For  plain  collections  for  the  State,  five  per  cent. 

For  litigated  collections  for  the  State,  10  per  cent. 

For  services  in  cases  not  mentioned,  where  the  State  is  an  inter- 
ested party,  at  the  discretion  of  the  Governor,  not  exceeding        50  00 

[For  every  bill  of  indictment  ignored  by  the  Grand  Jury,  to  be 
paid  by  the  prosecutor  and  received  as  in  cases  of  malicious 
prosecution 5  00]  (b) 

§  1641.  They  shall  not  be  paid  fees  for  litigation  without  the    certificate 

,     .  .of  services. 

certificate  of  the  presiding  Judge  that  they  are  properly  and  faith-  cases  in 
fully  claimed  as  such,  nor  on  any  bill  for  any  species  of  gaming,  JaUoweV'^ 
where  the  same  is  entered  nol.  'pros. 

§1642.  The  Solicitor   General,   who,  by  virtue  of  his  office,  is  Fees  of  At- 

^  ^       '^  '         torney  Gen- 

Attorney  General,  has  the  following  fees :  erai. 

For  every  written  opinion  he  is  legally  required  to  make 25  00 

For  prosecuting  a  Solicitor  General,  the  payment  of  his  neces- 
sary expenses,  and.  i =         50  00 

For  services  in  any  case  where  the  State  has  an  interest,  and  his 
services  are  required,  the  payment  of  his  necessary  expenses, 
and 50  00 

For  suits  for  and  collection  of  money,  on  account  of  the  State,  out  of 
his  circuit,  when  litigated,  ten  per  cent,  upon  amount  collected,  and 
five  per  cent,  if  not  collected ;  if  not  litigated,  fees  of  Solicitor  General. 

For  any  service  performed,  for  which  a  fee  is  not  prescribed,  the  Gover- 
nor may  pay  him  what  he  deems  reasonable  and  just,  and  report 
the  same  to  the  General  Assembly. 

(a)  Acts  of  1859,  p.  17.    (b)  Acts  of  1866,  page  21. 


330  PT.  1.— TIT.  17.— Salaries  and  Fees  of  Ofeicers. 

Chapter  5.— Officers  ccmnected  with  the  Judicial  Department. 


"• 


§  1643.  The  fees  of  the  Solicitors,  for  services  rendered  in  the 
Fees  of  So-  Supreme  Court,  shall  be  paid  by  the  State,  on  the  warrant  of  the 

licitorinSu-  ^  '  .    . 

preme Court  Govcmor,  in  all  cases  when  the  Solicitor  shall  present  the  certifi- 
cate of  the  Clerk  of  the  Supreme  Court,  as  to  services,,  and  of  the 
Clerk  of  the  Superior  Court  to  the  fact  that  the  defendant  was 
acquitted,  or  was  unable  to  pay  the  costs. 

§  1644.  [The  fees  allowed  to  Solicitors  for  the  prosecution  in 
the  Superior  Court  of  the  crimes  which  were  reduced  below  felo- 
nies bj  the  act  of  the  20th  March,  1866,  shall  remain  the  same 
as  they  were  before  said  crimes  were  so  reduced  ;  and  the  fees  in  the 
County  Court  shall  be  the  same  as  those  herein  provided  for.]|  (a) 

a)  Acts  1866,  p.  153. 


PART    II. 

THE       CIVIL       COI>E. 


TITLE    I. 

OF      PERSONS 


Chapter  1. — Different  Jcinds  of  Persons — their  Mights  and  Status, 
Chapter  2. — Of  Domicil,  and  the  Planner  of  Changing  the  same. 


CHx\PTER    I. 

DIFFERENT  KINDS  OF  PERSONS— THEIR  RIGHTS  AND  STATUS, 


Article  1. — Of  Citizens, 
Article  2. — Of  Residents  and  Aliens, 
Article  3. — Of  Persons  of  Color, 
Article  4. —  Of  Corporations. 


ARTICLE  I. 


OF  CITIZENS. 


Section. 

1645.  Natural  and  artificial  persons. 

1646.  Division  of  natural  persons. 

1647.  Citizens. 

1648.  Rights  of  citizens. 

1649.  Exercise  thereof. 


Section. 

1650.  Females. 

1651.  Minors, 

1652.  Disqualification  from  crinaie. 

1653.  Insane  persons. 


§  1645.  Pexsaas  are  either  natural  or  artificial.     The  latter  are       Natural 
the  creatures  of  the  law,   and  except  so  far  as  the  law/a2:^zc?s  it,  %onl]  *"'*' 
subject  to  be  changed,  modified,  or  destroyed,  at  the  will  of  their 
creator  :  they  are  called  corporations. 


V 


J 


832  PT.  2.— TIT.  1.— CHAP.  1.— Persons. 

Article  1. — Citizens. 

§  1646.  Natural  persons   are   distinguished  according  to  their 
Division  rip;hts  and  status  into — 1st,  citizens;  2d,  residents  not  citizens;  3d, 

of      natural       =  7  ?  j  ?         > 

persons.       aliens  ;  4th,  persons  of  color,^''- 

§1647.  The  persons  to  whom  belong  the  rights  of  citizenship 

//Citizens.    ^^(J  the  modc  of  acquiring  and  losing  the  sa.me,  have  been  speci- 
fied in  a  former  Article. 
§  1648.  Among  the  rights  of   citizens    are    the  enjoyment  of 
Eights  of.  perspnal  security,  of  personal  liberty,  private  property  and  the 
disposition  thereof,  the  elective  franchise,  the  right  to  hold  office, 
to  appeal  to  the  Courts,  to  testify  as  a  witness,  to  perform  any 
'S^  civil  function,  and  to  keep  and  bear  arms. 

r^  ■  §  1649.  All  citizens  are  entitled  to  exercise  all  their  rights  as 

1     thereof.      such,  unloss  Specially  prohibited  by  lawA 

,^'.  §  1650.  Females  are  not  entitled  to  the  privilege  of  the  elective 

Females,    franchise,  nor  can  they  hold  any  civil  office  or  perform  any  civil 

functions  unless  specially  authorized  by  law,  nor  are  they  required 

/^  to  discharge  any  military,  jury,  police,  patrol,  or  road  duty. 

•f-  §  1651.   The  law  pr£scrib.es  certain  ages  at  which  persons  shall 

"^    ^Minors,     be  Considered  of  sufficient  maturity  to  discharge  certain  civil  func- 

^  J  tions,  to  make  contracts,  and  to  dispose  of  property.     Prior  to 

^W  ^.  those  ages  they  are  minors,  and  are  for  that  disability  unable  to 

x-^^  exercise  these  rights  of  citizens. 

§  1652.   Citizens  under  conviction  by  a  Court  of  this  State  for  a 
Disquaiifi-  felouv  are  incapable  of  exercisino-  the  elective  franchise  pendinoj 

-   x^tion   from    ,.;.,.  i      ii  •    •  i 

J  \i  erime.  the  cxecutiou  of  their  sentence  ;  and  all  persons,  citizens  or  other- 
wise, convicted  of  perjury,  false  swearing,  or  forgery,  shall  be 
incapable  of  testifying  as  a  witness  pending  the  execution  of  their 
sentence. 

§  1653.  All  persons  non  compos  mentis,  either  from  birth  or  from 

*  J^f "®  P®^'  subsequent  causes,  constantly  or  periodically,  or  from  age,  infirmity, 
drunkenness,  or  otherwise  incapable  of  managing  their  affairs, 
have  their  persons  and  estates,  or  either  of  them,  placed  in  the 
control  of  guardians.  Such  persons  retain  all  the  rights  of  citizens 
which  they  have  the  capacity  to  enjoy,  and  which  are  compatible 
with  their  situation. 


sons. 


PT.  2."^TIT.  1.— CHAP.  1.— Persons. 


33B 


Article  2. — Residents  and  Aliens. 


ARTICLE  II. 


OF    RESIDENTS    AND    ALIENS. 


Skctiox. 

1654.  Rights  of  citizens  of  U.  S. 

1655.  Aliens. 

1656.  Rights  of  aliens  as  to  realty. 

1657.  Rights  to  sue  and  testify. 


Section. 

1658.  Liens. 

1659.  Priyileges  of  certain  Frenchmen. 

1660.  Militia  duty. 


§  1654.  Such  citizens  of  the  other  States  of  this  Ui^isii  ^^  are  citizens  of 
recognized  as  citizens  of  the  United  States  by  the  Constitution 
thereof,  shall  be  entitled,  while  residents  of  this  State,  to  all  the 
rights  of  citizens  thereof,  except  the  elective  franchise  and  the 
right  to  hold  office,  and  to  perform  such  civil  functions  as  are 
confined  by  law  to  citizens  of  this  State. 

§  1655.  Aliens  are  the  subjects  of  foreign  governments  not  nat 
uralized  under  the  laws  of  the  United  States. 

§  1656.  Aliens,  the  subjects  of  governments  at  peace  with  the  ^'^"s  as 
United  States  and  this  State,  so  long  as  their  governments  remain 
at  peace,  shall  be  entitled  to  all  the  rights   of  citizens  of  other 
States  resident  in  this  State,  and  shall  have  the  privilege  of  pur- 
chasinsr,  hpldin^,  and  conveying  real  estate  in  this  State. 


Aliens. 


Eights    of 
to 


Liens. 


Eights  to 

§  1657.  The  citizens  of  other  States  of  the  United  States,  or  of  sij?  and  tes- 
foreign  States  at  peace  with  this  State,  and  friendly  Indians,  shall 
by  comity  be  allowed  the  privilege  of    suing  in  our   Courts  or 
giving  evidence  therein,  so  long  as  the  same  comity  is  extended  in 
their  Courts  to  the  citizens  of  this  State. 

§  1658.  Aliens  may  receive  and  enforce  liens  by  mortgage  or 
otherwise  on  real  estate  in  this  State. 

§  1659.  In  accordance  with  the  recommendation  of  the  Congress  of  certain 
of  the  United  States  expressed  in  the  resolution  passed  on  14th 
January,  A.D.  1780,  the  citizens  of  the  French  Government  shall 
continue  to  have  the  privilege  of  disposing  of  and  settling  their 
estates  within  this  State,  as  provided  in  the  Act  of  this  State, 
approved  February  22d,  A.D.  1785. 

p  -t  nr*r\     Tt      '  1  ••  i  •  t  i'  ^     ii  t      Militia  duty. 

§  lobO.  Kesidents  not  citizens  and  resident  aliens  shall  not  be 
liable  to  militia  duty,  except  in  so  far  as  repelling  local  invasions 
or  suppressing  insurrections. 


PT.  2.=^TIT.  l.-^CHAP.  1,— Persons. 


Article  3. — Persons  of  Color. 


ARTICLE   III. 


OF    PERSONS    OF    COLOR. 


1661.  Who  are. 

1662.  Rights  of  persons  of  color. 

1663.  May  testify. 

1GG4.  May  file  affidavits. 
1665.  Husband  and  Vfife. 


Section. 

1686.  Marriage  ceremony. 

1667.  Obligation  of  parent. 

1668.  Obligation  of  children. 
1069.  Children — when  legitimate. 


§  1661.  [All  negroes,  muiattoes,  mestizoes,  and  their  descend- 
Who  are    ants,  liavinff  one-ei«;litli  neo;ro  or  African  blood  in  their  veins,  shall 

persons  of  -'  "  ^  o  ' 

color.  be  known  in  this  State  as  persons  of  color.]  (a) 

§  1662.  [Persons  of  color  shall  have  the  right  to  make  and  en- 
Their rights,  force  contracts,  to  sue  and  be  sued,  to  be  parties  and  give  evi- 
dence, to  inherit,  to  purchase,  lease,  sell,  hold,  and  convey  real 
and  personal  property,  and  to  have  full  and  equal  benefit  of  all 
laws  and  proceedings  for  the  security  of  person  and  estate,  and 
shall  not  be  subjected  to  any  other  or  different  punishment,  pain 
or  penalty  for  the  commission  of  any  act  or  offense  than  such  as 
are  prescribed  for  white  persons  committing  like  acts  or  of- 
fenses.] (a) 

§1663.  [Persons   of  color  shall  be  competent  witnesses  in  all 

*►     tj^ent  ^wu-  ^^^  Courts  of  this  State  in  civil  cases  whereto  a  person  of  color  is 

aesses.         ^  party,  and  in  all  criminal  cases  wherein  a  person  of  color  is  de- 

V  fendant,  or  wherein  the  offense  charged  is  a  crime  or  misdemeanor 

against  the  person  or  property  of  a  person  of  color.]  (X)\ 

§  1664.  [In  all  cases  now  pending,  or  that  may  be  hereafter  in- 
May  file  stitutcd  in  any  of  the  Courts  of  this  State,  wherein  a  person  of 

affidavit—  ^  "^  . 

when.  color  is  a  party,  plaintiff  or  defendant,  it  shall  be  competent  for 
such  person  of  color  to  make  and  file  any  affidavit  now  by  law  allowed 
a  citizen,  to  advance  the 'remedy  or  aid  the  defense,  and  when  so 
made  and  filed,  in  conformity  with  law,  such  action  shall  be  had 
thereon  as  though  the  said  affidavit  had  been  made  and  filed  by 
any  other  litigant.]  (a) 

§  1665.  [Persons   of  color  living   together  on   the  9th   day  of 
,  Husband  March,  1866,  as  husband  and  wife,  are  hereby  declared  to  sustain 

and     wife—    ,         ,         ,         '     .  •,     n    i 

When.  that  legal  relation  to  each  other,  unless  a  man  shall  have  two  or 
more  reputed  wives,  or  a  woman  two  or  more  reputed  husbands. 
In  such  event,  the  man   shall  immediately  select   one  of  his   re- 


(a)  Acts  of  1865-6,  p.  239. 


PT.  2.— TIT.  1.— CHAP.  1.— Persons.  885 


Article  8> — Persons  of  Color. 


I      puted  wives,  with  her  consent,  or   the  woman  one  of  her  reputed 
'      husbands,  with  his  consent,  and  the  ceremony  of  marriage  between 

these   two   shall  be  performed.      If  such  man,  thus  livinsr  with  ^  Adultery, 

^  7  o  etc.  —  how 

more  than  one  woman,  or  such  woman  livino:  with  more  than  one  committed. 

Iman,  shall  fail  or  refuse  to  comply  with  the  provisions  of  this  Sec- 
tion, he  or  she  shall  be  prosecuted  for  the  offense  of  fornication, 
or  fornication  or  adultery,  or  fornication  and  adultery,  and  pun- 
ished accordingly.]  (a) 

§  1666.  fit  shall  be  lawful  for  ordained  colored  ministers  of  the     who  may 

^    ^     ^  ,  perform 

Gospel,  or  ministers  of  the  Gospel  of  African  descent,  to  celebrate  marriage  ce* 
marriage  between  freedraen  and   freedwomen,  or  persons  of  Afri- 
j,     can  descent,  only,  under  the  same  terms  and  regulations  as   are 
{    now  required  by  the  laws  of  the  State  for  marriages  between  free 
Awhite  citizens  of  this  State.]  (b) 
^       §1667.  fAmonff  persons  of  color  the  parent  shall  be  required       Parents 

.         .     -  ,  .       ^      ,  ,  .,  ,  111.-  .->,.•      sl^'-^ll  main- 

to  maintain   his   or   her  children,  whether   legitimate   or  ille£!;iti-  tain    ehii- 

*-*  °  dren. 

mate.]  (a) 

§  1668.   [Children  shall  be  subiected  to  the  same  obliarations  in  pbUgationg 

"^  L  '^  <->  of   children. 

relation  to  their  parents  as  those  which  exist  in  relation  to  white 
persons,  and  in  all  cases  when  the  parents  have  separated  and 
the  children  remain  with  the  mother,  she  shall  have  control  of 
such  children  during  their  minority.]  (c) 

§  1669.  TEvery  colored  child  born  before  the  9th  day  of  March,  chiid  legiti- 

,  .   .  ^  mate— when 

1866,  is  hereby  declared  to  be  the  legitimate  child  of  his  mother; 
but  such  child  is  the  legitimate  child  of  his  colored  father  only 
when  born  within  what  was  regarded  as  a  state  of  wedlock,  or 
when  the  parents  were  living  together  as  husband  and  wife.]  (d) 


ARTICLE  IV. 

OF      CORPORA  TIONB. 


Section  1. —  Their  Nature  and  Kinds. 
Section  2. —  Their  Creation. 
Section  S.— Their  Powers  and  Liabilities. 
Section  4:.— Their  Dissolution. 

(a)  Acts  1865-6,  p.  239.  (b)  Acts  of  1866,  p.  156.  (c)  Acts  of  1865-6,  p.  240, 
and  Acts  of  1866,  p.  157.  (cl)  Acts  of  1865-6,  pp.  239-'40,  and  Acts  of  1866, 
pp.  156-7. 


836  PT.  2.— TIT.  1.— CHAP.  1.— ART.  4.— Persons. 

Section  1. — Their  Nature  and  Kinds. 

SECTION  L 

THEIR  NATURE  AND  KINDS. 


Section. 

1670.  Definition. 

IGTl.  Public  and  private. 


Sectiox. 

1G72.  Public. 
1G73.  Private. 


§  1670.  A  corporation  is  an  artificial  person  created  bj  law  for 
Definition,  specific  purposes,  the  limit  of  whos,^_e:^istence,  powers  and  liabili- 
ties  is  fixed  bj  the  act  of  incorporation,  iisuallj  called  its  charter. 
prhS?^  ^^      §  1671.   Corporations  are  either  public  or  private. 

§  1672.  A  public   corporation  is  one  having  for  its  object  the 
Public,     administration  of  a  portion  of  the  powers  of  government,  dele- 
gated to  it  for  that  purpose  :  such  are  municipal  corporations. 
§  1673.  All  others  are  private,  whether  the  object  of  incorpora- 
Private,     tiou  be  for  public  convenience  or  individual  profit,  and  whether  the 
purpose  be,  in  its  nature,  civil,  religious,  or  educational. 


SECTION  II. 

K 

THEIR    CREATION. 

'X 

Section. 

1674.  By  whom  created. 

1675.  Foreign  corporations. 

Section. 

1G76.  Organization  under  order  of  Court. 

§  1674.  The  power  to  create  corporations  in  this  State  vests  in 
By  whom  i]iq  Grencral  Assembly,  and  the  Courts,  by  whom  all  charters  must 

created.  .   — -^  '    *—'"''-    •/  '  ...m.-...^,,^  '      ^ 

be  granted. 

§  1675.  Corporations  created  by  other  States  or  foreign  gov- 
Foreign  cor-  ernmeuts,  are  recognized  in  our  Courts  only  by  comity,  and  so  lona; 

porations.  ?  o  ./      «/  c/  ?  o 

as  the  same  comity  is   extended  in  their  Courts  to  corporations 
created  by  this  State. 

§  1676.  A  pHvate  corporation,   for  any  puxpase  whatever,  ex- 
^  Organiza-  ccpt  banking  or  insurance,  may  be  created  in  this  State  by  com- 

^»i  tion     under  .  ~-  ■        !pr      "'  - 

'^  order   of  plymg  With  the  loilowing  provisions  :J"n, 

1.  [The  persons   desiring  the  charter  shall  file  in   the   office 
Petition,    of   the  Clerk  of   the    Superior    Court  of   the  County   in  which 
they  desire  to  transact  business,   a  petition  or  declaration,  speci- 
fying the  objects  of  their  association,  and  the  particular  business 
they  propose  to  carry  on,  together  with  their  corporate  name,  and 


/ 


0 

PT.  2.— TIT.  1.— CHAP.  1.— ART.  4.— Persons.  337 

Section  2. — Their  creation, 
the  amount  of  capital  to  be  employed  by  them  actually  paid  in,     Corporate 

^  .  .  .  .         name     and 

and  their  place  of    doing  business,   and  the  time  not  exceeding  capital  stock 
twenty  years,  for  which  they  desire  to  be  incorporated  ;  which  pe- 
tition or  declaration  shall  be  recorded  by  said  Clerk,  and  shall  also 
be  published  once  a  week,  for  one  month,  in  the  nearest  public  ga-    Petition  to 

^  '  '  ■"•  ^       be  recorded 

zette  to  the  point  where  such  business  is  located,  before  said  Court  andpubush- 
shall  pass  an  order  declaring  said  application  granted.]  (a) 

2.  If,  upon  hearing  such  petition,  the  Court  shall  be  satisfied  Order, 
that  the  application  is  legitimately  within  the  purview  and  inten- 
tion of  this  Code,  it  shall  pass  an  order  declaring  the  said  appli- 
cation granted,  and  the  petitioners  and  their  successors  incorpo- 
rated for  and  during  a  term  not  exceeding  twenty  years,  with  the 
privilege  of  renewal  at  the  expiration  of   that  time,  according  to 

the  provisions  above  set  forth.  A  certified  copy  of  this  petition 
and  order  under  the  seal  of  the  Court,  shall  be  evidence  of  such 
incorporation  in  any  Court  in  this  State. 

3.  [No  corporation  created  under  this  Article  shall  commence     Ten  per 

.      ™".  *  '        T    .,    '        -  '  ■      -  -     ,  ■"■■  "'■■  ""  '.  cent,     must 

to  exercise  the  privileges  conferred  by  the  charter,  until  ten  per  be  paid  in. 
cent,  of  the  capital  stock  is  paid  in,  and  no  charter  shall  have  any 
force  or  efi'ect  for  a  longer  period  than  two  years,  unless  the  cor- 
porators,  within  that  time,  shall  in  good  faith  commence  to  exer- 
cise the  powers  granted  by  the  act  of  incorporation;  and  in  case 
of  the  failure  of  said  corporation,  the  stockholders  shall  be  bound    individual 
in  their  private  capacity,   to  any  creditor  of  said  corporation,  for  '^  ^  ^  ^' 
the  amount  of  stock  subscribed  for  by  him,  until  the  said  subscrip- 
tion is  fully  paid  up,  or  until  the  stockholder  shall  have  paid,  out 
of  his  private  property,  debts  of  the  said  corporation  to  an  amount 
equal  to  his  unpaid  subscription.]  (a) 

4.  The  Clerk  of  the  Court,  for  his  services,  shall  receive  the      Fees. 
usual  fees  allowed  for  similar  services  in  other  cases. 

5.  Corporations  thus  created  may  exercise  all  corporate  powers    Powers, 
necessary  to  the  purpose  of  their  organization,  but  shall  make  no 
contract  or  purchase,  or  hold  any  property  of  any  kind,  except 

such  as  is  necessary  in  legitimately  carrying  into  efi'ect  such  pur- 
poscj^r  for  securing  debts  due  to  the  company. 

(a)  Acts  of  1865-6,  pp.  27-8. 
22 


S38 


PT.  2.— TIT.  1.— CHAP.  1.— ART.  4.— -Persons. 


Section  3. — The  Powers  and  Liabilities  of  Corporations. 


SECTION  III. 

THE  POWERS  AND  LIABILITIES  OF  CORPORATIONS, 


Section. 

1677.  Continuance. 

1678.  Common  powers. 


Section. 

1679.  Responsibility  for  acts  of  officers. 


§  1677.  Corporations  have  continuous  succession  during  the 
Continuance  time  limited  by  their  charter,  notwithstanding  the  death  of  their 
members.  Should  any  charter  granted  in  future  by  the  General 
Assembly  to  a  private  corporation  be  silent  as  to  its  continuance, 
such  charter  shall  expire  at  the  end  of  thirty  years  from  the  date 
of  its  grant. 

§  1678.  All  corporations  have  the  right  to  sue  and  be  sued,  to 
Common  havo  and  use  a  common  seal,  to  make  by-laws,   bindins;  on  their 

powers.  ;- —  -^     -,     /  o 

own  members,  not  inconsistent  with  the  laws  of  this  State  and  of 
the  United  States,  to  receive  donations  by  gift  or  will,  to  purchase 
and  hold  such  property,  real  or  personal,  as  is  necessary  to  the 
purpose  of  their  organization,  and  to  do  all  such  acts  as  are  neces- 
sary for  the  legitimate  execution  of  this  purpose. 

§  1679.  Every  corporation  acts  through  its  officers,  and  is  re- 
Eesponsi-  sponsible  for  the  acts  of  such  officers  in  the  sphere  of  their  appro- 

bility    for    ^.  .  .~  „   r'"",.  '^^WT 

acts  of  offi-  priate  duties  ;  and  no  corporation  shall  be  relieved  of  its  liability 
to  third  persons  for  the  acts  of  its  officers,  by  reason  of  any  by- 
law or  other  limitation  upon  the  power  of  the  officer,  not  known 
to  such  third  person. 


SECTION  IV. 


OF     THE     DISSOLUTION     OF     CORPORATIONS 


Section. 

1680.  Of  public  corporations. 

1681.  Private  charters. 

1682.  Heretofore  granted. 

1683.  How  dissolved. 

1684.  How  forfeited. 


Section. 

1685.  Surrender. 

1686.  Death  of  members. 

1687.  Disposition  of  assets. 

1688.  Collateral  liabilities. 


§1680.  EaJillc  corporatioJis  being  established  for  public  pur- 
Pubiiccor-  poses,  are  always  subject  to  dissolution  by  the  act  of  the  General 

porations.       r  ?  *'  «/  «' 

Assembly. 


PT.  2.— TIT.  1.— CHAP.  1.— ART.  4.— Persons.  339 


Section  4. — The  Dissolution  of  Corporations. 


S  1681.  In  all  cases  of  private  charters  hereafter  granted,  the        Private 

^  ^^„..  ^    .r,_.,..„     .  ,  ,  .  °  '  charters. 

State  reserves  the^ri^ht  to  withdraw  the  franchise,  unless  such 
right  is  expressly  negatived  in  the  charter. 

"~5T-682.   Private   corporations   heretofore  created,   without  the    Heretofore 
(reservation   of  the   right    of   dissolution,'    and    where    individual 
rights  have  become  vested,  are  not  subject  to  dissolution  at  the 
will  of  the  State. 

§  1683.  Every  corporation  is  dissolved — 1st,  by  expiration  of    now  dis- 
its  charter ;  2d,  by  fgrfejijiire  of  its  oJoaxter ;  3d,  by  a  surrender 
of  its  franchises  ;  4th,  by  the  death  of  all  its  members  without  pro- 
vision for  a  succession. 

§  1684.  A  corporation  may  forfeit  its  charter — 1st,  by  a  willful     How  for- 

^  ^  •^^  .   .  ...  '"'  feited. 

violation  of  any  of  the  essential  conditions  on  which  it  is  granted ; 
2d,  by  a  misuser  or  non-user  of  its  franchises.  This  dissolution 
dates  from  the  judgment  of  a  Court  of  competent  jurisdiction 
declaring  the  forfeiture. 

§  1685.  A  corporation   may  be   dissolved  by  a  voluntary  sur-  surrender. 
render  of  its  franchises  to  the  State.     In  such  case,  such  surren- 
der does  not  relieve  its  officers  or  members  from  any  liability  for 
the  debts  of  the  corporation. 

§  1686.  The  death  of  all  the  members  of  a  corporation,  or  of    Death  of 
so  many  of  them  as  to   render  it  impossible  under  the  charter  to 
provide  a  succession,  is  a  dissolution  thereof. 

§  1687.  Upon  the  dissolution  of  a  corporation,  for   any  cause,       Disposi- 

«,      /»     1  T  p  ,    .       .       .        ~%     -I  •  ^^OQ    of    as- 

all  01  the  property  and  assets  oi  every  description  belonging  to  sets. 

the  corporation  shall  constitute  a  fund — first,  for  the  payment  of 
its  debts,  and  then  for  equal  distribution  among  its  members.  To 
this  end  the  Superior  Court  of  the  County  where  such  corpora- 
tion was  located  shall  have  power  to  appoint  a  receiver,  under 
proper  restrictions,  properly  to  administer  such  assets  under  its 
direction. 

§  1688.  The  dissolution  of  a  corporation,  from  any  cause,  shall     collateral 
not,  in  any  manner,  affect  any  collateral  or  ultimate  or  other  lia- 
bility, legally  incurred  by  any  of  its  officers  or  members- 


340 


PT.  2.— TIT.  1.— PERSoifs. 


Chapter  2. — Domicil  and  the  Manner  of  Cbainging  the  same. 


CHAPTER    II. 

OF   DOMICIL    AND    THE    MANNER    OF    CHANGING    THE   SAME. 


Section. 

1689.  General  rule. 

1690.  Persons  residing  at  two  or  more,  etc. 

1691.  Feme  covert. 

1692.  Of  minor. 


Section. 

1693.  Lunatics,  etc. 

1694.  Change  of  domicil. 

1695.  Of  persons  not ''  sui  Juris." 


§  1689.  The  (ijamicil  of  every  person  of  full  age,  and  laboring 
Domicil.  Under  no  disability,  is  the  place  where  the  family  of  such  person 
shall  permanently  reside,  if  in  this  State.  If  he  has  no  fang^ly, 
or  they  do  not  reside  in  this  State,  then  the  place  where  such  per- 
son shall  generally  lodge  shall  be  considered  his  domicil. 

§  1690.  If  a  person  shall  reside  indifferently  at  two   or  more 


Election  of  places  in  this  State  such  person  shall  have  the  privilege  of  elect- 
ing which  shall  be  his  domicil,  and  if  such  election  be  made  no- 
torious the  place  of  his  choice  shall  be  his  domicil.  If  no  such 
election  be  made,  or  if  made  is  not  generally  known  among  those 
with  whom;  he  transacts  business  in  this  State,  third  persons  may 
treat  either  one  of  such  places  as  his  domicil,  and  it  shall  be  so 
held  :  and  in  all  cases  a  person  who  habitually  resides  a  portion 
of  the  year  in  one  County  and  another  portion  in  another,  shall 
.  be  deemed  a  resident  of  both,  so  far  as  to  subject  him  to  suits  in 
either  for  contracts  made,  or  torts  committed  in  such  County. 
Transient  Transient  persons  whose  business  or  pleasure  causes  a  frequent 
change  of  residence,  and  having  no  family  permanently  residing 
at  one  place  in  this  State,  shall  be  held  and  deemed  as  to  third 
persons  to  be  domiciled  at  such  place  as  they  at  the  time  tempora- 
rily occupy. 

§1691.  The  domicil  of  a  married  woman  shall  be  that  of  her 
j?jme  CO-  husband,  except  in  two  cases  :  1st,  of  voluntary  separation  and  liv- 
ing apart ;  2d,  of  a  pending  application  for  divorce.  In  which  case 
her  domicil  shall  be  determined  as  if  she  were  2,  feme  sole. 

§  1692.  The  domicil  of  every  minor  shall  be  that  of  his  father^ 
if  alive,  unless  such,  father  has  voluntarily  relinquished  his  pa- 
rental authority  to  some  other  person.  In  such  event,  the  domicil 
of  the  minor  shall  be  that  of  his  master,  if  an  apprentice,  or  his 
employer ;  if  neither  master  or  employer,  then  the  place  of  his 
own  choice ;  if  the  father  be  dead,  then  the  domicil  of  the  minor 
shall  be  that  of  his  guardian,  if  he  has  one  in  this  State ;  if  no 


©f  minor. 


PT.  2.— TIT.  1.— Persons.  341 


Chapter  2. — Domicil  and  the  Manner  of  Changing  the  same. 

guardian,  then  of  his  mother,  if  alive ;  if  no  mother,  then  of  his 
employer ;  if  no  employer,  then  of  his  own  choice.  The  domicil 
of  a  bastard  shall  be  that  of  his  mother. 

§  1693.  Persons  of  full  age,  who  for  any  cause  are  placed  under  Lunatics. 
-the  power  of  a  guardian,  have  the  same  domicil  with  the  guardian. 

§  1694.   The  domicil  of  a  person  '•'•  sui  juris.'"  may  be  changed    change  of 

domicil. 

'hj  an  actual  change  of  residence  with  the  avowed  intention  of 
remaining.  A  declaration  of  an  intention  to  change  the  domicil 
is  ineffectual  for  that  purpose  until  some  act  done  in  execution  of 
the  intention. 

§1695.  A  person  whose  domicil  for  any  reason  is  dependent    of  persona 
upon  that  of  another  can,  by  no  act  or  volition  of  his,  effect  a  juris:' 
•change  of  his  own  domi^jil ;  nor  can  a  guardian  change  the  domicil 
of  his  ward  by  a  change  of  his  own  or  otherwise,  so  as  to  interfere 
with  the  rules  of  inheritance  or  succession,  or  otherw^ise  affect  the 
rights  or  interests  of  third  persons. 


TITLE     11. 

OF    THE     DOMESTIC     RELATIONS 


Chapter  1. — Of  Husband  and  Wife, 
Chapter  2. — Of  Parent  and  Child, 
Chapter  3. — Of  Guardian  and  Ward. 
Chapter  4. — Of  Master  and  Servant. 


CHAPTER  I. 

OF    HUSBAND    AND    WIFE. 


Article  1. — Of  Marriage  and  Divorce. 

Article  2. — Of  the  Rights  and  Liabilities  of  Husband  and  Wife^  etc. 

Article  3. — Of  Marriage  Contracts  and  jSettlements. 


342    PT.  2.— TIT.  2.— CHAP.  1.— ART.  I.—Domestic  Rblaotons. 

Section  1. — Marriage — how  and  by  wliom  coutracled. 

ARTICLE  I. 

OF    MARRIAGE    AifD    DIVORCE.. 


Section  1. — 3Iarriage — Jiow  and  hy  tvJiom  contracted. 
Section  2. — Divorces,  and  lioio  obtained. 
Section  3. — Of  Alimony. 


SECTION  I. 


marriage  -  HOAV  AND   BY  WHOM   CONTRACTED. 


Section. 

1696.  Restraint  of  marriage. 

1697.  Essentials  of  marriage. 

1698.  Who  is  able  to  contract. 

1699.  Prohibited  degrees. 

1700.  Consent. 

1701.  Void  marriages. 

1702.  Licenses — how  granted. 


Section. 

1703.  Return  of  marriage  by  bans.. 

1704.  Consent  of  parents. 

1705.  Penalty  on  persons  officiating. 

1706.  Jewish  marriages. 

1707.  Amalgation  prohibited. 

1708.  Want  of  authority  in  minister,  etc, 

1709.  Marriage  in  another  State. 


§  1696.  Marriage  is  encouraged  by  the  law,  and  every  effort  to 
Eestraints  restrain  or  discouraore  marriage  by  contract,  condition,  limitation, 

of  marriage.  "  .  /    .        ^  i         .-,         -r^     V-.  — —  ,    '      -  ' 

or  otherwise,  is  invalid  and  void.  Prohibiting  marriage  to  a  par- 
ticular person  or  persons,  or  before  a  certain  reasonable  age,  or 
other  prudential  provision  looking  only  to  the  interest  of  the  per- 
son to  be  benefited,  and  not  in  general  restraint  of  marriage,  will 
be  allowed  and  held  vaMd. 

§  1697.  To  constitute  a  valid  marriage  in  this  State  there  must 

Essentials  bc 

of  marriage.         -t      -rt. 

1.  Parties  able  to  contract. 

2.  An  actual  contract. 

3.  Consummation  according  to  law. 

§  1698.  To  be  able  to  contract  marriage,  a  person  must  be  of 
wiio  is  sound  mind ;  if  a  male,  at  least  seventeen  years  of  age,  and  if  a 
tract.  female  at  least  fourteen  years  of  age,  and  laboring  under  neither 

of  the  following  disabilities — viz  : 

1.  Previous  marriage  undissolved. 

2.  Nearness  of  relationship  by  blood  or  marriage,  as.  hereinaf- 
ter explained. 

3.  Impotency* 


PT.  2.— TIT.  2.— CHAP.  1— ART.  1.— Domestic  Relations.    343 


Section  1. — Marriage — how  and  by  whom  contracted. 


§  1699.  Marriages  between  persons  related  by  affinity  in  the  Prohibited 
following  manner  are  prohibited — viz  :  A  man  shall  not  marry  his 
step-mother,  or  mother-in-law,  or  widow  of  his  uncle,  or  daughter- 
in-law,  or  step-daughter,  or  grand-daughter  of  his  wife.  A  wo- 
man shall  not  marry  her  corresponding  relatives.  Marriages  with- 
in the  degrees  prohibited  by  this  Section  are  incestuous. 

§  1700.  To  constitute  an  actual  contract  of  marriage,  the  par-    consent. 
ties  must  be  consenting  thereto  voliintarily,  and  without  any  fraud 
practiced  upon  either.      Drunkenness   at  the  time   of  marriage, 
brought  about  by  art  or  contrivance  to  induce  consent,  shall  be 
held  a  fraud. 

§1701.  Marriages  of  persons  unable  to  contract,  or  unwilling    voidmar- 

.  .  riages. 

to  contract,  or  fraudulently  induced  to  contract,  are  void.     The 
issue  of  such  marriages,  before   they  are   annulled  and  declared     issue. 
void  by  a  competent  Court,  are  legitimate.  In  the  latter  two  cases, 
however,  a  subsequent  consent   and  ratification  of  the  marriage, 
freely  and  voluntarily  made,  accompanied  by  cohabitation  as  hus-  ratification, 
band  and  wife,  shall  re44or  valid  the  marriager""" 

S  1702.  Marriage  licenses  shall  be  granted  by  the  Ordinaries,    Licenses— 

°  r  how  granted 

or  their  deputies,  of  the  several  Counties  where  the  female  to  be    ,    ..    /  ^  .  / 

married  resides,  it  resident  m  this  fetate,  directed  to  any  Judge,     '       ^ 

Justice  of  the  Inferior  Court,  Justice  of  the  Peace,  or  Minister  of 

the  Gospel,  authorizing  the  marriage  of  the  persons  therein  named, 

and  requiring  such  Judge,  Justice,  or  Minister  to  return  the  said  Return  and 

license  to  the  Ordinary,  with  his  certificate  thereon  as  to  the  fact 

and  date  of  the  marriage,  which  license,  with  the  return  thereon, 

shall  be  recorded  by  the  Ordinary,  in  a  book  kept  by  him  for  that 

purpose. 

§  1703.  If  any  Judge,  Justice,  or  Minister  shall  connect  in  mar-     Return  of 
riage  persons  whose  bans  have  been  published,  such  Judge,  Justice,  bans. 
or  Minister  shall  certify  the  fact  to  the  Ordinary  of  the  County 
where  such  bans  were  published,  who  shall  record  the  same  in  the 
same  book  with  marriage  licenses. 

§  1704.  It  shall  be  the  duty  of  the  Ordinary  and  his  deputy  to  consent  of 
inquire  as  to  the  ages  of  all  persons  for  whom  marriage  licenses 
are  asked,  and  if  there  be  any  ground  of  suspicion  that  the  female 
is  a  minor  under  the  age  of  eighteen  years,  such  Ordinary  and 
his  deputy  shall  refuse  to  grant  the  license  until  the  written  con- 
sent of  the  parent  or  guardian,  if  any,  controlling  such  minor 
shall  be  produced  and  filed  in  his  office  ;  and  any  Ordinary  who, 


344   PT.  2.— TIT.  2.— CHAP.  1.— ART.  1.— Domestic  Relations. 


Section  1. — Marriage — how  and  by  whom  contracted. 


marnaires. 


by  himself  or  deputy,  shall  knowingly  grant  such  license  without 
such  consent,  or  without  proper  precaution,  in  inquiring  as  to  the 
Penalty  on  fact  of  minority,  or  for  the  marriage  of  a  female  to  his  knowledge 
^  ^°  ^^"  domiciled  in  another  County,  shall  forfeit  the  sum  of  five  hundred 
dollars  for  every  such  act,  to  be  recovered  at  the  suit  of  the  Clerk 
of  the  Superior  Court,  and  added  to  the  Educational  Fund  of  the 
County. 

§  1705.  Any  Judge,  Justice,  or  Minister  who  shall  join  in  mar- 
Penaity  on  riaore  any  couple  without  such  license,  or  the  publication  of  bans, 

person    offi-         to  ./  r  5  r  > 

dating.        shall  forfeit  the  sum  of  five  hundred  dollars,  to  be  recovered  and 
appropriated  as  set  forth  in  the  foregoing  Paragraph. 

§  1706.  Upon  request,  the  Ordinary  may  direct  the  marriage 
Jewish"  license  to  any  Jewish  Minister,  or  other  person  of  any  religious 
society  or  sect,  authorized  by  the  rules  of  such  society,  to  per- 
form the  marriage  ceremony,  who  shall  make  return  thereon  as  be- 
fore required. 

§  1707.   [The  marriage  relation  between  white  persons  and  per- 
Amaiga-  sons  of  African  descent  is  forever  prohibited,  and  such  marriages 

mation   pro-     ,      „    ,  ,,  ,         •  i  t   /    \  i.''' 

hibited.       shall  DC  nuU  and  void. J  (a) 

§  1708.  A  marriage  valid  in  other  respects,  and  supposed  by  the 

Want  of  parties  to  be  valid,  shall  not  be  aifected  by  a  want  of  authority  in 

Minister  or  the  Minister  or  Justice  to  solemnize  the  same ;  nor  shall  such  ob- 
j  p 

jection  be  heard  from  one  party  who  has  fraudulently  induced  the 

other  to  believe  that  the  marriage  was  legal. 

§  1709.  All  marriages  solemnized  in  another  State  by  parties  in- 

Marriage  tending  at  the  time  to  reside  in  this  State  shall  have  the  san:.e  le- 

in      another  ^  ,  n  i  •      n  t» 

State.  gal  consequences  and  effect  as  if  solemnized  in  this  State.     Par- 

ties residing  in  this  State  can  not  evade  any  of  the  provisions  of 
its  laws  as  to  marriage  by  going  into  another  State  for  the  sol- 
emnization of  the  marriage  ceremony.  * 

(a)  Constitution  of  1865,  Art.  5,  Sec.  1,  Par.  9. 

*  As  to  marriage  of  persons  of  color  see  Sections  1665  and  1666. 


PT.  2.— TIT.  2.— CHAP.  l.~ART.  1.— Domestic  Relations.    345 

Section  2. — Divorces — how  obtained. 

SECTION    II. 

OF  DIVORCES,  AND  HOAV  OBTAINED. 


Section'. 

1710.  Total  and  partial. 

1711.  Grouncls  for  total  divorce. 

1712.  Discretionary  grounds. 

1713.  Grounds  for  partial  di%^orce. 

1714.  Condonation,  collusion,  etc. 

1715.  Confessions  of  party. 

1716.  Proceedings. 

1717.  Respondent  may  ask  divorce. 

1718.  Libellant  shall  not  dismiss. 

1719.  Schedule. 

1720.  Transfer  pending  suit. 


Section. 

1721.  Verdict  of  jury. 

1722.  New  trials. 

1723.  Judgment  or  decree. 

1724.  Conscientious  scruples. 

1725.  Effect  of  total  divorce. 

1726.  Rights  and  disabilities. 

1727.  Effect  of  partial  divorce. 

1728.  Custody  of  children. 

1729.  Renewal — cohabitation. 

1730.  Ex  parte  cases. 


/6    vc'    .  y 


§1710.  Divorces  may  be  granted  by  the  Superior  Court,  and  Total  and 
shall  be  of  two  kinds — total,  or  from  bed  and  board.  The  con- 
current verdict  of  two  special  juries,  at  the  same  term  or  other-  Twover- 
wise,  shall  be  necessary  to  a  total  divorce  ;  [and  in  case  there  be 
but  one  panel  of  Grand  Jurors  impanneled  at  the  same  term,  it 
shall  be  lawful  for  the  presiding  Judge  to  have  a  second  jury  im- 
panneled from  said  Grand  Jury,  composed  of  Grand  Jurors  sum- 
moned to  the  same  term,  and  in  the  event  of  a  deficiency,  the 
same  may  be  completed  by  tales  jurors,  under  the  direction  of 
said  Judge.]  (a)  A  divorce  from  bed  and  board  may  be  granted 
on  the  verdict  of  one  special  jury. 

§  1711.  The  followino;  f^rounds  shall  be  sufficient  to  authorize    Grounds 

,  .  -  °.  °  for    total 

the  granting  or  a  total  divorce  :  divorce. 

1.  Inter ra^rt*iage  by  persons  within  the  prohibited  degrees  of 
consanguinity  and  affinity. 

2.  Mental  incapacity  at  the  time  of  the  marriage. 

3.  Impotency  at  the  time  of  the  marriage. 

4.  Forces,  menaces,  duress,  or  fraud,  in  obtaining  the  marriage. 

5.  Pregnancy  of  the  wife,  at  the  time  of  marriage,  unknown  to 
the  husband. 

6.  Adultery  in  either  of  the  parties  after  marriage. 

7.  Willful  and  continued  desertion  by  either  of  the  parties  for 
the  term  of  three  years.  ^ 

8.  The  conviction  of  either  party  for  an  offense  involving  moral 
turpitude,  and  under  which  he  or  she  is  sentenced  to  imprisonment 
in  the  penitentiary  for  the  term  of  two  years  or  longer. 

(a)  Acts  of  1866,  p.  21. 


346    PT.  2.— TIT.  2.— CHAP.  1.— ART.  1.— Domestic  Relations. 

Section  3. — Divorces — how  obtained. 

iVA-  Ljrt>  g  1712.  In  cases  of  cruel  treatment  or  habitual  intoxication  by 

Discretion-  either  party,  the  iury  in  their  discretion  may  grant  either  a  total 

ary  grounds.  ljtjj  j    to 

or  partial  divorce. 

§  1713.  Divorces  from  bed   and  board  may  be  grarfted  on  any 
Grounds  prrouud  which  was  held  sufficient  in  the  English  Courts  prior  to  4th 

for  partial     ,,  ^^  ,  °  ^ 

divorce.       May,  1784. 

§  1714.  If  the  adultery,  desertion,  cruel  treatment,  or  intoxica- 
condona-  tiou  complaiucd  of  shall  have  been  occasioned  by  the  collusion  of 

tion,  collu-  •I'll- 

sion,  etc.  the  parties,  and  with  the  intention  of  causing  a  divorce,  or  if  the 
party  complaining  was  consenting  thereto,  or  if  both  parties  have 
been  guilty  of  like  conduct,  or  if  there  has  been  a  voluntary  con- 
donation and  cohabitation  subsequent  to  the  acts  complained  of, 
and  with  notice  thereof,  then  no  divorce  shall  be  granted  ;  and  in 
Discretion  all  cascs,  the  party  sued  may  plead  in  defense  the  conduct  of  the 

of  jury.  '  1  .y  %>     r 

party  suing,  and  the  jury   may,    on   an  examination  of  the  whole 
case,  refuse  a  divorce. 

§  1715.   The  confessions  of  a  party  to  acts  of  adultery  or  cruel 
Confessions  treatment,  should  be  received  with  great  caution,  and  if  unsup- 
ported by  corroborating  circumstances,  and  made  with  a  view  to 
be  evidence  in  the  cause,  should  not  be  deemed  sufficient  to  grant 
a  divorce. 
^iQ  ^CLU-4  §  1716.  The  action  for  divorce  shall  be  by  petition  and  process. 

Proceedings,  as  in  Ordinary  suits,  filed  and  served  as  in  other  cases,  unless  the 
defendant  be  non-resident  of  this  State,  when  service  shall  be  per- 
fected as  prescribed  in  this  Code  in  causes  in  equity.  The  same 
rules  of  pleading  shall  obtain  as  in  other  causes  atjaw. 

§  1717.  [  When  a  libel  for  divorce  is  instituted,  the  respondent 

Respondent  may  in  his  or  her  plea  and  answer  recriminate,  and  ask  a  divorce  in 

vorce,\vheD.  his  or  her  favor  ;  and  if  on  the  trial,  the  jury  believe  such  party  is 

entitled  to  divorce,  instead  of  the  libellant,  they  may  so  find  upon 

legal  proof,  so  as  to  avoid  the  necessity  of  a  cross-action.  ]  (a) 

§1718.  [If  one  verdict  is  found  in  favor  of  the  respondent, 

Libellant  the  libellant  cannot  dismiss  his  or  her  suit,  without  the  consent  of 

can  not  dis- 
miss-when, the  opposite  party.  ]  (a) 

§  1719.  In  all  suits  for  divorce,  the  party  applying  shall  render 
Schedule,    a  schcdule,  on  oath,   of  the  property  owned  or  possessed  by  the 
parties  at  the  time  of  the  application — or  at  the  time  of  separa- 
tion, if  the  parties  have   separated — distinguishing  the  separate 

(a)  Acts  of  1863-4,  p.  45. 


PT.  2.— TIT.  2.— CHAP.  1.— ART.  1.— Domestic  Belations.    S4T 


Section  2. — Divorces — how  obtained. 


estate  of  the  wife,  if  there  be   any,  which  shall  be  filed  with  the  Disposition 

"  1        /^  ^^  property. 

petition,  or  pending  the  suit,  under  the  order  of  the  Court.  The 
jury  rendering  the  final  verdict  in  the  cause  may  provide  perma- 
nent alimony  for  the  wife,  either  from  tlie  corpus  of  the  estate  or 
otherwise,  according  to  the  condition  of  the  husband  and  the  source 
from  which  the  property  came  into  the  coverture. 

§  1720.  After  a  aepa,l'atiQii,  no  transfer  by  the  husband  of  any      Transfer 

"1        ""-^  .  ,.->Y  .  »/  ^  ,j    pentiing  suit 

of  the  property,  exce£t  bona  fide^  in  payment  of  pre-existing 
debts;  shall  pass  the  title  so  as  to  avoid  the  vesting  thereof,  ac- 
cording to  the  final  verdict  of  the  jury  in  the  cause. 

§1721.  The  verdict  of  the  jury  shall  specify  the  kind  of  di-   verdietof 
vorce  granted,  and  the  disposition  to   be  made  of  the  scheduled  ^ 
property. 

§  1722.  New  trials  may  be  granted  from  verdicts  on  applications  N-ewMais. 
for  divorce,  as  in  other  cases. 

§  1723.  The  verdicts  of  juries  disposing  of  the  property  in  di-  Jud^iment 
vorce  cases  shall  be  carried  into  effect  hj  the  Courts,  by  entering 
up   such  judgment  or  decree,   or  taking  such  other  steps   usual 
in  Chancery  Courts  as  will  effectually  and  fully  execute  the  same. 

§  1724.  A  iuror  having  conscientious   scruples  as  to  granting  conscien- 

, — f- ■ ■ ^ ^     ,         ,  °  °  tious  scru- 

diyorces,  is  incompetent  to  serve  on  such  applications.     At  the  p^^s. 
request  of  the  complainant   the  Court  may  inquire  of  the  panel 
touching  such  scruples. 

§1725.  A  total  divorce  annuls  the  marriage  from  the  time  of  Effect  of  to- 

T    .  •     1       r»  1      •  T  •  .  ,  tal  divorce. 

its  rendition,  except  it  be  tor  a  cause  rendering  the  marriage  void 
originally,  but  in  no  case  of  divorce  shall  the  issue  be  rendered 
bastards,  except  in  cases  of  pregnancy  of  the  wife  at  the  time  of 
the  marriage. 

§1726.  r  In  each  divorce  case,   the  Court  shall  regulate  the    EigMsand 

"-  .    .  *-"  disabilities- 

rights  and  disabilities  of  the  parties.]  (a)  regulation  of 

§  1727.  A  divorce  from  bed  and  board  authorizes  neither  party^^'l'^^^tofp'^r- 

't^        •/   tial  divorce. 

to  marry ;  and  if  a  sufficient  provision   for  the  maintenance  of 
the  wife  has  been  made  by  the  verdict  of  the  jury,   the  husband 
shall  not  be  liable  for  her  future  support.     The  wife  shall  be  a- 
feme  sole  as  to  her  earnings  and  proj)erty,  as   well  as  liberty,    /       /    ; 
after  a  divorce  from  bed  and  board. /\  b/t  l.   \,  *   {\    '^  C  1^- ■  ^    ^  c'-jX^  ^ 
§  1728.  In  all  cases  of  divorce  granted,  the  party  not  in  default  custody  of 

°  ^        "^  cWldrea. 

shall  be  entitled  to  the  custody  of  the  minor  children  of  the  mar- 
(a)  Constitution  of  1865,  Article  4,  Section  2^  Clause  ^ 


4., 


348   PT.  2.— TIT.  2.--CHAP.  1.— ART.  1.— Domestic  Relations. 


Section  2. — Divorces — Low  obtained. 


riage.  The  Court,  liowever,  in  the  exercise  of  a  sound  discretion, 
may  look  into  all  the  circumstances,  and,  after  hearing  both  par- 
ties, make  a  different  disposition  of  the  children,  withdrawing 
them  from  the  custody  of  either  or  both  parties,  and  placing  them, 
if  necessary,  in  the  possession  of  guardians  appointed  by  the  Ordi- 
nary. The  Court  may  exercise  a  similar  discretion  pending  the 
libel  for  divorce. 

§  1729.  Parties  divorced  from  bed  and  board,   on  subsequent 
Renewed  reconciliation,  may  live  toojether  a^ain   as  husband  and  wife,  by 

cohabitation  .         .  . 

first  filing  in  the  ofiice  of  the  Ordinary  of  the  County  where  the 
divorce  was  granted,  their  written  agreement  to  that  effect,  at- 
tested by  the  Ordinary. 

§  1730.  In  divorce  cases  proceeding  ex  ]ja7'te^  it  is  the  duty  of 
Ex  parte  the  Judcre  to  see  that  the  grounds  are  legal,  and  sustained  by 

cases.  o  o  o      '  j 

proof,  or  to  appoint  the  Solicitor  General,  or  some  other  attorney 
of  the  Court,  to  discharge  that  duty  for  him.   "\ 


SECTION   III.     Y  W^  VK 


OF  ALIMONY. 


Section. 

1731.  Permanent  and  temporary. 

1732.  Proceedings  to  obtain. 

1733.  Discretion  of  Judge. 

1734.  Revision  and  enforcement. 

1735.  Merits  not  in  issue. 

1736.  Permanent  alimony— when  granted. 


Section. 

1737.  Husband's  voluntary  deed. 

1738.  Decree  in  equity. 

1739.  Liability  to  third  persons,  etc. 

1740.  After  alimony  granted. 

1741.  Subsequent  cohabitation. 

1742.  Interest  of  wife  in  husband's  estate. 


§  1731.  Alimony  is  an  allowance  out  of  the  husband's  estate, 
Permanent  made  for  the  support  of  the  wife,  when  livina:  separate  from  him. 

and    tempo-  .        .  ^^  '  to        1 

rary.  It  is  either  temporary  or  permanent. 

§  1732.  Whenever    an   action  for    divorce,   at  the  instance  of 

Proceedings  either  party,  is  pending,  or  a  suit  by  the  wife  for  permanent  ali- 
mony, the  wife  may,  at  any  regular  term  of  the  court  in  which  the 
same  is  pending,  apply  to  the  presiding  Judge,  by  petition,  for  an 
order  granting  to  her  temporary  alimony  pending  the  cause ;  and, 
after  hearing  both  parties,  and  evidence  as  to  all  the  circumstan- 
ces of  the  parties  and  as  to  the  fact  of  the  marriage,  the  Court 
shall  grant  an  order  allowing  such  temporary  alimony,  including 
expenses  of  litigation,  as  the  condition  of  the  husband  and  the 
facts  of  the  case  may  justify. 


PT.  2.— TIT.  2.— CHAP.  1.— ART.  1.— Domestic  Kelatioxs.    349 


Section  3. — Alimony. 


L 


S  1733.  In  arrivino;   at   the  proper   provision,  the  Judo;e  shall    Discretion 

.  .  ...  .  of  Jmige. 

consider  the  peculiar  necessities  of  the  wife,  growing  out  of  the 
pending  litigation ;  he  may  also  consider  any  evidence  of  a  sepa- 
rate estate  owned  by  the  wife,  and  if  such  estate  is  ample,  as 
compared  with  the  husband's,  temporary  alimony  may  be  refused. 

§  1734.   The  order  allowing  alimony  shall  be  subject  to  revis-      Eevision 

'^  .  p  .  .and  enforce- 

ion  by  the  Court  at  any  time,  and  may  be  enforced  either  by  writ  ment. 
of  fieri  facias  or  by  attachment  for  contempt  against  the  person  of 
the  husband.     A  failure  to   comply  with  the   order  shall   not  de- 
prive the  husband  of  his  right  either  to  prosecute  or  defend  his 
cause. 

§1735.   On  applications  for  temporary  alimony,  the  merits  of  ^e"tsnot 
the  cause  are  not  in  issue,  though  the  Judge,  in  fixing  the  amount 
of  alimony,  may  inquire  into  the  cause  and  circumstances  of  the 
separation  rendering  the  alimony  necessary,  and  in  his  discretion 
may  refuse  it  altogether. 

§  1736.  Permanent  alimony  is  granted  in  the  following  cases  :  afimTn"^— 
1st,  of  divorce  as  considered, in  the  former  Section;  2d,  in  cases  ^J^"  ^'■'^"*' 
of  voluntary  separation  ;  3d,  where  the  wife,  against  her_wilL  is 
either  abandoned  or  driven  off  by  her  husband. 

§  1737.  In  either  of  the  two  latter  cases  the  husband  may  vol-  nusbancrs 

*'  voluntary 

untarily,  by  deed,  make  an  adequate  provision  for  the  support  and  '^^'^^• 
maintenance  of  his  wife,  consistent  with  his  means  and  her  former 
circumstances,  which  shall  be  a  bar  to  her  right  to  permanent  ali- 
mony. 

§1738.  In  the  absence  of  such  provision,  on  the  application  of    Df^eein 
the  wife,  a  Court  of  Equity  may,  by  decree,  compel  the  husband 
to  such  provision  for  the  support  of  the  wife  and  such  minor  chil- 
dren as  may  be  in  her  custody,  as  indicated  in  the  foregoing  Par- 
agraph. 

§  1739.  Until  such  provision  is  made,  voluntarily,  or  by  decree  Liability  to 

^  ^  .  .  third  person 

or  order  of  the  Court,  the  husband  shall  be  liable  to  third  persons  before,  etc. 
for  the  board  and  support  of  the  wife,  and  for  all  necessaries  fur- 
nished to  her,  or  for  the  benefit  of  his  children  in  her  custody. 

§1740.  When  permanent  alimony  is  ^ranted,  the  husband  ceases  ^f^^i"  ^'^o- 

■•■  t/  o  ^  ^  jjy  granted. 

to  be  liable  for  any  debt  or  contract  of  the  wife  ;  on  the  other 
hand,  he  ceases  to  have  any  power  to  control  her  acquisitions  by 
purchase,  or  descent,  or  gift,  or  otherwise ;  and  the  property  of 
the  husband  set  apart  for  the  support  of  the  wife  is  not  subject  to 
his  debts  or  contracts  so  long  as  she  lives. 


.^50 


PT.  2.~TIT.  2.— CHAP.  1.— DoxAiESTic  Relatios^s, 


Article  3.— The  Rights  and  Liabilities  of  Husband  and  Wife,  etc. 


§  1741.  The  subsequent  voluntary  cohabitation  of  the  husband 
subse-  and  wife  shall  annul  and  set  aside  all  provision  made,  either  by 

■quent      co-  ^  ■»■  ^  ./ 

habitations,  de&d  OY  decree,  for  permanent  alimony.  The  rights  of  children 
under  any  deed  of  separation  or  voluntary  provision  for  alimony 
shall  not  be  affected  thereby. 

§  1742.  After  permanent  alimony  granted,  upon  the  death  of 
the  husband  the  wife  is  not  entitled  to  any  further  interest  in  his 
estate  in  her  right  as  wife,  but  such  permanent  provision  shall  be 
continued  to  her,  or  a  portion  of  the  estate  equivalent  thereto 
shall  be  set  apaTt  to  her.  "J 


Interest  of 
Avife  in  hus- 
band's es- 
tate. 


ARTICLE  II. 


OF    THE    mOHTS  AND    LIABILITIES    OF    HUSBAND    AND    WIFE    AND 

HEREIN    OF    DOWER. 


Section. 

1743.  Husband  is  head  of  family. 

1744.  Separate  property  of  wife. 

1745.  Torts  to  wife. 

1746.  Acquisitions  of  wife. 

1747.  Agency  of  wife. 

1748.  Liability  of  husband  for  necessaries. 

1749.  Q-eneral  agency  of  wife. 

1750.  Free  trader. 

1751.  Husband  sole  heir. 

1752.  Wife— when  sole  heir. 

1753.  Dower. 


Section. 

1754,  How  barred. 

1755.  Election  in  case  of  bequests,  etc. 
175G.  Election  in  ignorance. 

1757.  Dower  in  several  tracts. 

1758.  Dwelling  house. 

1759.  Lien  no  bar. 

1760.  Life  estate  in  proceeds  of  sale. 

1761.  Or  absolute  estate  in  specified  sum. 

1762.  Earnings  of  wife. 

1763.  Paraphernalia. 

1764^  Wife  may  appear  against  husband. 


£ 


§  1743.  In  this  State  the  husband  is  the  head  of  the  family,  and 
Husband  the  wlfc  is  subicct  to  him  ;  her  leeral  civil  existence  is  mer2;ed  in 

is  head  of  .^.— *Z^--  '  fo  ^  fe 

family.       the  husband,  except  so  far  as  the  law  recognizes  her  separately, 
either  for  her  own  protection,  or  for  her  benefit,  or  for  the  preser- 
vation of  public  order. 
S  Ui>  §1744.  [All  tKe  property  of  the  wife  at  the  time  of  her  mar- 

Wife's  prop-  riage,  whether  real,  personal,  or  choses  in  action,  shall  be  and  re- 

6i-ty  — when         °   '  '  r«^~.-..— -    7  7  ^ 

separate.  main  the  separate  property  of  the  wife  ;  and  all  property  given  to, 
inherited,  or  acquired  by  the  wife  during  coverture  shall  vest  in 
and  belong  to  the  wife,  and  shall  not  be  liable  for  the  payment  of 
any  debt,  default,  or  contract  of  the  husband.]  (a) 

§  1745.  If  a  tort  be  committed  upon  the  person  or  reputation 

Torts  to  wife  of  the  wifc,  the  husband  may  recover  tJieieCor;  if,  however,  the 
wife  is  living  separate  from  the  husband  she  may  sue  for  such  torts, 


(a)  Acts  of  1866,  pp.  146-7. 


PT.  2.— TIT.  2.^CHAP.  I.-^Bomestic  Eelations.  35 


i 


Article  2. — The  Rights  and  Liabilities  of  Husband  and  Wife,  etc. 


and  also  torts  to  her  children,  and  recover  the  same  to  her  use.  In  of  living  se- 
parate from 

like  manner,  when  separated  from  the  husband,  she  may  enforce  husband. 
contracts  made  in  reference  to  her  own  acquisitions. 

§  1746.  When  living  separate  from  her  husband  the  acquisi-  Acquisitioiis 

of  wife  liv 

tions  of  a  wife  and  of  her  children  living  with  her,  shall  be  vested  ing  separate 

^  from    her 

in  the  wife  for  her  separate  use,  free  from  the  debts,  contracts,  tnsband. 
or  control  of  her  husband,  and  at  her  death,  intestate,  the  same 
shall  descend  to  her  children,  and  if  none,  to  her  next  of  kin. 

§  1747.  The  husband  is  bound  to  support  and  maintain  his  wife,   ,    Asoncy 

^  ^^  _  '  of    \vife   in 

and  his  consent  shall  be  presumed  to  her  agency  in  all  purchases  ffsp^ct    to 

^  o         ./  1,-   ^-  necessaries. 

of  neaessaries  suitable  to  her  condition  and  habits  of  life,  made 
for  the  use  of  herself  and  the  family.  This  presumption  may  be 
rebutted  by  proof. 

§  1748.  The  husband  is  bound  for  necessaries  furnished  to  the  Liability  of 

husband   for 


necessaries. 


wife,  when  separated  from  him,  subject  to  the  limitations  herein- 
before provided.  If  the  wife  be  living  in  adultery  with  another 
man,  the  husband  is  not  liable ;  but  notice  by  the  husband  shall 
not  relieve  him  from  liability  if  his  wife  is  separated  from  him  by 
reason  of  his  own  misconduct ;  if  she  voluntarily  abandons  him 
without  sufficient  provocation,  notice  by  the  husband  shall  relieve 

him  of  all  liability  for  necessaries  furnished  to  her. 

§1749.  The  wife  may  act  as   attorney  and  agent  for   the  hus-      General 

*'  ,/  (D  agency      of 

band,  but,  except  in  cases  before  mentioned,  proof  of  such  author-  ^J^e. 
ity  must  be  made  as  in  other  cases. 

§1750.  The  wife,  by  consent  of  her  husband,  evidenced  by  n<t-  Freetrader. 
tice  in  a  public  gazette  for  one  month,  may  become  a  public  or  free 
trader ;  in  which  event  she  is  liable  as  a  feme  sole  for  all  her  con- 
tracts, and  may  enforce  the  same  in  her  own  name.     In  such  cases 
the  acquisitions  of  the  wife  become  her  separate  estate. 

§  1751.  Upon  the   death  of   the   wife  the  husband  is  her  sole      Husband 

*■  ...  ^^•'^  heir. 

heir,  and  upon  payment  of  her  individual  debts,  if  any,  may  take 
possession  thereof  without  administration. 

§  1752.  Upon  the  death  of  the  husband,  without  lineal  descen-  wife— when 

■^      ,         ,  .  sole  heir. 

dants,  the  wife  is  his  sole  heir. 

§  1753.   Dower  is  the  right  of  a  wife  to  an  estate  for  life  in  one-    Bower,  v,; 
third  of  the  lands,  according  to  valuation,  including  the  dwelling- 
house  (which  is  not  to  be  valued  unless  in  a  town  or  city)  of  which 
the  husband  was  seized  and  possessed  at  the  time  of  his  death,  or 
to  which  the  husband  obtained  title  in  right  of  his  wife. 

§  1754.  Dower  may  be  barred — 


i  ^uJu. 


352  PT.  2.— TIT.  2.— CHAP.  1.— Domestic  Relations. 


Article  2.— The  Rights  and  Liabilities  of  Husband  and  Wife,  etc. 


1.  Bj  provision  made  prior  to  the  marriage  and  accepted  bj  the 
How  barred,  wife  in  licu  of  dower.  , 

2.  Bj  a  provision  made  bj  deed  or  will,  and  accepted  by  the 
;                   wife   after  the  husband's  death,   expressly  in  lieu  of   dower,  or 

where  the  intention  of  the  husband  is  plain  and  manifest  that  it 
shall  be  in  lieu  of  dower. 

3.  By  the  election  of  the  widow  within  twelve  months  from  the 
**  grant  of  letters  testamentary,  or  of  administration  on  the  hus- 
V                        band's  estate,  to  take   a  child's  part  of  the  real  estate  in  lieu  of 

dower. 

4.  By  a  failure  to  apply  for  the  dower  for  seven  years  from  the 
-'                        death  of  the  husband. 

5.  By  the  wife's  deed  with  her  husband  to  lands  to  which  the 
title  came  throuf^h  her. 

^  6.  By  the  adultery  of  the  wife  unpardoned  by  the  husband. 

§  1755.  If  the  husband  by  will  gives  to  his  wife  an  interest  in 
Election  in  his  lauds,  her  election  of  dower  bars  her  of  that  devise,  but  does 

r*ncpc    f\f     1)0" 

quest  in  lieu  not  deprive  her  of  any  interest  in  the  personalty  bequeathed  to 
her  in  the  will,  unless  it  is  expressed  to  be  in  lieu  of  dower. 
§  1756.  An  election  by  the  widow  to  take  a  child's  part  of  the 
Election  in  realty  in  ignorance  of  the  condition  of  the  estate,  or  of  any  fact 

ignorance.  .    ,  ,  .  in  in  "^T"":*" "  , 

material  to  her  interest,   shall  not  bar  ,ner  right  to  dower ;  pro- 
vided, the  rights  of  third  persons  acting  bona  fide  upon  her  elec- 
tion shall  not  be  disturbed  or  prejudiced. 
-Ȥ  1757.  Where  the  husband  dies  seized  of  several  distinct  tracts 
Dower    of  land  lyins^  in  the  same  County,  the  widow  may  elect  to  take  her 

in  several  .  ,  , 

tracts.  entire  dower  in  one  body,  and  may  select  the  tLSLCt  or  tracts  out 
of  which  her  dower  shall  be  laid.  If  a  tract  or  body  of  land  is 
divided  by  County  lines,  the  entire  dower  may  be  laid  off  in  either 

ifdividedby  County  ;  if  scvcral  tracts  lie  in  different  Counties,  the  dower  must 

County  lines  Tir.  ii'i  •  i/>t 

be  applied  lor  and  laid  out  m  each  County. 

§  1758.  The  widow  is  entitled  to  the  possession  of  the  dwelling- 

Dweiiing-  housc  from  the  death  of  her  husband,  and  before  dower  is  assigned, 

and  also  of  the  furniture  therein,  until  her  portion  thereof  is  set 

^  apart  by  the  appraisers  as  provided  by  this  Code. 

d   /(\..    (>  §  1759.  No  lien  created  by  the  husband  in  his  lifetime,  though 

Lien  no  bar.  asscntcd  to  by  the  wife,  shall  in  any  manner  interfere  with  her 

right  to  dower. 

§  1760.  With  the  assent  of  the  executor  or  administrator  of  the 
estate,  the  widow  may  elect  a  life  estate  in  one-third  part  of  the 


PT.  2.— TIT.  2,— CHAP.  1.— Domestic  Relations.  353 

Article  2. — The  Rights  and  Liabilities  of  Husband  and  Wife,  etc. 
proceeds  of  the  sales  of  the  land,  or  any  distinct  tract  or  tracts    Life  estate 

.  f     1         1  •  1      1         1  1    ^"    proceeds 

of  land  in  lieu  of  the  dower  m  such  land.     In  which  event,  such  of  sale. 
third  part  of  the  proceeds  of  the  sale  shall  be  invested  by  the  ex- 
ecutor or  administrator  under  the  direction  of  the  Ordinary  where 
his  returns  are  made,   and  the  annual  income  thereof  paid  to  the 
widow  during  her  life. 

§  1761.  With  the  assent  of  the  executor  or  administrator  of  the  Absolute  es- 
tate in  spec- 
estate,  and  the  approval  of  the  Ordinary,  the  widow  may  elect  in  Jfied  sum. 

lieu  of  her  dower  an  amount  in  money  to  belong  absolutely  to  her, 
to  be  estimated  and  determined  by  the  commissioners  appointed  to 
assign  dower,  and  whose  report  shall  be  subject  to  the  same  objec- 
tions as  are  adm.easurements  of  dower  in  land.  Both  before  the 
Ordinary  and  on  the  return  of  the  report  of  the  commissioners,   How  con- 

tested. 

any  person  interested  in  the  question  shall  be  allowed  to  become  a 
party  and  be  heard.  The  amount  so  awarded  shall  be  paid  in 
preference  to  all  other  claims  out  of  the  proceeds  of  the  sale  of 
the  land. 

§  1762.  r  Any  married  woman  may  deposit  in  any  of  the  sa-     wife  may 

u  ,/       • — .^„  ,/  I  ,/  deposit  car- 

vings banks,  or  institutions  for  savings,  now  chartered  in  the  State  ^^^s^- 

of  Georgia,  or  which  may  hereafter  be  chartered  in  this  State,  any 

sum  or  sums  of  money,  the  proceeds  of  her  own  labor,  or  that  of 

her  children,  less  than  two  thousand  dollars  in  the  aggregate,  and 

may  control,  draw  for,  dispose  of,  devise,  or  transfer,  in  any  way  May  control, 

etc      £iS  1*61116 

whatever,  the  sum  or  sums  thus  deposited,  in  every  respect  as  if  sole. 
she  were  not  a  married  woman.]  (a) 

§  1763.  The  wife's  paraphernalia  shall  not  be  subject  to  the    Parapher- 
debts  or  contracts  of  the  husband,*   and  shall  consist  of  the  ap- 
parel of  herself  and  her  children,  her  watch  and  o_rnaments  suita- 
ble to  her  condition  in  life,  and  all  such  articles  of  pjersonajty  as 
have  been  given  to  her  for  her  own  use  and  comfort.  , 

§  1764.  In  all  cases  where  the  rights  of  the  wife  come  in  con-    when  the 
flict  with 'the  interest  of  the  husband,  she  may  appear  in  Court  by  pear  against 

,  p  .        T        -r        -.1        T     r^  .;      rr  j  husband. 

her  next  iriend.  In  all  other  civil  cases,  except  as  to  her  sepa- 
rate estate,  she  must  appear  by  and  with  her  husband,  if  living 
together. 

(a)  Act  of  1861,  p.  23,  and  Acts  of  1866,  p.  226. 
23 


854 


PT.  2.—  TIT.  2.— CHAP.  1.— Domestic  Relations, 


Article  3, — Marriage  Contracts  and  Settlements. 


ARTICLE  III. 


OF  MARRIAGE    CONTRACTS  AND    SETTLEMENTS. 


Section. 

1765.  Marriage  article  or  parol,  etc. 

1766.  Voluntary  execution,  etc. 

1767.  Construction  of  contract. 

1768.  Record  of  marriage  contracts. 

1769.  Wife  may  force  a  record. 

1770.  Appointing  and  removing  trustees. 


Section. 

1771.  Executed  in  favor  of  volunteers'. 

1772.  Valuable  consideration. 

1773.  Wife  feme  sole,  etc. 

1774.  When  sue  and  be  sued. 

1775.  Minority  of  party  to  contract. 

1776.  Sale  to  husband  or  trustee. 


§  1765.  Any  agreement  between  the  parties  to  a  marriage  con- 
Marriage  ar-  templatina;  a  future  settlement  upon  the  wife,  whether  by  parol 

tide  or  parol  .  .  . 

agreement,  or  in  Writing,  may  be  executed  and  enforced  by  a  Court  of  Equity 
at  the  instance  of  the  wife  at  any  time  during  the  life  of  the  hus- 
band ;  2^'^ovided  always^  that  the  rights  of  third  persons,  pur- 
chasers or  creditors  in  good  faith,  and  without  notice,  are  not 
affected  thereby.  An  agreement, perfect  in  itself,  and  which  needs 
no  future  conveyance  to  effect  its  purposes,  is  an  executed  contract, 
and  does  not  come  under  the  definition  of  marriage  articles.' 
§  1766.  The  husband  may  voluntarily  execute  such  agreement, 
Voluntary  or^c  may  at  any  time  during  the  coverture,  either  through  txus- 

6X6CUtlOn  """  \  •  ■%  t      •  r*  l^ITT 

and  trust   tccs  or  dircctly  to  his  wife,  convey  any  property  to_ which  he  has^ 
title  subject  to  the  rights  of  prior  purchasers  or  creditors  without 
\  notice. 

§  1767.  Every  marriage  contract  in  writing,  made  in  contem- 
construc-  plation  of  marriage,  shall  be  liberally  construed  to  carry  into  effect 

tion  of  con-    ^         ^  o    7  .  ./  j  ^ 

tract.  the  intention  of  the  parties,  and  no  want  of   form  or  technical 

expression  shall  invalidate  the  same.     Such  contract  must  be  at- 
tested by  at  least  two  witnesses. 

§  1768.  Every  marriage  contract  and  every  voluntary  settlement 
Eecord  made  by  the  husband  on  the  wife,  whether  in  execution  of  mar- 
contracts."  riage  articles  or  not,  must  be  recorded  in  the  office  of  the  Clerk 
of  the  Superior  Court  of  the  County  of  the  residence  of  the  hus- 
band within  three  months  after  the  execution  thereof.  On  failure 
to  comply  with  this  provision,  such  contract  or  settlement  shall  not 
be  of  any  force  or  effect  against  a  purchaser,  or  creditor,  or  surety 
who,  bona  fide  and  without  notice,  may  become  such  before  the 
actual  recording  of  the  same.  If  such  contract  or  settlement  is 
made  in  another  State,  and  the  parties  subsequently  move  into 
this  State,  the  record  must  be  made  within  three  months  from 
such  removal.     If  the  settled  property  be  in  this  State,  and  the 


PT.  2.— TIT.  2.— CHAP.  1.— Domestic  Relations.  355 


Article  3.— Marriage  Contracts  and  Settlements. 

parties  reside  in  another,  then  the  record  must  be  made  in  the 
County  where  the  property  is,  and  within  the  time  specified  above. 

§1769.  If  the  trustee  or  husband  having  possession  of  such  wife  may 
contract  or  settlement  fails  or  refuses  to  have  the  same  recorded,  cord. 
the  wife,  or  any  friend  of  hers,  may  apply  to  the  Judge  of  the 
Superior  Court  at  any  time  for  an  order  compelling  such  record ; 
and  the  trustee  thus  refusing,  ^fter  demand,  shall  be  personally 
responsible  to  his  cestui  que  trust  for  all  damage  sustained  by 
reason  of  the  failure  to  record ;  and  such  application  of  the  wife, 
or  her  friend,  when  entered  on  the  minutes  of  the  Superior  Court, 
shall  be  a  notice  equivalent  to  the  record  of  the  marriage  con- 
tract or  trust  deed. 

§  1770.  The  Judge  of  the  Superior  Court  of  the  County  of  the  Appointing 

J  .  *^  .  .    .  .  ^  and    remov- 

wife  s  domicil  may,  at  any  time,  upon  petition,  exercise  the  pow-  ing  trustees. 
ers  of  a  chancellor  in  appointing,  or  removing,  or  substituting 
trustees,  or  granting  any  order  for  the  protection  of  the  trust  es- 
tate, exercising  a  wise  discretion  as  to  the  terms  on  which  such 
appointment  shall  be  made,  or  such  order  granted.  The  pro- 
<jeeding  in  each  case  shall  be  transmitted  to  the  Clerk  of  the  Su- 
perior Court,  to  be  recorded  in  the  book  of  the  minutes  of  such 
Court,  next  to  the  minutes  of  the  last  term  thereof. 

§1771.  Marriaoje  contracts  and  post  nuptial  settlements  will  be    Whenexe- 

°  - — »»>.*«.,  '■  '■  cuted  in  fa- 

enforced  at  the  instance  of  all  persons  in  whose  favor  there  are  "^^l  ^^  ^■^*" 

^  unteers. 

limitations  of  the  estate.  Marriage  articles  will  be  executed  only 
at  the  instance  of  persons  coming  within  the  scope  of  the  mar- 
riage consideration  ;  but  when  executed  at  their  instance,  the  Court 
may  execute  also  in  favor  of  volunteers.  All  persons  are  volun- 
teers except  the  parties  to  the  contract  and  the  offspring  of  the  wife. 

§  1772.  Marriage  is    a   valuable    consideration,   and   the  wife     vaiuubie 

1  n    ^      ^        1  1  1     1  ^         i  '  considera- 

stands,  as  to  property  of  the  husband  settled  upon  her  by  marriage   tion.  • 
contract,  as  other  purchasers  for  value  ;  provided,  that  by  such 
contract  the  husband  does  not  incapacitate  himself  from  paying 
his  existing  just  debts. 

§  1773.  The  wife  is  Sifeme  sole  as  to  her  separate  estate,  unless    wife  feme 

roIg     tl  s    to 

controlled  by  the  settlement**-- Every  restriction  upon  her  power  ter  separate 
in  it  must  be  complied  with ;  but  while  the  wife  may  contract,  she 
can  not  bind  her  separate  estate  by  any  contract  of  suretyship, 
nor  by  any  assumption  of  the  debts  of  her  husband,  and  any  sale 
of  her  separate  estate,  made  to  a  creditor  of  her  husband  in  ex- 
tinguishment of  his  debts,  shall  be  absolutely  void. 


356 


PT.  2.— TIT.  2.— CHAP.  2.— Domestic  Relatiosts. 


Article  1. — Legitimate  Children. 


§  1774.  If  there  is  no  trustee,  the  wife  may  sue  and  be  sued,  a& 
When  sue  to  her  Separate  estate,  as  a  feme  mle  ;  and  in  all  such  cases  the 

and  be  sued.  ^  . 

separate  estate  shall  he  responsible  for  all  costs  incurred. 

§  1775.  The  minority  of  either  party  to  marriage  articles,  or  a 
Minority   marriage  contract,  shall  not  invalidate  it ;  provided,  such  party  is 
contract.      of  lawful  age  to  contract  marriage. 

§  1776.  No  contract  of  sale  of  a  wife  as  to  her  separate  estate 
Sale  to  with  her  husband  or  her  trustee  shall  be  valid,  unless  the  same  is 

husband  or 

trustee.       allowed  by  order  of  the   Superior  Court  of  the   County  ©f  her 
domicil. 


CHAPTER   IL 

OF     PARENT    AND    CHILD. 


Article  1. — Legitimate  Children. 

Article  2. — Illegitimate  Children,  or  Bastards, 


ARTICLE  L 

legitimate  children. 


Section. 

1777.  Legitimate  children — who  are. 

1778.  Legitimating  by  order  of  Court. 

1779.  Adopting  a  child. 

1780.  Objections  by  relative. 

1781.  Adoption  of  adult  persons. 

1782.  Age  of  majority. 


Section. 

1783.  Parents'  obligation. 

1784.  Parents'  power-^how  lost. 

1785.  Mother's  rights. 

1786.  Cruel  treatment  by  parents 

1787.  Mutual  protection. 


f-^  §  1777.  All  children  born  in  wedlock,  or  within  the  usual  pe- 

Legitimate  nod  of  gcstation  thereafter,  are  legitimate.     The  legitimacy  of  a 
child  thus  born  may  be  disputed.     Where  possibility  of  access  ex- 
■  ists,  except  in  cases  of  divorce  from  bed  and  board,  the  strong 
presumption  is  in  favor  of  legitimacyj   andL.tke  proof  should  be 
clear  to  establish  the  contrary.     If  pregnancy  existed  at  the  time 
of  the  marriage,   and  a  divorce  is  sought  and  obtained  on  that 
ground,   the  child,   though  born   in   wedlock,   is  not,  legitimate. 
The  marriage  of  the  mother  and  reputed  father  of   an  illegiti- 
subsequent  mate  child,  and  the  recognition  of  such  child  as  his,  shall  render 
Mamage.     ^^^  (Midi  legitimate ;    and  in  such  case,   the   child  shall  imme- 
diately take  the  surname  of  his  father. 


PT.  2.— TIT.  2.— CHAP.  2.— Domestic  Relations.  357 

Article  1. — Legitimate  Children. 
§  1778.  A  father  of  an  illeffitimj^te  child  may  render  the  same  Legitimacy 

'*^""      ,  by  order    of 

legitimate  by  petitioning  the  Superior  or  County  Court  of  the  Comt, 
County  of  his  residence,  setting  forth  the  name,  age  -and  sex,  of 
such  child,  and  also  the  name  of  the  mother;  and  if  he  desires  , 
the  name  changed,  stating  the  new  name  and  praying  the  legiti- 
mating of  such  child.  Of  this  application  the  mother,  if  alive, 
shall  have  notice.  Upon  such  application,  presented  and  filed,  the 
Court  may  pass  an  order  declaring  said  child  to  be  legitimate,  and 
capable  of  inheriting  of  the  father  in  the  same  manner  as  if  born  in 
lawful  wedlock,  and  the  name  by  which  he  or  she  shall  be  :known. 

§  1779.  Any  person  desirous  of  adopting  a  child,  so  as  to  ren-  Adopting  a 
der  it  capable  of  inheriting  his  estate,  may  present  a  like  petition 
to  the  Superior  Court,  setting  forth,  as  an  additional  fact,  the 
name  of  the  father,  or  if  he  be  dead,  or  has  abandoned  his  family, 
the  mother,  and  the  consent  of  such  father  or  mother  to  this  act 
of  adoption  ;  and  if  the  child  has  neither  father  nor  mother,  then 
the  consent  of  no  person  shall  be  necessary  to  said  adoption.  It 
shall  be  the  duty  of  the  Court,  upon  being  satisfied  of  the  truth 
of  the  facts  stated  in  the  petition,  and  of  the  fact  that  such  father 
or  mother  has  notice  of  such  application,  and  being  further  satis- 
fied that  such  adoption  will  be  to  the  interest  of  the  child,  to  pass 
an  order  declaring  said  child  to  be  the  adopted  child  of  such  per- 
son, and  capable  of  inheriting  his  estate,  and  also  what  shall  be 
the  name  of  such  child ;  and  thenceforward  the  relation  between 
such  person  and  the  adopted  child  ^hall  be,  as  to  their  legal  rights  Effect 
-and  liabilities,  the  same  as  if  the  relation  of  parent  and  child  ex- 
isted between  them,  except  that  the  adopted  father  shall  never  in- 
herit from  the  child ;  but  to  all  other  persons  the  adopted  child 
shall  stand  related  as  if  no  such  act  of  adoption  had  been  taken. 

§  1780.  It  shall  be  the  privilege  of  any  person  related  by  blood    objections 

^       1  •^  1     •  n     1  i  r>i  i  r«ii''  by  rehitions. 

to  such  child,  it  there  be  no  lather  or  mother,  to  tile  objections  to 
such  application,  and  the  Court,  after  hearing  the  same,  shall  de- 
termine, in  its  discretion,  whether  or  not  the  same  constitute  a 
^ood  reason  for  refusing  the  application. 

§  l781.  Adult  persons  maybe  adopted  in  like  manner,  and  have    Adopting 
their  names  changed,  on  giving  consent  to  such  adoption.  peiins! 

§  1782.  The  age  of  legal  majority  in  this  State  is  twenty-one       Age  of 

.,     ,  ...  ""    " ""' '  .  majority. 

years  ;  until  that  age  all  persons  are  minors. 

§  1783.  Until  majority,  it  is  the  duty  of  the  father  to  provide     Parent's 
for  the  maintenance,  protection,  and  education  of  his  cliild-  °  ^^^  ^^^" 


858  PT.  2.— TIT.  2.— CHAP.  2.— Domestic  Relatione. 

Article  1. — Legitimate  Children. 

§  1784.  Until  majority,  the  child  remains  under  control  of  the 

Parental  father,  who  is  entitled  to  his  services  and  the  proceeds  of  his  la- 
power — how  rr»l  •  1  »     ^ 

lost  bor.     This  paternal  power  is  lost — 

1.  By  voluntary  QQntract,  releasing  the  right  to  a  third  person. 

2.  By  cons_enting  to  the  adoption  of  the  child  by  a  third  person. 

3.  By  the  failure  of  the  father  to  provide  necessaries  for  his 
child,  or  his  abandonment  of  his  family. 

4.  By  his  consent  to  the  child's  receiving  the  proceeds  of  his 
own  labor,  which  consent  shall  be  revocable  at  any  time. 

5.  By  his  consent  to  the  marriage  of  the  child,  who  thus  as- 
sumes inconsistent  responsibilities. 

6.  By  cruel  treatment  of  the  child. 

§  1785.  Upon  the  death  of  the  father,  the  mother  is  entitled  to 
Mother's  the  posscssiou  of  the  child  until  his  arrival  at  such  an  age  tha-t 
''  *  his  education  requires  the  guardian  to  take  possession  of  him.  In 
eases  of  separation  of  the  parents,  or  the  subsequent  marriage  of 
the  survivor,  the  Court,  upon  writ  of  habeas  corpuSy  may  exercise 
a  discretion  as  to  the  possession  of  the  child,  looking  salely  to  his 
interest  and  welfare. 

§  1786.  Any  person  may  apply  to  the  Ordinary  of  the  County, 
Cruel  treat- alleging  the  cruel  treatment  of   a  child  by  his  father,  who  shall 
rent.    ^      cito  the  father  to  answer  the  allegation ;  and  such  Ordinary  may, 
at  any  time,  hear  evidence,  and,  in  his  discretion,  appoint  a  guar- 
dian of  the  person  of  such  child,  wha  shall  be  entitled  to  the  pos- 
session of  him. 

§  1787.  Parents  and  children  may  mutually  protect  each  other^ 
preceetipn.  and  justify  the  defense  of  the  person  or  reputation  of  each  others 


ARTICLE  IL 


ILLEGITIMATE    CHILDREN,    OR    BASTARDS, 


•^ 


Section. 

1788.  Bastards. 

1789.  Father's  obligations^ 

1790.  Mother's  right. 


Section. 

1791.  InheritaBce  by  bastard. 

1792.  By  legitimates  from  bastard. 


§  1788.  A  bastard  is  a  ehild  born  out  of  wedlock,  and  whos@^ 
Bastard,    parents  do  not  subsequently  intermarry,  or  a  child  the  issue  c£ 
adulterous  intei^course  of  the  wife  during  wedlock. 


PT.  2.— TIT.  2.— CHAP.  2.— Domestic  Relations.  359 

Article  2. — Illegitimate  Children,  or  Bastards. 
§  1789.   The  father  of  a  bastard  is  bound  to  maintain  him.      Father's 

obligation. 

This  obligation  shall  be  good  consideration  to  support  a  contract 
bj  him.  He  may  voluntarily  discharge  this  duty  ;  if  he  fails  or 
refuses  to  do  it  the  law  will  compel  him.  jT* 

§  1790.  The  mother  of  a  bastard  is  entitled  to  the  possession  of    Mother^s  ^^ 

rights.  ^. 

the  child,  unless  the  father  shall  legitimate  him  as  before  pro-  ^. 

vided.     Being  the  only  recognized  parent,  she  may  exercise  all  the  O 

paternal  power. 

§  1791.  Bastards  have  no  inheritable  blood,  except  that  2;iven  inheritance 

•    1        •  '   p  1     •  11  t>y  bastard. 

to  them  by  express  law.  They  may  inherit  from  their  mother  and 
from  each  other,  children  of  the  same  mother,  in  the  same  man- 
ner as  if  legitimate.  If  a  mother  have  both  legitimate  and  ille- 
gitimate children,  they  shall  inherit  alike  the  estate  of  the  mother. 
If  a  bastard  dies  leaving  no  issue  or  widow,  his  mother,  brothers, 
and  sisters  shall  inherit  his  estate  equally.  In  distributions  un- 
der this  law  the  children  of  a  deceased  bastard  shall  represent  the 
deceased  parent. 

§1792.  If  a  bastard  dies  intestate,  leaving  no  widow  or  lineal     Byiogiti- 

.,,       .   .       '   '     ,  ,  .  ,  ,  f,       mates    from 

descendant,  or  illegitimate  brother  or  sister,  or  descendant  of  a  illegitimates 
brother,  or  sister,  or  mother,  but  shall  leave  a  brother  or  sister  of 
legitimate  blood,  such  brother  or   sister,  or  descendant  of  such 
brother  or  sister,  may  inherit  the  estate  of  such  intestate. 


CHAPTER    III. 

OF    GUARDIAN    AND    WARD. 


Article  1. — Guardians  of  Minors. 

Article  2. — Guardians  of  Lunatics  and  Idiots, 

Article  3. — Foreign  Guardians. 


ARTICLE   I. 

Section  1. — How  and  hy  whom  Appointed. 

Section  2. — Their  Powers^  Duties,  and  Liabilities. 

Section  3. — Settlements^  Resignation^  and  Letters  of  Dismission. 


360    PT.  2.— TIT.  2.— CHAP.  3.— ART.  I.^Domestic  Relations. 


Section  1. — Guardians — how  and  by  whom  appointed. 


SECTION    I. 


HOW    AISTD    BY    WHOM    APPOINTED, 


Secttox. 

1793.  Kinds  of  guardians. 

1794.  Natural  guardian. 

1795.  Testamentary  guardian. 

1796.  Appointed  by  widows. 

1797.  General  guardian. 

1798.  Of  property  of  non-resident  ward. 

1799.  Mother-guardian. 

1800.  Appointment  of  clerk  or  stranger. 

1801.  Guardian  of  bastard. 

1802.  Notice  of  application. 


Section. 

1803.  Bond  and  oath. 

1804.  Taken  in  vacation. 

1805.  Additional  bond. 

1806.  New  sureties. 

1807.  Proceedings  in  case  of  misconduct. 

1808.  Motion  by  surety. 

1809.  Revocation  does  not  abate  suit. 

1810.  Suit  on  bond. 

1811.  Removing  proceedings,  etc. 

1812.  Guardian  ad  litem. 


Natural 
guardian. 


§  1793.   Guardians  of  minors  may  be  either — Ist,  natural  guar- 
Sfan?  4^^^s ;  2d,  testame-ntary  guardians ;  3d,  guardians  of  person  and 
property,  or  either. 

§  1794.  The  father,  if  alive,  is  the  natural  guardian  ;  if  dead, 
the  mother  is  the  natural  guardian.  The  natural  guardian  can 
not  demand  or  receive  the  property  of  the  child  until  a  guardian's 
bond  is  filed  and  accepted  by  the  Ordinary  of  the  County.  If 
such  natural  guardian  fail  or  refuse  to  give  bond  and  surety  the 
Ordinary  may  appoint  another  guardian  to  receive  such  property. 
§  1795.  Every  father  may,  by  will,  appoint  guardians  for  the 
ter^^*^™S-  persons,  or  property,  or  both,  of  his  children,  and  such  guardians 
^^^°-  shall  not  be  required  to  give  bond  and  security,  except  in  case  of 
waste  committed  or  apprehended,  or  property  coming  to  the 
ward  from  sources  other  than  the  father's  will,  when  the  Ordinary 
shall  require  the  same.  If  a  testamentary  guardian  fails  to  give 
bond  as  required,  the  Ordinary  may  dismiss  him  as  guardian  and 
appoint  another,  or  may  appoint  another  guardian  for  the  prop- 
erty thus  accruing.  In  all  other  respects  a  testamentary  guardian 
shall  stand  on  the  same  footing  with  other  guardians  appointed  by 
the  Ordinary. 

§  1796.  The  mother,  if  a  widow,  shall  have  the  power  by  will 
AppoiDted  to  appoint  testamentary  guardians  for  such  children  as  have  none, 

by  widows.  -•■■*•  •/    o  ' 

as  to  their  persons,  and  as  to  such  property  as  they  may  inherit 
from  her. 

§  1797.  The  Ordinary  of  the  County  of  the  domicil  of  a  minor 
having  no  guardian  shall  have  the  power  of  appointing  a  guardian 
of  the  person  and  property,  or  either,  of  such  child.  If  the  ward 
be  above  the  age  of  fourteen  years  before  a  guardian  is  appointed, 


General 
guardian. 


PT.  2.--TIT.  2.— CHAP.  3.— ART.  1.— Domestic  Relations.    361 

Section  1. — Guardians — how  and  by  wliom  appointed. 

he  shall  have  the  privilege  of  selecting  a  guardian,  and  if  such 
selection  be  judicious  the  Ordinary  shall  appoint  him.  The  ward 
having  once  exercised  this  privilege  can  not  do  so  again,  except 
upon  cause  shown  for  the  removal  of  the  first  selection. 

§  1798.  If  a  minor  is  non-resident,   but  has  property  in  this  of  property 

,  of  non-resi- 

State,  the  Ordinary  of  the  County  where  the  property  is  may  ap-  <ient  ward, 
point  a  guardian,  who  shall  have  control  only  over  such- property. 

§  1799.  In  the  appointment  of  eruardians,  the  widowed  mother    Mother- 

■^  *-"  ,  .  guardian. 

shall  have  the  preference  upon  complying  with  the  law.  Upon 
her  marrying  again  the  letters  are  revoked,  though  her  husband 
shall  be  responsible  to  the  ward  as  guardian,  if  no  other  guardian 
be  appointed.  Among  collaterals  applying  for  the  guardianship, 
the  nearest  of  kin  by  blood,  if  otherwise  unobjectionable,  shall  be 
preferred — males  being  preferred  to  females.  The  Ordinary,  how- 
ever, in  every  case  may  exercise  his  discretion  according  to  the  cir- 
cumstances, and  if  necessary  grant  the  letters  to  a  stranger  in 
blood. 

§  1800.  If  there  be  no  application  for  letters  of  guardianship,    Appoint- 

-,.  .  r\     -,.  o  .  -^^    ment   of 

and  a  necessity  for  a  guardian  exists,  the  Ordinary,  after  giving  ci^^k  or 

.   -^  ^  ...  &  &    stranger. 

notice  for  thirty  days,  may  vest  such  guardianship  in  the  Clerk  of 
the  Superior  or  Inferior  Court  of  the  County,  or  in  any  other  per- 
son or  persons  residing  in  said  County,  whom  he  ^all  deem  fit 
and  proper,  in  his  discretion,  requiring  bond  and((jrecurity  as  in 
other  cases. 

§  1801.  The  Ordinary  may  appoint  a  guardian  for  the  person     Guardian 

^  .„  .  ,       ,  11  of  bastards. 

and  property  of  an  illegitimate  child  in  all  cases  where  he  may 
deem  it  necessary. 

§  1802.  Every  application  to  be  appointed  guardian  of  a  minor     Notice  of 

,,  „p  ,,  ii'iipi  application. 

under  the  age  oi  lourteen  years,  other  than  the  child  oi  the  ap- 
plicant, shall  be  made  to  the  Ordinary,  and  notice  thereof  given 
by  him  in  some  public  gazette  of  this  State,  at  least  thirty  days 
before  such  letters  shall  be  granted.  At  the  regular  term  next 
after  the  expiration  of   the  notice,  the  letters  may  be  granted  / 

either  to  the  applicant  or  some  other  person,  in  the  discretion  of  / 

the  Court.  In  the  meantime  a  temporary  guardian  may  be  ap- 
pointed under  the  same  rules  as  apply  to  the  appointment  of  tem- 
porary administrators. 

§  1803.  Every  guardian,  appointed  by  the  Ordinary,  before  en-    Bond  and 
tering  on  the  duties  of  his  appointment,  shall  take  before  the  Or- 
dinary an  oath,  or  affirmation,  well  and  truly  to  perform  the  duties 


362   PT.  2.— TIT.  2.— CHAP.  3.— ART.  1.— Domestic  Relations. 

Section  1. — Guardians — how  and  by  whom  appointed. 

required  of  him  as  guardian,  and  laijhfully  to  account  with  his 
ward  for  his  estate  ;  and  shall  also  give  bond  with  good  and  suffi- 
cient security,  to  be  approved  by  the  Ordmary,  in  double  the 
amount  of  the  supposed  value  of  the  property  of  the  ward,  for  the 
faithful  discharge  of  his  duty  as  guardian  :  such  bond  shall  be  pay- 
able to  the  Ordinary  and  his  successors.  A  substantial  compliance 
as  to  all  matter  of  form  shall  be  sufficient. 

§  1804.  The  taking  of  the  oath  and  giving  the  bond  may  be 
Taken  in  done  at  anv  time  in  vacation,  the  appointment  beins:  made  at  a 

vacation.  '^  7  rr  to 

regular  term.     The  bond  when  taken  shall  be  recorded  by  the 
Bond  re-  Ordinary  in  a  book  to  be  kept  by  him  for  that  purpose,  and  the 
corded.        original  kept  of  file  in  his  office. 

§  1805.  If  at  any  time  after  appointment  other  property  shall 
Additional  doscend,  or  come,  or  be  2;iven,  or  otherwise  accrue  to  the  ward,  the 

bond.  '  °  .  .  . 

Ordinary  may  require  the  guardian  to  give  an  additional  bond 
with  security  in  double  the  amount  of  such  property,  and  on  his 
failure  to  comply,  the  Ordinary  may  appoint  a  special  guardian 
for  such  property  ;  [and  whenever  it  shall  come  to  the  knowledge 
of  the  Ordinary,  either  by  annual  returns  or  otherwise,  that  the 
bond  and  security  of  any  guardian  is  not  of  sufficient  amount  to 
be  of  double  the  amount  of  the  property  or  funds  in  the  hands  of 
such  guardian,  or  that  such  bond  and  securities  are  otherwise  in- 
sufficient in  the  judgment  of  such  Ordinary,  it  shall  be  his  duty 
to  give  notice  to  said  guardian  to  come  forward  at  the  next  term 
of  the  Court  of  said  Ordinary  and  give  additional  security  to  said 
Ordinary,  or  give  a  new  bond  with  good  securities  ;  and  on  failure 
to  do  so,  the  authority  of  said  guardian  shall  cease  ;  and  said  Or- 
dinary shall  appoint,  in  terms  of  the  law,  a  guardian  to  take  the 
place  of  said  defaulting  guardian.]  (a)    "• 

§  1806.  If  one  or  more  of  the  sureties  on  the  guardian's  bond 
New  sure-  shall  die,  or  become  insolvent,  or  remove  from  this  State,  or  from 

ties.  '  .  '  ,  .    ' 

other  cause  the  security  become  insufficient,  the  Ordinary  may 
of  his  own  motion,  or  at  the  instance  of  any  relative  of  the  ward, 
require  the  guardian  to  give  other  and  sufficient  security,  and  on 
his  failure  so  to  do  in  compliance  with  such  order,  the  Court 
shall  revoke  his  letters  of  guardianship,  and  appoint  some  other 
person  in  his  place. 

§  1807.  If  the  Ordinary  knows,  or  is  informed,  that  any  guar- 

(a)  Acts  of  1861,  p.  33. 


PT.  2.— TIT.  2.— CHAP.  3.— ART.  1.— Domestic  Kelatioks.    368 

Section  1. — Guardians — how  and  by  whom  appointed. 

dian  wastes,  or  in  any  manner  mismanages  the  property,  or  does  Proceedings 
not  take  due  care  oi  the  maintenance  and  education  of  his  ward  misconduct 
according  to  his  circumstances,  or  refuses  to  make  returns  as 
required  by  law,  or  for  any  cause  is  unfit  for  the  trust,  the  Ordina- 
ry shall  cite  such  guardian  to  answer  to  such  charge  at  some  regu- 
lar term  of  the  Court,  when,  upon  investigation  of  his  actions,  the 
Ordinary  may,  in  his  discretion,  revoke  his  letters,  or  pass  such 
other  order  as  in  his  judgment  is  expedient  under  the  circum- 
stances of  each  case. 

§  1808.  The  surety  of  any  guardian  on  his  bond,  or  if  dead,  his    Motion  by 
representative,  may  at  any  time  make  complaint  to  the  Ordinary 
of  any  misconduct  of  his  principal  in  the  discharge  of  his  trust,  Z  ^.^ 

or  for  any  other  reason  show  his  desire  to  be  relieved  as  surety  ;  '  C 

thereupon  the  Ordinary  shall  cite  the  guardian  to  appear  at  a 
regular  term  of  the  Court,  and  show  cause  why  such  surety  shall 
not  be  discharged  ;  and  upon  hearing  the  parties  and  their  evidence,  Proceedings 
the  Ordinary  may,  at  his  discretion,  pass  an  order  discharging 
such  surety  from  all  future  liability,  and  requiring  such  guardian 
to  give  new  and  sufficient  security,  or  be  discharged  from  his  trust ; 
such  new  sureties  shall  be  liable  for  past  as  well  as  future  waste 
or  misconduct  of  the  guardian.  And  such  discharged  surety  shall 
be  relieved  only  from  the  time  the  new  security  shall  be  given. 
If  new  security  is  not  given,  and  the  guardian's  trust  is  revoked,  i^iawiity  of 

»/  o  7  G  7  ne-vy  sureties. 

the  discharged  surety  shall  be  bound  for  a  true  accounting  of  such 
guardian  with  the  new  guardian,  or  his  ward,  if  no  other  guardian 
is  appointed.  The  death  of  a  surety  shall  be  a  sufficient  ground 
for  his  discharge  from  future  liability  on  application  of  his  repre- 
sentative and  the  granting  the  order.  In  all  cases  where  letters  ofoidsure- 
of  guardianship  are  revoked,  the  sureties  on  the  bond  are  liable 
for  all  the  acts  of  the  guardian  in  relation  to  his  trust  up  to  the 
time  of  his  settlement  with  the  new  guardian  or  his  ward. 

§  1809.  The  revocation  of  letters  of  guardianship  shall  not  abate  Revocation 

"  ■*■  does    not 

any  suit  pending  for  or  against  the  guardian,  but  the  new  guardian  abate  suit. 
shall  be  made  a  party  by  sci.  fa.  as  in  case  of  the  death  of  a  party. 

§1810.  Suit  may  be  instituted  against  the  guardian  and  his  suit  on  bond 
sureties  on  his  bond  in  the  same  action  at  the  instance  of  his 
ward,  or  a  new  guardian,  or  any  other  person  interested,  without 
first  suing  the  guardian.  And  if  the  guardian  is  beyond  the  juris- 
diction of  the  Court,  or  places  himself  in  the  position  of  a  debtor, 
liable  to  attachment,  or  is  dead,  and  his  estate  unrepresented,  suit 


S64:    PT.  2.— TIT.  2.— CHAP.  3.— ART.  1.— Domestic  Relations. 


Section  1. — G-uardians — ^how  and  by  whom  appointed. 


ProYiso,  may  be  commenced  against  the  sureties  alone  ;  provided,  that  the 
fi.  fa.  issued  upon  a  judgment  obtained  against  the  guardian  and  his 
sureties  shall  not  be  levied  upon  the  property  of  the  sureties  until 
a  return  of  7iulla  bona  as  to  the  guardian,  unless  the  property  of 
the  sureties  is  being  removed  from  the  County.  If  the  failure  to 
Effect  of  sue   the  guardian  arose   from  his   voluntary  act,   the   iudDi:ment 

judgment.  ,  °  ,  .         . 

against  the  sureties  shall  be  conclusive  in  any  suit  against  him, 
§  1811.   A  guardian  whose  residence  is,  or  by  removal  or  other- 
EemoYiDg  wisc  bccomcs,  in  a  different  County  from  that  of  his  appointment, 

proceedings  ,  .    . 

to  another  may  have  the  privilege  of  removing  the  trust  to  the  jurisdiction 
of  the  Ordinary  of  his  own  County,  by  first  giving  bond  and  good 
security  to  such  Ordinary,  as  if  first  appointed  by  him,  and  filing 
a  certificate  of  such  fact  with  the  Ordinary  by  whom  he  was  ap- 
pointed. He  shall  also  obtain  from  such  Ordinary  an  exemplifi- 
cation of  all  the  records  concerning  his  guardianship,  and  of  the 
order  passed  transferring  the  same  to  the  County  of  his  residence, 
which  exemplification  shall  be  filed  with  and  recorded  by  the 
Ordinary  of  said  County,  who  shall  then  have  the  same  jurisdic- 
tion over  such  guardian  as  if  first  appointed  by  him.  The  sure- 
ties upon  such  guardian's  first  bond  shall  be  liable  only  for  past 
Liability  of  misconduct.  The  surcties  upou  tho  now  boud  shall  be  liable  for 
both  past  and  future  misconduct. 

§  1812.  Whenever  a  minor  is  interested  in  any  litigation  pend- 

Gnardianacz  ing  in  any  Court  in  this  State,  and  has  no  guardian,  or  his  inter- 
est  is  adverse  to  that  of  his  guardian,  such  Court  shall  have  power 
to  appoint  a  guardian  ad  litem  for  such  minor,  which  guardian 
shall  be  responsible  to  such  minor  for  his  conduct  in  connection 
with  such  litigation  in  the  same  manner  as  if  he  were  a  regularly 
qualified  guardian. 


SECTION  IL 

THE   POWERS,  DUTIES,   AND   LIABILITIES   OF  GUARDIAXS. 


Sectiox. 

1813.  Power  of  guardian. 

1814.  Returns. 

1815.  Amount  of  expenditure. 

1816.  Binding  out  indigent  persons. 

1817.  Ill  treatment. 

1818.  Failing  to  make  returns. 

1819.  Sales. 

1820.  Renting  of  lands. 

1821.  Contracts  for  labor. 


Section. 

1822.  "Working  tliem  together. 

1823.  Cultivating  plantations,  etc. 
1821.  Investment  in  stocks. 

1825.  Commissions. 

1826.  If  there  be  two  guardians. 

1827.  Sureties  bound,  etc. 

1828.  Contracts  bj'  guardian, 

1829.  May  appoint  attorney  in  fact. 


PT.  2.— TIT.  2.-~CHAP.  3.— ART.  1.— Domestic  Relations.    865 


Section  2.— Powers,  Duties,  and  Liabilities  of  Guardians. 


§  1813.  The  power  of  the  guardian  over  the  person  of  his  ward 
is  the  same  w4th  the  father  over  his  child,  the  guardian  standing 
in  his  place ;  and  in  like  manner  it  is  the  duty  of  the  guardian  to 
protect  and  maintain,  and,  according  to  the  circumstances  of  the 
ward,  to  educate  him. 

§  1814.  Every  guardian,  within  twelve  months  after  his  ap- 
pointment,  and  by  the  first  Monday  in  July  in  every  year  there- 
after, shall  make  a  return  to  the  Ordinary  under  oath,  making  an 
accurate  exhibit  of  all  the  property  of  his  ward  received  by  him 
up  to  that  time  and  since  his  last  return,  together  wdth  an  account 
current  of  his  receipts  and  expenditures,  accompanied  with  the 
vouchers  for  the  same,  and  any  other  matter  connected  with  the 
said  property,  which  said  return  shall  be  examined  by  the  Ordi- 
nary, and  if  found  correct  shall  be  allowed  by  him  and  entered  of 
record  with  the  vouchers ;  and  the  judgment  thus  rendered  by  the 
Ordinary  shall  be  prima  facie  evidence  of  the  correctness  of  said 
return  in  favor  of  said  guardian.  If  the  guardian  shall  have 
removed  beyond  the  limits  of  this  State,  the  oath  of  his  surety 
shall  be  sufficient  to  verify  the  return. 

§  1815.  Every  guardian  shall  be  allowed  all  reasonable  dis- 
bursements and  expenses  suitable  to  the  circumstances  of  the 
orphan  committed  to  his  care.  But  the  expenses  of  maintenance 
and  education  must  not  exceed  the  annual  profits  of  the  estate, 
except  by  the  approval  of  the  Ordinary  previously  granted.  The 
Ordinary  may,  in  his  discretion,  allow  the  corpus  of  the  estate,  in 
whole  or  in  part,  to  be  used  for  the  education  and  maintenance  of 
the  ward. 

§  1816.  If  the  annual  profits  of  the  estate  of  any  orphan,  with 
or  without  a  guardian,  are  not  sufficient  for  his  education  and 
maintenance,  [and  the  Ordinary  shall  not  allow  the  corpus  of  the 
estate  to  be  used  for  such  education  and  maintenance,]  (a)  it  shall 
be  the  duty  of  the  Ordinary  forthwith  to  bind  out  such  orphan  for 
the  w^hole  or  such  part  of  the  time  of  his  minority  as  to  him  shall 
seem  best,  and  on  such  conditions  as  will  most  promote  the  interest 
of  such  orphan,  in  all  cases  requiring  that  such  orphan  shall  be 
allowed  to  attend  the  nearest  school,  where  education  is  free  to 
him,  at  least  three  months  in  the  year. 

§  1817.  It  shall  be  the  duty  of  the  Ordinary  and  of  the  guardian 


Power  of 
guardian. 


His  duty. 


Eetums. 


Amount  of 
expenditure. 


Binding  ou 
indigent  or- 
phans. 


(a)  Acts  of  1865-6,  p.  28. 


BQ6   PT.  2.— TIT.  2.-^CHAP.  3.— ART.  1.-— Domestic  Relations^ 


Section  2. — Powers,  Duties,  and  Liabilities  of  Guardians. 


Ill  treat-  of  such  Orphan  to  be  informed  as  to  his  treatment,  and  on  com- 
ment. ^ 

plaint  of  ill  usage,  or  any  condition  broken,  the  Ordinary  shall 
bind  such  orphan  to  some  other  person.* 

§  1818.  The  Ordinary  shall  keep  a  docket  of  all  the  guardians 
Failing  to  liable  to  make  returns  to  him,  and  upon  the  failure  of  any  one  to 

make    re-  ^  ^  ■*■  "^ 

turns.  (Jo  SO  by  the  time  required  by  law,  he  shall  cite  the  said  guardian 
to  appear  and  show  the  reason  for  his  delay ;  and  every  guardian 
who  shall  fail  or  refuse  to  make  his  return  before  the  end  of  the 
year,  shall  receive  no  commission  or  compensation  for  any  service 
done  during  that  year,  unless  by  special  order  of  the  Court  of 
Ordinary,  exonerating  him  from  all  blame. 

§1819.  All  sales  of  any  portion  of  the  property  of  the  ward 
Sales,      shall  be  made  under  the  direction  of  the  Ordinary,  and  under  the 
same  rules  and  restrictions  as  are  prescribed  for  sales  by  adminis- 
trators of  estates. 

§  1820.  Every  renting  of  lands  of  an  orphan,  unless  by  special 
Renting  of  order  of  the  Ordinary,  shall  be  in  public  to  the  highest  bidder, 
and  under  the  same  rules  as  Sheriff  sales,  except  that  credit  may 
be  given  on  good  security. 

§  1821.  [Guardians  may  make  contracts  for  labor  or  service 

May  con-  wlth  porsons  of  color,  or  with  white  persons,  for  the  benefit  of  the 

labor.         estates  of  their  wards,  upon  such  terms  as  they  may  deem  best, 

and  all  such  contracts  made  in  good  faith  shall  be  a  charge  upon 

and  bind  said  estates  whenever  the  same  are  approved  by  the 

Ordinary  of  the  County.]  (a) 

§  1822.  Guardians,  under  a  like  order,  may  keep  such  persons 
Working  together,  and  have  them  employed  in  such  agricultural  or  other 
gether.       operations  as  such  guardians  may  deem  manifestly  expedient. 

§  1823.  When  it  is  manifestly  expedient,  guardians  may  cause 
cuiti-  plantations  of  their  wards  to  be  managed  and  cultivated  for  their 
pSa.Sig  benefit,  and  when  not  possessed  of  lands,  under  a  like  order  of  the 
pantation.  Q^^^,^^  guardians  may  invest  a  portion  of  the  funds  of  their  wards 
in  lands  for  the  purpose  of  cultivation  as  hereinbefore  provided. 
§  1824.  Any  guardian,  in  his  discretion,  may  invest  any  funds 
investnaent  of  his  Ward  in  his  hands  in  stocks,  bonds,  or  other  securities  is- 
sued by  this  State.     In  every  such  case  his  return  shall  set  forth 
the  time  of  such  purchase,  the  price  paid,  and  the  name  of  the 
person  from  whom  purchased.     All  such  investments  shall  be  free 


*  « 


See  further  on  this  subject  Sections  1865, 1866.     (a)  Acts  of  1866,  p.  87. 


PT.  2.— TIT.  2.— CHAP.  3.— ART.  1.-^Domestic  Relations.    367 

Section  2. — Powers,  Duties,  and  Liabilities  of  Guardians. 

from  taxation  during  the  minority  of  the  ward  for  whom  they  are 
held. 

§  1825.  Guardians  shall  be  allowed  the  sajne  commissions  for  Commis- 
receiving  and  paying  out  the  estate  of  their  wards  as  are  allowed 
to  administrators.  Extra  compensation  and  traveling  expenses 
shall  be  allowed  to  them  upon  the  same  principles  as  to  adminis- 
trators. When  the  guardian  keeps  together  and  works  the  employees 
of  a  ward,  the  Court  shall  allow  him  a  reasonable  compensation 
for  such  services,  taking  into  consideration  the  commissions  he  may 
receive. 

§  1826.  If  the  s^uardian  resigns   or  dies,  or  is  removed  under       if  there 

.      .  .         t>6  t'^o  guar- 

any  circumstances,  no  commissions  shall  be   allowed  for  turning  dians. 
over  the  estate  to  a  new  guardian,  or  to  the  new  guardian  for  re- 
ceiving the  same ;  and  where  a  guardian  is  removed  for  waste  or 
gross  mismanagement,  no  commissions  shall  be  allowed  for  any 
of  his  services. 

§  1827.  If  the  appointment  of  a  guardian  for  any  cause  is  de- ,    sureties 

,  ^  "^  bound,  etc. 

clared  void,  his  sureties  shall  nevertheless  be  responsible  on  the 
bond  for  any  property  which  may  have  been  received  by  him  by 
virtue  or  reason  of  his  appointment. 

§  1828.  The  aruardian  can  not  borrow  money  and  bind  his  ward    Contracts 

<-"  •^  by    guar- 

therefor,  nor  can  he,  by  any  contract  other  than   those  specially  ^^^"s- 

allowed  by  law,  bind  his  ward's  property,   or  create    any   lien 

thereon. 

§1829.  The  guardian  may  appoint  an  attorney  in  fact  to  act  May  appoint 

for  him  where  he  is  unable  to  act  himself,  and  he  and  his  sureties 

are  bound  for  the  acts  of  such  attorney  as  if  it  were  his  personal 
deed. 


SECTION    III.         '        ^ 


SETTLEMENTS  OF  GUARDIANS,  RESiaNATION,  AND  LETTERS  DISMISSORY. 


Section. 

1830.  Settlements  before  the  Ordinary. 

1831.  At  the  instance  of  the  guardians. 

1832.  Duty  of  the  Court. 

1833.  Continuance. 

1834.  Proceedings. 

1835.  Power  of  the  Ordinary. 

1836.  Enforcement  of  decision. 


Section. 

1837.  Final  receipts. 

1838.  Right  of  ward  to  re-open,  etc. 

1839.  Resignation  of  guardian. 

1840.  Letters  of  dismission. 

1841.  Disposition  of  money,  etc.,  in  hand. 

1842.  Ward  dying,  etc. 


§  1830.  A  ward,  on  arriving  at  majority,  or  marrying  a  man  of  settlements 
full  age,  or  a  new  guardian  legally  appointed,  may  apply  to  the  ordinary. 


368   PT.  2.— TIT.  2.-.CHAP.  8.— ART.  1.— Domestic  Relations. 

Section  3. — Settlements  of  Guardians,  etc. 

Ordinary  for  an  order  requiring  the  guardian  to  appear  and  sub- 
mit to  a  settlement  of  his  accounts.  Such  citation  shall  be  served 
as  other  citations,  a-nd  shall  be  returnable  to  a  regular  term  of  the 
Court.  If  the  guardian  fails  or  refuses  to  appear  as  cited,  the 
Court  may  proceed  ex  parte, 

§  1831.  The  guardian  shall,  in  like  manner,  be  allowed  to  cite 
At  instance  his  Ward,  or  a  new  sruardian,  to  appear  and  be  present  at  a  set- 

of  the  guar-  '  °  ?  rr  r 

dian.  tlemcut  of  his  account. 

§  1832.  Upon  the  return  of  such  citation,  the  Court  shall  pro- 
Duty  of  the  ceed  to  examine  all  the  returns  and  accounts   of  such  guardian  ; 

Court.  .  .  . 

to  hear  all  evidence  which  may  be  produced  by  either  party ;  and 
to  make  a  full,  fair  and  final  settlement  between  such   guardian 
and  his  ward,  making  a  full  record  of  such  final  settlement. 
§  1833.  The  Court  may  allow  such  continuances  as  the  princi- 
Continuance  plcs  of  justicc  require. 

§  1834.  Such  other  proceedings  may  be  had  in  the  case  as  are 
Proceedings  usual  in  Other  causes  in  said  Court. 

§  1835.  It  shall  be  in  the  power  of  the  Ordinary  to  order  any 
Power  of  property  in  the  hands  of  the  guardian  to  be  delivered  to  the  ward 
or  the  new  guardian,  and  also  to  issue  an  execution  for  any  bal- 
ance of  money  found  due  by  the  guardian  to  the  ward.  If  the 
ward  does  not  appear,  the  Court  may  pass  an  order  stating  the 
balance  found  due  from  the  guardian,  which  balance  shall  not 
bear  interest  from  that  date  until  demanded  by  the  ward  or  new 
guardian. 

§  1836.  If  the  guardian  shall  fail  or  refuse  to  deliver  to  the 
Enforce-  ward  the  property  in  his  hands,  ordered  to  be  delivered  by  the 
Court,  the  Ordinary  shall  have  power  to  attach  him  for  contempt, 
and  imprison  him  in  the  common  jail  until  he  shall  comply  with 
such  order,  such  proceedings  to  be  had  in  the  issuing  of  such  at- 
tachment as  are  usual  in  Courts  of  Equity. 

§  1837.  Any  guardian,  by  having  his  final  receipt  from  his  ward 
Final  re-  attested  by  a  Judge,  Justice  of  the  Peace,  or  Notary  Public,  may 
cause  the  same  to  be  recorded  by  the  Clerk  of  the  Superior  Court 
of  the  County  of  his  residence,  and  the  original,  or  a  copy  thereof, 
shall  be  admitted  in  evidence,  on  the  same  terms  as  registered 
deeds. 

§  1838.  No  final  settlement  made  between  the  guardian  and 
war?^toVe^  Ward  shall  bar  the  ward,  at  any  time  within  four  years  thereafter, 
ment.  ^^"^^"  from  Calling  the  guardian  to  a  settlement  of  his  accounts,  unless 


ment  of  de 


PT.  2.— TIT.  2.— CHAP.  3— ART.  1.— Domestic  Relations.    369 


Section  3. — Settlements  of  Guardians,  etc. 


it  is  made  to  appear  that  the  same  was  made  after  a  full  exhibit 
of  all  the  guardian's  accounts,  and  with  a  full  knowledge  bj  the 
ward  of  his  legal  rights. 

§  1839.  Any  guardian  who,  from  age,  infirmity,  removal  from  Eesignation 

.       ^  -  ,  -      .  ....  of  guardian. 

the  County,  or  tor  any  other  cause,  desires  to  resign  his  trust  as 
such,  may  apply  to  the  Ordinary  having  jurisdiction  of  the  trust, 
setting  forth  the  reasons  therefor,  and  also  the  name  of  some  suit- 
able person  willing  to  accept  the  trust,  whereupon  the  Ordinary 
shall  cite  such  person,  and  also  the  nearest  of  kin  of  such  ward, 
to  appear  at  the  next  term  of  said  Court,  and  if  the  Ordinary  shall 
be  satisfied  that  such  change  of  guardians  will  not  be  detrimental 
to  the  interest  of  the  ward,  and  no  good  cause  is  shown  against  it, 
he  shall  grant  the  prayer  of  the  applicant,  discharging  him  from 
his  trust  on  the  following  condition — viz,  that  he  shall,  forthwith,  condition. 
deliver  all  property  and  pay  all  money  held  by  him  as  such  guar- 
dian, upon  a  fair  settlement  of  his  accounts,  to  his  successor  ;  and 
upon  the  filing  of  the  evidence  of  such  settlement,  and  the  receipt 
in  full  of  his  successor,  the  guardian  shall  be  discharged  from  his 
said  trust.  The  ward  shall  have  the  privilege,  within  five  years 
after  he  comes  of  age,  to  re-open  such  settlement  and  call  for  an 
account. 

§  1840.  Letters  of  dismission  may  be  granted  by  the  Ordinary    Letters  of 
to  any  guardian,  upon  Iiis   compliance  with  the  following  provi-  ,  ^*_, 

sions:  ^.  J, /^   -^ 

1.  An  application  in  writing,  setting  forth  his  full  discharge  of 

the  duties  of  his  trust.     >  /i.^**-^  - 

2.  An  examination  of  his  accounts  and  vouchers  by  the  Ordi- 
nary, to  verify  the  truth  of  the  petition. 

3.  The  publication  of  such  application  for  forty  days,  in  the 
public  gazette  where  the  legal  notices  of  the  Ordinary's  office  are 
usually  published. 

4.  The  examination  of  any  objections  filed,  and  the  proof  to 
the  Ordinary  that  the  ward  is  of  age. 

§  1841.  If  it  shall  appear  that  such  guardian  has  in  his  hands  i>isposition 

^  ^^  .  ^  of  money, 

any  money,  property,  or  effects  of  his  ward,  the  Ordinary  may  cause  etc.,  in  hand. 
the  same,  if  money,  to  be  deposited  in  some  solvent  bank,  and  if  other 
property,  to  be  delivered  to  some  proper  person  to  be  appointed 
by  the  Ordinary,  under  such  restrictions  as  he  may  deem  best  for 
the  preservation  of  the  property,  and  then  grant  the  letters  dis- 
missory;  or  the  Ordinary  may,  if  he  sees  proper,  pass  an  order 
24 


370 


PT.  2.— TIT.  2.— CHAP.  S.^Domestic  Relations. 


Article  2. — Guardians  of  Lunatics,  Idiots,  etc. 


requiring  the  guardian  to  retain  the  funds  in  his  own  hands  at  an 
interest  not  exceeding  four  per  cent,  per  annum,  his  sureties  being 
still  responsible  therefor. 

§  1842.  When  a  ward  shall  die  intestate, "pending  his  minority, 
Ward  dying,  the  guardian  shall  proceed  to  distribute  his  estate  in  the  same  man- 

guardian  *='  '■ 

shall  act  as  ^gj.  ^g  jf  \^q  ]^^^  bcon  appointed  administrator  upon  such  estate- 
ad  mimstra-  ■'•■'■  ^  ' 

and  the  sureties  on  his  bond  shall  be  responsible  for  his  faithful 
administration  and  distribution  of  such  estate. 


tor. 


ARTICLE  11. 

GUARDIANS    OF    LUNATICS    AND    IDIOTS     AND    PERSONS    NON    COMFOS 

MENTIS. 


Section. 

1843.  Guardian— for  whom  appointed. 
184i.  Oath  and  bond,  powers,  etc. 

1845.  Wife  may  be  guardian. 

1846.  Proceeding  to  obtain  commission. 

1847.  Return  and  appointment. 

1848.  Appeal. 

1849.  Second  application. 


Sectiox. 

1850.  "SVitnesses. 

1851.  Proceedings  to  end  a  commission. 

1852.  Issue — how  made  and  tried. 

1853.  Other  provisions  as  general  guardian. 

1854.  Confining  ward. 

1855.  Proceedings  to  confine  him,  etc. 


§  1843.  The  Ordinaries  of  the  several  Counties  of  this  State 
^For  whom  may  appoint  guardians  for  the  following  persons — viz  :  Idiots,  luna- 
i^ay  ij^  ap- tics,  and  in§ane  persons,   and  deaf  and  dumb  persons  when  inca- 
pable of  managing  their  estates,  habitual  drunkards,*  and  persons 
imbecile  from  old  age  or  other  cause,  and  incapable  of  managing 
their  estates. 

§  1844.  Guardians  so  appointed  shall  take  the  same  oath  and 

Oath  and  give  a  like  bond  with  guardians   of  minors,  and  their   powers, 

ers  and  du-  dutics,  and  liabilities,  shall  be  the  same,  and  be  exercised  under 

ties.  '  '  ' 

the  same  rules  and  regulations. 

§  1845.  The  wife  shall,  in  all  cases,  be  entitled  to  the  prefer- 
wife  may  euco  to  the  appointment  as  guardian,  and  her  bond  and  all  acts  as 

be  guardian.  ^  ••■  ■"■  *5 — , ' 

guardian  shall  be  held  and  construed  as  if  she  were  a  feme  sole. 
§  1846.  Upon  the  petition  of  any  person  on  oath,  setting  forth 
Proceedings  that  another  is  liable  to  have  a  guardian  appointed  under  the  pro- 

to    obtain      .    .  _  ^  ^^  , 

commission,  yisious  of  this  Article,  the  Ordinary,  upon  proof  that  ten  days 
notice  of  such  application  has  been  given  to  the  three  nearest 
adult  relatives  of  such  person,  or  that  there  is  no  such  relative 


*  See  Section  1387. 


PT.  2.— TIT.  2.— CHAP.  3.— Dojiestic  Eelations.  STl 


Article  2. — Guardians  of  Lunatics,  Idiots,  etc. 


within  this  State,  shall  issue  a  commission  directed  to  any  eighteen 
discreet  and  proper  persons,  one  of  whom  shall  be  a  physician, 
requiring  any  twelve  of  them,  including  the  physician,  to  examine 
by  inspection  the  person  for  whom  guardianship  is  sought,  and  to 
hear  and  examine  witnesses,  on  oath,  if  necessary,  as  to  his  con- 
dition and  capacity  to  manage  his  estate,  and  to  make  return  of 
such  examination  and  inquiry  to  the  said  Ordinary,  specifying  in 
such  return  under  which  of  said  classes  they  find  t^e  said  person 
to  come.  Such  commissioners  shall  first  be  sworn  by  a  Justice  of 
the  Peace  "well  and  truly  to  execute  the  said  commission  to  the 
best  of  their  skill  and  ability,"  which  oath  shall  be  returned  with 
their  verdict. 

§1847.  Upon  such  return  finding  the  person  to  be  as  alleged  Retumand 
in  the  petition,  or  within  either  of  said  classes,  the  Ordinary  shall 
appoint  a  guardian  for  him. 

§  1848.  The  applicants  for  a  commission,  or  the  person  for  Appeal, 
whom  the  guardianship  is  sought,  or  any  friend  or  relative  for 
him  dissatisfied  with  the  return  of  the  committee,  may,  upon  pay- 
ing all  costs,  and  giving  bond  and  security  for  all  future  costs  and 
damages,  within  four  days  after  the  report  has  been  acted  on  by 
the  Ordinary,  enter  an  appeal  to  the  Superior  Court  of  the  County, 
where  the  issue  shall  be  submitted  to  a  special  jury,  selected  as 
in  other  cases ;  but  the  guardian  appointed  by  the  Ordinary  shall  adutcm. 
act  as  such  pending  the  litigation. 

§  1849.  When  one  application  for  guardianship  under  this  arti-   second  ap- 

!•  1/-WT  t  plication. 

cle  has  failed  upon  the  merits,  the  Ordinary  shall  not  issue  a  sec- 
ond commission,  unless^  the  petition  is  verified  by  at  least  three 
respectable  disinterested  neighbors,  in  addition  to  the  oath  of  the 
applicant. 

§  1850.  The   Ordinary  may  issue  subpoenas  for  witnesses  to  witn.esses. 
appear  before  the  commission  thus  appointed^  and  on  their  failure 
to  appear,  the  Ordinary  may  take  the  same  steps  to  compel  attend- 
ance as  if  the  proceeding  was  before  his  Court. 

§  1851.  Any  person,  for  whom  a  guardian  is  appointed  under      Proceeci- 

•^    -^  ^  °  ^^  ingstoenda 

this  article,  upon  restoration  to  sanity  and  capacity,  may  person-  commiesion. 
ally,  or  by  attorney,  petition  the  Ordinary,  setting  forth  the  fact 
and  praying  the  revocation  of  such  guardianship.     Upon   such 
petition,  the  Ordinary  may  examine  into  the  truth  thereof,  and  if 
satisfied  of  its  truth,  and  the  guardian  consenting  thereto,  the 


37^  PT.  2.— TIT.  2.— CHAP.  3.— Domestic  RELATidxs. 

Article  3. — Guardians  of  Lunatics,  Idiots,  etc. 

Ordinary  shall  grant  the  prayer  and  order  the  guardian  forthwith 
to  deliver  over  to  such  person  his  property,  m^ey  and  effgpjts. 
§  1852.  If  the  Ordinary  is  not  satisfied  as  to  the  truth  of  the 
Issue-how  petition,  or  the  guardian,   or  any  relative  of  the  applicant  objects- 
tried,  to  the  revocation  of  the  letters,  the  Ordinary  shall  require  the 
Sheriff  to  summon  eighteen  men,  competent  to  serve  as  jurors,  to 
appear  before  said  Ordinary  on  a   day  specified,  any  twelve  of 
whom   being   duly   sworn,   shall   constitute   a  jury  before  whom 
shall  be  tried  the  issue  as  to  the  truth  of  the  application :   upon  a 
verdict  affirming  its  truth,  the  Ordinary  shall  grant  the  prayer 
and  order  above  specified. 

§  1853.  All  the  provisions  made  in  this  Code  as  to  the  settle- 
other  pro-  ments  of  guardians  of  minors,  their  resignation,  letters  of  dis- 

"visions  same        ..  ,,..,.  „,  „,  ,  iin 

as    seuerai  missiou,  and  distribution  01  the  estate  or  deceased  wards,  shall 

guardians. 

apply  to  guardians  appointed  under  this  Article. 

§  1854.   Guardians  of  insane  persons  are  authorized  to  confine 

Confining  them,  or  place  them  in  the  asylum,  if  such  a  course  is  necessary 

either  for  their  own  protection  or  the  safety  of  others ;   and  a 

guardian  willfully  failing  to  take  such  precaution  with  his  ward 

shall  be  responsible  for  injuries  inflicted  on  others  by  such  ward. 

§  1855.   [When  there  is  no  guardian  for  an  insane  person,  or 

Proceedings  the  guardian  on  notice  refuses  or  fails  to  confine  his  ward,  and"  any 

him  at  in-  person  shall  make  oath  that  such  insane  person,  for  public  safety 

stance    of  ^  i  i  rv    •  i  i  i 

third  per-  or  Other  ffood  and  sufficient  reason,  should  not  longer  be  left  at 
large,  any  one  of  the  Justices  of  the  Inferior  Court,  before  whom 
said  oath  is  made,  shall  issue  a  warrant,  as  in  criminal  cases,  for 
the  arrest  of  such  insane  person,  to  bring  him  before  the  Inferior 
Court  on  a  day  specified ;  and  said  Court,  on  an  investigation  of 
the  facts,  may  commit  such  insane  person  to  the  lunatic  asylum, 
and  if  necessary,  cause  him  to  be  temporarily  committed  to  jail 
until  he  can  be  removed  to  the  asylum  ;  and  the  expense  of  such 
confinement  and  the  proceedings,  shall  be  paid  out  of  the  estate  of 
Costs.       such  insane  person,  if  any,  and  if  not,  out  of  the  County  funds.]  (a) 

(a)  Acts  of  1866,  p.  22. 


sons 


PT.  2.— TIT.  2.— CHxiP.  3.— Domestic  Relations.  3T3 


Article  3. — Foreign  Guardians. 


ARTICLE  III. 

FOllEIGN     GUARDIANS. 


Sectiox, 

1856.  Foreign  guardian  may  recover,  etc. 

1857.  Order  of  Ordinary. 

1858.  Discretion  of  Ordinary. 


Section. 

1859.  Receipt. 

1800.  Enfoi'cing  order. 

18G1.  Removal  of  guardian  and  ward,  etc. 


§1856.  When  a  minor,  idiot,  lunatic  or  insane  person  resides    ^^  ^^^'^^^ff  J 
in  another  State,  and  by  any  reason  is  entitled  to  property  in  the  ™l.ypertJ^Itc 
hands  of  any  executor,  administrator,  trustee,  or  guardian  within 
this  State,  and  there  is  no  sufficient  reason  why  such  property 
should  not  be  transferred  to  a  guardian  appointed  under  the  laws 
of  such  other  State,  the  same  may  be  done  in  the  following  manner: 

1.  The  foreign  guardian  shall  give  bond  with  good  security  to     ^0°^^- 
the  proper  authority  in  his  own   State  for  the  faithful  execution 

of  such  guardianship,  in  double  the  amount  of  the  value  of  the 
property  in  this  State,  over  and  above  the  sum  in  which  he  may 
be  bound  for  the  guardianship  of  property  then  in  that  State. 

2.  He  shall  produce  to  the  Ordinary,  to  whose  Court  such  exec-    Exemiiiifi- 
utor,  administrator,  trustee  or  guardian  is  bound  to  make  returns, 

an  exemplification,  authenticated  as  required  by  the  Act  of  Con- 
gress, showing  that  he  has  complied  with  the  above  condition,  and 
having  also  the  certificate  of  the  proper  officer  as  to  the  sufficiency 
of  the  security  to  his  bond. 

3.  He  shall  give  twenty  days'  notice  to  such  executor,  adminis-    Notice. 
trator,  trustee,  or  guardian  of  such  intended  application. 

§1857.  Upon  compliance  with  these  conditions,  the  Ordinary  order  of 
may  order  the  transfer  of  all  such  ward's  estate  to  the  foreign 
guardian,  and  may  order  the  sale  of  any  real  estate  if  necessary 
for  settlement  with  such  foreign  guardian.  If  there  exists  any  objections. 
reason  why  such  estate  or  any  portion  of  it  should  not  be  removed 
from  this  State,  the  Ordinary  may  hear  any  one  interested  in  the 
question,  and  refuse  the  order  in  his  discretion. 

§  1858.  The   exemplification  and  certificate  produced   by   the    Discretion 
foreign  guardian  shall  not  be  conclusive,  but  the  Court  may  hear       '  ^^^^^' 
evidence  as  to  the  fitness  and  competency  of  the  guardian  for  his 
trust  or  the  sufficency  of  his  security,  or  any  other  matter  or  thing 
going  to  show  the  impropriety  of  granting  the  order  asked  for, 
and  in  his  discretion  the  Ordinary  may  refuse  such  order. 

§  1859.  The  receipt  of  the  foreign  guardian  under  such  order    Eeceipt. 
shall  be  a  sufficient  voucher  for  the  trustee  in  Georgia. 


374 


PT.  2.— TIT.  2.— CHAP.  4.— Domestic  Relatioits. 


Article  1. — Indented  Servants  and  Apprentices. 


§  1860.  The  Court  may  enforce  such  order  in  the  same  manner 

Enforcing  as  provided  in  cases  of  settlements  made  with  guardians,  and  the 

foreign  guardian,  after  such  order,  may  sue  for  the  property  of  his- 

ward  in  the  possession  of  any  person  in  any  Court  of  law  or  equity 

in  this  State. 

§  1861.  If  any  guardian  appointed  in  this  State  shall  desire  to 
Kemovai  of  remove  to  another  State  and  carry  his  ward  with  him,  before  re- 

gnardian  ,  r»i' 

and  ward,  movmg  tlio  porson  or  property  of  his  ward,  he  shall,  in  the  proper 
Court  of  his  intended  domicil,  first  comply  with  all  the  conditions 
required  in  the  preceding  Sections  of  a  foreign  guardian,  and  ob- 
tain the  order  of  the  Ordinary  consenting  to  snch  removal. 


CHAPTER    IV. 

MASTER    AND    SERVANT 


Article  1. — Indented  Servants  and  Ai^^or entices'. 
Article  2. — Laborers  in  Factories, 


ARTICLE  I. 


indented  servants  and  apprentices 


Section. 
1862. 
1863. 
1864. 

1865. 
1866, 
1867, 
1868. 


Indenture  of  service. 

Right  of  master. 

Right  of  servant. 

Minors  bound  by  parent. 

By  County  Judge  or  Ordinary. 

Mode  of  indenture. 

Where  filed  and  recorded. 


Section. 

1869.  Minor  need  not  sign. 
1870..  Duties  af  master. 

1871.  Controversies — where  tried. 

1872.  Relation — how  dissolved. 

1873.  Allowance  to  apprentice. 

1874.  Master's  right  of  action. 


§  1862.  Any  person  of  full  age  may  bind  himself  for  a  valua» 
Indenture  f^ie  Consideration  to  anv  citizen  of  this  State  for  a  limited  number 
of  years,  not  exceeding  five ;  \_provided,  the  contract  of  appren- 
ticeship shall  be  made  in  duplicate,  and  witnessed  in  the  same 
manner  as  deeds  :  the  original  shall  be  kept  by  the  master,  and 
the  duplicate  shall  be  filed  and  recorded  either  in  the  office  of  the 
Judge  of  the  County  Court  or  in  the  Ordinary's  office.]  (a) 


(a)  Acts  of  1866,  p.  8. 


PT.  2.--TIT.  2.— CHAP.  4.— Doxaiestic  Relations.  375 


Article  1. — Indented  Servants  and  Apprentices. 


§1863.  The  master  shall  be  entitled  to  his  reasonable  labor  un-    Right  of 
der  his  direction,  and  shall  have  a  right  of  action  against  any 
other  person  who,  with  notice,  shall  employ  such  servant.     If  the 
indented  servant  shall  have  been  imported  by  the  master,  he  shall  Damages. 
recover  damages  at  least  equal  to  double  the  amount  per  month 
for  which  such  indented  person  contracted  to  serve. 

§1864.  Such  indented  person  is  entitled  to  maintenance,  pro-    Eights  of 
tection,  and  humane  treatment ;   and  upon  proof  to  the  Court  in 
which  the  contract  was  filed  and  recorded  that  he  is  denied  either 
of  them,  or  the   consideration  of  his  indenture,   the  Court  shall 
pass  an  order  declaring  the  indenture  revoked  and  annulled. 

§1865.  TAll  minors  may,  by  whichever  parent  has  the  leejal  Parents  may 

'^  ^  */ '      ./  r  to       ]t)ind  out  mi- 

control  of  them,  be  bound  out  as  apprentices  to  any  respectable  norcMidren. 
person  until  they  attain  the  age   of  twenty-one  years,  or  for  a 
shorter  period.]  (a) 

§  1866.  fit  shall  be  the  duty  of  the  Jud2;e  of  the  County  Court,      Judge  of  ^>  Ij 

^  ,  /      ,  °  _  -^  '  Co.  Court  or    <>J  ^ 

or  the  Ordinary,  to  bind  out  in  like  manner  all  minors  whose  pa-  ordinary    ; 

•^  '  ^         may  bind  out 

rents  are  dead,  or  whose  parents  reside  out  of  the   County,  the  ^  °    certain 

^  i-  J  ^  cases.      ,- .  ^, 

the  profits  of  whose  estates  are  insufficient  for  their  support  and  ,     ' 

maintenance  ;  also,  all  minors  whose  parents,  from  age,  infirmity,  ^    .^  "^ 

or  poverty,  are  unable  to  support  them.]  (a)  XL  ^y^ 

§  1867.  rindentures  of  apprenticeship  shall  be  made  in  dupli-  indenturesC 

■-^  ,  -^  ■*  ■'•  ^    ^         '-         — how  made,  f  • 

cate,  and  witnessed  in  the  same  manner  as  deeds,  the  orisrinal  of '"Witnessed    -^ 

,  '  5  &  and  kept. 

which  shall  be  kept  by  the  master.]  (a) 

§  1868.  [The  duplicates  shall  be  filed  and  recorded  either  in 
the  office  of  the  Judge  of  the  County  Court,  or  in  the  Ordinary's 
office.]  (a) 

§  1869.  [It  shall  not  be  necessary  for  the  apprentice  to  sign  the 
indenture  of  apprenticeship.]  (a) 

§  1870.  [It  shall  be  the  duty  of  the  master  to  teach  the  ap- 
prentice the  business  of  husbandry,  house  service,  or  some  other  shaii  teach, 
useful  trade  or  occupation,  which  shall  be  specified  in  the  instru- 
ment of  apprenticeship ;  shall  furnish  him  with  protection,  whole- 
some food,  suitable  clothing,  and  necessary  medicine  and  medical  at- 
tendance ;  shall  teach  him  habits  of  industry,  honesty,  and  mor- 
ality ;  shall  cause  him  to  be  taught  to  read  English  ;  and  shall 
govern  him  with  humanity,  using  only  the  same  degree  of  force  to 
compel  his  obedience  as  a  father  may  use  with  his  minor  child.]  (a) 


< 


(a)  Acts  of  1865-6,  pp.  6,  7,  8. 


376  PT.  2.~TIT.  2.— CHAP.  4.— Domestic  Relations. 

Article  1. — Indented  Servants  and  Apprentices. 

§  1871.   [In  all  controversies  between  a  master  and  his  appren- 
Jurisdiction  tico,  pending  the  existence  of  the  relation,  the  Judge  of  the  County 
Co.  Court  or  Court,  or  the  Ordinary,  may   exercise  jurisdiction,  and  on  com- 
plaint of  either  party,  and  notice  to  the  other,  may  cause  justice 
to  be  done  in  a  summary  manner.     If  the  master  be  in  default,  he 
shall  be  fined,  at  the  discretion  of  the  Court,  not  exceeding  fifty 
dollars  ;  and  if  the  apprentice,  the  Court  may  order  such  correction 
as  the  circumstances  may  demand,  not  extending  to  cruelty.]  (a) 
§  1872.  [By  consent  of  the  parties,  the  Judge  of  the  County 
— h^w^dfs^   Court,  or  the  Ordinary,  may  dissolve   the  relation  at  any  time ; 
ckuT-ed^'^  and  ou  the  death  of  the  master,  the  said  Judge,  or  Ordinary,  may 
either  dissolve  it,  or  substitute  in  place  of  the  deceased  his  legal 
representative,  or  some  member  of  his  family  ;  in  which  event,  the 
person  substituted,  by  filing  a  written  acceptance,  shall  thence- 
forth have  all  the  rights,  and  be  bound  for  all  the  duties  of  the 
original  master.     Dissolution  by  consent,  or  for  the  death  of  the 
master,  shall  be  subject  to  the  sound  discretion  of  the  Judge  of 
the  County  Court,  or  of  the  Ordinary,  as  also  shall  be  the  selec- 
tion of  a  successor  to  the  master  as  above  mentioned ;  but  if  no 
successor  be  designated,   and  his  acceptance  filed  within   three 
months  after  the  death  of  the  master,  then  the  relation  shall  no 
At  instance  lougcr  cxist.     The  Judgc  of  the  County  Court,  or  the  Ordinary, 
maydTssoive  ^^J  ^^^so  dissolvc  the  relation,  at  the  instance  of  the  master,  for 
gross  miscondiict  in  the  apprentice ;  or  at  the  instance  of  the  ap- 
At  instance  p^entice,  or  any  friend  of  his,  for  cruelty  in  the  master,  or  forfail- 
tUe^f^Say^^G  to  fumish  food,  clothing,  medicine,  or  medical  attendance,  or 
dissolve.       |.^^  jeopardy  of  the  good  morals  of  the  apprentice,  by  reason  of 
the  master's  depraved  conduct.]  (a) 

§  1873.  [To  the  master  shall  belong  the  proceeds  of  the  ap- 

Aiiowance  prcntico's  labor ;  but  at  the  expiration  of  his  term  of  service  a 

of  service,    faithful  apprentice  shall  be  entitled  to  a  small  allowance  from  the 

master   with    which    to   begin    life ;    the    amount  to  be    left,  in 

the  first   instance,    to   the  master's  generosity.      If   the  master 

Master  offer-  oflfer  loss  than  ono  hundred  dollars  the  apprentice  may  decline  it, 

an  ^^^  ^.^^  ^^^  master  before  the  Judge  of  the  County  Court,  or  the 

Ordinary ;  and  after  hearing  both  parties  and  their  witnesses,  if 

any,  the  said  Judge,  or  the  Ordinary,  shall  fix  the  sum  to  be  paid, 

increasing  or   diminishing  the  amount  oifered,  according  to  the 

(a)  Acts  of  1865-6,  pp.  6,  7,  8. 


PT.  2.— TIT.  2.— CHAP.  4.— Domestic  Relations.  377 

Article  3. — Laborers  in  Factories. 

merits  of  the  apprentice,  the  means  of  the  master,  and  the  length 
and  fidelity  of  the  service.]  (a) 

§  1874.  [The  master  shall  have  a  right  of  action  against  any  Rightof  ao- 

"  i-  o  o  ./    tion   against 

person  employing  his  apprentice  with  notice  of  the  fact,  and  the  Pf  ^9°  ^^■ 

r  i      ./       o  i  i  7  ploying   ap' 

damages  recovered  shall  not  be  less  than  twenty-five  dollars.]  (a)  prentice. 


ARTICLE  11. 

LABORERS     IN     FACTORIES. 

Section.  ]  Section. 

1875.  Hours  of  labor.  I       1876.  Corporal  punishment. 

§  1875.  The  hojirs  of  labor  by  all  persons  under  twenty-one  Hours  of 
years  of  age,  in  all  co_tton,  woolen,  or  other  manufacturing  es- 
tablishments, or  machine  shops  in  this  State,  shall  be  from  sun- 
rise until  sunset,  the  usual  and  customary  times  for  meals  being 
allowed  from  the  same  ;  and  any  contract  made  with  such  persons 
or  their  parents,  guardians,  or  others,  whereby  a  longer  time  for  contract  for 
labor  is  agreed  upon  or  provided  for,  shall  be  null  and  void,  so 
far  as  relates  to  the  enforcement  of  said  contracts  against  such 
laborers. 

§  1876.  No  boss  or  other  superior  in  such  establishments  shall      corporal 

.    ^.  - — "^      .  "~         --'  I'll  11       punishment. 

mnict  corporal  punishment  upon  such  minor  laborers ;  and  the 
owners  of  such  factory  or  machine  shop  shall  be  directly  liable  for 
all  such  conduct  on  the  part  of  their  employees  ;  and  such  minor 
may  sue  in  his  own  name  for  damages  for  such  conduct,  and  the 
recovery  shall  be  his  own  property,  and  not  belong  to  his  pa- 
rents, 

(a)  Acts  of  1865-6,  pp,  6,  7,  8. 
Q 


378  PT.  2.— TIT.  3.— CHAP.  1.— Other  Relations. 

Article  1. — Partnership — General  Principles. 

TITLE    III. 

OF  RELATIONS  ARISING  FROM  OTHER  CONTRACTS. 


Chapter  1. — Of  Pa7't7ie7'ship. 
Chapter  2. — Of  Debtor  and  Or  editor. 
Chapter  3. — Of  Bailments. 
Chapter  4. —  Of  Principal  and  Surety. 
Chapter  5. — Of  Principal  and  Agent. 


CHAPTER    I. 

OF     PARTNERSHIP. 


Article  1. — General  Principles. 

Article  2. — Mights  and  Liabilities  of  Partners  among  themselves. 
Article  3. — Rights  and  Liabilities  as  to  Third  Persons. 
Article  4, — Limited  Partnershij?. 


ARTICLE  L 


GENERAL     PRINCIPLES. 


Sectiok. 

1877.  How  created. 

1878.  Extent  of  partnership. 

1879.  Open  and  dormant  partner. 

1880.  What  constitutes  a  partnership. 

1881.  Time  of  commencement. 

1882.  Death  of  partner,  etc. 

1883.  Duration  and  dissolution. 


Section. 

1881.  How  it  is  dissolved, 

1885.  Notice  of  dissolution. 

1886.  Effect  of  dissolution. 

1887.  False  partner. 

1888.  Denial  by  defendant. 

1889.  Suits  by  and  against. 

1890.  Executory  bond. 


I  §  1877.  A  partnership  may  be  created  either  by  written  or  parol 

How  created  contract,  Or  it  may  arise  from  a  joint  ownership,  use   and  enjoy- 
ment of  the  profits  of  undivided  property,  real  or  personal. 

§  1878.  As  among  partners,  the  extent  of  the  partnership  is 
Extent  of  determined  by  the  contract  and  their  several  interests.     As  to 

artnership.     ,.,  ,-,  tit  t  i  n    ^     •      • 

third  persons,  all  are  liable  not  only  to  the  extent  oi  their  interest 
in  the  partnership  property,  but  also  to  the  whole  extent  of  their 
separate  property. 


PT.  2.— TIT.  3.— CHAP.  1.— Other  Relations.  379 

Article  1. — Partnership— General  Principles. 


§  1879.  An  ostensible  partner  is  one  whose  name  appears  to  the        Open 

^  ^  -^  *  ^  partner. 

world  as  such,  and  he  is  bound,  though  he  have  no  interest  in  the 

_  .      ,  .  ,  ■  .  .   .  Dormant 

firm.     A  dormant  or  secret  partner  is  one  whose  connection  with  partner. 
the  firm  is  really  or  professedly  concealed  from  the  world. 
U^     §  1880.  A  joint  interest  in  the  partnership  property,  or  a  joint    what  con- 
interest  in  the  profits  and  losses  of  the  business,  constitutes  a  part-  partnership. 
nership  as  to  third  persons.     A  common  interest  in  profits  alone 
does  not. 

§  1881.  If  no  time  is  specified  for  the  commencement  of  the     "Time  ©f 

'^  ^  commence- 

partnership,  it  commences  immediately.  .  °^®°*- 

§  1882.  If  the  contract  specifies  the  term  for  which  the  partner-    Death  of  a 

\  ^  ■"•  partner  as  it 

ship  is  formed,  it  will  continue  for  that  time,  or  till  the  death  of  effects  con- 
one  partner.     If  it  is  desired  to   continue,  notwithstanding  the 
death  of  a  partner,  it  must  be  so  specified. 

§  1883.  If  there  is  no  ao^reement  as  to  the  time  of  continuance,     Duration 

,       ,  ,  .  .  arid    disso- 

the  partnership  is  at  will,  and  may  be  dissolved  at  any  time  by  ^^^^i^^- 
any  partner  on  giving  three  months'  notice  to  his  co-partners. 

§  1884.  Every  partnership  is  dissolved  at  any  time  by  the  mutual    How  n  is 

•^   ^  ^  .  .  "^  *^      .      ,  dissolved. 

consent  of  the  parties,  by  the  death,  insanity,  or  conviction  for 
felony  of  one  of  the  parties,  by  the  marriage  of  2.  feme  sole  partner, 
by  the  extinction  of  the  business  for  which  it  was  formed,  or  by 
such  misconduct  of  either  partner  as  will  justify  a  Court  of  Equity 
to  decree  a  dissolution. 

§  1885.  The  dissolution  of  a  partnership  by  the  retirinsi:  of  an    Notice  of 

""       ~  ~"  ^    ■  i.       v/  ^  o  dissolution. 

ostensible  partner  must  be  made  known  to  creditors  and  to  the 

world.      By  the  retiring  of  a  dormant  partner,  it  must  be  made 

known  to  all  who  had  knowledge  of  his  connection  with  the  firm. 

§1886.  A  dissolution  puts  an  end  to  all  the  powers  and  rights  disfoSoo! 

resulting  from  the  partnership   to  the  partners,  except  for  the  .       '^7 

purpose  of  a  general  account  and  winding  up  the  business.     As  to         / 

third  persons,  it  absolves  the  partners  from  all  liability  for  future 

contracts  and  transactions,  but  not  for  the  transactions  that  are 
past. 

§  1887.  No  partnership  may  lawfully  insert  in  their  firm  name  Fai^ 
or  style  the  name  of  any  individual  not  actually  a  co-partner,  nor 
continue  in  such  firm  name  or  style  the  name  of  a  retired  partner. 
And  each  member  of  a  firm  violating  this  provision  shall  forfeit 
the  sum  of  one  hundred  dollars  for  every  day's  violation,  to  be 
recovered  by  any  person  who  may  prosecute  for  the  same. 

§  1888^  Partners  suing  or  being  sued  in  their  firm  name,  the 


380 


PT.  2.— TIT.  3.— CHAP.  1.— Other  Relations. 


Article  2. — Risrhts  and  Liabilities  of  Partners  amonor  themselves. 


Denial  by  partnership  need  not  be  proved  unless  denied  by  the  defendant, 

defendant.  ,  i         .         ,  ^,     ,  "^ 

on  oath,  upon  jQiea  m  abatement  filed. 

§1889.  Judgments  may  be  entered  up  and  execution  issue  in 
Suits  by  the  name  of  the  firm  or  against  a  firm.     And^service  of  process 

and  against.  o  sr 

on  one  partner  with  a  return  of  'hion  est  inventus''  as  to  the 
others,  shall  authorize  a  judgment  against  the  firm  binding  all  of 
the  firm  assets  and  the  individual  property  of  the  one  served. 
§  1890.  In  all  legal  proceedings,  wherein  it.  becpmes^  necessary 
Executory  for  partners  to  give  bond,  any  one  of  the  partners  may  execute 
such  bond  in  the  firm  name* 


32.03^. 


ARTICLE  11. 

RIGHTS  AND   LIABILITIES   OF   PARTNERS  AMONG   THEMSELVES. 


Section. 

1891.  Interest  of  each. 

1892.  Insolvent  partner. 

1893.  Good  faith  infe7'  se. 

1894.  Power  of  each  partner. 


Section. 

1895.  Introducing  new  partner. 

1896.  Power  of  majority. 

1897.  Surviving  partner. 


§  1891.  Unless  otherwise  provided  in  the  agreement,  partners 
of  ^ic^h^^*^  are  equally  interested  in  all  the  stock  or  property  brought  into 
the  business,  it  matters  not  by  which  partner — are   equally  en- 
titled to  share  the  profits,  and  equally  bound  to  pay  the  losses. 
§  1892.  If  one  of  several  partners  proves  to  be  insolvent,  each 
contribu-  partner  is  bound  to  contribute  according  to  his  interest  to  sustain 

tion  in  case  •"■  f  i     •  • 

of  insolvent  tho  pro  vatct  loss  of  such  insolvent  in  the  debts  of  the  firm. 

partner.  ■'- 

§1893.  The  strictest  good  faith  is  required  among  partners, 
Good  faith  and  that  which  would  not  amount  to  fraud  as  to  third  persons,  may 

inter  ee.  .  .  .  .  .         .  . 

be  such  a  violation  of  this  faith  as  to  justify  a  Court  of  Equity  to 
compel  a  partner  to  give  up  any  advantage  thus  obtained. 

§  1894.  Every  partner  has  a  right  to  examine  into  the  affairs  of 
Power  of  the  firm,  and,  unless  otherwise  ap;reed  to,  have  ioint  possession  of 

each  partner.  .  '  ^  ,  . 

its  effects,  to  collect  and  apply  its  assets,  to  contract  or  otherwise 

bind  the  firm  in  matters  connected  with  its  business,  and  to  exe- 
*  cute   any  writing  or  bond  in  the  course  of  the  business ;  at  no 

time  transgressing  the  privileges  of   other  partners  or  seeking  in 

bad  faith  to  evade  or  violate  their  wishes. 

§  1895.  'No  partner  by  assigning  his  interest  or  otherwise,  can 
Introducing  introducc  a  new  partner  without  the  consent  of  the  others,  unless 

new  partner.  ^  ^  ^ 

such  power  is  reserved  in  the  contract. 


PT.  2.— -TIT.  3.— CHAP.  1.— Other  Relations.  381 

Article  3. — Rights  and  Liabilities  of  Partners  as  to  third  persons. 
§  1896.   Unless  otherwise  stipulated,   a  majority  of  the  partners     Power  of 

,  .      majority. 

must  control  on  any  question  within  the  scope  of  the  partnership 
business  ;  but  outside  of  such  business,  any  partner  may  veto  the 
use  of  the  partnership  assets. 

§  1897.  The  surviving:  partner,   in  case  of  death,  has  the  risrht     surviving 

^  fc>    1  7  y  O       partner. 

to  control  the  assets  of  the  firm  to  the  exclusion  of  the  legal  rep- 
resentatives of  a  deceased  partner,  and  he  is  primarily  liable  to 
the  creditors  of  the  firm  for  their  debts. 


ARTICLE  III. 

EIGHTS  AND   LIABILITIES   OF   PARTNERS  AS    TO   THIRD   PERSONS. 


Section. 

1898.  Secret  stipulations. 

1899.  Bound  by  acts  of  partner. 

1900.  Duty  of  agent. 

1901.  Matters  outside  of  partnership. 

1902.  Lending  money  to  partner. 

1903.  Purchasing  from  partner. 


Section. 

1904.  Endorsement,  etc. 

1905.  Liability  from  fraud  of  one  partner. 

1906.  For  torts  of  partner. 

1907.  Power  after  dissolution. 

1908.  Disposition  of  assets,  etc. 

1909.  Garnishment  on  partner's  interest. 


§1898.  Third  persons  are  bound  by  no  stipulations  among  the  Secret  stip- 
partners  themselves,  unless  actual  notice  of   such  stipulation  be  /' 

proven  prior  to  their  action. 

§1899.  All  the  partners  are  bound  by   the  acts  of  anyone,     Bound  by 

.   ,  ,  .  ./  '  acts  of  part- 

within  the  legitimate  business  of  the  partnership,  until  dissolution  ^'^^^ 

or  the  commencement  of  legal  process  for  that  purpose,  or  express  uo?i^e?*°^ 

notice  of  dissent  to  the  person  about  to  be  contracted  with. 

§  1900.  An  agent^  of  the  partnership  is  generally  bound  to  obey      Duty  of 
each  partner.     If  contradictory  instructions  are  given  by  different 
partners,  he  is  not  bound  to   obey  either,   but  should  act  for  the 
best  interest  of  the  partnership. 

§1901.  Third  persons  acting  with   a  partner  in  a  matter  not  Matters  out- 

...  ,  I'll  t'-i  •!  .  ^^^^  ^^  part- 

legitimately  connected  with  the  partnership,  have  no  right  against  nership. 
the  firm  or  any  other  member. 

§  1902.  A  person  lending  money  to  a  partner  for  the  firm  is  not     Lending 
bound  to  see  to  its  application,  but  if  he  knows,  or  has  reasonable  partner. 
grounds  to  suspect  that  it  is  intended  to  be  applied  to  other  pur- 
poses than  the  business  of  the  firm,  he  can  not  recover  it  from  the 
partnership. 

-     §  1903.  Third  persons  acquire  no  title  to  partnership  assets  by  Purchasing 
purchase  from  one  member,  when  notice  or  a  reasonable  ground  of  '^^^^^^^^^ 


882 


PT,  2.— TIT.  3.— CHAP.  1.— Other  Relations. 


Article  3. — Rights  and  Liabilities  of  Partners  as  to  third  persons. 

suspicion  is  known  to  them  that  the  partner  is  misapplying,  or 
seeks  to  misapply  such  assets. 

§  1904.  A  guaranty  or  an  accommodation  endorsement  is  not 


Endorse 


W^ 


jnents,  etT"  withiu  the  legitimate  business  of  ordinary  partnership. 

§  1905.  All  the  partners  are  responsible  to  innocent  third  per- 
Liabiiity  for  gons  for  damao;es  arisins;  from  the  fraud  of  one  partner  in  matters 

fraud  of  one  .  °  *  ,  ^ 

partner.       relating  to  the  partnership. 

§  1906.  Partners  are  not  responsible  for  torts  committed  by  a 
of  partner,  co-partnor.  i^  or  the  negligence  or  torts  oi  their  agent  or  servant 
Of -servant,  they  are  responsible  under  the  like  rules  with  individuals. 

§  1907.  After  dissolution,  a  partner  has  no  power  to  bind  the 
Power  after  firm  bv  a  new  contract,  or  to  revive  -one  already  for  any  cause 

dissolution.  •'  -  '  .  ... 

extinct,  nor  to  renew  or  continue  an  existing  liability,  nor  change 
its  dignity  or  its  nature. 

§  1908.  When  a  partnership  is  insolvent,  and  one  of  the  partners 
Disposition  is  dcceascd  insolvent,  the  creditors  of  the  partnership,  in  equal 

of   asset  s  ,        '  .  -^   .  r?  ^ 

among  cred-  cleffreo  witli  individual  creditors,  can  not  claim  to  share  in  the 

iters.  o     ^  '  ^  ^ 

individual  assets  of  the  deceased  partner  until  the  individual  cred- 
itors shall  have  first  received  upon  their  debts  such  a  per  centage 
from  the  individual  assets  as  such  partnership  creditors  have 
received  from  the  partnership  assets. 

§  1909.     The  interest  of  a  partner  in  the  partnership  assets 

ment    ?n  ^^^J  ^^  reached  by  a  judgment  creditor  by  process  of  garnishment 

fereet?'^^^  scrvcd  ou  the  firm,  and  shall  not  be  subject  to  levy  and  sale.    The 

lien  on  such  interest  shall  attach  from  the  date  of  the  judgment 

a  ^       against  the  partner. 

ARTICLE  IV. 

LIMITED     PARTNERSHIP. 


MO     ^     Garnisli- 


Section. 

1910.  Limited  partnerships. 

1911.  How  constituted. 

1912.  Business — by  whom  conducted. 

1913.  Certificate — specification  of. 

1914.  Acknowledgment  of. 

1915.  Certificate  and  powers— how  filed. 

1916.  Affidavit  of  general  partners. 

1917.  Informal  partnerships. 

1918.  Publication. 

1919.  Evidence  of  publication. 

1920.  Renewal  or  continuance  of. 

1921.  Dissolution  of. 


Section. 

1922.  Names  of  the  firm. 

1923.  Suits^how  brought. 

1924.  Stock  not  to  be  withdrawn. 

1925.  Interest  and  profits. 

1926.  Special  partner,  etc. 

1927.  Liability  of  general  partners. 

1928.  Guilty  of  fraud — how  punished. 

1929.  Fraudulent  assignments. 

1930.  General  or  special  partners. 

1931.  Liability  of  special  partners. 

1932.  Not  to  claim  credit — when. 

1933.  Dissolution— how  effected. 


1910.  Limited  partnerships  for  the  transaction  of  any  mer- 


PT.  2.— TIT.  3.— CHAP.  1.— .Othei^  Relations. 


Article  4. — Limited  Partnership. 


cantile,  commercial,  mechanical,  manufacturino;,  mining,  or  a2;ri-     By  whom 

'  ,  :      .  .  °  o7  fc3         formed— for 

c'dltural  business  within  this  State,  may  be  formed  by  two  or  more  ^^lat  pur- 

•'^  »/  >• — -  -  ./  ^  poses. 

persons  upon  the  terms,  with  the  rights  and  powers  and  subject  to 
the  conditions  and  liabilities  herein  prescribed ;  but  the  provisions 
of  this  act  shall  not  be  construed  to  authorize  any  such  partnership 
for  the  purpose  of  banking  or  making  insurance. 

§1911.  Such  partnerships  may  consist  of  one  or  more  persons,  How  con- 
who  shall  be  called  general  partners,  and  who  shall  be  jointly  and 
severally  responsible  as  general  partners,  and  of  one  or  more  per- 
sons who  shall  contribute  in  actual  cash  a  specific  sum  as  capital 
to  the  common  stock,  who  shall  be  called  special  partners,  and 
who  shall  not  be  liable  for  debts  of  the  partnership  beyond  the  fund 
so  contributed  by  him,  or  them,  to  the  capital,  except  as  herein- 
after provided. 

§  1912.  The  general  partners  only  shall  be  authorized  to  trans-   Business— 

'n         1  1  •  1  1  •      1      T  by    whom 

act  busmess,  and  to  sign  lor  the  partnership,  and  to  bind  the  same,  transacted. 
§  1913.  Persons    desirous    of  formins;    such   partnership   shall     Specifica- 

1  n  •  1  1  1  •        n  tionsofcer- 

make,  and  severally  sign  by  themselves,  or  attorney  m  fact,  a  tificate. 
certificate  which  shall  contain — 

1.  The  name  of  the  firm  under  which  such  partnership  is  to  be 
conducted. 

2.  The  general  nature  of  the  business  intended  to  be  transacted. 

3.  The  names  of  all  the  general  and  special  partners  inserted 
therein,  distinguishing  which  are  general  and  which  are  special 
partners,  and  their  respective  places  of  residence. 

4.  The  amount  of  capital  which  each  special  partner  shall  have 
contributed  to  the  common  stock. 

5.  The  period  at  which  the  partnership  is  to  commence,  and  the 
period  at  which  it  shall  terminate ;  and  when  made  by  such  attor- 
ney in  fact,  the  power  of  the  attorney  duly  authenticated  shall  bo 
recorded  along  with  such  certificate. 

§1914.  The  certificates  shall  be  acknowledged  by  the  several      Howac- 

i  T     .  -PIP  T     ^        knowledged. 

persons  signing  the  same,  or  their  attorney  m  lact,  beiore  a  Judge 
of  the  Superior  or  Inferior  Court,  or  a  Justice  of  the  Peace,  or 
Notary  Public,  and  such  acknowledgment  shall  be  certified  by  the 
ofiicer  before  whom  the  same  is  made. 

§1915.  The  certificate  and  power  of  attorney  in  fact,  so  ac-  certificates 
knowledge^d  and  certified,  shall  be  filed  in  the  office  of  the  Clerk  o?  atCeys 
of  the  Superior  Court  of  the  County  in  which  the  principal  place  where  med. 
of  business  of  the  partnership  shall  be  situated,  and  also  be  re- 


384  PT.  2.-~TIT.  3.-^CHAP.  1.— Other  Relations. 


Article  4. — Limited  Partnership. 


corded  by  him  at  large  in  a  book  to  be  kept  for  that  purpose  open 
to  public  inspection.  If  the  partnership  shall  have  places  of  busi- 
ness situated  in  different  Counties,  a  transcript  of  the  certificate, 
and  power  of  attorney  in  fact,  and  of  acknowledgment  thereof, 
duly  certified  by  the  Clerk  in  whose  ofiice  it  shall  be  filed,  under 
his  official  seal,  shall  be  filed  and  recorded  in  like  manner  in  the 
office  of  the  Clerk  of  the  Superior  Court  in  every  such  County; 
and  the  Clerk  for  each  and  every  registry  required  by  this  act 
shall  be  entitled  to  the  sum  of  five  dollars. 

§  1916.  At  the  time  of  filing  the  original  certificate,  with  the 
Affidavit,    evidence  of  the  acknowledgment  thereof,  as  before  directed,  an 
affidavit  or  affidavits  of  the  several  general  partners  shall  also  be 
filed  in  the  same  office,  stating  that  the  suras  specified  in  the  cer- 
tificate to  have  been  contributed  by  each  of  the  special  partners 
to  the  common  stock  have  been  actually  and  in  good  faith  paid  in 
cash,  and  a  certified  copy  of  such  certificate,  power  of  attorney, 
and  affidavits,  shall  be  evidence  in  all  Courts  and  places  whatever. 
§  1917.  No  such  partnership   shall   be   deemed  to  have  been 
Informal  formcd  uutil  such  a  certificate  as  is  herein  mentioned  shall  have 
par  ners  ips  -^^^^  made,  acknowledged,  filed  and  recorded,  nor  until  an  affi- 
davit shall  have  been  filed  as  above'  directed ;  and  if  any  false 
statement  be  made  in  such  certificate,  or  affidavit,  or  if  such  part- 
nership business  be  commenced  before  such  certificate  or  affidavit 
is  filed,  all  the  persons  interested  in  such  partnership  shall  be  lia- 
ble for  all  the  engagements  thereof  as  general  partners. 

§  1918.  The  partners  shall  publish  the  terms  of  the  partnership, 
How  pub-  when  registered,  for  at  least  six  weeks  immediately  after  such 
Q'  registry,  m  one  newspaper  m  the  County  m  which  the  place  oi 

^     .  business  is  situated,  and  in  one  newspaper  in  the  city  of  Milledge- 

^A  ville.     If  no  newspaper  should  be  published  in  the  County  in 

which  the  business  is  to  be  transacted,  the  notice  shall  be  pub- 
lished in  all  the  newspapers  in  the  city  of  Milledgeville,  as  before 
required ;  and  if  such  publication  be  not  made  within  two  months 
■^  from  the  filing  of  such  certificate  and  affidavit,  the  partnership 

shall  be  deemed  general. 

§  1919.  The  affidavits  of  the  publication  of  such  notice  by  the 
Evidence  of  printers,   publishers  or  editors  of  the  newspapers  in   which  the 

publication.  ,,-,,  /-ii/» 

same  shall  be  published,  may  be  filed  in  the  office  of  the  Clerk  of 
the  Superior  Court  in  which  the  certificate  has  been  filed  and  shall 
be  evidence  of  the  facts  therein  contained. 


PT.  2.— TIT.  3.— CHAP.  1.— Other  Relations.  385 

Article  4. — Limited  Partnerships. 


§1920.  Every  renewal  or  continuance  of  such  partnership  be-  Renewal  or 

*'        ^  ^  _  \  continuance 

yond  the  time  originally  fixed  for  its  duration  shall  be  certified,  of  partnei-- 
acknowledged  and  recorded,  and  an  afiidavit  of  a  general  partner 
be  made  and  filed,  and  notice  be  given  in  the  manner  herein 
required  for  its  original  formation ;  and  every  such  partnership 
which  shall  be  otherwise  renewed  or  continued  shall  be  deemed  a 
general  partnership. 

§  1921.  Every  alteration  which  shall  be  made  in  the  names  of  Alterations 

^  ,  ^  of  names, 

the  partners,  in  the  nature  of  the  business,  or  in  the  capital  or  etc.,  deemed 

^  '  ^  ....  a  dissolution 

shares  thereof,  or  in  any  other  matter  specified  in  the  original 
certificate,  shall  be  deemed  a  dissolution  of  the  partnership ;  and 
every  such  partnership  which  shall  in  any  manner  be  carried  on 
after  any  such  alteration  shall  have  been  made,  shall  be  deemed  a 
general  partnership,  unless  renewed  as  a  special  partnership  ac- 
cording to  the  provision  of  the  last  Section. 

§  1922.  The  business  of  the   partnership   shall  be   conducted     Name 
under  a  firm  in  which  the  names  of  the  general  partners  only  shall 
be  inserted  without  the  addition  of  the  word  "company,"  or  any 
other  general  term ;   and  if  the  name  of  any  special  partner  shall 
be  used  in  such  firm,  he  shall  be  deemed  a  general  partner. 

§  1923.  Suits  to  be  brought  by  any  partnership  to  be  formed  Suits. 
under  this  Code,  shall  be  in  the  name  or  names  of  the  general 
partners  only,  and  suits  against  such  partnership  shall  be  brought 
against  the  general  partners  only,  except  in  cases  where  the  spe- 
cial partner  shall  be  rendered  liable  as  general  partners,  in  which 
cases  suits  may  be  brought  against  all  the  partners  jointly  or  sev- 
erally, or  any  one  or  more  of  the  special  partners  may  be  sued  in 
the  same  action  with  the  general  partners. 

§  1924.  No  part  of  the  sum  which  any  special  partner  shall        Capital 

1  -I  1  iTi'11  11'        stock  not  to 

have  contributed  to  the  capital  stock  shall  be  withdrawn  by  him  be  with- 

,■*•       ,  .    ,  *^  drawn. 

or  paid  or  transferred  to  him  in  the  shape  of  dividends,  profits  or 
otherwise,  at  any  time  during  the  continuance  of  the  partnership, 
but  any  partner  may  annually  receive  lawful  interest  on  the  sum  so 
contributed  by  him,  if  the  payment  of  such  interest  shall  not  re- 
duce the  original  amount  of  such  capital ;  and  if,  after  the  pay- 
ment of  such  interest,  any  profits  shall  remain  to  be  divided,  he 
may  also  receive  his  portion  of  such  profits,  but  shall  not  be  liable 
for  any  debts  previously  contracted  by  the  general  partners. 
§  1925.  If  it  shall  appear  that,  by  the  payment  of  interest  or 
25 


386  PT.  2.- TIT.  3.— CHAP.  1.— Other  Relations. 


Article  4. — Limited  Partnerships. 


Interest  profits  to  any  special  partner,   the  original  capital  has  been  re- 

etc.  '  duced,  or  the  firm  shall  be  unable  to  pay  its  debts,  the  partner 

receiving  the  same  shall  be  bound  to  restore  the  interest  or  profits 

received  by  him  necessary  to  make  good  his  original  share  of  the 

original  stock. 

§  1926.  A  special  partner  may,  at  any  time,  examine  into  the 

Prmieges  state  and  progress  of  the  partnership  concerns,  and  may  advise  as 

ties  of  spe  ^0  their  management,  but  he  shall  not  transact  any  business  on  ac- 

cial  partners  o  '  •^ 

count  of  the  partnership,  nor  be  employed  for  that  purpose  as 
agent  or  otherwise.  If  he  shall  interfere  contrary  to  these  provi- 
sions, he  shall  be  deemed  a  general  partner ;  but  he  may  act  as 
the  attorney  or  counselor  at  law,  or  in  equity,  for  the  partnership, 
without  being  liable  to  become  a  general  partner. 

§  1927.  The  general  partners  shall  be  liable  to  account  to  each 
Liability  of  other,  and  to  the  special  partners  for  their  manaaiement  of  the 

general  part-  ^  ^  ^^  ° 

ners.  busiucss  of  the  firm,  both  in  law  and  equity,  as  other  partners  are 

now  by  law  and  equity. 

§  1928.  Every  partner  who  shall  be  guilty  of  any  fraud  in  the 
Partners  affairs  or  business  of  the  partnership,  shall  be  liable,  civilly  to  the 

guilty   of  .     .  ,  .  . 

fraud,  etc.  party  injured,  to  the  extent  of  his  damage,  and  shall  also  be  liable 
to  an  indictment  for  a  misdemeanor,  punishable  by  fine  or  impris- 
onment, or  both,  at  the  discretion  of  the  Superior  Court,  by  which 
he  shall  be  tried. 

§  1929.  Every  sale,  assignment,  or  transfer  of  any  of  the  prop- 
Frauduient  erty  or  efifects  of  such  partnership,  made  by  such  partnership  when 

assignments  '^  .  .  .  "     . 

invalid.  insolvcnt,  or  in  contemplation  of  insolvency,  or  after  or  in  con- 
templation of  the  insolvency  of  any  partner,  with  the  intent  of 
giving  a  preference  to  any  creditor  of  such  partnership  or  insol- 
vent partner  over  other  creditors  of  such  partnership,  and  every 
judgment  confessed,  lien  created,  or  security  given  by  such  part- 
nership under  the  like  circumstances,  and  with  the  like  intent, 
shall  be  void  as  against  the  creditors  of  such  partnership. 

§  1930.  Every  such  sale,   assignment  or  transfer  of  any  of  the 
By  gener-  property  or  effects  of  a  sreneral  or  special  partner,  who  may  have 

al  or  special  ^      ^        '^  o  r  r  ?  ./ 

partners,  bccome  liable  as  a  general  partner,  made  by  such  general  or  spe- 
cial partner  when  insolvent  or  in  contemplation  of  insolvency,  or 
after  or  in  contemplation  of  the  insolvency  of  the  partnership, 
with  the  intention  of  giving  to  any  creditor  of  his  own,  or  of  the 
partnership,  a  preference  over  creditors  of  the  partnership  ;  every 


PT.  2.— TIT.  3.— CHAP.  1.— Other  Relations.  887 


Article  4. — Limited  Partiierships. 


w 


Judgment  confessed,  lien  created,  or  security  given  by  any  such 
partner  under  the  like  circumstances,  and  with  the  like  intent, 
«hall  be  void  as  against  the  creditors  of  the  partnership. 

§  1931.  Any  special  partner  who  shall  violate  any  provision  of  Liability  of 

^  S       .  special  part- 

the  two  last  preceding  Sections,  or  who  shall  concur  in,  or  assent  ners,  etc. 
to  any  such  violation  by  the  partnership,  or  by  any  individual  part- 
ner, shall  be  liable  as  a  general  partner. 

§  1932.  In  case  of  the  insolvency  or  bankruptcy  of  the  partner-  special part- 
ship,  no  special  partner  shall,  under  any  circumstances,  be  allowed 
to  claim  as  a  creditor  until  the  claims  of  all  the  other  creditors  of 
the  partnership  shall  be  satisfied. 

§  1933.  No  dissolution  of  such  partnership,  by  the  acts  of  the  .  Dissoiu 
parties,  shall  take  place  previous  to  the  time  specified  in  the  cer-  effected 
tificate  of  its  renewal,  until  a  notice  of  such  intended  dissolution 
shall  have  been  filed  and  recorded  in  the  Clerk's  office  in  which 
the  original  certificate  was  recorded,  and  published  at  least  once  a 
a  week  for  four  weeks  in  a  newspaper  printed  in  iach  of  the  Coun- 
ties where  the  partnership  has  places  of  business  ;  but  if  no  news- 
paper be  printed  in  such  Counties,  then  the  notice  shall  be  pub- 
lished for  four  weeks  in  all  the  newspapers  in  the  city  of  Milledge- 
ville,  which  notice  shall  be  signed  by  all  the  partners,  or  their  rep- 
resentatives ;  provided,  that  nothing  herein  contained  shall  be  so 
construed  as  to  affect  the  collection  of  any  demand  against  either 
of  the  special  partners  which  may  have  been  contracted  previously 
to  the  commencement  of  such  special  partnership. 


CHAPTER    II. 

DEBTOR    AND    CREDITOR 


Article  1. — G-eneral  Principles. 
Article  2. — Acts  Void  Against  Creditors. 
Article  3. — Mortgages  and  other  Liens. 
Article  4. — Insolvent  Debtors. 
Article  5. — Interest  and  Usury, 


388 


PT.  2.— TIT.  3.--CHAP.  2.-0thee  Relations. 


Article  1. — Debtor  and  Creditor— O  eneral  Principles. 


ARTICLE  I. 


GENERAL    PRINCIPLES; 


Section.  * 

1934.  Relation  of  debtor  and  creditor. 

1935.  Rights  of  Creditors  favored. 

1936.  Equitable  assets. 

1937.  Attacking  judgments. 


Section. 

1938.  Pursuing  two  remedies. 

1939.  Compulsory  election. 

1940.  Obligations  in  writing. 

1941.  Exceptions. 


§  1934.  Whenever  one  person,  by  contract  or  by  law,  is  liable 

Eeiaiion  of  and  bouncl  to  pay  to  another  an  amount  of  money,  certain  or  un- 

creditor.      Certain,  the  relation  of  debtor  and  creditor  exists  between  them. 

§  1935.  The  rights  of  creditors  should  be  favored  by  the  Courts, 

Eights  of  and  every  remedy  and  facility  afforded  them  to  detect,  defeat  and 

Tored.         annul  any  effort  to  defraud  them  of  their  just  rights. 

I  7  0.936.  Courts   of  Equity   should  assist   creditors  in  reaching 


y*.  4»      assets. 


Equitable  equitable  assets  in  every  case  where  to  refuse  interference  would 
jeopard  the  collection  of  their  debts. 

§  1937.   Creditors  may  attack  as  fraudulent  a  judgment  or  con- 
Attacking  veyance,  or  any  other  arrangement  interfering  with  their  rights, 
either  in  law  or  in  equity. 

§  1938.  The  creditor  can  not  pursue  the  person  and  property  of 
Pm-suing  the  debtor  at  the  same  time,  except  in  cases  specially  provided  for ; 

two     reme-  i     n    i  •  i 

dies.  but  the  process  last  sued  out  shall  be  void. 

§  1939.  As  among  themselves,  creditors  must  so  prosecute  their 
Compulse-  own  rights  as  not  unnecessarilv  to  leopard  the  rights  of  others : 

ry  election.  \  .  J  J      r  to 

hence^  a  creditor  having  a  lien  on  two  funds  of  the  debtor  equally 
accessible  to  him,  will  be  compelled  to  pursue  the  one  on  which 
other  creditors  have  no  lien. 

§  1940.  To  make  the  following  obligations  binding  on  the  prom- 
obiigations  iger  the  promise  must  be  in  writing,  signed  by  the  party  to  be 

wWeb  must  — — —*^ •        v    ..-  o'       c  J  l         J 

beinwiiting  charged  therewith,  or  some  person  by  him  lawfully  authorized — 
viz:        /  ^/y^..v'tlLl   t*.  K^ii^   Cidf-A^  ^  ^T^  i 

1.  A  promisejby  an  executor,  administrator,  guardian,  or  trus- 
tof^t?^^^^'  *®®  ^^  answer  damages  out  of  his  own  estate. 

2.  A  promise  to  answer  for  the  debt,  default,  or  miscarriage  of 

To  pay  debt  xi 

of  another.      anOtUCl. 

Marriage-        3.  Any  agreement  made  upon  consideration  of  marriage,  except 

considera-  •  ,  •    i  •,  •      ^     r-  •  i     i 

tion.  marriage  articles  as  herein  beiore  provided. 

4.  Any  contract  for  sale  of  lands,  or  any  interest  in,  or  concern- 

Baleofland.  ing  them. 


TT.  2.— TIT.  3.— CHAP.  2.— Other  Eelations.  389 


Article  2, — Acts  Void  a.2:aiQSt  Creditors. 


5.  ^ny  agreement  (except  contracts  with  overseers)  that  is  not  AgreemeDts 
to  be  performed  within  one  year  from  the  making  thereof.  perform- 

^  ^  *'  *-'  _  ed  in  a  year. 

6.  AnYpromise  to  revive  a  debt  barred  by  the  acts  of  limita-  New  prom- 

> — "^  ■'"•*- — — —  ise  to  revive 

tlOn.  a  debt. 

7.  AajLcontraet  for  the  sale  of  goods,  wares,  and  merchandise  Saie  of  goods 
in  existenc-e,  or  not  in  esse,  to  the  amount  of  fifty  dollars  or  more,  dollars, 
except  the  buyer  shall  accept  part  of  the  goods  sold  and  actually 
receive  the  same,  or  give  something  in  earnest  to  bind  the  bargain, 

or  in  part  payment. 

§  1941.  The  foregoing  Section  does  not  extend  to  the  following  Exceptions. 
-<jases — viz : 

1.  When  the  contract  has  been  fully  executed.  Executed 

2.  Where  there  has  been  performance  on  one  side,  accepted  by     perform- 
the  other  in  accordance  with  the  contract.  side! 

3.  Where  there  has  been  such  part  performance  of  the  contract      Partper- 

^  ^  ^  formance 

as  would  render  it  a  fraud  of  the  party  refusing  to  comply  if  the  amounting 
Court  did  not  compel  a  performance. 


ARTICLE   U. 

ACTS    VOID    AGAINST    CREDITORS. 

Sections  J  Sectio??. 

1942.  Void  £,ets.  .«       .-^       '       1943.  Legal  preference. 

§1942.  The  following  acts  by  debtors  shall  be  fraudulent  in  void  acts- 
law  against  creditors,  and  as  to  them  null  and  v^oid — -viz  : 

1.  [Every  assignment  or  transfer  by  a  debtor,  insolvent  at  the       Aesjgn- 
time,   of  real  or  personal  property,  or  choses  in   action  of  any  when, 
•description  to  any  person,  either  in  trust  or  for  the  benefit  of,  or 

in  behalf  of  creditors,  where  any  trust  or  benefit  is  reserved  to  the 
assignor  or  any  person  for  him.]  (a). 

2.  Every  conveyance  of  real  or  personal  estate  by  writino;  or  Convey&nce 

1  •  1  1         1  .         .     1  1  .  todelay. 

.otherwise,  and  every  bond,  suit,  judgment,  and  execution,  or  con- 
tract of  any  description,  had  or  made  with  intention  to  delay  or 
defraud  creditors,  and  such  intention  known  to  the  party  taking ; 
a  bona  fide  transaction  on  a  valuable  consideration,  and  without 
notice  or  grounds  for  reasonable  suspicion,  shall  be  valid. 

3.  Jjvery  voluntary  deed  or  conveyance,  not  for  a  valuable  con- 

/(a)  Acts  of  1865-6,  p.  29. 


390    PT.  2.— TIT.  3.— CHAP.  2.— ART.  3.— Other  Relations. 


Section  1. — Mortgages. 


Yoiuntary  sideratioD,  made  by  a  debtor  insolvent  at  the  time  of  sucb  con- 
conveyance. 

veyance. 

§  1943.  A  debtor  may  prefer  one  creditor  to  another,  and  to 

Legal  pre-  that  end  he  may  bona  fide  give  a  lien  by  mortgage  or  other  legal 

means,  or  he  may  sell  in  payment  of  the  debt,  or  he  may  transfer 

•     negotiable  papers  as  collateral  security,  the  surplus  in  such  cases- 

not  being  reserved  for  his  own  benefit  or  tha^.  of  any  other  favored 

creditor,  to  the  exclusion  of  other  creditors. 


ARTICLE  IIL 

OF    MORTGAGES    AND    OTHER    LIENS. 


Section  1. — 3Iortgages. 
Section  2. — Other  Liens, 


SECTION    I. 


What  is  a 
mortgage, 
§tc. 


Form  and 

execution. 


MORTGAGES. 


Section. 

1944.  What  is  a  mortgage,  etc. 

1945.  Form  and  execution. 

1946.  Registry. 

1947.  Effect  of  failure  to  record. 

1948.  How  admitted  in  evidence. 

1949.  Defective  record. 

1950.  Record  not  in  time. 

1951.  Probate  of  record. 


Section. 

1952.  Tacking. 

1953.  Mortgage  to  sureties. 

1954.  Redemption  in  ten  years; 

1955.  Debts  due  by  installments. 

1956.  Several  distinct  mortgages, 

1957.  Claiming  proceeds  of  sale. 

1958.  Purchasers  gLving  bond,  etc. 


§  1944.  A  mortgage  in  this  State  is  only  a  security  for  a  debt^ 
and  passes  no  title.  It  may  embrace  all  property  in  possession^ 
or  to  which  the  mortgager  has  the  right  of  possession  at  the  time,, 
or  may  cover  a  stock  of  goods,  or  other  things  in  hulk  but  chang- 
ing in  specifics,  in  which  case  the  lien  is  lost  on  all  articles  dis- 
posed of  by  the  mortgager  up  to  the  time  of  foreclosure,  and  at- 
taches on  the  purchases  made  to  supply  their  plaoe. 

§  1945.  No  particular  form  is  necessary  to  constitute  a  mort- 
gage.  It  must  clearly  indicate  the  creation  of  a  lien,  specify  the 
debt  to  secure  which  it  is  given,  and  the  property  upon  which  it 
is  to  take  effect.  It  must  be  executed  in  the  presence  of,  and  at- 
tested by,  or  proved  before  a  ISTotai-y  Public  or  Justice  of  ar^j 


PT.  2.— TIT.  3.— CHAP.  2.— ART.  3.— Other  Relations.     391 

•  Section  1. — Mortgages. 

Court  in  this  State,  or  a  Clerk  of  the  Superior  Court,  (and  in  case 
of  real  property  bj  one  other  Tvitness,)  and  recorded  within  three 
months  from  its  date. 

§  1946.  Mortgages  on  realty  must  be  recorded  in  the  County  Registry. 
where  the  land  lies ;  on  personalty,  in  the  County  where  the  mort- 
gager resided  at  the  time  of  its  execution,  if  a  resident  of  this 
State.  If  a  non-resident,  then  in  the  County  where  the  mort- 
gaged property  is.  If  a  mortgage  be  executed  on  personalty, 
not  within  the  limits  of  this  State,  and  such  property  is  after- 
wards brought  within  the  State,  the  mortgage  shall  be  recorded 
according  to  the  above  rules  within  six  months  after  such  property 
is  so  brought  in. 

§  1947.  Mortgages  not  recorded  within  the  time  required  remain      Effect  of 

"  <^    o  i-  ^  failure  to  re- 

valid  as  against  the  mortgager,  but  are  postponed  to  all  other  liens  cord- 
created  or  obtained,  or  purchases  made  prior  to  the  actual  record 
of  the  mortgage.  If,  however,  the  younger  lien  is  created  by 
contract,  and  the  party  receiving  it  has  notice  of  the  prior  unre- 
corded mortgage,  or  a  purchaser  has  the  like  notice,  then  the  lien 
of  the  older  mortgage  shall  beheld  good  against  them. 

§  1948.  Mortgages,  when  duly  executed  and  recorded,  shall  be      How  ad- 

1    .      -.  .        .11       1  1  .  Ill  ™^"<^^     i" 

admitted  m  evidence  under  the  same  rules  as  registered  deeds.        evidence, 

§  1949.  A  mortgage  recorded  in  an  improper  office,  or  without     Dei-ective 

o    o  r      r  7  record. 

due  attestation  or  probate,  or  so  defectively  recorded  as  not  to 
give  notice  to  a  prudent  inquirer,  shall  not  be  held  notice  to  sub- 
sequent bona  fide  purchasers  or  younger  liens.  A  mere  formal 
mistake  in  the  record  shall  not  vitiate  it. 

§  1950.  The    due  record  of  a  mortgage,  though  not  made  in  Eecord  not 

1  .       "  •  .  b    o    5  1  n      1       in  time. 

the  time  prescribed,  is  notice  from  the  time  of  record  to  all  the 
world. 

§1951.  All  the  rules  prescribed  for  the  probate  of  deeds  to      Probate 

111  1  .  11-  ^    o  .for  record. 

land,  where  the  witnesses  are  dead,  insane,  or  removed  irom  the 
State,  or  to  the  acknowledgment  before  or  attestation  by  consuls 
or  commissioners,  shall  apply  to  the  probate  of  mortgages. 
.§  1952.  There  shall  be  no  tacking  of  mortgages  in  this  State.     Tacking. 
§  19.53.  Mortgages  may  be  taken  by  sureties  and  guarantees  to     Mortgage 

°    °  ,  *^  "^  °  to  sureties. 

indemnify  them  against  loss. 

§  1954.  If  the  possession  of  the  property  is  given  to  the  mort-  Eedemption 

,^  ,  1  ,  .  .   1  .  in  ten  years. 

gagee,  the  mortgager  may  redeem  at  any  time  withm  ten  years 
from  the  last  recognition  by  the  mortgagee  of  such  right  of  re- 
demption. 


392    PT.  2.— TIT.  3.— CHAP.  2.— ART.  3.— Other  Relations. 


iSection  1. — Mortgages. 


§  1955.  If  the  mortgage  is  given  to  secure  several  debts  falling 
Debts  due  due  at  different  times,  the  mortojac'ee  may  foreclose  when  the  first 

by     install-  n      i     V,  .,?  -i      i 

ments.         Dccomes  duc,  and  the  Court  will  control  the  surplus  so  as  to  pro- 
tect the  lien  created  for  the  debts  not  due. 

§  1956.  So,  if  there  be  several  mortgages  of  equal  date  or  em- 
severai  dis-  braccd  in  the  same  mortgage,  and  one  forecloses,  the  Court  will 
gages.         control  the  proceeds  of  the  sale  to  distribute  to  the  several  mort- 
gagees according  to  their  claims. 

§  1957.   Property  mortgaged  may  be  sold  under  other  process, 
Claiming  subjcct  to  the  lien  of  the  mortgage.    If  the  mortgage  is  foreclosed, 

proceeds    """ 


of 


sales. 


the  mortgagee  may  place  his  execution  in  the  hands  of  the  officer 

of  the  law  making  the  sale,  and  cause  the  title,  unincumbered, 

to  be  sold,  and  claim  the  proceeds  according  to  the  date  of  his  lien. 

§  1958.  Purchasers   at  public  sales  of  property  subject  to  the 

Purchas-  lien  of  a  mortgage,  shall  give  bond   and  security  in  double  the 


ers      giving 


bond  to  re-  valuc  thcrcof  to  the  Tofficer  making  the  sale,  conditioned  not  to  re- 
move the  property  out  of  the  State,  and  for  its  forthcoming  to  an- 
swer to  the  said  lien ;  provided^  the  mortgagee,  or  his  agent,  files 
with  the  officer,  prior  to  the  sale,  an  affidavit  of  the  amount  due 
on  such  mortgage,  and  that  he  apprehends  the  loss  of  said  prop- 
erty unless  such  bond  be  taken.  On  failure  to  give  such  bond, 
the  property  shall  be  resold  at  the  risk  of  the  purchaser. 


SECTION    II. 


OTHER     LIENS. 


Section. 


1959.  Lien  of  mechanics. 

1960.  Notice  of  other  liens. 

1961.  Lien  attaching  to  proceeds  of  sale. 

1962.  Trial  of  issue. 

1963.  Proceedings  on  part  of  mechanic. 

1964.  How  sued. 

1965.  Effect  of  possession. 

1966.  Lien  of  machinists. 

1967.  Lien  of  other  mechanics. 

1968.  Lien  on  steamboats. 

1969.  Mode  of  enforcement. 

1970.  Issue — how  made. 

1971.  Replevy. 


Section. 

1972.  Payment  of  amount  due. 

1973.  Lien  of  mill-wrights  and  machinists 

1974.  Stone-cutters,  etc. 

1975.  Other  liens — how  enforced. 

1976.  Lien  of  attorney,  factor,  etc. 

1977.  Lien  on  crops. 

1978.  Vendor's  lien  abolished. 

1979.  Attorney's  lien— its  extent  and  effect 

1980.  Settlement  by  parties. 

1981.  Lien  by  by-laws. 

1982.  Oldest  lien  preferred. 

1983.  Lien  under  charters. 

1984.  Lien  on  rules  absolute. 


§1959.  All/.'mechanics  who  have  taken   no  personal  security 
therefor,  shall  have  a  lien  on  every  house,  [or  other  property,]  (a) 


(a)  Acts  of  1866,  p.  23. 


PT.  2.— TIT.  3.— CHAP.  2.— ART.  3.— Other  Relations.     393 


Section  2. — Other  Liens.  /tJT^' 


and  the  premises  to  wbicli  it  shall  be  attached  for  work  done  or      Lien  of 

....  .  r  1         mechanics. 

materials  furnished  in  building  or  repairing  such  house,  [or  other  i/0- 

property ;]  (a)  which  lien  shall  be  superior  in  dignity  and  of  higher 

claim  than  any  other  incumbrance,  without  regard  to  date.     And 

such  lien  upon  the  improvements  made  by  the  mechanic  shall  at-  f^  %,. 

tach  to  them  without  regard  to  the  title. 

§  1960.  Any  person  holdins;  a  lien  on  such  premises  or  house     Notice  of 

.  -  °   .      .  ,  1      -1  1  -IP  other  liens, 

may  give  notice  to  any  mechanic  about  to  build  or  repair,  before 
the  same  is  commenced,  not  to  proceed  therewith.  After  such  no- 
tice the  mechanic's  lien  shall  be  postponed  to  that  of  the  person 
giving  notice. 

§  1961.  If  any  house  or  premises  for  other  property!  (a)  on    Lien    at- 

1-11  .  ,.,-,.  1  T  T  ,  '^n  ,       Caching      to 

wnicn  there  is  a  mechanic  s  lien,  be  soid  by  any  process  irom  the  proceeds  of 
Courts  of  this  State,  the  purchaser  shall  obtain  the  full  title  and     ':;^  ^   A.       ja 
the  lien  shall  attach  to  the  proceeds  of  the  sale,  upon  notice  by    ^  ' 

the  mechanic  to  the  officer  to  hold  the  money  until  the  next  session 
of  the  Superior  Court  for  that  purpose. 

§  1962.  If  the  claim  of  lien  be  disputed  by  either  plaintiff  or  Tnai  of 
defendant  in  the  process  or  decree  on  which  the  money  was  raised, 
an  issue  shall  be  ordered  and  tried  as  in  other  causes,  and  if  it  be 
determined  against  the  claimant,  he  shall  pay  such  damages,  not 
exceeding  twenty  per  cent.,  as  the  jury  may  assess,  with  interest 
from  the  date  of  the  notice  to  retain,  and  costs. 

§  1963.  The  following;  provisions  must  be  complied  with  to  make  Proceedings 

"  ^  ^  on    part    of 

good  the  mechanic's  lien,  and  on  failure  of  either,  the  lien  shall  mechanic. 
cease — viz : 

1.  A  substantial  compliance  by  the  mechanic  with  his  contract 
for  building  or  repairing,  or  materials  furnished. 

2.  The  recording  of  his  claim  of  lien  in  the  Clerk's  office  of 
the  County  where  the  land  lies,  in  substance  as  follows:  "A.  B., 
a  mechanic,  claims  a  lien  on  the  house,  and  premises  on  which  it 
is  erected,  of  C.  D.  (describing  the  premises)  (for  building,  repair- 
ing, or  whatever  the  claim  may  be),"  within  three  months  from  the 
time  the  same  is  completed. 

3.  The  commencement  of  an  action  for  the  recovery  of  the 
amount  of  his  claim  within  twelve  months  from  the  time  the  same 
shall  become  due. 

§  1964.  In  declaring  for  such  debt  the  mechanic  must  set  forth 

(a)  Acts  of  1866,  p.  22. 


394    PT.  2.— TIT.  3.— CHAP.  2.— ART.  3.— Other  Relations. 

Section  3. — Other  Liens. 

Ho^ysued.  his  Hen  and  the  premises  on  wliicli  lie  claims  it;  and  if  the  lien  ia 
allowed,  the  verdict  shall  set  it  forth,  and  the  judgment  and  exe- 
cution be  awarded  accordingly. 

§  1965.  The  delivery  of  possession  by  the  mechanic  shall  not 
possession,    affcct  his  Hen. 

§  1966.  [Any  machinist,  who  may  furnish  or  put  up,  in  any 
MacMnist's  Countv  in  this  State,  anv  steam  mill  or  other  machinery,  or  who 

lien.  "^       .  '         ./  ^  Jf 

may  repair  the  same,  shall  be  entitled  to  the  same  lien  on  such 
machinery,  and  the  premises  to  which  the  same  may  be  attached, 
and  may  enforce  such  Hen  in  the  same  manner  and  with  like  ben- 
efits, privileges,  and  restrictions  as  those  which  apply  to  me- 
chanics.] (a) 

§  1967.  All  mechanics  shall  have  a  lien  on  all  personal  property, 
Lien  of  other  manufactured  or  repaired  by  them,  to  the  extent  of  the  work  done 

meclianics.  .  . 

and  the  materials  furnished ;  but  such  Hen  shall  cease  on  the  de- 
livery of  possession  to  the  owner. 

§  1968.  Every  officer  and  empl'oyee,  or  guardian  of  any  employee,. 
Lien  on  on  any  steamboat  or  other  water  craft,  en2i;a2;ed  in  the  navigation 

steanaboats.  ...  ?    ^    to   to  .  to         ^ 

of  any  river  within  the  border  or  forming  the  boundary  of  this 
.-,  ..^.  State,  shall  have  a  Hen  of  the  highest  dignity  upon  the  said  boat 
or  craft  for  any  debt,  dues,  wages,  or  demands,  that  he  may  have 
against  the  owner  or  lessee  of  such  boat  or  craft  for  personal  ser- 
vices in  connection  with  the  same,  or  for  wood  or  provisions  fur- 
A,-     nished  to  the  same. 

§  1969.  Such  Hen  must  be  prosecuted  and  enforced  in  the  fol- 
Modeofen-  lowiuo;  manner  in  substance — viz: 

lorcement.  '-' 

1.  There  must  be  a  demand  on  the  owner,  or  agent,  or  lessee, 
for  payment,  and  a  refusal  to  pay;  and  such  demand  and  refusal 
must  be  averred. 

2.  It  must  be  prosecuted  within  one  year  after  the  debt  be- 
comes due. 

3.  The  person  prosecuting  such  lien,  either  for  himself  or  as 
guardian,  must  make  an  affidavit  before  a  Judge  of  the  Superior 
or  County  Court  of  the  County  in  which  the  boat  or  craft  may 
then  lay,  upon  the  same  arriving  at  the  place  of  destination  to 
which  'it  has  been  freighted,  showing  all  the  facts  necessary  to 
constitute  a  Hen  under  this  Code  and  the  amount  claimed  to  be 
due.     If  the  amount  claimed  is  under  fifty  dollars,  the  application 

(a)  Acts  of  1853^4,  pp.  45,  46. 


PT.  2.— TIT.  3.— CHAP.  2.— ART.  S.—Other  Relations.     395 

Section  2. — Other  Liens. 

may  be  made  to  a  Justice  of  the  Peace,  who  may  take  all  the 

other  steps  hereinafter  prescribed  as  in  other  cases  in  his  Court. 

[  Upon  such  affidavit  being  filed,  the  Judge  or  Justice,  as  the  case         /    / 

may  be,  shall  grant  an  order  requiring  the  Clerk  of  the  Court  of       . ' 

which  he  is  a  Judge  or  Justice  to  issue  an  execution  instanter     ^  .     .,^. 

against  the  person  owing  the  debt,  and  also  against  the  boat  or 

craft,  for  the  amount  sworn  to  and  the  costs ;  which  execution, 

when  issued,  shall  be  levied,  by  any  Sheriff  of  this  State,  on  such 

boat  or  craft,  under  the  same  rules  and  regulations  as  other  levies 

and  sales  under  execution.]  (a) 

§  1970.  If  the  person  defendant  in  such  execution  or  any  cred- ^^ue— how 
itor  of  such  defendant  contests  the  amount  or  justice  of  the  claim 
or  the  existence  of  such  lien,  he  may  file  his  affidavit  of  the  fact, 
setting  forth  the  grounds  of  such  denial,  which  affidavit  shall  form 
an  issue  to  be  returned  to  the  Court  and  tried  as  other  causes. 

§  1971.  The  defendant  may  replevy  the  boat  or  craft  by  giving  Repijyy.^ 
bond  and  security  in  double  the  amount  claimed  for  the  payment.-'        *    't  l^\*, 
of  the  eventual  condemnation  money. 

§  1972.  If  only  a  part  of  the  amount  claimed  is  denied,  the  Payment  of 

.  .  amount  due. 

amount  admitted  to  be  due  must  be  paid  before  the  affidavit  shall 
be  received  by  the  officer.  • 

§  1973.  All  mill-wrights  and  builders  of  gold  machines  shall  have  Lien  of  mm- 

T  1  -n  1  ^  '  PI  T        •  ^         Wrights  and 

a  Jien  upon  such  mills  and  machines,  of  the  same  dignity  as  that  machinists, 
given  above  to  persons  employed  on  steamboats,  and  the  same 
may  be  enforced  in  the  same  way. 

§1974.  All  stone-cutters  and  marble  companies  shall  have  a  ,     Lien  of 

■*•  stonecutters 

similar  lien  on  the  stone  or  marble  cut  and  prepared  by  them,  for  '^"'^  marWe 

^      i.  J  '  companies. 

their  labor  and  expenses,  and  such  lien  may  be  enforced  in  a  simi- 
lar manner. 

§  1975.  All  persons  having  a  lien  on  personalty  under  any  law  _^*^^^^ '^^°s 
in  this  State  may  enforce  the  same  in  a  similar  manner,  by  com-  forced. 
plying  with  the  requisitions  prescribed  above  for  persons  employ^rl 
on  steamboats,  the  proceedings  to  be  in  the  County  vfhere  th^  "      ■,. 

erty  lies.  ,  "^^  ^   , 

^innn    mi     T         .         T       1  i  -^hetailsto    ...x. 

§  lyTo.   Ihe  lien  given  by  the  common  law  to  ^  V    ,i     r^      ^   ^     appear 

.      ,  ^  \  ,      ,  ^ .  by  the  Court,  be  court. 

mn-keepers,   pawnees,   carriers  and  others  up,  i  .  .       ,, 

.  .  1     ,     1.     X  taken  requiring  the 

stances  (except  the  vendor  s  lien)   are  recoe:'        j.  j.  i      •    i 

p        -,       -,       ,     1         n  ^         !  °  li^xt  term  why  ludsi:- 

enlorced  under  the  law  oi  Georgia.  r      ^-l  .   "^  .i 

^  lor  the  amount  of  the 

r  ^^?     *    m  ti     r   T^  ^^ausc  bc  showH  iudsjment 
(a)  Errata  Table  of  old  r        ,  ,  X 

not  have  the  right  to  sur- 


Failure  to 
at 


S96     PT.  2.— TIT.  3.— CHAP.  2.— ART.  3.— Other  Relations. 


Section  2. — Other  Liens. 


/r% 


'■:.  §  1977.  [Factors   and  merchants   shall  have  a  lien  upon  the 

Lien  orrowinsi;  crops  of  farmers,  for  provisions,  and  commercial  manm^es 

on  growing    cd  o  ±  '  t. 

erops  lor  fumishcd.  UDon  such  terms  as  may  be  aorreed  upon  by  the  parties; 

provisions,  '       •■■  ./  o  i  ./  i  ? 

«tc.  and  such  lien  shall  be  enforced  in  the  same  way  and  manner  as 

provided  in  this  Code  for  the   enforcement  of  liens  against  steam- 
r  boats.]  (a) 

Vendor's       §  1978.  The  vendor's  equitable  lien  for  the  purchase  money  of 
\S&o^  ^ '  lands  is  abolished  in  this  State. 

§  1979.  The  attorney's  lien  shall   attach  for  his  fees  and  for  a 
Attorney's  general  balance  on  all  sums  collected  by  him,  and  upon  all  prop- 
tent  and  cf-  erty  recovered  by  his  services,  and  shall   be  superior  to  all  other 
liens  thereon-     In  claim  cases  the  attorney  causing  the  levy  and 
'     '  '        prosecuting  the  rights  of  the  plaintiff  in  fi.  fa.   shall  be  entitled 
to  his  fees  from  the  proceeds  of  the  property  condemned,  although 
older  liens  may  demand  and  reaover  the  proceeds  from  the  imme- 
y,       J  A  A     diate  client  of  such  attorney. 
i>7J^*^      '  ^^»^§  1980.  Parties  can  not,  by  settlement  between  themselves,  de- 
by  paJties^'^'^  feat  the  attorney  of  any  lien   or   claim  under  contract  with  his 
client  of  which  the  opposite  party  had  notice  prior  to  the  consum- 
mation of  such  settlement. 

§  1981.  The  by-laws  of   a  corporation  may  create  a  lien  upon 
Lien  by  the  sliares  or  other  property  of  the  stockholders  in  favor  of  the 

by-laws.  it-i-t  ^  ^  i 

company :  such  lien  is  bmamg  upon  the  corporators  themselves 
and  upon  ail  creditors  giving  credit  with  notice,  or  purchasers -at 
public  or  private  sale  purchasing  with  notice. 

§  1982.  When   different  persons  hold  a  lien  on  the  same  prop- 
oidestiien  erty,  and  both  declared  to  be  of  the  same  dio^nity,  then  the  oldest 

preferred.         .  o        ./  7 

lien  shall  have  the  preference. 

§  1983.  All  liens  created  under  the   charters  of  incorporated 
Liens  nnder  companies  are  continued  under  this  Code. 

'Charters.  •"■  .  •  r\ 

§  1984.  Rules  absolute  granted  against  defaulting  Sheriffs,  Con- 

i?.bles,  and  other  olBcers,  under  the  various  provisions  of  this 

guardiaif^hall  have  a  lien  on  their  property  from  the  date  of  their 

or  County  (jimilar  to  that  of  judgments  obtained  at  the  same  termp 

then  lay,  upon  the 

which  'it  has  been  frt     (a)  Acts  of  1866,  p.  14t 
constitute  a  lien  under 
due.     If  the  amount  clai. 

(a)  Acts 


PT.  2.— TIT.  3.— CHAP.  2,— ART.  4.— Othek  Relations.    39T 


Section  1.— Insolvent  Debtors— how  Discharged. 


ARTICLE  IV. 

IKSOLVEKT     DEBTORS. 


Section  l.—How  discharged. 

Section  2.-^Prison  hounds. 

Section  ^.-—Property  exempt  from  sale. 


SECTION    I. 

how   discharged. 

Bectiox. 

Skctiojj 

. 

1985. 

Debtors  arrested,  etc. 

1996, 

Disposition  of  property 

1986. 

By  giving  bond,  etc. 

1997. 

Summary  discharge. 

1987. 

Notice  to  creditors. 

1998. 

Oath  in  such  case. 

1988. 

Schedule. 

1999. 

Issue  of  fraud. 

1989. 

Objections. 

2000. 

Verification  of  issue. 

1990. 

Trial  of  issue. 

2001. 

Immediate  trial. 

1991. 

Verdict  for  objector. 

2002. 

Continuance. 

1992. 

Oath  to  be  taken. 

2003. 

Oath  of  plaintiff. 

1993. 

Effect  of  discharge. 

2004. 

Bond  of  defendant. 

1994. 

Perjury. 

2005. 

Verdict,  etc. 

1995. 

Delivery  of  property. 

2006. 

Judgment  on  bond. 

§1985.  Any  debtor  unable  to  pay  his  debts  in  full,  whenever  Debtor  ar^ 

-"■'—-'  .  ,.  .   ,  r       1    rested  may 

arrested  on  any  process  against  his  person,  either  mesne  or  nnai,  be    dis- 
may  be  relieved  from  imprisonment  and  future  arrest  for  the  same 
debts  upon  complying  with  the  provisions  of  this  Section. 

§  1986.  He  shall  tender  to  the  officer  arresting  him,  a  bond  with    By  giving 

.  -,     .      bond,  etc. 

good  security,  payable  to  the  plaintiff  in  the  process,  and  m 
double  the  amount  of  the  debt,  conditioned  for  his  appearance  at 
the  next  term  after  the  expiration  of  twenty  days  of  the  Court, 
whence  the  process  issued  (unless  the  same  be  a  Justice's  Court, 
and  in  such  case  to  the  Inferior  Court),  then  and  there  to  stand  to 
and  abide  by  such  proceedings  as  may  be  had  relative  to  his  appli- 
cation to  take  the  oath  prescribed.  If  at  such  term  he  fails  to  Failure  to 
appear,  and  no  sufficient  excuse,  to  be  judged  of  by  the  Court,  be  coml^ 
rendered  for  his  absence,  an  order  shall  be  taken  requiring  the 
party  and  his  sureties  to  show  cause  at  the  next  term  why  judg- 
ment should  not  be  entered  on  said  bond  for  the  amount  of  the 
plaintiff's  demand;  and  if  no  sufficient  cause  be  shown  judgment 
shall  be  so  entered.     The  sureties  shall  not  have  the  right  to  sur- 


398     PT.  2.--TIT.  3.— CHAP.  2.— ART.  4.— Other  Relations. 

Section  1. — Insolvent  Debtors — how  Discharged. 


I 


Surrender  render  their  principal  after  the  first  term,  unless  they  satisfy  the 

by  sureties.     ^  ,  ,  .       ,  >j  <J 

Court  that  they  exercised  strict  diligence  and  failed  to  secure  his 
attendance  at  that  term,  and  to  this  end  they  shall  have  all  the 
power  given  by  law  to  special  bail. 

§  1987.  The  insolvent  debtor  shall  give  at  least  ten  days'  notice 
creditors  ^^  ^^  ^^^  intended  application  to  the  arresting  creditor,  and  may  give 
the  same  notice  to  any  other  of  his  creditors,  and  the  order  of 
discharge  shall  set  forth  the  names  of  all  the  notified  creditors. 
A  notice  to  an  attorney  of  record  shall  be  held  sufficient  notice  to 
his  client,  and  service  on  one  of  a  firm  shall  be  sufficient.  If  cred- 
itors reside  out  of  the  State,  and  their  claims  are  not  in  suit,  no- 
tice by  publication,  once  a  week  for  two  months,  shall  be  held  suffi- 

Non-resi-  ./    r  7  7 

dent.         cient  to  them. 

§  1988.  Every  applicant,  at  least  ten  days  before  the  session  of 

Schedule,  the  Court,  shall  file  a  schedule  of  all  his  real  and  personal  estate, 

money,  debts,  credits  and  efi*ects  in  possession,  or  in  action,  or  to 

be  enjoyed  in  future,  whether  the  same  be  legal  or  equitable. 

§  1989.  Every  creditor  of   such  applicant  may  appear  and  file 

Objections,  objections  to  the  granting  a  discharge  of  the   applicant  on  either 

of  the  following  grounds  : 

1.  A  willful  failure  to  include  in  the  schedule,  property  which 
should  be  thus  included ;  the  creditor  specifying  the  property. 

2.  Any  fraudulent  attempt  by  the  applicant  to  defeat  the  en- 
forcement of  the  rights  of  creditors. 

3.  The  loss  by  the  applicant,  at  any  species  of  gaming  or  lot- 
tery, within  twelve  months  before  his  application,  at  any  onetime, 
the  sum  of  one  hundred  dollars,  or  at  different  times  the  aggregate 
sum  of  three  hundred  dollars. 

§  1990.  The  objections  filed  shall  constitute  the  issue,  and  shall 
Trial  of  be  Submitted  to  a  jury  as  other  causes,  upon  the  trial  of  which 
the  applicant  may  be  sworn  as  a  witness  at  the  instance  of  the 
objector ;  and  if  he  refuses  to  answer  any  pertinent  and  legal 
questions,  after  notice  from  the  Court,  his  application  shall  be  re- 
fused. 

§  1991.  If  the  jury  find  a  verdict  sustaining  the  objection  filed, 
Verdict  for  the  Court  shall  order  the  applicant  into  the  custody  of  the  Sherifi*, 
to  be  safely  kept  as  provided  by  law,  until  the  debt  of  the  arrest- 
ing cre(Jitor  is  satisfied,  unless  the  jury  further  find  that  the  omis- 
sion was  not  fraudulent ;  in  which  last  case,  upon  the  delivery  of 
the  property,  the  defendant  shall  be  allowed  to  take  the  oath. 


issue, 


PT.  2.— TIT.  3.— -CHAP.  2.— ART.  4.— Other  Relations.     399 

Section  1. — Insolvent  Debtors — how  Discharged. 

§1992.  If  no  objections  are  filed,  or  if  filed  the  verdict  is  in    oathtobe 
favor  of  the  applicant,  the  Court  shall  cause  the  following  oath  to 
be  entered  on  the  minutes,  and  sworn  to  and  subscribed  by  the  ap- 
plicant— viz : 

"I,  A.  B.,  do  solemnly  swear  (or  affirm,  as  the  case  may  be,) 
in  the  presence  of  Almighty  God,  that  I  am  not  possessed  of  any 
estate,  real  or  personal,  money,  debts,  credits,  or  effects,  legal  or 
equitable  (such  property  as  is  exempt  by  law  from  levy  and  sale 
alone  excepted),  other  than  is  contained  in  the  schedule  filed  by 
me,  and  that  I  have  not,  directly  or  indirectly,  since  my  arrest  or 
before,  sold,  leased,  assigned,  or  otherwise  disposed  of  or  made 
over,  in  trust  for  myself,  or  others  appointed  by  me,  any  part  of 
my  lands,  estate,  goods,  stock,  money,  debts,  or  credits,  whereby 
I  have  or  expect  any  benefit  or  profit  to  myself,  my  wife,  or  my 
heirs.     So  help  me  God." 

§  1993.  After  takins;  the  oath,  the  debtor  is  discharged  from      Effect  of 

.  ,  discharge. 

arrest  at  any  time  at  the  instance  of  either  of  the  notified  credi- 
tors, and  such  arrest  shall  be  false  imprisonment ;  but  his  property 
remains  subject  to  levy  and  sale  for  the  satisfaction  of  his  debts. 

§  1994.  Willful  and  fraudulent  false  swearing  in  taking  the  oath    Perjury. 
shall  be  perjury. 

§  1995.  Before  taking  the  oath  the  debtor  shall  deliver  into  the  Delivery  of 
Court  all  his  title  papers  to  lands  returned  in  the  schedule,  within 
his- control;  and  also  all  notes,  bonds,  contracts,  accounts,  books, 
or  other  evidences  of  debts  mentioned  in  the  schedule,  and  shall 
deliver  to  the  Sheriff  all  personal  property  mentioned  therein.     If 
the  debtor  be  arrested  in  a  County  different  from  that  whence  the    in  another 
process  issued,  he  may  deliver  any  personal  property  returned  in   ^^°  ^' 
his  schedule  to  the  Sheriff  of  the  County  of  his  residence,  who 
shall  hold  it  subject  to  the  order  of  the  Court  before  whom  the 
application  is  to  be  made. 

§  1996.  The  Court  may  make  such  order  for  the  sale,  or  other  Disposition 
disposition  of  the  property,  or  collection  of  the  debts  returned  in 
the  schedule,  as  in  its  judgment  is  most  beneficial  to  the  creditors, 
and  to  this  end  shall  have  all  necessary  power  to  enforce  a  faith- 
ful discharge  of  duty  by  those  to  whom  such  assets  shall  be  en- 
trusted. 

§  1997.  [  When  a  defendant  is  arrested  as  set  forth  in  Section     summary 
1985,  he  may  also,  whether  he  gives  the  bond  provided  for  in  Sec- 
tion 1986  or  not,  file  a  schedule  in  the  Clerk's  office  of  the  Infe- 


400    PT.  2.---TIT.  3.— CHAP.  2.--AIIT.  4.— Other  Relations. 


Section  1. — Insolyent  Debtors— how  Discharged. 


rior  Court,  and  take  the  oath  prescribed  in  Section  1992,  by  giving 
the  plaintiff  ten  days'  personal  notice  of  his  intention  so  to  do.]  (a) 
§  1998.  [  Three  Justices  of  said  Inferior  Court  shall  be  suffi- 
Oath.     cient  to  administer  the  oath.]  (a) 

§  1999.  [  The  plaintiff  may  tender  an  issue  of  fraud,  in  which 
Issue  of  lie  shall  plainly  set  forth  all  the  facts  in  the  case  which  he  expects 
to  prove,  and  particularly  describing  the  property  which  he  may 
allege  to  have  been  left  out  of  the  schedule  filed  by  the  defend- 
ant.] (a) 

§  2000.  [  The  plaintiff,  his  agent,  or  attorney  shall  be  required 
Verification  to  make  affidavit  that  he  has  reason  to  believe  that  the  facts  set 

of  issue* 

forth  in  the  tender  of  an  issue  are  true.]  (a) 

§  2001.  [  Upon  this  being  done,  the  Justices  of  the  Inferior 
Issue  tried  Court  may  cause  a  jury  to  be  summoned  instanter,  and  proceed 
at  once  to  the  trial  of  the  issue  formed.]  (a) 

§  2002.  [  If  either  party  shall  make  it  appear  to  the  Court  that 
Continuance  they  are  not  ready  for  trial,  the  cause  may  be  continued  to  such 
time  as  the  Court  in  its  discretion  may  deem  necessary  to  enable 
the  parties  to  prepare  for  the  trial  of  the  same ;  provided^  that  in 
no  event,  except  for  providential  cause,  shall  a  continuance  be 
granted  to  the  plaintiff  more  than  one  time,  nor  shall  such  contin 
uance  delay  the  case  for  more  than  thirty  daysj  from  the  day  of 
the  arrest.]  (a) 

§  2003.  [  If  the  continuance  be  at  the  instance  of  the  plaintiff, 
Oath  of  he  shall  make  oath  that  the  facts  which  he  has  set  forth  in  the 
issue  tendered  are  true.]  (a) 

§  2004.  [  When  continued  by  the  defendant,  he  shall  give  bond, 
Bond  of   as  required  by  law,  for  his  appearance  to  take  the  oath  at  the  final 
termination  of  the  cause.]  [a) 

§  2005.  [If  the  jury  find  for  the  defendant,  he  shall  be  permit- 
Verdict,  mittcd  to  take  the  oath  on  delivering  to  the  Sheriff  or  his  deputy  all 
delivery  of  the  proDcrtv  described  in  the  schedule  which  he  has  filed.]  (a) 

property.  i       i         j  ^  . 

§  2006.  [  Should  the  defendant  fail  to  appear  at  the  time  ap- 

judgment  pointed  by  the  Court  for  the  trial  of  the  issue,  the  Court  may 

enter  up  judgment  on  his  appearance  bond  in  favor  of  the  plaintiff 

for  the  principal,  interest  and  cost ;  provided,  it  does  not  appear 

that  the  defendant  is  absent  from  providential  cause.]  (a) 

(a)  Acts  of  1861,  p.  39. 


PT.  2.— TIT.  3.— CHAP.  2.— ART.  4.— Other  Relations.     401 


Section  2. — Prison  Bounds. 


SECTION  11. 


PRISON    BOUNDS. 


Section. 

2007.  Laid  off. 

2008.  Plan  of  bounds. 

2009.  How  to  get  benefit  of. 


Section. 

2010.  For  six  months. 

2011.  Sherifi"— when  surety. 

2012.  Jailor's  fees. 


Plan  of 


bounds. 


§  2007.  The  Sheriff  of  every  County,  under  the  direction  of  Laid  off. 
the  Inferior  Court,  shall  cause  to  be  surveyed  and  laid  off  around 
every  jail,  in  such  shape  as  may  be  most  convenient,  one  hundred 
acres  of  land,  the  boundaries  of  which  shall  be  the  limits  of  the 
prison  bounds,  which  limits  may  be  re-surveyed  and  changed  by 
the  Inferior  Court  at  any  time  within  their  discretion. 

§  2008.  A  plan  of  such  boi^nds  shall  be  returned,  to  the  CJerks 
of  each  the  Superior  ai^d  Infq-ior  CouRts  of  the  Col^nty,  and\,  en- 
tered by  them  upon  theii^  minui^es  as  a  part  of  the  record. 

§2009.  Any  person  ^^rrested  and  committed  to  iail  for  debt   now  to  get 

.  ^         o  ^  .  n   1  •       Ti  •   1  .  1       benefit  of. 

may  have  the  free  use  ana  enjoyment  of  his  liberty  withm  the 
limits  of  such  prison  bounds^  by  tendering  to  the  Sheriff  a  bond 
with  good  security,  payable  to  the  plaintiff  in  the  process,  in 
double  the  amount  of  the  debt?x  for  whieh  he  is 'arrested,  condi- 
tioned that  he  will  not  pass  over  or  leave  it^e  boundaries  thus  laid 
off  at  any  time  without  being  legally  discharged.  Upon  a  viola- 
tion of  this  condition,  the  creditor  may  commence  an  action  upon 
such  bond  instantly. 

§  2010.  The  privilege  of^.prison  boi^nds  shall  b^\extendecl  to  a 
debtor  imprisoned  for  the  teVm  of  six  raonths,  and  no  longer,  upon 
the  same  arrest. 

§  2011.  If  the  Sheriff  takes  insufficient  security,  he  shall  be 
held  and  bound  as  surety  himself. 

§2012.  If   the  jailor   diets   the  prisone;-  when  within  prison  jailor's  fees 
bounds,  he  must  look  to  him  alone  for  his  fees. 


For  six 
months. 


Sheriff— 
when  surety 


SECTION  III. 


PROPERTY    .EXEMPT     FROM     SALE 


Section. 

2013.  Property  exempt  from  sale. 

2014.  Schedule— wife's  privileges. 

2015.  Land— how  laid  off. 

2016.  Objections — how  tried. 

2017.  Town  property. 

26 


Section. 

2018.  Sale  subject  to  incumbrance. 

2019.  Trespass  by  officer. 

2020.  Alienation  and  incumbrances. 

2021.  Settled  on  wife  and  children. 

2022.  Property  of  estates  exempt— when. 


402     PT.  2.— TIT.  3.— CHAP.  2.— ART.  4.— Other  Relations. 


Section  3. — Property  Exempt  from  Sale. 


Lr        "■  §  2013.  The  following  property  of  every  debtor,  who  is  the  head  of 

Property  a  family,  shall  be  exempt  from  levy  and  sale  by  virtue  of  any  pro- 

saie.  cess  whatever,  under  the  laws  of  this  State  ;  nor  shall  any  valid  lien 

A—      /if  ^       ^^  created  thereon,  except  in  the  manner  hereinafter  pointed  out,  but 

shall  remain  for  the  use  and  benefit  of  the  family  of  the  debtor  ; 

1.  'Fifty  acres  of  land,  and  five  additional  acres  for  each  of  his 
or  her  children  under  the  age  of  sixteen  years.  This  land  shall 
include  the  dwelling-house,  if  the  value  of  such  house  and  im- 
provements does  not  exceed  the  sum  of  two  hundred  dollars ; 
provided^  that  none  of  the  above  land  be  within  the  limits  of  a 
city,  town,  or  village,  and  does  not  include  any  cotton  or  wool 
factory,  saw  or  grist  mill,  or  any  other  machinery  propelled  by 
water  or  steam,  the  value  of  which  exceeds  the  sum  of  two  hun- 
dred dollars ;  and  provided^  also,  that  such  land  shall  not  derive 
its  chief  value  from  other  cause  than  its  adaption  to  agricultural 
purposes  ;  or,  in  lieu  of  the  above  land,  real  estate  in  a  city,  town, 
or  village,  not  exceeding  five  hundred  dollars  in  value. 

2.  One  farm  horse  or  mule. 

3.  One  cow  and  calf. 

4.  Ten  head  (5f  hogs  and  fifty  dollars'  worth  of  provisions,  and 
five  dollars'  worth  additional  for  each  child. 

5.  Beds,  bedding,  and  common  bedsteads  sufficient  for  the  family. 

6.  One  loom,  one  spinning-wheel,  and  two  pairs  of  cards,  and 
one  hundred  pounds  of  lint  cotton. 

7.  Common  tools  of  trade  of  himself  and  his  wife. 

8.  Equipment  and  arms  of  a  militia  soldier,  and  trooper's  horse. 

9.  Ordinary  cooking  utensils  and  table  crockery. 

10.  Wearing  apparel  of  himself  and  family. 

11.  Family  Bible,  religious  works,  and  school  books. 

12.  Family  portraits. 

13.  The  library  of  a  professional  man,  in  actual  practice  or 
business,  not  exceeding  three  hundred  dollars  in  value,  and  to  be 
selected  by  himself. 

§  2014.  Every  debtor  seeking  the  benefit  of  the  act,  or  if  he  re- 
schedule— fuses,  his  wife,  or  any  person  acting  as  her  next  friend,  shall  make 
lege.  out  a  schedule  and  description  of  the  property  claimed  by  him  to 

be  exempt  under  this  law,  and  return  the  same  to  the  Clerk  of  the 
[County]  (a)  Court,  who  shall  record  the  same  in  a  book  to  be 
kept  by  him  for  that  purpose. 

(a)  Acts  of  1866,  p.  22. 


PT.  2.— TIT.  3.— CHAP.  2.— ART.  4.— Other  Relations.    403 

Section  3. — Property  Exempt  from  Sale. 

^  2015.  Upon  application  by  an  insolvent  debtor,  it  shall  be  the  Lanci— how 
duty  of  the  County  Surveyor,  or  any  other  Surveyor,  if  there  be 
no  County  Surveyor,  to  lay  off  the  land  allowed  to  his  family  un- 
der this  law,  and  to  make  a  plat  of  the  same,  which  plat  shall  be 
returned  to  the  Clerk  of  the  [County]  (a)  Court,  and  recorded  as 
before  provided  for  schedules  returned. 

§  2016.  Should  any  creditor,  for  any  cause,  desire  to  dispute  objections 
the  propriety  of  the  survey,  or  the  value  of  the  improvements, 
upon  application  to  the  [County]  (a)  Court,  and  notice  to  the 
debtor,  the  said  Court  may  appoint  three  appraisers  to  view  the 
survey,  and  to  value  the  improvements,  and  on  their  return  the 
said  Court  may  direct  the  surveyor  to  make  such  alterations  as 
shall,  in  the  judgment  of  the  Court,  be  conformable  to  law. 

§2017.  If  the  debtor  owns  town  property  exceedinoi;  in  value  Townprop- 
the  sum  of  five  hundred  dollars,  and  it  can  not  be  so  divided  as  to 
give  to  his  family  that  amount,  he  may  give  notice  to  the  officer 
levying  thereon,  and  when  the  proceeds  of  the  sale  are  to  be  dis- 
tributed the  Court  shall  order  five  hundred  dollars  of  the  same  to  ,  •f'ive  hun- 
dred dollars 

be  invested,  by  some  proper  person,  in  a  home  for  the  family  of  ^^  proceeds. 
the  debtor,  Avhich  shall  be  exempt,  as  if  laid  off  under  this  law. 

§2018.  If,  from  any  cause,  the  land  exempt  has  not  been  laid  saie  subject 

'  .  .  '    '"  .  .  ^^      incum- 

off  when  the  remainder   is  offered  for  sale,  notice  being  given  of  ^r^Jice. 
the  faot,  the  purchaser  will  buy  subject  to  the  incumbrance. 

§2019.  Any  officer  knowingly  levying  on  or  selling  any  prop-  Trespass  by 
erty  of  a  debtor  exempt  under  this  law,  a  schedule  of  which  has 
been  returned  as  required,  is  guilty  of  a  trespass,  and  suit  maybe 
brought  therefor,  in  the  name  of  the  wife  or  family  of  the  debtor, 
and  the  recovery  shall  be  for  their  exclusive  use. 

§  2020.   The  debtor  shall  have  no  power   to  alienate  or  incum-    Alienation 

and    incum- 
ber the  property  exempt  under    this   law ;   but   the  same  may  be  brances. 

sold  by  the  debtor  and  his  wife,  if  any,  jointly,  with  the  consent  3  f^ 

of  the  [County]  (a)  Court  of  the   County,  the  proceeds  to  go  to 

the  use  of  the  debtor's  family. 

§2021.   [The  property  exempt  under  this  law  shall  be  for  the    settled 'on 
use  of  the  wife  or  widow,  and  at  her  death  or  intermarriage,  to  be  children.;,, 
equally  divided  between  the  children  of  her  former  marriage  then 
living.]  (b) 

§  2022.  [The  exemptions  and  protections  contained  in  the  nine 

(a)  Acts  of  1866,  p.  22,    (b)  Acts  of  1865-6,  p.  29,  / 


404 


PT.  2.— TIT.  3.— CHAP.  2.— Othek  Eelatk/n^. 


Article  5. — Interest  and  Usury. 


Extended  preceding  Sections  are  hereby  extended  to  intestate  insolvent  eS' 

to  insolvent  .,,  ,.,.  ,  in 

estates.        tatcs,  m  all  cases  wherein  there  is   a  widow  or  child  of  the  de- 
eeased  intestate  living.]  (b) 


ARTICLE  y. 


IlSTTEREST    AND    USURY. 


'    Lawful 
interest. 

Usury. 


Effect  of 
nsary. 


Section. 

2023.  Lawful  interest, 

2024.  Usury. 

2025.  Effect  of  usury. 

2026.  Back  interest. 

2027.  Lex  loci. 


Section.- 

2028.  Interest  on  judgm-ent. 

2029.  Fayment— how  applied  to  interest. 

2030.  Interest  on  liquidated  demands. 

2031.  On  merchants'  accounts. 


Back  in- 
terest. 


Lex  loci. 


Interest  on 
judgment. 


Payment — 
hoAv  applied 
to  interest. 


§  2028.  Lawful  interest  in  this  ^tate  shall  be  at  the  rate  of 
seven  per  cent,  per  annum.  (/*/  0,  7  /   ^r^^  /  5    /  ^^^-^'^^ 

§  2024.  Usury  is  the  reserving  and  taking,  or  contracting  to  re- 
serve and  take,  either  directly  or  by  indirection,  a  greater  sum  for 
the  use  of  money  than  the  law^ful  interest. 

§  2025.  The  effect  of  usury  is  to  annul  and  make  void  the  con- 
tract for  the  usury ;  the  lender  having  the  right  to  recover  the 
principal  sum  loaned,  with  legal  interest.  All  titles  to  property 
made  as  a  part  of  an  usurious  contract,  or  to  evade  the  laws 
against  usury,  are  void. 

§  2026.  Interest  from  date,  when  stipulated,  if  the  debt  is  not 
punctually  paid  at  maturity,  may  be  recovered  ;  provided,  interest 
has  not  already  been  included  in  the  principal  amount. 

§  2027.  Every  contract  bears  interest  according  to  the  law  of 
the  place  of  the  contract  at  the  time  of  the  contract,  unless  upon 
its  face  it  is  apparent  that  the  intention  of  the  parties  referred 
the  execution  of  the  contract  to  another  forum  :  in  this  case  the 
law  of  the  forum  shall  govern. 

§  2028.  All  judgments  in  this  State  bear  lawful  interest  upon 
the  principal  amount  recovered. 

§  2029.  When  a  payment  is  made  upon  any  debt  it  shall  be 
applied  first  to  the  discharge  of  any  interest  due  at  the  time,  and 
the  balance,  if  any,  to  the  reduction  of  the  principal.  If  the  pay- 
ment does  not  extinguish  the  interest  then  due,  no  interest  shall 
be  calculated  on  such  balance  of  interest,  but  only  on  the  princi- 
pal amount  up  to  the  time  of  the  next  payment. 


(b)  Acts  1865-6,  p.  29. 


PT.  2.— TIT.  8.— CHAP.  3.— Other  Relations. 


405 


Article  1. — Bailments — General  Principles. 


§  2030.  All  liquidated  demands,  where  by  agreement  or  other-   intereBton 

.  ,  ,  -1    •      /*•      i'  •        1  •  r  liquidated 

%Yise  the  sum  to  be  paid  is  fixed  or  certain,  bear  interest  from  the  demacds. 
time  the  party  is  liable  and  bound  to   pay  them  ;  if  payable  on 
demand,  from  the  time  of   the  demand.     In  case  of  promissory 
notes  payable  on  demand,  the  law  presumes  a  demand  instantly, 
and  gives  interest  from  date. 
'/  */  §  2031.  All  accounts  of  merchants,   tradesmen  and  mechanics, 
which  by  custom  become  due  at  the  end  of  the  year,  bear  interest  eouats 
from  that  time  upofi  the  amount  actually  due  whenever  ascer-- 
» staiaed. 


On  mer- 
ae- 


CHAPTER   III 

OF    BAILMENTS. 


Aeticle  lo — G-eneral  Principles. 
Article  2. — Of  Carriers,  etc. 
Article  3. — Of  Hiring. 
Article  4. —  Of  Deposits. 
Article  5. — Of  Loans. 
Article  6. — Of  Pledges  or  Pawns. 


ARTICLE  L 

EISTERAL     PRINCIPLES. 


Section. 

2036.  Extraordinary. 

2037.  Gross  neglect. 

2038.  Burden  of  proof. 


.Sections, 

2032.  Definition. 

2033.  Property  in  bailee. 

2034.  Care  and  diligence. 
20-3o.  Ordinary. 

§  2032.  A  bajlment^is  a  delivery  of  goods  or  property  for  the  Definition, 
-execution  of   a  special  object,   beneficial  either  to  the  bailor  or 
bailee,  or  both ;  and  upon  a  contract,  express  or  implied,  to  carry 
out  this  object  and  dispose  of  the  property  in  conformity  with  the 
purpose  of  the  trust. 

§  2033.  In  all  cases  the  bailee,  during  the  bailment,  has  a  right  Propertyin 
to  the  possession  of  the  property,  and  in  most  cases  a  special  right 
of  property  in  the  thing  bailed.     For  a  violation  of  these  rights 
bj  any  one  he  is  entitled  to  his  action. 


406 


PT.  2.— TIT.  3.— CHAP.  3.— Other  Relations; 


Article  2. — Carriers,  etc. 


vtr 


i.A,|'{w   '  J  2034.  All  bailees  are  required  to  exercise  care  and  diligence 

Care  and  in  protectino"  and  keepins;  safely  the  thing;  bailed.  Different  de- 
grees  oi  diligence  are  required  according  to  the  nature  of  the 
bailments. 

§  2035.   Ordinary  diligence,  is  that  care  which  every  prudent 
Ordinary,    man  takes  of  his  own  property  of  a  similar  nature.     The  absence 
/'*:»    ?  ^  ^  ^^  such  diligence  is  termed  ordinary  rieglect. 

j  §  2036.  Extraordinary  diligence,  is  that  extreme  care  and  cau- 

£xtiaordi-  tion  which  Very  prudent  and  thoughtful  persons  use  in  securing 

i/      ^t.      and  preserving  their   own  property.     The   absence  of  such  dili^- 

"^l^    gence  is  termed  slight  neglect. 

'  §  2037.   Grross  neglect,  is  the  want  of  that  care  which  every  man 

,     oross  neg-  of  commou  sonsc,  how  inattentive  soever  he  may  be^  takes  of  his 

C^  -'^v/^'  own  property. 


1    1^ 


1^''  r   J     §  2038.  In  all  cases  of  bailments  after  proof  of  loss,  the  burden 
pro©? ,  V  ^  of  proof  is  on  the  bailee  to  show  proper  diligence. 


IP » 


,r 


ARTICLE  II. 


OF   CARRIERS   AND    HEREIN   OF    THE    LIABILITIES    OF  RAILROAD   AND 

STEAMBOAT   COMPANIES. 


SscTIo^^ 

2039.  Definition. 

2040.  Common  carriers. 

~     2041.  Carrier  of  passengers. 

2042.  Effect  of  notice  to  limit. 

2043.  Duty  as  to  reception  of  goods. 

2044.  Time  of  responsibility. 

2045.  For  baggage. 

2046.  Checks  for  baggage. 

2047.  For  delay. 

2048.  Stopping  in  transitu. 


Section. 

2049.  When  it  exists., 

2050.  Estoppel  on  carrier. 

2051.  Lien. 

2052.  Contents  of  freight  bills. 

2053.  On  baggage. 

2054.  Fraud  on  carrier. 

2055.  Limit  as  to  value  of  baggage. 
205G.  What  passengers  may  be  refused. 

2057.  Liability  of  R.  R.  Co's  as  carriers. 

2058.  When  there  are  several. 


Defiaition. 


Common 


Liability. 


Carrier   of 
passengers. 

•> 


§  2039.  Any  person  undertaking  to  transport  goods  to  another 
place  for  a  compensation,  is  a  carrier,  and  as  such  is  bound  to  or- 
dinary diligence. 

§  2040.  One  who  pursues  the  business  constantly  or  contin- 
uously for  any  period  of  time,  or  any  distance  of  transportation, 
is  a  common  carrier,  and  as  such,  is  bound  to  use  extraordinary 
diligence.  In  cases  of  loss  the  presumption  of  law  is  against  him, 
and  no  excuse  avails  him  unless  it  v/as  occasioned  by  the  act  of 
God  or  the  public  enemies  of  the  State. 

§  2041.  A  carrier  of  passengers  is  bound  also  to  extraordinary 
diligence  on  behalf  of  himself  and  his  agents  to  protect  the  lives 
»■  '■ 


PT.  2.— TIT.  3.— CHAP.  3.— Other  Relations.  40T 


Article  2. — Carriers,  etc. 


and  persons  of  his  passengers.  But  he  is  not  liable  for  injuries  to 
the  person,  after  having  used  such  diligence. 

§2042.  A  common  carrier  can  not  limit  his  legal  liability  by  Effect  of  no- 

...  ,  -, .         .  ,  .  tice  to  limit. 

any  notice  given,  either  by  publication  or   by  entry  on  receipts  ,.  ^^ 

given  or  tickets  sold.     He  may  make  an  express  contract,  and  wilf^'f     ,  V^^r 
then  be  governed  thereby.  5  ^^'^■f^i^  v 

§  2043.  A  common  carrier,  holding  himself  out  to  the  public  as    Duty  as  to 
such,  is  bound  to  receive  all  goods  and  passengers  offered  that  he  goods,  etc. 
is  able  and  accustomed  to  carry,  upon  compliance  with  such  reason- 
able regulations  as  he  may  adopt  for  his  own  safety  and  the  bene- 
fit of  the  public. 

§  2044.  The  responsibility  of  the  carrier  commences  with  the  Time  of  re- 

,  .  sponsibility. 

delivery  of  the  goods,  either  to  himself  or  his  agent,  or  at  the 
place  where  he  is  accustomed  or  agrees  to  receive  them.  It 
ceases  with  their  delivery  at  destination  according  to  the  direc- 
tion of  the  person  sending,  or  according  to  the  custom  of  the  trade. 

§  2045.  The  carrier  of  passengers  is  responsible  only  for  bag-  Forbaggage. 
gage  placed  in  his  custody,  yet  a  passenger  can  not  relieve  himself 
from  liability  for  freight  by  assuming  to  take  care  of  his  own  bag- 
gage. 

§  2046.  [It  shall  be  the  duty  of  the  railroad  companies  to  cause  checks  for 
their  conductors,  agents,  or  employees,  to  be  provided  with  checks,  ^^^^°^' 
so  as  to  check  all  trunks  or  separate  baggage  of  passengers  from 
station  to  station  on  their  roads,  when  required,  and  it  shall  be  the 
duty  of  the  conductor  of  everypassenger  train  to  cause,  upon  appli- 
cation to  him,  all  trunks  and  baggage  to  be  checked  from  any  station 
to  any  point  of  destination  on  their  road,  or  any  road  running  un- 
der the  control  of  the  company  of  which  he  is  conductor,  under  a  pen- 
alty of  fifty  dollars  for  every  failure  to  comply  promptly  with  such 
requisition,  to  be  recovered  in  the  Justice's  Court  of  the  District 
where  the  demand  for  check  was  made,  out  of  the  company  upon 
whose  conductor  the  demand  was  made.]  (a) 

§  2047.  The   common   carrier  is  bound  not   only  for  the   safe  For  delay, 
transportation  and  delivery  of  goods,  but  also  that  the  same  be 
done  without  unreasonable  delay. 

§  2048.  A  stoppage  in  transitu  by  the  vendor  or  consignor  re-  stoppage  in 
lieves  the  carrier  from  his  obligation  to  deliver,  nor  is  he  thence- 
forward responsible  for  more  than  ordinary  diligence  in  the  care 
of  the  goods. 

(a)  Acts  of  1857,  p.  65. 


y^ 


408  PT.  2.— TIT.  3.— CHAP.  3.— Other  Relations. 


Article  2. — Carriers,  etc. 


§  2049.  The  right  of  stoppage  in  transitu  exists  whenever  the 
When  it  vendor  in  a  sale  on  credit  seeks  to  resume  the  possession  of  goods 

exists.  ^  . 

while  thej  are  in  the  hands  of  a  carrier  or  middle  man,  in  their 
transit  to  the  vendee  or  consignee,  on  his  becoming  insolvent.  It 
/•Continues  until  the  vendee  obtains  actual  possession  of  the  goods. 
§  2050.  The  carrier  can  not  dispute  the  title  of  the  person  de- 
carriS^^^  ^^  ^^^^^'^-"^S  ^^®  goods  to  him  bj  setting  up  adverse  title  in  himself, 
or  a  title  in  third  persons,  which  is  not  being  enforced  against 
him. 

§  2051.  The  carrier  has  a  lien  on  the  goods  for  the  freight,  and 
Lien.  may  retain  possession  until  it  is  paid,  unless  this  right  is  waived 
bj  special  contract  or  actual  delivery.  This  lien  exists  only  when 
the  carrier  has  complied  with  his  contract  as  to  transportation. 
He  can  recover  pro  rata  for  the  actual  distance  transported  when 
the  consignee  voluntarily  receives  the  goods  at  an  intermediate 
point. 

§  2052.  [All  freight  bills  or  freight  lists  charged  against,  or  to 
Freight  lists  "[^q  collectcd  out  of  anv  person  for  whom  a  railroad  shall  carry 

— how  made  •^    ■•■  •' 

out.  freight,  in  this  State,  shall  contain  the  items  of  freight  charged  in 

said  bills,  or  freight  lists,  by  some  certain  and  specific  description, 
before  they  shall  be  collectable.]  (a) 

§  2053.  The  carrier  of  passengers  has  a  lien  on  the  baggage  not 
On  baggage,  only  for  its  freight,  but  for  the  passenger's  fare. 

§  2054.  The  carrier  may  require  the  nature  and  value  of  the 
caSer.^^^  goods  delivered  to  him  to  be  made  known,  and  any  fraudulent  acts, 
sayings,  or  concealment  by  his  customers  will  release  him  from 
liability. 

§  2055.  A  carrier  of  passengers  may  limit  the  value  of  the  bag- 

v^iu"oVba^'^  g^g^  ^0  be  taken  for  the  fare  paid :  in  case  of  loss,  however,  and 

^^^^  though  no  extra  freight  has  been  demanded  or  paid,  the  carrier  is 

responsible  for  the  value  of  the  baggage  lost ;  provided,  the  same 

be  only  such  articles  as  a  traveler  for  business  or  pleasure  would 

carry  for  his  or  her  own  use. 

§2056.   Carriers   of  passengers  may  refuse  to   admit,  or  may 

se^efsSay  ^j^^t  from  their  conveyances  all  persons  refusing  to  comply  with 

be  refused,    reasonable  regulations,  or  guilty  of  improper  conduct,  or  of  bad, 

dissolute,  doubtful,  or  suspicious  characters :  so  they  may  refuse 

to  convey  persons  seeking  to  interfere  with  their  own  business  or 

interest. 

(a)  Acts  of  1855-6,  p.  155. 


PT.  2.— TIT.  3.— CHAP.  3.— Other  Relations. 


409 


Article  3.— Of  Hiring. 


2057.  Railroad  companies  are  common  carriers,  and  liable  as     Liability 

*•  of  railroad 


such.     As  such  companies  necessarily  have  many  employees  who  companies 

■*■  "^  .  .  as  earners. 

can  not  possibly  control  those  who  should  exercise  care  and  dili- 
gence in  the  running  of  trains,  such  companies  shall  be  liable  to 
such  employees  as  to  passengers  for  injuries  arising  from  the  want 
of  such  care  and  diligence. 

§2058.  When  there  are  several  connecting  railroads  under  dif-  When  there 
ferent  companies,  and  the  goods  are  intended  to  be  transported 
over  more  than  one  railroad,  each  company  shall  be  responsible 
only  to  its  own  terminus  and  until  delivery  to  the  connecting  road  ; 
the  last  company  w^hich  has  received  the  goods  as  "  in  good  order  " 
shall  be  responsible  to  the  consignee  for  any  damage,  open  or  con- 
cealed, done  to  the  goods,  and  such  companies  shall  settle  among 
themselves  the  question  of  ultimate  liability. 


^ 


1^  M'-^' 


■t.-* 


ARTICLE   III. 


T  7 


OF  HIRING. 


Section. 

2059.  Contract  of  hiring. 

2060.  Title  of  hirer. 

2061.  Duty  as  to  delivery. 

2062.  Obligations  of  the  bailor. 

2063.  Engagement  of  hirer. 

2064.  Effect  of  violation. 

2065.  For  torts — who  may  sue. 

2066.  Eflfect  of  loss  or  destruction. 

2067.  Removal  out  of  the  State. 


Section. 

2068.  Reletting. 

2069.  Levy  and  sale  of  thing  hired. 

2070.  Hire  of  labor,  etc. 

2071.  Rule  of  duty. 

2072.  Title  to  thing,  etc. 

2073.  Labor  on  shares. 
■    2074.  Possession. 

2075.  Loss  or  destruction. 

2076.  Grenerally  an  entire  contract. 


§2059.  Hiriiig  is  a  contract  by  which  one  person  grants  to  Contract  of 
another  either  the  enjoyment  of  a  thing  or  the  use  of  the  labor 
and  industry,  either  of  himself  or  his  servant,  during  a  certain 
time,  for  a  stipulated  compensation,  or  where  one  contracts  for  the 
labor  or  services  of  another  about  a  thing  bailed  to  him  for  a  spe- 
cified purpose. 

§  2060.  The  hjrer  of  things  acquires  a  qualified  ownership  of 
them  for  the  time,  which  entitles  him  to  all  their  increase  and  to 
the  possession  and  enjoyment  of  them,  during  the  period  of  bail- 
ment, against  even  the  owner  himself. 

§  2061.  The  contract. may  be  for  the  return  of  the  thina;  or  of   Duty  as  to 
like  property  of  the  same  kind  and  quality.     In  the  former  case, 
the  risk  of  death  or  inevitable  accident  is  with  the  bailor,  and  he 
can  retake  possession  immediately  at  the  expiration  of  the  time 


Title  of 
hirer. 


delivery. 


410  PT.  2.— TIT.  3.— CHAP.  3.— Other  Relations. 

Article  3. — Of  Hiring. 


of  hiring.  In  the  latter  case,  the  risk  is  with  the  bailee,  and  he 
must  deliver  the  thing  hired  before  the  bailor's  interest  is  revested. 

§  2062.  The  obligations  of  the  bailor  of  things  are  to  do  no  act 
o?th?bair/  ^^  deprive  the  hirer  of  the  use  and  enjoyment  of  the  chattel 
during  the  period  of  the  bailment ;  to  keep  the  thing  in  suitable 
order  and  repair  for  the  purposes  of  the  bailment ;  and  to  war- 
rant the  right  of  possession,  and  that  the  thing  bailed  is  free  from 
any  secret  fault  rendering  it  unfitted  for  the  purposes  for  which  it 
is  hired. 

§  2063.  The  engagements  of  the  hirer  of  things  are  to  put  the 
of^thrMren  ^^i^g  to  no  other  use  than  that  for  which  it  is  hired ;  to  take  ordi- 
nary care  in  its  use ;  to  redeliver  at  the  expiration  of  the  bail- 
ment ;  and  to  comply  generally  with  the  terms  of  the  hiring.  If 
the  bailor  sends  his  own  agents  with  the  thing  bailed,  as  a  driver 
for  his  horse,  then  the  hirer  is  bound  either  to  the  bailor  or  to 
third  persons,  only  for  the  consequerices  of  his  own  directions  and 
for  gross  neglect. 

§  2064.  For  a  violation  of  the  engagements  of  either  party,  the 
Effect  of  other  may  abandon  the  contract ;  and  in  case  the  hirer  puts  the 
thing  to  a  different  use,  the  bailor  may  sue  as  for  a  conversion, 
even  though  the  hirer  be  an  infant. 

§  2065.  For  an  interference  with  the  possession,  the  right  of 
For  torts—  action  is  in  the  hirer ;  for  any  injury  to  the  property,  or  any 

whomaysue  .  .,,.  .,  „  iim 

mterierence  with  his  rights  or  property,  the  bailor  also  has  his 
right  of  action. 

§  2066.  The  loss  or  destruction  of  the  thing  hired,  without  fault 
Effect  of  loss  onjth^  part  of  the  hirer,  puts  an  end  to  the  bailment,  and  the  hirer 

or    destruc-  '     "  "^"^  " 

tion.  should  pay  only  for  the  time  it  was  enjoyed. 

§  2067.  No  hirer  of  things  has  a  right  to  remove  such  things 
Eemovai  bevond  the  lurisdiction  of  this  State,  except  by  consent  of  the 

out    of   the       f  »^  5  r         J' 

State,  etc.  bailor,  nor  to  put  the  thing  hired  to  any  hazardous  use,  unless 
specially  contracted  for. 

§  2068.  'No  hirer  of  a  thing  has  the  right  to  relet  or  hire  the 
Eeietting.  thing  bailed  to  another,  except  with  the  consent,  express  or  im- 
plied, of  the  bailor.  In  such  case,  the  bailor  may  either  take  im- 
mediate possession  of  the  thing  bailed,  or  he  may  w^aive  this  right 
and  hold  the  hirer  bound  to  extraordinary  care  and  diligence  on 
the  part  of  himself  and  the  hirer  from  him. 

§  2069.  A  thing  hired  is  not  subject  to  sale  under  judgment 
obtained  subsequent  to  the  contract  of  hire  against  the  owner,  but 


PT.  2.— TIT.  3.— CHAP.  3.— Other  Relations.  411 

Article  3. — Of  Hiring. 


may  be  levied  on,  and  a  bond  for  its  fortbcomins;  at  the  expiration      Levy  on 

.  ....  thing  hired. 

of  the  time  for  which  it  is  hired  may  be  demanded  of  the  person 
hiring,  ]jrovided,  the  time  of  hiring  does  not  exceed  one  year. 

§2070.  The  hire  of  labor  or  services  is  the  essence  of  every  Hire  of 
bailment  in  which  goods  are  delivered  to  another,  and  compensa- 
tion paid  for  care,  attention,  or  labor  bestowed  upon  them.  It 
includes  the  contracts  of  forwarding  and  commission  merchants, 
factors,  wharfingers,  mechanics,  and  all  agents  in  such  transac- 
tions. 

§  2071.  In  all  such  cases,  the  bailee  is  not  only  bound  to  exer-  Euieof  duty 
cise  skill  in  the  labor  and  work  bestowed,  but  it  is  a  part  of  the 
contract  that  he  shall  exercise   ordinary  care  and  diligence  in 
keeping  and  protecting  the  articles  entrusted  to  him. 

§  2072.  In  such  cases,  if  the  idenjbic^l  article,  though  materially      .Title  to 
changed  by  the  labor  bestowed,  is  to  be  returned,  the  title  remains  ^^^^^  ^^^T 

&  •/  '  "  IS  bestowed. 

in  the  bailpr.  If  the  bailee  furnishes  a  portion  of  the  materials, 
the  title  to  the  entire  structure  is  in  the  party  furnishing  the 
larger  portion  of  the  materials.  If  the  bailor  furnishes  materials — 
such  as  silver  for  plate — but  the  contract  does  not  contemplate  the 
use  of  that  material  specially — then  the  title  is  in  the  bailee,  to 
the  article  made,  until  it  is  delivered. 

§  2073.  If  materials  are  furnished  to  be  manufactured  on  shares,    Labor  on 
the  title  remains  in  the  bailor  until  the  delivery  to  him  of  his  por- 
tion of  the  manufactured  goods. 

§  2074.  The  bailee,  for  hire  of  labor  and  services,  is  entitled  to  Possession. 
the  possession  of  the  thing  bailed,  pending  the  bailment.     He  has 
also  a  special  lien  upon  the  same  for  his  labor  and  services,  until    Lien. 
he  parts  with  possession;  and  if  he  delivers  up  a  part,  the  lien 
attaches  to  the  remainder  in  his  possession  for  the  entire  claim 
under  the  same  contract. 

§  2075.  If  the  thing  bailed  for  labor  and  services  be  destroyed   Loss  or  do- 

st.niotion 

without  fault  on  the  part  of  the  bailee,  the  loss  falls  upon  the 
bailor,  and  the  bailee  may  demand  compensation  for  the  labor 
expended  and  materials  used  upon  it. 

§  2076.  As  a  general  rule,  the  contract  of  bailment  is  an  entire  Generally  an 
contract,  and  a  full  performance  is  a  condition  precedent  to  an  tract. 
action  upon  it.  {  L  kL 


412 


PT.  2.— TIT.  8.— CHAP.  3.— Other  Relations. 


Article  4. — Of  Deposits. 


ARTICLE  ly. 


OF   DEPOSITS. 

Section. 

Section. 

2077.  Definition. 

2088.  Inn, 

2078.  Voluntary  or  involuntary. 

2089.  Liability  of  inn-keeper. 

2079.  Ba-nk  of  deposit. 

2090.  Guests. 

2080.  Carrying  deposit. 

2091.  Liability  of  inn-keeper  for  goods 

2081.  Redelivery. 

2092.  Proof. 

2082.  Using  deposits. 

2093.  Deposit  of  valuables. 

2083.  Reimbursements. 

2094.  Presumption  of  law. 

2084.  Deposit  for  hire. 

2095.  Duty  of  inn-keeper. 

2085.  Factor's  lien. 

2096.  His  lien. 

2086.  Warehousemen. 

2097.  Keeper  of  livery  stable. 

2087.  Wharfinger. 

§  2077.  When  chattels  are  delivered  by  one  person  to  another 
Definition,  to  keep  for  the  use  of  the  bailor,  it  is  called  a  deposit ;  the  deposi- 
tary may  undertake  to  keep  it  without  reward,  or  gratuitously :  it 
is  then  a  naked  deposit.    If  he  receives  or  expects  a  reward  or  hire, 
he  is  then  a  depositary  for  hire :  very  variant  consequences  follow 
the  difference  in  the  contract. 
ntar       ^  2078.  A  porson  may  voluntarily  undertake  to  be  a  depositary, 
ter  ^°^^^"'^'  or  he  may  become  so  involuntarily,  as  by  finding  :  if  a  naked  de- 
Liabiiity.  positary,  he  is  responsible  only  for  gross  negligence. 

§  2079.  Deposits  of  money  in  a  bank  do  not  constitute  a  case 
Bank  de-  of  naked  deposit,  the  use  of  the  money  beino-  a  valuable  conside- 

posits.  ^  ^  f  ^  ./  o 

ration.     A  special  deposit  of   a  sealed  package  of  money  would 
be  a  naked  deposit. 

§  2080.  If  one,  in  addition  to  safe  keeping,  undertakes  gratuit- 
carrying  Qusly  to  Carry  money,  or  other  articles,   to  another  place,  his  lia- 
bility  is  the  same  as  that  of  a  naked  depositary. 

§  2081.  A  naked  depositary  may,  at  any  time,  terminate  the 
Eedeiivery.  bailments  by  a  redelivery  of  the  articles  to  the  bailor. 

§  2082.  A  naked  depositary  may  not  use  the  deposit,  without 
^ts"^  ^^"  ii^creasing  his  responsibility,  unless  such  use  is  necessary  for  its 
preservation,  or,  from  the   circumstances,  the  consent  of  the  de- 
positor may  be  reasonably  presumed. 

§  2083.  A  naked  depositary  is  entitled  to  be  reimbursed    all 
Ke^^^urse-  charges  and  expenses  incurred  by  reason  of  the  deposit,  and  may 
retain  possession  until  the  same  are  paid. 

§  2084.  Depositaries  for  hire  are  bound  to  exercise  ordinary 
care  and  diligence,  and  are  liable  as  in  other  cases  of  bailment  for 


PT.  2.— TIT.  3.— CHAP.  B.-^Other  R.elations.  41S 


Article  4. — Of  Deposits. 


hire  ;  tliey  have  a  lien  also  for  their  hire,  and  may  retain  posses-  Deposits  for 
sion  until  it  is  paid. 

§2085.  A  factor's  lien  extends  to  all  balances  on  general  ac- Factor's  iien 
count,  and  attaches  to  the  proceeds  of  the  sale  of  goods  consigned, 
as  well  as  to  the  goods  themselves.  Peculiar  confidence  being  re- 
posed in  the  factor,  he  may,  in  the  absence  of  instructions,  exer- 
cise his  discretion  according  to  the  general  usages  of  the  trade  : 
in  return,  greater  and  more  skillful  diligence  is  required  of  him, 
and  the  most  active  good  faith. 

^  2086.  A  warehouseman  is  a  depositary  for  hire,  and  is  bound  warehouse- 
only  for  ordinary  diligence  :  a  failure  to  deliver  the  ^oods,  on  de- 
mand, makes  it  incumbent  on  him  to  show  the  exercise  of  ordinary 
diligence. 

§  2087.  A  wharfinger  is   also   a   depositary  for  hire,  and  liable  wharfinger. 
upon  the  same  principles.  .  '^  "j 

§2088.  Under  the  term  "inn"   the  law  includes  all  taverns,       inn. 
hotels,  and  houses  of  public  general  entertainment  for  guests. 

§  2089.  An  inn-keeper  is   a  depositary  for  hire,  but  from  the  Liability  of 

.  .....  inn-keeper. 

peculiar  nature  of  his  business,  his  liability  is  governed  by  more 
stringent  rules. 

§  2090.  All  persons  entertained  for  hire  at  an  inn,  or  tavern,  or     Guests. 
hotel,  are  guests. 

§2091.  An  inn-keeper  is  bound  to  extraordinary  diligence  in  Liability  of 

,  PI'  S  1  •  1  inn -keeper 

preserving  the  property  ot  his  guests,  entrusted  to  his  care,  and  I'^r  stolen 
is  liable  for  the  same,  if  stolen,  where  the  guest  has  complied  with  .  -  , 
all  reasonable  rules  of  the  inn.  Oi^^  ^7 

§  2092.  It  is  not  necessary  to  show  actual  delivery  to  the  inn-  proof. 
keeper.  Depositing  goods  in  a  public  room,  set  apart  for  such 
articles,  or  leaving  them  in  the  room  of  the  guest,  or  placing  a 
horse  in  the  stable,  is  a  delivery  to  the  inn-keeper  ;  if,  however, 
the  guest  delivers  his  goods  to  a  servant  under  special  charge  to 
him  to  keep  the  same,  the  inn-keeper  is  not  liable  therefor. 

§  2093.  The  inn-keeper  may  provide  an  iron  safe,  or  other  place    Deposit  of 
of  deposit  for  valuable  articles,   and  by  posting  a  notice  thereof,  ^^^"''''^^®^- 
may  require  his  guests  to  place  such  valuable  articles  therein,  or 
he  will  be  relieved  from  responsibility  for  them. 

§  2094.  In  case  of  loss,  the  presumption  is  want  of  proper  dili-     Presump- 
gence  in  the  landlord.     Negligence  or  default  by  the  guest  him- 
self, of  which  the  loss  is  a  consequence,  is  a  sufficient  defense. 
The  inn-keeper  can  not  limit  his  liability  by  a  public  notice  ;  he 


414 


PT.  2.— TIT.  8.— CHAP.  3.-^0ther  Relations. 


Article  5.— Of  Loans. 


^ 


"). 


x^ 


(i 


may  adopt  reasonable  regulations  for  his  own  protection,  and  the 

publication  of  such  to  his  guests  binds  them  to  comply  therewith. 

§  2095.  The  inn-keeper  who  advertises  himself  as  such  is  bound 

Duty  of  inn-  to  receivc,  as  far  as  he  can  accommodate,  all  persons  offering:  them- 

keeper.  '  . 

selves  as  guests,  of  good  character,  and  who  are  willing  to  comply 
with  his  rules.  Persons  entertaining  only  a  few  individuals,  or 
simply  for  the  accommodation  of  travelers,  are  not  inn-keepers, 
but  simply  depositaries  for  hire,  bound  to  ordinary  diligence. 

§  2096.  The  inn-keeper  has  a  lien  on  the  goods  of  all  his  guests 

His  lien,    for  all  his  reasonable  charges,  and  may  retain  possession  until  they 

are  paid ;  hi»  lien  attaches  though  the  guest  has  no  title,  or  even 

stole  the  property,  and  the  true  owner  must  pay  the  charges  upon 

that  specific  article  before  receiving  the  same. 

§  2097.  The  keeper  of  a  livery  stable  is  a  depositary  for  hire, 
Keeper  of  and  is  bound  to  the  same  diligence  and  entitled  to  the  same  lien  as 

Uvery  stable.  .         ■,  ^ 

an  mn-keeper.^ 


ARTICLE  V. 

OF 

LOANS. 

Section. 

Section. 

2098.  Division  of  loans. 

2104.  What  revocable. 

2099.  Loan  for  use. 

2105.  Necessary  charges. 

2100.  For  whose  benefit. 

2106.  Increase. 

2101.  Diligence. 

2107.  Loans  to  married  women 

2102.  Borrower  no  title. 

2108.  How  used. 

2103.  Not  transferable. 

2109.  Death  of  parties. 

§  2098.  Loans  are  of  two  kinds — for  consumption  or  for  use.  A 
Division  of  loan  for  consuiTiption  is  where  the  article  is  not  to  be  returned  in 
specie,  but  in  kind ;  this  is  a  sale,  and  not  a  bailment. 

§  2099.  A  loan  for  use  is  the  gratuitous  grant  of  an  article  to 
Loanforuse.  another  for  use,  to  be  returned  in  specie,  and  may  be  either  for  a 
certain  time  or  indefinitely,  and  at  the  will  of  the  grantor. 

§  2100.  A  loan  is  generally  entirely  for  the  benefit  of  the  bor- 
For  whose  rowcr,  but  somctimcs  it  is  for  the  joint  benefit  of  the  lender  and 
borrower,  and  occasionally  for  the  exclusive  benefit  of  the  lender, 
as  where  one  lends  a  horse  to  another  to  transact  business  for  the 
lender ;  in  the  two  latter  cases  the  responsibility  of  the  borrower 
is  varied  and  less  stringent,  according  to  the  circumstances  and 
purpose  of  the  loan. 


*  See  further,  as  to  "  Liens,"  Sections  1959  to  1984,  inclusive. 


PT.  2.— TIT.  3.— CHAP.  3.— Other  Relations.  415 

Article  5. — Of  Loans. 

§2101.  The  borrower  usually  is  bound  to  exercise  extraordinary   Diligence. 
care  and  diligence,  and  is  liable  for  slight  neglect. 

§  2102.  The  borrower  acquires  no  property  in  the  thing  loaned,     Borrower 
but  only  the  right  to  possess   and  use  it.     For  any  interference 
with  that  right  he  may  maintain  an  action. 

§  2103.  A  loan  beins;  for  the  personal  benefit  and  use  of  the    Not  trans- 

_-—  *='  ■"■  _  ferable. 

borrower,  he  cannot  transfer  the  possession  to  another  without  the 
consent,  express  or  implied,  of  the  lender ;  Jience^  if  the  loan  be  Not  subject  . 
for  a  definite  time  the  borrower  has  no  such  interest  as  is  subject  sale. 
to  levy  and  sale. 

§  2104.  The  lender  may  not  revoke  a  loan  for  a  definite  time  so  when  revo- 
long  as  the  borrower  meets  fully  his  engagements.     A  loan  at  will 
or  indefinitely  may  be  revoked  at  any  time. 

§  2105.  A  loan  beinsi;  gratuitous,  the  borrower  must  meet  all  ,  Necessary 

o    o  ^  charges. 

necessary  charges  and  expenses  in  preserving  and  taking  care  of 
the  property  during  the  time  of  the  loan.  If,  however,  extraordi- 
nary expenses  be  necessary  to  protect  the  property  from  destruc- 
tion, the  lender  must  reimburse  the  borrower  such  expenses. 

§  2106.  The  increase,  except  by  special  contract,  belongs  to  the   increase. 
lender. 

§  2107.   By  consent  of  the  husband,  a  loan  may  be  made  to  a        Loans 

.  '^  ^  ''  .  to   married  ^  ^ 

married  woman.     In  such  case,  the  husband  is  bound  as  if  he  was  women.  •     «. 

the  borrower,  but  has  no  control  over  the  property. 

§  2108.  The  loan  must  be  used  strictjy  for  the  purpose,  and  in  How  used.         j^ 
the  manner  contemplated  by  the  parties  in  contract.     A  violation 
by  the  borrower  is,  in  law,  a  conversion. 

§  2109.  The  death  of  the  lender  terminates  all  indefinite  loans.    Death  of 
or  loans  at  will  or  pleasure.     It  does  not  terminate  a  loan  for  a 
definite  time.     The  death  of  the  borrower  terminates  all  loans  to 
him. 


ARTICLE  VL 

PLEDGES     OR     PAWNS. 


Section. 

2110.  What  is. 

2111.  Pledge  of  notes. 

2112.  Sale  of  pawns. 

2113.  Use  of  goods  pawned. 

2114.  Property  in  goods  pawned. 


Section. 

2115.  Transfer. 

2116.  Sale  under  execution. 

2117.  Liability  of  pawnee. 

2118.  Necessary  expenses. 

2119.  Increase. 


§  2110.  A  pledge,  or  pawn,  is  property  deposited  with  another 


416  PT.  2.— TIT.  3.— CHAP.  3.— Other  Relations. 

Article  6. — Pledges  or  Pawns. 

What  is.  as  security  for  the  payment  of  a  debt.  Delivery  of  the  property 
is  essential  to  this  baihnent,  but  promissory  notes  and  evidences 
of  debt  may  be  delivered  in  pledge.  The  delivery  of  title  deeds 
creates  no  pledge. 

§2111.  The  receiver  in  pledge  or  pawn  of  promissory  notes  is 

Pledge  of  such  a  hoTia  fide  holder  as  will  protect  him  under  the  same  circum- 

Qotes.  "^  ••• 

stances  as  a  purchaser  from  the  equities  between  the  parties,  but 
not  from  the  true  owner,  if  fraudulently  transferred,  though  without 
^  notice  to  him. 

§  2112.  The  pawnee  may  sell  the  property  received  in  pledge 
Sale  by  after  the  debt  becomes  due  and  remains  unpaid;    but  he  must 

pawnee.  .  •pi-i  n    ^  •       ' 

always  give  notice  tor  thirty  days  to  the  pawner  oi  his  intention 
to  sell,  and  the  sale  must  be  in  public,  fairly  conducted,  and  to  the 
highest  bidder,  unless  otherwise  provided  by  contract. 

§  2113.  The  pawnee  may  use  the  goods  pawned,  provided  the 

Use  of  goods  use  does  not  impair  their  real  value.     He  has  a  lien  on  them  for  the 

money  advanced,  though  not  for  other  debts  due  to  him.     He  may 

Lien,      retain  possession  until  his  lien  is  satisfied,  and  has  a  right  of  action 

against  any  one  interfering  therewith. 

"^      §  2114.    The  general   property  in    the    goods   remains   in  the 

Property  in  pawner,  but  the  pawnee  has  a  special  property  for  the  purposes  of 

3  '  •    ed.  the  bailment.     The  death  of  neither  party  interferes  with  their 

respective  interests. 

§  2115.  The  pawnee  may  transfer  his  debt,  and  with  it  posses- 
Transfer,    sion  of  the  thing  pawned,  and  the  purchaser  stands  precisely  in 
his  situation. 

§  2116.  Property  in  pawn  may  be  seized  and  sold  under  execu- 
saie  under  tiou  agalust  the  pawucr,  but  upon  notice  by  the  pawnee  to  the 
levying  officer,  the  Court  in  distributing  the  proceeds  will  recog- 
nize his  lien  according  to  its  dignity,  and  give  such  direction  to  the 
funds  as  shall  protect  his  legal  rights. 

§  2117.  The  pawnee  is  bound  for  ordinary  care  and  diligence. 
Liability  If  the  property  pledged  be  promissory  notes  or  other  evidences  of 

of  pawnee.  x       x         ./   i  o  i  ./ 

debt,  the  pawnee  must  exercise  ordinary  diligence  in  collecting 
and  securing  the  same. 

§  2118.  The  pawner  must  pay  all  necessary  expenses  and  repairs 
Necessary  upou  the  property,  but  if  the  pawn  has  itself  been  profitable,  or  if 

expenses.         .  ,  ,     .  ,  .  ,  •• 

the  pawnee  has  used  it  to  his  own  advantage,  the  pawner  may 
require  him  to  account  for  such  profits. 
Increase.       §  2119.  All  increase  of  property  in  pawn  belongs  to  the  pawner. 


PT.  2.— TIT.  3.— CHAP.  4.— Other  Relations.  41T 

Article  1. — Of  the  Contract. 

CHAPTER   IV. 

OF    PRIKCIPAL    AND    SURETY. 


Article  1. — Of  the  Contract. 

Article  2. — Relative  Rights  of  Creditor  and  Surety, 
Article  ^.—-Rights  of  Surety  against  Principal. 
Article  4. — Rights  of  Sureties  among  themselves. 
Article  5, — Rights  of  Sureties  as  to  Third  Persons. 


ARTICLE  I. 

OF     THE     CONTRACT. 


SECTIo^^ 

2120.  What  constitutes  suretyship. 

2121.  The  nature  of  the  obligation. 


Section. 

2122.  Stricti  juris. 

2123.  Form  immaterial. 


§  2120.  The  contract  of  suretyship  is  that  whereby  one  obligates    what  con- 

\  .  .  .  stltutessure- 

himself  to  pay  the  debt  of  another  in  consideration  of  credit  or  tysWp.    q^  ^ 
indulgence,  or  other  benefit,  given  to  his  principal,  the  principal 
remaining  bound  therefor.     It  differs  from  a  guaranty  in  this,  that 
the  consideration  of  the  latter  is  a  benefit  flowing  to  the  guarantor. 

§2121.  The  obligation  of  the  surety  is  accessary  to  that  of  his    The  nature 

,       .  .p  c  '  oftheobliga- 

principal,  and  if  the  latter  from  any  cause  becomes  extinct,  the  tion. 
former  ceases   of  course,  even  though  it  be  in  judgment.     If,  /  __    f  i4^U 
however,  the  original  contract  of  the  principal  was  invalid  from  a., 
disability  to  contract,  and  this  disability  was  known  to  the  surety, 
he  is  still  bound. 

§  2122.  The  contract  of  suretyship  is  one  of  strict  law,  and  his  stHcu juris 
liability  will  not  be  extended  by  implication  or  interpretation. 

§2123.  The  form  of  the  contract  is  immaterial,  provided  the     Formim- 

„  „  1  •  •  1  1      •  1  material. 

fact  or  suretyship  exists ;   hence  an  accommodation  endorser  is 
considered  merely  as  a  surety. 

27 


418 


PT.  2.-  TIT.  3.— CHAP.  4.— Other  Relations. 


Article  2. — Relative  Rights  of  Contractor  and  Surety. 


ARTICLE  II. 


RELATIVE   RIGHTS   OF   CREDITOR   AND   SURETY. 


Section. 

2124.  Effect  of  release. 

2125.  A  change  in  contract. 

2126.  Of  risk, 

2127.  Tender  of  surety. 

2128.  Notice  to  sue.       * 


1     y 


Section. 

2129.  Holding  to  bail  of  surety. 

2130.  Extending  liability. 

2131.  Promise  in  ignorance.' 

2132.  Process — bow  sued  out. 


A 


M     )  <iLvf  i'tf*v\ 


)-n 


Oil-  x(t>V 

hcu'^iTYl/Of  risk 


§  2124.  The  creditor  may  release  or  compouncl  with  the  surety 
Effect  of -vYithout  releasing  the  principal,  but  the  release  of  or  compounding 
with  one  surety  discharges  a  co-surety. 

§  2125.  A  change  of  the  nature  or  terms  of  a  contract  is  called 
change  a  novatiou :  such  novation,  without  the  consent  of  the  surety,  dis- 

of  contract.  '  '  *' 

charges  him. 


..«^v 


,  CHi'- 


surety. 


§2126.  Any  act  of  the  creditor,  either  before  or  after  judg- 
ment against  the  principal,  which  injures  the  surety,  or  increases 
his  risk,  or  exposes  him  to  greater  liability,  will  discharge  him ;  a 
mere  failure  by  the  creditor  to  sue  as  soon  as  the  law  allows,  or 
negligence  to  prosecute  with  vigor  his  legal  remedies,  unless  for  a 
consideration,  will  not  release  the  surety. 

§  2127.  The  surety  may  tender  to  the  creditor  the  amount  of 

Tender  by  his  debt,  and  demand  that  the  evidence  of  and  securities  for  the 
same  be  delivered  up  to  him,  to  be  enforced  against  his  principal 
or  co-sureties ;  and  a  failure  of  the  creditor  to  comply,  when 
within  his  power,  shall  operate  to  discharge  the  surety. 

§  2128.  Any  surety,  guarantor,  or  endorser,  at  any  time  after 

Notice  to  the  debt  on  which  he  is  liable  becomes  due,  may  give  notice  in 
writing  to  the  creditor,  or  his  agent,  or  any  person  having  pos- 
session or  control  of  the  obligation,  to  proceed  to  collect  the  same 
out  of  the  principal,  or  any  one  of  several  principals  liable  there- 
for ;  and  if  the  creditor  or  holder  refuses  or  fails  to  commence  an 
action  for  the  space  of  three  months  after  such  notice  (the  princi- 
pal being  within  the  jurisdiction  of  this  State),  the  endorser,  guar- 
antor, or  surety  giving  the  notice,  as  well  as  all  subsequent  en- 
dorsers and  all  co-sureties,  shall  be  discharged ;  \_frovided^  that 
no  notice  shall  be  considered  a  compliance  with  the  requirements 
of  this  Section  which  does  not  state  the  County  of  the  principal's 
residence.]  (a) 

(a)  Acts  of  1866,  p.  23. 


PT.  2. — TIT.  8.— CHAP.  4. — Other  Relations. 


419 


Article  2. — Relative  Rie-lita  of  Creditor  and  8nretv. 


S  2129.  Anv  surety,  guarantor,  or  endorser,  desiring  to  have    Holding  to 

•^  V  J '  to  '  7    ^  to  bail  by  eure- 

bis  principal  held  to  bail,  may  [whether  the  debt  is  due  or  not]  (a)  ty. 
make  affidavit  before  any  one  authorized  to  administer  an  oath, 
stating  the  fact  of  his  suretyship,  guarantee  or  endorsement,  and 
the  contract  on  whioh  he  is  liable,  and  that  he  has  reason  to 
apprehend  that  the  payment  of  said  debt,  or  some  part  thereof, 
will  devolve  upon  him,  unless  his  principal  is  held  to  bail.  Upon 
such  affidavit  being  presented  to  the  creditor,  or  his  agent  or  attor- 
ney holding  such  contract,  it  shall  be  his  duty  to  commence  suit 
forthwith;  and  such  affidavit  being  filed  with  the  petition  shall 
operate  as  the  affidavit  of  the  plaintiff  in  other  cases.  Upon  fail- 
ure of  the  creditor  to  sue  on  such  affidavit  being  presented  as 
above  set  forth,  the  surety,  guarantor,  or  endorser  shall  be  dis- 
charged. 

§  2130.   The  creditor  must  pursue  his  remedy  asrainst  the  surety    ExteTiding. 

.   ,  .        1  •  -1      1  1        1  1  .1       liability, 

withm  the  time  prescribed  by  law,  and  no  payment  or  promise  by 

the  principal  or  by  a  co-surety  can   extend  the  obligation  of  the /)^^^"|'"'^ 

surety  or  the  remedy  of  the  creditor  against  him.  ^  / 

§2131.  If  by  any  act  of  the  creditor  the  surety  is  discharsred,    PrGmis«in 
and  in  ignorance  of  the  fact  of  such  discharge  the  surety  promises 
to  pay,  such  promise  shall  not  be  binding. 


Ignorance. 


§  2132.  When  the  fact  of  suretyship  appears  on  the  face  of  the     Process— 

,  .,  how6uedt)ut 

contract,  the  creditor  shall  sue  out  process  and  enter  up  judgment 
against  him  as  such. 


ARTICLE  III. 


RIGHTS   OF  SURETY  AGAINST   PRINCIPAL, 


SECTlOJiT-. 

2133,  Process  against  P'rincipal. 

2134.  For  money  paid. 

2135s  Effect  of  judgmeiiit  against  surety. 

2136.  Payment  of  usury. 

2137.  Foreclosure  ef  mortgage* 

2138.  Proof  of  suretyship, 

2139.  After  judgment. 


Section. 

2140.  Control  of  A /«- 

2141.  When  sued  separately. 

2142.  Payment  pending  the  action. 

2143.  Contribution. 

2144.  Control  by  endorser. 

2145*  Bona  fi,de  purchaser  protected. 


§  2133.  A  surety  or  endorser  is  entitled  to  the  process  of  attach-       Pr  >ces3 

.  1  .  •       •       1  1     r.  against  piln- 

ment,  or  Tie  exeat,  agamst  his  principal  before  payment  of  the  debt  ^ipai. 
under  the  same  circumstances  as  any  other  creditor. 


(a)  Acts  of  1864-5,  p.  106. 


y 


420  PT.  2.—TIT.  8.— CHAP.  4.-~0TniiiR  Re-latioh'S. 


Article  3. — Rights  of  Surety  against  Principal. 


§  2134.  Payment  by  a  surety  or  endorser  of  a  debt  past  due 
Formoney  entitles  him  to  proceed  immediately  against  his  principal  for  the 
sum  paid,  with  interest  thereon,  and  all  legal   costs  to  which  he 
may  have  been  subjected  by  the  default  of  his  principaL 

§  2135.  If  the  payment  was  made  under  judgment,  and  the 
?^^^ct  of  principal  had  notice  of  the  pendency  of  the  suit  against  the  surety, 
tJs. surety  ^hc  amount  of  such  judgment  shall  be  conclusive  against  the 
principal  as  to  the  amount  for  which  the  surety  was  bound.  If 
the  payment  was  not  made  under  judgment,  the  principal  may  dis- 
pute the  validity  of  the  payment  as  to  the  amount,  or  as  to  the 
competency  of  the  person  to  whom  it  v/as  paid. 

§  2136.   If  the  contract  was   originally  usurious,  and  the  surety 
p.iyraent  in  payment  includes  the  usury,  he  shall  recover  the  same  from  the 
principal,  unless  previous  to  the  payment,  he  had  notice  oi  the  in- 
tention of  the  principal  to  resist  usury. 

§  2137.  If  the  principal  executes  any  mortgage  or  gives  other 
Foreclosure  sccuritv  to  the  surety  or  endorser  to  indemnify  him  against  loss 
by  reason  of  nis  suretyship,  the  surety  or  endorser  may  proceed 
to  foreclose  such  mortgage,  or  enforce  such  other  lien  or  security 
so  soon  as  judgment  shall  be  rendered  against  him  on  his  con- 
tract. 

§  2138,  If  the  fact  of  suretyship  does  not  appear  on  the  face  of 
Proof  of  the  contract,  it  may  be   proved   by   parol,   either  before  or  after 

surety  aLip.     ^  .  .  — 

^,/'     ^^^   ^Y       judgment,  the  creditor  not  being   delayed   in  his  remedy  by  such 
Vn-f*''^''''^^  issue   between   the   principal  and  his  surety.     If  before 

judgment,  the  surety  shall  give  notice  to  the  principal  of  his  in- 
tention to  make  such  proof. 

§  2139.  If  judgment  has  been  rendered  without  such  proof,  the 
Afterjudg-  surcty  sliall  give  at  least  ten  days'   notice  to  his  principal  of  hiS' 

ment.  .  .  . 

intention  to  apply,  at  the  next  term  of  the  Court  where  the  judg- 
ment was  entered,  to  make  such  proofs,  and  to  have  the  fact  of  his 
suretyship  entered  of  record,  together  with  an  order  for  the  con- 
trol of  such  judgment  and  execution  there  are  against  the  princi- 
pal, on  payment  of  the  same  by  him. 

§  2140.  Any  surety  on  the  original  contract,  or  on  stay  of  exe- 
Control  of  cution,  or  an  appeal,  or  in  any  other  way,  or  the  representative  of 
a  deceased  surety,  who  shall  have  paid  off  or  discharged  the  judg- 
ment, or  execution  in  whole  or  in  part,  and  shall  have  the  fact  of 
such  payment  by  him,  entered  on  such  execution  by  the  plaintiff 
or  his  attorney,  or  the  collecting  officer,  shall  have  the  control  of 


fi 


PT.  2.— TIT.  3.— CHAP.  4.— Other  Relations.  421 


Article  3. — Rights  of  Surety  against  PrinoipaL 


such  execution,  and  the  judgment  upon  which  it  is  founded,  to  the 
same  extent  as  if  he  was  the  original  plaintiff  therein,  and  be  sub- 
rogated to  all  the  rights  of  such  plaintiff,  for  the  purpose  of  re- 
imbursing himself  from  his  principal. 

§  2141.  If  the  surety  be  sued  separately  from  his  principal,  on  whenBued 
payment  hy  him  of  the  judgment  against  him,  he  shall  be  entitled " 
to  control  the  judgment  and  execution  against  his  principal  in  the 
same  manner  as  if  the  judgment  and  execution  Yfere  joint ;  and  if 
he  does  not  appear  as  surety  in  the  judgment  against  him,  he  may 
give  notice  and  make  the  proof  and  obtain  the  control  in  the  same 
manner  as  pointed  out  in  cases  of  joint  judgments. 

§  2142.  If  the  surety  pay  off  the  debt  pending  the  action  against     Payments 

..,  IT-  t  n  •  1  ••11  1  pending-  the 

the  principal  and  him>seii,  or  aganist  the  principal  alone,  such  pay-  action. 
ment  shall  operate  only  to  cause  the  action  to  proceed  for  the  ben- 
efit of  such  surety,  and  the  judgment  may  be  entered  in  the  name 
of  the  original  plaintiff  for  the  use  of  such  surety. 

§  2143.  All  the  foregoing  provisions  shall  apply  to  eases  where  contribu- 
there  are  more  than  one  surety,  so  as  to  enable  a  surety  discharg- 
ing the  joint  debt,  in  whole  or  in  part,  either  pending  the  action 
or  after  joint  or  several  judgments,  to  control  the  same  against 
his  co-sureties  for  the  purpose  of  compelling  them  to  contribute 
their  respective  shares  of  the  amount  so  paid  by  him. 


§  2144.  Every  indorser,  who  shall  pay  off  and  discharge  the  controiby 
debt  on  which  he  is  indorser,  either  pending  the  action  or  after 
judgment,  whether  the  judgment  be  joint  against  the  principal 
and  all  the  indorsers,  or  several  against  such,  shall  be  entitled  to 
control  the  judgment  and  executions  founded  thereon  against  the 
principal  and  all  prior  indorsers,  in  the  same  manner,  upon  the 
same  proof,  and  under  the  same  circumstances,  as  has  been  herein 
provided  in  the  case  of  sureties ;  and  if  such  indorser  shall  col- 
lect the  same  of  a  prior  indorser,  such  prior  indorser  shall  have 
the  same  control  of  the  judgment,  or  judgments,  against  the  prin- 
cipal, and  any  indorser  prior  to  him. 

§  2145.  When  the   surety  does  not  appear  to  be  such  in  the    Bonajide, 
judgment  and  execution,  the  lien  of  such  judgment,   when  con-   protected? 
trolled  by  the  surety,  shall  not  interfere  with  hona  fide  purchasers 
without  notice  from  the  principal,  whose  rights  were  vested  before 
the  order  giving  control  to  the  surety  was  granted. 


422  PT.  2.— TIT-  3.— CHAP.  4.— Otheb  Relattoits. 

Article  4. — Ri<^hts  of  Sureties  amona;  themselves. 


y 

/ 


/  ARTICLE  lY. 

EIGHTS    OF    SURETIES    AMONG    THEMSELVES. 


Sectiott. 

2146.  Right  of  contribution. 

2147.  Interest  thereon. 


Section. 

2148.  Duty  to  account. 

2149.  Ne  exeat  at  instance  of  surety. 


§  2146.  Where  several  are  sureties  for  the  same  principal,  for 
eon^SliVio^if  *^®  same  sum  of  money,  either  bj  one  or  by  distinct  instruments, 
and  one  pays  more  than  an  equal  share  of  the  sum,  he  may  compel 
contribution  from  his  co-sureties.  If  one  of  the  co-sureties  be 
insolvent,  the  deficiency  in  his  share  must  be  borne  equally  by  the 
solvent  sureties. 

§  2147.   The  sum  recovered  as  contribution  bears  interest  from 
ciie°eoT^*^    the  tinie  it  was  paid  by  the  surety,  and  shall  be  deemed  and  held 
a  liquidated  demand. 

§  2148.  A  surety  suing  for  contribution  must  first  account  for 
Duty  to  ac-  all  moucy  or  other  thing  received  from  the  principal  to  indemnify 
him  against  loss ;  and  if  he  has  paid  the  entire  debt,  he  may  corn- 
Transfer  pel  his  co-surety  to  transfer  to  him  anymorta;affe  or  other  security 

of  securities.  ^  ,  •       .       -i     ^         i  -pi  •  i 

taken  from  the  principal  for  the  protection  of  such  co-surety  by 
relieving  him  of  all  liability  for  contribution. 

§  2149.   One  of  several  sureties  upon  a  debt  not  due,  or  a  bond 
at  "^he^^'tn-  ^^  Other  obligation  not  yet  complied  with,  or  if  the  debt  be  due  and 
surety.  ^^  *  remains  unpaid,  may,  by  writ  of  ne  exeat^  detain  a  co-surety  seek- 
ing to  remove  beyond  the  jurisdiction  of  the  State,  until  their 
joint  obligation  is  discharged. 


ARTICLE  V. 

EIGHTS    OF    SURETIES    AS    TO    THIRD    PERSONS. 

Section.  j  Se.ction. 

2150.  Subrogation.  1       2151.  As  to  sureties. 

§  2150.  A  surety  who  has  paid  the  debt  of  his  principal  is  sub- 
Subrogation.  rogated,  both  at  law  and  in  equity,  to  all  the  rights  of  the  credi- 
tor, and  in  a  controversy  with  other  creditors  ranks  in  dignity  the 
same  as  the  creditor  whose  claim  he  paid. 

§  2151.  He  is  entitled,  also,  to  be  substituted  in  place  of  the 
eudties*  ^^'  ^i^editor  as  to  all  securities  held  by  him  for  the  payment  of  the 
debt. 


PT.  2.— TIT.  3.— CHAP.  5.— Other  Relations.  423 

Article  1. — Relation  of  Principal  and  Agent  among  themselves. 

CHAPTER   V. 

« 

OF    PRINCIPAL    AND    AGENT. 


Article  1. — Relation  of  Principal  and  Agent  among  themselves. 
Article  2. — Rights  and  Liabilities  of  Principal  to  Third  Persons, 
Article  3. — Rights  and  Liabilities  of  Agent  to  Third  Persons, 
Article  4. — Of  Overseers. 


ARTICLE  I. 

RELATION    OF    PRINCIPAL    AND    AGENT    AMONG    THEMSELVES. 


Section. 

2152.  How  it  arises. 

2153.  What  may  be  done  by  agent. 

2154.  Trustees  may  convey  by  attorney. 

2155.  Who  may  be  agent. 

2156.  How  the  agency  is  created. 

2157.  Revocation. 

2158.  Agent  limited. 

2159.  Diligence  of  an  agent. 


Section. 

2160.  Agent  can  not  buy  or  sell,  etc. 

2161.  Personal  profit. 

2162.  Estoppel. 

2163.  Agent  of  several. 

2164.  Commission  and  expenses. 

2165.  Illegal  purpose. 

2166.  Effect  of  ratification. 

2167.  Of  mingling  goods. 


§  2152.  The  relation  of  principal  and  agent  arises  wherever  one       ^^^^  ^^ 
person,  expressly  or  byimplicationj,  authorizes  another  toact  for    *"^^®' 
him,  or  subsequently  ratifies  the  acts  of  another  in  his  behalf..  , 

§  2153.  Whatever  one  may  do  himself  may  be  done  by  an  agent,     ^ijatmay 
except  such  personal   trusts  in  which  special  confidence  is  placed  a^ent."^  ^^ 
in  the  skill,  discretion,  or  judgment  of  the  person  called  on  to  act;       TT^j ,  fi.  f' 
so  an  agent  may  not   delegate    his   authority  to   another   unless 
specially  empowered  so  to  do.  •  ^'   '*• 

§  2154.  [Executors,  administrators,  guardians,  and  trustees  are  Executors 
authorized  to  sell  and  convey  property,  by  attorneys  in  fact,  in  all  conVey™  by 
cases  where  they  may  lawfully  sell  and  convey  in  person.]  (a.)        Sct"*^'^  ^^ 

§  2155.  Any  person  may  be  appointed  an  agent  who  is  of  sound 
mind  ;  so  a  principal  is  bound  by  the  acts  of  his  infant  agent,  but  be  agent.       * 
a  feme  covert  can  not  be  an  agent  for  another  than  her  husband 
except  by  his  consent,  in  which  case  he  is  bound  by  her  acts. 

§  2156.  The  act  creating  the  agency  must  be  executed  with  the      How  the 
same  formality  (and  need  have  no  more)  as  the  law  prescribes  for  created. 
the  execution  of  the  act  for  which  the  agency  is  created.     A  cor- 

(a)  Acts  of  1865-6,  p.  148. 


424  PT,  2. — TIT.  8. — CHAP.  5, — Otmer  RELATio.ss. 


Artick;  1. — T?x'];^tion  of  Principal  aiul  Agent  amoni^;  themselves. 


poration  may  create  an  a,gcnt  in  its  usual  mode  of  transacting 
business,  and  without  its  corporate  seal. 

§  2ir.7.   Gcncrallj,  an   agency  is  revoc;ible  at  the  will   of  the 

Eevocation.  prineipuL  The  appointment  of  a  new  agent  for  the  performance 
of  i]ie  same  act,  or  the  deatli  of  either  principal  or  agent,  revokes 
the  power.  If,  liowever,  the  power  is  coupled  with  an  interest  in 
the  agent  himself  it  is  not  revocable  at  will ;  and  in  all  cases  the 
agent  miglit  recover  from  the  principal  for  an  unreasonable  revo- 
cation, any  damages  he  may  have  sufiercd  by  reason  thereof. 
§2ir.8.   The  agcrit  must  actwitlnn  the  authority  gi'antcd  to  him, 

A.sront  lim- I'easonably  interpreted:  if  he  exceeds  or  violates  his  instructions, 

itci     by    his  ...  .        .  .  . 

aiuhority.  |j^.  docs  it  at  his  owu  risk,  the  principal  having  the  privilege  of 
affirming  or  dissenting,  as  liis  interest  may  dictate.  In  cases 
where  tlie  power  is  coupled  with  an  interest  in  the  agent,  unreason- 
able instructions,  detrimental  to  the  agent's  interest,  may  be  dis- 
regarded. 

i^  21ol).   An  agent  for  hire  is  bound  to  exercise,  about  th.c  busi- 
Diii-enrcof  ness  of  his  principal,  tluit  or-dinary  care,  skill,  and  diligence  re- 
(paired  of  a   bailee  for  hire.     A  voluntary  agent,  without  liire  or 
reward,  is  liab)le  ordy  for  gross  neglect. 

§21(>0.   A\^it]iout  the  ex})ress  consent  of  the  principal,  after  a 
Acront  (nn  f^j\\  knovvdedu'e  of  all  the  ficts,  an  a,i:''ent  employed  to  sell,  can  not 

not    buy    or  *-'  ^  o  i        ^  7 

^ciNor  him-  j^^^  himsclf  thc  purcliascr ;  and  an  agent  to  buy,  can  not  be  himself 
the  seller. 

§21i>l.  The  agent  must  not  make  a  personal  profit  from  his 
i.ruiit"^"'"'''  principal's  property;  for  all  such  he  is  bound  to  account. 

^  21G2.  An  agent  can  not  dispute  his  principal's  title,  except  in 
Kstopped.    such  cases  wdiere  legal  proceedings,  at  the  instance  of  others,  have 
been  commenced  against  him. 

§2lG-:>.    Where  several  persons  appoint  an  agent  to  do  an  act  for 
Agent  of    their  joint  benefit,  the  instructions   of  one,  not  inconsistent  with 

several.  '  ,  in  1  •       i   • 

the  general  directions,  shall  protect  the  agent  m  Jus  act. 

§  21G4.  An  agent  who  has  discharged  his  duty  is  entitled  to  his 
Commission  commission  and  all  necessary  expenses  incurred  about  the  busi- 
ses.  ness  01  Ins  principal.     It  he  has  violated  his  engagements,  he  is 

entitled  to  no  commission. 

§  211)5.  No  rights  can  arise  to  either  party  out  of  an  agency 
posS"*' '""   created  for  an  illegal  purpose. 

§  21(il3.  A  ratification  by  the  principal  relates  back  to  the  act 
KiToct  of  I'atified,  and  takes  effect  as   if  oriirinally  authorized.     A  ratifica- 


PT.  2.— TIT.  3.— CHAP.  5.— Othek  Relations.  425 

Article  2. — Rights  and  Liabilities  of  Principal  as  to.  Third  Persons. 

tion  may  be  express,  or  implied  from  the   acts   or  silence  of  the 
principal.     A  ratification  once  made  can  not  be  revoked. 

§2167.  An  ao;ent,  by  willfully  minting  his   own  goods  with     of  ming. 

.  .  ^ .  '^  '^  °       °  °  ling  goods. 

those  of  his  principal,  does  not  create  a  tenancy  in  common,  but 
if  incapable  of  separation,  the  whole  belongs  to  the  principal. 


24-XJi^^t/^x4^..    ^^^-      ARTICLE  II.         ^^€r/Ui^  ^'^f 

RIGHTS   AND   LIABILITIES   OP   PRINCIPAL  AS   TO   THIRD   PERSONS. 

Section.  1  Section. 


21G3.  Principal — how  far  bound. 

2169.  Forms  immaterial. 

2170.  Extent  of  authority. 

2171.  Failing  to  disclose  principal. 

2172.  Credit  given  to  agent, 

2173.  Representation  by  agent. 

2174.  Notice  to. 


2175.  Principal  bound  for  neglect,  etc. 

2176.  Injuries  by  another  agent. 

2177.  Trespass  of  agent. 

2178.  Benefit  of  contract  to  principal. 

2179.  Money  illegally  paid,  etc. 

2180.  Agent  is  a  competent  witness. 


§  2168.  The  principal  is  bound  by  all  the  acts  of  his  agent  with-      Principal 

—  jiow     far 

in  the  scope  of  his  authority  ;  if  the  agent  exceeds  his  authority,  bound.     ^^  *_^ 
the  principal  can  not  ratify  in  part  and  repudiate  in  part :  he  must  /  ")  -  ^- 

adopt  either  the  whole  or  none. 

§2169.  The  form  in  which  the  agent  acts  is  immaterial:  if  the    Formsim- 

,  .         .  IT  material, 

principal  s  name  is  disclosed,  and  the   agent  professes  to  act  for 

him,  it  will  be  held  to  be  the  act  of  the  principal.  /   . 

§  2170.  The  agent's  authority  will  be  construed  to  include  all  Extent  of 
necessary  and  usual  means  for  effectually  executing  it.  Private 
instructions  or  limitations  not  known  to  persons  dealing  with  a 
general  agent  can  not  affect  them.  Ins£ecial  agencies  for  a  par- 
ticular purpose,  persons  dealing  with  the  agent  should  examine  his 
authority. 

§2171.  If  an  agent  fails  to  disclose  his  principal,  yet,  wheiidis-      Failing 

tO     QlSClOSG 

^coveredjjthe  person  dealing  with  the  agent  may  go  directly  upon  pnacipai. 
the  principal,  under  the  contract,  unless  the  principal  shall  have 
previously  accounted  and  settled  with  the  agent. 

§  2172.  If  the  credit  is  sjiven  to  the  a^ent  by  the  choice  of  the  credit  given 

^  ,  .       .  to  agent. 

seller,  he  can  not  afterward  demand  payment  of  the  principal. 

§  2173.  The  principal  is  bound  by  all  representations  made  by     Eepresen- 
his  agent  in  the  business  of  his   agency,  and  also  by  his  willful  agent. 
concealment  of  material  facts,  although  they  are  unknown  to  the 
principal,  and  known  only  by  the  agent. 


426  PT.  2.-~TIT.  3.— CHAP.  S.—Othep.  Relations. 

Article  2. — Rights  and  Liabilities  of  Principal  as  to  Third  Persons. 


§  2174.  Notice  to  tlie  agent  of  any  matter  connected  with  his 
TsTotice  to.   agencv  is  notice  to  the  principal. 

§  2175.   The  principal  is  bound  for  the  care,  diligence,  andfidel- 
Principal  ity  of  his  ao-ent  in  his  business,  and  hence  he  is  bound  for  the  nes:- 

bound       tor      ''  o  7  a 

neglect  and  |gg^  ^^^  fraud  of  his  ao;ent  in  the  transaction  of  such  business. 

fraud.  o 

§  2176.   The    principal  is  not  liable  to  onte  agent  for  injuries 
Injuries  arisinsr  from  the  negligence  or  misconduct  of  other  agents  about 

by     another  000  <^ 

agent.         the  Same  business;  the  exception  in  case  of  railroads  has  been 
■■^..A^.       previously  stated. 

§  2177.  The  principal  is'  not  liable  for  the  willful  trespass  of  his 

TrcsDRSS  of 

agent.  agcut,  unlcss  done  by  his  command  or  assented  to  by  him. 

§  2178.   The  principal  shall  have  advantage  of  his  agent's  con- 
Benefit  of  tracts  in  the  same  manner  as  he  is  bound  by  them,  so  far  as  they 

contract     to  ./  ^  ./ 

principal,      comc  Within  the  scope   of  his   agency.     If,  however,  the  agency 

has  been  concealed,  the  party  dealing  with  him   may  set   up  any 

defense  against  the  principal  which  he  has  against  the  agent. 

.  .    ^  §  2179.   The  principal  may  recover  back  money  paid  illegally,  or 

alr^^''' '^-d"  ^J  mistake  of  his  agent,  or  goods  wrongfully   transferred  by  the 

etc.  agent,  the  party  receiving  the  goods  having  notice  of  the  agent's 

want  of  authority  or  willful  misconduct. 

§  2180.  The  agent  is  a  competent  witness  either  fpr^or  against 
^^^^"^^^^^^  h.is_pa:incipal,  notwithstanding  he_  may  strictlj  come  within  the 
witness,  ^^j^  ^f  inc.om_petency  from  interest.  His  interest  goes  to  Eis 
credit.  The  declarations  of  the  agent  as  to  the  business  trans- 
acted by  him  are  not  admissible  against  his  prihcipaTTlihleHg  they 
were  a  part  of  the  negotiation,  and  constituting  the  res  gcsice,  or 
else  the  agent  be  dead. 


I  / 


■'/■■ 


ARTICLE  III. 

RIGHTS   AND    LIABILITIES   OF    AGENT   AS   TO   THIRD    PERSONS. 


Section. 

2181.  Agent  may  act  under  this  Code,  etc. 

2182.  Money  paid  by  mistake,  etc. 

2183.  When  he  has  right  of  action. 

2184.  For  interference  with  his  possession. 


Section. 

2185.  When  responsible  for  credit,  etc. 

2186.  Public  agent. 

2187.  Liability  for  excess  of  authority. 

2188.  Enforcing  contracts,  etc. 


■'  §  2181.  Any  act  authorized  or  required  to  be  done  under  this 

Agent  may  Codo  bv  any  pcrsoii  in  the  prosecution  of  his  le^al  remedies,  may 

act       under  ./  e/  ^1  f  O  ^  7  ./ 

this  Code  for  ]3e  done  by  his   affent,  and  for  this  purpose   he   is  authorized  to 

principal.  »/  o         ?  1        i 

make   an   affidavit   and    execute   any   bond   required,   though   his 


PT,  2.— TIT.  3=— CHAP,  5.— Other  Relations.  42T 

Article  3. — Rights  and  Liabilities  of  Agent  as  to  Third  Persons. 

agency  be  created  by  parol.     In  all  such  cases,  if  the  principal 
repudiate  the  act  of  the  agent,  the  agent  shall  be  personally  bound,  How  bound, 
together  with  his  sureties. 

§2182.  If  money  be  paid  to  an  agent  by  mistake,  and  he  in  Money  paid 
good  faith  pays  it  over  to  his  principal,  he  shall  not  thereafter  be  may  be  re- 
personally  liable  thei'efor.     In  all  other  cases  he  is  liable  for  its 
repayment.     If  money  be  paid  by  an  agent  by  mistake,  he  may 
recover  it  back  in  his  own  name. 

§  2183.  Generally  an  aarent  has  no  ria-ht  of  action  on  contracts  when  he  has 

.  .       .  •^  ^  .  ^  aright  of  ac- 

made  for  his  principal.  .   The  following  are  exceptions  :  *i«^- 

1.  A  factor  contracting  on  his  own  credit. 

2.  Where  promissory  notes  or  other  evidences  of  debt  are  made 
payable  to  an  agent  of  a  corporation  or  joint  stock  company.  \ 

3.  In  all  cases  where  the  contract  is  made  with  the  agent  in  his 
individual  name,  though  his  agency  be  known. 

4.  Auctioneers  may  sue  in  their  own  name  for  goods  sold  by 
them.  I 

5.  In  cases  of  agency  coupled  with  an  interest  in  the  agent 
known  to  the  party  contracting  with  him.  In  all  these  cases,  pay- 
ment to  the  principal  before  notice  of  the  agent's  claim  is  a  good 
defense. 

§  2184.  An  agent  having  possession,  actual  or  constructive,  of    For  inter- 

*~.  ..  .,p.«  .  ference  with 

the  property  of  his  principal,  has  a  right  of  action  for  any  inter-  tjs   posses- 
ference  with  that  possession  by  third  persons. 

§  2185.  Where  the  agency  is  known,  and  the  credit  is  not  ex-    when  re- 

.  1  ,         .  11  Ml  sponsible  for 

pressly  given  to  the  agent,  he  is  not  personally  responsible  upon  credit  given. 
the  contract.     The  question  to  whom  the  credit  is  given  is  a  ques- 
tion of  fact  to  be  decided  by  the  jury  under  the  circumstances  of 
each  case. 

§  2186.  Public  agents  contracting  in  behalf  of  the  public,  are      PubUc 

T    •  1       11       T    1  1  agents 

not  individually  liable  on  such  contracts. 

§  2187.  All  agents,  by  an  express  undertaking  to  that  effect.  Liability  for 
may  render    themselves    individually   liable.      And   every   agent  thority? 
exceeding  the  scope  of  his  authority  is  individually  liable  to  the 
person  with  whom  he  deals  :    so,  also,  for  his  own  tortious  act,     or  tort 
whether  acting  by  command  of  his  principal  or  not,  he  is  respon- 
sible ;  for  the  negligence  of  his  under-servant,  employed  by  him  in 
behalf  of  his  principal,  he  is  not  responsible. 

§  2188.  When  the  agent  exceeds  his  authority,  so  that  the  prin- 
cipal is  not  bound,  the  agent  can  not  enforce  the  contract  in  his 


428 


PT,  2,->TIT.  3.— CHAP.  5.^0ther  Relations. 


Article  4. — Ovprseprs. 


Enforcing  Qwii  name  a2;ainst  the  person  with  whom  he  deals,  uuiess  the  con- 
contracts  es-  ox  .  7 

.needing  his  tract  has  boon  fully  executed  upon  the  part  of  the  agent,  or  the 
credit  was  originally  given  to  the  agent. 


ARTICLE  IV. 

OVERSEERS. 


Section. 

2189.  Right  and  power  of  overseer. 

2190.  Parol  contracts. 


Section. 

2191.  Suit  on  breach  of  contracts. 


§  2189.  In  the  absence  of  the  employer,  the  overseer  stands  in 
Eight  and  hls  place.     It  is  his  duty  to  see  to  the  sustenemce  and  protection 

powers      of  •"•  "^  -^         ^       _ 

overseers,  of  his  employer's  property,  and  to  discharge  this  duty,  he  is  jus- 
tified in  repelling  aggressors  and  trespassers  to  the  same  extent 
with  the  employer. 

§  2190.   Contracts  between  employers  and  overseers  may  be  by 
Parol  con- parol,  though  they  may   ext'ciid   beyond   a  year  from  the  time  of 

tracts.  r  '  O  ./  J  J  J 

the  contract. 

§2191.  When   the  contract  is  for  a   year,    and  the   employer 
Suit  on  wron2:fully  discharges  the  overseer  before  the  end  of  the  year,  the 

breach    of  .°.  .  ^  ... 

contract,  overscer  may  either  sue  immediately  for  any  special  injury  from 
the  breach  of  the  contract,  or,  treating  the  contract  as  rescinded, 
may  sue  for  the  vpJue  of  the  services  rendered,  or  he  may  wait 
till  the  expiration  of  the  year  and  sue  for,  and  recover  his  entire 


PT.  2.— TIT.  4.^pR0PEiiTY,  £i:cr. 


429 


Chapter  1.— Of  Realty, 


TITLE    IV. 


OF  PPvOPEKTY  AND  THE  TENUHE  BY  WHICH  IT  IS  HELP. 


Chapter  l.—Of  Realty. 
Chapter  2.-^0/  Personalty. 


CHAPTER    I. 

OF    REALTY. 


Sect^ioNj 

2192.  Realty  definltiolii 

2193.  Fixtures. 

2194.  Detached  becomes  persdnaltyi 

2195.  Allodial  tenure. 

2196.  Eminent  domain. 

2197.  Wlien  to  be  executedi 

2198.  How.  » 

2199.  Just  compensation, 

2200.  Destroying  property,  etc* 

2201.  Owner  of  running  waters 


SecttoN; 

2202.  Streams  boundary  lines^ 

2203.  Navigable  streams. 

2204.  Owners  of  adjacent  lands. 

2205.  Power  of  owner  of  streams^ 

2206.  Levees  and  ditcbcs, 

2207.  Bridge  or  ferry  rights. 

2208.  Franchise — when  exclusive. 

2209.  Private  ways. 

2210.  Charges  on  lands.- 


nition. 


Fixtures. 


§  2192.  Realtj,  or  real  estate,  includes  all  lands  and  the  build-  Eeaityde^ 
ings  thereon,  and   all   things  permanently  attached  to  either,   or 
any  interest  therein  or  issuing  out  of,  or  dependent  thereon.     The 
right  of  the  owner  of  lands  extends  downwards  and  upwards  in- 
definitely. 

§  2193.  Any  thing  intended  to  remain  permanently  in  its  place, 
though  not  actually  attached  to  the  land,  such  as  a  rail  fence,  is 
a  part  of  the  realty  and  passes  with  it*  Machinery  not  actually 
attached,  but  moveable  at  pleasure,  is  not  a  part  of  the  realty. 

§  2194.  Any  thing  detached  from  the  realty  becomes  personalty 
instantly  on  being  so  detached,   and  may  be  the  subject-matter  of  sonaity.^^^^ 
larceny,  even  by  the  person  wrongfully  detaching  it. 

§  2195.  The  tenure  by  which  all  realty  is  held  in  this  State  is 
under  the  State  as  original  owner  ;  it  is  without  service  of  any 
kind,  and  limited  only  by  the  right  of  eminent  domain  remaining 
in  the  State. 

§  2196.  The  right  of  eminent  domain  is  the  right  of  the  State, 


JS- 


Detached 


Allodial! 
tenure. 


430  Pi.'.  2. — TIT.  4. — -pROPEiiTY,  etc. 

ChaDter  1.— Of  Realty. 


Eminent  tlirough  Its  rcffular  ors-anization,  to   re-assert,   either  temporarily 

domain.  *^  ,        .         ,         .     .  t  j 

or  permanentlj,  its  dominion  over  any  portion  of  the  soil  of  the 
State,  on  account  of  public  exigency  and  for  the  public  good ; 
thus  in  time  of  war  or  insurrection  the  proper  authorities  may 
possess  and  hold  any  part  of  the  territory  of  the  State  for  the 
common  safety  ;  and  in  time  of  peace  the  Legislature  may  author- 
ize the  appropriation  of  the  same  to  public  purposes,  such  as  the 
opening  of  roads,  construction  of  defenses,  or  providing  channels 
for  trade  or  travel. 

§  2197.  It  is  the  province  of  the  Legislature  to  judge  of  the 
When  to  be  exigencies  requiring  the  exercise  of  this  right,  but  if,  under  pre- 
text  of  such  necessity,  tne  property  of  one  is  taken  for  the  private 
use  of  another,  the  Courts  should  declare  the  law  inoperative. 

§  2198.  The  Legislature  may  exercise  this  right  either  directly 
How.  through  the  officers  of  the  State,  or  through  the  medium  of  cor- 
porate bodies,  or  by  means  of  individual  enterprise. 

§  2199.  Except  in  cases  of  extreme  necessity  and  great  urgency, 
Just  com-  the  right  of  eminent  domain  can  not  be  exercised  without  first  pro- 

pensation.  .,.-,.  .  n  i         -  n 

yiding  for  just  compensation  to  the  owner  for  the  interference 
with  his  exclusive  rights. 

§  2200.  Analogous  to  the  right  of  eminent  domain  is  the  power 
Destroyinc:  from  ncccssity  vested  in  corporate  authorities  of  cities,  towns,  and 

pro[)erty  Ujv  ^  \  -  •  i  i  • 

public  good.  Counties,  to  interfere  with  and  sometimes  to  destroy  the  private 
property  of  the  citizen  for  the  public  good,  such  as  the  destruction 
of  houses  to  prevent  the  extension  of  a  conflagration,  or  the  taking 
possession  of  buildings  to  prevent  the  spreading  of  contagious  dis- 
eases. In  all  such  cases,  any  damages  accruing  to  the  owner  from 
such  acts,  and  which  would  not  otherwise  have  been  sustained, 
must  be  paid  by  such  corporation. 

§  2201.  Running  water,  while  on  land,  belongs  to  the  owner  of 
Owner  of  it,  but  he  has  no  power  to  divert  it  from  the  usual   channel,  nor 

running  wa-  .-  .  r,  •    \       ^  '  i. 

ter.  ,  can  he  so  use  or  adulterate  it  as  to  mteriere  with  the  enjoyment 
of  it  by  the  next  owner. 

§  2202.  The  beds  of  streams  not  navigable  belong  to  the  owner 
streams   of  the  adiaccnt  land  ;  if  the  stream  of  water  is  the  dividing  line, 

boundary  '^  '  pi- 

lines.  each  owner  is  entitled  to  the  thread  or  center  of  the  mam  current; 
if  the  current  changes  gradually,  the  line  follows  the  current ;  if 
from  any  cause  it  takes  a  new  channel,  the  original  line,  if  capa- 
ble of  identification,  remains  the  boundary.  Gradual  accretions 
of  land  on  either  side  accrue  to  the  owner. 


PT.  2.— TIT.  4.— Pkopehty,  etc.  431 

Chapter  1.— Of  Realty. 
^  2203.  A  navigable  stream  is  one  capable  of  bearing:  upon  its     Navi,o:abie 

°  ---        -^  o      i  streams. 

bosom,  either  for  the  whole  or  a  part  of  the  year,  boats  loaded 
with  freight  in  regular  course  of  trade.  The  mere  rafting  of  tim- 
ber or  transporting  wood  on  small  boats  does  not  make  a  stream 
navigable. 

§  2204.  The  nVht  of  the  owner  of  lands  adiacent  to  navisrable        owners 

^  .  ^  ^  of    adjacent 

streams,  extends  to  low  water  mark  in  the  bed  of  the  stream.  lands. 

§  2205.  The  owner  of  a  stream  not  navigable  is  entitled  to  the    Power  of 
same  exclusive  possession  thereof  as  he  has  of  any  other  part  of  streams. 
his  land  ;  and  the  Legislature  has  no  power  to  compel  or  interfere 
with  him  in  its  lawful  use,  for  the  benefit  of  those  above  or  below 
him  on  the  stream,  except  to  restrain  nuisances. 

§  2206.  All  persons   owning,  or  who  may  hereafter  own  lands,   Levees  and 

Cll  lCUcS* 

on  any  water  courses  in  the  State,  are  authorized  and  empowered 
to  ditch  and  embank  their  lands,  so  as  to  protect  the  same  from 
freshets  and  overflows  in  said  water  courses  ;  provided  ahva^s,  that 
the  said  ditching  and  embanking  does  not  divert  said  water  course 
from  its  ordinary  channel,  but  nothing  shall  be  so  construed  as  to 
prevent  the  owners  of  land  from  diverting  unnavigable  water 
courses  through  their  own  lands. 

§  2207.  The  right  to  construct  a  bridge  or  establish  a  ferry  for    Bridge  for 
private  use  across  a  water  course  within  or  adjoining  lands,  is  ap-  ^"^"^ 
purtenant  to  the  ownership  of  the  land,  but  the  right  to  establish 
and  keep  a  public  bridge  or  ferry  is  a  franchise  to  be  granted  by 
the  State.     Yvhere  such  a  grant  interferes  with  the  owner's  right 
of  exclusive  possession,  just  compensation  to  him  must  be  first  made. 

§  2208.  No  franchise  granted  by  this  State  shall  be  held  to  be  ex-     Franchise 
elusive,  unless  plainly  and  expressly  so  declared  to  be  in  the  grant,  dusive! 

§  2209.  The^ right  of  private  way  over  another's  land  may  arise  Private 
from  express  grant,  or  from  prescription  by  seven  years'  uninter- 
rupted use  through  improved  lands,  or  twenty  years'  use  over  wild 
lands,  or  by  implication  of  law  when  such  right  is  necessary  to 
the  enjoyment  of  lands  granted  by  the  same  owner,  or  by  com- 
pulsory purchase  and  sale  through  the  Inferior  Court  in  the  man- 
ner prescribed  by  this  Code.* 

§  2210.  Annuities  or  legacies,  or  debts  charged  upon  lands  by  charges  on 
testaments,  attach  thereto  and  follow  the  lands  in  the  hands  of  all 
persons. 

*  For  further  provision  as  to  water  courses,  roads,  bridges,  and  ferries,  see 
Part  1,  Title  6,  Chapter  5. 


432 


PT.  2.— TIT.  4.— Property,  etc. 


Chapter  2. — Of  Personalty. 


CHAPTER  II. 


OF   PERSONALTY. 


Section. 

2211.  What  is. 

2212.  Possession. 

2213.  Chose  in  action. 

2214.  Property  in  wild  animals,  etc. 


SECflON^. 

2215.  Deposit  and  increase  on  landi 

2216.  Increase  follows  mother. 

2217.  Rights  and  remedies. 

2218.  Assignment  of  choses  in  action. 


§  2211.  Personalty,  or  personal  estate,  includes  all  such  prop- 
Whatis.  ertj  as  is  movable  in  its  nature-— in  fact,  every  thing  having  value 
inherent  in  itself,  or  the  representative  of  value,  and  not  included 
stocks,  in  the  definition  of  realty.  Stocks  representing  shares  in  an  in- 
corporated company  EoTding.  lands,  or  a  franchise  in  or  over  lands, 
are  personalty,  except  in  mining  and  manufacturing  companies 
whose  principal  investments  are  in  realty  and  machinery  attached 
thereto,  in  which  case  the  stock  shall  be  deemed  realty. 

§  2212.  Personalty  in  possession  is  where  the  right  of  property 
Possession,  is  accompanied  by  immediate  possession,  actual  or  constructive. 

§  2213.  Personalty  to  which  the  owner,  has  a  right  of  possession 
Chose  in  ac-  in  future,  or  a  right  of  immediate  possession,  wrongfully  withheld, 

tiou.  ,  . 

is  termed  by  the  law  a  chose  in  action. 

§  2214.  Property  may  exist  in  all  animals,  birds,  and  fishes ; 
Property  to  coustituto  property  in  those  which  are  wild  by  nature,  as  dis- 

in  wild  ani-     ..■,-,   n  ^  .  .,  -,  ,  .,.,. 

mais^etc.  tinguished  Irom  domestic  animals,  one  must  nave  them  withm  his 
actual  possession,  custody,  or  control ;  this  he  may  obtain  either 
by  taming  or  domesticating  them,  or  by  confining  them  within  re- 
stricted limits,  or  by  killing  or  capturing  them. 

§  2215.  Any  deposit  made  by  wild  animals  on  realty  belongs  to 

^bepositand  the  owucr  *  thus,  honey  deposited  by  bees  in  a  tree  belongs  to  the 

lncrcssG    on 

land.  owner  of  the  tree,  though  the  bees  may  be  hired  by  another ;  so 

the  eggs  and  young  of  birds,  or  the  increase  of  animals,  so  long 
as  they  remain  unable  to  leave  the  land,  belong  to  the  owner. 
§  2216.  The  increase  of  all  animals  follow  the  condition  of  the 

increase foi- mother,  and  belong  to  the   owner   of  the  mother  at  the  time  of 

lows  mother  ,  .      , 

birtn. 

§  2217.  For  every  violation  of  a  contract,  express  or  implied, 

kights  and  and  for  every  injury  done  by  another  to  person  or  property,  the 

law  gives  a  right  to  recover,  and  a  remedy  to  enforce  it.     Such  a 

right  is  a  chose  in  action,  and  vsuch  a  remedy  is  an  action  or  suit 

at  law. 


PT.  2.— TIT.  5.— Estates,  etc.  433 

Chapter  1. — Absolute  Estates,  or  in  Fee  Simple. 
5  2218.  All  choses  in  action  arising  upon  contract  may  be  as-  Assignment 

.-■ ■  '  o       J.  ^     ^  of  choses  in 

signed  so  as  to  vest  the  title  in  the  assignee,  but  he  takes  it,  ex-  action. 

cept  negotiable  securities,  subject  to  the  equities  existing  between 

the  assignor  and  debtor  at  the  time  of  the  assignment,  and  until 

notice  of  the  assignment  is  given  to  the  person  liable.  ♦.  <^     ,/,        5  \  /7 

0  ^   ICC  '^  /  J  . 


TITLE     V, 

OF   ESTATES   AND    THE   RIGHTS   ATTACHED   THERETO. 


Chapter  1. — Of  Absolute  Estates,  or  in  Fee  Simple. 

Chapter  2. — Of  Estates  for  Life. 

Chapter  3. — Of  Estates  in  Remainder,  and  Reversions, 

Chapter  4. — Of  Estates  for  Years, 

Chapter  5. — Of  Landlord  and  Tenant. 

Chapter  6. — Of  Estates  upon  Condition, 

Chapter  7. — Of  Tenancy  in  Common. 

Chapter  8. — Of  Trust  Estates. 


CHAPTER  I. 

OF    ABSOLUTE    ESTATES,    OR    IN    FEE    SIMPLE. 


Section. 

2219.  What  is,  and  in  what  created. 

2220.  Fee  simple. 

2221.  May  be  in  abeyance. 

2222.  What  words  create. 


Section. 

2223.  Technical  words. 

2224.  Estates  tail. 

2225.  Remote  limitations. 


§  2219.  Eslate  is  the  quantity  of  interest  which  an  owner  has    what  is. 
in  property.     In  this  State  it  is  applicable  equally  to  realty  and 
personalty.     Any  estate  may  be  created  in  the  latter  that  can  be  inwhatcre- 
created  in  the  former,  and   the  rules  of  construction   as  to  both 
shall  be  the  same.     The  provisions  of  this  Code,  under  this  Title, 
when  not  restricted  to  one,  apply  to  both. 

§2220.  An  absolute  or  fee  simple  estate  is  one  in  which  the  Fee  simple. 
owner  is  entitled  to  the  entire  property,  with  unconditional  power 
of  disposition  during  his  life,  and  descending  to  his  heirs  and  legal 
28 


434  PT.  2.— TIT.  5.— Estates,  etc. 

Chapter  1. — Absolute  Estates,  or- in  Fee  Simple. 


Descent,  representatives  upon  his  death  intestate.  Realty  descends  directly 
to  the  heirs,  subject  to  be  administered  by  the  legal  representative, 
if  there  be  one,  for  the  payment  of  debts  and  the  purposes  of  dis- 
tribution. If  there  be  a  legal  representative,  the  right  to  recover 
it  is  in  him  ;  if  there  be  none,  the  heirs  may  sue  in  their  own 
name. 

§  2221.  An  absolute  estate  may  be  created  to  commence  in  fu- 

Maybeinture,  and  the  fee  maybe  in  abeyance  without  detriment  to  the 

abeyance.  <.--  ^        ^  *' 

rights  of  subsequent  remainders.    A  fee  may  be  limited  upon  a  fee, 

either  by  deed  or  will,  where  the  plain  intention  of  the  grantor  or 

testator  requires  it,  and  no  other  rule  of  law  is  violated  thereby. 

^  JN^  §  2222.   The  word  "heirs,"  or  its  equivalent,  is  not  necessary  to 

^r     What  words  create  an  absolute  estate;  but  every  conveyance,  properly  exe- 

^      /  (— '  cuted,  shall  be  construed  to  convey  the  fee,  unless  a  less  estate  is 

^^  /  mentioned  and  limited  in  such  conveyance.     If  a  less  estate  is 

"^  it  L\  expressly  limited,  the  Courts  shall  not,  by  construction,  increase 

^  U  iTv*         ^^^^  estate  into  a  fee,  but,  disregarding  all  technical  rules,  shall 

^  *"     Euieof  con-  prive  cffcct  to  the  intention  of  the  maker  of  the  instrument,  as  far 

struction.        ^-^  ^  ^ 

as  the  same  is  lawful,  if  the  same  can  be  gathered  from  its  con- 
tents ;  and  if  not,  in  such  case  the  Court  may  hear  parol  evidence 
to  prove  the  intention. 

§  2223.  Limitations  over  to  "heirs,"  "heirs  of  the  body,"  "lin- 
Technicai  eal  heirs,"   "lawful  heirs,"   "issue,"  or  words  of  similar  import, 

worcls. 

shall  be  held  to  mean  "  children,  "  whether  the  parents  be  alive  or 
dead ;   and  under  such  words  children,  and  the  descendants  of  de- 
ceased children,  by  representation  in  being  at  the  time  of  the 
vesting  of  the  estate,  shall  take. 
\L  §  2224.  Estates  tail  are  prohibited  and  abolished  in  this  State. 

Estates  tail.  Gifts  or  grants  to  one,  and  the  heirs  of  his  body,  or  his  heirs  male 
)v>  or  heirs  female,  or  his  heirs  by  a  particular  person,  or  his  chil- 

«*  riT^  dren,  or  his  issue,  convey  an  absolute  fee.  Estates  tail  being  ille- 
gal, the  law  will  never  presume  or  imply  such  an  estate.  Limita- 
i  (j  Euieinsuch  tious  which,  by  the  English  rules  of  construction,  would  create  an 
estate  tail  by  implication  in  this  State,  shall  give  a  life  estate  to 
the  first  taker  with  remainder  over  in  fee  to  his  children  and  their 
descendants  as  above  provided ;  and  if  none  are  living  at  the  tipae 
of  his  death,  remainder  over  in  fee  to  the  beneficiaries  intended  by 
;  the  maker  of  the  instrument. 

,  ,,    ,  ^         §2225.   All  limitations  over  after  the  death  of  the  first  taker, 
M  ^     '  upon  his  dying  without  heirs,  or  dying  without  issue,  or  dying 


PT.  2.— TIT.  5.— Estates,  etc. 


435 


Chapter  2.— Estates  for  Life. 


•without  leaving  heirs  or  issue,  or  on  failure  of  issue,  or  other  and       Remote 

limitations, 

equivalent  terms,  shall  be  construed  to  mean  a  failure  of  heirs  or 
issue  at  the  time  of  the  death  of  the  first  taker,  and  shall  convey 
the  estate  in  the  manner  prescribed  in  Section  2224. 


CHAPTER   11. 

OF     ESTATES     FOR     LIFE. 


Section-. 

2226.  What  is. 

2227.  How  created. 

2228.  Estates  during  wi^dowliood,  etc. 

2229.  Rights  and  liabilities  of  tenants. 

2230.  Increase. 

2231.  Emblements, 


Sectiox. 

2232.  Renter  from  life  tenant. 

2233.  Tenancy  by  courtesy. 

2234.  Of  lands. 

2235.  Removal  of  personalty. 
223G.  Bond  of  purchaser,  etc. 


life. 


§  2226.  An  estate  for  life  may  be  either  for  the  life  of  the  tenant,    what  is. 
or  of  some  other  person  or  persons. 

§  2227.  An  estate  for  life  may  be  created  by  deed  or  will,,  or  ^ow  created 
express  agreement  of  the  parties,  or  by  operation  of  law ;  it  can 
not  be  created  in  such  property  as  is  destroyed  in  the  use. 

§  2228.  Estates  which  may  extend  during  life,  but  must  termi-  ?!l'^^^^i(fow- 
nate  at  death,  so  long  as  they  exist,  are  deemed  life  estates ;  such  ^"'''^'  ^*^' 
are  estates  during  widowhood.  "^  ^'   «^     '^' 

§  2229.  The  tenant  for  life  is  entitled  to  the  fall  use  and  enjoy-  ii,J^ifJ;J^s''"f 
ment  of  the  property,  so  that  in  such  use  he  exercises  the  ordinary  tenant  for 
care  of  a  prudent  man  for  its  preservation  and  protection,  and 
commits  no  acts  tending  to  the  permanent  injury  of  the  per- 
son entitled  in  remainder  or  reversion.  For  the  want  of  such 
care,  and  the  willful  commission  of  such  acts,  he  forfeits  his  in- 
terest to  the  remainder-man  if  he  elects  to  claim  immediate  pos- 
session. 

§  2230.  The  natural  increase  of  the  property  belongs  to  the 
tenant  for  life.  Any  extraordinary  accumulation  of  the  corpus, 
such  as  issue  of  new  stock  upon  the  share  of  an  incorporated  or 
joint  stock  company,  attaches  to  the  corpus  and  goes  with  it  to  the 
remainder-man. 

§  2231.  If  the  life  estate  be  terminated  not  by  the  act  of  the  Emblements 
tenant,  he  and  his  legal  representatives  shall  be  entitled  to  emble- 
ments, which  are  the  profits  of  the  crop  sowed  by  him  during  life, 
whether  the  plants  be  annual  or  perennial. 


Increase. 


436 


PT.  2.— TIT.  5.— Estates,  etc. 


Chapter  2, — Estates  for  Life, 


§  2232.  If  a  tenant  for  life  rents   the   land  for  the  year,  and 
Eights  of  dies,  or  the  estate  is  otherwise  terminated   diirins;  the  year,  the 

renter   from  _  o  t/  ^ 

ufe  tenant,   tenant  shall  be  entitled  to  the  land  for  the  term  of  the  year,  upon 

complying  with  his  contract  with  the  tenant  for  life. 
Bycourtesy.      §  2233.  There  is  no  tenancy  by  courtesy  in  Georgia. 
'  ^'V^v  §  2234.  No  forfeiture  shall  result  from  a  tenant  for  life  selling 

J  Of  lands,    ^he  entire   estate  in  lands  ;  the  purchaser  acquires  only  bis  in- 
terest. 

§  2235.  The  tenant  for  life,  in  personalty,  can  not  remove  it  be- 


X'%t^^ 


Eemovai  of  yond  the  lurisdictiou  of  this  State  without  the  consent  of  the  re- 
person  aity.   *^ 

mainder-man.  If  he  attempts  to  do  so  fraudulently,  he  forfeits 
his  interest ;  if  not  fraudulently,  the  remainder-man,  or  rever- 
sioner, is  entitled  to  the  writ  of  iie  exeat  to  restrain  him. 

§  2236.  Where  a  life  estate  is  sold  under  process  of  law,  upon 
Bond  of  pur-  ^he  demand  of  any  one  interested  in   remainder,  his  agent  or  at- 

cnaser,  etc.  ♦^  . 

torney,  accompanied  by  a  statement,  under  oath,  of  his  interest, 
it  shall  be  the  duty  of  the  officer  making  the  sale,  to  require  of 
the  purchaser  a  bond,  in  double  the  value  of  the  property,  with 
good  security,  for  the  delivery  of  the  property  to  the  persons  en- 
titled in  remainder,  which  bond  shall  be  filed  in  the  office  of  the 
Clerk  of  the  Superior  Cpurt  of  the  County  where  the  sale  is  made, 
and  subject  to  be  sued  on  by  any  person  interested  in  remainder; 
on  failure  to  give  such  bond,  the  property  shall  be  resold  at  the 
risk  of  the  purchaser,  if  notice  of  the  demand  was  given  before 
he  purchased. 


CHAPTER    III. 

OF    ESTATES    IN    REMAINDER,   AND    REVERSIONS. 


Section. 

2237.  Definition. 

2238.  No  particular  estate  necessary. 

2239.  Vested  or  contingent. 

2240.  Rights  of  heirs. 

2241.  Perpetuities. 


Sectson, 

2242.  Created  by  parol. 

2243.  Vesting  of  remainders  farored, 

2244.  Assent  of  esecutor. ' 

2245.  Merger. 

2246.  Estates  duriag  widowhood. 


§  2237.  An  estate  in  remainder  is  one  limited  to  be  enjoyed 

Definitions,  after  auothcr  estate  is  determined,   or  at  a  time  specified  in  the 

future.     An  estate  in  reversion  is  the  residue  of  an  estate,  usually 

the  fee  left  in  the  grantor  and  his  heirs  after  the  determination  of 

a  particular  estate  which  he  has  granted  out  of  it.     The  rights  of 


PT.  2.— TIT.  5.— Estates,  etc.  43T 

Chapter  3. — Estates  in  Remainder,  and  Reversions. 

the  reversioner  are  the  same  with  those  of  a  vested  remainder- 
man in  fee. 

§2238.  No  particular  estate  being  necessary  to  sustain  a  re- ,  i^o  partic^- 

-••     ^  omwiMi  --^-  "  *'  ^  lar  estate  ne- 

mainder  under  this  Code,  the  defeat  of   the  particular  estate  for  cessary. 
any  cause  does  not  destroy  the  remainder. 

§  2239.  Remainders  are  either  vested  or  contins^ent.     A  vested     vested  or 

°  ,  contingent. 

remainder  is  one  limited  to  a  certain  person  at  a  certain  time,  or 
upon  the  happening  of  a  necessary  event.  A  contingent  remain- 
der is  one  limited  to  an  uncertain  person,  or  upon  an  event  which 
may  or  may  not  happen. 

§  2240.  If_th^_remainder::ma^^  the  time  arrives  for    Rights  of 

possessing  his  estate  in  remainder,  his  heirs  are  entitled  to  a  vested 
remainder  interest,  and  to  a  contingent  remainder  interest  when 
the  contingency  is  not  as  to  the  person,  but  as  to  the  event.  If 
the  contingency  be  as  to  the  person,  and  that  person  be  not  in  esse 
at  the  time  when  the  contingency  happens,  his  heirs  are  not  entitld. 

§  2241.  Limitations  of  estates  may  extend  through  any  number  Perpetuities 
of  lives  in  being  at  the  time  when  the  limitations  commence,  and 
twenty-one  years,  and  the  usual  period  of  gestation  addecj, 
thereafter.  A  limitation  beyond  that  period,  the  law  terms  a 
perpetuity,  and  forbids  its  creation.  When  an  attempt  is  made  to 
create  a  perpetuity,  the  law  gives  effect  to  the  limitations  not 
too  remote,  declaring  the  others  void,  and  thereby  vests  the  fee  in 
the  last  taker  under  the  legal  limitations, 

8  2242.  Remainders  can  not  be  created  by  parol.     They  may  be  ,  creatior^  ^< 

"J  *'    ■■•  *'  *'  by  patrol. 

created  for  persons  not  in  being,  and  if   a  vested  remainder,  it    ^  enin<Mf 
opens  to  take  in  all  persons  within  the  description  coming  into  ^^s'^^^- 
being  up  to  the  time  of  enjoyment  commencing. 

§2243.  The_law  favors  the  vesting  of  remainders  in  all  cases    Vesting  of 

'^^  •  •It  1         f'  •  I'ln  n         remainders 

of  doubt.      In  construing  wills,  words  of  survivorship  shall  refer   favored. 
to  the  death  of  the  testator  in  order  to  vest  remainders,  unless  a 
manifest  intention  to  the  contrary  appears. 

§  2244.  The  assent  of  the  executor  to  a  legacy  to  the  tenant  for  Assent  of  the 

•-^      *'  executor. 

life  enures  to  the  benefit  of  the  remainder-man.  Remainder-man, 
at  the  termination  of  the  life  estate,  may  take  possession  immedi- 
ately. If,  however,  the  will  provides  for  a  sale  or  other  act  to  be 
done  for  the  purpose  of,  or  prior  to  a  division,  the  executor  may 
recover  possession  for  the  purpose  of  executing  the  will.  ^--V 

§  2245.  If  two  estates  in  the  same  property  unite  in  the  same  per-     Merger. 
son  in  his  individual  capacity,  the  less  estate  is  merged  in  the  greater. 


\  *  >  -  .  M 

/ 


4B8 


PT.  2.— TIT.  5.— Estates,  etc. 


Chapter  4. — Estates  for  Years. 


§  2246.  An  estate  may  be  created  during  widowhood,  and  sucla 
Estates dur-  estates  shall  be  subject  to  the  same  rules  as  life  estates.     Limita- 

ing    widow-     ^  *^ 

hood.  tions  over  upon  the  marriage  of,  a  widow  shall   be  valid,  unless 

such  limitations  are  manifestly  intended  to  operate  as  a  restraint 
upon  the  free  action  of  such  widow  in  respect  to  marriage,  and 
are   not   simply   prudential    provisions   for  the  protection  of  the 

Limitations  interest  of  children,  or  others  in  such  event ;  in  such  cases  they 

over  on  mar- 


riage. 


are  void. 

Note. — ^For  rules  prescribing  the  effect  o^f  certain  limitations  in  creating 
remainders,  refer  to  Ciiapter  1  of  this  Title.     And  for  remedies  of  remainder- 
^     men  against  tenant  for  life  and  purchasers,  refer  to  Chapter  2  of  this  Title. 


CHAPTER    IV. 


OP    ESTATES    FOR    YEARS. 


Section. 

2247.  Definition. 

2248.  Distinction  from  bailment. 

2249.  Rights  of  tenant. 


Section. 

2250.  Emblements. 

2251.  Expenses  and  repairs^ 

2252.  Lease. 


Definition, 


§  2247.  An  estate  for  years  is  one  which  is  limited  in  its  dura- 
tion to  a  period  fixed,  or  which  may  be  made  fixed  and  certain. 
If  it  be  in  lands,  it  passes  as  realty  in  this  State.  It  may  be  for 
any  number  of  years,  so  that  the  limitation  be  within  the  rule 
against  perpetuities. 

§  2248.  It  differs  when  applied  to  personalty  from  a  contract  of 
Distinction  hiring,  in  this,  that  the  latter  is  a  bailment  conveying!;  no  interest 

from       bail-  .  ,  i  t      •  i  ■     ^  r- 

ment.  in  the  property  to  the  bailee,  but  a  mere  right  of  use ;  when 
applied  to  realty,  it  differs  from  the  relation  of  landlord  and  ten- 
ant in  this,  that  in  the  latter,  the  tenant  has  no  estate,  but  a  mere 
right  of  use,  very  similar  to  the  right  of  a  hirer  of  personalty. 

§  2249.  An  estate  for  years  carries  with  it  the  right  to  use  in 
Eights  of  as  absolute  a  manner  as  a  greater  estate,  but  not  to  the  injury  of 
the  property  or  of  the  person  entitled,  either  in  remainder  or 
reversion  ;  the  same  acts  of  omission  and  commission  which  have 
been  heretofore  prescribed  as  grounds  of  forfeiture  of  an  estate 
for  life,  will  operate  to  the  same  effect  against  a  tenant  for  years. 

§  2250.  A  tenant  for  years  is  not  entitled  to  emblements,  unless 
the  estate  be  terminated  before  the  period  fixed,  by  the  happening 
of  some  contingency  provided  in  its  creation,  and  without  fault  on 
the  part  of  the  tenant. 


tenant 


Emble- 
ments. 


PT.  2.— TIT.  5.— Estates,  etc. 


439 


Chapter  5. — Landlord  and  Tenant. 


Lease. 


§  2251.  A  tenant  for  years  is  bound  for  all  repairs  or  other     Expenses 

•^  ^  ^       ^  and  repairs. 

expense  necessary  for  the  preservation   and    protection   of    the 
property. 

§  2252.  When  one  grants  to  another  an  estate  for  years  out  of 
his  own  estate,  reversion  to  himself,  it  is  usually  termed  a  lease. 
It  may  be  confined  to  a  particular  interest  in  lands,  such  as  min- 
ing or  agricultural,  in  which  event  no  other  interest  passes.  If 
no  object  of  the  lease  is  stated,  the  mining  interest  will  not  pass 
unless  the  circumstances  justify  an  implication  of  such  an  inten-  tioi' 
tion  in  the  parties. 


Construe- 


CHAPTER  V. 

OF    LANDLORD    AND    TENANT 


Section. 

2253.  Definition. 

2254.  How  created. 

2255.  Rights  of  tenants. 

2256.  Delivery  of  possession. 

2257.  Estoppel. 

2258.  Repairs  and  improvements. 

2259.  Distress  for  rent. 

2260.  Lien  for  rent. 


Section. 

2261.  Lien  for  advancements. 

2262.  Interest. 

2263.  Rent  paid  in  kind. 

2264.  Duration  of  tenancy. 

2265.  Notice  to  quit. 

2266.  Emblements. 

2267.  Casualties  no  abatement  of  rent. 


§  2253.  When  the  owner  of  lands  grants  to  another  simply  the  Definition. 
right  to  possess  and  enjoy  the  use  of  such  lands,  either  for  a  fixed 
time  or  at  the  will  of  the  grantor,  and  the  tenant  accepts  the 
grant,  the  relation  of  landlord  and  tenant  exists  between  them. 
In  such  case  no  estate  passes  out  of  the  landlord,  and  the  tenant 
has  only  a  usufruct  which  he  can  not  convey  except  by  the  land- 
lord's consent,  and  which  is  not  subject  to  levy  and  sale. 

§  2254.   Contracts  creating  the  relation  of  landlord  and  tenant  Howcreated 
for  any  time  not  exceeding  one  year,  may  be  by  parol,  and  if 
made  for  a  greater  time  shall  have  the  effect  of  a  tenancy  at  will. 

§  2255.  The  tenant  has  no  right  beyond  the  use  of  the  land  Eights  of 
and  tenements  rented  to  him,  and  such  privileges  as  are  necessary 
to  the  enjoyment  of  its  use.  He  can  not  cut  or  destroy  growing 
trees,  remove  permanent  fixtures,  or  otherwise  injure  the  property. 
He  may  use  other  timber  for  firewood  and  the  pasturage  for  his 
cattle. 

§2256.  The  tenant  must  deliver  possession  at  the  expiration  of  Delivery  of 
his  term,  and  if  he  fails  or  refuses  to  do  so  a  summary  remedy  is  p*^^®*^^^^^"' 
given  to  the  landlord. 


440  PT.  2.— TIT.  5.— Estates,  etc. 

Chapter  5. — Landlord  and  Tenant. 

")--.  ^  ^  j  §2257.  The  tenant  can  not  dispute  his  landlord's  title,  nor  at- 

/•   •      Estoppel,    torn  to  another  claimant  while  in  possession. 

§  2258.  The  lahu-ord  must  keep  the  premises  in  repair,  and  is 
Eepairs  and  liable  for  all  Substantial  improvements  placed  upon  them  by  his 

improve-  ^  ■'•  ■•■  *' 

ments.  COnSCnt. 

§  2259.  The  landlord  shall  have  power  to  distrain  for  rent  as 
Distress  for  soon  as  the  Same  is  due,  or  before  due,  if  the  tenant  is  seeking  to 

rent.  ,  ^  .  '  ° 

remove  his  goods  from  the  premises.     If  the  tenant  fails  to  pay 

the  rent  due  at  any  time,  the  landlord  may  re-enter  immediately 

and   dispossess  the   tenant.      If  the  tenant  holds  over  after  his 

term  expires  the  landlord    may   recover    double   rent   for    such 

time. 

(^  §  2260.  The  landlord's  lien  for  his  rent  shall  attach  from  the 

jr  1^^     Lien,      time  of  levying  his  distress  warrant,  but  it  shall  take  precedence 

^  of  no  lien   of  older  date  except  as  to  the  crop  raised  on   the 

premises. 

§2261.  [Landlords  may  have,  by  special  contract  in  writing,  a 
Lien  for  lien  upon  the  crops  of  their  tenants  for  such  stock,  farming  uten- 
sils, and  provisions,  furnished  such  tenants,  for  the  purpose  of 
making  their  crops ;  and  such  lien  shall  been  forced  in  the  same 
way  and  manner  as  liens  are  enforced  against  steamboats  in  this 
State.]  (a) 

§  2262.  All  contracts  for  rent  shall  bear  interest  from  the  time 
Interest,    the  rent  is  due,  and  judgments  upon  suits  for  rent  may  be  render- 
ed at  the  first  term. 

§  2263.  When  the  rent  agreed  to  be  paid  is  a  part  of  the  crop 
Eent  paid  such  portion  shall  not  be  liable  to  be  levied  on  by  any  process  for 

in  kind.  ^  .... 

debt  against  the  tenant ;    provided,  the  contract  is  in  writing  and 
the  rent  does  not  exceed  one-half  of  the  crop. 

§  2264.  Where  no  time  is  specified  for  the  termination  of  the 
Duration  of  tcuancy,  the  law  construes  it  to  be  for  the  calendar  year,  but  if  it 

tenancy.         .  >/  ' 

is  expressly  a  tenancy  at  will,  then  either  party  may  terminate  it 
at  will. 

§  2265.  Two  months'  notice  is  necessary  from  the  landlord  to 
^Notice  to  terminate  a  tenancy  at  will.  One  month's  notice  is  necessary  from 
tenant. 

§  2266.  The  tenant  at  will  is  entitled  to  his  emblements  if  the 
Emblements  crop  is  sowcd  bcforc  noticc  to  quit  by  the  landlord,  or  the  tenancy 

» 

(a)  Acts  of  1866,  p.  141. 


PT.  2.— TIT.  5.— Estates,  etc.  441 

Chapter  6. — Estates  on  Condition. 

otherwise  suddenly  terminated,  as  by  sale  of  the  estate  by  the 
landlord,  or  by  judicial  sale,  or  death  of  the  landlord  or  tenant. 

§2267.  The  destruction  of  a  tenement  bT*^fire,  or  the  loss  of    CasuaitseB 

'  no        abate- 

possession  by  any  casualty,  not  caused  by  the  landlord,  or  from  ™^°*of  rent 
defect  of  his  title,  shall  not  abate  the  rent  contracted  to  be  paid. 


,     CHAPTER    VI. 

OF    ESTATES    ON    CONDITION. 


Section. 

2268.  Definition. 

2269.  Precedent  and  subsequent,  etc 

2270.  Repugnant  condition. 


Section. 

2271.  Disability. 

2272.  Dependent  covenants,  etc. 

2273.  Effect  of  breach  of  condition. 


§  2268.  An  estate  may  be  granted  upon  a  condition,  either  ex-  Definition. . 
press  or  implied,  upon  performance  or  breach  of  which  the  estate 
shall  either  commence,  be  enlarged,  or  be  defeafed. 

§  2269,  Conditions  may  be  either  precedent  or  subsequent.  The     Precedent 
former  require  periormance  before  the  estate  vests  ;  the  latter  may  quent. 
cause  a  forfeiture  of  a  vested  estate.     The  law  inclines  to  construe 
conditions  to  be  subsequent  rather  than  precedent,  and  to  be  re- 
mediable by  damages  rather  than  by  forfeiture. 

§2270.  A  condition  repugnant  to  the  estate  granted  is  void;  so    Repugnant 

T    .  1        .  .-,  I  -11  1  1  •    1     •         1  condition. 

are  conditions  to  do  impossible  or  illegal  acts,  or  which  m  them- 
selves are  contrary  to  the  policy  of  the  law. 

§  2271.  No  legal  disability,  except  being  non  compos  mentis,  will  Disability, 
excuse  a  person  from  failing  to  comply  with  a  condition  annexed 
to  his  or  her  estate  ;  no  notice  of  such  condition  need  be  given  by     N'otice. 
the  person  claiming  under  the  limitation  over. 

§  2272.  The  dependence  or  independence  of  covenants  or  con-    Dependent 

"-- —  *■        -  „,.^.J-— "  andindepen- 

ditions,   must    be    collected  from    the    intention    of  the    parties,  ^^^^    coyo- 

^  r  .    7  nants. 

viewing  the  entire  instrument;  in  dependent  conditions  the  fail- 
ure of  the  person  first  required  to  act  is  an  excuse  to  the  other 
party  for  failing  to  comply.  If  the  conditions  be  independent,  no 
such  excuse  avails :  the  law  inclines  to  construe  conditions  to  be 
independent.    ^ 

§2273.  Upon  breach  of  condition   subsequent,  working   a  for-      Eflfect  of 
feiture,  the  person  to  whom  the  estate  is  limited  may  enter  imme-   conduion? 
diately.  ^      ^^ 


442 


PT.  2.— TIT.  5.— Estates,  etc. 


Chapter  7. — Tenancy  in  Common. 


CHAPTER  VII. 


OF     TENANCY     IN     COMMON. 


Section. 

2274.  Joint  tenancies  abolished. 

2275.  Definition  of  tenancy  in  common. 

2276.  Rights,  etc.,  of  co-tenants. 


Skction. 

2277.  Adverse  possession. 

2278.  Partition. 


^ 


§  2274.  Joint  tenancy  does  not  exist  in  this  State,  and  all  such 
Joint  ten- estates,  undcr  the  Ens-lish  law,  will  be  held  to  be  tenancies  in 

ancies   abol-  ° 

ished.         common  under  this  Code. 

§  2275.  Wherever  two  or  more  persons,  from  any  cause,  are  en- 
Definition  titled  to  the  possession,  simultaneously,  of  any  property  in  this 

of  tenancy  in  .  .  ./     r       r        ^ 

common.      State,  a  tenancy  in  common  is  created.     Tenants  in  common  may 
;  have  unequal  shares :  they  will  be  held  to  be  equal  unless  the 

(■^     '  contrary  appears.     The  fact  of  inequality  does  not  give  the  per- 

son holding  the  greater  interest  any  privileges,  as  to  possession, 
superior  to  the  person  owning  a  lesser  interest,  so  long  as  the  ten- 
ancy continues. 

§  2276.  Every  tenant  in  common  has  the  right  to  possess  the 
Eights  and  joint  property,  and  so  long  as  he  occupies  no  greater  portion  of  it 

liabilities   of,  ,.  .  tti  !•••  ii  •    ^    t 

co-tenants,  than  his  owu  sharc  woaltt  be  on  division,  and  does  not  withdraw 
from  it  any  of  its  essential  value,  such  as  mineral  deposits,  he  is 
not  liable  to  account  for  rent  to  his  co-tenant ;  but  if  he  receives 
any  rent,  or  other  profit,  or  commits  any  waste  ;  or  if  he,  by  any 
means,  deprives  his  co-tenant  of  the  use  of  his  fair  proportion  of 
the  property,  or  if  he  appropriates  all  to  his  exclusive  use,  or  if 
the  property  is  of  such  a  character  as  that  the  use  of  it  must  necessa- 
rily be  exclusive,  then  he  is  liable  to  account  to  his  co-tenant. 
§  2277.  There  can  be  no  adverse  possession  against  a  co-tenant 
Adverse  Until  actual  oustcr,  or   exclusive  possession  after  demand,  or  ex- 

possession.  .«,  ..  ipi'i 

press  notice  of  adverse  possession  ;  m  either  of  which  events  the 
co-tenant  may  sue  at  law  for  his  possession. 
'J^  ^     J  §2278.   Upon  application  by  any  tenant  in  common,  the  Supe- 

Partition.    rior  Oourt  may  order  partition  as  hereinafter  provided. 


PT.  2.— TIT.  5.— CHAP.  8.— Estates,  etc. 


^  443 


Article  1.— Trust  Estates— their  Creation  and  Nature. 


CHAPTER   VIII. 


OF     TRUST     ESTATES 


Article  1. — Of  their  Creation  and  Nature. 
Article  2. — Of  Trustees ^  Appointment,  Poivers,  etc. 


ARTICLE  I. 

OF    THEIR    CREATION    AND    NATURE. 


Section. 

2279.  Definition. 

2280.  For  whom. 

2281.  Separate  estate. 

2282.  Expressed  or  implied. 

2283.  Definition. 

2284.  Express— how  created. 

2285.  Contingent  and  shifting. 


Section. 

2286.  Resulting  trusts. 

2287.  Execution  of  trusts. 

2288.  Executed  and  executory. 

2289.  Use  upon  use. 

2290.  Implied  trusts. 

2291.  Parol  evidence. 

2292.  Precatory  Avords. 


§  2279.  Estates  may  be  created,  not  for  the  benefit  of  the  grantee,  Defmifon. 
but  for  the  use  of  some  other  person.  They  are  termed  trust 
estates.  No  formal  words  are  necessary  to  create  such  an  estate. 
Whenever  a  manifest  intention  is  exhibited  that  another  person 
shall  have  the  benefit  of  the  property  the  grantee  shall  be  de- 
clared a  trustee. 

§2280.   Trust  estates  may  be  created  for  the  benefit  of  any  fe-  For  whom. 
male,  or  minor,  or  person  non  compos  7nentis. 

§  2281.  No  words  of  separate  use  are  necessary  to  create  a  trust    separate 

^     estates. 

estate  for  the  wife.  The  appointment  of  a  trustee,  or  any  words 
sufficient  to  create  a  trust,  shall  operate  to  create  a  separate  es- 
tate. 

§  2282.   Trusts  are  either  express  or  implied.  Express, etc. 

§  2283.  Express  trusts   are  those   created   and  manifested   by  Definitions, 
agreement  of  the  parties.     Implied  trusts  are  such  as  are  inferred 
by  law  from  the  nature  of   the  transaction,  or  the  conduct  of  the 
parities. 

§  2284.  All  express  trusts  must  be  created  or  declared  in  writing.  Express,  etc. 

§  2285.  An  express  trust  may  depend  for  its  operation  upon  a   cnntinsjent 
future  event,  and  is  then  a   contingent  trust.     It  may  operate  in 
favor  of  additional  or  other  beneficiaries  upon   specified  contin- 
gencies, and  is  then  a  shifting  trust. 


andshiftins 


444  PT.  2.— TIT.  5.— CHAP.  8.— Estates,  etc. 

Article  1. — Trust  Estates — their  Creation  and  Nature. 


§  2286.  An  implied  trust  is  sometimes  for  tlie  benefit  of  the 
Eesiiiting  orrantor,  or  his  heirs,  or  heirs  or  next  of  kin  of  a  testator,  and  is 

trust.        .  . 

then  a  resulting  trust. 

§  2287.  Trusts  are  either  executed  or  executory.     In  the  former, 
Execution  everv  thins^  has  been  done  by  the  trustee  required  to  secure  the 

of  trusts.  J  i=>  J  1 

property,  or  render  certain  the  interest  of  the  beneficiaries,  and 
all  that  remains  for  him  to  do,  is  to  preserve  the  property  and  ex- 
ecute the  beneficial  purposes.  In  executory  trusts,  something  re- 
mains to  be  done  by  the  trustee,  either  to  secure  the  property,  to 
ascertain  the  objects  of  the  trusts,  or  to  distribute  according  to  a 
specified  mode,  or  some  other  act,  to  do  which  requires  him  to  re- 
tain the  legal  estate. 

§  2288.  In  an  executed  trust,  for  the  benefit  of  a  person  capa- 
Executed  ble  of  takinoi;  and  managino^  pronerty  in  his  own  right,    the  lesjal 

and  execute-     .  ,  °      ,  .  .•  .  . 

ry-  title  is  merged  immediately  into  the  equitable  interest,  and  a  per- 

fect title  vests  in  the  beneficiary  according  to  the  terms  and  limi- 
tations of  the  trust.* 
^t/  -^  ^-  /  ^  §  2289.   The  technical  rule  that  a  trust  can  not  be  limited  on  a 

Use  upon  trust,  and  that,  consequently,  only  the  first  trust  is  executed,  is 
abolished. 

§  2290.  Trusts  are  implied — 

1.  Whenever  the  legal  title  is  in  one  person,  but  the  beneficial 
Implied     interest,  either  from  the  payment  of  the  purchase  money  or  other 
circumstances,  is  either  wholly  or  partially  in  another, 
^v;.^        »  2.   Where,  from  any  fraud,  one  person  obtains  the  title  to  prop- 

'•'  "  erty  which  rightly  should  belong  to  another. 

3.  Where,  from  the  nature  of  the  transaction,  it  is  manifest 
that  it  was  the  intention  of  the  parties  that  the  perso^  taking  the 
legal  title  shall  have  no  beneficial  interest. 

4.  Where  a  trust  is  expressly  created,  but  no  uses  are  declared, 
or  are  inefi'ectually  declared,  or  extend  only  to  a  part  of  the  es- 
tate, or  fail  from  any  cause,  a  resulting  trust  is  implied  for  the 
benefit  of  the  grantor,  or  testator,  or  his  heirs. 

§  2291.  In  all  cases  when  a  trust  is  sought  to  be  implied,  the 
Parol  evi  Court  may  hear  parol  evidence  of  the  nature  of  the  transaction, 
or  the  circumstances,  or  conduct  of  the  parties,  either  to  imply  or 
rebut  a  trust. 

§  2292.  Precatory  or  recommendatory  words  will  create  a  trust  if 

*  Is  tliis  Section  affected  by  the  repeal  of  part  of  Section  2287  of  old  Code, 
(2280  of  this)  as  to  trusts  for  males  of  sane  mind  ?    See  Acts  of  1863-4,  p.  47. 


PT.  2.— TIT.  5.— CHAP.  8.— Estates,  etc. 


445 


Article  2. — Trustees — tlieir  Appointment,  Powers,  etc. 


they  are  sufficiently  imperatjve  ,tOL_show_that  it  is  not  left  discre-    Precatory 
tionary  with  the  party  to  act  or  not,  _ancl^if  the  subject-matter  of 
the  trust  is  defined  with   sufficient   certainty,  and  if  the  object  is 
also  certainly  defined,  and  the  modejn  which  the  trust  is  to  be  ex- 
"ecute( 


ARTICLE  II. 


OF    TRUSTEES-THEIR  APPOINTMENT,   POWERS,    ETC. 


Section. 

2293.  Trustees  appointed. 

2294.  Proceeding  at  chambers. 

2295.  Trustees  of  corporations. 

2296.  New  assignees  or  trustees. 

2297.  Inventory. 

2298.  Return  to  Ordinary. 

2299.  Liability  of  naked  trustee. 

2300.  Duty  of  trustees. 

2301.  Sales  by  trustees. 

2302.  The  same. 

2303.  Purchaser  with  notice. 

2304.  Investments  in  stocks. 


Section. 

2305.  Trustee  may  contract  for  labor. 
230G.  Profits  made. 

2307.  Following  funds. 

2308.  Disposition  of  income. 

2309.  Lien. 

2310.  Debts  of  cestui  que  trust. 

2311.  Sale  by  beneficiary. 

2312.  Lien  on  estates  for  trust  funds, 

2313.  Acceptance  of  trust. 

2314.  Extent  of  trustee's  estate. 

2315.  Relief  of  securities  on  bond. 

2316.  Compensation. 


§2293.  Trustees  may  be  appointed  by  the  party  creatine  the  Trustees ap 

^  J  rr  J  t        J  ^       t>  pointed,  etc. 

estate,  and  he  may  confer  the  power  of  removal  and  appointment, 
by  deed  to  the  beneficiaries,  prescribing  the  mode  of  its  execution. 

§  2294.  The  Judsre  of  the  Superior  Court  of  each  County,  has   Proceeding 

^  ^  ^  ^  ,   .  -^  '  at  chambers. 

power,  either  in  term  or  at  chambers,  on  petition  by  all  the  bene- 
ficiaries in  a  deed,  who  have  arrived  at  years  of  discretion,  and 
on  proper  notice  to  the  trustee,  if  there  be  one  residing  in  this 
State,  to  remove  and  appoint  trustees,  prescribing  in  each  case 
such  terms,  and  requiring  such  bonds  as  in  his  discretion  he  may 
think  proper,  but  in  no  case  omitting  to  require  a  bond  where  Trustees 
minor  beneficiaries  are,  or  may  be  interested.  [All  such  bonds 
shall  be  made  payable  to  the  Ordinary  of  the  County  where  the 
Judge  requiring  the  same  shall  determine,  and  such  Ordinary  shall 
act  in  relation  to  taking  such  bonds  and  receiving  security,  as  such 
Judge  may  direct.]  (a)  The  petition,  notice,  order  and  other  pa- 
pers in  such  cases,  if  done  in  vacation,  shall  be  returned  to  the 
Clerk  of  the  Superior  Court,  to  be  recorded  in  the  book  of  the 
minutes  of  said  Court. 

§  2295.  [Whenever  the  office  of  trustee,  in  any  incorporated  Courts  may 

1  inipi  1-11      fill  vacancies 

company,  may  nave  or  snail  nereaiter  become  vacant  by  death,  of  trustees. 


(a)  Acts  1865-6,  pp.  87,  88. 


'446  PT.  2.— TIT.  5.— CHAP.  8.— Estates,  etc. 


Article  2. — Trustees — tbeir  Appointment,  Powers,  etc. 


resignation,  or  otherAvise,  and  the  same  for  any  cause  can  not  be 
filled  under  the  provisions  of  the  charter  of  incorporation,  the 
Judge  of  the  Superior  or  Inferior  Courts  of  the  Counties  or  Ju- 
dicial Districts  in  which  said  incorporation  may  be  situated,  shall 
have  power  to  fill  such  vacancies  upon  petition  to  said  Judge  of 
either  of  said  Courts,  showing  the  circumstances  which  render  the 
appointment  of  a  trustee,  or  trustees,  necessary  and  proper.]  (a) 
§  2296.  [In  all  cases  of  assignments  for  the  benefit  of  creditors, 
New  as-  heretofore  or  hereafter  made,  and  in  all  cases  of  any  trust,  where- 

signees   nnd  ^  '  v  ' 

trusteesmay  the    solc  or  surviviup;  trustee,   or  assignee,    shall  have  departed 

be    appoint-  o  '  o         ?  r 

^'  this  life,  or  removed  beyond  the  jurisdiction  of  the  Courts  of  this 

State,  the  Superior  Courts  of  the  several  Counties  in  this  State 
shall  have  full  power  and  authority,  when  sitting  either  as  a  Court 
of  Law  or  Equity,  upon  the  petition  of  two  or  more  of  the  parties 
interested  in  such  assignment  or  trust,  and  on  such  notice  as  the 
Court  shall  direct,  in  a  summary  manner,  to  appoint  a  new  trus- 
tee, or  trustees,  in  the  place  of  such  deceased  or  non-resident 
trustee  ;  and  such  new  trustee  shall  have  all  the  authority,  and 
be  subject  to  all  the  pains  and  penalties  of  such  deceased  or  non- 
resident trustee,  or  assignee ;  and  all  laws  or  enactments  shall 
be  as  applicable,  and  in  as  full  force  in  respect  to  the  new  as  to  the 
old  assignee  or  trustee ;  and  said  Court  may  in  its  discretion  re- 
quire bond  and  security  of  such  assignee  or  trustee.]  (b) 

§  2297.    [It  shall  be  the   duty  of    all   trustees,    within   three 
Inventory  months  after  the  trust  property  comes  into  their  possession,  to  re- 

by  trustees.  .  . 

turn  to  the  Court  of  Ordinary  where  they  reside,  an  inventory  of 
all  the  trust  property  in  their  hands,  received  by  them,  which  shall 
be  recorded  under  the  same  regulations  as  inventories  of  adminis- 
trators and  executors.]  (c) 

§  2298.  All  trustees  having  in  their  hands  a  pecuniary  fund,  as 
Eeturus  to  a  part  of  the  trust  estate,  or  receiving  any  sums  of  money  as  in- 
come or  proceeds  of  sucK  estate,  shall  make  returns  to  the  Ordi- 
nary, and  receive  commissions  on  such  returns,  under  the  same 
rules  and  regulations  as  are  prescribed  for  guardians ;  and  such 
returns,  when  allowed  and  recorded  by  the  Ordinary,  shall  be 
'prima  facie  evidence  in  their  favor  as  to  their  correctness. 

§  2299.  A  naked  trustee,  holding  the  title  when  possession  of 
Liability  of  the  property  is  with  the  beneficiary,  is  in  no  way  responsible  for 

naked  trus-  r      r        ^  ^  j  7  j  ir        ^  ^ 

tees.  its  income  or  preservation,  except  where  there  are  beneficiaries  in 

(a)  Acts  of  1865-a,  p.  60,    (b)  Acts  of  1861,  p.  33.    (c)  Acts  1855-6,  p.  148. 


PT.  2.— TIT.  5.— CHAP.  8.— Estates,  etc.  447 

Article  2. — Trustees — their  Appointment,  Powers,  etc. 

remainder,  or  who  are  minors,  and  in  such  case  he  is  responsible 
only  for  gross  neglect. 

§  2300.  Trustees  having  possession   of  the  trust  property  are       i^"ty  of 
bound  to  ordinary  diligence  in  the  preservation  and  protection  of 
the  same. 

§  2301.  A  trustee,  unless  expressly  authorized  by  the  act  ere-      saies  by 

'^  i  ./  ./  trustees. 

ating  the  trust,  or  with  the  voluntary  consent  of  all  the  beneficia- 
ries, has  no  authority  to  sell  or  convey  the  corpus  of  the  trust 
•estate,  but  such  sales  must  be  by  virtue  of  an  order  of  the  Court 
of  Chancery,  upon  a  regular  application  to  the  same.  Such  ap- 
plication may  be  made  to  the  Judge  in  vacation,  on  full  notice  to 
all  parties  in  interest,  and  the  order  for  such  sale  may  be  granted 
at  chambers,  the  proceedings  to  be  recorded  as  above  provided,  on 
application  for  appointment  of  trustees. 

§  2302.   Sales  by  trustees,  unless  otherwise  provided  in  the  or-  '^^^  ^^^^' 
der,  shall  be  made  under  the  same  rules  and  restrictions,  in  every 
respect,  as  provided  for  sales  by  administrators  of  estates. 

§  2303.  The  purchaser  from  a  trustee,   with  notice  actual  or     Purchaser 

r»       1  TIT  f  1  1  r*     •        •  ^^'^^   notice. 

constructive  oi  the  trust,  holds  as  trustee  tor  the  benenciaries ; 
if  the  purchase  be  bona  fide,  and  without  notice,  the  purchaser 
holds  the  property  freed  from  the  trust.  ^ 

§  2304.  Any  trustee  holding  trust  funds  may  invest  the  same  in  investment 

.  •        n  T   •  ^^  stocks. 

stocks,  bonds,  or  other  securities,  issued  by  this  State,  making  a 
true  return  of  the  price  paid,  and  time  of  purchase.  Such  invest- 
ments shall  be  free  from  taxation  so  long  as  held  for  the  trust  es- 
tate. Any  other  investments  of  trust  funds  must  be  made  under 
an  order  of  the  Superior  Court,  either  in  term,  or  granted  by  the 
Judge  in  vacation,  or  else  at  the  risk  of  the  trustee. 

§  2305.  [Trustees  may  make  contracts  for  labor  or  service  with    May  con- 
persons  of  color,  or  with  white  persons,  for  the  benefit  of  the  es-bor. 
tates  of  their  cestui  que  trust,  upon  such  terms  as  they  may  deem 
best ;  and  all  such  contracts,  made  in  good  faith,  shall  be  a  charge 
upon  and  bind  said  estates,  whenever  the  same  are  approved  by 
the  Ordinary  of  the  County.]  (a) 

§2306.  The  trustee  must  not  use  the  trust  funds  to  his  own  Profits  made 
profit.     He  is  liable  to  account  for  all  such  profits  made. 

§  2307.  The  beneficiary  of  a  trust  estate  may  follow  the  funds  Following 

^  .  '^  fumls. 

wherever  they  can  be  traced,  and,  at  his  option,  may  affirm  or  re- 
ject an  unauthorized  investment  by  the  trustee. 


(a)  Acts  of  1866,  p.  87.  /        ■^  ' 


448  PT.  2.— TIT.  5.— CHAP.  8.— Estates,  etc. 

Article  2. — Trustees — their  Appointment,  Powers,  etc. 

.-       '     §  2308.  Trustees  are  authorized,  out   of  the  income  of  the  es- 
Disposition  tate,  to  pay  all  debts  incurred  for  its  protection  and  preservation, 

of  income.  .  . 

and  to  appropriate  a  sufficiency  of  the  balance  for  the  support  and 
mmntenance  of  the  beneficiaries  of  the  trust.  They  cannot  en- 
croach upon  the  corpus  of  the  estate,  except  by  order  of  the  Chan- 
cery Court. 

§  2309.  Trustees  are  not  authorized  to  create  any  lien  upon  the 
Lien,      trust  cstatc,  except  such  as  are  given  by  law. 
J- 1-3         §2310.  A  beneficiary  having  possession  of  the  trust  estate,  or 
Debts  of  ces-  whcn  the  trustoo  fails  or  refuses  to  provide  for  its  protection  and 

*ui  que  truet  .  n  ^  i  •  r     ^         -i  n 

preservation,  or  tor  the  support  and  maintenance  oi  the  benen- 
ciary,  may,  though  a  feme  covert,  contract  debts  for  these  pur- 
poses. The  trust  estate  of  such  beneficiary  shall  be  liable  for  the 
payment  of  such  debts. 

§  2311.  A  beneficiary  of  a  trust  estate,  of  full  age  and  of  sound 
Bale  by  mind,  may  voluntarily  sell  and  convey  any  portion  of  her  interest 

beneficiary.  .  .  i  i        i  i  i 

m  such  estate  to  any  person,  except  her  husband  or  her  trustee, 

and,  upon  application  to  the  Court,  such  sale  may  be  confirmed, 

in  the  discretion  of  the  Court,  and  the  proceeds  reinvested  under 

order  of  the  Court. 

#^if  y  ^  §  2312.  The   estate  of   a  trustee,  djing  chargeable  with  trust 

Lien  ones-  funds  in  hand,  shall  be  appropriated,  first,  to  the  payment  of  such 

trust  funds,  indebtedness,  after  the  funeral  expenses,  in  preference  to  all  other 

liens  and  claims  whatever. 

§  2813.  The  acceptance  of  a  trust  is  necessary  to  constitute  a 
Acceptance  persou  trustec  :  it  may  be  done  by  acts,  as  well  as  words.     After 

of  trust.  ^  .  . 

acceptance,  no  disclaimer  will  remove  the  character  of  trustee. 
Extent  of      §  2314.   Generally,  a  trustee  takes  an  estate  as  large  and  ex- 
tru^atee  s  es-  ^^j^^jg^j  ^^g  ^-^e  neccssitics  of  the  trust  require,  and  no  more. 

§  2815.  Sureties  on  the  bonds  of  trustees  may  be  relieved  from 
Keiief  of  liability  by  the  Judge  of  the  Superior  Court,  either  at  a  regular 
term,  or  at  chambers,  upon  the  same  terms  and  conditions  as  pre- 
scribed for  the  relief  of  sureties  on  the  bonds  of  guar*dians  by  the 
Ordinary. 

§  2316.  Trustees,  for  their  service,  shall  be  entitled  to  the  same 

CompenBa-  ,•  t  p  •      -i  •  *  '* 

tion.  compensation  as  guardians  tor  similar  services.'*' 

*  As  to  trustees  of  churches  and  religious  societies,  and  tlieir  responsibility, 
see  Act  of  1805,  Cobb's  New  Digest,  p.  899 ;  and  Act  of  1856,  Laws  of  1855-6, 
p.  272. 


PT.  2.— TIT.  6.— CHAP.  1.— Title,  etc.  449 

Article  1. — Grants  Generally. 


TITLE    VI. 

OF    TITLE    AND    THE    MODE    OF    CONVEYANCE. 


Chapter  1. — Of  Grants. 

Chapter  2.-0/  Title  hy  Will. 

Chapter  3. — Of  Title  hy  Descent,  Administration^  etc. 

Chapter  4. — Of  Title  hy  Judicial  Sale. 

Chapter  5. — Of  Title  hy  Contract. 

Chapter  6. — Of  Title  hy  Escheat  and  Forfeiture. 

Chapter  7. — Of  Title  hy  Prescription. 

Chapter  8. — Of  Conveyances. 


CHAPTER   I. 

OF     TITLE     BY     GRANT 


Article  1. — G-enerally. 

Article  2. — Of  Bead  Rights. 

Article  3. — Of  Land  Lotteries. 

Article  4. — Of  Processioning. 


ARTICLE  I. 

grants  generally 


Section. 

2317.  What  is  title. 

2318.  And  perfect  title. 

2319.  Origin  in  grant. 

2320.  Form  of  grants. 

2321.  Errors  in  grants  may  be  corrected. 

2322.  Proceeding  for  this  purpose. 

2323.  Effect  of  objections. 

2324.  Issue — how  formed  and  tried. 


Section. 

2325.  Question  of  law— how  decided. 

2326.  Filing  of  papers. 

2327.  If  original  grant  is  lost. 

2328.  Effect  of  corrected  grant. 

2329.  How  grants  may  be  set  aside. 

2330.  How  impeached. 

2331.  Nothing  taken  by  implication. 

2332.  Presumption  of  a  grant. 


€/f~ti 


§  2317.  Title  is  the  means  whereby  a  person's  right  to  property  Whatistitfe 

is  established,     'l-  j    ^"/  ^    '  ,  ,     -  *  . 

29  Kj^'Lrry     Uj  f 


450  PT.  2.— TIT.  6.— CHAP.  1.— Title,  etc. 


Article  1. — Grants  Generally. 


§  2318.  One  person  may  have  the  right  of  possession  and  an- 
And  perfect  other  the  right  of  property.     In  the  union  of  the  two  consists  a 
perfect  title. 

§  2319.  The  title  to  all  lands  in  this  State  originates  in  grants 

Origin  in  from  the  Government ;    and  since  its  independence,  from  the  State. 

§  2320.  The  form   of  grants  heretofore  used  in  this   State  is 

Form  of  hcrehv  established,  and  a  substantial  compliance  with  the  same 

grants.  t/  7  i 

shall  be  held  sufficient. 

§  2321.  The  following  errors  in  the  issuing  and  recording  of 
Errors  in  nrrants  mav  be  corrected — viz  :  Any  error  in  the  name  or  residence 

grants    may  o  J  J 

be  corrected,  ^f  ^jjg  grantee,  or  the  location,  or  character,  or  boundary  of  the 
land,  or  in  any  other  matter  or  thing  connected  with  the  applica- 
tion for  or  issuing  of  the  grant,  or  in  recording  or  transcribing 
the  names  of  applicants  for  draws,  or  of  fortunate  drawers  in  the 
several  land  lotteries,  or  any  omission  in  any  of  the  offices,  or  on 
the  part  of  any  of  the  agents  of  the  State,  or  any  other  mistake 
in  the  recording  thereof,  or  any  other  error  whereby  the  true 
grantee  is  deprived  of  or  jeoparded  in  his  right. 

§  2322.  In  all  such  cases  the  application  must  be  made  in  writ- 
Proceeding  inP"  to  the  Govcmor,  and  evidence  produced  to  him  that  notice  in 

for  this  pur-       ^i  j  1 

pose.  writing  of  the  nature  and  time  of  the  application  has  been  served 

upon  every  person  who  may  be  in  any  manner  interested  in  the 
question ;  and  if  no  objection  be  filed,  and  satisfactory  evidence 
of  the  error  or  mistake  be  produced  and  submitted  in  writing,  the 
Governor  may  pass  an  order  requiring  the  error  to  be  corrected, 
and,  if  necessary,  a  new  grant  to  be  issued  upon  the  first  grant 
being  delivered  up  to  be  canceled. 

§  2323.  If  objections  be  filed,  and  it  shall  appear  that  suchcor- 

Eflfect  of  ob-  rection  will  interfere  with  the  vested  rie^hts  of  other  hona  fide 

jections.  ^  ^         "^ 

claimants,  the  Governor  shall  refuse  to  make  such  correction,  but 
leave  the  parties  to  their  judicial  remedies. 

§  2324.  If  the  fact  is  doubtful  as  to  the  interference  with  the 
Issue-how  vested  rights  of  others,  the  Governor  may  cause  an  issue  to  be 

formed    and  o  ?  ./ 

tried.  made,  and  to  certify  the  same  to  the  Superior  Court  of  the  County 

where  the  land  lies,  requiring  the  Court  to  cause  the  same  to  be 

tried  before  a  special  jury,  and  have  their  verdict  certified  to  him. 

§  2325.  If  the   doubt  arises  upon  a  question  of  law,  the  Gov- 

Question  of  ernor  may  certify  the  same  to  the  Judges  of  the  Supreme  Court, 

decided.       ^ud  rcqucst  their  written  opinion  of  the  same  to  be  returned  to 


1  >^i\ ' 

d 

kt  -^     (Um.) 

^'ll*:       ?% 

\..t\^. 

i             rh4irMj    Uf 

:> 

,/     H*                      'I    // 

lyiA-'Xt^ 


PT.  2.— TIT.  6.— CHAP.  1.— Title,  etc. 


451 


Article  1. — Grants  Generally. 


^  2326.  All  the  papers  and  evidence  upon  every  such  applica-     Fiiicg  of 

^     '^  ^  .  papers. 

tion  shall  be  filed  and  preserved  in  the  Executive  Office. 

§  2327.  If  the  applicant  for  a  corrected  grant  shall  not  be  able    if  original 

-  .    .       ,  ,  111/^  grant  is  lost 

to  produce  the  original  grant  to  be  canceled,  the  (iovernor  may 
issue  the  corrected  grant,  after  advertising  for  six  months  at  the 
expense  of  the  applicant,  for  any  objection  to  be  filed. 

§  2328.  All  corrected  grants  shall  take  effect  from  the  time  of  Eflfectof  cor- 

,         .  ^1  .    .       ,  ,  ,     ,,  rr  1  1  rectedgrants 

the  issue  ot  the  original  grant,  but  shall  not  aliect  the  vested 
rights  of  bona  fide  purchasers  without  notice,  and  all  corrected 
grants  shall  bear  upon  their  face  a  note  of  the  correction  made, 
and  the  date  of  the  Executive  order  under  which  it  was  made. 

§  2329.  Grants  issued  by  the  State  may  be  set  aside  by  the  h«w  grants 
Superior  Court  of  the  County  where  the  land  lies  upon  a  writ  of  Se. 
sei7^e  facias,  on  the  ground  that  the  same  were  obtained  by  fraud 
or  willful  misrepresentations  by  the  grantee,  or  those  in  privity 
with  him,  to  the  officers  of  the  State ;  or  on  the  ground  of  collu- 
sion betAveen  the  grantee  and  the  said  officers ;  or  of  fraud,  acci- 
dent, or  mistake  by  the  officers  known  to  the  grantee. 

§  2330.   Grants  may  be  impeached  before  the  Courts  where  they     How  im- 

.  .  .  .  peached. 

are  void  upon  their  face,  or  are  issued  w^ithout  authority  of  law, 
or  against  a  prohibition  in  a  statute,  or  for  property  to  which  the 
State  had  no  title.  But  mere  irregularities  in  the  proceedings  to 
obtain  them  shall  not  be  inquired  into,  nor  can  a  mistake  in  the 
name  of  the  grantee  be  proved  by  parol. 

§2331.  A  grantee  of  lands  or  a  franchise,  takes  nothins;  by  Nothing  ta- 

.         T         .  ,  .  ^        ,  °        "^    ken  by  im- 

implication,  but  is  confined  to  the  terms  of  his  charter ;  but  every  plication, 
presumption  is  in  favor  of  a  grant. 

§  2332.  Twenty  years'  possession  of  land  under  a  claim  of  right,     Presump- 
when  the  same  is  subject  to  entry  and  grant,  shall  authorize  the  grant 
Courts  to  presume  a  grant. 


ARTICLE  11. 


OF    HEAD    RIGHTS, 


Section. 

2333.  Lands  subject  to  liead  rights. 

2334.  Irregularities  do  not  avoid,  etc. 

2335.  Former  acts  continued. 

2336.  Inferior  Court,  etc. 

2337.  Application  for  warrant,  etc. 

2338.  Preference  to  first  filed. 

2339.  Caveat. 


Skction. 

2340.  Warrant. 

2341.  His  certificate  if  the  land  is  granted. 

2342.  False  return  by  surveyor. 

2343.  Duty  of  Clerk. 

2344.  Grant— how  obtained. 

2345.  Interest  not  subject  to  levy,  etc. 

2346.  Grants  must  be  had  in  two  years. 


452  PT.  2.— TIT.  6.— CHAP,  1.— Title,  etc. 

Article  2. — Head  Eights. 

§  2333.   The  lands  heretofore  declared  by  law  to  be  subject  to 
Lands  sub-  entrv  Under  the  various  acts  srrantinsr  head  rights,  shall  so  con- 

ject  to  head     ,       •^       .  .  . 

rights.         tinue  without  any  further  act  extending  the  time. 

§2334.  All  grants   heretofore  issued  on  warrants  granted  by 
irreguiari-  Land  Courts,  profcssing  to  be  constituted  under  said  acts,  shall  be 
avoid    past  held  Valid  and  good,  notwithstanding  one  or  more  Justices  of  the 
Inferior   Court  may  have  constituted  the  Land  Court,  and  not- 
withstanding any  other  irregularity  not  the  result  of  or  amounting 
to  fraud. 

§^335.    The   several   acts   opening   Land    Courts    in    different 
Formeracts  Countics,  and  all   acts   amendatory  of  the  same,  shall  remain  in 

continued.  it-  •  •         i  •/«    ■l 

force  after  the  adoption  of  this  Code  in  the  same  manner  as  if  the 
same  were  of  force  prior  to  such  adoption,  except  so  far  as  changed 
by  this  article. 

§  2336.   The  Inferior  Court  of  each  Countv  shall  hereafter  con- 
Inferior  gtitutc  the  Land  Court,  and  all  the  powers  of  the  Land  Court  are 

Court     shall  '  ^ 

couJt*^  ^^°^  hereby  transferred  to  said  Inferior  Court,  to  be  exercised  only  at 
a  regular  term  thereof. 

§  2337.  All  applications  for  warrants  shall  be  made  in  writing 
Application  to  Said  Court,  and  shall  specify  as  accurately  as  possible,  the  va- 
—bow made,  cant  land  for  which  a  warrant  is  sought;  and  written  notice,  at 
least  ten  days  before  the  session  of  the  Court,  shall  be  served  by 
the  Sheriff  or  his  deputy  on  the  person  in  possession,  if  any,  and 
on  each  owner  of  land  adjoining  the  land  alleged  to  be  vacant, 
if  such  owner  resides  in  the  County.  If  he  is  a  non-resident,  that 
fact  shall  be  returned  by  the  officer,  and  the  Court  shall  adopt 
such  means  as  it  deems  proper  to  convey  notice  to  him.  The 
record  must  show  the  names  of  the  persons  notified,  and  the  grant 
shall  be  valid  against  no  other  owner  of  adjacent  lands. 

§  2338.  All  such  applications  shall  be  filed  by  the  Clerk  as 
Preference  rcceived,  and  when  two  or  more  applications  are  filed  for  the  same 

to  first  filed,  '  ^^ 

or  person  in  land  thc  first  filed  shall  have  the  preference,  unless  one  of  the  ap- 

possessioD.  ^  J.  ^  -I- 

plicants  be  in  actual  or  constructive  possession,  in  which  case  he 

shall  have  the  preference. 

§  2339.  Any  owner  of  the  adjacent  land  or  lands  .covered  by 
Caveat,     the  application,  may  file  a  caveat  to  the  issuing  a  warrant,  or  to 

the  granting  of  the  land,  at  any  time  before  the  certified  plat  of 

the  same  is  transmitted  to  the  office  of  the  Secretary  of  State, 
How  tried,  and   sucli   application   and   caveat  shall    be  transmitted  by   said 

Court  to  the  Superior  Court  of  the  County,  to  be  there  tried  as 


PT.  2.— TIT.  6.~CHAP.  1.— Title,  etc.  453 

Article  2. — Head  Rights. 

other  land  cases.  The  final  judgment  ©f  the  Superior  Court 
shall  be  certified  by  its  Clerk  back  to  the  Land  Court. 

§  2340.  If  no  caveat  is  filed,  or  if  filed,  is  not  sustained,  the    warrant. 
said  Inferior  Court  shall  issue  a  warrant  directed  to  the  County 
Surveyor,  requiring  him  to  view  the  land  alleged  to  lie  vacant, 
and  if  upon  due  examination  of  the  adjoining  surveys  he  is  satis- 
fied that  the  same  is  vacant,  to  make  an  accurate  survey  and  plat    i>uty  of 

.  ,  ,        Surveyor. 

of  the  same  and  return  the  plat  to  the  said  Court  with  his  official 
certificate  as  to  its  accuracy,  the  time  of  survey,  and  his  opinion 
that  the  same  is  vacant.  Notice  of  the  time  of  survey  shall  be 
given  to  all  the  owners  of  adjacent  lands,  resident  within  the 
County,  by  the  County  Surveyor  at  least  ten  days  before  the  time 
appointed,  and  like  notice  of  any  delay  or  postponement  of  the  time. 

§  2341.  If  the  County  Surveyor  shall  be  satisfied  that  the  land    mscertifi- 
is  not  vacant,  he  shall  certify  the  fact  to  the  Court  issuing  the  i  and     is 

,  .      granted. 

warrant,  with  the  name  of  the  grantee  or  grantees,  to  whom,  in 

his  opinion,  the  same  has  been  granted,  and  return  the  warrant  to 

the  Court.     The  applicant,  if  he  sees  proper,  may  take  issue  upon  issuethere- 

such  return,  and  such  issue  shall  be  transmitted  to  the  Superior  ^°' 

Court,  in  like  manner  as  a  caveat,  to  be  there  tried.     The  Supe- 

tior  Court  shall  give  notice  in  the  most  practicable  manner  to  the 

owner  or  owners  of  the  old  grant  or  grants  of  the  pendency  of 

such  issue  before  the  trial  of  the  same.      If  the  issue  is  found  for 

the  applicant  the  survey  shall  proceed. 

§  2342.  Anv  County  Surveyor  who  shall  knowingly  or  with-     ^'aise  re- 

"      .  '^    .  '^  *  -^  turn  by  Sur- 

out  due  precaution  certify  as  vacant,  land  covered  by  a  former  ^^eyor. 
grant  shall  be  liable,  with  his  sureties  on  his  bond,  to  the  owner 
of  such  land  for  double  the  value  of  the  same,  at  any  time  before 
the  trial  of  the  cause. 

§  2343.  It  shall  be  the  duty  of  the  Clerk  of  the  Inferior  Court     Duty  of 
to  record  accurately  all  such  plats  as  shall  be  ordered  to  be  sent 
to  the  Secretary  of  State's  office  to  be  granted. 

§  2344.  When  a  survey  of  vacant  land  is  returned  by  the  Grant - 
County  Surveyor,  and  no  caveat  is  filed,  or  if  filed  is  not  sustain-  ed."^  ''^^'''"' 
ed,  the  Court  shall  pass  an  order  declaring  the  application  sus- 
tained and  the  report  of  the  Surveyor  confirmed,  and  direct  the 
plat  of  the  survey,  together  with  a  certified  copy  of  the  order,  to 
be  forwarded  to  the  office  of  the  Secretary  of  State,  by  whom  it 
shall  be  recorded,  and  a  grant  to  the  land  to  the  applicant,  or  his 
assignee,  shall  be  made  and  issued  as  in  other  cases. 

§2315.  Though  subject  to  be  assigned,  the  interest  of  the  ap- 


454 


PT.  2.— TIT.  6.— CHAP.  1.— Title,  etc. 


Article  3. — Land  Lotteries. 


interestcot  plicaiit  in  the  land  surveyed  sball  not  be  subject  to  lew  and  sale 

sxibject     t  o  ^  ,        .         .  ^     ,  '^ 

levy  and  sale  prior  to  the  issumg  01  the  grant. 

§  2346.  If  a  grant  is  not  applied  for  in  two  years  from  the  pass- 
Grantsmiist  ing  of  the  final  order  by  the  Land  Court,  the  land  shall  be  consid- 

be    had    in^  ii*,  iii-i 

two  years,    ered  vacant,  and  subject  to  resurvey  under  head  rights. 


ARTICLE  III. 


OP    LAND    LOTTERIES. 


Section. 

2347.  Former  acts  continued. 


Section. 

2348.  Eevertecl  lots. 


continued. 


§  2347.  The  several  acts  in  reference  to  the  various  land  lotte- 

Formeracts  rics,  heretofore  authorized  by  this  State,  so  far  as  th^  same  are 

DOW  in  force,  shall  remain  of  the  same  effect  and  validity  as  if  this 

Code  was  not  adopted,  except  so  far  as  the  same  may  be  modified 

by  the  operation  thereof. 

§  2348,  All  lands  reverting  to  the  State  under  the  operation  of 
Reverted  thcsc  laws,  and  not  yet  disposed  of,  and  all  reserves  still  belonging 
to  the  State,  shall  remain  the  property  of  the  State,  until  further 
action  by  the  Legislature.  And  all  such,  together  with  all  un- 
granted  lands  now  within  the  bounds  of  the  State,  and  not  sub- 
ject to  grant  under  its  laws,  are  hereby  pledged  and  set  apart  to 
be  appropriated  by  the  Legislature  to  the  cause  of  education  in 
this  State. 


lots 


ARTICLE   IV. 


P'RO  CESSION  ING. 


Section. 

Section. 

2349.  Appointment  of  proeessioners. 

2354.  Adverse  possession. 

2350.  What  is  processioning. 

2355.  Protest  and  appeal,  etc. 

2351.  Surveyor's  duty. 

2356.  Fees. 

2352.  Ptules  in  disputed  lines. 

2357.  Return. 

2353.  General  reputation — when  evidence. 

2358.  Land  cut  off  by  running'  stream 

§  2349.  The  Justices  of  the  Inferior  Court  of  each  County,  or 
Appoint-  any  three  of  them,  shall,  at  the  second  term  of  their  Court,  on 

meutofpro-  .  .  •11  .  -v.' 

cessioners.  every  second  year,  appoint  three  suitable  persons  m  every  militia 
district  in  the  County,  who  shall  be  processioners  of  land  for  that 
district,  until  their  successors  are  appointed.  Vacancies  may  be 
filled  in  the  same  manner  at  any  time.     If  none  are  appointed  the 


PT.  2.— TIT.  6.— CHAP.  1.— Title,  etc.  455 


Article  4. — Processioning. 


Court  shall  appoint,  at  any  regular  term,  on  the  application  of 
any  land  owner. 

§  2350.  Every  owner  of  land,  any  portion  of  which  lies  in  any  whatispro- 

•^  ....  cessioning. 

district,  though  the  remainder  lies  in  an  adjoining  district,  or  an 
adjoining  County,  who  desires  the  lines  around  his  entire  tract 
to  be  surveyed  and  marked  anew,  shall  apply  to  the  processioners 
of  said  district  to  appoint  a  day  when  a  majority  of  them,  with 
the  County  Surveyor,  will  trace  and  mark  the  said  lines.  Ten 
days'  written  notice  of  the  time  of  such  running  and  marking 
shall  be  given  to  all  the  owners  of  adjoining  lands,  if  resident 
within  this  State  ;  and  the  processioners  shall  not  proceed  to  run 
and  mark  such  lines  until  satisfactory  evidence  of  the  service  of 
such  notice  shall  be  produced  to  them. 

§  2351.  It  shall  be  the  duty  of  the  County  Surveyor,  with  the  ^^^^"^^^^^'^ 
processioners,   taking  all  due  precaution   to   arrive   at   the   true 
lines,  to  trace  out  and  plainly  mark  the   same.     The   Surveyor 
shall  make  out  and  certify  a  plat  of  the  same,  and  deliver  a  copy    I'lat. 
thereof  to  the  applicant ;  and  in  all  future  disputes  arising  in  ref- 
erence to  the  boundary  lines  of  such  tract,  with  any  owner  of  ad- 
joining lands,  having  due  notice  of  such  processioning,  such  plat, 
and  the  lines  so  marked,  shall  be  prima  facie  correct,  and  such 
plat,  certified  as  aforesaid,  shall  be  admissible  in  evidence,  with-     Evidence. 
out  further  proof. 

§  2352.  In  all  cases  of  disputed  lines  the  following  rules  shall     Euies  in 

disputed 

be  respected  and  followed :  Natural  landmarks,  being  less  liable  i^aes. 
to  change,  and  not  capable  of  counterfeit,  shall  be  the  most  con- 
clusive evidence ;  ancient  or  genuine  landmarks,  such  as  corner 
station  or  marked  trees,  shall  control  the  course  and  distances 
called  for  by  the  survey.  If  the  corners  are  established,  and  the 
lines  not  marked,  a  straight  line,  as  required  by  the  plat,  shall  be 
run,  but  an  established  marked  line,  though  crooked,  shall  not  be 
overruled  ;  courses  and  distances  shall  be  resorted  to  in  the  ab- 
sence of  higher  evidence. 

§  2353.  General  reputation  in  the  neighborhood  shall  be  evi-       General 

1  'iiif  ii«  >i     reputation— 

dence  as  to  ancient  landmarks  of  more  than  thirty  years   stand-  when    evi- 

*'    *'  ^  dence. 

ing,  and  acquiescence  for  seven  years,  by  acts  or  declarations,  of    Acquies- 

CGDC6 

adjoining  land  owners,  shall  establish  a  dividing  line. 

§  2354.  Where  actual  possession  has  been  had,  under  a  claim  of      Adverse 

.  possession. 

right,  for  more  than  seven  years,  such  claim  shall  be  respected, 
and  the  lines  so  marked  as  not  to  interfere  with  such  possession. 


456  PT.  2.— TIT.  6.— CHAP.  1.- Title,  etc. 

Article  4. — Processioning. 

§  2355.  Any  owner  of  adjoining  lands  wlio  may  be  dissatisfied 
Protest  and  "v^ith  the  linos,  as  run  and  marked  by  the  processioners  and  sur- 

appealtoSu-  r»i       i  •  t  •   i        i 

perior  Court  veyor,  may  file  his  protest  thereto  with  the  processioners,  within 
thirty  days  after  such  lines  are  run  and  marked,  specifying  therein 
the  lines  objected  to,  and  the  true  line,  as  claimed  by  him ;  and 
it  shall  be  the  duty  of  the  processioners  to  return  all  the  papers, 
including  the  plat  made  by  the  surveyor,  with  such  protest,  to  the 
Clerk  of  the  Superior  Court  of  the  County  or  Counties  where  the 
disputed  land  lies,  (copies  being  sent  to  the  adjoining  County,)  and 
it  shall  be  the  duty  of  the  Clerk  to  enter  the  same  on  the  issue 
docket,  as  other  causes,  to  be  tried  in  the  same  manner,  and  un- 
der the  same  rules  as  other  cases.  The  verdict  of  the  jury,  and 
the  judgment  of  the  Court,  shall  be  framed  to  meet  the  issue  tried 
and  decided. 

§  2356.  The  applicant  shall  pay  to  each  of  the  processioners  one 
Fees.        dollar  per  day  for  his  services,  and  to  the  County  Surveyor  two 
dollars  per  day  for  his  services.     If  a  protest  is  filed,  the  costs  of 
the  Court  shall  bide  the  issue. 

§  235T.  The  processioners  shall  make  a  return  of  their  acts,  to- 

Beturn      gethcr  with  the  plat  of  the  surveyor,  to  the  Clerk  of  the  Inferior 

Court  of  the  County,  to  be  kept  on  file  in  his  office. 

M>  y*?  ,/  §  2358.  When  any  water  course  is  one  of  the  boundary  lines  of 

p  *  Land  cut  oflf  a  tract  of  land,  and  its  course  shall  have  been  changed  by  nature 

I  f^      oy    running  ^  o  »/ 

y  stream.  or  art,  SO  that  its  present  channel  shall  cut  ofi"  a  part  of  said  land, 
the  processioners  and  surveyor  shall  certify  the  fact,  and  the  plat 
of  the  surveyor  shall  plainly  mark  the  original  and  present  chan- 
nels, designating  the  exact  quantity  of  land  so  cut  off. 


CHAPTER    II. 

OF     TITLE     BY     WILL. 


Article  l.—Of  the  Nature  of  Wills,  etc. 
Article  2. — Of  Probate  and  its  Effects, 
Article  3. — Of  the  Executor, 
Article  4. — Of  Devises  and  Legacies, 
Article  5. — Of  Revocation. 
Article  6. — Of  Nuncupative  Wills. 


PT.  2.— TIT.  6.— CHAP.  2.— Title,  etc. 


45T 


Article  1.- 

— Wills- 

-by  whom  and  how  Executed. 

ARTICLE  I 

, 

OF  THE  NATURE  OF  WILLS-BY  WHOM  AND  HOW  EXECUTED. 

Section. 

Section. 

2359. 

What  is  a  will. 

2373. 

Eccentricity,  imbecility,  etc. 

2360. 

Form. 

2374. 

Amount  of  capacity  necessary. 

2361. 

May  be  both  deed  and  will. 

2375. 

Wills  of  married  women. 

2362. 

Mutual  wills. 

2376. 

Conviction  of  crime,  etc. 

2363. 

When  a  will  takes  effect. 

2377. 

Of  blind  mutes. 

2364. 

Power  of  testator. 

2378. 

Interpreter. 

2365. 

Will  may  be  good  in  part. 

etc. 

2379. 

Formalities  of  execution. 

2366. 

Will  should  be  voluntary. 

2380. 

Attested  by  illiterate  witnesses. 

2367. 

Fraud  vitiates. 

2381. 

Time  of  competency  of  witnesses. 

2368. 

Mistake  vitiates  pro  tanto. 

2382. 

Effect  of  witness  being  legatee. 

2369. 

Codicil. 

2383. 

Knowledge  of  contents. 

2370. 

Who  may  make  a  will. 

-,     2384. 

Charitable  devises. 

2371. 

Infants. 

2385. 

Discretion  to  executors. 

2372. 

Insane  persons. 

§2359.  A  will  is  the  legal  expression  of  a  man's  wishes  as  to    what  is  a 
the  disposition  of  his  property  after  his  death. 

§2360.  No  particular  form  of  words  is  necessary  to  constitute    Form. 
a  will ;  and  in  all  cases  to  determine  the  character  of  an  instru- 
ment,' whether  it  is  testamentary  or  not,  the  test  is  the  intention 
of  the  maker,  from  the  whole  instrument,  read  in  the  lio;ht  of  the     when  it  is 

'  '  o  a  will. 

surrounding  circumstances.  If  such  intention  be  to  convey  a 
present  estate,  though  the  possession  be  postponed  until  after  his 
death,  the  instrument  is  a  deed  ;  if  the  intention  be  to  convey  an 
interest  accruing  and  having  effect  only  after  his  death,  it  is,a 
will.  ■■  -  iijjij/^^i>'''- 

§2361.  An  instrument  may  have  effect  in  part  as  a  deed,  ^^^^  ^^t^^-^e^^ 
in  part  as  a  willj  even  as  to  the  same  property.  ^  ^^^  "'"^^^^ 

§  2362.  Mutual  wills  may  be  made  either  separately  or  jointly,    Mutual 
and  in  such  case  the  revocation  of  one  is  the  destruction  of  the 
other. 

§  2363.  A  will  takes  effect  instantly  upon  the  death  of  testator,  when  a  win 
however  long  the  probate  may  be  postponed. 

§  2364.  A  testator,  by  his  will,  may  make  any  disposition  of  his    Power  of 

.  .       "^  7  c/  ./  r  testators. 

property  not  inconsistent  with  the  laws  or  contrary  to  the  policy 
of  this  State  ;  he  may  bequeath  his  entire  estate  to  strangers  to 
the  exclusion  of  his  wife  and  children,  but  in  such  case  the  will 
should  be  closely  scrutinized,  and  upon  the  slightest  evidence  of 
aberration  of  intellect,  or  collusion,  or  fraud,  or  any  undue  influ- 
ence, or  unfair  dealing,  probate  should  be  refused. 

§  2365.  If  a  will  be  legal  in  part  and  illegal  in  part,  that  which 


458  PT.  2.— TIT.  6.— CHAP.  2.— Title,  etc. 

Article  1. — Wills — by  whom  and  how  Executed. 


Will  may  is  lefifal  may  be  sustained,  unless  the  whole  will  so  constitute  one 

be    good    in  °  *^  ^ 

part  and  testamentary  scheme  that  the  legal  alone  can  not  21  ve  effect  to  the 

void  in  part.  ...  . 

testator's  intention  ;  in  such  case  the  whole  will  fails. 

§  2366.  The  very  nature  of  a  will  requires  that  it  should  be 
Will  should  freely  and  voluntarily  executed:  hence  any  thing  which  destroys 

be  voluntary  '^  ....  ./  o  j 

this  freedom  of  volition  invalidates  a  will ;  such  as  fraudulent 
practices  upon  testator's  fears,  affections,  or  sympathies ;  duress, 
or  any  undue  influence  whereby  the  will  of  another  is  substituted 
for  the  wishes  of  the  testator. 

§  2367.  A  will  procured  by  misrepresentations  or  fraud  of  any 
tiat^er"^^^'  kind  to  the  injury  of  the  heirs  at  law,  is  void. 

§  2368.  A  will  executed  under  a  mistake  of  facts  as  to  the  ex- 
Mistakevi- istence  or  conduct  of  the  heirs  at  law  of  the  testator  is  inopera- 

tiates    pro  ^ 

tanto.         iiYQ^  SO  far  as  such  heir  at  law  is  concerned,  but  the  testator  shall 
be  deemed  to  have  died  intestate  as  to  him. 

§2369.  A  codicil  is  an  addition  or  supplement  to  a  will,  either 

Codicil,     to  add  to,  take  from,  or  alter  the  provisions  of  the  will.     It  must 

be  executed  w^ith  the  same  formality  as  a  w^ill,  and  when  admitted 

to  probate,  forms  a  part  of  the  will. 

;  §2370.  Every  free  person  is  entitled  to  make  a  will,  unless  la- 

who  may  boring  Under  some   disability  of  the  law  ;   this  disability  arises 

make  a -will.     .  ^  ^^  ^  f 

either  from  a  want  of  capacity,  or  a  want  of  perfect  liberty  of 
action. 

§  2371.  Infants  under  fourteen  years   of    age  are   considered 
Infants,     wanting  in  that  discretion  necessary  to  make  a  will. 

§  2372.  An  insane  person  can  not  generally  make  a  will.  A 
Insane  lunatic  may,  during  a  lucid  interval.  A  monomaniac  may  make 
a  will,  if  the  will  is  in  no  way  the  result  of  or  connected  with 
that  monomania.  In  all  such  cases  it  must  appear  that  the  testa- 
ment does  speak  the  wdshes  of  the  testator,  unbiased  by  the  men- 
tal disease  with  which  he  is  affected. 

§2373.  Eccentricity  of   habit  or  thought  does  not  deprive  a 
Eccentric!-  person  of  tlic  powcr  of  making  a  testament ;    old  age,  and  the 

ty,  imbecili-  ^  ^  °  '  ?  .        i  r» 

ty,  etc.  weakness  of  intellect  resulting  therefrom,  does  not,  of  itself,  con- 
stitute incapacity.  If  that  weakness  amounts  to  imbecility,  the 
testamentary  capacity  is  gone.  In  cases  of  doubt  as  to  the  extent 
of  this  weakness,  the  reasonable  or  unreasonable  disposition  of 
his  estate  should  have  much  weight  in  the  decision  of  the  question. 
§  2374.  An  incapacity  to  contract  may  co-exist  with  a  capacity 
to  make  a  will ;  the  amount  of  intellect  necessary  to  constitute 


persons, 


PT.  2,— TIT.  6.— CHAP.  2.— Title,  etc.  *  459 


Article  1. — Wills— by  whom  and  how  Executed. 


testamentary  capacity,  is  that  which  is  necessary  to  enable  the    Amountof 

.  .  .  ...  capacity  ne- 

partj  to  have  a  decided  and  rational  desire  as  to  the  disposition  of  cessary. 
his  property.  His  desire  must  be  decided,  in  distinction  from  the 
wavering,  vacillating  fancies  of  a  distempered  intellect.  It  must 
be  rational,  in  distinction  from  the  ravings  of  a  madman,  the  silly 
pratings  of  an  idiot,  the  childish  whims  of  imbecility,  or  the  exci- 
ted vagaries  of  a  drunkard. 

§  2375.  Married  women  are  incapable  of  making;  wills  for  want     ^P^  ^^ 

^  X  o  married  wo- 

of  perfect  liberty  of  action,  being  presumed  to  be  under  the  con-  ™^^- 
trol  of  their  husbands.     A  married  woman  may  make  a  will  in 
the  following  cases — 

1.  Where  express  power  to  will  her  separate  estate  is  reserved 
or  granted  to  her  in  the  instrument  creating  the  same,  or  by  mar- 
riage contract.  - 

2.  When  having  a  separate  estate,  absolutely,  or  an  estate  in  ex-  ^  6*  "^  >-'  ^  ^ 
pectancy,  her  husband  consents  to  her  disposing  of  the  same  by  will. 

3.  Where  her  will  is  in  execution  of  a  power  vested  in  her. 

4.  Whenever  by  reason  of  the  abandonment  of  her  husband,  or  

a  divorce  from  bed  and  board,  or  for  other  cause,  the  law  declares 
her  to  have  the  right  of  a  feme  sole  as  to  her  own  earnings. 

§  2376.   Conviction  of  crime  in  no  case  deprives  a  person  of  the    conviction 

rtT.  .-n  1  .  .  ,  -,  -i     of  Clime  and 

power  01  making  a  will;  nor  does  any  imprisonment,  unless  such  imprison- 

•  .  ITT  11  1  ment. 

imprisonment   be  used  as  duress  to  compel  the  person   to  make  a 
testament  different  from  his  own  will. 

§  2377.  A  person  deaf,  dumb,  and  blind,  may  make  a  will  in  this    of  blind 
State ;  ]?rovided,  the  interpreter  and  scrivener  are  both  attesting 
witnesses  thereto,  and  are  both  examined  upon  the  motion  for 
probate  of  the  same.     In  such  cases,  strict  scrutiny  into  the  trans- 
action should  precede  the  admission  of  the  paper  to  record. 

§  2378.  In  all  cases  when  an  interpreter  is  necessary  to  convey  interpreter. 
to  the  scrivener  or  to  the  witnesses  the  wishes  of  the  testator,  such 
interpreter  must  be  a  person  competent  to  be  a  witness,  and  must 
be  sworn  on  the  motion  for  probate,  if  within  the  jurisdiction  of 
the  Court. 

§  2379.  All  wills  (except  nuncupative  wills)  disposing  of  realty  Formalities 
or  personalty,  must  be  in  writing,  signed  by  the  party  making  ^  ^^^^^^^  ^^^* 
the  same,  or  by  some  other  person  in  his  presence,  and  by  his 
express  directions,   and  shall  be  attested  and  subscribed  in  the 
presence  of  the  testator  by  three  or  more  competent  witnesses. 

§  2380.  A  witness  may  attest  by  his  mark,  provided  he  can 


460 


PT.  2.— TIT.  6.— CHAP.  2.— Title,  etc. 


Article  1. — Wills — by  whom  and  how  Executed. 


Attestation  swear  to  the  same ;  but  one  witness  can  not  subscribe  the  name  of 

by  illiterate  •       i  •  i    i        i  •       t 

witnesses,     another,  even  m  his  presence  and  by  his  direction. 

§  2381.  The  question  of  competency  of  the  witness  relates  to 
Time  o f  the  time  of  his  testifying;;  but  a  witness  competent  at  the  time  of 

competency  ^  . 

of  witness,  attcstation,  can  not  defeat  the  will  by  rendering  himself  incompe- 
tent prior  to  the  time  of  probate,  but  in  such  cases  his  testimony 
shall  be  received,  submitting  its  credibility  to  the  jury. 

§  2382.  If  a  subscribing  witness  is  also  a  legatee  or  a  devisee 
Effect  of  under  the  will,  the  witness  is  competent,  but  the  legacy  or  devise 
ing^iegltee!"  is  void ;  but  a  husband  may  be  a  witness  to  a  will  by  which  a  leg- 
acy creating  a  separate  estate  is  given  to  his  wife,  the  fact  going 
only  to  his  credit. 

§  2383.  In  all  cases,  a  knowledge  of  the  contents  of  the  paper 
Knowledge  bv  the  testator  is  necessary  to  its  validity ;  but  usually,  where  a 

of  contents.     "^  ,,.,.. 

testator  can  read  and  write,  his  signature  or  the  acknowledgment  ot 
his  signature,  is  sufficient.    If,  however,  the  scrivener  or  his  immedi- 
ate relations  are  large  beneficiaries  under  the  will,  greater  proof  will 
^       be  necessary  to  show  a  knowledge  of  the  contents  by  the  testator. 
J^-gO  §2384.  'No  person  leaving  a  wife  or  child,  or  descendants  of 

Charitable  child,  shall,  by  will,  devise  more  than  one-third  of  his  estate  to 
any  charitable,  religious,  educational,  or  civil  institution  to  the 
exclusion  of  such  wife  or  child ;  and  in  all  cases  the  will  contain- 
ing such  devise  shall  be  executed  at  least  ninety  days  before  the 
death  of  the  testator,  or  such  devise  shall  be  void. 

§  2385.  A  testator  may  by  will  dispense  with  the  necessity  of 
Discretion  liis  oxccutor  making  inventory  or  returns ;  provided,   the  same 
oexecuors.  ^^^^  ^^^  work  any  injury  to  creditors  or  third  persons,  other  than 
legatees  under  the  will. 


ARTICLE  11. 


OF     PROBATE     AND     ITS     EFFECT. 


Section. 

238C.  Jurisdiction  of  Ordinary. 

2387.  Probate  in  another  County. 

2388.  In  another  form. 

2389.  In  solemn  form. 

2390.  Limitation  of  seven  years. 

2391.  Probate  in  vacation. 

2392.  Notice  to  heirs. 

2393.  Guardian  ad  litem  for  minora. 

2394.  Examination  by  commission. 


Section. 

2395.  Will  must  be  filed. 

2396.  Copy  of  will  when  established. 

2397.  Original  will  to  be  kept  on  file. 

2398.  Foreign  will. 

2399.  Who  may  offer  a  will. 

2400.  Vv'hen  it  must  be  offered. 

2401.  Renunciation  final. 

2402.  Admission  of  executors  or  legatee. 


2386.  The  Court  of  Ordinary  has  exclusive  jurisdiction  over 


PT.  2.— TIT.  6.— CHAP.  2.— Title,  etc.  461 

Article  2. — Probate  and  its  Effect. 


the  probate  of  wills.     The  residence  of  testator  at  his  death  gives      J«ri»fiic- 
jurisdiction  to  the  (Jrdmary  or  that  County.  nary.,^ 

§2387.  If  the  testator  shall  die  out  of  the  County  of  his  resi-  Prolate  in 
dence,  and  the  witnesses  to  his  will  shall  reside  in  the  County  county. 
where  he  died,  the  Ordinary  of  the  latter  County  may  receive  the 
probate  in  common  form  of  such  will,  and  transmit  it,  certified 
under  his  seal  of  office,  together  with  the  original  will,  to  the  Or^ 
dinary  of  the  County  of  the  testator's  residence;  and  such  certified 
probate  shall  authorize  the  latter  Court  to  grant  probate  and 
admit  to  record  in  common  form,  and  to  grant  letters  testamen- 
tary or  of  administration  therein  :  provided  alivays,  that  no  caveat 
is  filed  to  such  probate  and  record. 

§2388.  Probate  of  a  will  may  be  either  in  common  or  solemn  incommon 
form.  In  the  former  case,  upon  the  testimony  of  a  single  sub- 
scribing witness,  and  without  notice  to  any  one,  the  will  may  be 
proven  and  admitted  to  record.  But  such  probate  and  record  is 
not  conclusive  upon  any  one  interested  in  the  estate  adversely  to 
the  will ;  and  if  afterward  set  aside,  does  not  protect  the  execu- 
tor in  any  of  his  acts  further  than  the  payment  of  the  debts  of 
the  estate.  Purchasers  under  sales  from  him,  legally  made,  will 
be  protected  if  bona  fide  and  without  notice. 

§  2389.  Probate  by  the  witnesses,  or  in  solemn  form,  is  where,    in  solemn 

.  .  .        .  form. 

after  due  notice  to  all  the  heirs  at  law,  the  will  is  proven  by  all 
the  witnesses  in  existence  and  within  the  jurisdiction  of  the 
Court,  or  by  proof  of  their  signatures,  and  that  of  the  testator, 
the  witnesses  being  dead,  and  ordered  to  record ;  such  probate  is 
conclusive  upon  all  the  parties  notified,  and  all  the  legatees  under 
the  will  who  are  represented  in  the  executor. 

§  2390.  Probate  in  common  form  becomes  conclusive  upon  all  Limitation 
parties  in  interest  after  the  expiration  of  seven  years  from  the  years. 
time  of  such  probate,  except  minor  heirs  at  law,  who  require  proof 
in  solemn  form  and  interpose  a  caveat  at  any  time  within  four 
years  after  arrival  at  age.  In  such  cases,  if  the  will  is  refused 
probate  and  record  in  solemn  form,  an  intestacy  shall  be  declared 
only  as  to  such  minor,  and  not  as  to  others  whose  right  to  caveat 
is  barred  by  lapse  of  time. 

§2391.  Probate  in  common  form,  may  be  taken  by  the  Ordina-    probateia 
ry  at  any  time  during  vacation,  but  the  order  admitting  the  will  ^'^^^  ^^^' 
to  record,  and  granting  letters  testamentary,  shall  be  granted  only 
at  a  regular  term. 


462  PT.  2.— TIT.  6.— CHAP.  2.— Title,  etc. 


Article  2. — Probate  and  its  Effect. 


§  2392.  Notice  of  a  motion  for  probate  in  solemn  form  must  be 
Notice  to  personal,  if  the  party  resides  in  the  State,  and  at  least  ten  days 
before  the  term  of  the  Court  when  the  probate  is  to  be  made ;  if 
the  residence  be  without  the  State,  or  unknown,  then  the  Court 
shall  pass  such  order,  as  to  publication,  as  will  tend  most  effectu- 
.  ally  to  give  notice.  The  records  of  the  Court  shall  show  the  per- 
sons notified,  and  the  character  of  the  notice  given. 

§  2393.  If  any  of  the  persons  interested  as  heirs  be  minors,  or 

Guardains  of  uusound  mind,  ffuardians  ad  litem  shall  be  appointed  by  the 

minors.        Court,  OF  the  probatc  shall  not  be  conclusive  as  to  them. 

CiL    (>\l        §2394.  Witnesses  to  wills  may  be  examined  by  commission,  in 

Examina-  the  samo  cascs,  and  under  the  same  circumstances,  as  other  wit- 

tion  by  com- 
mission,      nesses  in  other  cases,  and   the  Ordinary  shall  have  power  to  issue 

commissions  to  take  testimony,  and  to  compel  the  attendance  of 
witnesses  in  like  manner  with  the  Superior  Court. 

§2395.  Every  person  having  possession  of  a  will  must  file  the 
"^iij^^^iist  same  with  the  Ordinary  of  the  County  having  jurisdiction  ;   and 
on  failure  to  do  so,  the  Ordinary  may  issue  process  as  for  con- 
tempt, and  fine  and  imprison  the  person  thus  withholding  the  paper, 
until  the  same  shall  be  delivered. 

§  2396.  If  a  will  be  lost  or  destroyed  subsequent  to  the  death, 
win^^wjTen  ^^  without  the  consent  of  the  testator,  a  copy  of  the  same,  clearly 
established.  pj-Qved  to  be  such  by  the  subscribing  witnesses  and  other  evi- 
dence, may  be  admitted  to  probate  and  record  in  lieu  of  the 
original ;  but  in  every  such  case  the  presumption  is  of  revoca- 
tion by  the  testator,  and  that  presumption  must  be  rebutted  by 
proof. 

§  2397.  The  original  will,  when  proved  and  recorded,  shall  re- 
Originai    main  on  file  in  the   office   of  the   Ordinary,  and  certified  copies 

will,  etc.  .  *'  '  ^      ^     ^ 

thereof  shall  be  evidence  in  any  cause  and  in  any  Court  in  this 
State. 

§  2398.  If  a  party  claims  title  to  personalty  in  this  State,  un- 
ForeigE  dcr  a  will  of  a  non-resident,  executed  and  admitted  to  probate  in 
another  State,  a  copy  of  said  will,  and  the  probate  thereof,  and 
the  order  admitting  the  same  to  record,  according  to  the  laws  of 
such  other  State,  when  properly  certified  under  the  laws  of  the 
United  States,  shall  be  admitted  in  evidence  in  place  of  the 
original. 

§  2399.  The  right  to  ofier  a  will  for  probate  belongs  to  the  ex- 
ecutor, if  one  be  named.     If  the  executor  be  dead,  or  non-resi- 


PT.  2.— TIT.  6.— CHAP.  2.— Title,  etc. 

Article  2. — Probate  and  its  Effect. 


463 


When    it 
must  be  of- 


dent,  or  refuses  to  act,  or  none  be  named,  any  person  interested    who  may 

'  ,  '  .  ■     offer  a  will. 

may  offer  the  will  for  probate.  [A  citizen  of  any  other  State  or 
Territory  of  the  United  States  may  be  nominated,  and  may  act  as 
executor  or  co-executor  of  the  will  of  a  deceased  citizen  of  Geor- 
gia, when  such  executor  has  the  interest  in  the  estate  of  the  de- 
ceased, and  will  give  the  bond  and  comply  with  the  requirements 
specified  in  Section  2458  of  this  Code,  in  cases  of  non-resident  ad- 
ministrators.] (a) 

§  2400.  The  executor  must  offer  the  will  for  probate  as  soon  as  prac 
ticable  after  the  death  of  testator,  and  must  qualify,  unless  restrained  fered 
by  the  will,  within  twelve  months  after  the  same  is  admitted  to  rec- 
ord. If  he  fails  to  offer  it  for  probate  for  an  unreasonable  time,  or  is 
not  qualified  within  the  time  specified,  he  shall  be  deemed  to  have 
renounced  his  right  as  executor.  If,  however,  there  are  several 
executors,  and  one  qualifies  in  the  time  specified,  and  afterward 
dies,  or  is  removed,  another  may  then  qualify  within  twelve  months 
from  the  decease  of  his  co-executor,  and  be  entitled  to  all  the  rights 
of  an  originally  qualified  executor. 

§2401.  An  executor  who  has,  either  formally,  or  by  operation    Renuncia- 
of  law,  voluntarily  renounced  his  trust,  can  not  afterward  relieve 
himself  from  the  effect  of  such  renunciation. 


§  2402.   On  the  investigation  of  an  issue  of  devisavit  vel  non,    Admission 

of    6XGCU,tor 

the  admission  of  an  executor  before  qualification,  or  of  a  legatee  etc. ' 
(unless  the  sole  legatee),  shall  not  be  admissible  in  evidence  to  im- 
peach the  will,  except  the  admission  be  in  reference  to  the  conduct 
or  acts  of  the  executor  or  legatee  himself,  as  to  some  matter  rele- 
vant to  the  issue. 


ARTICLE  III. 


OF    THE    EXECUTOR. 


Section. 

2403.  Power  before  probate. 

2404.  Appointment— how  made. 

2405.  Administrator,  with  will  annexed. 

2406.  Executor  de  son  tort. 

2407.  Oath  of  executor. 

2408.  Marriage  of  female  executrix. 


Section. 

2409.  Be  son  tori. 

2410.  Interest  of  executor. 

2411.  Bond  of  executor. 

2412.  Powers,  duties,  and  liabilities. 

2413.  When  more  than  one  executor. 

2414.  Foreign  executor. 


§  2403.  So  soon  as  the  probate  of  the  will  is  made  in  common 
form,  in  vacation,  and  before  it  is  admitted  to  record,  and  before 


(a)  Acts  of  1866,  p.  66. 


464  PT.  2.— TIT.  6.— CHAP.  2.-— Title,  etc. 

Article  3. — The  Executor. 
Power  be-  Qualification,   the  executor  named  therein  may   exercise  all  the 

fore      pro'^  i.- 

bate.  powers  of  a  temporary  administrator  as  to  the  collecting  and  pre- 

serving the  estate ;  but  if  a  caveat  is  filed  to  the  record  of  the 
will,  pending  the  investigation  of  such  caveat^  even  though  the  ex- 
ecutor may  have  been  qualified  on  proof  in  common  form,  the  Or- 
dinary, in  his  discretion,  may  require  of  him  a  bond  as  temporary 
^.    ,  /      administrator  on  such  estate. 

§  2404.  No  formal  words  are  necessary  to  the  appointment  of 
Appoint-  an  executor.     Any  expression  of  confidence  by  the  testator,  and 

ment  —  how  <j  i.  ... 

toade.  a  desire  that  such  an  one  shall  carry  into  effect  his  wishes,  will 
amount  to  an  appointment  as  executor.  Citizens  of  this  State 
only  are  eligible  to  be  executors,  except  as  provided  for  in  Section 
2399.  An  infant  may  be  appointed,  but  can  not  qualify  until  of 
age,  unless  expressly  directed  by  the  testator. 

§  2405.  If  no  executor  is   appointed,  or  can  or  will  serve,  ad- 
Adminis'  ministration,  with  the  will  annexed,  shall  be  granted  by  the  Or- 

trator  etc.  7  o  •/ 

dinary  under  the  same  rules  as  shall  be  prescribed  for  the  grant- 
ing of  administration  generally ;  and  such  administrator,  when  so 
appointed,  shall  have  the  powers  of  the  executor,  except  such  as 
manifestly  arise  from  personal  trust  and  confidence  placed  in  the 
executor  named. 

§2406.  If  any  person,  without  authority  of  law,  wrongfully  in- 
Executor  tcrmeddles  with,  or  converts  to  his  own  use  the  personalty  of  a 

•de  son  tort.  t.t.itt  ^  ti  l      •         -x 

deceased  individual,  whose  estate  has  no  legal  representative,  ne 
shall  be  held  and  deemed  an  executor  in  his  own  wrong,  and  as 
such  shall  be  liable  to  the  creditors^'and  heirs,  or  legatees  of  such 
estate,  for  double  the  yalue  of  the  property  so  possessed  or  con- 
verted by  him ;  nor  shall  such  executor  be  allowed  to  set  ofi"  any 
debt  due  to  him  by  the  deceased,  or  voluntarily  paid  by  him  out 
of  the  assets.  If  such  executor  dies,  his  legal  representatives 
shall  be  liable  in  the  same  manner,  and  to  the  same  extent,  as  if 
he  was  still  living. 

§  2407.  Every  executor  and  administrator  with  the  w^ill  annex- 
ed, upon  qualification,  shall  take  and  subscribe  the  following  oath : 

"  I  do  solemnly  swear  that  this  writing  contains  the  true  last 
will  of  the  within  named  A.  B.,  deceased,  so  far  as  I  know  or  be- 
lieve, and  that  I  will  well  and  truly  execute  the  same  in  accord- 
ance with  the  laws  of  this  State.     So  help  me  God." 

§2408.  The  marriage  of  a  female  executrix  abates  her  letters. 
The  Ordinary,  in  his  discretion,  may  grant  letters  of  administra- 


Oatli  of 

■executor. 


PT.  2.— TIT.  C— CHAP.  2.— Title,  etc.  465 


Article  3. — The  Executor. 


tion  to  her  husband,  with  the  will  annexed.  Until  the  appointment  Marriaijeof 

executrix. 

of  a  representative  of  the  estate,  the  husband  may  act  in  right  of 
his  wife,  and  shall  be  responsible  as  if  he  was  executor. 

§2409.  The  marriage  of  an  executrix,  in  her  own  wrong,  does  Desontort. 
not  affect  her  liability,  but  the  husband  shall  be  jointly  liable  with 
her. 

§  2410.  The  executor  shall  take  no  beneficial  interest  under  any    interest  of 

"^  ^   executor. 

will  (except  his  commission),  unless  the  same  be  expressly  given 
to  him  by  will ;  but,  in  every  case,  the  executor  or  administrator 
with  the  will  annexed,  shall  be  entitled  to  possess  and  administer 
the  entire  estate,  although  any  part  thereof  be  undevised,  holding 
the  residuum,  after  payments  of  debts  and  legacies,  for  distribution  residuum. 
according  to  the  laws  of  this  State. 

^2411.  An  executor  is  not  required  to  2:ive  bond  on  qualifica-     ^<^"<i  ^^ 

"^  i  o  1  executor. 

tion,  but  the  Ordinary,  on  his  own  motion,  or  upon  the  represen- 
tation of  any  person  in  interest,  that  an  executor  is  mismanag- 
ing the  estate,  or  is  about  to  remove  it  without  the  State,  may  re- 
quire such  executor  to  show  cause  why  he  should  not  give  bond 
and  security  for  the  faithful  execution  of  his  trust,  and  on  failure 
to  give  bond,  when  and  as  required,  the  Ordinary  may  revoke  his 
letters  and  appoint  another  representative  for  the  estate.  The 
executor  who  has  given  bond  shall  stand  on  the  same  footing  and 
be  liable  to  all  the  rules  and  regulations  hereinafter  prescribed  in 
reference  to  the  bonds  and  sureties  of  administrators. 

§2412.  All  the  provisions  of  this  Code  with  reference  to  ad-  Powers,  du- 

..  (,  -I'l  ••  ni  ties,  and  lia- 

mmistrators  ot  estates,  prescribing  the  commissions  allowed  to  wuties. 
them,  their  duties,  powers,  and  liabilities,  the  mode  of  effecting  j  i^  ^ 
sales,  of  making  and  receiving  titles  to  property  sold  or  purchased 
by  their  intestates,  of  investing  the  funds,  of  obtaining  letters  of 
dismission,  [of  resigning  their  trusts,]  (a)  of  removing  proceedings 
to  the  County  of  their  residence,  of  compelling  settlements  before 
the  Ordinary,  and  in  all  other  matters  in  their  nature  applicable 
to  executors,  shall  be  held  and  taken  to  apply  to  and  include  ex- 
ecutors, to  the  same  extent  as  if  they  were  named  therein. 

§  2413.  If  several  executors  are  named  in  the  will,  one  or  more  when  more 

than  one  es- 

qualifying  shall  be  entitled  to  execute  all  the  trusts  confided  to  all  ecutor. 
unless  specially  prohibited  by  the  will ;  if  more  than  one  qualifies, 
each  is  authorized  to  discharge  the  usual  functions  of  an  executor, 

(a)  Acts  of  1865-6,  pp.  29,  30. 

30 


466 


PT.  2.— TIT.  6.— CHAP.  2.— Title,  etc. 


Article  4. — Devises  and  Legacies. 


but  all  must  join  in  executing  special  trusts.  Each  executor  is  re- 
sponsible for  his  own  acts  only,  unless,  by  his  own  act  or  gross 
negligence,  he  has  enabled  or  permitted  his  co-executor  to  waste 
the  estate. 

§  2414.  Executors  qualified  according  to  the  law  of  their  domi- 
Foreign  oil,  upon  wills  propcrly  admitted  to  probate  in  another  State,  upon 
filing  with  the  Court  a  certified  copy  of  such  proceedings,  shall  be 
entitled  to  use  all  the  processes  and  remedies  prescribed  by  the 
laws  of  this  State,  in  the  same  manner  as  if  qualified  under  the 
laws  of  this  State  ;  if  not  filed  before  suit  brought,  the  Court  may 
allow  such  certified  copy  to  be  filed  afterward  on  such  terms  as  it 
may  prescribe. 


ARTICLE  lY. 


OF    DEVISES    AND    LEGACIES. 


Section. 

2415.  Assets  to  pay  debts. 

2416.  Effect  of,  etc. 

2417.  Assent  of  one. 

2418.  Meaning  of  words. 

2419.  Gifts  of  income. 

2420.  Intention  of  testator. 

2421.  Parol  evidence  on  ambiguities. 

2422.  General  and  specific  legacies. 

2423.  Income  goes  with  corpus. 

2424.  Interest  on  legacies. 


Section. 

2425.  After  acquired  property. 

2426.  Lapsed  legacy. 

2427.  Ademption  of  legacy. 

2428.  Substitution. 

2429.  Election. 

'   2430.  Conditions. 

2431.  Payment  of  debts. 

2432.  Bequest  of  charity. 

2433.  Executory  devise. 


etc. 


1 


§  2415.  All  property,  both  real  and  personal,  in  this  State,  be- 
a^Sts^^i^^  assets  to  pay  debts,  no  devise  or  legacy  passes  the  title  until 
the  assent  of  the  executor  is  given  to  such  devise  or  legacy. 
§  2416.  The  assent  of  the  executor  may  be  presumed  from  his 
Effect  of,  conduct,  as  well  as  his  expressed  consent ;  the  executor,  however, 
can  not,  by  assenting  to  legacies,  interfere  with  the  rights  of  credi- 
tors, nor  can  he,  by  capriciously  withholding  his  assent,  destroy 
the  legacy.     In  equity  the  legatee  may  compel  him  to  assent. 
§  2417.  If  there  are  several  qualified  executors,  the  assent  of 
Assent  of  onc  vcsts  the  title  in  the  legatee,  unless  the  other  has  actual  pos- 

session  of  the  property. 
"I  ^  r>  §2418.  No  particular  words  are  necessary  to  a  devise  or  be- 

Meaning  of  quest.      "  Lend  "  will  be  construed  to  mean  "give,"  ;^nless  the 
context  requires  its  restricted  meaning. 

§  2419.  An  unconditional  gift  of  the  entire  income  of  property, 
or  interest  accruing  from  a  fund,  will  be  construed  into  a  gift  of 


words, 


PT.  2.— TIT.  6.— CHAP.  2.— Title,  etc.  467 

Article  4. — Devises  and  Legacies. 


the  property  or  fund,  unless  the  provisions  of  the  will  require  a    Gifts  of  in- 
more  limited  meaning. 

§  2420.  In  the  co3istruGtion  of  all  legacies,  the  Court  will  seek  ^^  JeeSor  ^ 
diligently  for  the  intention  of  the  testator,  and  give  effect  to  the 
same,  as  far  as  it  may  be  consistent  with  the  rules  of  law  ;  and  to  ^     . 

this  end  the  Court  may  transpose  sentences  or  clauses,  and  change  '  '  *^'  f  ^ * 
•connecting  conjunctions,  or  even  supply  omitted  words  in  cases 
where  the  clause,  as  it  stands,  is  unintelligible  or  inoperative,  and 
the  proof  of  intention  is  clear  and  unquestionable ;  but  if  the 
clause,  as  it  stands,  may  have  effect,  it  shall  be  so  construed,  however 
well  satisfied  the  Court  may  be  of  a  different  testamentary  intention. 

§  2421.  When  called  upon  to  construe  a  will,  the  Court  may  hear    p^roi  evi- 
parol  evidence  of  the  circumstances  surrounding  the  testator  at  fmbigTutieJ! 
the  time  of  its  execution:  so  the  Court  may  hear  parol  evidence  to 
explain  all  ambiguities,  both  latent  and  patent, 

§2422.  Legacies  may  be  either  general  or  specified.     A  specific  General  and 
legacy  is  one  which  operates  on  property  particularly  designated.  acS.^^  ^^^ 
A  gift  of  money  to  be  paid  from  a  specified  fund  is  nevertheless  a 
general  legacy. 

§  2423.  The  income,  profits,  or  increase  of  specific  legacies,  as  income 
a  general  rule,  go  with  the  legacy,  though  the  time  of  enjoyment  forpug]^^*^ 
or  of  vesting  may  be  postponed. 

§  2424.  A  general  legacy  usually  bears  interest  from  the  expi-  intereston 
ration  of  twelve  months  from  the  death  of  the  testator.  But  when  ^^°'^^i«^' 
the  condition  of  the  estate  at  that  time,  as  to  the  payment  of  debts 
and  legacies,  is  doubtful,  or  the  fund  out  of  which  the  legacy  is 
to  be  paid  is  unavailable  for  all  the  charges  made  upon  it,  or  anj^ 
other  equitable  circumstance  intervenes,  the  general  rule  yields  to 
the  equity  and  necessity  of  the  particular  case.  A  general  legacy 
to  be  paid  at  a  future  time  or  event  bears  no  interest  until  such 
time  or  event. 

§  2425.  All  property  acquired  subsequent  to  the  making  of  the  ^^^^^  ^^_ 
will  shall  pass  under  it,  if  its  provisions  be  sufficiently  broad  to  ^"tyf"^  ^'""P" 
embrace  such  property. 

§2426.  If  a  legatee  dies  before  the  testator,  or  is  dead  when  t      ^, 

'  Lapsed  leg- 

the  will  is  executed,  but  shall  have  issue  living  at  the  death  of  tes- 
tator, such  legacy,  if  absolute  and  without  remainder  or  limitation, 
shall  not  lapse,  but  shall  vest  in  the  issue  in  the  same  proportions 
as  if  inherited  directly  from  their  deceased  ancestor. 

§  2427.  A  legacy  is  adeemed  or  destroyed,  wholly  or  in  part, 


acies. 


tioa. 


468  PT.  2.— TIT.  6.— CHAP.  2.— Title,  etc. 

Article  4. — Devises  and  Legacies. 
Adf^mptioQ  whenever  the  testator,  after  makincp  his  will  durinor  his  life,  de- 

of  legacy.  '  °  .  ,      i  i 

livers  over  the  property  or  pays  the  monej  bequeathed  to  the  leg- 
atee, either  expressly  or  by  implication,  in  lieu  of  the  legacy  given ; 
or  when  the  testator  conveys  to  another  the  specific  property  be- 
f—  3^^  queathed,  and  does  not  afterward  become  possessed  of  the  same, 
or  otherwise  places  it  out  of  the  power  of  the  executor  to  deliver 
over  the  legacy.  If  the  testator  attempts  to  convey  and  fails  for 
any  cause,  the  legacy  is  still  valid. 

§  2428.  If  the  testator  exchanges  the  property  bequeathed  for 
Substitu-  other  of  the  like  character,  or  merely  changes  the  investment  of  a 
fund  bequeathed,  the  law  deems  the  intention  to  be  to  substitute 
the  one  for  the  other,  and  the  legacy  shall  not  fail. 

§  2429.  A  legatee  taking  under  a  will  must  allow,  as  far  as  he 

Election,    can,  all  the  provisions  of  the  will  to  be  executed.     Hence,  if  he 

has  an  adverse  claim  to  the  will,  he  will  be  required  to  elect  whether 

he  will  claim  under  the  will,  or  against  it.  The  mere  fact  of  being 

a  creditor  does  not  constitute  a  case  of  election. 

§  2430.  A  condition  in  terrorem  is  void,  unless  there  is  a  limitation 
Conditions,  ovcr  to  some  Other  person  ;  in  which  event  the  latter  takes.   Condi- 
tions which  areimpossible,  illegal,  or  against  public  policy,  are  void, 
§  2431.  Unless  otherwise  directed,  the  debts  of  a  testator  should 
Payment    bc  paid  out  of  the  residuum.     If  it  prove  to  be  insufficient,  then 

of  debts.  .  . 

general  legacies  must  abate  pro  rata^  to  make  up  the  deficiency. 
If  they  are  insufficient,  then  specific  legacies  should  abate  in  the 
same  manner.  If  the  executor  has  assented  to  the  legacies,  and 
the  legatees  are  in  possession ;  after  exhausting  the  assets  in  the 
hands  of  the  executor,  the  creditor  may  proceed  against  each  leg- 
atee for  his  ^-?ro  rata  share.  For  the  payment  of  debts,  realty  and 
personalty  shall  be  alike  liable. 

§  2432.  A  devise  or  bequest  to  a  charitable  use  will  be  sustain- 
Bequest  to  ed  and  carried  out  in  this  State ;  and  in  all  cases  where  there  is  a 

charity. 

general  intention  manifested  by  the  testator  to  eifect  a  certain 
purpose,  and  the  particular  mode  in  which  he  directs  it  to  be  done 
fails  from  any  cause,  a  Court  of  Chancery  may,  by  approxima- 
tion, effectuate  the  purpose  in  a  manner  most  similar  to  that  indi- 
cated by  the  testator. 

§  2433.   An   executory  devise  is  such  a  future  disposition  of 
Exccatoiy  propcrtv  as  would  fail  as  a  remainder  by  reason  of  some  technical 

devise.  i        ±  ./  <>/ 

defect,  but  which  if  not  violative  of  the  policy  of  the  law,  will  be 
sustained  when  found  in  a  will. 


PT.  2,— TIT,  6.— CHAP.  2.— Title,  etc.  469 


Article  5. — Revocation. 


ARTICLE  V. 

OF     REVOCATION. 


Section, 

2434.  RcTOcation. 

2435.  Express  or  resulting^ 
243G.  How  executed. 

2437.  Caneellation. 

2438.  Intention  to  revoke. 


Section. 

2439.  Implied  revocation. 

2440.  Inconsistent  provisions. 

2441.  Revocation  by  marriagre,  etc. 

2442.  Republication — how  effected. 


y 


§  2434.  A  will  having  no  effect  until  the  death  of  the  testator,  Revocation. 
is  necessarily  revocable  bj  him  at  any  time  before  his  death  ;  and 
€ven  in  case  of  mutual  wills  with  a  covenant  against  revocation, 
the  power  of  revocation  remains. 

§  2435.  A  revojcation  may  be  either  express  or  resulting.     An    Express  or 

•^  ^         ^   ^  ^  resuulticg. 

express  revocation  is  where  the  maker  by^ writing  or  acts  annuls 

the  instrument.     An  implied  revocation  results  from  the  execu-  ^y 

tion  of  a  subse(|uent  inconsistent  will.     The  former  takes  effect^  ^-  ^^-/^  -^ 

instantly  or  independently  of  the  validity  or  ultimate  fate  of  the 

will,  or  other  instrument  containing  it.     The  latter  takes  effect 

only  when  the  subsequent  inconsistent  will  becomes  effectual,  and  / 

bence,  if  from  any  cause  it  fails,  the  revocation  is  not  completed. 

§2436.  An  express  revocation  by  written  instrument  must  be    How  exe- 

^  ^  cuted. 

executed  with  the  same  formality  and  attested  by  the  same  num- 
ber of  witnesses  as  are  requisite  for  the  execution  of  a  will.     The 
destruction  of  a  will  expressly  revoking  all  former  wills  does  not 
revive  a  former  will  unless  subsequently  republished.     In  such  catfotr^^^' 
cases  the  republication  may  be  proved  by  parol. 

§  2437.  An  express  revocation  may  be  effected  by  any  destruc-  cancella- 
tion or  obliteration  of  the  original  will,  or  a  duplicate  done  by  the 
testator,  or  by  his  direction,  with  an  intention  to  revoke  ;  such 
intention  will  be  presumed  from  the  obliteration  or  canceling  of  a 
material  portion  of  the  will ;  but  if  the  part  canceled  be  immate- 
rial, such  as  the  seal,  no  such  presumption  arises. 

§2438.  In  all  cases  of  revocation,  the  intention  to  revoke  is     intention 

1        .        fY»  1  A  <»  to  revoke. 

necessary  to  make  it  effectual.  An  express  clause  of  revocation 
will  not  operate  upon  a  testamentary  paper  where  it  is  manifest 
that  such  was  not  the  intention. 

§  2439.  An  implied  revocation  extends  only  so  far  as  the  in-      implied 
consistency  exists.     Any  portion  of  the  first  will,  which  can  stand  '^®^°'^'^^^^^- 
consistently  with  the  testamentary  scheme,  and  bequests  made  in 
the  last,  shall  remain  unrevoked- 


470 


PT.  2.— TIT.  a— CHAP.  2.— Title,  etc. 


Article  6. — Nimeupative  Wills, 


inconsis-       §  2440.  When  there  are  ineonsistent  pro-visions  in  the  saaie  wiH 

tent  provi-  ., 

sions.  the  latter  roust  prevail. 

§  2441.  In  all  cases  the  mebrriage  of  the  testator,  or  the  birtb 
Kevocation  of  a  child  to  him,  subsequent  to  the  making  of  a  will  in  which  na 
riage,  etc.     provision  IS  made  in  contemplation  of  such  an  event,  shall  be  a 
revocation  of  the  will. 

§  2442.  A  codicil  properlj  executed  and  annexed  to  a  revoked 
.  Ee-pubiica-  will  shall  amount  to  a  republication  of  the  same.  Any  writing 
eifected.  exccuted  with  all  the  formalities  required  for  a  will,  may  operate 
as  a  republication.  A  republication  of  the  same  paper  in  the- 
presence  of  three  witnesses,  who  shall  subscribe  as  additional  at- 
testing witnesses,  shall  be  good.  A  parol  republication  in  tbe 
presence  of  the  original  witnesses  to  the  will  shall,  be  gocKl. 


ARTICLE  VL 


OF    NUNCUPATIVE    WIL.LS'. 


Section. 

2443.  Nuncupative  -wills — when  granted. 

2444.  When  proyed. 


Section. 

2445.  Notice  to  heirs-* 

2446.  All  property  passes. 


when  arrant 
ed 


§2443.  No  nuncupative  will^  shall  be  good  that  is  not  proved 
^j^^"^jJ|P^  by  the  oaths  of  at  least  three  competent  witnesses  that  were  pre- 
sent at  the  making  thereof,  nor  unless  it  be  proved  that  the  tes- 
tator, at  the  time  of  pronouncing  the  same,  did  bid  the  persons- 
present,  or  some  of  them,  bear  witness  that  suoh  was  his  will,  or 
to  that  eifect,  nor  unless  such  nuncupative  will  was  made  in  the 
time  of  the  last  sickness  of  the  deceased,  and  in  th©  house  of  his 
habitation  or  dwelling,  or  where  he  hath  been  resident  for  the 
space  of  ten  days,  or  more,  next  before  the  making  of  such  will, 
except  where  such  person  was  surprised  or  taken  sick,  being  from 
his  own  home,  and  died  before  he  returned  to  the  place  of  his 
dwelling. 

§  2444.  Application  for  probate  of  a  nuncupative  will,  must  be 
made  before  the  Coiirt  within  six  months  after  the  death  of  the 
testator,  and  the  substance  of  the  testamentary  dispositions  must 
be  reduced  to  writing  within  thirty  days  after  the  speaking  of  the 
same. 

§  2445.  Upon  all  applications  for  probate  of  nuncupative  will% 


When 
proved. 


PT.  2.— TIT.  6.— CHAP.  3.— Title,  etc.  471 


Article  1. — Inheritable  Property,  etc. 


the  same  notice  must  be  given  to  the  heirs  at  law,  as  required  on  "  Notice  to 
probates  in  solemn  form  of  other  wills. 

§  2446.  All  property,  real  and  personal,  may  pass  by  nuncupa-  ah  proper- 
tive  wills  properly  made  and  proved.  etc. 


CHAPTER   III. 

OF    TITLE     BY    DESCENT    AND    ADMINISTRATION, 


Article  1. — Of  Inheritable  Property  and  the  Relative  Rights,  etc. 
Article  2. — Of  Administration. 


ARTICLE  I. 

OF  INHERITABLE  PROPERTY  AND  THE  RELATIVE  RIGHTS  OF  THE  HEIRS 

AND  ADMINISTRATOR. 


Section. 

2447.  Descent  to  heir. 

2448.  Rules  of  inheritance. 


Section. 

2449.  Right  of  administrator,  etc. 

2450.  May  recover  of  heirs. 


§  2447.  Upon  the  death  of  the  owner  of  any  estate  in  realty,    Descent  to 
which  estate  survives  him,  the  title  vests  immediately  in  his  heirs 
at  law.     The  title  to  all  other  property  owned  by  him  vests  in 
the  administrator  of  his  estate  for  the  benefit  of  the  heirs  and 
creditors. 

§2448.  The  following  rules  shall  determine  who  are  the  heirs     Paiies  of 

.   ,  r*         T  1  inheritance. 

at  law  of  a  deceased  person : 

1.  The  husband  is  sole  heir  of  his  intestate  wife.    - 

2.  If  the  intestate  dies  without  children,  or  the  descendants  of 
children,  leaving  a  wife,  the  wife  is  his  sole  heir. 

3.  If  there  are  children,  or  those  representing  deceased  chil- 
dren, the  wife  shall  have  a  child's  part,  unless  the  shares  exceed 
five  in  number,  in  which  case  the  wife  shall  have  one-fifth  part  of 
the  estate.  If  the  wife  elects  to  take  her  dower,  she  has  no  far- 
ther interest  in  the  realty. 

4.  Children  stand  in  the  first  degree  from  the  intestate,  and  m-S 
herit  equally  all  property  of  every  description,   accounting  for 
advancements  as  hereinafter  explained.    Posthumous  children  standi 


472  PT.  2.— TIT.  6.— CHAP.  3.— Title,  etc. 

Article  1. — Inheritable  Property,  etc. 

upon  the  same  footing  with  children  in  being  upon  all  questions  of 
inheritance.  The  lineal  descendants  of  children  stand  in  the 
place  of  their  deceased  parents  ;  and  in  all  cases  of  inheritance  from 
a  lineal  ancestor,  the  distribution  is  per  stirpe  and  not  per  capita. 

5.  Brothers  and  sisters  of  the  intestate  stand  in  the  second  de- 
gree, and  inherit,  if  there  is  no  widow,  or  child,  or  representative 
of  child.  The  half-blood  on  the  paternal  side  inherit  equally  with 
the  whole  blood.  If  there  be  no  brother  or  sister  of  the  whole  or 
half-blood  on  the  paternal  side,  then  those  of  the  half-blood  on 
the  maternal  side  shall  inherit.  •  The  children  or  grand-children 
of  brothers  and  sisters,  deceasedj'°'shall  represent  and  stand  in  the 
place  of  their  deceased  parents,  but  there  shall  be  no  representa- 
tion farther  than  this  among  collaterals. 

6.  The  father,  if  living,  inherits  equally  with  brothers  and  sis- 
ters, and  stands  in  the  same  degree.  If  there  be  no  father,  and 
the  mother  is  alive,  and  a  widow,  she  shall  inherit  in  the  same 
manner  as  the  father  would.  If  the  mother  is  not  a  widow,  she 
shall  not  be  entitled  to  any  portion  of  such  estate,  unless  it  shall 
be  that  of  the  only  or  last  surviving  child  of  the  mother,  in  which 
event  she  shall  take  as  if  unmarried. 

7.  In  all  degrees  more  remote  than  the>  foregoing,  the  parental 
arid  maternal  next  of  kin  shall  stand  on  an  equal  footing. 

8.  First  cousins  stand  next  in  degree ;  uncles  and  aunts  inherit 
equally  with  cousins. 

9.  The  more  remote  degrees  shall  be  determined  by  the  rules 
of  the  canon  law,  as  adopted  and  enforced  in  the  English  Courts 
prior  to  the  fourth  day  of  July,  A.D.  1776.* 

§  2449.  Upon  the  appointment  of  an  administrator,  the  right  to 
Eight  of  ad-  the  posscssiou  of  the  whole  estate  is  in  him,  and  so  lona;  as  such 

ministrator  ^    _  ^  . 

to  possess  administrator  continues,  the  right  to  recover  possession  of  the  es- 
tate  from  third  persons  is  solely  in  him.  If  there  be  no  adminis- 
tration, or  if  the  administrator  appointed  consents  thereto,  the 
heirs  at  law  may  take  possession  of  the  lands,  or  may  sue  there- 
for in  their  own  right. 

§  2450.  The  administrator  may  recover  possession  of  any  part 

Mayrecov-  of  the  cstatc  from  the  heirs  at  law,  or  purchasers  from  them  ;  but 

er  of  heirs.  '  ^ 

in  order  to  recover  lands,  it  is  necessary  for  him  to  show  upon  the 

*For  rules  of  inheritance  among  illegitimates,  see  Title  11,  Chapter  11, 

Article  2. 


PT.  2.— TIT.  6.-.CHAP.  3.— ART.  2.— Title,  etc. 


473 


Section  1. — Different  kinds  of  Administrators,  etc. 


trial,  either  that  the  property  sued  for  has  been  in  his  possession, 
and,  without  his  consent,  is  now  held  by  the  defendant,  or  that  it 
is  necessary  for  him  to  have  possession  for  the  purpose  of  paying 
the  debts  or  making  a  proper  distribution.  An  order  for  sale  or 
distribution,  granted  by  the  Ordinary  after  notice  to  the  defendant, 
shall  be  conclusive  evidence  of  either  fact. 


ARTICLE  II. 

OF    ADMINISTRATION, 


Section  1.- 
Section  2.- 
Section  3.- 
Section  4.- 
Section  5.- 
Section  6.- 
Section  7.- 
Section  8.- 
Section  9.- 
Section  10.- 
Section  11.- 
Section  12.- 


-Bifferent  kinds  of  Administrators,  etc. 

-  Of  their  Appointment,  Bonds  and  Removal. 

-  Of  Inventories,  Appraisements  and  Returns. 
-Of  Managing  the  Estate  and  Paying  Debts. 

'Of  Receiving  and  Making  Titles  on  Bonds  for  Titles 

■Of  Administrator' s  Sales. 

'Of  Distribution,  Advancements,  etc.,  for  family. 

-Of  Commissions  and  Extra  Compensation. 

-Of  Final  Settlements  and  Receipts,  etc. 

■Of  Letters  of  Dismission  and  Resignation. 

-Of  Removing  Proceedings  to  another  County. 

■Of  Foreign  Administrators,  etc. 


SECTION  I. 

different  kinds  op  administrators  and  rules  for  granting 

letters. 


SECTioiir. 

2451.  Temporary  letters. 

2452.  Bond  of  temporary  administrator. 

2453.  Pendente  lite. 

2454.  De  bonis  non. 

2455.  With  the  will  annexed. 

2456.  Who  are  qualified. 


Section. 

2457.  Exception. 

2458.  Rules  for  granting  letters. 

2459.  Clerk—when  to  be  administrator. 

2460.  Survivorship  among  administratorg 

2461.  Need  not  be  person  citing. 

2462.  Revenue  stamps. 


§  2451.  The  Ordinary  may  at  any  time  grant  temporary  letters     Tompora- 
of  administration  upon  any  unrepresented  estate  for  the  purpose  ^^  ^^"^^^' 
of  collecting  and  taking  care  of  the  effects  of  the  deceased,  to 
continue   and   have   effect  until  permanent  letters  are  granted; 


474  PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc. 

Section  1. — DiJOFerent  kinds  of  Administrators,  etc. 

and  from  the  order  granting  temporary  letters  there  shall  be  no 
appeal. 

§  2452.  [The  Ordinary  may  issue  such  temporary  letters  of  ad- 
Bondoftem-  ministration,  upon  the  party  or  parties  to  whom  they  are  granted 

ii   ,,    porary     ad-      ^  '      ■*■  r         ^  r  J  i=> 

^  ministrator.  giving  good  and  Sufficient  bond,  with  security,  for  double  the 
amount  of  all  the  personal  property  belonging  to  the  estate,  other 
than  real  estate.]  (a) 

§  2453.  Pending  an  issue  of  devisavit  vel  non,  upon  any  paper 
Pendente  propounded  as  a  will,  temporary  letters  of  administration  may  be 
granted,  unless  the  will  has  already  been  admitted  to  probate  in 
common  form  and  letters  testamentary  issued. 

§  2454.  Administration  de  bonis  non  is  granted  upon  an  estate 

nont  ^^il-^^i*ea^J  partially  administered,  and,  from  any  cause  unrepresented. 

-— --""""^  §2455.  Administration  with  the  will  annexed,  is  granted  where 

With  the  the  deceased  died  testate,  but  no  executor  appears  to  qualify  and 

will   annex-  ,  ^  ... 

ed-  execute  the  will.     If  the  executor  appointed  is  disqualified,  for 

want  of  age,  the  letters  may  be  granted  until  the  disability  ceases. 

§  2456.  None  but  citizens  of  the  United  States,  residing  in  the 

Who  are  State  of  Georgia,  are  qualified  to  be  made  administrators,  except 

as  provided  in  the  next  Section. 

§  2457.  [Whenever  a  citizen  of  another  State  or  Territory  of 
Non-resi-  the  United  States  shall  be  heir  at  law,  of  equal,  greater,  or  sole 

dents     may  '  n  -        -        ^ 

qualify.  interest,  of  any  estate  of  a  deceased  citizen  of  Georgia,  it  shall  be 
lawful  for  such  non-resident  citizen  to  act  as  administrator  of  such 
estate  ;  provided,  such  non-resident  shall,  before  he  is  qualified 
to  act,  be  required  to  give  bond  and  good  security  in  a  sum  equal 
to  double  the  amount  of  such  estate,  payable  to  the  Ordinary  of 
the  County  before  whom  he  may  qualify  in  this  State.  Ihe  se- 
curities shall  be  resident  citizens  of  this  State,  and  liable  to  be 
sued  and  proceeded  against,  in  the  first  instance,  for  any  default, 
liability,  or  mismanagement  on  the  part  of  such  non-resident  ad- 
ministrator, without  joining  such  administrator  in  said  suit.]  (b) 
^^  ?  /  3  §  2458.  In  the  granting  of  letters  of  administration  of  any  kind 

Euies  for  the  following  rules   shall  be  observed,  the  applicant  being  in  all 

ters.  cases,  of  sound  mind,  and  laboring  under  no  disability : 

1.  The  husband  or  wife  surviving,  irrespective  of  age,  shall  be 
first  entitled. 

2.  The  next  of  kin,  at  the  time  of  the  death,  according  to  the 

(a)  Acts  of  18G5-6,  pp.  83-4.    (b)  Acts  of  1866,  p.  66. 


PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc.  475 

Section  1. — Different  kinds  of  Administrators,  etc. 

law  declarring  relationship  and  distribution,  shall  be  next  entitled ; 
but  if  the  party  died  testate,  the  person  most  beneficially  inter- 
ested under  the  will  shall  have  the  preference.  Relations  by  con- 
sanguinity shall  be  preferred  to  those  by  affinity. 

3.  If  there  be  several  of  the  next  of  kin  equally  near  in  degree, 
the  person  selected  in  writing  by  a  majority  of  those  interested  as 
distributees  of  the  estate,  and  who  are  capable  of  expressing  a 
choice,  shall  be  appointed. 

4.  If  no  such  preference  is  expressed,  the  Ordinary  may  exer- 
cise his  discretion  in  selecting  the  one  best  qualified  for  the  office. 

5.  Where  no  application  is  made  by  the  next  of  kin,  a  creditor 
may  be  appointed ;  and  among  creditors,  as  a  general  rule,  the  one 
having  the  greatest  interest  will  be  preferred. 

6.  The  persons  entitled  to  an  estate  may  select  a  disinterested 
person  as  administrator,  and,  if  otherwise  qualified,  he  shall  be 
appointed. 

7.  The  person  entitled  to  administration  may  desire  a  third  per- 
son associated  with  him  in  the  administration,  and  in  sach  cc^se,  » 
if  otherwise  qualified,  he  may  be  appointed. 

8.  No  person  shall  be  appointed  administrator  who  is  neither  of 
kin  to  the  intestate,  nor  a  creditor,  nor  otherwise  interested  in  the 
grant  of  administration,  except  in  the  cases  before  provided. 

9.  If  a  married  woman  is  next  of  kin,  her  husband  is  entitled 
to  the  administration.  If  a  female  administratrix  or  executrix 
marries,  her  husband  may  be  appointed  administrator.  The  Or- 
dinary, however,  may,  in  his  discretion,  grant  the  letters  to  any 
other  person  entitled  thereto  under  any  of  the  prescribed  rules. 

10.  As  a  general  rule,  to  cover  all  cases  not  specially  provided 
for,  the  person  having  the  right  to  the  estate  ought  to  have  the 
administration. 

11.  Temporary  letters  of  administration,  pending  the  litigation 
on  a  propounded  will,  should  generally  be  granted  to  the  nomi- 
nated executor. 

§2459.  If,  from  any  cause,  an  estate  be  unrepresented,  and  not      cierk- 
likely  to  be  represented,  the  Ordinary  may  vest  the  administra-  admmistra- 

tor 

tion  in  the  Clerk  of  the  Superior  or  Inferior  Court  of  the  County, 
or  any  other  person  whom  he  may  deem  fit  and  proper — a  citation 
being  first  published  for  thirty  days,  as  in  other  cases ;  and  such 
Clerk,  if  appointed,  shall  be  compelled  to  discharge  the  duties  of 
the  office.     If,  however,  such  estate  does  not  exceed  in  value  the 


476 


PT.  2.^TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc. 


Section  2. — The  Appointment  of  Administrators,  etc. 


Small  es-  sum  allowed  by  law  to  the  widow  and  children,  no  administration 

tates  except- 

ed,  shall  be  necessary,  but  the  Ordinary  shall,  by  order,  set  apart  the 

same  to  the  widow  and  childron. 

§  2460.  If  administration  has  been  granted  to  more  than  one, 
upon  the  death  of  either,  the  right  of  administration  survives  to 
the  other. 

§2461.  Administration  may  be  granted  to  other  persons  than 
Need  not  "^{^j^  jj^  whose  name  the  citation  issues,  and  without  a  new  citation 

D  e     person  ' 

citing.         being  published. 

§  2462.   [The  amount  of  all  revenue  stamps,  which  have  to  be 


Survivor- 
ship among 
administra- 
tors. 


Eevenue  uscd,  and  are  used,  upon  letters  of  administration,  letters  testa- 
stamps  tax- 
ed  as  costs,  mcntary,  etc.,  shall  be  taxed  as  cost  against  the  parties  for  whom 

the  same  are  used.]  (a) 


SECTION   II. 

OV'''£l£E   APPOINTMENT   OF   ADMINISTRATORS-THEIR    BOND   AND   RE> 

MOVAL. 


Section. 

2463.  Application. 

2464.  Citation. 

2465.  Oath. 

2466.  Bond. 

2467.  To  be  filed. 

2468.  Suits  on  bonds. 

2469.  Execution — how  issued. 


Section. 

2470.  Provision  for  new  sureties. 

2471.  Joint  bond. 

2472.  Defaulting  administrator, 

2473.  Liability  of  sureties,  etc. 

2474.  Suits  not  to  abate. 

2475.  If  several  administrators,  etc. 

2476.  Account  with  heir  at  law. 


§  2463.  Every  application  for  letters  of  administration  must  be 
A   lieation  ^^^^  *^  ^^^   Ordinary  of  the  County  of  the  residence  of  the  de- 
ceased, if  a  resident  of  this  State,  and  if  not  a  resident,  then  in 
some  County  where  the  estate,  or  some  portion  thereof  is. 

§  2464.  The  Ordinary  must  issue  a  citation,  giving  notice  of 

Citation,    the   application  to  all  concerned,  in  the  gazette  in   which  the 

County  advertisements  are  usually  published,  for  thirty  days,  and 

at  the  first  regular  term  after  the  expiration  of   that  time,  the 

application  should  be  heard  or  regularly  continued. 

§  2465.  Every   administrator,    when  qualified   (which  may  be 
Oath.        done  in  vacation  if  appointed  at  a  regular  term),  shall  take  and 
subscribe  the  following  oath  or  aflirmation : 

"I  do  solemnly  swear  (or  affirm)  that  A.  B.,  deceased,  died  in- 


(a)  Acts  of  1865-6,  pp.  223-3. 


PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.--Title,  etc.  47' 


Section  2. — The  Appointment  of  Administrators,  etc. 


testate,  so  far  as  I  knov/  or  believe,  and  that  I  will  well  and  truly 
administer  on  all  the  estate  of  the  said  deceased,  and  disburse  the 
same  as  the  law  requires,  and  discharge  to  the  best  of  ray  ability 
all  my  duties  as  administrator.     So  help  me  God." 

§  2466.  Every  administrator  upon  his  qualification,  shall  give  Bond, 
bond,  with  good  and  sufficient  security,  to  be  judged  of  by  the 
Ordinary,  in  a  sum  equal  to  double  the  amount  of  the  estate  to  be 
administered ;  such  bond  shall  be  payable  to  the  Ordinary  for  the 
benefit  of  all  concerned,  and  shall  be  attested  by  him  or  his  deputy, 
and  shall  be  conditioned  for  the  faithful  discharge  of  his  duty  as 
such  administrator,  as  required  by  law.  A  substantial  compliance 
with  these  requisitions  for  the  bond,  shall  be  deemed  sufficient, 
and  no  administrator's  bond  shall  be  declared  invalid  by  reason  of 
any  variation  therefrom,  as  to  payee,  amount,  or  condition,  where 
the  manifest  intention  was  to  give  bond  as  administrator,  and  a 
breach  of  his  duty  as  such  has  been  proved. 

§2467.  All  administrators'  bonds  shall  be  kept  of  file  by  the    Tobemed. 
Ordinary,  the  same  being  first  recorded  within  six  days  after  their 
execution,  in  a  book  to  be  kept  for  that  purpose. 

§  2468.  The  administrator  and  his  sureties  shall  be  held  and  Suits  on 
deemed  joint  and  several  obligors,  and  may  be  sued  as  such  in  the 
same  action,  and  if  the  administrator  is  beyond  the  jurisdiction  of 
this  State,  or  is  dead,  and  his  estate  unrepresented,  or  is  in  such 
position  that  an  attachment  may  be  issued  against  him,  the  sure- 
ties, or  any  one  or  more  of  them,  may  be  sued.  No  prior  judg- 
ment, establishing  the  liability  of  the  administrator  for  a  devastavit 
by  him,  shall  be  necessary  before  suit  against  the  sureties  on  the 
bond. 

§  2469.  In  all  cases  of  iudsrments  recovered  against  the  admin-    Execution 

^  .  ®  — howis- 

istrator  and  his  sureties,  the  execution  issued  shall  be  first  levied  sued 
on  the  property  of  the  principal,  and  no  levy  shall  be  made  on 
the  property  of  the  sureties  until  there  is  a  return  of  nulla  bona 
as  to  the  principal,  unless  the  plaintiff  in  fi.  fa.  shall  file  with  the 
levying  officer  an  affidavit  that  the  surety  is  actually  removing 
or  secreting  his  property  so  as  to  avoid  the  payment  of  such 
judgment. 

§  2470.  The  provisions  hereinbefore  made  in  case  the  surety  on    Provisions 
a  guardian  s  bond  dies,  or  becomes  insolvent,  or  removes  from  the  sureties. 
State,  or  from  other  causes  becomes  insufficient,  or  in  case  the 
surety  desires  to  be  relieved  as  surety,  shall  be  applicable  to  sure- 


478  PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc. 

Section  3, — The  Appointment  of  Administrators,  etc. 


ties  on  administrators'  bonds  in  the  same  manner  and  under  the 
same  conditions  as  if  they  were  therein  named. 

§  2471.  If  two  or  more  administrators  unite  in  a  common  bond, 

Joint  bond,  all  the  surctics  are  bound  for  the  acts  of  each  administrator,  and 

the  administrators  themselves  are  mutual  sureties  for  each  other's 

conduct.  , 

§  2472.  Whenever  the  Ordinary  knows,  or  is  informed  by  any 

Defaulting  porson  having  any  interest  in  the  estate,  that  the  administrator 

administra-  .  .  ,  i  i  i  • 

tor.  wastes,  or  m  any  manner  mismanages  the  estate,  or  that  he  or  nis 

sureties  are  likely  to  become  insolvent,  or  that  he  refuses  or  fails 

to  make  returns  as  required  by  law,  or  that  for  any  reason  he  is 

Citation.    Unfit  for  the  trust  reposed  in  him,  he  shall  cite  such  administrator 

to  answer  to  such  charge  at  some  regular  term  of  the  Court,  and 

Proceed-  upon  the  hearing  of  his  return  the  Ordinary  may,  in  his  discretion, 

'  ^        revoke  the  letters  of  administration,  or  require  additional  security, 

I      '        or  pass  such  other  order  as  in  his  judgment  is  expedient  under  the 

circumstances  of  each  case. 

§  2473.  In  all  cases  of  removal  of   an  administrator  for  any 
Liability  of  causc,  the  surctics  on  his  bond  are  liable  for  his  acts  in  connec- 

sureties     of.  .,..  ,.  ni*  i  >   ^  i 

removed  ad-  tiou  With  his  trust,  up  to  the  time  ot  nis  settlement  with  an  aa- 

ministrator.        ,.  ^        .  itm 

ministrator  de  boms  non,  or  the  distributees  of  the  estate. 

§  2474.  The  revocation  of  letters  of  administration  shall  not 
Suits  not  abate  any  suit  pending  for  or  against  the  administrator,  but  the 
administrator  de  bonis  non  shall  be  made  a  party  in  proper  cases 
by  scire  facias,  as  in  case  of  the  death  of  a  party. 

§  2475.  If  there  are  more  administrators  than  one,   and  com- 

if  several  plaint  is  made  against  one  only,  and  his  letters  are  revoked,  the 

tws,andone  cutirc  trust  rcmaius  in  the  hands  of  the  other  ;  and  with  him,  as  to 

moved.        an  administrator  de  bonis  non  the  removed  co-administrator  must 

account. 

§  2476.  If  there  be  no  administrator  de  bonis  non  appointed,  or 
Account  if  ]je  fails  to  briner  the  removed  administrator  to   an  account, 

with  heirs  at  o  ' 

^^w-  the  heirs  at  law,  or  distributees,  or  legatees  (if  there  be  a  will), 

may  sue  directly  for  an  account  and  settlement. 


PT.  2.— TIT.  6.— CHAP.  3.— -ART.  2.— Title,  etc. 


479 


Section  3. — Inventories,  Appraisement,  and  Returns. 


SECTION    III. 

OF    INVENTORIES,    APPRAISEMENT,    AND    RETURNS. 


Section. 

2477.  Inventory  and  appraisement. 

2478.  How  made  and  returned. 

2479.  When  to  be  executed. 

2480.  What  to  contain. 

2481.  Joint  inventory. 

2482.  Oath  of  appraisers. 

'  2483.  Return  of  appraisers. 


Section. 

2484.  Neglect  of  administrator,  etc. 

2485.  Can  not  take  property  at  valuation. 

2486.  Annual  return. 

2487.  Vouchers. 

2488.  Duty  of  Ordinary. 

2489.  Non-resident  or  dead  administrator. 

2490.  Ordinary's  doclcet. 


§  2477.  Immediately  upon  the  qualification  of  every  adminis-  inventory 
trator,  the  Ordinary  should  issue  a  warrant  (or  if  property  be  in  praisement. 
different  Counties,  warrants,)  of  appraisement  directed  to  five  dis- 
interested freeholders,  citizens  of  the  County  where  the  property 
is,  any  three  of  whom  shall  be  qualified  to  act,  requiring  them  on 
oath  fairly  and  justly  to  appraise  and  value  all  of  the  personal 
property  of  the  deceased  produced  to  them  by  the  administrator, 
[and  also  all  real  estate  belonging  to  the  deceased,  lying  in  the 
County  in  which  administration  may  be  had.]  (a) 

§  2478.  The  administrator  shall  make  a  just  and  true  inventory  How  made 
of  all  the  personal  property  owned  and  possessed  by  the  deceased  ed. 
at  his  death,  [and  all  real  estate  belonging  to  the  deceased,  lying 
in  the  County  in  which  administration  may  be  had,]  (a)  and  shall 
produce  and  exhibit  the  same,  if  possible,  to  the  appraisers  ap- 
pointed as  aforesaid.  And  when  such  inventory  and  appraise- 
ment is  returned  to  the  Ordinary,  the  administrator  shall  swear, 
in  addition  to  the  usual  oath  on  making  returns,  that  such  inven- 
tory contains  a  true  account  of  all  the  goods  and  chattels,  rights 
and  credits  of  the  deceased,  within  his  hands,  possession,  or 
knowledge.  [The  administrator  shall  also  return,  under  oath, 
wit;h  such  appraisement,  so  far  as  may  come  to  his  knowledge,  all 
real  estate  lying  without  the  County  in  which  administration  may 
be  had.]  (a) 

§  2479.  The  warrant  of  appraisement  must  be  executed,  except    when   to 
providentially  prevented,  within  sixty  days  after  the  same  is  issued, 
and  the  inventory  and  appraisement  should  be  returned  to  the 
Ordinary  within  four  months  after  the  qualification  of  the  admin- 
istrator.    If  the  execution  or  return  be  delayed  beyond  the  pe- 


(a)  Acts  of  1863-4,  p.  47,  and  Acts  1865-6,  p.  31. 


480  PT.  2.— TIT.  6.— CHAP.  3.-^AET.  2.— Title,  etc. 

Section  3. — Inventories,  Appraisement,  and  Returns. 


contain 


riods  specified,  the  Ordinary  should  inquire  into  the  reason  and 
spread  the  same  on  his  record  with  the  return. 

§  2480.  A  debt  due  by  the  administrator  to  the  estate,  must  be 
What  to  included  in  the  inventory,  and  notice  taken  of  any  interest  the 
estate  may  have  in   an  unsettled  partnership,  though  the   assets 
be  in  the  hands  of  a  surviving  partner. 

§  2481.  The  inventory  should  be  made  jointly  by  all  the  admin- 
Joint  in-  istrators,  but  is  not  conclusive  proof  of  ioint  possession  of  the  assets. 

ventory.  m  . 

§  2482.  The  appraisers,  before  entering  upon  their  duties,  shall 
Oath  of  ap-  take  and  subscribe  an  oath,  before  an  officer  authorized  to  admin- 

praisers. 

ister  it,  or  before  one  of  their  number,  who  is  hereby  authorized 
to  administer  the  same,  faithfully  to  discharge  their  duty  as 
appraisers. 

§  2483.  The  return  of  the  appraisers  shall  be  in  writing,  and 
Return  of  Certified  by  their  own  signatures,  any  three  being  competent  to 
act.     It  shall  be   delivered  to   the   administrator,   and   by   him 
returned  to  the  Ordinary. 

§  2484.  The   neglect  of  an   administrator  to  return  a  correct 
Neglect  of  inventory  and  appraisement  shall  be  held  as  sufficient  ground  for 

administra-  ./  i  i  o 

tors  in  this  removal. 

behalf. 

§  2485.  No  trustee  is  allowed  to  convert  the  trust  property  to 
Can   not  his  own  usc,  accountiug  for  it  at  the  appraised  value.     But  in  such 

take      prop-  .  /»        •  i 

ertyatvaiu-  cascs  he  must  account  tor  its  true  value. 

ation.  r»  /-i  • 

§  2486.  On  or  before  the  regular  term  of  the  Court  in  July  in 
Annual  re-  cach  and  6 Very  year,  every  administrator  shall  make  a  true  and 
just  account,  upon  oath,  of  his  receipts  and  expenditures  in  behalf 
of  the  estate  during  the  preceding  year,  together  with  a  note  or 
memorandum  of  any  other  fact  necessary  to  the  exhibit  of  the 
true  condition  of  such  estate.  To  this  account  shall  be  attached 
copies  of  all  the  vouchers,  showing  the  correctness  of  each  item ; 
[or,  at  the  option  of  the  executor  or  administrator,  the  originals 
may  be  filed  with  the  return,  and  shall  remain  in  the  Ordinary's 
office  for  thirty  days.]  (a)  If  any  of  the  receipts  be  for  cotton, 
corn,  or  other  produce  sold,  the  voucher  shall  show  the  quantity 
of  each,  the  price  at  which  it  was  sold,  the  name  of  the  purchaser, 
and  the  time  of  the  sale. 

§  2487.  The  annual  return  of  an  administrator  shall  be  accom- 
Vouchers.  panied  by  the  original  vouchers,  and  it  shall  be  the  duty  of  the 

(a)  Acta  of  1862-3,  pp.  138-9. 


PT.  2.-~TIT.  6.— CHAP.  3.--ART.  2.— Title,  etc. 


481 


Section  3. — Inventories,  Appraisement,  and  Keturns. 


Ordinary  to  compare  the  originals  with  the  copies,  before  return- 
ing the  originals  to  the  administrator. 

§2488.  The  Ordinary  shall  carefully  examine  each  return  and  ^^Jj*y  ^^ 
its  vouchers,  and  if  found  correct,  and  no  objection  be  filed  in 
thirty  days  from  the  time  it  is  filed  in  office,  shall  allow  the  same, 
and  order  it  to  be  recorded,  together  -with  the  original  or  copy 
vouchers  attached.  The  return  and  copy  vouchers  shall  be  kept 
of  file  in  the  Ordinary's  office.  [If  the  original  vouchers  are  filed 
without  copies,  they  shall,  when  recorded,  be  returned  to  said  ex- 
ecutor or  administrator  on  demand.]  (a)  The  return  thus  allowed 
and  recorded  shall  be  prima  facie  evidence  in  favor  of  the  ad 
ministrator  of  its  correctness. 

^  2489.  The  return  of  a  non-resident  administrator  mav  be  ad 
mitted  to  record  upon  the  affidavit  of  his  surety.  And  if  the  ad-  administra- 
ministrator  be  dead,  the  representative  of  his  estate  may  make  a 
return  of  the  accounts  of  the  deceased  administrator  in  the  same 
manner,  and  to  have  the  same  effect  as  if  he  were  living. 

§2490.  To  insure  annual  returns  from  every  administrator,  it  o^dmary's 
shall  be  the  duty  of  the  Ordinary  to  keep  a  docket  of  all  such  as 
are  liable  to  make  returns,  and  immediately  after  the  session  of 
the  July  term  in  each  year  to  cite  all  defaulters  to  show  cause  for 
their  neglect.  A  willful  and  continued  failure  shall  be  good  cause 
of  removal  from  the  trust. 


''^■■ti-tj/t^, 


Non-resi- 
dent or  dead 


SECTIOK  IV. 

OE    MANAGING    THE    ESTATE    AND    PAYING    THE    BEBTS. 


Section. 

2491.  Payments  of  debts. 

2492.  Debts  paid  by  heirs. 

2493.  When  the  debts  are  to  be  paid. 
,  2494,  Priority  of  debts. 

2495.  How  paid. 

2496.  Collection  by  administrator. 

2497.  Or  by  diitributee  or  creditor. 

2498.  Power  of  administrator,  etc. 

2499.  May  accept  assignment. 


Section. 

2500.  May  compromise  claims. 

2501.  Debts  barred,  etc. 

2502.  Counsel  fees. 

2503.  Investment  in  stocks. 

2504.  Continuing  business  of  deceased. 

2505.  May  contract  for  labor. 

2506.  Duty  as  to  contracts. 

2507.  Twelve  months'  exemption,  etc. 


§2491.  Every  administrator  shall  give  six  weeks'  notice  by  ad-  Payment  of 
vertisement  in  one  of  the  public  gazettes  of  this  State,  or  at  three 
different  places  of  the  most  public  resort  in  the  County,  for  credi- 
tors of  the  estate  to  render  in  an  account  of  their  demands.     The 


31 


(a)  Acts  of  1862-3,  pp.  138-9. 


482  PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc. 

Section  4. — Managing  the  Estate  and  Paying  the  Debts. 

administrator  shall  be  allowed  twelve  months  from  the  date  of  his 
qualification  to  ascertain  the  condition  of  the  estate.  Creditors 
failing  to  give  notice  within  that  time  lose  all  right  to  an  equal 
participation  with  creditors  of  equal  dignity  to  whom  distribution 
is  made  before  notice  of  such  claims  is  brought  to  the  administra- 
tor ;  nor  can  they  hold  the  administrator  liable  for  a  misappropria- 
tion of  the  fund ;  if,  however,  there  are  assets  in  the  hands  of  the 
administrator  sufficient  to  pay  such  debts,  and  no  claims  of  higher 
dignity  are  unpaid,  the  assets  shall  be  thus  appropriated,  notwith- 
standing the  failure  to  give  notice. 

§  2492.  If  the  estate  has  been  distributed  to  the  heirs  at  law 
DeMspaid  "without  notico  of  an  existing  debt,  the  creditor  may  compel  them 
to  contribute  pro  rata  to  the  payment  of  his  debt. 

§2493.  The  administrator  should  pay  the  debts  of  the  estate. 
When  the  "wholly  or  In  part,  at  the  expiration  of  the  first  year  from  his  ap- 
be  paid.  poiutmeut.  If  partial  payment  is  made  it  should  be  pro  rata  on 
debts  of  equal  dignity.  Successive  dividends  to  creditors  should 
be  made  at  the  end  of  every  year,  until  the  estate  is  paid  out.  If 
the  administrator  is  himself  a  creditor  he  can  not  retain  his  own 
debt,  but  must  share  with  others  of  equal  dignity. 

§  2494.  In  the  payment  of  the  debts  of  a-^decedent,  they  shall 
Priority   rank  in  priority  in  the  following  order  : 

1.  Funeral  expenses  to  correspond  with  the  circumstances  of 

the  deceased  in  life,  including  the  physician's  bill  and  expenses  of 

the  last  sickness.     If  the  estate  is  'solvent,  the  administrator  is 

^     «"        authorized  to  provide  a  suitable  protection  for  the  grave  of  the  de- 

5  "  ^         ceased. 

']  ^^    '      2.  The  necessary  expenses  of  administration,  including  a  pro- 
II   •.    S  ^^^  vision  for  the  support  of  the  family. 

;^  ^  ^/  .^     3^  Unpaid  taxes  or  other  debts  due  the _ State  or  the  United 

States. 

4.  Debts  due  by  the  deceased  as  executor,  administrator,  or 
guardian  for  the  estate  committed  to  him  as  such,  or  any  debt  due 
by  the  deceased  as  trustee,  having  had  actual  possession,  control 
and  management  of  the  trust  property. 

5.  Judgments,  mortgages,  and  other  liens  created  during  the 
lifetime  of  deceased,  and  to  be  paid  according  to  their  priority  of 
lien.  Mortgages  and  other  liens  on  specific  property  to  be  prefer- 
red only  so  far  as  such  property  extends. 

6.  Debts  due  for  rent. 


PT.  2.— TIT.  6.-^CHAP.  3.— ART.  2.— Title,  etc.  483 

Section  4. — Managing  the  Estate  and  Paying  the  Debts. 


7.  All  liquidated  demands,  including  foreign  judgments,  dormant 
judgments,  bonds,  and  all  other  obligations  in  writing  for  the  pay- 
ment of  money,  promissory  notes,  and  all  debts  the  amount  due 
on  which  was  fixed  and  ascertained  or  acknowledged  prior  to  the 
death  of  the  decedent. 

'8.  Open  accounts* 

§  2495.  All  the  estate,  real  and  personal,  unless  otherwise  pro-  how  paid. 
vided  by  this  Code,  is  liable  for  the  payment  of  debts.  If  there 
is  a  will^  the  property  charged  with  the  debts  should  be  first  ap- 
plied ;  next  the  residuum,  or  if  there  be  no  residuary  clause,  the  un- 
devised estate ;  next,  general  legacies  may  abate  pro  rata ;  and 
lastly,  specific  legacies  must  contribute. 

§  2496.  An  administrator  is  bound  to  place  in  suit  every  debt     collection 

by  adminifi- 

due  the  estate  which  he  may  reasonably  expect  to  recover ;  and  trator. 
if  by  his  neglect,  or  indulgence,  the  debt  is  barred  by  the  lapse  of 
time,  or  is  otherwise  lost  to  the  estate,  he  is  responsible  therefor. 
§  2497.  If  the  administrator  for  any  cause  declines  to  place 
any  claim  in  suit,  he  may,  nevertheless,  assign  the  same  to  a  dis- 
tributee or  creditor,  who  may,  at  his  own  expense,  prosecute  the    or  by  dis- 

.1  1       "i?  ^         I*.  •  J        1      tributee    or 

same — the  proceeds,  it  recovered,  alter  paying  expenses,  to  be  creditor. 
distributed  by  the  administrator. 

§  2498.  FAdministrators,  executors,  and  guardians,  are  author-    Powers  of 

.1  •  1       1     o  ^      1    •  n  administra- 

ized  to  compromise  all  contested  or  doubtful  claims,  for  or  against  tor. 
the  estates  or  wards  that  they  represent,  to   submit  such  matters 
to  arbitration,  to  release  a  debtor  if  to  the  interest  of  the  estate 
or  ward,  and  to  appoint  an  attorney  in  fact,  being  responsible  for 
the  acts  of  said  attorney.]  (a) 

§  2499.  [Administrators,  guardians,  and  others"  holding  trust  Mayjoinin 

.  i«'r*f>i      assigmnent. 

estates,  are  also  authorized  to  compromise  claims  in  favor  of  the 
estates  they  represent,  or  their  wards,  where  their  debtors  deliver, 
bona  Jide,  all  their  property  for  the  use  of  creditors,  except  such 
as  is  or  may  be  exempt  from  levy  and  sale  in  cases  of  insolvent 
debtors  ;  provided  the  Ordinary,  after  an  examination  of  the  facts, 
shall  first  make  an  order  directing  such  compromise.]  (a) 

§  2500.  [Guardians,    administrators,  executors,   and   all    other    May  com- 
persons  acting  in  a  fiduciary  capacity,  are  authorized  to  compro-  ^^ 
mise  all  doubtful  debts  belonging  to  such  estates,  where  such  set- 
tlement will  advance  the  interests  of   those  represented.      All 

(a)  Acts  of  1866,  p.  23. 


484  PT.  2.---TIT.  6.— CHAP.  S.— ART.  2.— Title,  etc. 


Section  4. — Managing  the  Estate  and  Paying  the  Debts. 


persons  acting  under  the  provisions  of  this  Section,  on  making 
their  returns,  shall  make  oath  that  the  settlements  thus  made  were 
in  good  faith,  and  to  the  best  interests  of  the  parties  thus  repre- 
sented :  provided  the  Ordinary  first  make  an  order  directing  such 
compromise.]  (a) 

§  2501.  An  administrator  in  his  discretion  may  relieve  a  debt 
Debts  bar-  from  the  bar  interposed  by  the  lapse  of  time,  by  a  new  promise  to 

red  by  Stat-  ^  \  ^  i     •        i       tp  pi- 

ute^  of  limi-  pay !  pvovidcd  such  bar  had  not  occurred  in  the  lifetime  of  his 
intestate.     In  such  cases  the   distributees  can  make  him  responsi- 
ble, by  proof  that  the  claim  against  the  estate  was  in  reality  unjust. 
§  2502.  An  administrator  is  authorized  to  provide  for  the  estate 
counseifees.  Competent  legal  counsel,  according  to  the  exigencies  of  the  estate 
he  represents. 

§  2503.  When  from  any  cause  an  administrator  is  compelled  to 
Investment  hold  the  funds  of  the  estate  in  his  hands,  he  is  authorized  to  invest 

ill  stocks.. 

the  same  in  stocks,  bonds,  or  other  securities  issued  by  this  State, 
or  (by  leave  of  the  Ordinary)  in  bonds  issued  by  the  proper 
authorities  of  the  cities  of  Savannah  and  Augusta.  In  such  case 
he  shall,  within  twelve  months  thereafter,  make  a  legal  return 
thereof,  in  which  shall  be  set  forth  the  price  paid,  the  time  of  the 
purchase,  and  the  name  of  the  seller.  Such  investments  shall  not 
be  subject  to  taxation  so  long  as  they  are  held  for  the  estate.  If 
an  executor  or  trustee  has  in  his  hands  money  as'the  separate 
estate  of  a  married  woman,  absolutely  or  for  life,  he  may,  under 

Inland  in  .  .  .'  f  , 

certaincases  the  direction  of  the  Superior  Court,  invest  such  funds  in  land.'^ 

§  2504.  An  administrator  may  exercise  his  discretion  in  continu- 
Continuing  inff  the  business  of  his  intestate  until  the  exmration  of  the  current 

business    of       ^  ^  ^        ^ 

deceased,     year.     Up  to  the  time  of  sale  or  distribution,  the  administrator 
^  must  manage  and  dispose  of  the  property  of  the  estate  for  the 

i'-l  best  interest  of  the  estate. 

§  2505.  [The  administrator  may  make  contracts  for  labor  or 
May  con-  scrvico  with  pcrsous  of  color,  or  with  white  persons,  for  the  bene- 

tract  for  la-  ^  '  ^  ' 

bor.  fit  of  the  estate  he  represents,  upon  such  terms  as  he  may  deem 

best,  and  all  such  contracts  made  in  good  faith,  shall  be  a  charge 
upon,  and  bind  the  estate  whenever  the  same  are  approved  by  the 
,  Ordinary  of  the  County.]  (b) 

§  2506.  The  administrator,  as  far  as  possible,  must  fulfill  the 

(a)  Acts  of  1866,  p.  67.     (b)  Acts  of  1865-6,  p.  87. 

*  As  to  investments  by  administrators,  etc.,  see  Acts  of  1861,  p.  33;  Acts  of 
1863-4,  p.  29;  Acts  of  1865-6,  p.  85.    Are  the  first  two  still  of  force?    Query. 


I>T.  2.— TIT.  6.~-CHAP.  3.— ART.  2.— Title,  etc. 


485 


Section  6. — Recewing  and  Making  Titles  on  Bonds  for  Titles. 


^executory  and  comply  with  the  executed  contracts  of  the  deceased,    i>uty^sto 

J  ir  J  '  contracts. 

and  he  has  a  eorresponding  right  to  demand  the  same  of  the  par- 
ties contracted  with.  If,  however,  the  personal  skill  of  the  intes- 
tate entered  into  the  consideration  of  the  contract,  his  death 
renders  the  execution  impossible,  and  the  contract,  though  entire, 
must  be  considered  as  divisible  and  closed  at  his  death,  and  the 
part  execution  by  the  deceased  authorizes  and  requires  a  corres- 
ponding compliance  hj  the  other  contractor. 

§  2507.  'Eo  suit  t©  recover  a  debt  due  by  the  decedent  shall  be       Twelve 

.         .  p  -,        months''  ex- 

.€ommenced  against  the  administrator  until  the  expiration  of  twelve  emption 

°  _  ^  -^  from  suit. 

months  from  his  qualification.  This  exemption  shall  not  apply  to 
.an  administrator  de  bonis  nofij  unless  appointed  within  the  year 
allowed  to  his  predecessor.  And  in  all  cases  the  administrator  de 
i>onis  non  shall  be  made  a  party  to  suits  pending  against  the  ad- 
gninistrator  upon  scire  facias  i^ssued  to  the  first  term. 


SECTION    V. 


OF    EEOEIVINa    A-EI>    MAKING    TITLES    OKT    BONDS    FOR    TITLES^ 


S.ECTION. 

2508.  Making  titles  on  feond  of  intestate. 

2509.  Notice. 

:2510.  Vendee  dying,  title  to  heira. 


SSCTION. 

2511.  Vendor  and  vendee 

2512.  Costs. 


N'otiee. 


§  2508.  If  the  intestate,  during  his  life,  executed  a  bond  to       Making 
make  titles  to  land,  ^nd  dies  without  makinsj  such  titles,  the  holder  ^ondof  in- 

testate 

of  such  bond,  after  having  complied  with  its  condition,  may  apply 

to  the  Ordinary  having  Jurisdiction  over  the  estate,  for  an  order      "^^/ 

requiring  the  administrator  to  execute  the  titles  according  to  the 

ternas  of  the  bond,  in  all  €ases  annexing  to  his  petition  a  copy  of 

the  bond- 

§  250^.  [Fifteen  days'  notice  im  writing,  to  the  administrator,  or 
-executor,  and  heirs  at  law  of  the  deceased,  if  to  be  found  in  this 
State ;  ^nd  if  not  residents,  by  publication  in  one  of  the  gazettes 
of  this  State  for  thirty  days,  shall  be  given  of  such  application. 
If  no  objection  is  fil-ed,  and  the  Ordinary  is  satisfied  of  the  truth 
of  the  allegations  in  the  petition,  tho  order  shall  be  granted. 
When  objections  in  writing  are  filed  in  the  office  of  said  Ordinary, 
at  shall  be  the  duty  of  the  Ordinary  to  hear  evidence  as  to  the 
fact  whether  the  conditions  of  said  bond  have  been  complied  with 


Trial. 


r-^i 


486f 


PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc. 


Section  5. — Receiving  and  Making  Titles  on  Bonds  for  Titles. 


Appeal. 


.  by  the  payment  of  the  purchase  money  or  not,  and  to  grant  an 
order  requiring  said  titles  to  be  made,  or  not,  as  he  may  think  the 
principles  of  justice  may  require  ;  and  either  party,  being  dissat- 
isfied with  the  decision,  may  appeal  to  the  Superior  Court  upon 
the  same  terms  as  appeals  are  granted  in  other  cases.}  (a) 

§  2510.  If  the  vendee  dies,  having  possession  of  a  bond  for  ti- 
vendeedy-  tlcs  [or  having  paid  the  purchase  money  for  land,]  (b)  the  Ordi- 
heirs-  nary  of  the  County,  having  jurisdiction  of  the  estate,  may,  upon 
a  similar  application  by  any  one  of  the  heirs  at  law  of  the  vendee, 
and  on  notice  to  the  vendor,  as  provided  in  the  foregoing  Section, 
order  the  title  to  be  made  to  the  heirs  at  law  of  the  deceased.  Such 
titles,  however,  shall  not  prevent  such  lands  being  assets  in  the 
hands  of  the  administrator  for  the  payment  of  debts. 

§  2511.  If  both  the  vendor  and  vendee  die,  the  notice  shall  be 
vendorand  givcn  to  the  legal  representative  of  the  vendor,  who  shall  make  the- 
ing-,  title  to  the  heirs  of  the  vendee. 

§  2512.  [Whenever  the  party  making  the  bond  shall  have  died 
cost&-i>y  before  the  time  at  which  the  titles  were  to  be  made,  and  before  the 
purchase  money  became  due,  the  costs  of  the  proceedings  shall  be 
paid  by  the  representative  of  his  estate ;  but  if  the  time  for  mak- 
ing such  titles  and  the  payment  of  the  money  elapsed  before  the 
death  of  the  obligor^  the  costs  shall  be  paid  by  the  applicant.]  (a) 


■whoTo-  paid. 


SECTION   YL 

OF    ADMINISTRATOR'S    SALK 


Section. 

2513.  Sale  of  perishable  property. 

2514.  Sales  at  public  outcry. 

2515.  Terms  of  sale. 

2516.  Sale  of  wild  lands. 

2517.  And  of  insolvent  papers. 

2518.  Sale  of  land. 

2519.  Manner  of  sale. 

2520.  Recital  in  deed. 


Section. 

2521.  Land  lying  in  two-  Counties. 

2522.  Effect  of  warranty. 

2523.  Property  held  adversely. 

2524.  Claim — where  and  how  tried. 

2525.  Private  sales,  against  public  policyv 

2526.  Sales  by  executor,  etc. 
252T.  Terms  must  be  stated. 
2528.  Return  of  sales. 


§  2513.  The  personal  perishable  property  should  be  sold  at  a& 

saieof per-  early  a  day  as  practicable,  consistent  with  the  interest  of  the  es- 

ertyi  tatc.     It  must  be  done  under  order  from  the  Ordinary,  in  which 

the  kind  of  notice  and  the  length  of  time  it  shall  be  given,  being 


(a)  Acts  of  1863-4,  p.  49.     {h]  Acts  of  1866,  pp.  66-7. 


PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc.  487 


Section  6. — Administrator's  Sale.     / 


■j-r 


not  less  than  ten  days,  shall  be  specified.  The  order  for  sale  shall 
be  granted  as  of  course,  unless  the  application  is  from  a  tempo- 
rary administrator,  when  the  Ordinary  may,  in  the  exercise  of  his 
discretion,  [grant  such  order,  when  it  is  made  to  appear  to  be  to 
the  interest  and  advantage  of  the  estate.]  (a) 

§  2514.  All  sales  by  administrators  (except  of  annual  crops  sent  saiesatpub- 
off  to  market,  and  of  vacant  lands,)  shall  be  at  public  outcry,  be- 
tween the  hours  of  ten  o'clock  A.  M.  and  four  o'clock  P.  M.;  nor 
shall  any  sale  be  continued  from  day  to  day  unless  so  advertised,    to  best 
Good  faith  is  required  of  the  administrator  in  all  cases  that  the  ^-^^S-^* 
property  be  sold  in  such  manner  and  quantities  as  shall  be  deemed 
most  advantageous  to  the  estate. 

§  2515.  The  administrator  may  exercise  his  discretion  in  de-    Terms  of 

.  .  .  .  .  sale. 

manding  cash  or  extending  credit.     Full  notice  should  be  given, 

and  the  best  interest  of  the  estate  observed.     If  credit  is  given, 

the  administrator  must,  at  his  own  risk,  determine  the  sufficiency 

of  the  security  given.     If  the  security  taken  is  ample  at  the  time, 

and  subsequently  the  debt  is  lost,  after  the  utmost  diligence  by  as  to^Sy! 

the  administrator,  he  will  not  be  responsible  for  the  amount. 

§  2516.  On  application  by  the  administrator  and  due  notice  ad-  Saie  of 
vertised  as  hereinafter  provided  in  case  of  lands,  the  Ordinary  may 
grant  an  order  authorizing  the  administrator  to  sell,  at  private 
sale,  wild  uncultivated  lands  lying  in  Counties  other  than  that  of 
the  administration ;  'provided^  no  objection  is  filed  by  any  one  in- 
terested in  the  estate,  and  the  Ordinary  is  satisfied  that  such  sale 
is  preferable. 

§2517.  All  notes,  bonds,  judgments,  accounts,  or  other  evi-  Andofin- 
dences  of  debt,  which,  after  due  diligence,  remain  uncollected,  and  pers. 
are  deemed  insolvent  or  doubtful,  may  be  sold  by  the  administra- 
tor, under  an  order  of  the  Ordinary,  at  public  outcry,  during  the 
usual  hours  of  sale,  on  the  regular  day  of  Sherifi''s  sales,  and  at 
the  Court  House  door  ;  thirty  days'  notice  of  such  sale  being  given 
at  the  Court  House  door,  and  at  three  or  more  public  places  in 
the  County. 

§  2518.  If  at  any  time  it  becomes  necessary  for  the  payment  of  saieofiand. 
the  debts  of  the  estate,  or  for  the  purposes  of  distribution,  to  sell 
the  land  of  the  decedent,  the  administrator  shall,  by  written  pe- 
tition, apply  to  the  Ordinary  for  leave  to  sell,  setting  forth  in  the 

(a)  Acts  1865-6,  p.  84. 


488  PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc. 

■ ■ — -^-^— _^_^.^___^____^_ 

Section  6. — Administrator's  Sale. 

Notice,  petition  the  reason  for  such  application ;  and  notice  of  the  same 
shall  be  published  once  every  two  weeks  for  two  months  before  the 
hearing,  in  the  gazette  in  which  the  County  advertisements  are 
published.  If  no  objection  is  filed,  and  the  Ordinary  is  satisfied 
of  the  truth  of  the  allegations  in  the  petition,  an  order  shall  be 
passed  granting  the  leave  to  sell,  specifying  therein  the  land  as 
definitely  as  possible. 

§  2519.  Every  such  sale  shall  be  advertised  [in  any  newspaper 
Manner  ©f  or  gazette,  having  a  general  circulation  in  the  County  where  the 
property  to  be  sold  is  located,]  (a)  for  forty  days  after  the  leave 
granted  and  before  the  sale.  It  shall  be  had  at  public  auction  on  the 
first  Tuesday  of  the  month,  between  the  usual  hours  of  sale,  and 
at  the  place  of  public  sales  in  the  County  having  jurisdiction  of 
the  administration,  unless  by  special  order  in  the  discretion  of  the 
Ordinary,  a  portion  of  the  land  is  sold  in  another  County  where 
the  land  lies. 

§  2520.  The  recital  of  a  compliance  with  these  provisions  in 
Eecitai  in  the  administrator's   deed  shall  be  prima  facie  evidence  of   the 
facts. 

§  2521.  If  land  ordered  to  be  sold  is  composed  of  one  tract  or 
Land  ly-  body  of  land  lying  partially  in  two  Counties,  the  sale  may  be  had 
Counties,     in  either  County,  as  directed  by  the  Ordinary. 

§  2522.  An  administrator  can  not  bind  the  estate  by  any  war- 
Effect  of  ranty  in  any  conveyance  or  contract  made  by  him,  nor  is  he  per- 

warranty.  ./././  j  7  r 

sonally  bound  by  such  covenant,  unless  the  intention  of  personal 

liability  is  distinctly  expressed. 

Property      §  2523.  An  administrator  can  not  sell  property  held  adversely 

verseiy.      to  the  cstatc  by  a  third  person  ;  he  must  first  recover  possession. 

§  2524.  If  an  administrator  offers  or  proposes  to  sell  any  real 

Claim—  estate  which  is  claimed  by  any  other  person,  such  third  person 

where     and  .  i  .        i    .  i  •    i       i  .     , 

how  tried,  may  mterposc  his  claim,  which  shall  be  tried  in  the  County  where 
the  land  lies.  If  the  claim  be  to  personal  property,  it  shall  be 
tried  in  the  County  of  the  residence  of  the  administrator. 

§  2525.  A  private  sale  of  land  under  an  obligation  to  perfect  by 

Private  l^gal  formality,  is  contrary  to  public  policy,  and  renders  such  sales 

policy.'      always  open  to  review  at  the  option  of  parties  at  interest.     Such 

sales  made  prior  to  December  17th,  1859,  are  legal  and  valid. 

§  2526.  If  a  will  authorizes  a  private  sale  by  the  executor,  an 

(a)  Acts  of  1863-4,  p.  30. 


PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.- 


■TlTLE,  ETC. 


489 


Section  7. — Distribution,  Advancements,  and  Provision  for  Family, 
administrator  with  the  will  annexed,  may  execute  the  power  and  Saiesbyex- 

'  *'  *  ecutors,  etc. 

If  the  will 


sell  the  property  without  order  from  the  Ordinary, 
merely  designates  the  property  to  be  sold  without  specifying  the 
mode  of  sale,  no  application  for  leave  to  sell  is  necessary ;  but  in   ' 
other  respects  the  executor  or  administrator  with  the  will  annexed  - 
must  comply  with  the  requisitions  before  specified. 

§  2527.  FExecutors  and  administrators  shall  state  in  all  adver-  Terms  must 

"-  be  stated. 

tisements  of  sales  by  them,  the  terms  of  sale.]  (a) 

§  2528.  An  administrator  must  make  a  full  return  of  every  sale,    Retnm  of 
specifying  the  property  sold,  the  purchasers,  and  the  amounts, 
together  with  the  terms  of  sale. 


SECTION  VII. 

OF  DISTRIBUTION,  ADVANCEMENTS,  AND  PROVISION   FOR  FAMILY. 


Section. 

Section. 

2529.  Rule  of  distribution. 

2539.  Proof  of. 

2530.  Year's  support  to  family. 

2540.  Portions  in  trust,  etc. 

2531.  Support  of  widow  and  children. 

2541.  Advancements,  etc. 

2532.  Schedule. 

2542.  How  estimated. 

2533.  Title  to  property  set  apart. 

2543.  Division  in  kind. 

2534.  Provision  in  lieu  of  year's  support. 

2544.  Ofider  for  partition. 

2535.  Two  sets  of  children. 

2545.  Return. 

2536.  Fees  and  costs. 

2546.  Refunding  bond. 

2537.  Widows  may  pay  debts. 

2547.  Lands  divided— how. 

2538.  Advancements. 

§  2529.  After  the  payment  of  expenses  of  administration  and     Euies  of 
the  debts  of  the  deceased,  the  balance  of  the  estate,  both  real  and 
personal,  stands  subject  to  distribution  among  the  heirs  at  law  of 
the   deceased   according   to   the   relationship   hereinbefore    pre- 
scribed. 

§  2530.  Among  the  necessary  expenses  of  administration,  and  Yearns  sup- 

i-i'i  ••  n         ^  porttofami- 

to  be  preierred  before  all  other  debts,  is  the  provision  for  the  sup-  ly.  /^^ 
port  of  the  family,  to  be  ascertained  as  follows  :  Upon  the  death  ' ,  '  '''^^ 
of  any  person,  testate  or  intestate,  leaving  an  estate  solvent  or 
insolvent,  and  leaving  a  widow,  or  a  widow  and  minor  child  or 
children,  or  minor  child  or  children  only,  it  shall  be  the  duty  of 
the  Ordinary,  on  the  application  of  the  widow,  or  the  guardian  of 
the  child,  or  children,  or  any  other  person  in  their  behalf,  on  no- 


r 


(a)  Acts  1866,  p,  65. 


Z^  ifc/  ^  if  ^tcJu-%^ 


490  PT.  2.— TIT.  6.— CHAP.  3.- ART.  2.— Title,  etc. 

Section  7. — Distribution,  Advancements,  and  Provision  for  Family. 

.fj  I  f      tice  to  the  representative  of  the  estate,  if  there  is   one,  and  if 
/  **"  none,  without  notice,  to  appoint  five  discreet  appraisers;  and  it 

/  "^^     shall  be  the  duty  of  such  appraisers,  or  a  majority  of  them,  to 
'      .        set  apart  and  assign  to  such  widow  and  children,  or  children  only, 
''"'Sd^  I         either  in  property  or  money,  a  sufficiency  from  the  estate  for  their 
/  support  and  maintenance  for  the  space  of  twelve  months  [from 

the  date  of  administration,  in  case  there  be  administration  on  the 
estate,]  (a)  to  be  estimated  according  to  the  circumstances  and 
standing  of  the  family  previous  to  the  death  of  the  testator  or  in- 
testate, and  keeping  in  view  also  the  solvency  of  the  estate.  If 
there  be  a  widow,  the  appraisers  shall  also  set  apart,  for  the  use 
Furniture,  of  hcrsclf  and  children,  a  sufficient  amount  of  the  household  fur- 
niture. The  provision  set  apart  for  the  family  shall,  in  no  event, 
be  less  than  the  sum  of  one  hundred  dollars,  [and  if  it  shall  ap- 
pear upon  a  just  appraisement  of  the  estate  that  it  does  not  ex- 
ceed in  value  the  sum  of  five  hundred  dollars,  it  shall  be  the  duty 
of  the  appraisers  to  set  apart  the  whole  of  said  estate  for  the 
support  and  maintenance  of  such  widow  and  child,  or  children,  or 
if  no  surviving  widow,  to  the  lawful  guardian  of  the  child  or  chil- 
dren for  their  benefit.]  (b) 

2531.  [Where  an  estate  is  to  be  kept  together  for  a  longer  time 
Support  of  than  twelve  months,  andftthere  are  no  debts  to  pay,  and  a  widow 

widow    and  .  ^  >■>  i  i  i  p«i 

children,  and  mmor  children  to  be  supported  out  of  said  estate,  they  shall 
have  a  year's  support  for  each  year  that  such  estate  may  be  kept 
together,  and  the  appraisers  aforesaid  may  act  in  the  same  capac- 
ity for  the  second  and  any  subsequent  year,  or  new  appraisers  may 
be  appointed  by  the  Ordinary  to  assign  such  support  after  the  first 
year.]  (c) 

§  2532.  It  shall  be  the  duty  of  the  appraisers  to  make  a  sched- 
Schednie.  ule  of  the  property  set  apart  by  them,  and  return  the  same  under 
their  hands  and  seals  to  the  Ordinary,  within  three  months  from 
the  date  of  their  action — to  which  return  objections  may  be  filed 
by  any  person  interested,  at  any  time  within  six  months  after  the 
Objections,  filing  of  the  same  in  office,  and  if  no  objections  are  made,  or  if 
made  are  disallowed,  the  Ordinary  shall  record  the  return  so  made 
in  a  book  to  be  kept  for  this  purpose ;  if  an  appeal  be  taken, 
pending  the  appeal,  the  family  shall  be  furnished  with  necessaries 
by  the  representative  of  the  estate. 

(a)  Acts  1866,  p.  66.    (b)  Acts  of  186S-3,  pp.  30,  31.    (c)  Acts  of  1865-6,  p.  31. 


PT.  2.— TIT.  6.— CHAP.  3.— ART.  3.— Title,  etc.  491 

Section  7. — Distribution,  Advancements,  and  Provision  for  Family. 
^2533.  The  property  so  set  apart  by  the  appraisers  shall  vest  Title  to  pro- 

.  .  .  .  ,  .      Perty        eet 

in  the  widow  and  child,  or  children  ;  and  if  no  widow,  in  such  chil-  apart, 
dren,  share  and  share  alike  :  [and  the  same  shall  not  be  adminis- 
tered as  the  estate  of  the  deceased  husband  or  father.]  (a) 

§  2534.  A  testator,  may  by  his  will,  make  provision  in  lieu  of  this  Provision 
support  for  twelve  months  ;  in  which  case  the  widow  may  elect,  un-  year's  sup- 
der  the  same  rules  as  regulated  her  election  of  dower. 

§  2535.  If  there  are  two  sets  of  minor  children,  by  different   Two  sets  of 
wives,  the  appraisers  shall  specify  the  portion  going  to  the  chil- 
dren of  the  deceased  wife,  which  portion  shall  vest  in  them. 

§  2536.  The  reasonable  charges  of  the  appraisers,  to  be  assessed    Fees  and 
by  the  Ordinary,  and  the  fees  of  the  Ordinary,  shall  be  paid  by  ^^^  ^' 
the  applicant  out  of  the  fund  set  apart.     The  Ordinary  may  issue    j^'*.  fa.vs. 
a  writ  of  fieri  facias  against  the  representative  of  the  estate  for  to^etc?**^^" 
the  amount  so  awarded  as  aforesaid. 

§2537.  [When  the  whole  of  an  estate  is  set  apart  as  provided  widow  may 
in  Section  2530,  the  widow  may  pay  so  much  and  such  parts  of 
the  debts  of  her  deceased  husband  as  she  may  think  proper,  con- 
sistently with  her  means,  with  the  advice  and  consent  of  the  Ordi- 
nary.] (a) 

§  2538.  An  advancement  is  any  provision  by  a  parent  made  to    Advance- 

TinfiTil'S 

and  accepted  ^by  a  child  out  of  his  estate,  either  in  money  or 
property,  during  his  lifetime,  over  and  above  the  obligation  of  the 
parent  for  maintenance  and  education.  Donations  from  affection, 
and  not  made  with  a  view  of  settlement,  nor  intended  as  advance- 
ments, shall  not  be  accounted  for  as  such ;  nor  shall  the  support 
of  a  child  under  the  parental  roof,  although  past  majority,  nor 
the  expenses  of  education,  be  held  as  advancements,  unless  charged 
as  such  by  the  parent. 

§  2539.  A  memorandum  of  advancements,  in  the  handwriting    Proofof. 
of  the  parent,  or  subscribed  by  him,  shall  be  evidence  of  the  fact    / 1  ffr 
of  advancement,  but  shall  not  be  conclusive  as  to  the  valuation  of 
the  property,  unless  inserted  as  a  part  of  testator's  will  or  re- 
ferred to  therein. 

§  2540.  A  portion  given  in  trust  for  the  benefit  of  a  child  is  an  Portions  in 
advancement  to  such  beneficiary,  as  if  directly  given  to  her.     A  grandchild- 

rcn 

portion  given  to  the  children  of  a  deceased  child  is  an  advance- 
ment to  that  distributive  share  of   the   estate,  and   the   grand- 

(a)  Acts  of  1862-3,  pp.  30, 31. 


{-\ 


492  PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.~Title,  etc. 

Section  7. — Distribution,  Advancements,  and  Proyision  for  Family. 


children  must  regulate  and  equalize  inequalities  among  themselves 
in  dividing  the  surplus  coming  to  them. 

§2541.  In  the  distribution  of  an  estate,  every  child  of  the  in- 
Advance-  testate,  and  if  a  child  be  dead,  the  representative  of  that  distribu- 

ments— how     ^  ^  ^ 

accounted  tivc  sharc,  must  first  account  for  any  and  all  advancements  made 
in  intestate's  lifetime.  If  the  advancements  amount  to  or  exceed 
the  share  received  by  an  unadvanced  child,  such  advanced  dis- 
tributee shall  receive  nothing  farther  from  the  estate;  if  the  ad- 
vancement is  less,  then  each  unadvanced  or  less  advanced  dis- 
tributee shall  first  be  made  equal  to  such  advancement  before  a 
general  and  equal  ■  distribution  is  made.  If  there  be  a  widow, 
she  shall  be  made  equal  to  advanced  children,  as  other  distrib- 
utees. 

§  2542.  Every  advancement,  unless  a  value  is  agreed  on  at  the 
How  esti-  time  of  its  acceptance,  shall  be  estimated  at  its  value  at  the  time 

mated. 

of  the  advancement,  and  no  interest  shall  be  charged  upon  the 
value  thereof  until  the  time  of  the  first  distribution  of  the  estate ; 
from  which  date,  advancements  shall  be  reckoned  with  regard  to 
interest,  in  the  same  manner  as  an  equal  amount  of  the  estate  re- 
ceived at  that  time. 

§  2543.  Whenever  it  is  practicable  the  Ordinary  may  order  a 
Division  in  distribution  of  the  estate  in  kind — which  order  raav  be  granted  on 

kind.  .         .  .  ^  & 

the  application  of  the  representative  or  any  distributee  of  the 
estate.     In  all  cases  the  applicant  shall  give  at  least  twenty  days' 

Notice,  written  notice  to  all  parties  in  interest  within  this  State  who  are 
of  age,  and  to  the  guardians,  if  any,  of  minor  distributees,  and 
shall  also  give  notice  to  any  persons  in  interest  residing  out  of 
the  State,  by  publication  of  the  same  at  least  twice  a  month  for 
four  months  in  one  of  the  gazettes  of  this  State. 

§  2544.  Upon  hearing  the  petition  of  the  applicant,  the  Ordi- 

Order  for  narv,  if  no  ffood  cause  to  the  contrarv  be  shown,  shall  grant  an 

partition.  ...  '  fe 

order  for  division,  and  appoint  three  or  more  freeholders  of  the 
Duty  of  par-  County  whcrc  the  property  is  situated,  whose  duty  it  shall  be  to 
tationers.      appraisc  and  impartially  divide  the  property   into  the  requisite 
number  of  shares,  and  by  lot,  or  otherwise,  to  assign  to  each  dis- 
tributee his  share,  equalizing  the  same,  if  necessary,  by  balances  in 
money,  to  be  paid  either  out  of  the  estate,  or  by  the  respective 
distributees ;  such  appraisers  and  partitioners  being  first  sworn  to 
the  faithful  and  impartial  discharge  of  their  duty  as  such.   If  only 
yifiion.        a  portion  of  the  distributees,  or  legatees,  are  entitled  at  the  time 


PT.  2.~-TIT.  6.— CHAP.  8.— ART.  2.— Title,  etc. 


493 


Return, 


Eefunding 
bond. 


Section  7. — Distribution,  Advancements,  and  Provision  for  Family. 

to  the  possession  of  their  portion  of  the  property,  their  shares 
may  be  set  apart  as  aforesaid,  and  the  remainder  be  left  in  com- 
mon stock  for  future  distribution. 

§  2545.  The  return  of  the  division  and  partition  thus  made  shall 
be  in  writing,  signed  by  the  appraisers ;  and  any  party  in  interest 
may  file  objections  to  such  return  before  it  is  made  the  judgment 
of  the  Court  of  Ordinary.     If  such  objections  be   sustained,  the 

Ordinary  shall  order  a  new  division  by  the  same  or  other  parti- 
tions. 

§  2546.  In  all  cases  of  distribution  in  kind,  the  administrator, 
before  delivering  up  the  property,  may  demand  of  each  distribu- 
tee, or  his  guardian,  bond  and  security  to  refund  his  proportion- 
able part  of  any  debt  which  may  be  afterward  established  against 
the  estate,  and  the  costs  attending  the  recovery  thereof. 

§  2547.  [Upon  the  application  of  the  legal  representative  of  any 
deceased  person,  whose  estate  consists,  wholly,  or  in  part,  of  lands  f^^lf^^  ^^ 
lying  in  several  Counties  of  this  State,  to  the  Ordinary  of  the 
County  where  said  representative  makes  his  return,  showing  that 
said  estate  is  in  readiness  for  distribution,  and  that  the  same  can 
not  be  made  without  prejudice  or  loss  to  the  minor  distributees 
thereof,  except  by  the  division  of  the  lands  of  said  estate  in  kind, 
it  shall  and  may  be  lawful  for  the  Ordinary  of  said  County,  in  his 
discretion,  to  pass  such  order  as  to  him  shall  seem  most  adequate 
to  secure  a  just  and  equal  division  in  kind  of  the  lands  of  said 
estate  among  all  parties  in  interest ;  provided^  that  said  repre- 
sentative shall  give  the  notice  of  his  application  aforesaid  as  is 
required  by  law  in  the  case  of  a  division  of  estates  in  kind.]  (a) 


Ordinary 
may     direct 


Proviso. 


SECTION   YIII. 

OF  COMMISSIONS   AND   EXTUA  COMPENSATION. 


Section. 

2548.  Ordinary  commissions. 

2549.  On  interest  made. 

2550.  No  commissions  on  payments,  etc. 

2551.  None  for  delivering  property,  etc. 

2552.  Traveling  and  other  expenses. 


Srctiojt. 

2553.  Extra  compensation. 

2554.  No  fvmd  shall  pay  commissions,  etc. 

2555.  Forfeiture  of  commissions. 

2556.  Expense  of  agents. 


§  2548.  As   a  compensation  for  his  services,  the  administrator      ordinary 

...  .      .  «  T  ^     If  11  commissions 

snail  nave  a  commission  ot  two  and  one-half  per  cent,  on  all  sums 

(a)  Acts  of  1865-6,  p.  85. 


494  PT.  2.— TIT.  6.— CHAP.  S.-^ART.  2.-^TiTLE,  ETC. 

Section  8.— Commissions  and  Extra  Compensation. 


of  money  received  bj  him  on  account  of  the  estate  (except  money 
loaned  bj  him  and  repaid  to  him),  and  a  like  commission  on  all 
sums  paid  out  by  him,  either  to  debts,  legacies,  or  distributees. 
Such  commissions  are  part  of  the  expense  of  administration,  and 
should  be  paid  from  the  general  estate,  if  any.  If  none,  then  to 
be  deducted  from  the  debt  or  legacy  paid* 

§  2549.  If,  in  the  course  of  administration,  the  administrator 

On  interest  shall  reccive  interest  on  money  loaned  by  the  intestate,  or  by  him- 
self  as  administrator,  and  shall  return  the  same  to  the  Ordinary 
so  as  to  become  chargeable  therewith  as  a  part  of  the  corpus  of 
the  estate,  he  shall  be  entitled  to  ten  per  cent*  additional  commis- 
sion on  all  such  amounts  of  interest  made. 

§  2550.  The  administrator  is  entitled  to  no  commissions  on  debts, 

No  commis- legacies,  or  distributive  shares  paid  to  himself,  and  if  there  are 

sions,  etc.  o  ^  j.  ^  /  ^      ^ 

more  administrators  than  one,  the  division  of  the  commissions  al- 
lowed them,  among  themselves,  shall  be  according  to  the  services 

§2551.  No  commissions  shall  be  paid  to  any  administrator  or 
None  for  exocutor  for  delivering  over  of  any  property  in  kind ;    but  the 

delivering  o  ./    r      r        ./  ' 

Sr*^  ^  Ordinary  may  allow  reasonable  compensation  for  such  service,  not 
exceeding  three  per  cent,  on  the  appraised  value.  If,  however^ 
land  is  worked  by  any  trustee  for  the  benefit  of  the  parties  in  in- 
terest, the  Ordinary  may,  in  his  discretion,  allow  to  such  trustee 
additional  compensation  for  such  services  ;  in  no  case  exceeding 
ten  per  cent,  of  the  annual  income  of  the  property  so  managed. 
§  2552.  An  administrator  in  the  discharge  of  his  duty  required 
Traveling  to  travel  out  of  his  County,  shall  be  allowed  the  amounts  of  his 

and     other  ^  ^  ' 

expenses,  actual  disbursements,  to  be  ascertained  by  his  own  statements  un- 
der oath.  The  Ordinary  may  also  allow  him  a  reasonable  com- 
pensation for  the  time  devoted  to  this  service  ;  provided^  under  the 
circumstances,  the  Ordinary  adjudges  such  additional  compensa- 
tion a  proper  charge  against  the  estate. 

§  2553.  In  other  cases  of  extraordinary  services,  extra  corn- 
Extra  com-  pensation  may  be  allowed  by  the  Ordijiary.     But  in  no  case  is  the 

pensation.      a  v'  ,/  ./ 

allowance  of  extra  compensation  by  the  Ordinary  conclusive  upon 
the  parties  in  interest. 

§  2554.  Where,  from  any  cause,  a  trust  fund  shall  pass  through 
No  fund  the  hands  of  several  administrators,  or  other  trustees,  by  reason 

snail      pay  '  '      »/ 

but'SSf  ^^°^  of  the  death,  removal,  resignation,  or  otherwise,  of  the  first  qual- 
ified trustee,  such   fund  shall  not   be  subject  to  diminution  by 


PT.  2.-- TIT.  6.— CHAP.  3.— ART.  2.-~Title,  etc.  495 

Section  9. — Final  Settlements  and  Receipts. 

charges  of  commissions  by  each  successive  trustee  holding  and 
receiving  in  the  same  right;  but  commissions  for  receiving  the 
fund  shall  be  paid  to  the  first  trustee  or  his  representative,  and 
commissions  for  paying  out  shall  be  paid  to  the  trustee  actually 
disbursing  the  fund,  and  no  commission  shall  be  paid  for  handing 
over  the  fund  to  the  successor  of  a  trustee. 

§  2555.  Administrators  and  trustees  failing  to  make  annual  re-  Forfeiture  of 

^   "  ^      ^  commissiona 

turns  as  hereinbefore  required,  shall  forfeit  all  commissions  for 
transactions  during  the  year  within  which  no  return  is  made,  un- 
less the  Ordinary,  upon  cause  shown,  shall,  by  special  order  on  the 
minutes,  relieve  them  from  this  forfeiture. 

§2556.  Amonsj  the  expenses  of  administration  should  be  in-   Expense  of 

.     ,  agents. 

-eluded  and  allowed  the  expenses  of  such  agent  as  the  administra- 
tor finds  it  necessary  to  employ  for  the  estate.  The  existence  of 
the  necessity  must  be  satisfactorily  shown  to  the  Ordinary. 


SECTION  IX. 

OF    FINAL     SETTLEMENTS    AND     RECEIPTS. 


Section. 

2557.  Settlement  before  the  Ordinary. 

2558.  How  made. 

2559.  Settlement  in  Court  of  Equity. 

2560.  Rule  for  charging  interest. 


Section. 

2561.  Rule  for  settlements. 

2562.  Interest— how  compounded,  etc. 

2563.  Final  receipts  may  be  recorded. 

2564.  Refunding  bonds— when  to  be  given 


§  2557.  Any  person  interested  as  distributee  or  legatee  may,  settlement 
alter  the  expiration  of  one  year  from  the  grant  of  admmistra-  ordinary. 
tion,  cite  the  administrator  to  appear  before  the  Ordinary  for  a 
settlement  of  his  accounts;  or,  if  the  administrator  chooses,  he 
may  cite  all  of  the  distributees  to  be  present  at  the  settlement  of 
his  accounts  by  the  Ordinary.  Such  settlement  shall  be  conclu- 
sive upon  the  administrator,  and  upon  all  the  distributees  who  are 
present  at  the  hearing. 

§  2558.  Upon  proof  of  such  citation  by  a  distributee,  the  Ordi-    How  made 

^         ^  ./  7  and      e  n  - 

nary  may  proceed  to  make  an  account,  hear  evidence  upon  any  ^«'*<^®^- 

contested  question,  and  settle  finally  between  the  distributee  and 

administrator.     Such  settlement  may  be  enforced  by  execution 

or  attachment,  for  contempt — either  party  having  the  liberty  of    Appeal. 

appeal. 

§  2559.  A  Court  of  Equity  shall  have  concurrent  iurisdiction  ,  settlement 

^       •'  ••'in   Court  of 

over  the  settlement  of  accounts  of  administrators.  Equity. 


496  PT.  2.— TIT.  6.--CHAP.  3.— ART.  2.— Title,  etc. 

Section  9. — Final  Settlements  and  Receipts. 

§  2560.  In  making  such  settlements,  a  reasonable  time,  accord- 
Euie  for  ino;  to  the  facts  of  each  case,  should  be  allowed  to  the  trustee  to 
terest  invest  fuuds  coming  into  his  hands,  before  charging  him  with  inter- 
est thereon;  and,  in  like  manner,  disbursements  made  by  the  trus- 
tee should,  as  a  general  rule,  bear  interest  from  some  period  ante- 
rior to  the  date  of  payment,  according  as  he  may  have  retained 
funds  to  meet  them.  In  every  case,  the  object  is  to  charge  the 
trustee  with  such  interest  as  a  diligent  man  would  make,  and  to 
see  that  the  trust  fund  is  not  used  for  his  private  benefit. 

§  2561.  [All  statements  for  final  settlement  with  executors,  ad- 
Executors,  ministrators,  guardians,  and  trustees,  shall  hereafter  be  made  out 

etc.,  basis  of  '  <z>  ^  / 

settlement,   upou  the  following  basis  : 

1.  The  rate  of  interest  charged  against  executors,  administra- 
Eateof  in-  tors,  ffuardiaus,  and  trustees,  shall  be  the  same  as  that  now  regu- 

terest.  '  °  '  '  ^ 

lated  by  law. 

2.  Ko  interest  shall  be  charged  either  way  for  the  first  year, 
First  year,  as   onc   year  is  now  allowed  by  law  for   the  collection  of  assets 

'^ifX  i/  ^^^  ^^  ascertain  the  indebtedness  of  an  estate. 

^  3.  Any  executor,   administrator,  guardian,  or  trustee,  in  the 

May  retain  mana2;ement  of  an  estate,  may  retain  in  his  hands,  at  the  begin- 
ning  of  each  year,  an  amount  of  money  sufficient  to  pay  the  cur- 
rent expenses  of  said  year  ;  upon  which  amount  no  interest  shall 
be  charged  in  final  settlement. 

4.  The  executor,  administrator,  guardian,  or  trustee,  shall,  how- 
interest  to  ever,  pay  interest  upon  all  balances  left  in  hand  at  the  beginning 

when.         of  each  year  over  and  above  the  payment  of  expenses  for  said 
'  year,  the  same  to  be  ascertained  and  computed  in  final  settle- 

ment. 

5.  When  it  shall  so  happen  that,  at  the  beginning  of  any  year, 
May  charge  an  cxccutor,  administrator,  guardian,  or  trustee,  shall  not  have 

interest—  •       i  i  rr.    •  \  p         -J 

when.  an  amount  in  hand  sufficient  to  pay  the  current  expenses  oi  said 
year,  and  his  annual  returns  show  that  fact,  he  shall  be  allowed 
to  charge,  in  final  settlement,  interest  on  the  amount  thus  ad- 
vanced by  him  during  the  year. 

6.  The  annual  returns  of  executors,  administrators,  guardians. 
Returns—  and  trustccs,  shall  be  made  out  in  the  manner  now  regulated  by 

how  made.  .  , 

law  and  practiced  in  this  State ;  and  the  reservations,  charges, 
and  computations  of  interest,  set  forth  in  this  Section,  shall  be 
made  when  said  parties  come  to  make  a  statement  for  final  settle- 
ment. 


PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc.  497 

Section  9. — Final  Settlements  and  Receipts. 

7.  The  expenditures  and  receipts  of  each  year  are  to  be  ascer-      Exrendi- 
tained  bj  reference  to   annual  returns,  and  in  all  cases  the  com-  ascertained. 
missions  annually,  shall  be  considered  as  a  part  of  the  annual  ex- 
penses.] (a) 

§2562.  The  interest  to  be  charged  against  trustees  appointed  interest- 
since  the  first  of  January,  1848,  and  hereafter  appointed,  shall  when  com- 
be  at*  the  rate  of  seven  per  cent,  per  annum,  without  compound- 
ing, for  six  years  from  the  date  of  their  qualification ;  and  after 
that  time,  at  the  rate  of  six  per  cent,  per  annum,  annually  com- 
pounded. But  any  trustee  may  relieve  himself  from  this  rule  by 
returning  annually  the  interest  actually  made  and  accounting  for 
the  balance  of  the  fund.  Any  distributee  may  recover  greater 
interest  by  showing  that  the  trustee  actually  received  more,  or 
that  he  used  the  funds  himself  to  greater  profit. 

§  2563.  The  final  receipts  on  settlements  ei;iven  by  distributees     7*°^^  ^^• 

\  ,  ceipt  may  be 

or  legatees  to  an  administrator,  if  attested  by  a  Judge  of  any  recorded. 
Court  in  this  State,  a  Justice  of  the  Peace,  or  a  [N'otary  Public, 
may  be  admitted  to  record  by  the  Clerk  of  the  Superior  Court  of 
the  County  of  the  residence  of  the  administrator,  and,  when  re- 
corded, shall  be  admitted  in  evidence  without  further  proof ;  and 
in  case  of  the  loss  of  the  original,  a  copy  may  be  used  in  evidence 
under  the  same  rules  as  copies  of  registered  deeds. 

§  2564.  An  administrator,  where  litisfation  against  the  estate  is  ^  Refunding 

•^  .  bonds  — 

pending  or  is  threatened,  or  notice  of  a  claim  has  been  given  to  ^^ff^  ^'^  ^® 
him,  may  demand  of  the  distributees  or  legatees  refunding  bonds 
to  indemnify  him  against  such  claims ;  and  on  failure  to  give  such 
bonds,  the  administrator  may  reserve  enough  of  the  assets  to  re- 
spond to  such  claims.  But  in  no  case  shall  the  administrator  re- 
quire a  refunding  bond  from  the  heir  when  no  threatened  suit  or 
claim  renders  such  bond  necessary. 


SECTION   X. 

OF  LETTERS   OF  DISMISSION   AND   RESIGNATION. 


Section. 

2565.  Dismission — how  granted. 

2566.  Duty  of  Ordinary, 

2567.  Fraudulent  discharge. 


Section. 

2568.  Disposition  of  unclaimed  funds. 

2569.  Registration — how  made. 


(a)  Acts  of  1865-6,  pp  84-5. 
32 


498  PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.— Title,  etc. 


Section  10, — Letters  of  Dismission  and  Resignation. 


§  2565.  An  administrator  who  has  fully  discharged  all  his  duties 
Dismission  mav  petition  the  Ordinary  to  pass  an  order  discharsring:  him  from 

— howgrant-  *^    ^  ...  o      o 

ed.  his  trust ;  upon  such  petition  a  citation  shall  issue,  requiring  all 

persons  concerned,  to  show  cause  against  the  granting  of  the  dis- 
charge. Such  citation  shall  be  published  in  the  gazette  for  six 
months. 

§  2566.   Upon  the  hearing,  the  Ordinary  shall  examine  closely 
Duty  of  into  the  condition  of  the  estate,  and  the  conduct  of  the  adminis- 

Ordinary.  ' 

trator,  and  if  he  shall  be  satisfied  that  he  has  faithfully  and  hon- 
estly discharged  the  trust  and  confidence  reposed  in  him,  the  prayer 
of  the  petitioner  shall  be  granted,  and  the  administrator  released 
in'^favo?^of  "^^^^  all  liability  as  such  ;  provided,  any  heir,  distributee,  or  leg- 
minors,        atee.  Who  is   a  minor  at  the   time  of  the  discharge,  may,  within 
five  years  after  his  arrival  at  majority,  commence  suit  against  the 
administrator,  and  such  discharge  shall  be  no  bar  to  his  action. 
§  2567.  A  discharge  obtained  by  the  administrator  by  means  of 
dSa?^e^"*  any  fraud  practiced  on  the  heirs  or  the  Ordinary,  is  void,  and  may 
be  set  aside,  on  motion  and  proof  of  the   fraud.     No   discharge 
ti  '^^b™^^^-  should  be  granted  without  actual  examination  by  the  Ordinary, 
dinary.        ^^id  the  Order  of  discharge  should  assert  such  examination  into  the 
accounts  of  the  administrator. 

§  2568.  If  funds  are  in  the  hands  of  the  administrator,  and  no 
Disposition  persou  claiminfic  the  same,  the  Ordinary  may  nevertheless  ^rant  a 

of  unclaimed  ^  o  j  t/  ./  o 

funds.  discharge,  at  the  same  time  passing  an  order  either  requiring  the 
administrator  to  deposit  the  fund  in  such  solvent  bank  as  the 
Court  may  direct,  or  else  authorizing  him  to  retain  the  same  in 
his  hands  at  an  interest  not  exceeding  four  per  cent,  per  annum. 
The  discharge  shall  not  take  effect  until  the  money  is  deposited ; 
or  in  the  event  of  its  being  retained  by  the  administrator,  it  shall 
not  relieve  him  or  his  sureties  from  their  liability  to  comply  with 
such  order  and  respond  for  such  fund. 

§  2569.  Any  administrator  who,  from  age  or  infirmity,  removal 

— how^made.  ^^^^m  the  County,  or  for  any  other  cause,  desires  to  resign  his  trust, 
may  petition  the  Ordinary,  stating  the  reasons,  and  the  name  of  a 
suitable  person  qualified  and  entitled  to  and  willing  to  accept  the 
trust;  whereupon  the  Ordinary  shall  cite  such  person,  and  the 
next  of  kin  of  the  intestate,  to  appear  and  show  cause  why  the 
order  should  not  be  granted.  If  no  good  cause  be  shown,  and  the 
Ordinary  is  satisfied  that  the  interest  of  the  estate  will  not  suifer, 
the  resignation  shall  be  allowed,  and  the  administrator  shall  be 


PT.  2.— TIT.  6.— CHAP.  3.— AET.  2.— Title,  etc. 


Section  11.— RemoYing  Proceedings  to  another  County. 


499 


discliarged  from  his  trust  whenever  he  has  fairly  settled  his  ac- 
counts with  his  successor  and  filed  with  the  Ordinary  the  receipt 
in  full  of  such  successor.     Minors  in  interest  shall  be  allowed  five  in^SiSr^of 
years  from  the  time  of  their  arrival  at  majority  to  examine  into  ^^^^o'"^- 
and  open  such  settlement,  , 


SECTIOIST   XI. 

X)F  llEMOVi:NrG  PROCEEDINGS  TO   ANOTHER   COUNTY. 


Section. 

2570.  Proceedings  to  obtain  order. 

2571.  Executor  n«ed  not  give  bond. 


Section. 

2572.  Sureties-^how  liable. 


§  2570.  Whenever  from  any  change  of  residence,  or  other  cause,      Proceed- 

T^.  ,.  ,..,..  «,.  ings   to  Ob- 

an administrator  may  desire  to  remove  the  jurisdiction  oi  nis  trust  tain  order. 

from  the  Court  of  Ordinary  of  the  County  of  the  residence  of  tes- 
tator or  intestate  to  that  of  his  own  residence,  the  same  may  be 
done  by  complying  with  the  following  requisitions  : 

1.  By  obtaining  a  copy  of  all  the  records  of  the  Ordinary  rela- 
tive to  his  trust,  and  causing  the  same  to  be  recorded^by  the  Or- 
dinary of  the  County  of  his  residence. 

2.  By  giving  to  the  Ordinary  of  his  ^  County  new  bond,  with 
good  security,  for  the  discharge  of  his  duty  as  administrator,  in 
the  same  manner  as  if  the  administration  was  originally  granted 
there. 

'  3.  By  filing  with  the  Ordinary  of  the  County  having  original 
jurisdiction,  a  certificate  under  the  seal  of  the  Ordinary  of  the 
County  to  which  the  trust  is  to  be  removed,  that  the  foregoing 
provisions  have  been  complied  with. 

4.  The  Ordinary  having  jurisdiction  shall  then  pass  an  order 
transferring  the  trust  to  the  Ordinary  of  the  other  County. 

§  2571.  An  executor  who  has  not  been  required   to  give  bond 
shall  not  be  required  to  give  bond  on  removal  of  his  trust  to  an-  gfve  bonli 
other  County. 

§  2572.  On  removal  of  an  administration  as  herein  provided,  Sureties- 
the  sureties  on  the  first  bond  are  liable  only  for  the  conduct  of 
the  administrator  up  to  the  time  of  removal ;  the  sureties  on  the 
second  bond  are  liable  for  all  his  acts  from  the  commencement  of 
the  administration.  If  the  latter  are  made  responsible  for  acts 
prior  to  the  removal,  they  have  a  right  of  contribution  against  the 
former. 


Executor 
not 


500 


PT.  2.— TIT.  6.— CHAP.  3.— ART.  2.^Titl2I,  etc. 


Section  12. — Foreign  Administrators. 


SECTION   XIL 

OF     FOREIGN     ADMINISTRATORS. 


m 


iii 


t-/i 


Section. 

2573.  Privileges  in  this  State. 

2574.  Exemplification. 


Section. 

2575.  Protection  of  heir,  etc, 

2576.  Transfer  of  stock,  etc. 


2573.  When  a  person  at  the  time  of  his  death  is  domiciled  in 


cation 


Priviiegea  another  State,  and  administration  is  there  regnlarlj  granted  on 

In  this  State.  .    . 

his  estate,  either  to  an  executor  or  administrator,  such  executor 
or  administrator,  if  there  be  none  appointed  in  this  State,  may 
institute  his  suit  in  any  Court  in  this  State  to  enforce  any  right 
of  action,  or  recover  any  property  belonging  to  the  deceased,  or 
accruing  to  his  representative  as  such. 

§  2574.  Pending  the  action,  a  properly  authenticated  exempli- 

Exempiifi-  ficatiou  of  the  letters  testamentary  or  of  administration,  shall  be 

filed  with  the  Clerk  of  the  Court,  to  become  a  part  of  the  record ; 

provided  the  cause  is  pending  in  a  Court  of  Record.     If  it  be  a 

summary  process,  the  exemplification  shall  be  filed  with  the  papers. 

§  2575.  If  any  citizen  of  this   State  is  interested  as  creditoi-y 

Protection  heir,  or  leffatee  in  the  estate  of  which  such  administrator  or  exec- 

of  heir.  etc.  .  "-^  .  , .         .  ^  -» 

utor  is  the  representative,  he  may,  by  application  to  a  Court  of 
Equity,  compel  such  foreign  administrator  or  executor  to  protect 
his  interest  according  to  equity  and  good  conscience  before  remo- 
ving such  assets  beyond  the  limits  of  this  State. 

§  2576.  Such  foreign   executor  or  administrator  may  transfer 
Transferor  bank  stock  Standing  in  the  name  of  the  decedent,  and  check  for 

stock,  etc.  ,  .    . 

deposits  made  by  him   or  dividends  declared   on  his  stock,  first 
filing  with  the  bank  a  certified  copy  of  his  appointment  and  quali- 
'  fication. 


CHAPTER    IV. 


OF    TITLE     BY    JUDICIAL    SALE. 


Section. 

2577.  Eflfccts  in  passing  title. 

2578.  Original  title. 

2579.  Note  in  writing  unnecessary. 

2580.  Caveat  emptor. 

2581.  Covenants  running  with  land. 


Section. 

2582.  Putting  purchaser  in  possession. 

2583.  Seizure  of  personalty. 

2584.  Sale  of  stocks. 

2585.  Titles  made  by  successors. 

2586.  Purchaser  need  not  trace  funds. 


2577.  A  sale  regularly  made,  by  virtue  of  judicial  process^ 


PT.  2.— TIT.  6.— Title,  etc.  501 

Chapter  4. — Title  by  Judicial  Sale, 
issuing  from  a  Court  of  competent  iurisdietion,  shall  convey  the    Effects  in 

°  .  .  passing  title. 

title  as  effectually  as  if  the  sale  was  made  by  the  person  against 
whom  the  process  issues. 

§  2578.  In  all  controversies  in  the   Courts  of  this  State,  the    ^^^^^"'^^ 
purchaser  at  such  a  sale  shall  not  be  required  to  show  title  deeds 
back  of  his  purchase,  unless  it  be   necessary  for  his  case  to  show 
good  title  in  the  person  whose  interest  he  purchased. 

§2579.  JSTo  note  or  memorandum  in  writing  shall  b«  necessary  Notein^yl■^- 
to  charge  any  person  at  a  judicial  sale.  cessary. 

§  2580.  The  purchaser  must  look  for  himself  as  to  the  title  and      caveat   ,/  ../cj 
soundness  of  all  property  sold  under  judicial  process.     Actual  Xj-rt 

fraud  or  misrepresentation  by  the  officer  or  his  agent,  may  bind  Fraud.  ..  J^  2> 
him  personally.  No  covenant  of  warranty  binds  him  individually,  warranty./  ^^1^ 
-unless  made  with  that  intention  and  for  a  valuable  consideration. 

§2581.  The  purchaser  at  judicial  sales  may  enforce  any  cove-    covenants 

•TiTii'i  !•  running 

nants  or  warranty  running  with  the  land  which  may  be  mcorpo-  with  land. 
rated  in  the  previous  title  deeds. 

§  2582.  Whenever  a  present  interest  in  land  is  sold  by  any       Putting 

••■  »/  t/   purcriaser  in  ■ 

judicial  officer,  it  shall  be  his  duty  to  place  the  purchaser  or  his  possession. 
agent  in  possession  of  the  land,  and  to  this  end  he  may  dispossess 
the  defendant  in  the  process,  his  heirs  and  his  tenants,  or  his 
lessees  or  vendees  of  younger  date  than  the  judgment  upon  which 
the  process  issues ;  but  he  may  not  dispossess  other  tenants  claim- 
ing under  an  independent  title. 

§  2583.  To  authorize  a  sale  of  personal  property  there  must  be    seizurcof 

,1  .  .  K     (*  •  '  1        personalty. 

an  actual  or  constructive  seizure.     A  future  interest  m  personalty 
oan  not  be  seized  and  sold,  but  the  lien  of  judgments  will  attach    Lien  on  fu- 
thereto,  so  far  as  to  prevent  alienation,  before  the  right  to  present  est 
possession  accrues. 

§  2584.  Shares  in.  a  bank  or  other  corporation,  may  be  levied  on     saie  of 
and  sold,  either  under  attachment  or  Ji.  fa.,  in  the  County  where  ^^^'^^^' 
the  corporation  does  business ;  notice  of  such  levy  being  given  to       '^  <*'  ^-^-^ 
the  defendant,  if  his  residence  be  known,  and  also  to  the  officers     ^'  "  ^^     f^' 
of  the  corporation.     Such  sales  shall  be  made  only  by  the  Sheriff, 
or  his  deputy ;  and  Constables  levying  thereon  shall  turn  over  such 
levies  to  the  Sheriff.     Only  one  share  shall  be  sold  at  once.    The 
Sheriff  shall  give  the  purchaser   a  certificate    of  his    purchase, 
which,  on  presentation  to  the  officers  of  the  corporation,  shall  au- 
thorize a  transfer  of  the  stock  to  him.     Transfers  of  stock  after 
levy  of  an  attachment,  or  after  judgment,  and  with  notice  to  the 


502 


PT.  2.— TIT.  e.^TlTLE,  ETC. 


Chapter  4. — Title  by  Judicial  Sale. 


corporation  of  the  levy  or  judgment  are  absolutely  void.  If  the 
shares  be  in  a  railroad,  canal,  turnpike,  or  plank  road  company, 
they  may  be  levied  on  and  sold  in  any  County  through  which  the 
same  passes. 

§  2585.  If  a  Sheriff  fails  to  make  titles  to  a  purchaser,  his  suc- 
Titiesmade  ccssor  in  officc  mav  make  them  in  the  same  manner  as  if  he  had 

by     succes-  *' 

sor-  sold  the  property. 

§  2586.  The  purchaser  at  judicial  sales  is  not  bound  to  look  to 
Purchaser  the  appropriation  of  the  proceeds  of  the   sale,  nor  to  the  returns 

trace  funds,  made  by  the  officer,  nor  is  he  required  to  see  that  the  officer  has 
complied  fully  with  all  those  regulations  prescribed  in  such  cases. 
All  such  irregularities  create  questions  and  liabilities  between  the 
officer  and  parties  interested  in  the  sale.  The  innocent  purchaser 
is  bound  only  to  see  that  the  officer  has  competent  authority  to 
sell,  and  that  he  is  apparently  proceeding  to  sell  under  the  pre- 
scribed forms. 


n 


CHAPTER  V. 

OF     TITLE     BY    CONTRACT 


Article  1. — Of  Private  Sales, 
Aeticle  2,— Of  Grtfts, 


ARTICLE  L 


OF     PRIVATE     SALES. 


Section". 

2587.  Essentials  of  sale. 
Sales  by  auction. 
Sales  to  defraud  creditors,  etc. 
Protection  of  bona  fide  purchaser. 
Duress  or  fraud. 
What  is  fi'aud. 
Concealment  when  fraud. 
Mistake. 
Duress. 

2596.  Possibility  can  not  be  sold. 

2597.  Title  conveyed. 

2598.  Purchaser  without  notice. 

2599.  Contracts  entire  or  divisible. 

2600.  Deficiency  in  sale  of  lands. 


2589. 
2590. 
2591. 
2592. 
2593. 
2594. 
2595. 


Section. 

2601.  Loss  of  land  from  defect  of  title. 

2602.  Delivery  of  goods. 

2603.  Sales  of  articles  being  manufaeturecB 

2604.  Consideration. 

2605.  Inadequacy. 
2006.  When  due. 

2607.  Stoppage  in  transitu. 

2608.  Purchaser  without  notice. 

2609.  Implied  warranty. 

2610.  Breach. 

2611.  Good  faith. 

2612.  Defects  generally.. 

2613.  Patent  defects. 

2614.  Barter  and  exchange. 


§  2587.  Three  elements  are  essential  to  a  contract  of  sale :  1, 


/ 


PT.  2.— TIT.  6.— CHAP.  5.— Title,  etc.  503 

Article  1. — Private  Sales. 


An  identification  of  the  thin^  sold.     2.  An  agreement  as  to  the    Essentials 

°  .  ^  of  sale, 

price  to  be  paid.     3.  Consent  of  the  parties. 

§2588.  In^casfi  of  sales  by  auction,  the  auctioneer  shall  be  con-     saies  by 
sidered  agent  of  both  parties,  so  far  as  to  dispense  with  any  fur- 
ther memorandum  in  writing  than  his  own  entries. 

§2589.  Every  sale  made  with  intent  to  defraud  either  creditors    saiestodc- 

,  .  .  fraud  credit- 

of  the  vendor,  or  prior  or  subsequent  purchasers,  if  such  inten-  o^s  or  pur- 

tion  be  known  to  the  vendee,  shall  be  absolutely  void  as  against 

such  creditors  or  purchasers.  ^  ju-  '*7A-  1^^ 

§  2590.  Every  volunjtary  deed  or  conveyance  made  by  any  per-  ""Protec^oa 
son,  shall  be  void  as  against  subsequent  bona  fide  purchaser  for  purchasers. 
value,  without  notice  of  such  voluntary  conveyance.  ^ 

e^ff/      §2591.  Fraud  or  duress,  by  which  the   consent  of  a  party  has    Duressor 

f  ^  C/  «—««—...       »«««.„w»«=-«.        *>  ^^/    /T     <■  /  /■"    fraud. 

been  obtained  to  a  contract  of  sale,  voids  the  sale.-^^Hf4#  ^Ms  i9 -^i.''-    • ; 

§  2592.    Fraud    may   exist    from   misrepresentation    by    either  ^^^^^^  ^* 
party,  made  with  design  to  deceive,  or  which  does  actually  de- 
ceive  the  other  party  ;   and  in  the  latter  case  such  misrepresenta-  / 

tion  voids  the  sale,  though  the  party  making  it  was  not  aware  that 
his  statement  was  false.  Such  misrepresentation  may  "be  perpe- 
trated by  acts  as  well  as  words,  and  by  any  artifices  designed  to 
mislead.  A  ^misrepresentation,  not  acted  on,  is  not  ground  for 
annulling  a  contract.  ^ 

§2593.  Concealment  of  material  facts  may,  in  itself,  amount      conceal-      Wfi 

*^  ment— when 

to  a  fraud —  f^ud. 

1.  When  direct  inquiry  is  made  and  the  truth  evaded.  --" 

2.  When,  from  any  reason,  one  party  has  a  right  to  expect  a 
full  communication  of  the  facts  from  the  other. 

3.  Where  one  party  knows  that  the  other  is  laboring  under  a 
delusion  with  respect  to  the  property  sold  or  the  condition  of  the 
other  party,  and  yet  keeps  silence. 

4.  Where  the  concealment  is  of  intrinsic  qualities  of  the  article 
which  the  other  party,  by  the  exercise  of  ordinary  prudence  and 
caution,  could  not  discover. 

§  2594.  Mistake  of  law,  if  not  brought  about  by  the  other  party,    Mistake. 
is  no  ground  for  annulling  a  contract  of  sale.     Mistake  of  a  ma- 
terial fact  may,  in  some  cases,  justify  a  rescission  of  the  contract ; 
mere  ignorance  of  a  fact  will  not. 

§  2595.  Duress  consists  in  any  illegal  imprisonment,  or  legal    Duress. 
imprisonment  used  for  an  illegal  purpose,  or  threats  of  bodily  or 
other  harm,  or  other  means  amounting  to  or  tending  to  coerce  the 


Purchaser 
without  no- 
tice. 


504  PT.  2.— TIT.  6.— CHAP.  5.— Title,  etc. 

Article  1. — Private  Sales. 

will  of  another,  and  actually  inducing  him  to  do  an  act  contrary 
to  his  free  will. 

§  2596.  A  bare  contingency  or  possibility  can  not  be  the  subject 
Possibility  of  Sale,  unlcss  there  exists  a  present  right  in  the  person  selling, 
sold.  to  ^  future  benefit :  so  a  contract  for  the  sale  of  goods  to  be  de- 

livered at  a  future  day  where  both  parties  are  aware  that  the  seller 
Speculating  exDccts  to  Durchasc  himself  to  fulfill  his  contract,  and  no  skill  and 

contracts.  ^  ^  ,  •  t  •  i  i 

labor  or  expense  enters  into  the   consideration,  but  the  same  is  a 

pure  speculation  upon  chances,  is  contrary  to  the  policy  of  the 

law,  and  can  be  enforced  by  neither  party. 

*  §  2597.  The  seller  can  convey  no  greater  title  than  he  has  him- 

fTitie  con-  Self.     The  houa  fide  purchaser  of  a  negotiable  paper  not  dishon- 

,-  %        ored,  or  of  money,  or  bank  bills,  or  other  recognised  currency, 

'f-  will  be  protected  in  his  title,  though  the  seller  had  none.     There 

overt^^^^^^  is  no  '' market  ovcrt "  in  Georgia. 

\  2598.  A  title  obtained  by  fraud,,  though  voidable  in  the  vendee, 

will  be  protected  in  a  bona  fide  purchaser  without  notice. 

§  2599.  The  contract  of  sale  may  be  entire  or  divisible.     If^ 

Contracts  entire,  a  failure  in  part  voids  the  whole ;    if  divisible,  the  void- 
entire  or  dl-  .  ,       .  .  T  ,  r»     1        r»  M  rm 

Tisiwe.  ance  is  only  m  porportion  and  to  the  extent  of  the  failure.  The 
intention  of  the  parties  determines  the  question  of  entirety  or 
divisibility. 

§  2600.  In  a  sale  of  lands,  if  the  purchase  is  per  acre,  a  defi- 
Deficiency  cicncy  in  the  number  of  acres  may  be  apportioned  in  the  price. 
lands.  If  the  sale  is  by  the  tract  or  entire  body,  a  deficiency  in  the  quan- 
tity sold  can  not  be  apportioned.  If  the  quantity  is  specified  as 
"more  or  less,"  this  qualificatio.n  will  cov_er  any  deficiency  not^so 
gross  as  to  justify  the  suspicion  of  willful  deception,  or  mistake 
amounting  to  fraud ;  in  this  event  the  deficiency  is  apportionable : 
the  purchaser  may  demand  a  rescission  of  the  sale  or  an  appor- 
tionment of  the  price  according  to  relative  value. 

§  2601.  If  the  purchaser  loses  part  of  the  land  from  defect  of 
Purchaser  title,  hc  mav  claiin  either  a  rescission  of  the  entire  contract,  or  a 

losing    land,  .  .  . 

etc.  reduction  of  the  price  according  to  the  relative  value  of  the  land 

so  lost. 

§  2602.  Generally,  the  delivery  of  goods  is  essential  to  the  per- 
Deiivery  fcctiou  of  a  salc.     The  intention  of  the  parties  to  a  contract  may 
dispense  therewith :  delivery  need  not  be  actual ;  constructive  de- 
livery may  be  inferred  from  a  variety  of  facts.    Until  delivery  is 
made  or  dispensed  with,  the  goods  are  at  the  risk  of  the  seller. 


PT.  2.— TIT.  6.— CHAP.  5.— Title,  etc.  505 


Article  1. — Private  Sales. 


§  2603.  When  the  sale  is  of  2:oods  to  be  manufactured  and  de-    sausofar- 

"     ^  ^  tides   being 

livered  at  a  future  time,  the  question  of  risk  will  depend  upon  the  manufactur- 
fact  to  be  ascertained  in  each  case,  whether  the  parties  stipulate 
for  a  particular  article  in  course  of  construction,  or  an  article  fill- 
ing the  specification  of  the  contract.     In  the  former  case  the  title 
passes  to  the  vendee  before  delivery ;  in  the  latter  it  does  not. 

§2604.  A  valuable  consideration  is  essential  to  a  sale:  it  must    considera- 
either  be  definite  or  an  agreement  made  by  Avhich  it  can  be  made 
certain ;  if  its  ascertainment  becomes  impossible,  there  is  no  sale. 

§  2605.  Inadequacy  of  price  is   no  ground   for  rescission  of  a  inadequacy, 
contract  of  sale,  unless  it  is  so  gross  as  combined  with  other  cir-t.  3i%*-4.fl 
cumstances  to  amount  to  a  fraud. 

§2606.  Unless  credit  is  specifically  agreed  on,  or  is  the  custom    when  due. 
of  the  trade,  the  purchase  money  is   due  immediately,  and  the 
seller  may  demand  payment  before  delivering  the  goods. 

§  2607.  If  the  goods  are  delivered  before  the  price  is  paid,  the      stoppage 

-  _  in  transitu. 

seller  can  not  retake  because  or  laiiure  to  pay ;  but  until  actual 
receipt  by  the  purchaser  the  seller  may  at  any  time  arrest  them 
on  the  way  and  retain  them  until  the  price  is  paid.  If  credit 
has  been  agreed  to  be  given,  but  the  insolvency  of  the  purchaser 
is  made  known  to  the  seller,  he  may  still  exercise  the  right  of 
stoppage  in  transitu. 

§  2608.  A  bona  fide  assiojnee  of  the  bill  of  ladinsc  of  ffoods  for     Purchaser 
a  valuable  consideration,  and  without  notice  that  the   same  were  tice. 
unpaid  for,  and  the  purchaser  insolvent,  will  be  protected  in  his 
title  against  the  seller's  right  of  stoppage  in  transitu. 

§2609.  If  there  is  no  express  covenant  of  warranty,  the  pur-      implied 

.         .  .  ,  ,  warranty. 

chaser  must  exercise  caution  in  detecting  defects  :  the  seller,  how- 
ever, in  all  cases  (unless  expressly  or  from  the  nature  of  the  trans- 
action excepted)  warrants — 

1.  That  he  has  a  valid  title  and  right  to  sell. 

2.  That  the  article  sold  is  merchantable,  and  reasonably  suited 
to  the  use  intended. 

3.  That  he  knows  of  no  latent  defects  undisclosed. 

§  2610.  A  breach  of  warranty,  express  or  implied,  does  not    Breach. 
annul  the  sale  if  executed,  but  gives  the  purchaser  a  right  to    ^mJ  ^f^ 
damages.      It   may  be   pleaded   in   abatement  of    the  purchase 
money.     If  the  sale  be  executory,  it  is  a  good  reason  for  the    Effector. 
purchaser  to  refuse  to  accept  possession  of  the  goods. 

§  2611.  Covenants  of  warranty  should  be  so  construed  as  to 


506 


PT.  2.— TIT.  6.— CHAP.  5.— Title,  etc. 


Article  3.— Gifts. 


Good  faith,  require  and  encourage  the  utmost  good  faith  in  all  contracting 
parties. 

§  2612.  Any  vice  or  defect  in  the  thing  sold  which  renders  it 
Defects  either  absolutely  useless,  or  its  use  so  inconvenient  and  imperfect 

generally.  . 

that  it  is  reasonable  to  suppose  that  the  purchaser  would  not  have 
contracted  had  he  knowledge  of  its  existence,  is  such  a  latent  de- 
fect as  good  faith  requires  the  seller  to  disclose. 

§  2613.  Patent  defects  are  not  covered  by  a  general  express 

Patent  de-  warranty,  unless  intended  to  be  so  covered.     In  proof  of  this  in- 
fects. .  .  ... 

tention,  parol  evidence  is  admissible. 

§  2614.   Contracts  of  barter  or  exchange  stand  upon  the  same 

Barterand  footing  with  private  sales,  so  far  as  the  same  principles  can  be 

exchange.  t     i  i 

apphed  to  them. 


mj 


0 


u  yvif^ , 


ARTICLE  11. 


OF 


Section. 

2615.  Essentials. 

2616.  Acceptance. 

2617.  Effect  of  written  deed. 

2618.  Delivery. 

2619.  Void  conditions. 

2620.  Gifts  void  against  creditors,  etc. 


GIFTS.    f^CcnY^a,..   rjt. 

Section. 

2621.  Presumption  of  gift. 

2622.  Of  lands. 

2623.  Loan  to  married  daughters. 

2624.  Gifts  by  persons,  etc. 

2625.  Gifts  for  illegal  purposes. 

2626.  Donatio  causa  ynortis. 


/*•  §  2615.  To  constitute  a  valid  gift,  there  must  be  the  intention 

»  ^.Essentials,  to  give  by  the  donor,  acceptance  by  the  donee   and   delivery  of 

IS    ,i+v**^      *^®  article  given,  or  some  act  accepted  by  the  law  in  lieu  thereof. 

^  -  ^*        §2616.  If  the  donation  be  of  substantial  benefit,  the  law  pre- 

Acceptance.  gumcs  the   acccptauce,  unless  the  contrary  be  shown.     A  parent, 

guardian,  or  friend,  may  accept  for  an  infant.     The  officers  of  a 

corporation  accept  for  it. 

'  '  ',         §  2617.  When  the  law  requires  a  conveyance  in  writing  to  the 

Etrect  of  validity  of  a  ffift,  or  the  conveyance  is  made  for  a  a^ood  considera- 

writtendeed     ^  •/  o       ?  .;  ^  o       ^ 

tion,  such  conveyance,  executed  and  delivered,  will  dispense  with 
the  necessity  of  a  delivery  of  the  article  given.  A  gift  in  writing, 
without  good  consideration  and  without  delivery,  is  void. 

§  2618.  Actual  manual  delivery  is  not  essential  to  the  validity 
Delivery,  of  a  gift.     Any  act  which   indicates  a  renunciation   of  dominion 
by  the  donor,  and  the  transfer  of  dominion  to  the  donee,  is  a  con- 
structive delivery. 


k 


f,V 


PT.  2.— TIT.  6.— CHAP.  5.— Title,  etc.  507 


Article  2.— Gifts. 


§  2619.  Impossible,  illegal,  or  immoral  conditions,  are  void,  and   .void  con- 
do  not  invalidate  a  perfect  gift. 

§  2620.  An  insolvent  person  can  not  make  a  valid  gift  to  the    Gifts  vom 

.  .  .  against cred- 

injurj  of  his   existing  creditors;  and  where  possession,  partially  itors,  etc. 
or  entirely,  remains  with  the  donor,  every  parol  gift  is  void  against 
bona  fide  creditors  and  purchasers  without  notice. 

§  2621.  The  delivery  of  personal  property  by  a  parent  into  the  .  Presump- 
exclusive  possession  of  a  child  living  separate  from  the  parent, 
shall  create  a  presumption  of  a  gift  to  the  child ;  this  presump- 
tion may  be  rebutted  by  evidence  of  an  actual  contract  of  lend- 
ing, or  from  circumstances  from  which  such  a  contract  may  be  in- 
ferred. 

§  2622.  The  exclusive  possession  by  a  child  of  lands  belonging  of  lands. 
originally  to  a  father,  without  payment  of  rent,  for  the  space  of 
seven  years,  shall  create  conclusive  presumption  of  a  gift,  and  con- 
vey title  to  the  child,  unless  there  is  evidence  of  a  loan,  or  of  a 
claim  of  dominion  by  the  father  acknowledged  by  the  child,  or 
of  a  disclaimer  of  title  on  the  part  of  the  child. 

§  2623.  If  the  child  be  a  married  daughter,  the  contract  of  loan     Loans  to 

pi'i  T  1  1  married! 

reierred  to  m  the  two  preceding  paragraphs  must   be  assented  to  daughters. 
by  the  husband  to  rebut  the  presumption  of  a  gift. 

§  2624.  A  gift  by  any  person  just  arrived  at  majority,  or  oth-  Gifts  by  per- 
erwise  peculiarly  subject  to  be  aiFected  by  such  influences,  to  his  minors,  etc 
parent,  guardian,  trustee,  attorney,  or  other  person  standing  in  a 
similar  relationship  of  confidence,  shall  be  scrutinized  with  great 
jealousy,  and  upon  the  slightest  evidence  of  persuasion,  or  influ- 
ence toward  this  object  shall  be  declared  void,  at  the  instance  of 
the  donor,  or  his  legal  representative,  at  any  time  within  five  years 
after  the  making  of  such  gift. 

§2625.  If  a  gift  be  made  for  a  specific  purpose,  expressed  or    oiftsforii- 
secretly  understood,  and  such  purpose  is  illegal,  or  from  other  es! 
cause  fails   or  can  not  be  accomplished,  the  donee  shall  hold  as 
trustee  for  the  donor  or  his  next  of  kin. 

§  2626.  A  gift  in  contemplation  of  death  (donatio  causa  mortis)      Donatio 

cat' " "^  ""^  ■^ ** 

must  be  made  by  a  person  during  his  last  illness,  or  in  peril  o^us- 
death,  must  be  intended  to  be  absolute  only  in  the  event  of  death, 
and  must  be  perfected  by  either  actual  or  symbolical  delivery. 
Such  a  gift,  so  evidenced,  may  be  made  of  any  pei^spnal  property 
by  parol,  and  proved  by  one  or  more  witnesses.    ^iu^-^^l^    /^.., 


causa  mor- 


508 


PT.  2.— TIT.  6.— Title,  etc. 


Chapter  6. — Title  by  Escheats  and  Forfeiture. 


CHAPTER    VI. 


OF    TITLE    BY    ESCHEATS    AND    FORFEITURE. 


Section. 

2627.  Escheat. 

2628.  Alien  heirs. 

2629.  Escheator. 

2630.  Duty  of  Ordinary. 

2631.  Proceeds— how  disposed  of. 


Section. 

2632.  Counsel  for  escheator. 

2633.  Claim  within  six  years. 

2634.  Forfeiture. 

2635.  Other  forfeitures. 


§  2627.  Escheat  is  where,  upon  failure  of  heirs,  the  estate  of  an 
Escheat,    intestate  falls  to  the  State.     In  no  other  case  does  an  estate  es- 
cheat in  Georgia. 

§  2628.  If  the  heirs  of  an  intestate,  or  the  devisees  of  land  of 
Aiienhoirs.  a  tostator  be  incapable  of  holding   title  to  lands,  the  Ordinary 
shall  order  the  legal  representative  of  the  estate  to  sell  the  lands, 
and  pay  over  the  proceeds  to  such  devisee  or  next  of  kin. 

§  2629.  The  Clerk  of  the  Inferior  Court  of  each  County  shall 
Escheator.  be  the  cschoator  of  such  County,  and  as  such  shall  be  entitled  to 
administration,  and  shall  apply  for  administration  on  the  estate  of 
Duty.  every  person  dying  in  such  County  intestate,  and  without  known 
heirs  or  next  of  kin ;  or  if  administration  be  already  granted  to 
another,  such  Clerk,  as  escheator,  shall  have  the  right  to  call  such 
administrator  to  account,  and  receive  from  him  the  property,  when 
declared  to  be  escheated  to  the  State. 

§  2630.  The  escheator,  so  soon  as  he  shall  obtain  possession  of 
Duty  of  the  estate  as  administrator,  shall  make  known  to  the  Ordinary  of 

Ordinary.  '' 

the  County  the  fact  that  the  same  has  apparently  escheated  to  the 
State,  whereupon  the  said  Ordinary  shall  pass  an  order  requiring 
the  said  administrator  to  advertise,  by  publication  in  one  or  more 
papers  in  this  and  other  States,  according  to  the  circumstances  of 
Claimants,  cach  casc,  notifying  all  persons  interested  as  next  of  kin  of  such 
deceased  person,  of  the  fact  and  date  of  his  death,  the  amount  of 
the  estate,  and  the  pendency  of  proceedings  to  escheat  the  same ; 
which  publication  shall  be  continued  for  six  months.  If  no  per- 
son shall  appear  and  claim  as  heir  within  twelve  months  from  the 
date  of  the  first  publication,  the  Ordinary  shall  pass  an  order  de- 
claring the  said  property  escheated  to  the  State.  If  any  person 
claims  the  property  alleged  to  be  escheated,  the  claim  shall  be  in- 
terposed, and  tried  as  claims  at  administrators'  sales. 

§2631.  The  proceeds  of  escheated  property  shall  be  paid,  in 


PT.  2. —TIT.  6.— Title,  etc. 


509 


Chapter  7. — Title  by  Prescription. 


each  County,  to  the  Ordinary,  or  other  treasurer  of  the  Educa-    Proceeds— 

^  -,  how  dispo3- 

tional  Fund  of  such  County,  to  become  a  part  of  such  fund.  edof. 

§2632.  In  all  trials  arising  in  reference  to  escheated  property    TheSoiid- 
the  Solicitor  General  shall  be,  ex  officio,  counsel  for  the  escheator.  counsel  for 

escheator. 

§  26o3.  The  next  of  km,  or  heir  of  such  deceased  person,  may,  ciaimwith- 
at  any  time  within  six  years  after  such  order  declaring  the  es-  ^  ^ 
tate  escheated  (or  if  laboring  under  any  disability,  within  three 
years  after  the  removal  of  the  same),  bring  suit  against  the  treas- 
urer of  said  Educational  Fund  for  the  principal  of  the  said  sum 
without  interest,  and  upon  proof  of  his  right  thereto,  may  recover 
the  same  without  costs. 

§  2634,  Forfeiture  to  the  State  for  crime,  is  abolished  in  this    Forfeiture, 
State,  except  so  far  as  the  lien  which  the  State  holds  upon  all  the 
property  of  an  offender  for  the  costs  of  the  prosecution  against 
him.  ,J    2-  c  ' 

§2635.  Forfeitures  are  worked  by  various  acts,  specified  in  dif-     other  for- 

*^  .       feitures.       /* 

ferent  parts  of  this  Code,  for  the  benefit  of  persons  named  therein.  ^ 


t(, 


V 


CHAPTER  VIL 

OF     TITLE     BY     P  R  E  S  0  R  I  P  T  I  0  K. 


Section.    ■ 

2636.  Prescription. 

2637.  Adverse  possession. 

2638.  Actual  possession. 

2639.  Constructive  possession. 

2640.  Possession  for  twenty  years. 

2641.  Possession  for  seven  years. 


Section. 

2642.  Dedication. 

2643.  Prescription  for  personalty. 

2644.  Disabilities. 

2645.  Stops  the  prescription. 

2646.  Other  exceptions, 

2647.  Transfer  of  prescriptive  title. 


Prescrip- 
tion. 


Adverse 
possession. 


§  2636.  Title  by  prescription  is  the  right  which  a  possessor  ac 
quires  to  property  by  reason  of  the  continuance  of  his  possession    s  / 
for  a  period  of  time  fixed  by  the  laws. 

§  2637.  Possession  to  be  the  foundation  of  a  prescription  must 
be  in  the  right  of  the  possessor,  and  not  of  another ;  must  not  have 
originated  in  fraud ;  must  be  public,  continuous,  exclusive,  unin- 
terrupted, and  peaceable,  and  be  accompanied  by  a  claim  of  right. 
Permissive  possession  can  not  be  the  foundation  of  a  prescription, 
until  an  adverse  claim  and  actual  notice  to  the  other  party. 

§2638.  Actual  possession  of  lands  is  evidenced  by  enclosure,  Actual  poa 

,   .         .  .  "^  session. 

cultivation,  or  any  use  and  occupation  thereof  which  is  so  noto- 


^0 


610  PT.  2.— TIT.  6.— Title,  etc. 


Chapter  7. — Title  by  Prescription. 


rious  as  to  attract  tlie  attention  of  every  adverse  claimant,  and  so 
exclusive  as  to  prevent  actual  occupation  by  another. 

§2639.  Constructive  possession  of  lands  is  where  a  person  hav- 
Construct-  iug  paper  title  to  a  tract  of  land  is  in  actual  possession  of  only  a 
Bioo.  part  thereof.     In  such  a  case,  the  law  construes  the  possession  to 

extend  to  the  boundary  of  the  tract.  Hence,  adjacent  owners 
may  be  in  constructive  possession  of  the  same  land,  being  in- 
cluded in  the  boundaries  of  each  tract.  In  such  cases,  no  pre- 
scription can  arise  in  favor  of  either.* 

§  2640.  Actual  adverse  possession  of  lands  by  itself,  for  twenty 
Possession  ycars,  shall  give  good  title  by  prescription  against  every  one,  ex- 
years,         cept  the  State  or  persons  laboring  under  the   disabilities  herein 
after  spedfied. 

§  2641.  Adverse  possession  of  lands,  under  written  evidence  of 
Possession  title,  for  scvcu  ycars,  shall  give  a  like  title  by  prescription.     But 
years.         if  guch  Written  title  be  forged  or  fraudulent,  and  notice  thereof  be 
brought  home  to  the  claimant  before   or   at  the  time  of  the  com- 
mencement of  his  possession,  no  prescription  can  be  based  thereon. 
§  2642.  If  the  owner  of  lands,   either  expressly  or  by  his  acts, 
Dedication,  dedicates  the  same  to  public  use,  and  the  same  is  so  used  for  such 
a  length  of  time  that  the  public  accommodation  or  private  rights 
might  be  materially  affected  by  an  interruption  of  the  enjoyment, 
he  can  not  afterward  appropriate  it  to  private  purposes. 

§  2643.  Adverse  possession   of   personal  property  within    this 
Prescription  State,  for  four  ycars,  shall  give  a  like  title  by  prescription.     No 

for  personal-  ..  ..p,  ,  in 

ty.  prescription  arises  it  the  property  be  concealed  or  removed  out  of 

the  State,  or  otherwise  is  not  subject  to  reclamation. 

§  2644.  No  prescription  works  against  the  rights  of  a  minor 
Disabilities,  during  infancy,  of  a  married  woman  during  coverture,  of  a  per- 
son imprisoned  during  his  confinement,  or  of  an  insane  person  so 
long  as  the  insanity  continues  ;  but  each  of  these  shall  have  a  like 
number  of  years,  after  the  disability  is  removed,  to  assert  his 
claim  and  title  to  realty  or  personalty  against  the  person  pre- 
scribing. 

§  2645.  A  prescription  commenced  shall  cease  against  persons 
stop  the  under  disability  pendino;   the   disability,  but  on  removal  thereof, 

prescription.  .  .  , 

the  prior  possession  may  be  tacked  or  added  to  the  subsequent  pos» 
session  to  make  out  the  prescription. 

*  See  Title  8,  Chapter  8,  Article  1. 


PT.  2.-^TIT.  6.— CHAP.  8.— Title,  etc.  511 

Article  1. — Of  Conveyances  of  Titles  Generally. 

§  2646.  A  prescription  does  not  run  against  an  unrepresented  other  ex- 
estate  until  representation,  provided  the  lapse  does  not  exceed 
five  years  ;  nor  against  a  joint  title  which  can  not  be  severally  en- 
forced, and  a  portion  of  the  owners  labor  under  either  of  the 
foregoing  disabilities  ;  nor  in  cases  of  fraud  debarring  or  deterring 
the  other  party  from  his  action  until  the  fraud  is  discovered ;  nor 
against  a  party  who  commences  his  action  in  time,  but  is  non- 
suited, or  dismisses  for  one  time  and  recommences  within  six 
months. 

§2647.  An  inchoate  prescriptive  title  may  be  transferred  by  a    Transfer  of 

prescriptive 

possessor  to  a  successor,  so  that  the  successive  possessions  may  be  titie. 
tacked  to  make  out  the  prescription. 


CHAPTER   VIII. 

OF    CONVEYANCES    OF    TITLES. 


Article  1. — Generally, 

Article  2. — Covenants  and   Warranty. 

Article  3. — Registration, 


ARTICLE  L 

generally, 


Section. 

2648.  Requisites  of  a  deed. 

2649.  Future  interest. 

2650.  Form  of  deed. 

2651.  Escrows. 

2652.  Deed  of  infant. 

2653.  Adverse  possession,  etc. 


SECfioK-. 

2654.  Deeds  to  pefsonalty, 

2655.  Inconsistent  clauses. 

2656.  Recitals. 

2657.  Estoppel. 

2658.  Ancient  deed. 

2659.  Establishing  copies,  etc. 


§  2648.  A  deed  to  lands  in  this  State  must  be  in  writing,  signed    Eeqtiisites 
by  the  maker,  attested  by  at  least  two  witnesses,  and  delivered  ^^*^^^^^ 
to  the  purchaser,  or  some  one  for  him,  and  be  made  on  a  valua- 
ble or  good  consideration.     The  consideration  of  a  deed  may  be 
always  inquired  into  when  the  principles  of  justice  require  it.*        * 

§  2649.  A  future  interest  or  estate  may  be  conveyed  by  deed ; 

*  See  further  as  to  considerations,  Title  8,  on  contracts,  Chapter  3. 


512  PT.  2.— TIT.  6.— CHAP.  8.— Title,  etc. 


Article  1. — Of  Conveyances  of  Titles  Generally. 


Future  in-  but  it  niust  Operate  to  transfer  the  title  immediately,  or  the  in- 
terest .  *' 
struraent  will  be  testamentary  and  revocable. 

§  2650.  'No  prescribed  form  is  essential  to  the  validity  of  a  deed 
Form  of  to  lands  or  personalty.     If  sufficient  in  itself  to   make   known 
the  transaction  between  the  parties,  no  want  of  form  will  invali- 
date it. 

§  2651.  A  deed  delivered  to  another  to  be  delivered  on  certain 
Escrows,    conditions  to  the  grantee,  is  an  escrow.     Possession  of  the  deed 
by  the  grantee  is  presumptive  proof  of  a  delivery,  but  may  be  re- 
butted. 

§  2652.  The  deed  of  an  infant  is  voidable  at  his  pleasure  on  ma- 
Deed  of  an  iority.     The  makinai;  of  another  deed  at  that  time  voids  the  first, 

infant  ■J   ^      J  a  ^  ? 

without  an  entry  on  the  lands. 

§  2653.  A  deed  to  lands,  made  while  the  same  are  held  adversely 
poss^siionf^  to  the  maker  of  the  deed,  is  not  void. 

§2654.  A  deed  to  personalty  needs  no  attesting  witness  to  make 
Deeds  to  it  valid ;  in   other  respects  the  principles  applicable  to  deeds  to 
lands  are  applicable  to  it.     Generally,  a  deed  is  not  necessary  to 
convey  titles  to  personalty. 

§  2655.  If  two  clauses  in  a  deed  be  utterly  inconsistent,  the 
inconsist-  former  must  prevail,   but  the  intention  of  the  parties,  from  the 

f  Tit  olfinsp^ 

whole  instrument,  should,  if  possible,  be  ascertained   and  carried 
into  effect. 
)  §  2656.  The  recital  in  a  deed  of  the  receipts  of  the  purchase 

Eecitais.    money,  does  not  estop  the  maker  from  denying  the  fact  and  prov- 
ing the  contrary. 

§  2657.  The  maker  of  a  deed  can  not  subsequently  claim  ad- 
Estoppei   versely  to  his  deed  under  a  title  acquired  since  the  making  thereof. 
He  is  estopped  from  denying  his  right  to  sell  and  convey. 

§2658.  A  deed  more  than  thirty  years  old,  having  the  appear- 
Ancient     ance  of  gcnuineness  on  inspection,  and  coming  from  the  proper 
custody,  if  possession  has  been  consistent  therewith,  is  admissible 
in  evidence  without  proof  of  execution. 

§  2659.  If  an  original  deed  be  lost,  a  copy  may  be  established 
Copies  es-  by  the  Superior   Court   of  the   County  where   the  land  lies,  and 
how.         when  so  established,  shall  have  all  the  effect  of  the  original. 


PT.  2.— TIT.  6.— CHAP.  8.— Title,  etc.  513 

Article  2. — Covenants  and  Warranty. 

ARTICLE  11. 

OF    COVENANTS    AND    WARRANTY. 


Section. 

2660.  Covenants  running  with  lands. 

2661.  General  warranty. 


Section. 

2662.  Offer  to  rescind. 


§  2660.  The  purchaser  of  land   obtains  with  the  title,  however    covenants 

^ ,,  _  ..■._^-..  "'""' .......    .-.^        .-  running 

conveyed  to  him,  at  public  or  private  sale,  all  the  rights  which  ^^^^  i^^^^. 
any  former  owner  of  the  land,  under  whom  he  claims,  may  have  ^^^*'-^'^'^  ^ 
had  by  virtue  of  any  covenants  of  warranty  of  title,  or  of  quiet       »<^^rfe''w.i 
enjoyment,  or  of  freedom  from  in^imbrances,  contained  in  the 
conveyance  from  any  former  grantor,  unless  the  transmission  of 
such  covenants  with  the  land  is  expressly  negatived  in  the  cove- 
nant itself. 

§  2661.  A  general  warranty  of  title  against  the  claims  of  all  ^    General 

•^  o       ^  '^  °  t^arranty. 

persons,  includes  in  itself  covenants  of  a  right  to  sell,  and  of  quiet 
enjoyment  and  of  freedom  from  incumbrances. 

§  2662.  An  offer  to  rescind  is  not  necessary  to  a  recovery  upon    offer  to 
a  covenant  of  warranty.     An  offer  by  the  warrantor  to  rescind, 
and  a  refusal  by  the  warantee,  should  be  considered  in  estimating 
damages.* 


ARTICLE  IIL 

OF     REGISTRATION. 


Section. 


2663.  When  and  where  recorded* 

2664.  Attestation. 

2665.  Probate  by  witness. 

2666.  By  other  persons. 

2667.  Record  of  execution. 


Section. 

2668.  Bills  of  sale  to  personalty. 

2669.  Former  acts  continued. 

2670.  Original  deed  evidence. 

2671.  Copy — when  evidence. 


§  2663.  Every  deed  conveying  lands  shall  be  recorded  in  the    when  and 

*teB«!i»i.  1.*^^'  y       a  where     re- 

office  of  the  Clerk  of  the  Superior  Court  of  the  County  where  the  corded. 
land  lies  within  one  year  from  the  date  of  such  deed.  On  failure 
to  record  within  this  time  the  record  may  be  made  at  any  time 
thereafter ;  but  such  deed  loses  its  priority  over  a  subsequent  deed 
from  the  same  vendor,  recorded  in  time,  and  taken  without  no- 
tice of  the  existence  of  the  first. 


•»»t«fl6»i5a>iitti»«'*''3'«!«>'."'«-'<»:?.i-v  »tir. 


*  As  to  damages  for  breach  of  covenants,  see  Part  2,  Title  7,  on  contracts, 
Chapter  10.  For  other  provisions  as  to  warrantees,  see  Chapter  5,  Article  1,  of 
this  Title  on  private  sales. 

33 


514  PT.  2.— TIT.  6.-~CHAP.  8.— Title,  etc. 

Article  3. — Registration. 

§  2664.  To  authorize  the  record  of  a  deed  to  realty  or  person- 
Attestation,  alty  it  must  be  attested,  if  executed  out  of  this  State,  by  a  com- 
missioner of  deeds  for  the  State  of  Georgia,  or  a  Consul  or  Vice 
Consul  of  the  United  States  (the  certificates  of  these  officers,  un- 
der their  seals,  being  evidence  of  the  fact),  or  by  a  Judge  of  a 
Court  of  Record  in  the  State  where  executed,  with  a  certificate  of 
the  Clerk,  under  the  seal  of  such  Court,  of  the  genuineness  of 
the  signature  of  such  Judge.  If  executed  in  this  State,  it  must 
be  attested  by  a  Judge  of  a  Court  of  Record  of  this  State,  or  a 
Justice  of  the  Peace,  or  Notary  Public,  or  Clerk  of  the  Superior 
Court  in  the  County  in  which  the  three  last  mentioned  officers,  re- 
spectively, hold  their  appointments ;  or  if  subsequent  to  its  exe- 
cution the  deed  is  acknowledged  in  the  presence  of  either  of  the 
above  named  officers,  that  fact,  certified  on  the  deed  by  such  offi- 
cer, shall  entitle  it  to  be  recorded. 

§  2665.  If  a  deed  is  neither  attested  by,  nor  acknowledged  be- 
b  wSl?83^  ^^^®  i'ither  of  the  officers  aforesaid,  it  may  be  admitted  to  record 
upon  the  affidavit  of  a  subscribing  witness,  before  either  of  the 
above  nanaed  officers,  testifying  to  the  execution  of  the  deed  and 
its  attestation  according  to  law.  A  substantial  compliance  with 
this  requisition  shall  be  held  sufficient  in  the  absence  of  all  suspi- 
cion of  fraud. 

§  2666.  If  the  subscribing  witness,  or  witnesses,  be  dead,  or  lu- 

persona^*^^'^  natic,  or  removed  without  the  State,  or  otherwise  incapacitated  to 

make  the  affidavit,  the  affidavit  of  a  third  person  to  the  fact,  and 

to  the  genuineness  of  the  handwriting  of  the  subscribiDg  witness, 

or  witnesses,  shall  be  sufficient  to  admit  the  deed  to  record. 

§  2667.  A  purchaser  at  SheriiF's  sale  may  have  the  execution 

Eecqrd  of  under  which  the  property  was  sold  recorded  with  his  deed,  together 

with  all  the  entries  on  said  execution ;  and  in  the  event  of  the 

loss  or  destruction  of  the  original  execution,  a  copy  of  such  record 

shall  be  admitted  in  evidence. 

§  2668.  Deeds  and  bills  of  sale  to  personalty  may  be  recorded 
Biiisofsaie  in  the  office  of  the   Clerk  of  the   Superior  Court  of  the   County 

to  persoaal-  .  . 

ty.  where  the  maker  resides.     Such  record  being  permissive  and  not 

compulsory,  is  not  constructive  or  implied  notice  to  any  one :  it 
is  otherwise,  where  the  law  requires  the  record  to  be  made,  and  it 
is  properly  made. 

§  2669.  All  deeds  heretofore,  by  any  act,  declared  valid,  or 
where  improperly  recorded,  the  record  has  been  declared  valid  or 


PT.  ^.— TIT.  e.— CHAP.  8.— Title,  etc. 


515 


Article  3. — Kegistration. 


BuSicient,  shall  coriiiuue  uiiuer  tliis  Code  In  the  same  situation  as 
if  the  original  acts  remained  in  force. 

§  2670.  A  registered  deed  shall  be  admitted  in  evidence  in  any 
Court  in  this  State  without  further  proof,  unless  the  maker  of  the 
deed,  or  one  of  his  heirs,  or  the  opposite  party  in  the  cause,  will 
file  an  aiSdavit  that  the  said  deed  is  a  forgery,  to  the  best  of  his 
knowledge  and  belief — when  the  Court  shall  arrest  the  cause  and 
require  an  issue  to  be  made  and  tried  as  to  the  genuineness  of  the 
alleged  deed. 

§  2671.  If  the  original  deed  be  lost,  a  copy  from  the  registry, 
if  duly  recorded,  shall  be  admitted  in  evidence  whenever  the  Court 
i-3  satisfied  of  the  fact  of  loss  or  destruction— and  to  this  fact  the 
party  may  be  a  witness.* 


Former  acta 
Continued. 


Original 
dacd  evi- 
dence. 


Issue  made 
and  tried. 


Copy — when 
evidence. 


ChapI'eii 
Chaptee 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 
Chapter 


TITLE    VIL 


Of       CONTRACTS. 


1.- 

2.- 
3.- 
4.- 
5.- 

6." 
7.- 
8.- 
9.- 


Greneral  Principles, 
Of  the  Parties, 
'Of  the  Consideration. 
^  Of  Illegal  and  Void  Contracts^ 
■Of  Construction  of  Contracts, 
-Of  Court  Contracts. 

^Of  Bills  of  Exchange,  Promissory  Notes^  etc, 
-Of  Contracts  of  Insurance^ 
-Of  Defenses  to  Contracts. 


Chapter  10.— ~Qf  Breach  and  l)amages. 


*  As  to  deeds  to  churches  and  other  societies,  see  Act  of  1805,  Cobb's  new 
Digest,  p.  899 ;  and  Act  of  1856,  Laws  of  1855-6,  p.  272. 


516  PT.  2.— TIT.  7.— Contract 

Chapter  1. — General  Principles. 


CHAPTER   I. 

e^EHERAL      PRINCIPLES. 


2680.  Conditions  precedent,  etcr 

2681.  Void  conditions. 

2682.  Novation. 

2683.  Entire  or  severable. 

2684.  Apportionment. 

2685.  Assent. 

2686.  Contract  by  letter. 


Section. 

2672.  What  is  a  contract. 

2673.  Executed  and  executory. 

2674.  Of  record. 

2675.  Specialty. 

2676.  Simple  contracts. 

2677.  Parol  contracts. 

2678.  Essentials. 

2679.  Absolute  or  conditional. 

§  2672.  A  contract  is  an  agreement  between  two  or  more  par- 
contract,      ties  for  the  doing  or  not  doing  of  some  specified  thing. 

§  2673.  An  executed  contract  is  one  in  which  all  the  parties 
Executed  or  thereto  havo  performed  all  the  obligations  which  they  have  oriei= 

executory.  ■•■  ...  . 

nally  assumed.  An  executory  contract  is  one  in  which  something 
remains  to  be  done  bj  one  or  more  parties. 

§  2674.  A  contract  of  record  is  one  which  has  been  declared 
Of  record,  and  adjudicated  by  a  Court  having  jurisdiction,  or  which  is  en- 
tered of  record  in  obedience  to,  or  in  carrying  out,  the  judgments 
of  a  Court. 

§  2675.  A  specialty  is  a  contract  under  seal,  and  is  considered 
Specialty,  "j^y  the  law  as  entered  into  with  more  solemnity,  and  consequently 
of  higher  dignity,  than  ordinary  simple  contracts. 

§  2676.    All   other   contracts   than    those  specified   above,  are 

Simple         ^  .  r  ? 

contracts,     termed  simple  contracts. 

§  2677.  Simple  contracts  may  be  either  in  writing,  or  rest  only 
Parol  con- in  words,  as  remembered  by  witnesses.     Parol  contracts  under 

tracts.  '  '' 

this  Code  shall  include  only  the  latter. 

§  2678.  To  constitute  a  valid  contract,  there  must  be  parties 
Essentials,  able  to  coutract,  a  consideration  moving  to  the  contract,  the  as- 
sent of  the  parties  to  the  terms  of  the  contract,  and  a  subject- 
matter  upon  which  it  can  operate. 
%'\J%       §  2679.  A  contract  may  be   absolute   or  conditional.     In  the 
colKiitloflar  former,  every  covenant  is  independent,  and  the  breach  of   one 
does   not  relieve  the  obligation  of  another.     In  the  latter,   the 
covenants  are  dependent  the  one  upon  the  other,  and  the  breach 
of  one  is  a  release  of  the  binding  force  of  all  dependent  cove- 
nants.    The  classification  of  every  contract  must  depend  upon  a 
rational  interpretation  of  the  intention  of  the  parties. 


PT.  2.— TIT.  T.— Contracts.  51T 

Chapter  1. — General  Principles. 
§  2680.  Conditions  may  be  precedent  or  subsequent.     In  the    Conditions 

precedent 

former,  the  condition  must   be  performed  before  the  contract  be-  and    snbse- 

quent. 

•comes  absohite  and  obligatory  upon  the  other  party.     In  the  lat-    <r.^f 
ter,  the  breach  of  the  condition   may  destroy  the  party's  rights 
under  the  contract,  or  may  give  a  right  to  damages  to  the  other  ^'^ 
party,  according  to   a  true   construction  of  the  intention  of  the 

parties.     /    v..'it  <.  i.  f^-/^--    ?*v^   '/  .       \''    '  .^ 

§  2681.  Impossible,  immoral,  and  illegal  conditions,    arc  void,    voia  coa- 

.        .  ^  ditions. 

.and  are  binding  upon  no  one. 

§  2682.  One  simple  contract  as  to  the  same  matter,  and  on  no    Noi^ations. 
TiGW  consideration,  does  not  destroy   another  between  the  same    f^^-f-. 
parties ;  but  if  new  parties   are  introduced  by  novation,  so  as  to 
change  the  person  to  whom  the  obligation  is  due,  the  original  con- 
tract is  at  an  end.  , 

§  2683.  A  contract  may  be  either  entire  or  severable.     In  the    Entire  or 

*'  severable. 

former^  the  whole  contract  stands  or  falls  together.  In  the  lat- 
ter, the  failure  of  a  distinct  part  does  not  void  the  remainder. 
The  character  of  the  contract  in  such  case  is  determined  by  the 
intention  of  the  parties. 

§  2684.  In  some  cases,  even  an  entire  contract  is  apportionable ;     Appoint 
as  where  the  price  to  be  paid  is  not  fixed,  or  is  by  the  contract 
itself  apportioned  according  to  time— -so  if  the  failure  of  one  party 
to  perform  is  caused  bj  the  act  of  the  other,  the  contract  may 
still  be  apportioned. 

§  2685.  The  consent  of  the  parties  being  essential  to  a  contract,    Assent. 
until  each  has  assented  to  all  the  terms,  the  contract  is  incom-     ^    *       ' 
plete ;    until  assented   to,  each  party  may  withdraw  his  bid  or 
proposition,  unless  a  given  time  is  agreed  on  in  which  the  other 
party  may  assent. 

§  2686.  If  the  proposition  is  made  by  letter,  the  acceptance  by     Contract 
written  reply  takes  effect  from  the  time  it  is  sent,  and  not  from 
the  time  it  is  received  ;    hence  the  proposer  can  not  withdraw  in 
the  meantime.     If  the  la^tter  eoiitains  alternative  propositions, 

the  party  receiving  may  elect.*  ;  / 

* 

*As  to  the  contracts  wliieh,,  to  be  binding,  must  be  in  writing,  see  Title  3, 
Chapter  3,  Article  1. 


ilT ':''^      •     '^'^ 


518 


PT.    2.— TIT.   T.—CONTBACTS. 


nviaTT.fpT'  o n,f  +Vio  T>QTf;oo 


CHAPTER   II 


F      THE.     PARTIES 


Sectiojt. 

2887.  Personal  disabilities. 

2688.  Feme  covert. 

2689.  Infant — when  bound. 

2690.  Personal  exemption. 

2691.  Infants  doing  business,  etc. 


Section. 

2692.  Marriage  contracts  of  infants. 

2693.  Insane  persons. 

2694.  Incapacity  may  be  pleaded. 

2695.  Drunk  aixl. 

2696.  Lex  loci  eontractors. 


Personal  COntract 
disabilities. 

ards. 


§  2687.  The  following  persons  can  not  generally  make  a  valid 
Married  women,  infants,   insane  persons,  and  drunk- 


I^eme   co 
vert. 


^ 


§  2688.  The  contracts  of  a  married  woman  are  generally  void.^ 
§  2689.  The  contracts  of  an  infant  under  twenty-one  years  of 
Infant—  affo  are  void,  except  for  necessaries  ;   and  for  necessaries,  they  are 

whenbonnd.  .,  ..  7./ 

not  valid  unless  the  party  furnishing  them  proves  that  the  parent 
or  guardian  fails  or  refuses  to  supply  sufficient  necessaries  for  the 
infant.  If,  however,  the  infant  receives  property,  or  other  valua- 
ble consideration,  and  after  arrival  at  age  retains  possession  of 
such  property,  or  enjoys  the  proceeds  of  such  valuable  considera- 
tion, such  a  ratification  of  the  contract  shall  bind  him. 

§  2690.  The  exemption  of  the  infant  is  a  personal  privilege. 
Personal  ex-  The  party  Contracting  with  him  can  not  plead  it,  unless  he  was 

emption.        .  . 

ignorant  of  the  fact  at  the  time  of  the  contract ;  nor  can  third 
persons  avail  themselves  of  it  as  a  defense. 

§  2691.  If  an  infant,  by  permission  of  his  parent  or  guardian, 
infentsdo-  or  lb  J  permission  of  law,  practices  any  profession  or  trade,  or  en- 
etc.     °    '  gages  in  any  business  as  an  adult,  he  shall  be  bound  for  all  con- 
tracts connected  with  such  profession,  trade,  or  business. 
Marriage      §  2692.  Marriage   contracts  and  settlements  made  by  infants, 
infanTs!  ^  ^  but  of  lawful  age  to  marry,  are  binding,  as  if  made  by  adults. 

§  2693.  An  insane  person  can  not  contract  prior  to  commission 
Insane  per-  sued  out  and  guardianship  appointed.  A  lunatic  may  contract 
during  lucid  intervals  ;  after  guardianship,  he  can  not,  nor  can 
a  person  restored  to  sanity  contract  until  the  guardianship  is  dis- 
solved. Necessaries  "furnished  an  insane  person  may  be  recovered 
upon  the  same  proof  as  if  furnished  to  infants. 
inJapLuy!^^      §  2694.  A  man  may  plead  his  own  incapacity  to  contract. 


sons. 


f  For  the  exceptions  to  this  rule^  s.ee  Part  2»  Title  2»  Chapter  1>  Article  ^ 


y 


PT.  2.— TIT.  7.--C0NTRACTS. 


519 


Chapter  3. — Of  the  Consideration. 


§  2695.  A  drunkard,  when  actually  intoxicated  to  such  an  ex-  Drunkard, 
tent  as  to  deprive  him  of  reason,  can  make  no  valid  contract  with 
any  one  cognizant  of  the  fact  of  his  condition.  If  the  party  con- 
tracting was  at  all  instrumental  in  producing  the  state  of  intoxi- 
cation, the  contract  is  invalid,  however  partial  the  intoxication 
may  be. 

§  2696.  Sometimes  persons  are  capable  to  contract  by  the  law 
of  the  place  of  the  contract,  but  incapable  under  the  law  of  this 
State.  In  such  case,  generally,  the  law  of  the  place  of  the  con- 
tract is  enforced,  unless  the  circumstances  show  an  attempt  to 
evade  the  law  of  this  State,  or  the  contract  is  of  such  a  character 
as  contravenes  the  policy  of  our  law.*        H  «XC  ^i  i'VtiM'i^'U  ^    t  ^' 


lex  loci 
contractors. 


CHAPTER  III. 


OF     THE     CONSIDERATION. 


Section. 

2697.  Nudum  pactum. 

2698.  Valid  consideration. 

2699.  Good  and  valuable. 

2700.  Inadequacy  of  consideration. 

2701.  Mistake. 


Section. 

2702.  Mutual  promises. 

2703.  Good  in  part  and  bad  in  part. 

2704.  Impossible  consideration. 

2705.  Consideration  moving  from  another 

2706.  Failure  of  consideration. 


Presump- 
tion of  con- 


§  2697.  A  consideration  is  essential  to  a  contract  which  the  law  Nudum 
will  enforce.  An  executory  contract,  without  such  consideration, 
is  called  nudum  pactum^  or  a  naked  promise.  In  some  cases,  a 
consideration  is  presumed,  and  an  averment  to  the  contrary  will 
not  be  received.  Such  are  generally  contracts  under  seal,  and 
negotiable  instruments  alleging  a  consideration  upon  their  face,  in 
the  hands  of  innocent  holders  without  notice,  who  have  received  sideratioa,^ 
the  same  before  dishonored. 

§  2698.  A  consideration  is  valid  if  any  benefit  accrues  to  him    Y&wii  con- 
who  makes  the  promise,  or  any  injury  to  him  who  receives  the  ^'^®^^*^°^' 
promise. 

§  2699.   Considerations  are  distinguished  into  good  and  valua-    qoo^  and 
ble.     A  good  con^deration  is  such  as  is  founded  on  natural  (Jujty  '^^^^^^^®- 
and  affection,  or  on  a  strong  moral  obligation.     A  valuable  con- 
sideration is  founded  on  money,  or  something  convertible  to  money. 


*  See  General  Preliminary  Principles. 


520 


PT.  2.— TIT.  7.— Contracts. 


Chapter  3. — Of  the  Consideration. 


Inadequacy 
of  consider- 
ation. 


1/ 


or  having  a  value  in  money,  except  marriage,  whicli  is  a  valuable 
consideration. 

§  2700.  Mere  inadequacy  of  consideration  alone  will  not  void 
a  contract.  If  the  inadequacy  be  great,  it  is  a  strong  circum- 
stance to  evidence  fraud ;  and  on  a  suit  for  damages  for  breach 
of  the  contract,  the  inadequacy  of  the  consideration  will  always 
enter  as  an  element  in  estimating  the  damages. 

§  2701.  If  the  consideration  be  founded  in  a  mistake  of  fact  or 
of  law,  the  promise  founded  thereon  can  not  be  enforced. 

§  2702.  A  promise  of  another  is  a  good  consideration  for  a 
promise.  So  in  mutual  subscriptions  for  a  common  object — the 
promises  of  the  others  is  a  good  consideration  for  the  promis, 
of  each. 

§  2703.  If  the  consideration  be  good  in  part  and  void  in  parte 
the  promise  will  be  sustained  or  not,  according  as  it  is  entire  oe 
severable,  as  hereinafter  prescribed.  But  if  the  consideration  br 
illegal  in  whole  or  in  part,  the  whole  promise  fails. 

§  2704.  An  impossible  consideration  is  insufficient  to  sustain 
any  promise ;  otherwise,  if  the  consideration  be  possible  but  im- 
probable. 

§  2705.  If  there  be  a  valid  consideration  for  the  promise,  it 
matters  not  from  whom  it  moved :  the  promisee  may  sustain  his 
action,  though  a  stranger  to  the  consideration. 

§  2706.  If  the  consideration,  apparently  good  or  valuable,  fails 
either  wholly  or  in  part  before  the  promise  is  executed,  such  fail- 
ure may  be  pleaded  in  defense  to  the  promise.  If  it  be  par- 
tial, an  apportionment  must  be  made  according  to  the  facts  of 
each  case. 


Mistake. 

Mutual 
promises. 


Good  in  part 
and  bad  in 
part. 


Impossible 
considera- 
tion. 


Considera- 
tion mov- 
ing from 
another. 


Failure 
of  consider- 
ation. 


CHAPTER    17. 

OF     ILLEGAL     AND     VOID     CONTRACTS. 


Section. 

2707.  Void. 

2708.  Against  public  policy. 

2709.  Fraud. 


Section. 

2710.  Duress. 

2711.  Gaming  contracts. 


§  2707.  A  contract  to  do  an  immoral  or  illegal  thing  is  void. 
Void.     If  the  contract  be  severable,  that  which  is  legal  will  not  be  annulled 
by  that  which  is  illegal.      ^         j.  <  -  ^ 


>f .  .4  u..  (XXL 


2_/ 


ri 


PT.  2.— TIT.  7.— Contracts. 


521 


Chapter  4. — Illegal  and  Void  Contracts. 


§  2708.  A  contract  which  is  as^ainst  the  policy  of  the  law  can  Againstpub 

_..„  o  i.  ,j  ^  lie  policy. 

not  be  enforced ;    such  are  contracts   tending  to  corrupt  legisla- 
tion or  the  judiciary,  contracts  in  general  in  restraint  of  trade,     ' 


>; 


Frattd. 


n 

Duress 


s.       f^ 


contracts  to  evade  or  oppose  the  revenue  laws  of  another  country, 
wagering  contracts,  contracts  of  maintenance  or  champerty.       (1)^^ 

§  2709.  Fraud  voids  all  contracts.  Fraud  may  not  be  pre-  •"™^^-.  f^l  ^  i 
sumed,  but  being  in  itself  subtle,  slight  circumstances  ^^J  he  ^£;^  ^^  ,^. 
sufficient  to  carry  conviction  of  its  existence. 

§2710.  The  free  assent  of  the  parties  being  essential  to  a  valid 
contract,  duress,  either  of  imprisonment  or  by  threats,  or  other 
arts,  by  which  the  free  will  of  the  party  is  restrained,  and  his 
consent  induced,  will  void  the  contract.  Legal  imprisonment,  if 
not  used  for  illegal  purposes,  is  not  duress. 

§  2711.  Gaming  contracts  are  void,  and  all  evidences  of  debt 
or  incumbrances  or  liens  on  property,  executed  upon  a  gaming 
consideration,  are  void  in  the  hands  of  any  person.  Money  paid 
or  property  delivered  up,  upon  such  consideration,  may  be  recov-  smtstore- 
ered  back  from  the  winner  by  the  loser,  if  he  shall  sue  for  the 
same  in  six  months  after  the  loss,  and  after  the  expiration  of  that 
time,  it  may  be  sued  for  by  any  person,  at  any  time  within  four 
years,  for  the  joint  use  of  himself  and  the  Educational  Fund  of 
the  County.* 


Gaming 
contracts. 


CHAPTER   V. 

OF     CONSTRUCTION    OF     CONTRACTS. 


Section. 

2712.  By  whom  construed. 

2713.  Intention  of  parties. 


Section. 

2714.  Or  of  one  party  known  to  the  other. 

2715.  Rules  of  interpretation. 


§  2712.  The  construction  of  a  contract  is  a  question  for  the    By  whom 
Court.     Where  any  matter  of  fact    is  involved  (as   the  proper 
reading  of  an  obscurely  written  word),  the  jury  should  find  the 
fact. 

§  2713.  The  cardinal  rule  of  construction  is  to  ascertain  the  in-    intention 
tention  of  the  parties.     If  that  intention  be  clear,  and  it  contra- 

*  As  to  contracts  void  against  creditors,  see  Part  2,  Title  3,  Chapter  2,  Ar- 
ticle 2 ;  and  against  purchasers,  see  Part  2,  Title  6,  Chapter  5,  Article  1. 


522  PT.  2.— TIT.  7.— Contracts. 

Chanter  5. — Construction  of  Contracts. 


venes  no  rule  of  law,  and  sufficient  words  be  used  to  arrive  at  the 
intention,  it  shall  be  enforced,  irrespective  of  all  technical  or  arbi- 
trary rules  of  construction. 

§  2714.  The  intention  of  the  parties  may  differ  among  them- 
Or  of  one  selvcs.     In  such  case,  the  meaning  placed  on  the  contract  by  one 

party  known  /  o  i  ./ 

to  the  other,  party,  and  known  to  be  thus  understood  by  the  other  party,  at  the 
time,  shall  be  held  as  the  true  meaning. 

§2715.  The  following  rules  among  others  may  aid  in  arriving 

Kulesofin-  ,  .  .  <, 

terpretation.  at  the  true  interpretation  oi  contracts  : 
i^^^  1.  Parol  evidence  is  inadmissible  to  add  to,  take  from  or  vary  a 

Parol  evi-  written  contract.     All  the  attendant  and  surroundins^  circumstan- 

dence,  etc.  ... 

^  ^^  /,    ces  may  be  proved,  and  if  there  is  an  ambiguity,  latent  or  patent, 

"^Xi  ^     ^*  ^^y  ^®  explained ;  so  if  a  part  of  a  contract  only  is  reduced  to 

d  *^^   writing  (such  as  a  note  given  in  pursuance  of  a  contract),   and  it 

'i^''  n  *)-^"  *  is  manifest  that  the  writing  was  not  intended  to  speak  the  whole 

^ .  contract,  then  parol  evidence  is  admissible. 

2.  Words  generally  bear  their  usual  and  common  signification ; 
Meaning  of  but  technical  words,  or  words  of  art,  or  used  in  a  particular  trade 

words.  ^  '  '  ^ 

or  business,  will  be  construed,  generally,  to  be  used  in  reference 
to  this  peculiar  meaning.  The  local  usage  or  understanding  of 
a  word  may  be  proved  in  order  to  arrive  at  the  meaning  intended 
by  the  parties. 

3.  The  construction  which  will  uphold  a  contract  in  whole  and 
trS'^to^^be  i^  Gvery  part,  is  to  be  preferred,  and  the  whole  contract  should 
considered,  ^g  looked  to  in  arriving  at  the  construction  of  any  part. 

4.  If  the  construction  is  doubtful,  that  which  goes  most  strongly 
^^Tn  ?t  ^gO'^^st  t^®  party  executing  the  instrument,   or  undertaking  the 

promisee,     obligation,  is  generally  to  be  preferred. 

5.  The  rules  of  grammatical  construction  usually  govern,  but 
icS'^^T^n*-  *^  effectuate  the  intention  they  may  be  disregarded ;  sentences  and 
struction.     -^ords  may  be  transposed,   and  conjunctions   substituted  for  each 

other.  In  extreme  cases  of  ambiguity,  where  the  instrument,  as 
it  stands,  is  without  naeaning,  words  may  be  supplied. 

6.  When  a  contract  is  partly  printed  and  partly  written,  the 
Printing.   Jitter  part  is  entitled  to  most  consideration. 

Implied       7.  Estatcs  and  grants,  by  implication,  are  not  favored. 

8..  Time  is  not  generally  of  the  essence  of  a  contract ;  but  by 
Time.       exprcss  Stipulation  or  reasonable  construction,  it  may  become  so. 


PT.  2.— TIT.  7.— Contracts. 


52B 


ChaDter  6. — Court  Contracts. 


CHAPTER     YI. 


OF     COURT     CONTRACTS 


Section. 

2716.  Contract — where  filed. 

2717.  Its  designation  and  effect. 

2718.  Issues  of  fact — how  tried. 

2719.  Contract — how  enforced. 

2720.  Order — how  carried  out. 

2721.  Damages — how  awarded. 

2722.  Rescission  of  contract. 

2723.  Rule  of  decision. 


Section. 

2724.  Construction. 

2725.  Expiration  of  term. 

2726.  Power  of  Court  continues. 

2727.  Suit  on  contract. 

2728.  Contract  set  aside  for  fraud. 

2729.  Execution  of  contract. 

2730.  Remedy  cumulative  only. 


"•i  .1. 


§  2716.  [AfiJ  ■^rilteB  agreement  for  a  term  of  service  not  ex- 
ceeding one  year,  or  for  the  lease,  rent,  or  occupation,  of  lands  or 
tenements,  not  exceeding  a  like  term,  may  at  the  option  of  the 
parties  be  filed  in  the  office  of  the  County  Court — theparties,  or 
either  of  them,  retaining  a  duplicate,  if  they  so  desire.]  (a) 

§  2717.  [An  agreement  thus  filed,  shall  be  known  as  a  Court 
contract,  and  shall  have  the  force  and  effect  of  a  judgment  or  de- 
cree, for  the  specific  performance  of  its  terms,  both  as  to  express 
stipulations  and  the  plain  duties  and  obligations  resulting  there- 
from, by  implication  of  law.]  (a) 

■-df'  §  2718.  [All  issues  of  fact  arising  under  a  Court  contract,  by 
the  provisions  of  this  Chapter,  shall  be  tried  by  a  j»iry,  when 
either  party  demands  it.]  (a) 

§  2719.  [Performance  of  the  stipulations,  duties,  and  obligations 
of  a  Court  contract,  may  from  day  to  day,  and  from  time  to  time, 
be  enforced  by  the  County  Court,  by  orders  entered  on  the  min- 
utes for  that  purpose.]  (a) 

§  2720.  [Such  orders  may  be  carried  into  effect  by  attachment 
for  contempt,  or  any  other  writ,  execution,  or  process,  known  to 
the  law  and  used  in  any  Court  for  affording  redress  to  parties,  or 
for  maintaining  its  own  authority  and  dignity.]  (a) 

§  2721.  [Damages  for  a  breach  of  a  Court  contract  may  be 
awarded  by  similar  orders,  and  payment  thereof  enforced  by  like 
means  as  those  specified  in  the  preceding  Section.]  (a) 

§  2722.  [At  the  election  of  the  party  aggrieved,  the  contract 
may  be  declared  rescinded,  and  such  party  restored  to  his  original 
situation  as  nearly  as  possible.]  (a) 


Agreement 
—where  filec[ 


Its  desig- 
nation and 
effect. 


Issues- 
how  tried. 


Perform- 
ance. 


Orders — 
how  carried 
out. 


Damages. 


Eescisaion. 


(a)  Acts  of  1865-6.  pp.  74-5. 


L 


524  PT.  2.— TIT.  7.— Contracts. 


Chapter  6. — Court  Contracts, 


§  2723.  [Any  other  order  requisite  to  the  attainment  of  substantial 
Euie of de- justice,  in  the  particular  case,   may  also   be  passed  and  enforced  j 
the  Court  always  keeping  in  view,   as  cardinal  points,  that  each 
party  is  to  be  compelled  to  perform  his  contract,  or  to  forfeit,  for 
any  material  default,  the  whole   or  a  part  of  its  benefits,  and  in 
Construe-  addition  thereto  to  make  full  and  fair  compensation  to  the  oppo- 
site party  for  any  damage  occasioned  by  a  breach  thereof.]  (a) 
§  2724.  [In  construing  the  contract,  time  is  to  be  regarded  as  of 


Expiration  the  osscnce  of  the  same.     Whatever  is  stipulated  to  be  done  by 
either  party,  must  be  done  at  the  very  time  or  times  specified,  un- 
less rendered  impossible  by  the  act  of  God,  or  the  act  of  law.]  (a) 
§  2725.  [At  the  expiration  of  the  term  fixed  by  the  contract. 
Power  of  the  relation  established  thereby,  shall  cease   without  notice  to  or 
from  either  party.]  (a) 

§  2726.  [The  power  of  the  County  Court,  by  appropriate  orders, 
to  compel  payments,  or  to  award  and  collect  damages,  or  to  place 
the  parties  in  their  former  situation,  shall  nevertheless  continue, 
subject  only  to  the  condition  that  any  order  for  one  or  more  of 
Suit  on  these  purposes  shall  be  applied  for  within  two  months  after  the  ex- 
piration  of  the  time  limited  in  the  contract  for  its  full  and  final 
'    performance.]  (a) 

§  2727.  [Breeches  not  proceeded  for  as  set  forth  in  the  preceding 
When  set  Section,  may  be  the  subject  of  regular  suit  or  action  at  any  time 
within  the  statutory  period  applicable  to  similar  actions  on  other 
contracts.]  (a) 

§  2728.  [A  Court  contract  may  be  set  aside  in  the  County  Court, 
Execution  for  fraud,  by  a  direct   proceeding  for  that  purpose,  or  it  may  be 
collaterally  impeached  for  fraud,    either  in  that  Court  or  in  any 
other.]  (a) 

§  2729.  [No  Court  contract  shall  bind  any  party  who  signs  the 

same  by  making  his  mark,  unless   said  writing  in  its  attestation 

clause,  or  elsewhere,  specify  that  it  was  read  over  in  the  hearing 

of  such  party,  or  unless  it  is  made  to  appear  by  direct  and  posi- 

Eemedy  tive  evidcncc  that  the  party  could  easily  read  ordinary  writino;  for 

cumulatiye.  r        J  J  j  o 

himself,  or  that  the  instrument  in  question  was,  in  fact,  fully  and 
correctly  read  to  him  at  the  time  of  its  execution.]  (a) 

§  2730.  [The  remedy  hereinbefore  provided  for  in  the  County 
Court,  on  Court  contracts,  is  not  exclusive,  but  cumulative  only.]  (a) 

(a)  Acts  of  1865-^6,  pp.  1^^. 


PT.  2.— TIT.  T.— CHAP.  7.— Contracts.  525 


Article  1.— Negotiable  Papers,  and  how  Transferred. 


CHAPTER    VII. 

OF    BILLB    OF    EXCHANGE,    AND    PROMISSORY    NOTES,    AND 
OTHER    NEGOTIABLE    INSTRUMENTS. 


Article  1. — Of  Negotiable  Papers^  and  how  Transferred. 
Article  2.—^0f  Indorsers,  Notice  and  Protest. 
Article  3. — 'Of  the  Rights  of  Holders. 
Article  4. — Of  Damages. 


ARTICLE  I. 

OF   NEGOTIABLE   PAPERS,   AND   HOW   TRANSFERRED. 


Section. 

2731.  Bill  of  exchange. 

2732.  Promissory  note. 

2733.  Negotiable. 

2734.  Bonds,  etc.,  negotiable. 


Section. 

2735.  Limited  indorsement. 

2736.  Implied  warranty. 

2737.  Bill,  etc.,  payable  out  of  a  fund. 


§2731.  A  bill  of  exchange  is  an  order  by  one  person,  called  Bin  of  e^^ 
the  drawer  or  maker,  to  another,  called  the  drawee  or  acceptor,  to 
pay  money  to  another  (who  may  be  the  drawer  himself),  called 
the  payee,  or  his  order,  or  to  the  bearer.  If  the  payee,  or  a  Parties. 
bearer,  transfers  the  bill  by  indorsement,  he  then  becomes  the  in- 
dorser.  If  the  drawer  or  drawee  resides  out  of  this  State,  it  is 
then  called  a  foreign  bill  of  exchange. 

§  2732.  A  promissory  note  is  a  written  promise  made  by  one  or  j.y  ^0°^™^®^°^ 
more  to  pay  to  another,  or  order,  or  bearer,  at  a  specified  time,  a 
specific  amount  of  money,  or  other  articles  of  value.  If  made 
by  more  than  one,  it  maybe  a  joint  promise,  or  joint  and  several; 
in  which  case  each  is  bound  for  the  whole  separately,  at  the  option 
of  the  holder.  If  the  payment  is  in  articles  other  than  money,  spScs!^^^ 
and  is  not  punctually  made,  the  holder  may  recover  the  value  of  i,,      '-^    > 

such  articles  at  the  time  the  note  was  due,  at  the  place  where  it     /  / 

was  payable,  if  a  specific  place  is  mentioned ;  otherwise,  at  the 
place  where  it  was  made,  with  lawful  interest  thereon. 

§  2733.  A  promissory  note  is  negotiable  by  indorsement  of  the  ^'©gotiabie. 
payee  or  holder,  or,  if  payable  to  bearer^  by  transfer  and  delivery 
only.     The  maker  may  restrain  the  negotiability  thereof  by  ex- 
pressing such  intention  in  the  body  of  the  instrument. 


526  PT.  2.«-TIT.  7.— CHAR  7.— Contracts. 


Article  1.-— Negotiable  Papers^  and  how  Transferred. 


§ 2784.  Ail  bonds,  specialties,  or  other  contract  in  AVriting  for 
Bon^s,  etc.,  the  payment  of  money,  or  any  article  of  property,  and  all  judg- 
ments and  executions  from  any  Court  in  this  State,  are  negotia- 
ble hj  indorsement,  or  written  assignment,  in  the  same  manner  as 
bills  of  exchange  and  promissory  notes.  No  indorsement  or  as- 
signment need  be  under  seal. 

§  2735.  Any  person  indorsing  or  transferring   a  negotiable  in- 
Limited  in-  strument,  may  limit  his   own  liability  upon   such  indorsement  or 
transfer  by  express  restrictions  therein ;   and  the  assignor  of  a 
><>-t-/  '  judgment  shall  not  be  held  liable  as  indorser,  unless  in  such  as^ 

v/-^/j^t  /^ ''   signment  he  expressly  contracts  so  to  be» 

/^f^f  '  §2736.  Every  transferrer  of  a  negotiable  instrument,  whether 

/'  Implied  by  indorsement  or  delivery,  warrants  (unless  othervfise  agreed  by 
the  parties)  that  he  is  the  lawful  holder  and  has  a  right  to  sell, 
that  the  instrument  is  genuine,  and  that  he  has  no  knowledge  of 
any  fact  which  proves  the  instrument  to  be  worthless,  either  by 
insolvency  of  the  maker,  payment,  or  otherwise. 

§  2737.  An  acceptance  of  a  bill  or  order  may  be  conditioned  or 
Bill,  etc,  payable  out  of  a  certain  fund;  and  in  all  cases  the  acceptor  shall 

payable   out  . 

©fa fund,     have  a  lien  on  the  funds  or  property  of  the  drawer  in  his  hands, 
Lien.       for  the  payment  of  the  acceptances  in  his  behalf.* 


ARTICLE  II. 

01^     INDORSEES,    NOTICE     AND     PROTEST. 


Section. 

2738.  Contract  of  indorsei*. 

2739.  Protest  and  notice. 

2740.  Indorser  sued  with  maker. 


Section. 

2741.  Holidays  excepted. 

2742.  Days  of  grace* 


§  2738.  In  ordinary  indorsements,  the  contract  of  the  indorser 

Contractof  is  to  pay  the  money,  if  the  parties  to  the  instrument  primarily 

liable  thereon  fail  to  pay  acccording  to  the  terms  thereof ;  hence, 

if  there  are  several  indorsers,  each  is  liable  to  subsequent  ones  in 

the  order  of  their  indorsements. 

§  2739.  When  bills  of  exchange  and  promissory  notes  are  made 
Protest  for  the  purpose  of  negotiation,  or  intended  to  be  negotiated  at 

and  notice.  r      i  &  ?  &  ^ 

any  chartered  bank,  and  the  same  are  not  paid  at  maturity,  notice 
*  As  to  acceptances  based  on  cotton,  see  Act  of  1859,  pp.  61-3. 


PT.  2.--TIT.  T.— CHAP.  T.—Contracts.  527 

Article  2. — Indorsers,  Notice  and  Protest. 

of  the  non-payment  thereof,  and  of  the  protest  of  the  same  for 
non-payment,  or  non-acceptance,  must  be  given  to  the  indorsers 
thereon  within  a  reasonable  time,  either  personally  or  by  post  (if 
the  residence  of  the  indorser  be  known),  or  the  indorser  will  not 
be  held  liable  thereoiv;  but  in  no  other  case,  and  upon  no  other 
bills  or  notes,  shall  notice  or  protest  be  held  necessary  to  charge 
the  indorser. 

§  2740.  In  all  cases,  the  indorser  may  be  sued  in  the  same  ac-     indorser 

•^  '  •/  sued    with 

tion,  and  in  the  same  County,  with  the  maker,  or  drawer,  or  ac-  ^^^^er. 
ceptor. 

§  2741.  The  first  day  of  January,  the  twenty-fifth  day  of  De-  ex,^^[;^df ' 
cember,  and  any  day  appointed  by  the  Grovernor  of  this  State,  or  ^ 
the  President  of  the  United  States,  or  the  civil  authorities  of  any 
city,  as  a  day  of  fast  and  thanksgiving,  shall  be  held  and  consid- 
ered in  the  same  manner  as   the  first  day  of  th'e  week,  known  as 
Sunday,  for  all  purposes  connected  with  the  presenting  for  judg-  // 

ment  or  acceptance,  and  protesting  and  giving  notice  of  dis- 
honor of  any  bill,  check,  order,  or  note. 

§  2742.  The  three  days  generally  known  as  days  of  grace,  and     Dayaof 
by  custom  allowed  on  papers  payable  at  banks  or  brokers'  offices, 
shall  not  be  allowed  upon  any  bill  or  draft  payable  at  sight. 


f~-r 


ARTICLE  HI. 

OF    THE    EIGHT    OF    HOLDERS. 


Sbction. 

2743.  Right  of  hona  fide  holder. 

2744.  Overdue  notice. 

2745.  Presumption  of  good  faith. 

2746.  Holder  of  collaterals. 


Section. 

2747.  Title  not  to  be  inquired  into. 

2748.  What  is  notice. 

2749.  Bills  payable  on  demand,  etc. 


§  2743.  The  hona  -fide  holder  for  value,  of  a  bill,  draft,  or  prom-      Eight  of 

.  ^'  .  ^ona     fide 

issory  note,  or  other  negotiable  instrument,  who  receives  the  same  iioider. 
before  it  is  due,  and  without  notice  of  any  defect  or  defense,  shall  /y 

be  protected  from  any  defenses  set  up  by  the  maker,  acceptor,  or         ' 
indorser,  except  the  following :     1.  Non  est  factum.      2.  Gam- 
bling or  immoral  and  illegal  consideration.     3.  Fraud  in  its  pro- 
curement. 

§  2744.  If  the  holder  receives  it  after  it  is  due,  its  non-pay-     overdue 

'  ^     *'     notice. 

ment  at  maturity  is  notice  to  him  of  dishonor,  and  he  takes  it  sub- 
ject to  all  the  equities  existing  between  the  original  parties  there- 


528  PT.  2.— TIT.  7.— CHAP.  T.—Oontracts. 

Article  3.— The  Risrht  of  Holders. 


One  of    to  ;  and  if  there  be  several  notes  constituting  one  transaction,  but 

several.  .  , 

due  at  different  times,  the  fact  that  one  is  overdue  and  unpaid 

shall  be  notice  to  the  purchaser  of  allj  to  put  him  on  his  guard  as 

to  each. 

^     ^  §  274-5.  The  holder  of  a  note  is  presu'med  to  be  such,  bona  fide 

Pfesump-  and  for  value  ;  if  either  fact  is  nesratived  by  proof,  the  defendants 

tiwn  of  good  '  &  ./    r  7 

faith.  are  let  in  to  all  their  defenses  ;  such  presumption  is  negatived  by 

proof  of  any  fraud  in  the  procurement  of  the  note. 
P  '^  §  2746.  The  holder  of  a  note  as   collateral  security  for  a  debt 

^    collaterals,    stauds  upon  the  same  footing  as  a  purchaser. 

§  2747.  The  title  of  the  holder  of  a  note  can  not  be  inquired 
Title  not  into,  unless  it  is  necessary  for  the  protection  of  the  defendant,  or 

to  be  inquir-  ,  . 

ed  into.       to  let  in  the  defense  which  he  seeks  to  make. 


i- 


§2748.  Any  circumstances  which  would  place  a  prudent  man 

What  ps  upon  his  guard  in'  purchasing  negotiable  paper,  shall  be  sufficient 

*^.    to  constitute  notice  to  a  purchaser  of  such  paper  before  it  is  due. 

§  2749.  Bills,  notes,  or  other  paper  payable  on  demand,  are  due 
Bills  pay-  immediately.     When  no  time  is  specified  for  the  payment  of  a  bill 

able  on  de-  •'  ^  r    ./ 

mand,  etc.    Qp  order,  it  is  due  as  soon  as  presented  and  accepted. 


ARTICLE  IV. 

OF    DAMAGES. 

Section.  i  Section. 

2750.  Damages  on  foreiglQ  Tbills.  I       2751.  If  out  of  the  United  States, 

§  2750.  If  any  bill  of  exchange,  draft,  or  order,  is  made  pay- 
I?amage3  able  at  any  place  out  of  this  State,  and  within  the  United  States, 

on  foreign  i      i  • 

fcius.  and  the  same  is  returned  under  protest  for  non-acceptance  or  non- 
payment, the  holder  thereof  shall  be  entitled  to  recover  of  the 
drawer  and  endorsers  in  the  first  case,  and  the  acceptor  also  in  the 
latter  case,  in  addition  to  the  principal,  interest,  and  protest  fees, 
five  per  cent,  on  the  principal,  as  damages  for  non-acceptance  or 
non-payment. 

§  2751.  If  such  bill,  draft,  or  order,  is  payable  at  a  place  with- 

if  out  of  out  the  limits  of  the  United  States,  the  holder  may  recover  ten 

the    United  ^      ,  i  /» 

States.        per  cent,  damages,  as  above,  for  non-acceptance  or  non-.payment. 


PT.  2.— TIT.  7.— CHAP.  8.~Contracts, 


529 


Article  1. — Fire  Insurance. 


CHAPTER    VIII. 

F     CONTRACTS     OF     INSURANCE. 


Article  1. — Of  Fire  Insurance. 
Article  2. — Of  Life  Insurance. 
Article  3. — Of  Marine  Insurance. 
Article  4. — Of  Mutual  Insurance. 


ARTICLE  I. 

OF     FIRE     INSURANCE. 


Section. 

2752.  Contract. 

2753.  Interest  of  assured. 

2754.  Insuring  interest  of  another. 

2755.  Changing  property. 

2756.  Construction. 

2757.  Loss — what  is  it. 

2758.  Loss  unknown  to  parties. 

2759.  Diligence  by  assured. 

2760.  Application— good  faith  reciuired. 

2761.  Misrepresentation. 

2762.  Concealment. 

2763.  Willful  misrepresentation. 


Section. 

2764.  Increasing  risk. 

2765.  Alienation. 

2766.  Transfer  to  one  of  severaL 

2767.  Partial  sale. 

2768.  Transfer  after  loss. 

2769.  Or  by  operation  of  law. 

2770.  Second  insurance. 

2771.  Prescribing  regulations. 

2772.  Amount  of  recovery. 

2773.  Estimated  value. 

2774.  Privilege  of  rebuilding,  etc. 

2775.  Recovery  back  by  insurer. 


Interest  of 
assured. 


§  2752.  The  contract  of  fire  insurance  is  one  whereby  an  indi-  contract. 
vidua],  or  company,  in  consideration  of  a  premium  paid,  agrees  to 
indemnify  the  assured  against  loss  by  fire  to  the  property  described 
in  the  policy,  according  to  the  terms  and  stipulations  thereof. 
Such  contract,  to  be  binding,  must  be  in  writing ;  but  delivery  is 
not  necessary  if,  in  other  respects,  the  contract  is  consummated. 

§  2753.  To  sustain  any  contract  of  insurance,  it  must  appear 
that  the  assured  has  some  interest  in  the  property  or  event  in- 
sured, and  such  as  he  represented  himself  to  have.  A  slight  or 
contingent  interest  is  sufficient,  whether  legal  or  equitable,  and 
several  having  difibrent  interests  may  unite  in  procuring  one  pol- 
icy :  so  a  husband  or  parent  may  insure  the  separate  property  of 
his  wife  or  child,  the  recovery  being  held  by  him  in  trust  for 
them ;  but  a  mere  expectation  of  an  interest  is  not  insurable. 

§  2754.  If  one  undertakes  to  insure  the  interest  of  another,  it      insuring 

interest      of 

must  be  done  by  his  consent,  or  be  subsequently  ratified  by  him ;  another, 
34 


530  PT.  2.— TIT.  7.— CHAP.  S.—Contracts. 

Article  1. — Fire  Insurance. 

but  an  insurer  may  reinsure  to  protect  himself  against  loss  On 
his  contract. 

§  2755.  A  policy  of  insurance  may  be  made  to  cover   property 
property.  °  changing  daily  in  its  specific  articles,  as  a  stock  of  goods. 

§  2756.  The  contract  of  insurance  should  be  construed  so  as  to 
tion.  carry  out  the  true  intention  of  the  parties. 

§  2757.  A  loss  or  injury  may  occur  from  fire  without  the  actual 
Loss— burning  of  the  articles  or  property,  as  a  house   blown  up  to  stop 
a  conflagration,  or  goods  removed  in  imminent  danger,  or  dam- 
aged by  water  used  to  extinguish  the  flames. 

§  2758.  If  the  loss  has  already  occurred,  and  both  parties  are 
Loss  un-   io-norant  of  it,  the  contract  is  valid ;  but  the  slightest  ^rounds  of 

known    to      "=^       ^    ^  ^  ... 

the  parties,   suspiciou  kuown  to  the  insured  will  vitiate  the  contract,  unless 
made  known  to  the  insurer. 

§  2759.  The  assured  is  bound  to  ordinary  diligence  in  protect- 
Diligence  ing  the  property  from  fire,  and  gross  negligence  on  his  part  will 
relieve  the  insurer.     Simple  negligence  by  a  servant,  or  the  as- 
sured, unaffected  by  fraud  or  design  in  the  latter,  will  not  relieve 
the  insurer. 

§  2760.  Every  application  for  insurance  must  be  made  in  the 
-<?(X)dfaUh°  ^^^^s*  good  faith,  and   the  representations  contained  in  such  ap- 
plication are  considered  as  covenanted  to  be  true  by  the  appli- 
cant.    Any  variation  by  which  the  nature,  or  extent,  or  charac- 
y^  cer  of  the  risk  is  changed,  will  void  the  policy. 

/  //  §  2761.  Any  verbal  or  written  representations  of  facts  by  the 

Mi&repre-  assurcd  to  inducc  the  acceptance  of  the  risk,  if  material,  must  be 

s'^'itation.  ... 

true,  or  the  policy  is  void.  If,  however,  the  party  has  no  knowl- 
edge, but  states  on  the  representation  of  others,  bona  fide,  and  so 
informs  the  insurer,  the  falsity  of  the  information  does  not  void 
the  policy. 

§  2762.  A  failure  to  state  a  material  fact,  if  not  done  fraudu- 
conceai-    lentlv,  doos  not  void ;  but  the  willful  concealment  of  such  a  fact, 

ment,  i  .  .  .  . 

which  would  enhance  the  risk,  will  void  the  policy. 

§  2763.  Any  change  in  the  property,  or  the  use  to  which  it  is 
Increasing  applied,  without  the  consent  of  the  insurer,  whereby  the  risk  is 
increased,  voids  the  policy. 

§  2764.  Willful  misrepresentation  by  the  assured,  or  his  agent, 
wiiifni   as  to  the  interest  of  the  assured,  or  as  to  other  insurance,  or  as 

misrepre-  .  .    i   .  .  i  -n         •  i     t 

sentation.    to  any  Other  material  mquiry  made,  will  void  the  policy. 

§  2765.  An  alienation  of  the  property  insured,  and  a  transfer 


VT.  2.— TIT.  7.— CHAP.  8.-^Contracts.  531 

Article  1. — Fire  Insurance. 

'of  the  policy,  without  the  consent  of  the  insurer,  voids  it ;    but   Alienation. 
the  mere  hypothecation  of  the  policy,  or  creating  a  lien  on  the 
property,  does  not  void. 

§  2766.  A  policy  issuing  to  several,  may  be  transferred  to  one   Trrinsferto 
oi  the  assured  without  the  consent  or  the  insurer.  erai 

§  2767.  A  partial  sale  of  property  insured,  voids  the  policy  only  Partiaisaie. 
pro  tanto.     A  sale  not  fully  executed,  and  possession  remaining 
with  the  assured,  does  not  void. 

§  2768.  After  the  loss  occurs,  a  sale  of  the  property  and  trans-      Transfer 

iii^t- p  loss 

fer  of  the  policy  does  not  affect  the  liability  of  the  insurer,  but 
the  assignee  may  recover. 

§  2769.  A  transfer  of  the  property  or  policy  by  operation  of    or  by  op- 
law,  or  under  the  order  of  the  Court,  will  confer  on  the  assignee  '^^• 
all  the  rights  of  the  assured. 

§  2770.  A  second  insurance  on  the  same  property,  unless  by  surance.  ^^' 
consent  of  the  insurer,  voids  his  policy. 

§  2771.  Every  insurer  has  a  right  to  prescribe  regulations  as  to  Prescribing 
notice  and  preliminary  proof  of  loss,  which  must  be  substantially 
complied  with  by  the  assured,  provided  the  same  are  made  known 
at  the  time  of  insurance,  and  are  not  materially  changed  during 
the  existence  of  the  contract.  An  absolute  refusal  to  pay  waives 
a  compliance  with  these  preliminaries. 

§  2772.  The  assured  may  recover  the  full  amount  of  his  loss,    Amountof 
provided  the  same  is  within  the  amount  insured.     If  he  has  sev- 
eral policies  on  the  same  property,  the  recovery  from  each  com- 
pany will  be  pro  rata  as  to  the  amount  insured. 

§  2773.  The  value  of  property  is  to  be  estimated  at  the  time  of    Estimated 

^      ^        -^  value. 

the  loss.     Contingent  profits  are  not  a  part  of  such  value. 

§  2774.  The  privilege  of  rebuilding  or  reinstating  the  property  Priviit^eof 
must  be  reserved  in  the  policy,  or  it  does  not  exist.     In  such 
cases,  the  assured  has  no  claim  for  rents,  if  done  within  a  reason- 
able time,  nor  the  insurer  for  increased  value,  from  the  fact  of  new 
and  more  valuable  materials, 

§  2775.  If,  after  payment  of  loss,  the  insurer  discovers  evidence     Recovery 

1  1  •  If  Til  1  T  1  ^^^^  by  in- 

to show  himselr  not  liable  on  the  policy,  he  may  recover  back  the  surer. 

money  in  an  action  for  money  had  and  received. 


532 


PT.  2.— TIT.  7.— CHAP.  8.— Contracts. 


Article  3. — Life  Insurance. 


ARTICLE  II. 

OF     LIFE     INSURANCE. 


Section. 

2776.  Contract. 

2777.  By  -whom  taken. 

2778.  To  whom  to  be  paid. 


Section. 

2779.  Principles  of  fire  insurance,  etc. 

2780.  Sclf'caused  death  releases. 

2781.  Time — how  counted. 


§  2776.  An  insurance  upon  life  is  a  contract  bj  which  the  in- 
Contract,  surcr,  for  a  stipulated  sum,  engages  to  pay  a  certain  amount  of 
money  if  another  dies  within  the  time  limited  by  the  policy.    The 
•    life  may  be  that  of  the  assured,  or  of  another  in  whose  continu- 
ance the  assured  has  an  interest. 

§  2777.  Contracts  of  life  insurance  can  be  taken  only  by  per- 
takeo.^  ^^  sons  or  corporations  specially  authorized  so  to  do  by  law. 

§  2778.  The  assured   may  direct  the   money  to  be  paid  to  his 
To  whom  personal  representatives,  or  to  his  widow,  or  to  his  children,  or  to 

to  be  paid.      ^  .  .  .  ,,...  ,  t, 

ms  assignee ;  and  upon  such  direction  given  and  assented  to    by 
the  insurer,  no  other  person  can  defeat  the  same.    But  the  assign- 
ment is  good  without  such  assent. 
Fireinsur-      §  2779.  The  principles  before  stated  as  to  fire  insurance,  wher- 
cabfe.  *^^  ^  ever  applicable,  are  equally  the  law  of  life  insurance. 

§  2780.  Death  by  suicide,  or  by  the  hands  of  justice,  either  pu-^ 
de^S^r?  ^^^^i^^  ^^  preventive,  releases  the  insurer  from  the  obligation  of 

leases.  }^[q  COUtract. 

§  2781.  A  policy  of  life  insurance  runs  from  midday  of  the 
Fines—  (Jatc  of  the  nolicv,  and   the  time  must  be  estimated  accordingly, 

how  counted  ^  t/  7  o  •'  / 

if  the  policy  is  limited  to  a  specified  number  of  years. 


ARTICLE  III. 


OF     MARINE     INSURANCE. 


Section. 

2782.  Contract. 

2783.  Unlawful  commerce. 

2784.  Double  insurance. 

2785.  Implied  wai-ranty. 

2786.  Illegal  yoyage. 

2787.  Donation. 


Section. 

2788.  Perils  of  the  sea. 

2789.  Continuance  of  risk. 

2790.  Increase  of  risk. 

2791.  Open  policy. 

2792.  Value — how  ascertained. 

2793.  Former  rules  applicable. 


§  2782.   A  contract  of  marine  insurance  is  one  by  which  a  per- 
Contract   SOU    or  Corporation,   for  a  stipulated  premium,   insures   another 
against  losses  occurring  by  the  casualties  of  the  sea. 


PT.  2.— TIT.  7.-^CHAP.  8.~-"CoMmACTS. 


Article  3. — Marine  Insurance. 


%  2783.  Prohibited  or  illegal  commerce,  or  commerce  with  an    Unlawful 

,  .        commerce. 

enemy,  or  goods  contraband  of  war,  are  not  the  subject  of  marine 
insurance. 

§2784.  Double  marine  insurance  may  be  obtained  by  a  party    Double  in- 
having  an  insurable  interest ;  but  in  case  of  loss,  he  can  recover 
from  both  companies  only  the  full  value  of   such  interest.      If 
one  underwriter  pays  the  whole  amount,  he  is  entitled  to  contribu- 
tion from  the  others. 

§  2785.  The  assured  impliedly  warrants   that  the  ship  is  sea-     implied 

^  •'  ••■  warranty. 

worthy,  and  shall  not  be  changed  except  from  necessity,  and  that 
she  shall  be  employed,  conducted,  and  navigated,  with  reasonable 
skill  and  according  to  law. 

§  2786.  The  illegality  of  the  voyage,  whether  known  to  the  as-      niegai 

-,  11  "^      .1  voyage. 

sured  or  not,  renders  the  contract  void. 

§  2787.  A  deviation  from  the  voyage,  if  voluntary,  and  not  Deviation, 
from  necessity,  voids  the  policy.  This  necessity  may  arise  from— 
1.  Stress  of  weather.  2.  Want  of  necessary  repairs.  3.  Joining 
-convoy.  4.  Succoring  ships  in  distress.  5.  Avoiding  capture  or 
detention.  6.  Sickness  of  master  or  crew.  7.  Mutiny  on  board. 
-8.  Any  similar  cause  founded  upon  reason. 

§2788.  The  "perils  of  the  sea"  comprehend  all  those  misfor-  Periisof 
tunes  to  which  goods  and  ships  at  sea  are  exposed  from  earth,  air, 
fire,  or  water.  Loss  from  enemies  is  not  included,  unless  ex- 
pressly named.  The  negligence  or  unskillfulness  of  masters  or 
mariners  is  not  included  in  a  policy  on  the  ships  or  goods  belong- 
ing to  the  owners  of  the  vessel.  If  loss  occurs  to  third  persons 
therefrom,  the  underwriter  may  recover  from  the  owner  of  the 
fihip  the  amount  paid  bj  him.  V 

§  2789.  Generally  the  risk  continues  till  the  goods  are  delivered      oontimi- 
on  shore  at  the  port  of  destination,  or  to  others  by  direction  of 
the  assured. 

§  2790.  Any  change  by  which  the  risk  is  increased  voids  the  policy.  ^^  JjJ^^^®^ 

§2791.  An  open  policy  is  where  the  amount  of  the  interest  of  opeapoiicy. 
the  assured  is  not  fixed  by  the  policy,  but  is  left  to  be  adjusted  in 
case  of  loss ;  such  policies  may  issue  in  blank  to  be  filled  by  the 
insured  as  new  rivsks  may  be  desired. 

§  2792.  The  value  stated  in  a  policy  is  always  subject  to  be  re-  yai«e— tow 

■*^  •'  ^^  *^  ascertained. 

duced  by  proof. 

§  2793.  The  rules  as  to  warranties,  misrepresentations  and  con-       Former 
ceaiments,  are  the  same  m  marine  as  m  tire  insurance.  cawe. 


534  •  PT,  2.— TIT.  7.— CHAP.  8.— Conteacts. 

Article  4. — Mutual  Insurance. 

AETICLE    IV. 

OF    MUTUAL    INSURANCE. 


Section. 

2794.  Contract. 

2795.  By-laws. 

2796.  Officers  agents  of  alL 


Section, 

2797.  Liability  for  reducing  funds.. 

2798.  Stricter  good  faith. 

2799'.  Agents  of  foreign  companies. 


§  2794.  The  contract  of  insurance  is  sometimes  upon  the  idea 
Contract,  of  mutuality,  by  which  each  of  the  assured  becomes  one  of  the^ 
insurers,  thereby  becoming  interested  in  the  profits,  and  liable  for 
the  losses  ;  without  a  charter,  such  an  organization  would  be  gov- 
erned by  the  general  law  of  partnership ;  when  incorporated,  they 
■are  subject  to  the  terms  of  their  charter. 

§  2795.  The  rules  and  regulations  of  such  a  company,  adopted 
By-laws,   in  pursuaucc  of  the  charter,  become  a  part  of  each  policy,^  and 
all  the  assured  are  presumed  to  have  notice  thereof.     But  new 
conditions  can  not  be  annexed  to  the  policy  after  it  is  issued,  ex- 
cept by  the  consent  of  the  assured. 

§  2796.  The  officers  of  such  a  company  are  the  agents  of  all  the 
Officers  assured,  and  to  the  extent  of  their  misconduct  or  neglect,  shall 

agents  of  all.  ,..,  .  ••!-* 

aflect  each,  upon  the  general  principles  governing  principal  and 
agent,  except  as  to  the  transaction  of  making  the  contract  of  in- 
surance ;  up  to  the  time  of  its  execution,  the  assured  stands  as  a 
third  party,  and  the  officer  issuing  the  policy  acts  for  those  already 
in  the  company. 

§  2797.  If  a  mutual  insurance  company,  by  dividends,  reduces 
Liability  its  available  funds  below  the  point  of  remaining  able  to  meet  all 

for  reducing  .  ,..,..  tt 

funds.  losses  occurmg  on  policies  then  m  existence,  the  directors  of  such 
company  primarily,  and  the  parties  receiving  the'  dividends,  ulti- 
mately and  pro  rata^  shall  be  liable  individually,  jointly  and  sev- 
erally, for  the  amount  of  such  unpaid  losses. 

§  2798,  A  stricter  good  faith,  as  to  representations  and  conceal- 
odTith^^  ments,  should  be  required  in  mutual  insurances  than  in  any  other 
similar  contracts. 

§  2799.  Agents  of  all  foreign  insurance  companies  must  obtain 
Agencies  of  a  liconso  bcfore  taking  insurance  in  this  State,  under  the  penalties 

loreigncom-  ^  °  '  s: 

panics.        and  in  accordance  with  the  provisions  of  this  Code. 


PT.  2.--~TIT.  T.— CHAP.  9.— Contracts.  535 

Article  1. — Denial  of  the  Contract. 

CHAPTER    IX. 

OF     DEFENSES     TO     CONTRACTS. 


Article  1. — Denial  of  the  Contract. 

Article  2. — Denial  of  its  Ohligation,  etc. 

Article  3. — Payment  and  Herein  of  Appropriation  of  Payments, 

Article  4. — Performance  and  Herein  of  Tender, 

Article  5. — Accord  and  Satisfaction. 

Article  6. — Arbitrament  and  Award. 

Article  7. — Pendency  of  Another  Suit,  etc. 

Article  8. — Set-off  and  Recoupment. 

Article  9. — Limitation  of  Actions. 


ARTICLE  I. 


denial   of   the   contract. 


Seotion- 

2800.  Non  est  factum. 

2801.  Effect  of  alteration. 

2802.  By  whom  tried. 


Section. 

2803.  Preliminary  proof. 

2804.  Indorsement,  etc. 


§  2800.  A  party  may  deny  the  original  execution  of  the  con-     Non  est 
tract  sought  to  be  enforced,  or  its  existence  in  the  shape  then  sub- 
sisting.    In  either  event,  if  the  contract  be  in  writing  and  so  de- 
clared upon,  the  denial  must  be  on  oath  and  filed  at  the  first  term 
after  service  is  perfected. 

§  2801.  If  a  written  contract  be  altered  intentionally,  and  in  a     Effect  of 
material  part  thereof,  by  a  person  claiming  a  benefit  under  it,  with 
intent  to  defraud  the  other  party,  such  alteration  voids  the  whole   . 
contract,  at  the  option  of  the  other  party.     If  the  alteration  be^    y     'Z^- 
unintentional,  or  by  mistake,  or  in  an  immaterial  matter,  or  not  i  /  k 

with  intent  to  defraud,  if  the  contract  as  originally  executed  can 
be  discovered,  and  is  still  capable  of  execution,  it  will  be  enforced 
by  the  Court.  If  the  alteration  be  made  by  a  stranger,  and  not 
at  the  instance  or  by  collusion  of  a  party,  or  privy,  if  the  origi- 
nal words  can  still  be  restored,  the  contract  will  be  enforced. 

§  2802.  The  materiality  of  an  alteration  is  a  question  of  law.     By  whom 
The  fact  of  an  alteration  is  a  question  for  the  jury. 


tried. 


536 


PT.  2.— TIT.  7.— CHAP.  9.- 


CONTRAOTS. 


Article  2. — Denial  of  the  Obligation  of  a  Contract,  etc. 


§  2803.  If  the  contract  is  not   set  forth  as  the  basis  of  the  ac- 
Preiimi-  tion,  SO  as  to  requiro  a  denial  on  oath,  an  alteration  in  a  material 

nary  proof,  .  .  ^  . 

part  requires  explanation  before  it  can  be  admitted  as  evidence. 
This  preliminary  proof  is  submitted  to  the  Court. 

§  2804.  An  indorsement  or  assignment  of   any  bill,  bond,   or 
ment°  *etc.,  notc,  whon  the  same  is  sued  by  the  indorsee,  need  not  be  proved, 

not     to     be         ,  ,       .     ^  , 

proved.       unless  denied  on  oath. 


ARTICLE  II. 

DENIAL  OF  THE  OBLIGATION  OF  A  CONTRACT,  EITHER  ORIGINALLY  OR 
BY  SUBSEQUENT  ACT   OF  THE  OPPOSITE  PARTY. 


Section. 

2805,  Denial  of  obligation. 

2806,  Conditions. 

2807.  Dependent  covenants. 

2808.  Rescission. 


Section. 

2809.  Vv^ithout  consent. 

2810.  Covenant  not  to  sue. 

2811.  Release. 

2812.  Intermarriage. 


§  2805.  Any  fact  going  to  show  that  the  original  contract  was 
obligation.^  HOt  obligatory,  though  executed,  may  be  set  up  as  a  defense, 

§  2806.  A  condition,   precedent  or   subsequent,   not  complied 
Conditions,  with,  Want  or  failure  of  consideration,  or  any  act  of  the  opposite 
party  by  which  the  obligation  of  the  contract  has  ceased,  may  be 
pleaded  as  a  defense. 

§  2807.  Where  covenants  are  dependent,  the  failure  of  perform- 
Dependent  aucc  by  the  opposiug  party  may  be  a  good  defense. 

§  2808.  A  rescission  of  the  contract  by  consent,  or  a  release  by 
Kescission,  the  Other  contracting  party,  is  a  complete  defense. 

§  2809.  In  some  cases,  a  party  may  rescind  without  the  consent 
Without  of  the  opposite  party,  for   non-performance  by  him  of  his  cove- 
nants ;  but  this  can  be  done   only  when  both  parties  can  be  re- 
stored to  the  condition  in  which  they  were  before  the  contract  was 
made. 

§  2810.  A  covenant  never  to  sue  is  equivalent  to  a  release ;  so 
also  a  bond  to  indemnify  the  debtor  against  his  own  debt. 

§  2811.  A  release  sometimes  results  as  an  operation  of  law;  as 
when  a  creditor  releases  another  who  is  bound  jointly  with,  or 
primarily  to  the  debtor,  or  accepts  from  the  debtor  a  higher  secu- 
rity for  the  same  debt  not  intended  to  be  collateral  thereto. 

§  2812.  Intermarriage  of  the  parties  generally  releases  a  debt, 
intermar-  |)ut  such  is  not  the  eifect  when  the  bond  or  obligation  is  given  in 
contemplation  of  marriage. 


consent. 


Covenant 
not  to  sue. 


Release, 


riage 


PT.  2.— TIT.  7.— CHAP.  9.— Contracts. 


537 


Article  3. — Payment  and  Herein  of  Appropriation  of  Payments. 


ARTICLE    III. 


OF  PAYMENT  AND  HEREIN  OF  APPROPRIATION  OF  PAYMENTS. 


Section. 

2813.  Payment  generally. 

2814.  To  naked  trustee. 

2815.  By  post. 


Section. 

2816.  Bank  bills. 

2817.  Stakeholder. 

2818.  Appropriation  of  payments. 


To  naked 

trustee. 


nil. 


1 1 


§  2813.  Payment  of  money  due,  to  the   creditor  or  his  author-    Payment 
ized  or  general  agent,  or  one  whom  the  creditor  accredits  as  agent, 
though  he  may  not  be  so,  or  to  his  partner  interested  with  him  in 
the  money,  shall  be  good ;    and  if  such  agent  receives  property 
other  than  money  as  money,  the  creditor  is  bound  thereby. 

§  2814.  Payment  to  a  nominal  party,  or  a  naked  trustee,  with- 
out authority  to  receive,  if  made  collusively  and  with  intention  to 
defeat  the  true  owner,  shall  have  no  effect. 

§  2815.  Payment  by  post  is  at  the  risk  of  the  sender,  unless    By  post. 
done  by  direction,  either  express  or  implied,  of  the  creditor  or  his 
agent. 

§  2816.  Bank  bills,  if  received  in  payment,  are  warranted  by    Bankbiiis, 

.  o  ^     \  Til  checks,   and 

the  payer  to  be  genuine,  and  that  as  far  as  he  knows  the  bank  is  notes. 
solvent.     Bank  checks   and  promissory  notes   are  not  payment       •  J/tL 
until  themselves  paid.  / 

§.2817.  A  stakeholder  of  money  risked,  on  a  wager  is  bound  to  stakeholder. 
repay  to  the  party  depositing,  at  any  time  he  may  demand  it,  be-  %^  f^  //  ^ 
fore  it  is  actually  paid  over  to  the  winner ;  but  if  paid  over  to  the 
winner  hona  fide^  and  without  notice  of  the  depositor's  intention 
to  retract,  this  payment  is  a  protection. 

§  2818.  When  a  payment  is  made  by  a  debtor  to  a  creditor    Appropi 

^    "^  .  .  "^  tion  of  PI 

holding  several  demands  against  him,  the  debtor  has  the  right  to  meats. 
direct  the  claim  to  which  it  shall  be  appropriated.  If  he  fails  to  3^J^^.  / 
do  so,  the  creditor  has  the  right  to  appropriate  at  his  election.  If 
neither  exercises  this  privilege,  the  law  will  direct  the  application 
in  such  manner  as  is  reasonable  and  equitable,  both  as  to  parties 
and  third  persons.  As  a  general  rule,  the  oldest  lien  and  the  old- 
est item  in  an  account  will  be  first  paid,  the  presumption  of  law 
being  that  such  would  be  the  fair  intention  of  the  parties. 


pna- 
pay- 


538 


PT.  2.— TIT.  7.— CHAP.  9.— Contracts. 


Article  4. — Performance  and  Herein  of  Tender. 


ARTICLE  lY. 

OF     PERFORMANCE     AND     HEREIN     OF     TENDER. 


Section. 

2819.  Performance. 

2820.  Impossibility  of  performance. 
2S21.  Part  performance. 

2822.  Fault  of  other  party. 


Section. 

2823.  Tender. 

2824.  Of  specific  articles, 

2825.  Reasonable  demand. 

2826.  Effect  of  tender. 


ance. 


§  2819.  Performance,  to  be  effectual,  must  be  by  the  party 
Perform-  bound  to  perform,  or  his  agent,  (where  personal  skill  is  not  required) 
or  some  one  substituted,  by  consent,  in  his  place.  It  must  be  a 
substantial  compliance  with  the  spirit,  and  not  the  letter  only,  of 
the  contract,  and  done  within  a  reasonable  time. 

§  2820.  If  such  a  performance  is  impossible,  and  becomes  so  by 

impossi- the  act  of  God,  such  impossibility  is  itself  a  defense  equivalent 

formance.     to  performance ;  but  if    by  proper  prudence  such  impossibility 

might  have  been  avoided  by  the  promisor,  it  ceases  to  be  an  excuse 

for  non-performance. 

§  2821.  In  a  severable  contract,  or  one  admitting  of  apportion- 
formances.    mcnt,  a  part  performance  may  be  a  defense  pro  tanto. 
/^  §  2822.  If  the  non-performance  is  caused  by  the  act  or  fault  of 

(otherparty!  the  opposito  party,  that  excuses  the  other  party  from  performance. 
§  2823.  A  tender  properly  made  may  be  equivalent  to  perform- 
Tender.     ance ;  if  in  money,  the  coin  need  not  be  actually  presented,  un- 
t    tit^ii^'   less  demanded :  it  must  be  certain  and  unconditional,  except  for 
^      /  a  receipt  in  full  or  delivery  of  the  obligation,  and  may  be  made 

tt^v^  ■  by  an  agent  or  friend,  and  to  an  agent  authorized  to  receive.  It 
must  be  in  full  of  the  specific  debt,  and  not  in  part,  and  may  be 
made  at  any  time  before  final  trial,  and  if  sustained,  no  subse- 
quent cost  shall  be  paid  by  the  defendant ;  if  rejected,  and  not 
on  any  ground  of  informality,  such  informality  can  not  be  after- 
ward urged  in  objection  to  the  tender. 

§  2824.  A  tender  of  specific  articles  must  be  such  as  to  enable 
Of  specific  the  party  to  whom  tendered  to  take  immediate  possession,  and  at 
/,  I  fi  the  time  and  place  agreed  on  in  the  contract.     If  no  place  is 
^'^^1  \ '  agreed  on,  they  must  be  carried  to  the  person  entitled  to  them, 

\^  if  residing  within  this  State,  unless,  from  the  nature  of  the  arti- 
cles, or  the  contract,  another  place  of  delivery  be  inferred.  If 
the  articles  be  cumbrous,  the  deliverer  may  demand  of  the  receiver 


PT.  2.— TIT.  7.— CHAP.  9.— Contracts.  539 


Article  5. — Accord  and  Satisfaction. 


to  appoint  a  convenient  place  of  delivery,  and  on  failure  to  do  so 
the  tender  shall  be  considered  complete. 

§  2825.  If  the  promise  be  to  deliver  on  demand,  the  demand   Reasonable 

.  •  r»     1  •       demand. 

must  be  reasonable  as  to  time,  place,  and  manner ;  if  the  promise 

be  to  deliver  at  a  certain  time  and  place,  a  tender  at  the  time  and  place? 

place  is  good,  though  the  receiver  is  not  present. 

§  2826.  A  valid  tender  of  chattels  transfers  the  title  thereto  to    Effect  of 

,  11  '11  •  f»     1  •  tender. 

the  person  bound  to  receive,  and  the  possession  or  the  promiser, 
if  he  retains  possession  from  that  time,  is  for  the  benefit  of  the 
owner,  but  vrithout  liability  to  account  for  profits,  or  for  more  than 
ordinary  prudence  in  their  preservation  and  protection. 


ARTICLE  y. 


ACCORD     AND     SATISFACTION. 


Section. 

2827.  What  is  accord  and  satisfaction, 

2828.  When  an  extinguishment. 

2829.  Must  be  of  benefit  to  creditor. 


Section. 

2830.  Less  than  debt  is  not. 

2831.  Compromise. 


§  2827.  Accord  and  satisfaction  is  where  the  parties,  by  a  sub-    whatis ac- 
cord and  sat- 
sequent  agreement,  have  satisfied  the  former  one,  and  the  latter  isfaction. 

agreement  has  been  executed.  The  execution  of  a  new  agree- 
ment may  itself  amount  to  a  satisfaction,  where  it  is  so  expressly 
agreed  by  the  parties,  and  without  such  agreement,  if  the  new 
promise  is  founded  on  a  new  consideration — the  taking  of  it  is  a 
satisfaction  of  the  former  contract. 

§  2828.   An  accord  and  satisfaction  may  not  amount  to  an  ex-     when  an 

•    1  o     1  ••1111  11  extinguish- 

tmguishment  oi  the  original  debt,  but  may  extend  only  to  sus-  mem. 
pend  the  execution  or  collection  thereof  for  a  limited  time ;  in  the 
meantime  an  action  can  not  be  sustained. 

§2829.  The  accord  and  satisfaction  must  be  of  some  advan-    Must  be  of 
tage,  legal  or  equitable,  to  the  creditor,  or  it  will  not  have  the  cre'Stor. 
effect  of  barring  him  from  his  legal  rights.     The  acknowledgment 
of  a  disputed  title,  or  the  securing  of  a  doubtful  claim,  would  be 
such  an  advantage. 

§  2830.  An  agreement  by  a  creditor  to  receive  less  than  the    Less  than 
amount  of  his  debt,  can  not  be  pleaded  as  an  accord  and  satisfac- 
tion, unless  it  be  actually  executed  by  the  payment  of  the  money, 


540  PT.  2,— TIT.  7.— CHAP.  9.— Contkacts. 


Article  6. — Arbitrament  and  Award. 


or  the  giving  of  additional  security,  or  the  substitution  of  another 
^     -a        debtor,  or  some  other  new  consideration. 

§  2831.  A  compromise,   or  mutual  accord  and  satisfaction,  is 
Compromise  binding  on  the  parties. 


ARTICLE    VI. 

ARBITRAMENT     AND     AWARD, 


Section. 

2832.  What  is. 

2833.  Trustees  may  submit. 

2834.  Of  the  submission. 

2835.  Arbitrators  limited  by  authority. 

2836.  General  submission. 

2837.  Award. 


Section. 

2838.  May  be  valid  in  part  only. 

2839.  Awarded  by  umpire. 

2840.  Reference  pendente  lite. 

2841.  Setting-  aside  an  award. 

2842.  Fraud. 


§  2832.  Parties  disagreeing  as  to  their  rights  or  liabilities  may 
What  is.    submit  the  matter  to  third  persons  to  decide,  and  the  award  made 
by  such  arbitrators  is  binding  on  the  persons  submitting. 

§  2833.  Guardians,  trustees,  executors,  or  administrators,  may, 
Trustees  in  ffood  faith  and  with  proper  prudence,  submit  to  arbitration  the 

may  submit.  ^  x       i  j.  ^  ^ 

matters  in  controversy  in  connection  with  the  estate  they  rep- 
resent. 

§  2834.  A  submission  may  be  in  parol,  and  the  award  also  be 
Of  the  sub-  verbal,  when  the  matters  in  dispute  do  not  exceed  in  value  the 

mission.  ^  ^ 

sum  of  five  hundred  dollars ;  but  all  submissions  by  persons  act- 
ing as  trustees,  as  above,  must  be  in  writing,  and  the  award  ren- 
dered in  writing. 

§  2835.  Arbitrators  should  not  exceed  their  authority,  and  the 
Arbitrators  award  should  covcr  all  matters    submitted,   and   should   be  ren- 

limited     by.  •ii  ni  ^       •      '  xf»i 

aathority.  dered  lu  accordauce  with  the  terms  of  the  submission.  It  the 
award  covers  too  much,  and  the  excessive  part  can  be  separated 
from  the  other,  that  which  is  good  shall  remain  valid. 

§  2836.  Under  a  general  submission,  the  arbitrators  are  bound 
General  ^q  4ecide  onlv  those  matters  brou2:ht  to  their  consideration  by  the 

submission.  _  •^  o 

parties. 

§  2837.  The  award  must  be  certain  and  final,  although  it  may 
Award,     be  ill  the  alternative.     It  must  be  possible  and  reasonable,  and 
tnnst  be  made  by  the  arbitrators  themselves,  or  the  umpire  pro- 
vided for  in  the  submission,  and  not  by  other  persons. 

§2838.  If  an  award  be  defective  in  part,  that  which  is  valid,  if 

Maybevalfd  i  -i         r»  • 

in  part  only,  capable  of  Separation,  shall  stand. 


PT.  2.—TIT.  7.— CHAP.  9.— Contracts. 


541 


Article  7. — Pendency  of  Another  Action  and  Former  Recovery. 


§  2839.  If  an  umpire  be  provided  for  in  the   submission,  an    A.ward  by 

*^  ■•■  ^  umpire. 

award  by  him  alone j  or  jointly  with  the  arbitrators,  will  be  good. 

§  2840.  Pending  litigation  may  be  referred  to  arbitration,  un-     Eeference 

^  &  &  J  .111    p«ndeni0 

der   an   order  of  Court,  by  consent  of  parties,  and  the  award,  ine. 
when  rendered,  may  be  made  the  judgment  of  the  Court. 

§  2841.  To   sustain  an  award,  no  unfair  advantage  should  be  settingaside 

.,-,./»     1  1  ,      .         an  award, 

given  to  either  party  in  the  hearing  oi  the  case  or  the  rendering 
of  the  award.  A  palpable  mistake  of  law,  or  a  reference  of  any 
matter  to  chance  or  lot,  would  vitiate  an  award. 

§  2842.  Fraud  in  the  arbitrators,  or  in  either  party  in  obtaining    ^^'a^*^- 
an  award,  would  set  it  aside. 


ARTICLE   yil. 

OF  PENDENCY  OF  ANOTHER  ACTION   AND   FORMER   RECOVERY. 


Section. 

2843.  Plaintiff  required  to  elect. 

2844.  Attachment  excepted. 

2845.  Suits  by  informers. 


Section. 

2846.  Former  judgment. 

2847.  Parol  evidence  admissible. 


C7 


§  2843.  No  suitor  is  entitled   to   prosecute  two  actions  in  the      Piaiatia' 

"  ^  required    to 

Courts  of   this   State  at  the  same  time,  for  the  same  cause  and  ^]'^^^- 
against  the  same  party,  and  in  such   a  case  the  defendant  may^^ 
require   the  plaintiff  to   elect   which   he  will    prosecute,  if  com-  ,^S'- 3-%/^ 
menced   simultaneously ;    and  the  pendency  of  the  former  is  a 
good  defense  to  the  latter,  if  commenced  at  different  times. 

§  2844.  This  rule  does  not  apply  to  a  prior  attachment  against  Attachment 

■".^  •^  -^  °  excepted, 

property  where  the  defendant  is  subsequently  served  personally, 
nor  to  an  attachment  sued  out  pendente  lite;  but  the  judgment 
in  the  case  against  the  person  must  set  out  the  fact  of  its  identity 
with  the  proceedings  against  the  property. 

§  2845.  In  suits  by  informers,  the  first  filed  in  office  has  prece-     smts  by 
dence  for  the  same  cause  of  action,  and  the  latter  must  abate.        ^  ^''^^ 

§  2846.  An  adjudication   of  the  same  subject-matter  in  issue  in       Former- 

r  •      1  1  •  1  /^  n  judgment.  . 

a  lormer  suit  between  the  same  parties,  by  a  Court  of  competent  i;- 
jurisdiction,  should  be  an  end  of  litigation. 

§  2847.  Parol  evidence  is  admissible  to  show  that  a  matter  ap-    paroi 
parently  covered  by  the  judgment  was  really  not  passed  upon  by  ml^sfbie. 
the  Court. 


evi- 
ad- 


642  PT.  2.— TIT.  7.-  CHAP.  9.— Contracts. 


Article  8. — Set-off  and  Eecoupment. 


ARTICLE  VIII. 

OF    SET-OFF    AND     RECOUPMENT. 


Section. 

2848.  Set-off. 

2849.  What  maybe." 

2850.  Mutual  debt. 

2851.  Judgments. 

2852.  Set-off  against  cestui  que  trust, 

2853.  Set-off  against  negotiable  note. 

2854.  Against  testator  or  intestate. 


Section. 

2855.  Valuable  improvements. 

2856.  Effect  of  dismissal. 

2857.  Debts  not  due. 

2858.  Recoupment. 

2859.  Difference  from  set-off. 

2860.  For  what  it  lies. 
2861..Whenitlies. 


§  2848.  Set-off  is  a  defense  which  goes  not  to  the  justice  of 
Set-off.      plaintiff's  demand,  but   sets  up  a  demand  against  the  plaintiff  to 
counterbalance  his  in  whole  or  in  part. 

§2849.  Between  the  parties   themselves   any  mutual   demands 


k-\l 


h-^ 


What  may  existing  at  the  time  of  the  commencement  of  the  suit  may  be  set 
off. 

§  2850.  Set-off  must  be  between  the  same  parties  and  in  their 

Mutual    own  right.     If  originally  otherwise,  but  at  the  commencement  of 

suit  equitably  within  this  rule,  they  may  be  set  off.     Thus,  a  claim 

against  a  partnership  may  be  set  off  against  a  surviving  partner 

in  a  suit  brought  in  his  own  right ;  and  a  debt  due  to  principal 

./  may  be  set  off  in  a  suit  against  principal  and  surety. 

§  2851.  Judgments  in  the  same  Court  may  be  set  off  against 
Judgmeats.  each  Other  on  motion,  the  balance  on  the  larger  being  collectable 
under  execution.     The  rights  of  an  assignee  shall  not  be  inter- 
fered with  if  bona  fide  and  for  value. 
Set-off  vs.      §  2852.  If  the  plaintiff  sues  for  the  benefit  of  another  person, 

cestui      que  ^  .  \        ^  n    •  ^      ^^     ^  ^^  i 

trubt.         a  set-oii  against  the  benenciary  shall  be  allowed. 

§  2853.  When  a  negotiable  paper  is  sued  by  a  holder  or  en- 
Set-off  dorsee,  received  under  dishonor,  no  set-off  is  allowed  against  the 

against    ne-  70 

gotiabienote  original  payee,  except  such  as  is  in  some  way  connected  with  the 
debt  sued  on,  or  the  transaction  out  of  which  it  sprung. 

§  2854.  A  debt  of  a  testator  or  intestate  is  not  a  proper  set-off 
Against  against  a  debt  contracted  with  the  representative  of  the  estate. 

testator   or    ^       ,.  ...  -x    ^       •  ^  •        '  i» 

intestate.     But  it  is  Otherwise  if  both  were  contracted  during  the  lifetime  of 
the  decedent. 

§  2855.  Against  a   claim  for  mesne  profits,  the  value  of  im- 
Valuable  provcmcnts  made  by  one  bona  fide  in  possession  under  a  claim  of 

improve-  •'•  ,/  j  i 

ments.        right,  is  a  proper  subject-matter  of  set-off. 

§  2856.  After  a  plea  of  set-off  is  filed,  the  plaintiff  may  not 

Effect  of         ^  ^  .  .  1         •  1      1  1       •  -L     1 

dismissal,     dismiss  his  action  so  as  to  interfere  with  said  plea,  unless  by  leave 


PT.  2.— TIT.  7.— CHAP.  9.— ART.  9.— Contracts.  543 


Section  1. — Periods  of  Limitation. 


of  the  Court  on  sufficient  cause  shown,  and  on  terms  prescribed 
by  the  Court. 

§  2857.  If  a  plaintiff  resides  without  this  State,  or  is  insolvent,    Debts  not 
the  defendants  may  set  off  against  him  a  debt  not  due,  under  such 
equitable  terms  as  may  be  prescribed  by  the  Court. 

§  2858.  Recoupment  is  a  right  of  the  defendant  to  have  a  de-  Kecoupment 
duction  from  the  amount  of  the  plaintiff's  damages,  for  the  reason  ^'^v,,    ;^ 
that  the  plaintiff  has  not  complied  with  the  cross  obligations  or 
independant  covenants  arising  under  the  same  contract. 

§2859.  It  differs  from  a  set-off  in  this:  The  former  is  confined    Difference 

from  set-off. 

to  the  contract  on  which  plaintiff  sues,  while  the  latter  includes  all 
mutual  debts  and  liabilities. 

§  2860.  Recoupment  lies  for  overpayments  by  defendant,  or  pay-  .  For  what 
ments  by  fraud,  accident,  or  mistake. 

§  2861.  Recoupment  may  be  pleaded  in  all  actions  ex  contractu^     where  it 
where,  from  any  reason,  the  plaintiff  under  the  same  contract  is 
in  good  conscience  liable  to  defendant.* 


ARTICLE  IX. 

LIMITATION    OF    ACTIONS     ON    CONTRACTS,  "^^^y-^""*^-^^ 


Section  1. — Periods  of  Limitation, 
Section  2, — Exceptions  and  Disabilities, 
Section  3. — Hew  Promise. 


SECTION   L 

periods   of   limitation, 


Section. 

•  2862.  On  foreign  judgments. 
>  2863.  Domestic  judgments. 

2864.  On  specialties. 

2865.  Statutory  rights. 

2866.  Simple  coniracts. 

2867.  Open  accounts. 
i.  Bills  of  review  and  for  new  trial. 


Section. 

2869»  Certiorari. 

28T0.  Writs  of  error. 

287L  Executors,  administrators,  etc. 

2872.  Other  actions  ex  contractu,  ..^»,^', 

2873.  Good  in  equity.  //  ' 
28.?'4i  Suits  by  informers.                                    ^    '^J 

§  2862.  All  suits  upon  iuda-ments  obtained  out  of  this  State    ^^  foreign 

^  -^  •^       *=>  judgment. 

shall  be  brought  within  five  years  after  such  judgment  is  obtained. 

*  For  further  provisions  as  to  set-off  and  recoupment,  see  Part  3,  Title  3, 
Chapter  1. 


,     J 


544  PT.  2.— TIT.  7.--CHAP.  9.— ART.  9.— Coxtkacts. 


Section  1. — Periods  of  Limitation. 


f"^ 


§2863.  No  judgment  hereafter  obtained  in  the  Courts  of  this 
Domestic  State  sh'ill  be  enforced  after  the  expiration  of  seven  years  from 

judgments.  ^  ^  '^ 

the  time  of  its  rendition,  when  no  execution  has  been  issued  upon 
it ;  or  when  execution  has  been  issued,  and  seven  years  have  ex- 
C/  V.  o  \^  pired  from  the  time  of  the  last  entry  upon  the  execution,  made  by 
an  officer  authorized  to  execute  and  return  the  same  :  such  judg- 
ments may  be  revived  by  Bcire  facias^  or  be  sued  on  within  three 
years  from  the  time  they  become  dormant. 

§  2864.  Actions  upon  bonds  or  other  instruments  under  seal, 
On  special-  shall  be  brought  within  twenty  years  after  the  right  of  action  ac- 
crues— but  no  instrument  shall  be  considered  under  seal,  unless 
so  recited  in  the  body  of  the  instrument. 
r'"^  ^  §  2865.  All  suits  for  the  enforcement  of  rights  accruing  to  indi- 

statutory  viduals  Under  statutes,  acts  of  incorporation,  or  by  operation  of 
*    '         law,  shall  be  brought  within  twenty  years  after  the  right  of  action 
^■-f  accrues. 

«s;     .  i  §2866.  All  actions  upon  promissory  notes,  bills  of  exchange, 

0  "^  "^      Simple  or  Other  simple  contract  in  writing,  shall  be  brought  within  six 

con  i"r*ict'S 

years  after  the  same  becomes  due  and  payable. 

§  2867.  All  actions  upon  open  account,  or  for  the  breach  of  any 
Open  ac-  coutract  uot  uudcr  the  hand  of  the  party  sought  to  be  charged,  or 
upon  any   implied   assumpsit  or  undertaking,   shall  be   brought 
within  four  years  after  the  right  of  action  accrues. 

§  2868.  All  bills  of  review  or  for  a  new  trial,  in  a  Court  of 
Biiisof  re- Equity    (unless  the  latter  be  founded  on  proof  of  perjury  in  a 

view  and  for  '^       ^  i       o       ,/ 

new  trial,     material  witness  for  the  successful  party),  shall  be  brought  within 
three  years  after  such  a  decree  or  judgment  has  been  rendered. 
§  2869.  All  writs  of  certiorari  shall  be  allowed  and   brought 
Certiorari,  withiu  three  mouths  after  the  rendition  of  the  judgment  sought  to 
be  reversed. 

§  2870.  All  writs  of  er-ror  must  be  sued  out  within  thirty  days 
Writs  of  from  the  adjournment  of  the  Court  where  the  decision  complained 
of  was  made,  or  if  made  at  chambers,  from  the  time  of  the  deci- 
sion. 

§  2871.  All  actions  against  executors,  administrators,  guardians, 
Executors,  or  trustccs,  cxccpt  on  their  bonds,  must  be  brought  within  ten 


error. 


administra-  n.         .-i  .    -,  ,       « 

tors,  etc.     years  alter  the  right  oi  action  accrues. 

§  2872.  All  other  actions  upon  contracts,  express  or  implied, 
other  ac-  uot  hereinbefore  provided  for,  must  be  brought  within  four  years 
traciu,        irom  the  accrual  oi  the  right  or  action. 


.# 


PT.  2.— TIT.  7.— CHAP.  9.— ART.  9.— Contracts. 


545 


Section  2. — Exceptions  and  Disabilities. 


^  2873.  The  limitations  herein  provided,  apply  equally  to  Courts     Good  in 

.  n  D  -r^        >        Equity. 

of  Law  and  Equit}^ ;  and  in  addition  to  the  above,  Courts  of  Equity 
may  interpose  an  equitable  bar,  in  accordance  with  the  established 
rules  of  such  Courts,  whenever,  from  the  lapse  of  time  and  laches 
of  the  complainant  it  would  be  inequitable  to  allow  a  party  to 
enforce  his  legal  rights. 

§  2874.  All  actions  by  informers  to  recover  any  fine,  forfeiture,  fSers.^^^" 
or  penalty,  shall  be  commenced  within  one  year  from  the  time  the 
defendant's  liability  thereto  was  discovered,  or  by  reasonable  dili- 
ffence  could  have  been  discovered. 


SECTION    11. 


EXCEPTIONS    AND     DISABILITIES. 


Section. 

2875.  Persons  excepted. 

2876.  Oocuring  after  accrual  of  right. 

2877.  Unrepresented  estate. 

2878.  Absence  from  State  of  defendant. 


Section. 

2879.  Joint  action  and  a  part  barred. 

2880.  Fraud. 

2881.  Non-suit  or  dismissal. 

2882.  If  pleaded  as  set-off. 


§  2875.  Married  women,  infants,  idiots,  or  insane  persons,  or  Persons  ex- 
persons  imprisoned,  who  are  such  when  the  cause  of  action  ac-  ^^p^^*^ 
crues,  shall  be  entitled  to  the  same  time,  after  the  disability  is 
removed,  to  bring  an  action,  as  is  prescribed  in  this  Code  for  other 
persons. 

§  2876.  If  either  of  the  foregoing  disabilities  happens  after  the     occurring 
right  of  action  accrues,  and  is  not  voluntarily  caused  or  underta-  of  rigiit. 
ken  by  the  person  claiming  the  benefit  thereof,  the  limitation  shall 
cease  to  operate  during  its  continuance. 

§  2877.  The  time  occurring  between  the  death  of  a  person  and  unrepre- 
representation  taken  upon  his  estate,  or  between  the  termination  tate. 
of  one  administration  and  the  commencement  of  another,  shall 
not  be  counted  against  his  estate,  provided  such  time  does  not 
exceed  five  years ;  but  at  the  expiration  of  that  time,  the  limita- 
tion shall  commence,  though  the  cause  of  action  accrued  after  his 
death. 

§2878.  If  the  defendant,  in  any  of  the  cases  herein  named.       Absence 
shall  remove  from  this  State,  the  time  of  his  absence  from  the  defendant. 
State,  and  until  he  returns  to  reside,  shall  not  be  counted  or  esti- 
mated in  his  favor, 
35 


546  PT.  2.— TIT.  T.— CHAP.  9.— ART.  9.— Contracts. 


Section  3. — New  Promise. 


§  2879.  If  there  is  a  joint  right  of  actioii,  and  sorne  of  the  pe'f- 
jointaction  sons  having  such  right  are  under  any  of  the  foregoing  disabilities, 
barred.  the  terms  mentioned  herein  shall  not  be  computed  against  such 
joint  action,  until  all  the  disabilities  are  removed ;  but  if  the 
action  might  be  severed,  and  each  sue  for  his  own  share,  those 
free  from  disability  shall  be  barred,  and  the  rights  of  those  only 
protected  who  are  under  such  disability, 

§  2880.  If  the  defendant,  or  those  under  whom  he  claims,  has 
Fraud.      been  guilty  of  a  fraud  by  which  the  plaintiff  has  been  debarred  or 
deterred  from  his  action,  the  period  of  limitation  shall  run  only 
from  the  time  of  the  discovery  of  the  fraud. 

§  2881.  If  a  plaintiff  shall  be  non-suited,  or  shall   discontinue 

Non-suit  or  dismiss  his  case,  and  shall  recommence  within  six  months,  such 

*  renewed  case  shall  stand  upon  the  same  footing,  as  to  limitation, 

with  the  original  case ;  but  this  privilege  of  dismissal  and  renewal 

shall  be  exercised  only  once  under  this  clause. 

§  2882.  Where  any  matter  has  been  pleaded  as  a  set-off  in  a 
If  pleaded  suit,  and  the  suit  is  dismissed,  or  the  case  is  otherwise  disposed  of 

as  set-oflF. 

without  a  hearing  upon  the  merits  of  the  set-off,  such  set-off  shall 
not  be  barred  until  the  expiration  of  six  months  next  after  the 
time  of  such  dispositioirof  such  suit. 


SECTION  III. 

NEW      PEOMISE. 


Section. 

2886.  By  partner. 

2887.  By  joint  contractor* 


Section. 

2883.  Must  be  in  writing. 

2884.  Credit  on  note. 

2885.  Effect  of  new  promise. 

;;    '  '        ^'    §  2883.  A  new  promise,  in  order  to  renew  a  right  of  action 
Must  be  in  already  barred,  or  to  constitute  a  point  from  which  the  limitation 

writing.  in  .  .    ,         p  . 

shall  commence  running  on  a  right  ot  action  not  yet  barred,  must 

"'^  (t  Q  ^^  i^  writing,  either  in  the  party's  own  handwriting,  or  subscribed 

1      by  him,  or  some  one  authorized  by  him. 

'  ;;S^        §  2884.  A  payment  entered  upon  a  written  evidence  of  debt  by 

Credit  on  the  dcbtor,  or  any  other  written  acknowledo^ment  of  the  existing 

note.  ,.,.,..'.    ^,  .  °  * 

liability,  is  equivalent  to  a  new  promise  to  pay. 

§  2885.  A  new  promise  revives  or  extends  the  original  liability : 

Effect     of  .^    ,  ,  \ 

new  promise  it  docs  not  Create  a  new  one. 


M.  2.— TIT.  7.— Contracts. 


m 


Chapter  10, — Breach  and  Damages. 


I  2886.  After  the  dissolution  of  a  partnership,  a  new  promise  Bypartaet. 
hj  one  partner  reviyes  or  extends  the  partnership  debt  only  as   to 
liimself,  and  not  as  to  Ms  co-partners, 

§  2887.  In  cases  x)f  joint  or  j-oint  and  several  contracts,  a  new  confmcto^-^* 
promise  by  one  of  the  contractors  operates  only  against  himself. 


CHAPTER    X. 


F    BREACH    AND    DAMAGES, 


2888.  Breach  of  entire  contract,  etc, 

2889.  Liquidated  damages^, 

2890.  Penalties. 

"2891.  Expense  of  litigation-. 
2892.  Exemplary  damages^ 
•2893.  Remote  damages^ 


Section. 

2894.  Interest. 


Nominal  damages.. 

2896.  Discretion  of  jury, 

2897.  On  covenants,  etc. 

2898.  On  bond  for  titles. 

2899.  Necessary  expense-. 


§2888.  If  a  contract  be  entire,  but  one  suit  can  be  maintained    ?^^^«^  «^ 

"^  '  entire    x;on- 

for  a  breach  thereof;  but  if  it  be  severable,  or  if  the  breaches  *^'^^^ ^^° 
occur  at  successive  periods  in  an  entire  contract  (as  where  money  '<'^-/  ^ 
is  to  be  paid  by  installments),  an  action  will  lie  for  each  breach ; 
but  all  the  breaches  occurring  up  to  the  commencement  of  the 
auction,  must  be  included  therein. 

§2889.  Damages  are  siven  as  compensation  for  the  iniury  sus-    Liquidated 

*-><=>  J-  o       ,/  damages. 

tained.  If  the  parties  agree,  in  their  contract,  what  the  damages 
for  a  breach  shall  be,  they  are  said  to  be  liquidated,  and  unless 
the  agreement  violates  some  principle  of  law,  the  parties  are  bound 
thereby. 

§  2890.  Penalties  in  bonds  are  not  liquidated  damages,  and  even  penalties. 
if  called  such,  yet,  if  it  appears  unreasonable,  and  not  so  actu- 
ally intended  by  the  parties,  the  law  will  give  only  the  actual 
damages  ;  and  in  all  cases  where  the  damage  is  capable  of  com- 
putation, and  is  not  uncertain  in  its  character,  such  stipulations 
will  be  declared  not  to  be  penalties. 

§2891.  The  expenses  of  litifration  are  not  generally  allowed  as    Exp?nseof 

\  liti'^atioii. 

a  part  of  the  damages  ;  but  if  the  defendant  has  acted  in  bad  faith, 
or  has  been  stubbornly  litigious,  or  has  caused  the  plaintiff  unne- 
cessary trouble  and  expense,  the  jury  may  allow  them. 

§  2892.  Exemplary  damaffes  can  never  be  allowed  in  cases  aris-   Exemplary 

,  J.        .  •/  C3  .  ..^w,,«>...-.„„.,..^ ■  damages. 

rng  on  contracts. 


/r; 


M 


548  PT.  2.— TIT.  T.— Contracts. 

Chapter  10.— Breacii  and  Damages. 


§  2893.  Eemote  or  consequential  damages  are  not  allowed 
daoilgTs!  ^  whenever  they  can  not  be  traced  solely  to  the  breach  of  the  con- 
tract, or  unless  they  are  capable  of  exact  computation— such  as 
the  profits,  which  are  the  immediate  fruit  of  the  contract,  and  are 
independent  of  any  collateral  enterprise  entered  into  in  contem- 
plation of  the  contract. 

§  2894.  In  all  cases  where  an  amount  ascertained  would  be  the 
iHtarcst.    damages  at  the  time  of  the  breach,  it  may  be  increased  by  the 
addition  of  legal  interest  from  that  time  till  the  recorery. 

§  2895.  In  every  case  of  breach  of  contract,   the   other  party 
Nominal  lias  a  risrht  to  damages ;  but  if  there  has  been  no  actual  damage, 

daniages.  ... 

the  plaintiff  can   recover  nominal  damages  which  will  carry  the 
costs.     But  if  the  defendant,  before  suit  is  brought,  or  afterward, 

Tender,  and  before  trial,  tenders  to  the  plaintiff  as  much  or  more  than 
he  finally  recovers,  no  costs  shall  be  recovered  accruing  subse- 
quent to  the  tender. 

§  2896.  The  question  of  damages  being  one  for  the  jury,  the 

Discretion  Court  should  uot  interfere,  unless  the  damaaies  are  either  so  small 

of  jury.  ^         ^  ^  o 

or  so  excessive  as  to  justify  the  inference  of  gross  mistake  or  un- 
due bias. 

§  2897.  Upon  a  covenant  of  warranty  of  title  to  land,  the  dam- 
on  cove-  ages  should  be  the  purchase  money,  with  interest  thereon  from 

nantsof  war-     *='  .  . 

rantrtjiand  the  tittle  o.f  salc,  uulcss  the  jury  should  think,  under  the  circum- 
stances of  the  case,  that  the  use  of  the  premises  was  equal  to  the 
interest  on  the  money,  and  that  such  equitable  set-off  should  be 
allowed.  If  valuable  improvements  have  been  made,  the  interest 
should  be  allowed. 

§  2898.  Upon  breach  of  a  bond  for  title  to  land,  the  value  of 

On  bond  the  prcmises  at  the  time   of    the  breach,  with  interest  ,thereony 

should  be  the  measure  of  damages ;  but  if  the  vendee  has  bought 

up  the  outstanding  title,  the  actual  damage  sustained  by  him  only 

can  be  recovered. 

§  2899.  Any  necessary  expense  which  one  of  two   contracting 
Necessary  partlcs  iucurs,  iu  complying  with  the  contract,  may  be  recovered 
as  damages! 


PT.  2.— TIT.  8.— Torts. 


649 


Oiiapter  L— Genera]  Principles  aud  Herein  of  Praud  and  Deceit 


TITLE     VIIL 

OF   TORTS,  OR   INJURIES    TO    PERSONS   OR    PROPERTY. 


Ohaptei,  1. —  Gf-eneral  Principles  and  Herein  of  Fraud^  etc. 

Oh  AFTER  2. — Of  Injuries  to  the  Person, 

•CiiAPTEE  3. — Of  Injuries  to  Property, 

Chapter  ^,— Of  Defenses. 

Chapter  3.— Of  Damages. 


CHAPTER    I. 

GENERAL  PRINCIPLES  AND  HEREIN  OF  FRAUD  AND  DECEIT. 


^SECTION. 

2900.  What  are  terts. 

2901.  Injury  common  to  alL 

2902.  Failing  in  legal  duty. 

2903.  Private  duties. 

2904.  Election, 

2905.  Privity. 

2906.  Fraud  and  damaf  e. 

2907.  Deceit. 

2908.  Letters  t&  obtain  .credit. 


Section. 

2909.  Torts  to  wife,  etc. 

2910.  By  wife,  servant,  etc. 

2911.  By  employee. 

2912.  Ratification. 

2913.  Vicious  animals. 

2914  Dogs — liability  of  owner. 

2915.  Frauds  by  acts  or  silence. 

2916.  Action  does  not  abate. 


§  2900.  A  tort  is  a  legal  wrong  committed  upon  the  person  or    what<are 
property  independent  of  contract.     It  maj  be  either- — 

1.  A  direct  invasion  of  some  legal  right  of  the  individual. 

2.  The  infraction  of  some  public  duty  by  which  special  damage 
accrues  to  the  individual. 

3.  The  violation  of  some  private  obligation  by  which  like  dam- 
age accrues  to  the  individual. 

In  the  former  case,  no  special  damage  is  necessary  to  entitle 
the  party  to  recover.  In  the  two  latter  cases  such  damage  is  neces- 
sary. 

§2901.  Injury  in  common  with  the  community,  thouerh  to  a  injurycom- 
greater  extent,  will  not  give  a  right  of  action  for  the  infraction 
of  some  public  duty.     It  must  be  some  special  damage  to  the  in- 
dividual in  which  the  public  have  not  participated,  although  liable 
thereto. 


_A* 


55.0  V^I.  2.— TIT.  a— Torts. 


Chapter  1. — General  Principles  and  Herein  of  Fraud  and  Deceit. 


(^f  ^^ 


^^  7  ^     '      g  2902.  Wbeii  the  law  requires  one  to  do  an  act  for  the  benefit 
Failing  in  of  another,  or  to  forbear  the  doing  of  that  which   may  injure  an° 

legal  duty,  tit  .',,.. 

other,  though  no  action   be  given  m  express  terms-,  upon  the  ac- 
crual of  damage  the  party  may  recover. 

§  2903.  Private  duties  may  arise  either  from^  statute,  or  flow 
Private    from  relations  created  by  contract,  express  or  implied.     The  vio- 
lation of  any  such  specific  duty,  accompanied  with  damage,  gives 
a  right  of  action. 

§  2904.  When  a  transaction  partakes  of  the  nature  both  of  a 
Elections,  tort  and  a  contract,  the  party  complainant  may  waive  the  oi^e  and 
rely  solely  upon  the  other. 

§  29-05.  NO'  privity  is  necessary  to  suppo^rt  an  actian  for  a  tort, 
PriTity.  but  if  the  tort  results  from  the  violation  of  a  duty  itself,  the  con- 
sequence of  a  contract,  the  right  of  action  is  confined  to  the  par- 
ties and  privies  to  that  contract,  except  in  cases  where  the  party 
would  have  had  a  right  of  action  for  the  injury  done,  independent 
of  the  contract. 

§  2906.  Fraud  by  oae,  accompanied  with  damage  to=  the  party 
damage.       defrauded,  in  all  cases  gives  a  right  of  action. 

^  §  2907.  Willful  misrepresentation  of  a  Uiaterial  fact  made  ta 
^."^  .\^,i  Deceit  inducc  another  to  act,  and  upon  which  he  does  act  to  his  injury. 
\       /  /  /  will  2;ive  a  right  of  action.     Mere  concealment  of  such  a  fact,  un~ 

^  J  ^  y  less  done  in  sucli  a  manner  as  to  deceive  and  mislead,  will  not  s'dp- 

i^C^'''-*^  ^)  '^  }  t  po^^  ^^  aetion.  In  all  eases  of  deceit,  knowledge  of  the  false- 
f^l^  i  ^  -^  ^  /**  '  hood  constitutes  an  essential  element.  A  fraudulent  or  reckless 
\'^,l:    <*  )  representation  of  a  fact  as  true,  which  the  party  may  not  know 

to  be  false,  if  imtended  to^deceive,  is  equivalent  to  a  knowledge  of 
_      the  falsehood.  i 

§  2908.  Ko  action  sball...bse-.su^tained  -ior_jdeceit  in  representa- 
Letters  to  tion  to  obtain  credit  for  another,  unless  such  misrepresentation  be 

obtain  eredit  .  ..  .  tti  it  it  •   ^ 

m  writing,  signed  by  the  party  to>  be  charged  therewith. 

§  2909.  Every  person  may  recover  for  torts  committed  to  him- 
Torts  to  s  A  or  hi&  wife,  or  his  child,  or  hiS  ward,  or  his  servant. 
^■'^'^'^°        ^2.910.  Every  person  shall  be  liable  for  torts  co-nimitted  by  his 
By  wife,  wife,^u]Qd  for  torts  committed  by  his  child,  or  servant  by  his  com- 

sepvant,  etc.  t-t  .  i-i-i  ni-i- 

mand,  or  m  the  prosecution  and  withm  tiie  scope  oi  nis  business,. 
whether  the  same  be  by  negligence  or  voluntary. 

§  2911.  The  employer  is  not  responsible  for  torts  committed  by 
By  em-  his  employee  when  the  latter  exercises  an  independent  business^ 

ployee. 


PT.  2.— TIT.  8.— Torts.  551 

Chapter  1. — General  Principles  and  Herein  of  Fraud  and  Deceit. 

and  in  it  is  not  subject  to  the  immediate  direction  and  control  of 
the  employer. 

§  2912.  By  ratification  of  a  tort  committed  for  one's  benefit,  the  Ratification. 
ratifier  becomes  liable  as  if  he  commanded  it ;   otherwise,  if  the 
act  was  done  for  the  benefit  of  a  third  person. 

§  2913.  A  person  who  owns  or  keeps  a  vicious  or  dangerous  an-   viciousan- 

^  ^  °  imals. 

'itnal  of  any  kind,  and  by  the  careless  management  of  the  same, 
or  by  allowing  the  same  to  go  at  liberty,  another  without  fault  on 
his  part  is  injured  thereby,  such  owner  or  keeper  shall  be  liable        • 
in  damages  for  such  injury. 

§  2914.  rif  any  dog,  not  being  at  the  time  on  the  premises  of       i>ogs  — 

•^  L  J  fc)'  &       ^  1  ^        owner    lia- 

the  owner,  possessor,  or  person  having  charge  thereof,  shall  kill  Wefor. 
or  injure  any  hogs,  cattle,  sheep,  goats,  or  other  live  stock,  the 
property  of  any  other  person,  then  and  in  such  case  the  owner  or 
person  possessing  or  having  such  dog  in  charge  shall  be  liable  to 
be  sued,  in  any  Court  having  jurisdiction  thereof,  for  such  dam- 
ages as  may  have  been  sustained  by  the  killing  or  maiming  of  any 
hogs,  cattle,  sheep,  goats,  or  other  live  stock  so  killed  or  injured, 
and  full  costs  of  suit.]  (a) 

§  2915.  A  fraud  may  be  committed  by  acts  as  well  as  words  ;    Frauds  by 
and  one  who  silently  stands  by  and  permits  another  to  purchase  his  lence. 
property  without  disclosing  his  title  is  guilty  of  such  a  fraud  as  '^^^<^ 
estops  him  from  subsequently  setting  up  such  title  against  the 
purchaser. 

§2916.  No  action  for  a  tort  shall  abate  by  the  death  of  either  Action  does 

•       1  1  r.       r»  1  not  abate. 

party  where  the  wrong  doer  received  any  benefit  from  the  tort 
complained  of. 


CHAPTER    II. 

OF  INJURIES  TO  THE  PERSON. 


Article  1. — Physical  Injuries. 

Article  2.- — Reputation. 

Article  3. — Other  Injuries  to  the  Person. 

(a)  Acts  1865-6,  p.  76. 


552 


PT.  2.— TIT.  8.— CHAP.  2.— Torts. 


Article  1. — Physical  Injuries. 


ARTICLE  L 


PHYSICAL     INJURIES. 


Section. 

2917.  Intention. 

2918.  What  is  a  tort  on  a  person. 

2919.  If  a  felony. 


Section. 

2920.  Homicide  of  husband  or  father. 

2921.  Diligence  of  plaintiff. 

2922.  Malpractice  of  surgeon  or  physician 


'         §2917.  A  physical  injury  done  to  another  gives  a  right  of  ac- 
Intention,  tion,  -whatever  may  be  the  intention  of  the  actor,  unless  he  is  justi- 
fied under  some  rule  of  law.     The  intention  should  be  considered 
in  the  assessment  of  damages. 

§  2918.  Any  violent  injury,  or  attempt  to  commit  a  physical  in- 
whatisajury  illegally  upon  a  person,  is  a  tort  for  which  damages  may  be 
soil-  recovered. 

§  2919.  If  the  injury  amounts  to  a  felony,  as  defined  by  this 
If  a  felony.  Codo,  the  persou  injured  must  either  simultaneously,  or  concur- 
rently, qr  previously,  prosecute  for  the  same,  or  allege  a  good  ex- 
cuse for  the  failure  so  to  prosecute. 

§  2920.  A  widow,  or  if  no  widow,  a  child,  or  children,  may  re- 
Homicide  cover  for  the  homicide  of  the  husband  or  parent ;  and  if  suit  be 

of  '"husband  ^  ^  •••  . 

or  father,  brought  by  the  widow  or  children,  and  the  former  or  one  of  the 
latter  dies  pending  the  action,  the  same  shall  survive  in  the  first 
case  to  the  children,  and  in  the  latter  case  to  the  surviving  child 

..  ^  or  children. 

•    '  §2921.  If  the  plaintiff  by  ordinary  care  could  have  avoided  the 

^ijj?«j.«e  consequences  to  himself  caused  by  the  defendant's'negligence,  he 
is  not  entitkd  to  recover.  But  in  other  cases  the  defendant  is  not  re- 
lieved, although  the  plaintiff  may  in  some  way  have  contributed  to 
the  injury  sustained. 

§  2922,  A  person  professing  to  practice  surgery,  or  the  admin- 

tice'^o^f^sur-  ^Storing  of  medicine  for  a  compensation,  must  bring  to  the  exer- 
cise of  his  profession  a  reasonable  degree  of  care  and  skill.  Any 
injury  resulting  from  a  want  of  such  care  and  skill  will  be  a  tort 
for  which  a  recovery  may  be  had. 


gery       and 
medicine. 


PT.  2.— TIT.  8.— CHAP.  2.— ART.  2.— Torts.  553 

Section  1.— Libel  and  Slander. 

ARTICLE   II. 
INJURIES     TO      REPUTATION. 


Section  1. — Libel  and  Slander. 
Section  2. — Malicious  Prosecution, 


SECTION  I. 

of  libel   and    slander. 


Section. 

2923.  LibeL 

2924.  Malice. 

2925.  Publication. 

2926.  Slander. 


Section. 

2927.  Charge  of  adultery  with  negro. 

2928.  Truth. 

2929.  Privileged  communications. 

2930.  Malicious  use  of. 


§  2923.  A  libel  is  a  false  and  malicious  defamation  of  another    Libei. 
expressed  in  print,  or  writing,  or  pictures,  or  signs,  tending  to  in- 
jure the  reputation  of  an  individual,  and  exposing  him  to  public 
hatred,  contempt,  or  ridicule.      The  publication  of  the  libelous 
matter  is  essential  to  a  recovery. 

§  2924.  In  all  actions  for  printed  or  spoken  defamation,  malice    Malice. 
is  inferred  ffom  the  character  of  the  charge.     The  existence  of 
malice  may  be  rebutted  by  proof,  which  in  all  cases  will  go  in 
mitigation  of  damages,  and  in  cases  of  privileged  communications, 
will  be  in  bar  of  the  recovery. 

§  2925.  A  libel  is  published  so  soon  as  it  is  communicated  to  any  Publication. 
person  other  than  the  party  libeled. 

§  2926.  Slander,  or  oral  defamation,  consists — first,  in  imputina;    slander. 
to  another  a  crime  punishable  by  law ;  or,  second,  charging  him 
with  having  some  contagious  disorder,  or  being  guilty  of  some  de-      , 
basing  act  which  may  exclude  him  from   society ;  or,  third,  in     * 
charges  made  on  another  in  reference  to  his  trade,  office,  or  pro- 
fession calculated  to  injure  him  therein  ;  or,  fourth,  any  disparag-   . 
ing  words  productive  of  special  damage  flowing  naturally  there- 
from.    In  the  latter  case,  the  special  damage  is  essential  to  sup- 
port the  action ;  in  the  three  former,  damage  is  inferred. 

§2927.  Any  charare  or  intimation  asrainst  a  free  white  female  of     charge  of 

,  ,  ■  intercourse 

havina;  sexual  intercourse  with  a  person  of  color,  is  slanderous  ^^^^^  p^^'- 

o  i  '  son  of  color. 

without  proof  of  special  damage. 


554 


PT.  2.— TIT.  8.— CHAP.  2.— ART.  2.— Tokts. 


Section  2. — Malicious  Prosecution. 


Trutli. 


§  2928.  The  truth  of  the  charge  made  may  always  be  proved  in 
justification  of  the  libel  or  slander. 

§  2929.   The  following  are  deemed  privileged  communications  : 
V  1.  Statements  made  bona  fide  in  the  performance  of  a  public 

Privileged  duty. 

tions.  2.   Similar  statements  m  the  performance  of  a  private  duty, 

either  legal  or  moral. 

3.  Statements  made  with  the  bona  fide  intent,  on  the  part  of 
the  speaker,  to  protect  his  own  interest  in  a  matter  where  it  is 
concerned. 

4.  Fair  and  honest  reports  of  the  proceedings  of  legislative  or 
judicial  bodies. 

5.  Comments  of  counsel,  fairly  made,  on  the  circumstances  of 
his  case,  and  the  conduct  of  parties  in  connection  therewith. 

6.  Comments  upon  the  acts  of  public  men,  in  their  public  capa- 
city, and  with  reference  thereto. 

§  2930.  In  every  case  of  privileged  communications,  if  the  priv- 
Maiicioiis  ileffc  is  uscd  merely  as  a  cloak  for  ventingr  private  malice,  and  not 

use  of.  °  .  "^    .  .  . 

bona  fide  in  promotion  of  the  object  for  which  the  privilege  is 
granted,  the. party  defamed  has  a  right  of  action.        «* 


SECTION   II. 

MALICIOUS     PROSECUTION. 


Section. 

2931.  Malicious  prosecution. 

2932.  Probable  cause. 

2933.  Evidence  of  prosecutor. 

2934.  Grand  Jurors  exempt. 


Section.  \ 

2935.  Measure  of  damag-es. 

2936.  Malice  inferred. 

2937.  What  is  a  prosecution. 

2938.  Wlien  the  right  accrues. 


^(L  0  /  /  §2931.  A  criminal  prosecution,   maliciously  carried  on,   and 

Malicious  without  any  probable  cause  whereby  damasje  ensues  to  the  person 

prosecution.  J    r  »/  o  r 

prosecuted,  gives  him  a  cause  of  action. 

§  2932.  Want   of  probable   cause  shall  be   a  question  for  the 
Probable  jury,  Under  the  direction  of  the  Court,  and  shall  exist  when  the 

cause.  «;      »/  7  7 

circumstances  are  such  as  to  satisfy  a  reasonable  man  that  the 

accuser  had  no  ground  for  proceeding  but  his  desire  to  injure  the 

accused. 

Evidenceof      §2933.  In  investigating  the  question  of   probable   cause,  the 

prosecutor,   evidence  given  by  the  prosecutor  himself  upon  the  criminal  prose- 


PT.  2.— TIT.  8.— CHAP.  2.— ART.  8.—Tqkts.  555 


Section  1. — False  Imprisonment. 


cution,  maj  be  submitted  to  the  jury  by  either  party,  the  credi- 
bility thereof  to  be  determined  by  them. 

§  2934.  No  member  of  a  Grand  Jury  is  liable  to  an  action  for    Grand  ju- 

•^  rors  exempt. 

a  malicious  prosecution  upon  a  presentment  made  by  the  body;  but 
if  such  presentment  is  made  at  the  instigation  of  a  third  person,    instigator, 
from  malice  on  his  part,  and  yritbout  probable  cause,  he  shall  be 
liable  as  if  he  was  named  as  prosecutor. 

§  2935.   The  recovery  shall  not  be  confined  to  the  actual  damage    Measure  o? 
sustained  by  the  accused,  but  shall  be  regulated  by  the  circum- 
stances of  each  case. 

§  2936.  A  total  want  of  probable  cause  is  a  circumstance  from    Maiice  m^ 

icrrcd, 

which  malice  may  be  inferred,  but  such  inference  may  be  rebutted 
by  proof. 

§2937.  An  inquiry  before  a  committino;   Court,  or  Justice  of    what  is  a 

■«•        *'  o  ^  prosecution, 

the  Peace,  amounts  to  a  prosecution. 

§  2938.  The  prosecution  must  be  ended  before  the  right  of  ac-    when  the 

^  *-'  right       ac- 

tion accrues.  «rues. 


ARTICLE  III. 
OTHER     TORTS     TO      THE      PERSON 


Section  1. — False  Impruonment. 

Section  2. — Malicious  Arrest. 

Section  3. — Nuisances  and  other  Injuries  to  Health. 


SECTION   I. 


Section. 

2939.  Definition. 

2940.  Under  warrant 


FALSE     IMPRISONMENT 
Section. 


2941.  Joint  act  of  sev&ral.  Jl./Jff(/^  4'f  f     ^/^ 

§  2939.  False  imprisonment  consists  in  the  unlawful  detention    i)efini{i(>ij.      ^^ 
of  the  person  of  another,  for  any  length  of  time,  whereby  he  is 
deprived  of  his  personal  liberty.   3'^  C(yU\     i\    ■'  '         ?'tj.-H.Jw\    'pf 

§  2940.  If  the  imprisonment  is  by  virtue  of  a  warrant,  neither  ^»<3er  war- 
the  party  bona  fide  suing  out,  nor  the  officer  who  in  good  faith 
executes  the  same,  is  guilty  of  false  imprisonment,  tkoegh  the 


rant. 


556 


PT.  2.— TIT.  8.— CHAP.  2.— ART.  3.— Torts. 


Section  2. — Malicious  Arrest. 


r  y/7  /V^-^     warrant  be  defective  in  form,  or  be  void  for  want  of  jurisdiction. 
Presump-  In  sucli  cascs  the  good  faith  must  be  determined  from  the  circum- 
stances of  each  case.     The  same  is  true  of  the   judicial   officer 
issuing  the  warrant,  the  presumption  being  always  against  him  as 
to  good  faith,  when  he  has  no  jurisdiction. 

§  2941.  If  the  imprisonment  be  the  act  of  several  persons,  the 
Joint  act  party  may  sue  them  jointly  or  separately,  and  if  jointly,  all  shall 
be  responsible  for  the  entire  recovery. 


,c^fy 


SECTION   II. 

MALICIOUS     ARREST 


Section. 

2942.  Definition. 

2943.  Malice, 


Section-. 

2944.  Probable  cause. 

2945.  Person  exempt. 


§  2942.  An  arrest  under  process  of  law,  without  probable 
Definition,  causc,  whcn  douc  maliciously,  gives  a  right  of  action  to  the  party 
arrested. 

§  2943.  Malice  may  consist  in  personal  spite,  or  in  a  general 
disregard  of  the  right  consideration  of  mankind,  directed  by 
chance  against  the  individual  injured. 

§2944.  ''Want  of  probable  cause"  is  the  same  in  this  action 
as  in  ''malicious  prosecution." 

§  2945.  The  willful  arrest,  under  civil  process,  of  a  person  ex- 
empt by  law  from  such  arrest,  shall  be  deemed  malicious  until  the 
contrary  is  proved. 


Malice. 


Probable 
cause. 


Person  ex 
empl. 


SECTION  III. 


NUISANCES    AND    OTHER    INJURIES    TO    HEALTH. 


Section. 

2946.  Public  or  pi'ivate, 

2947.  Special  damage. 

2948.  Injury  to  person  or  property. 
.    2949.  What  is  a  nuisance. 

2950,  Right  of  alienee. 


Section. 

2951..  Injunction, 

2952,  Unwholesome  provisions. 

2953,  Adulterated  drugs. 

2954,  Mistake  of  dmggist. 


§  2946.  Nuisances  are  either  public  or  private.     A  public  nui- 
Pubiicand  saucc  is   ouc  which  damaojes  all  persons  who  come  within  the 

private.  ^  o  i 

sphere  of  its  operations,  though  it  may  vary  in  its  effects  on  indi- 
viduals. A  private  nuisance  is  one  limited  in  its  injurious  effects 
to  one  or  a  few  individuals.     Generally,  a  public  nuisance  gives 


PT.  2.— TIT.  8.— CHAP.  2.-^ART.  3.— Tort.^.  557 


{Section  3. — Nuisances  and  Other  Injuries  to  Healtli. 


no  right  of  action  to  any  individual,  but  must  be  abated  by  a  pro- 
cess instituted  in  the.  name  of  the  State.  A  private  nuisance 
gives  a  right  of  action  to  the  person  injured. 

§  2947.  If,  however,  a  public  nuisance  causes  special  damage  to        special 
an  individual,  in  vrhich  the  public  do  not  participate,  such  special  ' 

damage  gives  a  right  of  action. 

§  2948.  A  private  nuisance  may  injure  either  the  person  or  pro-    injury  to 

,  .         .  .    ,  (,  .  person       or 

perty,  or  both,  and  in  either  case  a  right  of  action  accrues.  property. 

§  2949.  A  nuisance  is  any  thinar   that  worketh  hurt,  inconve-    '^^hat  is  a 

•^  *-"  ntiisance. 

nience,  or  damage,  to  another ;  and  the  fact  that  the  act  done 
may  otherwise  be  lawful,  does  not  keep  it  from  being  a  nuisance. 
The  inconvenience  complained  of  must  not  be  fanciful,  or  such  as 
would  affect  only  one  of  fastidious  taste,  but  it  must  be  such  as 
would  aifect  an  ordinary  reasonable  man. 

/'     §2950.  The  alienee  of  the  person  owning  the  property  injured,     Eight  of 
/  may  sue  for  a  continuance  of  the  nuisance;  so  the  alienee  of  the 
/    property  causing  the  nuisance  is  responsible  for  a  continuance  of  / 

I     the  same.     In  the  latter  case,  there  must  be  a  request  to  abate  be-  y 

\     fore  action  brought. 

§  2951.  Where  the   consequences  of    a  nuisance   about   to  be  iDjtanction, 
erected  or  commenced  will  be   irreparable  in  damages,  and   such 
consequences  are   not  merely  possible,  but  to  a  reasonable  degree 
certain,  a  Court  of  Equity  may  interfere  to  arrest  a  nuisance  be- 
fore it  is  completed. 

§  2952.  A  person  who  knowingly  or  carelessly  sells  to  another     tinv/Loie-^ 

IT  ••  o  I'liifi-  1  some       pro- 

unwnolesome  provisions  oi  any  kind,  the  detect  being  unknown  to  visions. 
the  purchaser,  and  damage  results  to  the  purchaser,  or  his  family, 
or  his   property,  such  person   shall  be  liable  in  damages  for  such 
injury. 

§  2953.  A  person  who,  knowingly  or  carelessly,  by  himself  or     Adaitera- 
his  agents,  sells  to  another  adulterated  drugs  or  liquors,  by  the 
use  of  which  damage  accrues  to  the  purchaser,  or  his  patients,  or 
his  family,  or  his  property,  shall  be  liable  in  damages  for  the  in- 
jury done. 

§  2954.  If  a  vendor  of  druses  and  medicines,  by  himself  or  his    Mistake  of 

.  .  -      .     druggist. 

agent,  either  knowingly  or  negligently  furnishes  the  wrong  arti- 
cle or  medicine,  and  damage  accrues  from  the  use  of  the  drug  or 
medicine  furnished,  to  the  purchaser,  or  his  patients,  or  his  fam- 
ily, or  his  property,  the  vendor  shall  respond  in  damages  for  the 
injury  done.     If  death  ensues  to  the  purchaser,  in  any  case  arising 


558 


PT.  2.>^TIT.  S.— CHAP.  2.-^ART.  S.— Torts. 


Section  4.~-Indirect  Injuries  to  the  Person. 


under  tliii*  or  the  two  foregoing  paragraphs,  the  right  of  action 
shall  be  to  the  widow  or  children,  as  prescribed  in  cases  of  physi* 
cal  injuries* 


SECTION"  IT. 

OF  INDIRECT  INJURIES  TO  THE  PERSO!^. 


SECTION. 

2955.  Negligence  fey  trustee* 

2956.  Abducting  or  harboring  wife. 

2957.  Criminal  conversation. 
2958*  Seduction  of  daughter^ 


SkCTioK. 

2959.  Eurnishing  liquor  to  mifior  soUi 

2960.  Or  gaming  Witli  him. 
2961t  Procurer  of  wrong,  etc. 


§  2955.  In  every  case  of  trust  or  confidence  reposed,  in  consid* 
Kegiigence  eratiou  of  a  reward  paid  or  promised,  negligence  in  the  person 

b.y  trustee.  .     .  .  . 

trusted,  to  the  injury  of  the  other,  will  give  a  right  of  action. 
1 2956.  A  husband  has  a  right  of  action  against  another  for 
Abducting  abductino"  or  harboring  his  wife.     Furnishing:  shelter  and  food  to 

or  harboring  _  ^  '-'  '-'  ^ 

^^AfcK  a  wife  driven  from  her  home  hj  cruel  treatment  is  an  act  of  hu* 

manity,  and  gives  no  right  to  the  husband. 

§  2957.  Adultery,  or  criminal  conversation  with  a  wife  gives  a 
Crim.  con.  right  of  actiou  to  the  husband.     In  such  cases,  proof  of  the  mar- 
riage may  be  made  by  general  reputation,  and  the  parties  living 
together  as  man  and  wife. 

§  2958.  ^he  seduction  of  a  daughter  unmarried  and  living  with 
Seduction  her  parent,  whether  followed  by  pregnancy  or  not,  gives  a  right 
of  action  to  the  father,  or  to  the  mother,  if  the  father  be  dead,  or 
absent  permanently,  or  refuses  to  sue.  No  loss  or  service  need  be 
alleged  or  proved.  The  seduction  is  the  gist  of  the  action,  and  in 
well  defined  cases  the  damages  should  be  exemplary. 

§  2959.  A  father,  or  if  the  father  be  dead,  a  mother  shall  have 
Furnishing  a  Yiaht  of  actlou  asjaiust  auv  person  who  sells  or  furnishes  spirit* 

liqi^ortorai-  °     .  °  "^    ^  a  •  j 

nor  son.       uous  liquors   to  his   or  her  son  under  age,  for  his  own  use,  and 
without  his  or  her  permission. 

§  2960.  A  like  right  of  action  shall  accrue  against  any  person 
Gaming  who  shall  t)lay  and  bet  at  anv  2;ame  of  chance  with  a  minor  son 

with  him.  ^     '^  ,  •^    ^ 

for  money  or  other  thing  of  value. 

§  2961.  In  all  cases  he  who  maliciously  procures  an  injury  to  be 
Procurer  doue  to  another,  whether  it  be  an  actionable  wrong  or  a  breach  of 

of  wrong  is  ,    ^  .    .  ,  ,  ,  i       •  i  i 

Joint  wrong- contract,  iS  a  joint  wrong-doer,  and  may  be  sued  either  alone  or 


jointly  with  the  actor* 


PT.  2.— TIT.  8.— CHAP.  3.— Torts. 


559 


Article  1. — Injuries  to  Ileal  Estate. 


CHAPTER  III. 

OF     INJURIES     TO     PROPERTY. 


Article  1. — To  Real  Estate. 
Article  2. —  To  Personalty  Generally, 
Article  3. — To  Railroad  Companies. 


ARTICLE    I. 


to   real   estate. 


296'2.  Interfering  With  enjoy meiitj  etc. 

2963.  Right  of  possession. 

2964.  Bare  possession. 

2965.  Bare  title. 

2966.  Disputed  possession. 


Section. 

2967.  Water  courses. 

2968.  Underground  streams. 

2969.  Rights  above  and  below  surface. 

2970.  Right  of  way  or  of  common. 

2971.  Slander  of  title. 


Right   of 
possession. 


Bare  title. 


§  2962.  The  right  of  enjoyment  of  private  property  being  an   interfering 

,,  .,p  ..  f,  t  A  •    ^  ^^^^^    enjoy* 

absolute  right  oi  every  citizen,   every  act  oi  another  which  un-mentof, 
lawfully  interferes  with  such  enjoyment,  is  a  cause  of  action. 

§  2963.  The  bare  right  of  possession  to  lands  authorizes  their 
recovery  by  the  owner  of  such  right,  and  also  damages  for  the 
withholding  of  the  right. 

§  2964.  The  bare  possession  of  lands  authorizes  the  possessor  to    Bare  pes- 
recover  damages  from  any  person  who  wrongfully,  in  any  manner, 
interferes  with  such  possession.* 

§  2965.  The  person  having  title  to  lands,  if  no  one  is  in  actual 
possession  under  the  same  title  with  him,  may  maintain  an  action 
for  a  trespass  thereon ;  and  if  a  tenant  be  in  possession,  and  the 
trespass  be  such  as  injures  the  freehold,  the  owner,  or  a  remain- 
der-man, or  reversioner,  may  still  maintain  trespass. 

§  2966.  Where  two  persons  claim  to  have  actual  possession  of 
the  same  land,  he  is  deemed  in  possession  who  has  the  legal  title,  ^  / 

and  the  other  is  a  trespasser.  -^ 

§  2967.  The  owner  of  land  is  entitled  to  the  free  and  exclusive        water 
enjoyment  of  all  water  courses,  not  navigable,  flowing  over  his 
land ;  and  the  diverting  of  the  stream,  wholly  or  in  part,  from  the 


Disputed 
possession. 


courses. 


*  See  Title  6,  Chapter  7. 


560  PT.  2.— TIT.  8.--^CHAP.  3.—Torts. 


Article  2. — Injuries  to  Personalty  Generally. 


same,  or  the  obstructing  tbxereof  so  as  to  inipede  its  course  or  cause 
it  to  overflow  or  injure  his  land,  or  any  right  appurtenant  there- 
unto, or  the  adulterating  thereof  so  as  to  interfere  with  its  value 
to  him,  is  a  trespass  upon  his  property. 

§  2968.  The  course  of  a  stream  of  water  underground,  and  its 
Under-  exact  Condition  before  its  first  use  are  so  difficult  of  ascertainment, 

2  r  o  u  n  d. 

streams,      that  trespass  can  not  be  brought  for  any  supposed  interference 
with  the  rights  of  a  proprietor. 

§  2969.   The  owner  of  realty  having  title  downwards   and  up- 
Eights  wards  indefinitely,  an  unlawful  interference  with  his  rights,  below 

above      and  *^  '  o         ^^ 

surface  ^^^  ^^  abovo  the  surface,  alike  gives  him  a  right  of  action. 

§2970.  The  unlawful  interference  with  the  right  of  way,  or  of 
Eight  of  common,  is  a  trespass  to  the  party  entitled. 

way,  etc.  ^  ^  i         »/ 

§  2971.  The  owner  of  any  estate  in  lands  may  maintain  an  ac- 
ttae^°^*^^  <^^  tion  for  libelous  or  slanderous  words,  falsely  and  maliciously   im- 
pugning his  title,  if  any  damage  has  accrued  to  him  therefrom. 


ARTICLE  11. 

OP    INJURIES    TO     PERSONALTY     GENERALLY. 


Section. 

2972.  Injury  to  possession. 

2973.  Mere  possession. 

2974.  Trover. 


Section. 

2975.  Trespass. 

2976.  In  cases  bf  bailment. 

2977.  Remainder  interest. 


sessiob, 


§  2972.  The  owner  of  personalty  is  entitled  to  the  possession 
Dossessson*^  thereof.     Any  deprivation  of  such  possession  is  a  tort  for  which 
an  action  lies. 

§  2973.  Mere  possession  of  a  chattel,  if  without  title,  or  wrong- 
Sb  ^^^  f^^ly?  ^'^  gi^®  ^  right  of  action  for  any  interference  therewith,  ex- 
cept as  against  the  true  owner  or  the  person  wrongfully  deprived 
of  possession. 

§  2974.  Troyer  may  be  used  as  a  form  of  action  to  recover  the 
Trover,     possession  of  chattcls,  an  alternative  verdict  in  damages  to  be  dis- 
charged on  delivery  of  the  property,  being  taken  ;  but  it  shall  not 
be  necessary  to  prove  any  conversion  of  the  property  where  the 
defendant  is  in  possession  when  the  action  is  brought. 

§  2975.  Any  abuse  of  or  damage  done  to  the  personal  property 
Trespass,  of  another  unlawfully,  is  a  trespass  for  which  damages  may  be  re- 
covered. 


PT.  2.— TIT.  8.— CHAP.  3.— Torts. 


561 


Article  3. — Injuries  by  Railroad  Companies. 


§2976.  In  cases  of  bailments,  where  the  possession  is  in  the    in  cases  of 

,  .  .  .  bailments. 

bailee,  a  trespass  committed  during  the  existence  of  the  bailment 
will  give  a  right  of  action  to  the  bailee  for  the  interference  with 
his  special  property,  and  a  concurrent  right  of  action  to  the  bailor 
for  the  interference  with  his  general  property.  - 

§  2977.  A  remainder-man,  or  reversioner  of  personalty,  may  .  Remainder 

"^  '  r  ,/  7  ./    interests. 

maintain  an  action  against  a  wrong-doer  for  any  injury  going  to  >.  //'  ^  ^ 
destroy  the  existence  or  ultimate  value  of  the  property.  In  such  ^  ^  / 
cases  the  tenant  in  possession,  and  remainder-man  or  reversioner,  ^  2x4-  ) 
may  sue  jointly  for  the  injury  to  the  entire  estate,  the  recovery 
being  held  under  like  limitations. 


ARTICLE  III. 

OF    INJURIES    BY    RAILROAD     COMPANIES. 


Section. 

2978.  Damages  for  right  of  way. 

2979.  Damage  by  running  of  cars,  etc. 

2980.  Consent  or  negligence. 

2981.  Injury  by  co-employee. 

2982.  Record  of  stock  killed. 

2983.  Report  of  marks  and  brands. 

2984.  Report  to  be  posted. 

2985.  Liability  of  overseer. 

2986.  Railroad  liable — when. 


Section. 

2987.  Damage  to  stock. 

2988.  Notice  to  railroad. 

2989.  Form  of  notice. 

2990.  Trial,  judgment,  etc. 

2991.  Appeal. 

2992.  Levy  and  sale. 

2993.  Disposition  of  proceeds. 

2994.  Tender  of  damages. 

2995.  Suits  by  a  partner,  etc. 


§  2978.  In  controversies  with  respect  to  the  damages  to  be  as-  Damages  for 
sessed  for  the  right  of  way  under  any  railroad  charter,  the  award 
of  a  majority  of  the  appraisers  appointed  under  the  charter  shall 
be  sufficient.  ' 

§  2979.  A  railroad  company  shall  be  liable  for  any  damage  done      Damages 

,  .  „      ,       ,  ty     running 

to  persons,  stock,  or  other  property,  by  the  running  of  the  loco-  of  cars,  etc. 
motives,  or  cars,  or  other  machinery  of  such  company,  or  for  dam- 
age done  by  any  person  in  the  employment  and  service  of  such 
company,  unless  the  company  shall  make  it  appear  that  their 
agents  have  exercised  all'  ordinary  and  reasonable  care  and  dili- 
gence— the  presumption  in  all  cases  being  against  the  company. 

§  2980.  No  person  shall  recover  damage  from  a  railroad  com- 
pany for  injury  to  himself  or  his  property,  where  the  same  is  done 
by  his  consent,  or  is  caused  by  his  own  negligence.     If  the  com- 
plainant and  the  agents  of  the  company  are  both  at  fault,  the  for- 
36 


4V.. 


Vt  ^/r/-/^' 

^-^ 


Consent  or 
negligence. 


O  4 


'^ 


l^iito 


562  PT.  2.— TIT.  8.— CHAP.  3.-^Torts. 

Article  3. — Injuries  by  Railroad  Companies. 

mer  may  recover,  but  the  damages  shall  be  diminished  by  the  jury 

in  proportion  to  the  amount  of  default  attributable  to  him. 

fXi    ^^   /^  §  2981.  If  the  person  injured  is  himself  an  employee  of  the 

co^emTo  ^e  c^'^P^^J)  ^^^  *^®  damage  was  caused  by  another  employee,  arid 

/;^     without  fault  or  negligence  on  the  part  of  the  person  injured,  his 

■  '-       employment  by  the  company  shall  be  no  bar  to  the  recovery. 

§  2982.  Every  railroad  company  shall  require  of  every  engine- 
t"^k  MHe?  ^^^^6^  employed  by  them  to  render  daily,  to  a  proper  officer,  an 
account  of  any  stock  or  other  property  injured  as  aforesaid,  which 
returns  shall  be  kept  recorded  in  a  book,  and  open  for  the  inspec- 
tion of  all  persons.     For  the  failure  to  keep  such  a  record,  and  to 
require  such  return,  the  company  shall  be  liable  for  ten  per  cent, 
extra  damage  to  every  person  whose  property  is  injured  by  them. 
§  2983.  [All  overseers  or  track-menders  on  the  different  rail- 
of  oYertetTs  ^^^^^  ^^  *^is  State,  shall  file  weekly  with  the  station  agents,  a  list 
®*^'  of  the  different  marks  and  brands  of  all  stock  killed  upon  their  re- 

spective sections  the  preceding  week,  so  as  to  be  compelled  to 
identify  in  their  weekly  report,  on  what  part  of  their  section  such 
stock  was,  or  may  have  been  killed,  by  some  designated  place  on 
said  section.]  (a) 

§  2984.  [Said  list  shall  be  placed  in  a  conspicuous  place,  in  the 
be^^osted—  ^^^^  ^^  *^®  ^^^^  Station  agents,  for  the  inspection  of  all  persons 
where.        conccmed.]  (a) 

§  2985.  [Upon  failure  of  any  overseer  or  track-mender  to  com- 

— whJn^na-  V^J  ^^^^  *^®  provisions  of  Section  2983,  he  shall  be  liable  to  pay 

^^^'  the  owners  of  said  stock,  double  the  value  of  all  stock  killed  on 

his  particular  section,  and  not  reported  during  such  failure ;  the 

same  to  be  recovered  in  the  same  manner  as  now  provided  by  law 

for  the  collection  of  claims  for  stock  killed  on  railroads  in  this 

.-    State.]  (a) 

§  2986.  [In  case  the  overseer  or  track-mender  is  insolvent,  then 

companyiLv  ^^^  ^^  *^^^  casc,  the  railroad  company  in  whose  employ  they  are, 

bie— when.    g]^^]j  ^^  liable  to  pay  according  to  the  provisions  of  Section  2985  : 

provided,  that  in  all  cases,  where  the  penalty  shall  be  collected 

from  the  overseer  or  track-mender,  the  liability  of  the  railroad 

company  in  whose  employment  they  may  be,  shall  thenceforth 

•io.  cease.]  (a) 

§  2987.  [The  several  railroad  companies  in  this  State,  including 

(a)  Acts  of  1863-4,  pp.  65-6. 


PT.  2.— TIT.  S.—CHAP.  3.— Torts.  563 

Article  8. — Injuries  by  Railroad  Companies, 
the  Western  and  Atlantic  Railroad,  shall  be  held  liable,  under  the    i>auia-eto 

live  stock. 

rules  hereinafter  prescribed,  for  any  damage  done  to  any  live  stock 
«or  other  property  (except  for  the  assessment  of  damages  for  right 
of  way),  to  the  owner  or  owners  thereof,  by  the  running  of  cars, 
locomotives  or  other  machinery  upon  their  roads  respectively,  and 
for  damage  done  by  any  person  or  persons,  in  the  employ  or  ser- 
vice of  such  railroad  companies,  and  for  damage  done  by  any 
such  railroad  company  by  any  means  whatever.]  (a) 

§2988.  [Any  person  whose  stock  has  been  or  may  be  killed,  ..^o^^^  *« 
wounded,  or  injured,  or  whose  property  has  been  destroyed  or 
damaged  (with  the  exception  contained  in  the  preceding  Section) 
by  the  running  of  any  cars,  engines,  locomotives,  or  other  ma- 
chinery used  by  a  railroad  company,  on  any  railroad,  or  by  any 
act  done  by  any  person  or  persons  in  the  employ  of  a  railroad 
company,  or  the  officers,  agents,  engineers,  or  conductors  of  any 
such  company,  may  serve  a  written  notice,  describing  the  kind  of 
stock  killed,  crippled,  or  injured,  and  the  particular  kind  of  prop- 
erty damaged  or  destroyed,  which  notice  shall  contain  a  state- 
ment of  the  time  and  place,  as  near  as  can  be  ascertained,  when 
and  where  the  damage  was  done,  and  may  be  served  personally 
upon  any  employee  of  such  company,  at  any  place  where  such 
officer  or  agent  in  the  employ  or  service  of  such  company  may  be 
found,  at  least  three  days  previous  to  the  day  of  trial,  or  by  leav- 
ing a  copy  of  such  notice  at  the  residence  of  such  employee  five 
days  previous  thereto,  and  which  notice  shall  be  served  at  any 
time  within  three  months  after  the  happening  of  the  injury  com- 
plained of,  and  not  after — which  service  shall  be  deemed  and  held 
sufficient  notice  to  such  company  to  authorize  the  Court  to  pro- 
ceed to  give  judgment  as  in  cases  of  debt.]  (a) 

§  2989.  [A  notice  in  substance  and  form  as  follows,  subject  to     Form  of 
such  alterations  and  additions  as  the  circumstances  of  the  case 
may  require,  shall  be  deemed  sufficient: 

GEOnaiA 


^     '         y     To  THE Railroad  Company  : 

County,   J 

You  are  hereby  notified,  that  within  the  last  three  months,  to  wit, 

on  the day,  or  night,  of ,  you  damaged  the  subscriber,  by 

killing,  or  destroying  (as  the  case  may  be,)  (here  mention  the  par- 

(a)  Acts  of  1853-4,  pp.  93-4^5,  as  amended  by  Act  of  1863 ;  Laws  of  1862-35 
p.  159. 


I 


564  PT.  2.— TIT.  8.— CHAP.  3.~Torts. 

Article  3. — Injuries  by  Railroad  Companies. 


ticular  damage  done,  and  the  kind  or  species  of  property  injured 
or  destroyed,  belonging  to  him  or  her),  by  the  running  of  a  car,  en- 
gine, or  locomotive,  or  other  machinery  on  your  road ;  and  desi- 
ring that  the  amount  of  damages  may  be  legally  assessed,  you  are 
hereby  required,  by  agent  or  attorney,  or  in^  person,  to  appear  at 

the  Justice's  court-ground  in  the district  G.  M.,  (inserting 

the  number  of  the  district  in  which  the  damage  was  done)  by  ten 

o'clock  A.  M.   on  -;; ■  next,  then   and  there  to  show  cause,   if 

any  exist,  why  the  damage  shall  not  be  assessed  according  to  law. 
This day  of »-,  18—.  John  I>oe.]  (a) 

§  2990.  [In  all  cases  the  plaintiff  shall  state  in  his  notice  that 
Triiinjiidg- ^Ijq  damages  do  not  exceed  thirty  dollars.  The  Justice  of  the 
srecution.  Pgacc  in  the  district  shall  attend  at  the  court-ground  in  the  dis- 
trict, at  the  time  specified  in  the  notice,  hear  the  evidence  pro- 
duced, determine  the  amount  of  damages,  and  enter  up  judgment 
therefor,  with  costs ;  and  the  plaintiff  may  give  testimony  himself, 
as  any  other  witness.  A  judgment  entered  up  under  the  provis- 
ions  of  this  Section,  by  the  Justice  of  the  Peace,  shall  be  final 
and  conclusive  between  the  plaintiff  and  railroad  company, 
touching  the  particular  matter  for  which  such  judgment  may  be 
rendered,  except  as  hereinafter  provided  for  on  appeal.  The  Jus- 
tice of  the  Peace  shall  forthwith  issue  his  execution  in  favor  of 
the  plaintiff  against  the  defendant  for  such  damages  as  may  have 
been  assessed,  with  all  the  costs  which  may  have  accrued — -which  exe- 
cution shall  be  directed  to  all  and  singular  the  Sheriffs  and  Consta- 
bles of  the  State  of  Georgia,  and  may  be  levied  and  executed  by 
any  levying  officer  in  any  County  of  this  State  where  the  property 
may  be  found.]  (a) 

§  2991.  [The  railroad  company,  by  its  officer,  agent,  or  attor- 
Appeal,  ney  at  law,  may  at  any  time  after  such  judgment  is  rendered,  and 
before  a  sale  under  the  execution,  enter  an  appeal,  by  filing  with 
the  Justice  of  the  Peace  or  levying  officer  an  affidavit  that  the 
amount  of  such  judgment  or  verdict  is,  to  the  best  of  his  belief, 
not  justly  due  to  the  plaintiff;  whereupon,  and  on  the  .payment  of 
all  costs,  the  said  Justice  of  the  Peace  and  Sheriff  shall  return  to 
the  Clerk  of  the  Superior  Court  of  the  County  where  the  suit 
commenced,  all  the  papers  in  their  hands,  and  also  said  affidavit; 

(a)  Acts  of  1853-4,  pp.  93-^5,  as  amended  by  Act  of  18G3 ;  Laws  of  1862-3, 
p.  159. 


PT.  2.— TIT.  8.— CHAP.  3,— Torts.  565 


Article  3. — Injuries  by  Railroad  Companies. 


veilistinejtt, 


and  the  said  Court  shall  proceed  to  try  said  cause  in  the  same 
manner  and  under  the  same  restrictions  as  other  appeal  causes  are 
tried,  and  award  judgment  and  execution  accordingly.]  (a) 

§  2992.  [When  a  Sheriff  or  Constable  shall  levy  an  execution  I'l^vy, 
issued  under  the  provisions  of  the  foregoing  Sections,  upon  prop-  and  sale. 
erty  of  the  defendant,  he  shall  advertise  the  same  for  at  least  fif- 
teen days,  in  some  public  gazette,  published  weekly,  on  the  line 
or  at  the  terminus  of  said  road,  in  this  State,  and  to  proceed  to 
sell  the  same  for  the  satisfaction  of  such  damages  and  costs;  and 
such  levying  officer  shall  be  entitled  to  a  commission  of  ten  per 
€ent.  for  selling,  besides  two  dollars  for  advertising  and  one  dollar 
for  the  levy.]  (a) 

§  2993.   [The  cost,  in  all  cases,  shall  be  the  first  money  paid.   Disposition 
and  after  satisfying  the  plaintiff's  demand,  the  excess,  if   any,  ofsai™^^ 
arising  from  such  sale  shall  be  subject  to  the  order  of  the  Presi- 
dent of  such  company.]  (a) 

§  2994.  rNothinsT  in  the  seven  preceding?  Sections  shall  prevent  Tenderacd 
n  railroad  company,  or  the  agent  or  employee  of  such  company, 
who  may  be  served  with  a  notice  of  a  damage  done,  from  tendering 
to  the  owner  of  such  property  damaged  or  destroyed,  a  reasonable 
amount,  as  a  compensation  for  the  damage  so  done,  which,  if  ac- 
cepted by  the  party  aggrieved,  shall  stop  all  further  proceedings ; 
but  the  injured  party  may  or  may  not  accept  the  sum  tendered, 
and  if  he  refuse  and  proceed  to  investigate  the  matter,  under  the 
provisions  of  the  seven  preceding  Sections,  and  shall  fail  to  re- 
cover a  larger  amount  than  the  sum  so  tendered,  he  shall  pay  all 
costs,  and  the  railroad  company  shall  be  discharged  from  further 
liability,  by  paying  the  damages  assessed ;  and  in  all  cases  when 
an  injured  party  shall  claim  damages  exceeding  thirty  dollars, 
suit  shall  be  brought  in  the  Superior  Court,  by  written  notice, 
served  upon  the  nearest  agent  or  officer  of  said  railroad  company 
to  plaintifi''s  residence,  or  by  leaving  a  copy  at  their  place  of  doing 
business  twenty  days  before  Court.]  (a) 

§  2995.  [In  all  cases  where  any  species  of  live  stock  or  other    siiits  by  a 
property  shall  be  killed,  injured,  or  destroyed  by  the  running  of  ]Snt"ownor 
am  engine,  locomotive,  car,  or  other  machinery  upon  any  railroad 
in  this  State^  which  belongs  to  partners  or  joint  owners,  or  where 


(a)  Acts  of  1853-4,  pp.  93-4-5  as  amende'd  by  Act  of  1863 ;  Laws  of  1863-3, 
.  159. 


5m  PT.  2.— TIT.  8.— CHAP.  4.— Torts. 


Article  1. — Justification. 


the  owner  is  absent,  any  one  of  the  partners  or  joint  owners,  or 
any  authorized  agent  of  the  absent  owner,  shall  have  power  to 
institute  suit  in  his  own  name  against  the  railroad  company  liable- 
for  the  damages ;  and  any  verdict  or  judgment  obtained  against 
such  company,  by  a  part  owner,  or  agent  of  an  absent  owner,  shall 
be  a  full  and  complete  bar  to  the  recovery  of  any  other  part  owner, 
or  the  absent  owner,  in  respect  to  the  particular  matter  investiga- 
ted, and  the  cost  shall  be  taxed  as  provided  in  other  cases  of 
debt.]  (a) 


CHAPTER    lY. 

OF   DEFENSES, 


Article  1. — Of  Justification, 

Article  2. — Of  Satisfaction  and  Herein  of  Tender, 
Article  3. — Of  Limitation  of  Actions. 
Article  4. — Other  Defenses. 


Skction. 

2996.  Justification!!. 

2997.  Extenuation. 


ARTICLE  I. 

OF     JUSTIFICATION. 


Section. 

2998.  Consent, 


f(\    /^O      §2996.  In  every  ease  of  tort,  if  the  defendant  was  authorized 

justiflca-  |)j  law  to  do  the  act  complained  of,  he  may  plead  the  same  as  a 

justification ;    by  such  plea  he  admits  the  act  to  be  done,  and 

shall  be  entitled  to  all  the  privileges  of  one  holding  the  affirmative 

of  the  issue. 

§  2997.  What  does  not  amount  to  justification  may  be  pleaded 
tion.'^  ^°^'^  in  extenuation  and  mitigation  of  damages. 

§  2998.  As  a  general  rule,  there  can  be  no  tort  committed  to  a 
Consent,    persou  Consenting  thereto,  if  that  consent  be  free  and  not  ob- 
tained by  fraud,  and  be  the  action  of  a  sound  mind.     The  consent 

(a)  Acts  of  1853-4,,  pp.  93-4-5,  as  amended  by  Act  of  1863  ;  Laws  of  1862-3, 
p.  159. 


PT.  2.— TIT.  8.— CHAP.  4.— Torts.  567 

Article  3. — Satisfaction  and  Herein  of  Tender. 


of  a  person  incapable  to  consent,  as  a  minor,  and  in  some  cases  a 
married  woman,  can  not  affect  the  rights  of  the  husband,  parent, 
or  guardian. 


ARTICLE  II. 

OF     SATISFACTION     AND     HEREIN     OF     TENDER. 


Section. 

2999.  Satisfaction. 

3000.  Compounding  a  felony. 


Section. 

3001.  Tender  of  damages. 

3002.  Tender  in  trover. 


§  2999.  If  the  tort  complained  of  does  not  amount  to  a  crime,  [Satisfaction. 
the  person  injured  may  consent  to  a  satisfaction  and  settlement  5  X     /       . 
thereof;  and  if  it  does  amount  to  a  crime,  the  person  injured  may    y 
agree  upon  and  receive  compensation  for  the   personal  injury.     "^ 
Any  attempt,  however,  to  satisfy  the  public  offense,  or  to  sup--  ---. 
press  a  prosecution  therefor,  is   illegal,  and  vitiates  the   entire  ^«-^«*^^ 

agreement,  except  in  those  cases  where  the  law  expressly  allows 
of  such  a  settlement. 

§  3000.  If  the  offense  sought  to  be  satisfied,  or  the  prosecution  compound- 

1  f»ii  '        •^p  ^'^S  ^  felony. 

sought  to  be  suppressed,  amounts  to  a  felony,  the  agreement  itself 
is  an  offense  under  the  Penal  Code,  and  though  executed,  is  no  de- 
fense to  an  action  for  the  tort.  But  if  the  offense  is  not  a  felony, 
and  the  agreement  is  fully  executed,  it  shall  be  a  satisfaction  for 
the  private  tort. 

§  3001.  A  person  committing  a  tort  to  the  person  or  property,  Tender  of 
may,  before  or  after  suit  brought,  tender  to  the  person  injured 
such  an  amount  of  damages  as  in  his  judgment  covers  the  injury, 
^nd  if  the  same  be  rejected,  he  may  deposit  the  amount  in  the 
office  of  the  Clerk  of  the  Superior  Court  of  the  County  of  his 
residence,  as  a  continued  tender;  and  if  the  jury  trying  the  cause 
shall  give  no  more  damages  than  the  amount  tendered,  the  plain- 
tiff shall  recover  no  costs  accruing  subsequent  to  the  time  of  the 
•tender. 

§  3002.  In  actions  for  the  recovery  of  personal  property,  if  the  Tender  in 
defendant,  at  the  first  term,  will  tender  the  property  to  the  plain- 
tiff, together  with  reasonable  hire  for  the  same  since  the  conver- 
sion, disclaiming  all  claim  of  title,  the  costs  of  the  action  shall 
be  paid  by  the  plaintiff,  unless  he  can  prove  a  previous  demand 
of  the  defendant,  and  a  refusal  to  deliver  it  up. 


trover. 


568  PT.  2.— TIT.  8.— CHAP.  4.— Torts. 


Article  3. — Limitation  of  Actions. 


ARTICLE  III. 

.OF     LIMITATION     OF     ACTIONS. 


Section. 

3003.  Damages  to  realty. 
3061  To  personalty. 


Section. 

3005.  To  the  person. 

3006.  Disabilities. 


§  3003.  All  actions  for  trespass  upon,  or  damages  to  realty. 
Damages  shall  bo  brought  within  four  years  after  the  risrht  of  action  ac- 

to  realty.  *=  '^  °  -».-——     „-. 

crues. 

§  3004.  Actions  for  injuries  to    personalty  shall    be   brought 
aity?^^  rs  n  ^-^j^-j^  f^^^^  years  after  the  right  of  action  accrues. 

§  3005.  Actions  for  injuries  done  to  the  person  shall  be  brotjght 
To  the  per-  within  two  years   after  the  right   of  action   accrues,  except  for 
injuries  to   the  reputation,   which    shall   be   brought  within  one 
year. 

§  3006.  The  disabilities  and  exceptions  prescribed  in  limiting 
Disabilities,  actious  ou  coutracts  shall  be  allowed  and   held  applicable  to  ac- 
tions for  torts. 


son. 


ARTICLE  IV. 

OF     OTHER     DEFENSES, 


Section. 

3007.  Arbitrament  and  award. 

3008.  Former  recovery,  etc. 


Section. 

3009.  Infancy. 


ment 


§  300T.  Arbitrament  and  award  is  a  good  defense  to  an  action 
"Arbitra-  for  a  tort,  and  the  rules  prescribed  in  reference  to  this  defense  to 

;nt     and  ^  ^ 

award.         ^  coutract,  apply  equally  to  a  tort. 

§3008.  Former  recovery,  and  the  pendency  of   another  suit, 
Formerre-  are  also  ffood  dcfonses,  and  subject  to  the  same  rules  as  when  ap- 

covery,  etc.       t     i  n  • 

plied  to  contracts.  Sometimes  a  party  may  sue  either  for  the 
tort  or  upon  the  contract :  in  such  case,  he  must  elect  on  which 
he  will  proceed. 

§  3009.  Infancy  is  no  defense  to  an  action  for  a  tort,  provided 
Infancy,    the  defendant  has  arrived  at  those  years  of  discretion  and  account- 
ability prescribed  by  this  Code  for  criminal  offenses. 


PT.  2.— TIT.  8.— Torts. 

Chapter  5. — Damages. 


569 


CHAPTER   V. 


OF    DAMAGES. 


Section. 

3010.  General  rule. 

3011.  Aggravation. 

3012.  Vindictive  damages. 

3013.  Necessary  expenses. 

3014.  Division. 

3015.  General  damages. 

3016.  Direct  and  consequential. 

3017.  Too  remote. 


Section. 

3018.  Rule  to  ascertain. 

3019.  Exception  to  the  rule. 

3020.  Against  joint  trespassers. 

3021.  Contribution. 

3022.  Highest  amount  proved. 

3023.  Death,  etc.,  of  property. 

3024.  Verdict  in  trover — effect  on  title. 


§  3010.  Damages  are  given  as  compensation  for  the  injury  done,  Generairuie. 
and  generally  this  is  the  measure  where  the  injury  is  of  a  charac-' '''  /^ 
ter  capable  of  .being  estimated  in  money.     If  the  injury  be  small,  7 ""    "      ,  , 
or  the  mitigating  circumstances  be  strong,  nominal  damages  only*^     "      ^  *^ 
are  given. 

§  3011.  In  every  tort  there  may  be  aggravating  circumstances,      Aggrava- 
either  in  the  act  or  the  intention,  and  in  that  event  the  jury  may  ^  ^;      ^  j-^^ 
give  additional  damages,  either  to  deter  the  wrong-doer  from  re- 
peating the  trespass,  or  as  compensation  for  the  wounded  feelings 
of  the  plaintiff.   - 

§  3012.  In  some  torts  the  entire  iniury  is  to  the  peace,  happi-    vindictive 

,  .  i  --         X  1       damages. 

ness,  or  feelings   of  the  plaintiff;  in  such  cases  no  measure  of  <,  ^       f  {/  (1 

damages  can  be  prescribed,  except  the  enlightened  conscience  of     f^ 

impartial  jurors.     The  worldly  circumstances  of  the  parties,  the 

amount  of  bad  faith  in  the  transaction,  and  all  the  attendant  facts  ir  _/      --^ 

should  be  weighed.  The  verdict  of  the  jury,  in  such  a  case,  should  •  ^  ^' 

not  be  disturbed,  unless  the  Court  should  suspect  bias  or  prejudice 

from  its  excess  or  its  inadequacy. 

§  3013.  In  all  cases,  necessary  expenses  consequent  upon  the     Necessary 

.     .  T  ,       .   .  .  .        ,  .  p    ,  expenses. 

injury  done  are  a  legitimate  item  m  the  estimate  oi  damages.        ^  ^  ^       /s 
§  3014.  Damages  may  be  either  general  or  special,  direct  or    Division. 

consequential. 

§3015.   "General"  damages  are  such  as  the  law  presumes  to      General 

flow  from  any  tortious  act,  and  may  be  recovered  without  proof  of     ^™^^^^* 

any  amount.     "  Special "  damages  are  such  as  actually  flowed  from    special. 

the  act,  and  must  be  proved  in  order  to  be  recovered. 

§  3016.  "Direct"  damages  are  such  as  follow  immediately  upon    Direct  and 

the  act  done.     "  Consequential  "   damages   are  sucL  as  are  the   tiai. 

necessary  and  connected  effect  of  the  tortious  act,  though  to  some 

extent  depending  upon  other  circumstances. 


5T0  PT.  2.— TIT.  8.— ToETS. 

Chapter  5. — Damages. 

§  3017.  If  the  damages  are  only  the  imaginary  or  possible  result 
Too  remote,  of  the  tortious  act,  or  other  and  contingent  circumstances  prepon- 
derate largely  in  causing  the  injurious  effect,  such  damages  are  too 
remote  to  be  the  basis  of  recovery  against  the  wrong-doer. 

§  3018.  Damages  which  are  the  legal  and  natural  result  of  the 
Euietoas-  act  douc,  though  contingent  to  some  extent,  are  not  too  remote  to 

certain.  'ii 

be  recovered.  But  damages  traceable  to  the  act,  but  not  its  legal 
or  material  consequence,  are  too  remote  and  contingent. 

§  3019.  If,   however,  the  tort   is    committed,   or  the   contract 

Exception  broken,  or  the  duty  omitted,  with  a  knowledge  and  for  the  purpose 

of  depriving  the  party  injured  of  such  benefits  as  are  specified  in 

the  last  paragraph,  then  the  remote  damages  are  made  by  such 

knowledge  and  intent  a  proper  subject  for  consideration  by  the 

§  3020.  Where  several  trespassers  are  sued  jointly,  the  plaintiff 

Against  may  recover  against  all,  damages  for  the  greatest  injury  done  by 

passers.       either.     But  the  jury  may  in  their  verdict  specify  the  particular 

damages  to  be  recovered  of  each,  and  judgment  in  such  case  must 

be  entered  severally. 

§  3021.  If  judgment  is  entered  jointly  against  several  trespass- 
contribu-  ers,  and  is  paid  off  by  one,  the  others  shall  be  liable  to  him  for 

tion.  .,        . 

contribution. 

§3022.  In  estimating  the  value  of  personalty  unlawfully  de- 
f    mghest    tained,  the  plaintiff  may  recover  the  his^hest  amount  which  he  can 

{amount  '  ^  »'  ° 

I  proved.        provc  between  the  time  of  the  conversion  and  the  trial. 

§  3023.  The  death,  or  destruction,  or  any  material  injury  to  the 
Death,  etc.,  proDcrty  pending  the  litigation,  shall  be  no  defense  to  a  mere 

of    property  r       r         j      r  O  O  7 

—how  far  a  wronff-doer.     If  the  defendant  is  a  hona   iide  claimant,  and  the 

defense.  ^  ^ 

injury  arises  from  the  act  of  God,  and  in  no  wise  the  result  of 
defendant's  conduct,  the  jury  may  take  the  same  into  considera- 
tion, but  in  no  case  shall  such  an  event  cast  the  costs  upon  the 
plaintiffs. 

§  3024.  An  alternative  verdict  in  an  action  of  trover,  so  far 
Verdict  in  yests  the  title  to  the  property  sued  for  in  the  plaintiff  that,  until 

trover.     Et-  ^  ir      r        J  r  ' 

feet  on  title.  t|ie  judgment  is  paid  by  the  defendant,  such  judgment  shall  have 
the  first  lien  on  the  property  sued  for,  to  the  exclusion  of  all  other 
claims  whatsoever. 

ISToTE. — x\s  to  setting  off  "valuable  improvements "  against  mesne  profits, 
see  Title  7,  Chapter  9,  Article  8. 


PT.  2.— TIT.  9.— Equity. 


5T1 


Chapter  1. — General  Principles. 


TITLE    IX. 


OF       EQUITY 


Chapter 

1. 

Chapter 

2. 

Chapter 

3. 

Chapter 

4. 

Chapter 

5. 

Chapter 

6. 

Chapter 

7.- 

Chapter 

8. 

Chapter 

9. 

Chapter 

10. 

Chapter 

11. 

Chapter 

12. 

Chapter 

13. 

Chapter 

14.- 

•Q-eneral  Principles. 

■Of  Discovery. 

■Of  Perpetuation  of  Testimony/. 

■Of  Accidents  and  Mistake. 

■Of  Accounts  and  Set-off. 

■Of  Administration  of  Assets. 

■Of  Charities. 

■Of  Election. 

■Of  Execution  of  Powers. 

■Of  Fraud. 

Of  Partition. 

■Of  Specific  Performance. 

■Of  Trust  and  Trustee. 

•Of  Extraordinary  Remedies. 


CHAPTER   I. 


GENERAL      PRINCIPLES 


Section'. 

Section. 

3025.  Jurisdiction. 

3036.  Notice. 

8D26.  Grounds  of  relief. 

3037.  Bona  fide  purchaser. 

8027.  Choice  of  form. 

3038.  Both  parties  at  fault. 

3028.  Equity  follows  the  law. 

3039,  Laches. 

3029.  Complainant  must  do  equity. 

3040.  Common  law  remedy. 

3030.  Complete  justice. 

3041.  Concurrent  jurisdiction. 

3031.  What  ought  to  be  done  is 

done. 

3042.  Masters. 

3032.  Equities  equal. 

3043.  Receivers. 

3033.  Volunteers. 

3044.  Attachment  and  execijtion 

3034.  Party  misled. 

3045.  Extent  of  jurisdiction. 

3035.  Equality  is  equity. 

§  3025.  All  equity  jurisdiction  in  this  State  is  vested  in  the  jurisdiction 
Su^rior  Courts  of  the  several  Counties. 

§  3026.  Equity  jurisdiction  is  established  and  allowed  for  the 
protection  and  relief  of  parties  where,  from  any  peculiar  circum- 

3)    "y  t^  6 


Grounds 
of  relief. 


572  PT.  2.— TIT.  9.— Equity. 


Chapter  1. — General  Principles. 


f) 


form. 


J? 


fl^"k'         stances,  the  operation  of  the  general  rules  of  law  would  be  defi- 
'^"^  dentin  protecting  from   anticipated  wrong,  or  relieving  for  inju- 

ries done. 

§  8027.  No  suitor,  howevg^,  is  compelled  to  appear  on  the  equity 

Choice  of  side  of  the  Court ;    but  he  may  institute  his  proceeding  for  an 

/      equitable  cause  of  action  upon  the  common   law  side  of  the  Court 

^    ^      at  his  option,  and  the  Court  may  allow  the  jury  to  find  a  verdict, 

^  J  ^      and  a  judgment  be  rendered  thereon,  so  moulded  and  framed  to  give 

equitable  relief  in  the  case,  as  verdicts   and  decrees  are  rendered 

and  framed  in  equity  proceedings. 

§3028.  Equity  is  ancillary,  not  antagonistic  to  the  law ;  hence 
Equity foi-  equitv  follows  the  law  where  the  rule  of  law  is  applicable,  and  the 

lows  the  law.     ^        -^  ^         ^  t  i:  i 

analogy  of  the  law  where  no  rule  is  directly  applicable. 

§  3029.  He  who  would  have  equity  must  do   equity,  and  give 
Complain-  eifcct  to  all  cquitablc  rights  in  the  other  party  respecting  the  sub- 
equity,        ject-matter  of  the  suit. 

§  SOSO.  Equity  seeks  always  to  do  complete  justice,  and  hence, 

Complete  having  the  parties  before  the  Court  rightfully,  it  will  proceed  to 

Ji^sice.        ^^^  ^^^1  relief  to  all  parties  in  reference  to  the  subject-matter  of 

the  suit,  provided  the  Court  has  jurisdiction  for  that  purpose. 
-rrrt, .     v+      ^  3031.  Equitv  considers  that  done   which  ought  to  be  done. 

What  ought        ^  \       J  t)  7 

done^^^^^^^  and  directs  its  relief  accordingly. 

§  3032.  Where  equities  are  equal,  the  law  will  prevail.     If  equi- 
Equities  tics  are  unequal,  the  superior  equity  must  prevail.     Superior  dili- 
gence as  to  time  will  create  such  inequality. 

§  3033.  The  equity  under  trust  or  contract  for  value  is  superior 
Yoiunteers.  to  that  of  a  mere  volunteer. 

§  3034.  The  equity  of  a  party  who  has  been  misled  is  superior 
jg|'»^*y°^^^'  to  that  of  him  who  willfully  misleads  him. 

§  3035.  In  many  cases,  equality  is  equity  in  the  distribution  of 
is^uity.*^  equitable  assets. 

§  3036.  He  who  takes  with  notice  of  an  equity,  takes  subject 
Notice,      to  that  equity. 

§  3037.  A  hona  fide  purchaser  for  value,  and  without  notice  of 
Bona  fide  an  equity,  will  not  be  interfered  with  by  a  Court  of  Equity. 

§  3038.  When  both  parties  are  at  fault,  and  equally  so,  equity 
Both  par-  ^\\\  not  interfere,  but  leaves   them   where   it  finds  them.     The 

ties  at  fault. 

rule  is  otherwise,  if  the  fault  of  one  overbalances,  decidedly,  that 
of  the  other. 
Laches.         §  3039.  Equity  gives  no  relief  to  one  whose  long  delay  renders 


PT.  2.— TIT.  9.— EQUiTf. 


573 


Chapter  1. — General  Principles. 


the  ascertainment  of  the  truth  difficult,  though  no  legal  limitation 
bars  the  right. 

§  3040.  Equity  will  not  take  coo;nizance  of  a  plain  legal  rierht, ,     common 

^  i€/-  o  roo7  law  remedy. 

where  an  adequate  and  complete  remedy  is  provided  by  law;  but  s  ^■— .       «    /    v 
a  mere  privilege  to  a  complainant  to  sue  at  law,  or  the  existence  of  a    *  /  /s  -•  .(^ 

common  law  remedy,  not  as  complete  or  effectual  as  the  equitable  O  '-^ 

relief,  shall  not  deprive  equity  of  jurisdiction. 

§  3041.  Where  law  and  equity  have  concurrent  iurisdiction,  the   Concurrent 

r\  n  ^   '  '^^  •!  i  ^  •  jurisdiction. 

Court  first  taking  will  retain  it,  unless  a  good  reason  can  be  given  -^^  ^        -^  1  >p" 
for  the  interference  of  equity.  /  / 

§  3042.  In  equity  causes,  the  Court  may  refer  any  part  of  the    Masters.  ^^  ^ 

facts  to  a  master  or  auditor,  and  his  report  thereon  shall  he  prima  q  u^--^/ 4,.-  s^-€'C 
facie  the  truth,  after  allowance  by  the  Court,  either  party  leaving 
the  liberty  to  except.     But  the  final  decision  upon  the  facts  shall 
be  by  a  special  jury.  .^09  i^-- 

§  3043.  Courts  of  Equity  shall  have  authority  to  appoint  receiv-    Eeceivers. 
ers  to  take  possession  of  and  protect  trust  or  joint  property  and  3(5^—  / ^~0 
funds,  whenever  the  danger  of  destruction  and  loss  shall  require  ^.Jo  _    ^^  ^^'^"""^ 
such  interference. 

§  3044.  All  orders  and  decrees  of  the  Court  may  be  enforced       Attach- 

*^  mentandes- 

by  attachment  against  the  person ;   decrees  for  money  may  be  ecution. 
enforced  by  execution  against  the  property. 

§  3045.  Generally,   equity    lurisprudence   embraces    the   same     Extent  of 

-p  ,  .  jariadiction. 

matters  of  jurisdiction  and  modes  of  remedy  m  Georgia  as  was 
allowed  and  practiced  in  England. 


CHAPTER   II. 

OF  DISCOVERY. 


Section. 

3046.  Discovery. 

3047.  Privilege  of  party. 

3048.  Extent  of  discovery. 

3049.  Under  oath. 


Section. 

3050.  Answer—how  far  evidence. 

3051.  What  ia  responsive. 

3052.  Answers  of  co-defendant. 


§  3046.  A  Court  of  Equity  may  compel  either  party  to  discover    Discotei-y/ 
facts  within  his  knowledge  beneficial  to  the  other  party  and  mate-v3  )  -..  3  ^W^ 
rial  to  his  case  ;  and  this  either  upon  a  bill  for  discovery  and  relief,    ^  ' 

or  for  discovery  alone,  ancillary  to  some  other  civil  proceedings. 


574  PT.  2.— TIT.  9.— Equity. 


Chapter  2. — Discovery. 


May  be  But  the  party  seeking  relief  may  waive  discovery,  and  m  such 

waived.  i        i    r»       i         ?  •  •  ^ 

case  the  deienaant  s  answer  is  not  evidence. 

§  3047.  No  party  shall  be  required  to  discover  matters  tending 
of '^S"^*^  to  criminate  himself,  or  to  expose  him  to  a  penalty  or  forfeiture, 
nor  to  make  discovery  of  irrelevant  matters,  nor  the  advice  of  his 
professional  advisers,  nor  his  consultation  with  them,  nor  matters 
relating  to  his  own  and  not  the  plaintiff's  case ;  nor  can  official 
persons  be  called  on  to  disclose  any  State  matters  of  which  the 
policy  of  the  State  and  the  interest  of  the  community  require  con- 
cealment. 

§  3048.  The  discovery  must  be  full  and  free  as  to  all  matters 
Extent  of  of  fact  of  which  it  is  properly  sought,  and  must  include  the  re- 
spondent's information  and  belief.     If  documents  are  desired  in 
defendant's  possession  or  power,  he  must  produce  or  satisfacto- 
rily account  for  them. 

§  3049.  The  discovery  must  be  under  oath  or  affirmation,  but 
Under  oath,  may  be  confined  to  those  points  to  which  special  interrogatories 
are  placed  in  the  bill. 

§  3050.  The  answer  of  a  defendant,  as  to  facts  within  his  own 
Answer—  knowlcdpje  responsive  to  the  discovery  sought,  is  evidence  in  his 

how  far  evi-  i  i  -i  i  i       i 

deuce.  lavor,  and  can  be  rebutted  only  by  two  witnesses,  or  one  witness 
and  corroborating  circumstances.  The  complainant  is  not  bound 
to  read  any  portion  of  the  answer,  except  that  responsive  to  the 
bill.  The  defendant  may  read  all  as  pleading.  If  the  bill  is  for 
discovery  alone,  then  the  whole  answer  must  be  read  together. 
And  in  the  latter  case,  the  complainant  must  pay  the  costs. 

§  3051.  What  is  responsive  is  a  question  for  the  Court.     Any 
whatisre-  explanation  of  an  admission  made,  or  fact  necessarily  connected 

sponse.  .,..  p,  .  .  •  1  -1  e* 

With  it,  is  part  oi  the  response.     Any  matter  in  avoidance  thereof 
is  new  matter,  and  must  be  proved. 

§  3052.   The  answer  of  one  defendant  is  evidence  for  another. 
Answers  of  whenever  it  states  facts  asrainst  his  own  interest,  and  in  favor  of 

CO -defend-  ,  .  ,    ^       , 

ants.         his  co-deiendants. 


y 


PT.  2.— TIT.  9.— Equity. 


57^ 


Chapter  8. — Perpetuation  of  Testimony. 


CHAPTER   III. 

OF     PERPETUATION     OF     TESTIMONY. 


Section. 

3053.  When  it  may  be  done. 

3054.  Possession  immaterial. 


Section. 

3055.  When  evidence. 

3056.  Costs. 


§  3053.  Courts  of  Equity  may  entertain  proceedings  for  the  jj,a?blXne 
perpetuation  of  testimony,  in  all  cases,  where  the  fact  to  which  the 
testimony  relates  can  not  be  made  immediately  the  subject  of  in- 
vestigation at  law,  and  the  common  law  proceeding  authorized  un- 
der this  Code,  for  any  cause,  can  not  be  available,  or  as  completely 
available,  as  a  proceeding  in  equity. 

§  3054.  It  is  immaterial  as  to  the  possession  of  the  property,    Possession 

■^  ...  immaterial, 

nor  will  the  proceeding  be  denied,  though  all  parties  in  interest 
can  not  be  ascertained  or  reached. 

§3055.     Testimony    thus  taken  shall  be  afterward  used  only    whenevi- 

.  "^  ,  *^    dence. 

from  the  necessity  of   the  case,  but  in  such  case  may  be  used 
against  all  persons,  whether  parties  to  the  proceeding  or  not. 

§  3056.  The  complainant  shall  in  all  such  cases  be  taxed  with    ^^*^" 
the  costs. 


CHAPTER    IV. 

OF     ACCIDENT     AND     MISTAKE. 


Section. 

3057.  What  is  accident. 

3058.  Lost  bonds  or  notes. 

3059.  Error  in  form. 

3060.  Rule  of  construction. 

3061.  Volunteers. 

3062.  What  is  mistake. 

3063.  Parol  evidence  admissible. 

3064.  Against  whom  equity  will  relieve. 

3065.  Division  of  mistake. 


Section. 

3066.  Ignorance  of  law. 

3067.  Mistake  of  law  by  parties. 

3068.  By  the  draughtsman  or  agent. 

3069.  Eeforming  a  contract,  etc. 

3070.  Mistake  of  fact. 

3071.  Negligence. 

3072.  Mutual  ignorance. 

3073.  In  execution  of  a  power. 

3074.  Setting  aside  judgment. 


§  3057.  An  accident  relievable  in  equity  is  such  an  occurrence,     what  is 

Occident. 

not  the  result  of  negligence  or  misconduct  of  the  party  seeking 
relief  in  relation  to  a  contract,  as  was  not  anticipated  by  the  parties 
when  the  same  was  entered  into,  and  which  gives  an  undue  advan- 
tage to  one  of  them  over  another  in  a  Court  of  Law. 

§  3058.  In  cases  of  lost  bonds  or  negotiable  securities,  the  Court    Lostbonds 
will  decree  payment,  upon  indemnity  given  against  liability  or  loss 
thereon. 


f 


576  PT.  2.— TIT.  9.— Equity. 

Chapter  4. — Accident  and  Mistake. 

§  3059.  If  the  form  of  conveyance  is,  by  accident  or  mistake, 
Error  in  contrary  to  the  intention  of  the  parties  in  their  contract,  equity 
will  interfere  to  make  it  conform  thereto. 

§  3060.  Equity  seeks  always  to  construe  conditions  subsequent 
Euieofcon- into  covcnants,  and  to  relieve  against  forfeitures,  where  the  rules 

struction.  ^  ,  .  mi      n 

01  construction  will  allow. 
/  §  3061.  Equity  will  not  interfere  to  relieve  against  accidents  or 

/  Volunteers,  mistakcs  of  mere  volunteers,  but  if  the  contract  is  actually  ex- 
(  ecuted,  then  all  the  rights  growing  out  of  it  against  or  in  favor  of 

v^^        any  body,  will  be  enforced. 

§  3062.  Mistake  relievable  in  equity,  is  some  unintentional  act, 
What  is  or  omission,  or  error,  arising  from  ignorance,  surprise,  imposition, 
r       .  7/,'yor  misplaced  confidence.     This  power  is  exercised  with  caution, 

Jo     /^u      X    /   g^^^  ^Q  justify  it,  the  evidence  must  be  clear,  unequivocal,  and  de- 
cisive as  to  the  mistake.  / 

§  3063.  Parol  evidence  is  admissible  to  prove  a  mistake  in  a 
dence!'^  ^^^"  deed,  or  any  other  contract  required  by  law  to  be  in  writing. 

§  3064.  Equity  will  grant  the   relief  as  between  the  original 
Against  parties  or  their  privies  in  law,  in  fact,  or  in  estate,  except  bona 
fide  purchasers  for  value  without  notice, 
of  mistakes!      §3065.  Mistakes  may  be  either  of  law  or  of  fact. 

§  3066.  Mere  ignorance  of  the  law  on  the  part  of  the  party  him- 
ignorance  Self,  whcrc  the  facts  are  all  known,  and  there  is  no  misplaced  con- 

oflaw.  .  .  ^ 

/;        ,c   .     fidence,  and  no  artifice,  or  deception,  or  fraudulent  practice  is  used, 
^'  f  by  the  other  party,  either  to  induce  the  mistake  of  law,  or  to  pre- 

vent its  correction,  will  not  authorize  the  intervention  of  equity. 
§  3067.  An  honest  mistake  of  the  law  as  to  the  efiect  of  an  in- 
Mistake  of  strumcut  on  the  part  of  both  contracting  parties,  when  such  mis- 

law  by  par-       ,  ...  ,      . 

ties.  take  operates  as  a  gross  injustice  to  one,  and  gives  an  unconscien- 

tious advantage  to  the  other,  may  be  relieved  in  equity. 

§  3068.  A  mistake  of  law  in  the  draughtsman,  or  other  agent. 
By  the  bv  which  the  contract,  as  executed,  does  not  fulfill,  or  violates  the 

draughts-     ''      ^  ^  ^  ^  '  \ 

man    or  manifest  intention  of  the  parties  to  the  agreement,  is  relievable  in 

agent.  *  o  j 

equity. 

§  3069.  A  distinction  exists  between  reforming  a  contract  and 
Eeforming  executiuff  a  contract  in  case  of  mistake.     To  authorize  the  former 

a    contract,    ,         >^ 

etc.  the  Court  must  be  satisfied  by  the  evidence  that  the  mistake  was 

mutual ;  but  the  Court  may  refuse  to  act  in  the  latter  case,  if  the 
mistake  is  confined  to  the  party  refusing  to  execute. 

§  3070.  In  all  cases  of  a  mistake  of  a  fact  material  to  the  con- 


PT.    2.— TIT.   9.— Equity. 


57T 


Chapter  5. — Account  and  Set-off. 


Mistake 
of  fact. 


Oonceal- 


ttact,  or  other  matter  affected  by  it,  if  the  party  complaining  ap 
plies  within  a»  reasonable  time,  equity  will  relieve. 

§  3071.  If  the  party,  by  reasonable  diligence,  could  have  had  Negligence. 
knowledge  of  the  truth,  equity  will  not  relieve ;  nor  will  the  igno- 
rance of  a  fact,  known  to  the  opposite  party,  justify  an  interfer- 
ence, if  there  has  been  no  misplaced   confidence,  nor  misrepre-  ment 
sentation,  nor  other  fraudulent  act. 

§  3072.  Ignorance  by  both  parties   of  a  fact  does  not  justify  no^ncTVtc] 
the  interference  of  the  Court ;  nor  will  a  mistake,  in  judgment  or 
opinion  merely,  as  to  the  value  of  property,  authorize  such  inter- 
ference. 

§  3073.  Accident  or  mistake,  in  the  execution  of  a  power,  or     in  execu- 
causing  the  defective  execution  ot  the  power,  will  be  remedied  m  power. 
equity. 

§  3074.  Equity  will  interfere  to  set  aside  a  iudgment  of  a  Court  setting adde 

^  J-       •'  *)       o  a  judgment. 

having  jurisdiction  only  where  the  party  had  a  good  defense  of  ;j^    '.,< 
which  he  was  entirely  ignorant,  or  where  he  was  prevented  from  JO'' 
making  it  by  fraud  or  accident,  or  the  act  of  the   adverse  party,  ^  yj^v  O  ^(^  ^A 
unmixed  with  fraud  or  negligence  on  his  part.  *,  -^fiw 


J6    / 


CHAPTER    V. 


OF     ACCOUNT     AND      SET-OFF. 


Section. 
■    3075.  Accounts. 

3076.  Mingling  goods. 

3077.  Contribution. 

.  3078.  Discharge  of  incumbrances. 
3079.  Apportionment. 


Section. 

3080.  Surcharge  and  falsify. 

3081.  Offer  to  pay  balance. 

3082.  Appointment  of  auditor. 

3083.  Effect  of  a  report. 

3084.  Equitable  set-off. 


§  3075.  Equity  jurisdiction  over  matters  of  account  extends  Accounts. 
to  mutual  accounts  growing  out  of  privity  of  contract,  or  where 
accounts  are  complicated  and  intricate,  or  where  a  discovery  or 
writ  of  m  exeat  is  prayed  and  granted,  or  where  the  account  is  of 
a  trust  fund,  or  accounts  between  partners  and  tenants  in  com- 
mon, or  where  a  multiplicity  of  suits  would  render  a  trial  diflScult, 
expensive,  and  unsatisfactory  at  law. 

§  3076,  If  a  party,  having  charge  of  the  property  of  others  so   .'Mingling 
confounds  it  with  his  own  that  the  line  of  distinction  can  not  be 
37 


of  goods. 


578  PT.   2.—TIT.   9.— Equity. 

Chapter  5. — Account  and  Set-off. 

drawn,  all  tlie  inconvenience  is  thrown  upon  him  who  causes  the 
confusion,  and  he  must  distinguish  his  own  property  or  lose  it. 

§  3077.  In  cases  of  joint,  or  joint  and  several,  or  of  several 
Contribn-  liabilities  of  two  or  more  persons,  where  all  are  equally  bound  to 
bear  the  common  burden,  and  one  has  paid  more  than  his  share, 
he  is  entitled  to  contribution  from  the  others ;  and  whenever  the 
circumstances  are  such  that  an  action  at  law  will  not  give  a  com- 
plete remedy,  equity  may  entertain  jurisdiction. 

§  3078.  Where  several  persons  are  interested  in  an  estate  as 
Discharge  tenants  for  years,  or  for  life,  or  in  remainder  or  reversion,  and 

of     mcum-  *i  T  7  7 

brances,  incumbrances  are  to  be  discharged,  the  equitable  division  of  the 
burden,  according  to  the  several  interests,  is  a  question  for  equi- 
table interference. 

§  3079.  Apportionment  of  a  contract,  or  of  rent  or  hire,  may, 
Apportion-  from  pcculiar   circumstances  rendering  the  common  law  remedy 
incomplete,  become  the  subject  of  equitable  jurisdiction. 

§  3080.  A  party  objecting  to  a  stated  account  must  surcharge 
Surcharge  and  falsify.     The  former  is  to  alleoie  omissions  ;    the  latter  is  to 

and  falsify.  "^  . 

deny  the  correctness  of  certain  of  the  items  rendered.     One  pal- 
pably fraudulent  item  casts  suspicion  upon  the  entire  account. 
§  3081.  A  bill  for  an  account   need  not  offer  to  pay  a  balance 
balance.       if  fouud  against  complainant. 
/  , ,  §  3082.  In  all  cases  involving  account,  either  party,  as  a  mat- 

mei^^iS'^^au-  *^^  ^^  ^ig^^)  ^^J  ^PP^J  to  the  Judgc,  either  in  term  or  vacation, 
d,:        *^^^^^'  for  the  appointment  of  an  auditor,  who  shall,  after  notice,  sit  and 

hear  the  evidence  submitted  by  either  party,  investigate  their  ac- 
counts, and  report  the  result  thereof  to  the  Court. 

§  3083.  The  report  so  made  may  be  objected  to  by  either  party 
EflFect  of  on  the  ground  of  illegal  reiection  or  admission  of   evidence,  or 

report.  ,  ^  ,     .    ^         ,  .  .  .  ,.,,.. 

any  other  ground  impeaching  its  propriety,  which  objections 
shall  be  heard  and  decided  by  the  Court.  The  report,  when 
finally  accepted,  shall  be  admitted  as  evidence  to  the  jury,  with 
such  instructions  as  to  the  effect  to  be  given  to  it,  as  the  Court 
shall  give  under  the  circumstances  of  each  case. 

§  3084.  As  to  set-off,  equity  generally  follows  the  law ;   but  if 
^^E^uitabie  there  is  an  intervening  equity  not  reached  by  the  law,  or  if  the 
set-off  be  of  an  equitable  nature,  the  Courts  of  Equity  take  juris- 
diction to  enforce  the  set-off. 


PT.  2.— TIT.  9,--EQUiTy. 


579 


Chapter  6. — Administration  of  Assets. 


CHAPTER    VI 


OF     AD  MINISTRATION     OF     ASSETS, 


Section. 


3085.  Legal  and.  equitabie  assets. 

3086.  Partly  legal  and  partly  equitable. 

3087.  Interfering  with  administration* 
Bills  fer  direction. 
Marshaling  assets, 

3090.  Election. 

3091.  Creditor's  bills. 


3089. 


Section. 

3092.  Keceiver's  duty. 

3093.  Must  account  to  the  Court. 

3094.  Misplacing  trust  funds. 

3095.  Tracing  assets. 

3096.  Equitable  assets  for  creditors. 

3097.  Joint  and  individual  assets. 


§  3085,  Assets  are  either  legal  or  equitable :   the  former  are    Legal  and 

,^.  „  1       ^  equitable  as- 

sucn  as  may  be  reached  by  tne  ordmary  process  ot  law  ;  the  latter  sets.    , 
are  such  as  can  be  reached  only  through  the  intervention  of  a    y^ 


Court  of  equity.     The  former,  when  properly  before  a  Court  of 


/ 


equity,  are  distributed  according  to  legal  liens  and  priorities;   the 
latter,  according  to  justice  and  right  in  the  particular  case,  the 
_gejiexalrale_being  that  equality  is  equity. 

§  3086.  Sometimes  assets  are  partly  legal  and  partly  equitable;     Partly le- 

i-  '^        ci  I  ,/        I  ^  gal  and  part- 

in  such  cases,  while  the  above  rule  is  adhered  to,  as  to  the  legal  ^y  equitable. 

assets,  equity  will  so  administer  the  equitable  as  to  produce  gen- 
eral equality. 

§  3087.  Equity  will  not  interfere  with  the  regular  administra-    interfering 

.         .  witb  admin- 

tion  of  estates,  except  upon  the  application  of  the  representative,  istrauou. 
either,  first,  for  construction  and  direction ;  second,  for  marshaling 
the  assets ;  or  upon  the  application  of  any  person  interested  in  the 
estate,  where  there  is  danger  of  loss  or  other  injury  to  his  interests. 

§  3088.  In  cases  of  difficulty  in  construing  wills,  or  in  distrib-  Biiisfordi- 
uting  estates,  in  ascertaining  the  persons  entitled,  or  in  determin- 
ing under  what  law  property  should  be  divided,  the  representative 
may  ask  the  direction  of  the  Court,  but  not  on  imaginary  diffi- 
culties or  from  excessive  caution. 

§  3089.  In  all  cases  where  legal  difficulties  arise  as  to  the  dis- 
tribution of  assets  in  payment  of  debts,  or  where,  from  any  cir-t 
cumstances,  the  ordinary  process  of  law  would  interfere  with  the 
due  administration,  without  fault  on  the  part  of  the  representa- 
tive of  the  estate,  a  bill  to  marshal  assets  will  be  maintained  at 
his  instance. 

§  3090.  In  marshaling  assets,  the  Court  mil  look  to  the  equities    Election 
of  creditors,  anjd  where  cases  arise  for  election  will  compel  the 
parties  to  elect. 


rectiojti. 


assets*      ^ 


%m 


^m 


PT.  2.— TIT.  9.-^EQXJinr. 

Chapter  6. — Acliiiinistration  of  Assetsv 


/•^  .^^^ 


§  3091.  Creditors'  bills  may  be  filed  at  the  instance  of  any  cred- 
cretiiiiorar^  itol",  tlio  privilege  being  extended  to  all  to  appear  and  become 
parties  in  a  reasonable  time. 

§  8092.  A  Court  of  Equity  may  appoint  a  receiver  to  take  pos- 
Eeceirer'sr  session   of,  and  bold  subject  to  the  direction  of  the  Court,  any 
ff'i  assets  charged  with  the  payment  of  debts,  where  there  is  manifest 

danger  of  loss,  or  destruction,  or  material  injury  to  those  inter- 
ested. Under  extraordinary  circumstances,  a  receiver  may  be 
appointed  before,  and  without  notice  to  the  trustee  or  other  per- 
son having  charge  of  the  assets.  The  terms  on  which  a  receiver 
is  appointed  shall  be  in  the  discretion  of  the  Chancellor. 

§  8093.  The  receiver  is  an  officer  and  servant  of  the  Court  ap- 
conl^i  T  pointing  him,  is  responsible  to  no  other  tribunal  than  a  Court  of 
comfc.         equity,  and  must  in  all  things  obey  its  direction. 

§  3094.  All  persons  aiding  and  assisting  trustees  of  any  char-- 
Misapply-  actcr,  with  a  knowledge  of  their  misconduct,  in  misapplying  assets^ 
fuSds.        are  directly  accountable  to  the  persons  injured. 

§  3095.  When  assets  are  misapplied  and  can  be  traced  in  the 
hands  of  persons  affected,  with  notice  of  the  misapplication,  the 
trust  attaches  still  to  the  assets^  and  equity  will  aid  in  restoring, 
them  to  their  legitimate  purpose.  A  creditor  of  an  estate  may 
follow  assets  in  the  hands  of  legatees  or  distributees,  though  they 
receive  them  without  notice. 

§  8096.  Equitable  assets  may  be  reached  by  a  creditor,  in  every 
Equitable  casc,  whcrc  hc  shows  that  there  is  danger  of  not  being  satisfied 

assets      for  o  o 

creditor.       oUt  of  legal    aSSCtS. 

§  8097.  Joint  assets  will  be  applied  to  joint  debts,  and  indi- 
Joint  and  yidual  asscts  to  individual  debts ;   but  when  the  ioint  assets  are 

Individual  ^    ^  '  ... 

assets.  exhausted,  the  joint  debts  may  come  upon  individual  assets — the 
individual  debts,  without  regard  to  relative  dignity  as  compared 
with  the  joint  debts,  being  first  advanced  the  'pro  rata  amount 
received  on  the  joint  debts  from  joint  assets* 


Tracing 

assets. 


CHAPTER    VII. 

OF  CHARITIES. 


Section. 

3098.  Charitable  bequest. 

3099.  Cy  pres. 

3100.  Subjects  of  charity. 


Section. 

3101.  Right  of  supervision, 

3102.  What  is  irreligious. 

3103.  Extraneous  evidence. 


PT.  2.— TIT.  9,--Eqtiity.  ^81 


Chapter  7. — Charities. 


§  S098.  EquitY  lias  jurisdiction  to  carry  into  effect  the  charita-    chaiitabie 
I)le  bequest  of  a  testator,  or  founder,  or  donor,  Vvliere  the  same 
•are  definite  and  specific  in  their  objects,  and  capable  of  being 
■executed. 

§3099.  If  the  specific  mode  of  execution  be  for  any  cause  im-    o?j,pres. 
possible,  and  the  charitable  intent  be  still  manifest  and  definite, 
the  Court  may,  by  approximation,  give  effect  in  a  manner  next 
most  consonant  with  the  specific  mode  prescribed. 

§  310  J.  The  following  subjects  are  proper  matters  of  <3harity      subjects 
tor  the  jurisdiction  oi  equity : 

1.  The  relief  of  aged,  impotent^  diseased,  or  poor  people. 

2.  Every  educational  purpose. 

§.  Provisions  for  religious  instruction  or  worship. 

4.  For  the  construction  or  repair  of  public  y/orks,  or  highways^ 
or  other  public  conveniences. 

5.  The  promotion  of  any  craft  or  persons  engaging  therein. 

6.  For  the  redemption  or  relief  of  prisoners  or  captives. 

7.  For  the  improvement  or  repair  of  biirying-grounds  or  tomb- 
.stones. 

8.  Other  similar  subjectSj  having  for  their  object  the  relief  of 
tiuman  suffering,  or  the  promotion  of  human  civilisation. 

§  3101.  A  eharitj  once  inaugurated  is  always   subject   to  the  isigMofsa- 
jsupervision  and  direction  of  a  Court  of  Equity,  to  render  effectnal 
its  purpose  and  object. 

§  3102.  j^othing  shall  be  deemed  religious  in  its  character  which    whatisir- 
•ailirras  doetrmes  licentious  m  their  tendency,  or  inconsistent  with 
the  peace  and  safety  of  the  State. 

§  3103.  If  the  terms  of  the  bequest  or  deed  are  obscure,  doul>t-  Estraueous 
Jul,  or  equivocal,  other  evidence  may  be  looked  to  to  ascertain 
the  sense  in  which  particular  expressions  are  used,  but  not  to  make 
definite  that  which  in  itself  is  too  indefinite  for  execution. 


HAPTER   VIII 

OF    ELECTION. 


Bection* 

3104.  Electien. 
5105.  By  a  legatee^ 
S>m.  By  the  CquvL 


-Section. 

3107..  Compensation  to  defeated  iegat-ee. 
3108^  Election  under  dee.d& 


582  PT.  2.— TIT.  9.--Equity. 


Chapter  8. — Election. 


§  3104.  A  case  of  election  arises  whenever  a  person  is  entitled 

Eketion.    to  onc  of  two  benefits,  to  each  of  which  he  has  legal  title^  but  to* 

enforce  both  would  be  unconscientious  and  ineqmt0,ble  to  others 

having  claims  upon  the  same  property  or  fund.     In  such  cases. 

..equity  has  jurisdiction  to  compel  an  election. 

§  3105.  When  a  testator  has  affected  to  give  property  not  his 
By  a  lega- Q-vvn,  and  has  given  a  benefit  to  a  person  to  whom  that  property 
belongs,  the  devisee  or  legatee  must  elect  either  to  take  under  or 
against  the  instrument.  The  rule  does,  not  apply  if  the  will  itself, 
from  other  causes,  is  not  eificient  in  passing  the  title  to  the  prop- 
erty of  the  devisee  or  legatee ;  nor  if  the  testator  had  an  interest 
in  such  property  upon  which  the  will  may  operate ;  nor  if  the  be- 
quest shows  that  the  testator  intended  to  bequeath  only  in  the- 
event  that  his  own  title  was  good ;  nor  if  the  benefit  given  to  the* 
party  called  upon  to  elect  is  not  from  testator's  own  property,  but 
by  virtue  of  a  power  of  app^ointment  in  him. 

§  3106.  If  from  any  cause  the  legatee  is  incompetent   to  elect,. 
By  the    the  Court  will,  after  investigation  as  to  values,  elect  for  him. 

Conrfc.  '  .  .  . 

§  3107.  If  the  election  be  made  against  the  will,  the  defeated 

campensa-  legatee  or  devisee  is  entitled  to  compensation  out  of  the  property 

featecL  lega-  bequeathed  to  the  party  electing,  to  the  value  of  the  defeated 

legacy. 
Election  Tin-      1 3108.  The  forcgoing  principles  a^pply  to  deeds  as  well  as  wills^ 


CHAPTER    IX. 

OF    execution:    of    powers. 


Section'. 

3109.  Jurisdiction  over  powers. 

3110.  Discretion. 

3111.  Collusive  execution. 


Section. 

3112.  Illusory  appointment,. 

3113.  Consent  of  trustee. 

3114.  In  cases  of  no  discretion,  etc. 


tiott 


§  3109.  Powers,  especially  of  appointment,  being  always  foun- 
Juristic-  ded  on  trust  or  confidence,  are  peculiarly  subjects   of  equitable' 

ion      over  t  r  <j  j  i 

powers.      supervision.  % 

§  3110.  Equity  can  not  compel  a  party  having  a  discretion,  to 

Discretion,  exerclso  a  powcr  of  appointment.     But  it  may  relieve  against 

mistaken  or  defective   executions,   or  collusive   ar  illusory  exe- 

Defective        ,  • 
execntion.      GUtlOn&. 

§  3111.  Every  execution  is  collusive,^  whereby  the  person  exer-- 


PT.  2.-  TIT.  9.— Equity. 


583 


Chapter  9. — Execution  of  Powers. 


cisLQa:  the  power  uses  it  by  contrivance  for  his  own  benefit,  he  not    coiiusive 

o  -c^  "^  ^  execution. 

being  legitimately  an  intended  beneficiary. 

§  3112.  An  illusory  appointment  is  one  where  a  nominal  benefit  iiiusoryap- 

n  I'll/?     pointment. 

only  is  given  to  one  ,of  a  class  to  all  of  whom  a  substantial  benefit 
was  intended. 

§  3113.  Where  marriage  is  required  to  be  by  consent  of  trustees,  t^^g^"^®^*^  **^ 
-atid  froln  any  corrupt  or  insufiicient  motive  such  consent  is  with- 
held, equity  will  compel  a  consent,  or  give  relief  as  if  such  con- 
sent was  had. 

§  3114.  In  all  cases  where  no  discretion  is  allowed,  or  the  dis-    in  cases  of 

^  'no       discre- 

cretion  allowed  is  abused,  equity  has   jurisdiction  to  compel  a  ^j.^^^'^j^'^abiS: 
faithful  execution  of  the  power.  ^^' 


CHAPTER    X. 

OF    FRAUD. 


Section. 

3115.  Jurisdiction  over  fraud. 
8116.  Actual  and  constructive. 
^Jl7.  Misrepresentation, 
6118.  Suppression  of  the  truth. 
3119.  Frauds  not  by  words. 
^J30.  Confidential  relatione. 


Section. 

3121.  Annulling  deeds,  judgments,  etc. 

3122.  Inadequacy  of  consideration,  etc. 

3123.  Surprise. 

3124.  Fraudulent  trade-marks,  etc. 

3125.  Marriage  brokerage  bonds. 

3126.  Contracts  in  fraud  of  marital  rights. 


§  3115.  In  all  cases  of  fraud  (except  fraud  in  the  execution  of  Jurisdiction 
a  will),  equity  has  concurrent  jurisdiction  with  the  Courts  of  Law. 

§  3116.  Fraud  may  be  actual  or  constructive.  Actual  fraud 
consists  in  any  kind  of  artifice  by  which  another  is  deceived. 
Constructive  fraud  consists  in  any  act  of  omission  or  commission    Actual  and 

•      1  1       1  n  -I  •        1  constructive 

contrary  to  legal  or  equitable  duty,  trust  or  confidence  justly  re- 
posed, which  is  contrary  to  good  conscience  and  operates  to  the 
injury  of  another.  The  former  implies  moral  guilt  ;  the  latter 
may  be  consistent  with  innocence. 

§  3117.  Misrepresentation  of  a  material  fact  made  wiUfully  to    Misrepre- 

■^  .  *'  sentation. 

deceive,  or  recklessly  without  knowledge,  and  acted  on  by  the  op- 
posite party,  or  if  made  by  mistake,  and  innocently,  and  acted  on "'.  ^ 
by  the  opposite  party,  constitntes  legal  fraud.       ^  /]  j^^  Z~ 

§  3118.   Suppression  of  a  fact  material  to  be  known,  and  which  Suppression 
the  party  is  under  an  obligation  to  communicate,  constitutes  fraud. 
The  obligation  to   communicate  may  arise  from  the  confidential  * 

relations  of  the  parties  or  from  the  particular  circumstances  of 
the  case. 


584  PT.  2.— TIT.  9.— Equity. 

■  •    "     '     ■      ■ '~' — ' ' — ■ "-"^ — • — »    •■  ■  I-  ■  >  <^  .  M,  ■  ti»m  I    ^    /rr\  ^  ■  .      ,  <r-w-:  • 

Chapter  10. — Fraud. 

§  3119.  Fraud  may  be  consummated  by  signs,   or  tricks,  or 
Fraud  not  through  agents  employed  to  deceive,  or  any  other  unfair  way  used 
to  cheat  another. 

§  3120.  Any  relations  shall  be  deemed  confidential  arising  from 
Confidential  nature,  or  created  by  law,  or  resulting  from  contracts,  where  one 

relations.  .  .  ,  .  n«         «     n- 

party  is  so  situated  as  to  exercise  a  controlling  mnuence  over  the 
will,  conduct,  and  interest  of  another  ;   or  where  from  similar  rela- 
tions of  mutual  confidence  the  law  requires  the  utmost  good  faith, 
r~'-     C  %(  t    T^  \^^^^  ^^  partners,  principal,  and  agent,  etc. 
K^v^  tflW-V^^     §3121.  Fraud  will  authorize  a  Court  of  Equity  to  annul  oon- 
Annuiiing  vcyauccs,  howcvcr  solemnly  executed,  and  to  relieve  against  awards, 
ments,  etc.   judgments,  and  decrees  obtained  by  imposition. 

§  3122.  Great  inadequacy  of  consideration,  joined  with  great 
Inadequacy  disparity  of  mcutal  ability  in  contracting  a  bargain,  may  justify 
ation,  etc.     a  Court  of  Equity  in  setting  aside  a  sale  or  other  contract.       ^  Xfc  oo 
§  3123.  Any  thing  which  happens  without  the  agency  or  fault  of 
Surprise,    tlic  party  affcctcd  by  it,  tending  to  disturb  and  confuse  the  judg- 
ment, or  to  mislead  him,  and  of  which  the  opposite  party  takes  an 
undue  advantage,  is  in  equity  a  surprise,  and  one  species  of  fraud 
for  which  relief  is  granted. 

§  3124.  Any  attempt  to  encroach  upon  the  business  of  a  trader, 
Fraudu-  or  othcr  pcrson,  by  the  use  of  similar  trade-marks,  names,  or  de- 
marks,  etc.    vices,  with  the  intention  of  deceiving  and  misleading  the  public,  is 
a  fraud  for  which  equity  grants  relief. 

§  3125.  The  policy  of  the  law  being  opposed  equally  to  restric- 
Marriage  tious  on  marriage,  and  to  marriages  not  the  result  of  free  choice, 

brokerage  °/  ,  .  7  . 

bonds.         all  contracts  or  bonds  made  with  a  view  to  trammel  or  to  force 
marriage,  are  deemed  fraudulent  and  void. 

§  3126.  A  secret  settlement  by  a  wife  on  the  eve  of  marriage  is 

contractin  a  fraud  on  the  marital  rights  of  the  husband,  and  void,  though  the 

itai  rights,    husbaud  had  no  knowledge  of  the  existence  of  the  property  settled. 


Section. 

3127.  Partition. 

3128.  Passing  title. 


CHAPTER     XI. 

OF  PARTITION. 


Section. 

3129.  Moulding  decree. 


§  3127.  Equity  has  jurisdiction  in  cases  of  partition  whenever 


PT.  2.— TIT.  9.— Equity. 


585 


Chapter  12. — Specific  Performance. 

the  remedy  at  law  is  insufficient,  or  peculiar  circumstances  render  /partition. 

fXX)t 


Passing 
title. 


the  proceeding  in  equity  more  suitable  and  just. 

§  3128.  The 'decree  on  a  proceeding  to  partition  shall  pass  the 
title  without  the  execution  of  any  conveyances  by  the  parties. 

§  3129.  The  Court  will  mould  its  decree,  in  every  case,  to  meet  ^  Moulding 

"  ...       decree. 

the  general  justice  and  equity  of  each  person  entitled,  and  in  its 
discretion,  may  postpone  or  deny  either  a  partition  or  a  sale,  if  it 
shall  appear  that  the  present  or  prospective  interest  of  each  ten- 
ant may  not  be  protected  thereby. 


CHAPTER    XII. 


OF     SPECIFIC     PERFORMANCE. 


Section. 

3130.  When  decreed. 

3131.  Parol  contract  to  land. 

3132.  Of  personalty. 

3133.  Voluntary  and  gratuitous  promise. 


Section. 

3134.  Inadequacy. 

3135.  Ability  of  complainant  to  comply. 

3136.  Damages  for  breach. 


§  3130.  Specific  performance  of  a  contract  (if  within  the  power    when  de- 
of  the  party)  will  be  decreed,  generally,  whenever  the  damages 
recoverable  at  law  would  not  be  an  adequate  compensation  for  the 
non-performance. 

§3131.    The  specific  performance  of   a    parol   contract   as   to    Parol  ecu- 

\i  V  iX  \j  L  to 

land,  will  be  decreed  if  the  defendant  admits  the  judgment,  or  if  land, 
it  be  so  far  executed  by  the  party  seeking  relief,  and  at  the  in- 
stance, or  by  the  inducements  of  the  other  party,  that  if  the  con- 
tract be  abandoned,  he  can  not  be  restored  to  his  former  position. 
Full  payment  alone,  accepted  by  the  vendor,  or  partial  payment, 
accompanied  with  possession,  or  possession  alone,  with  valuable 
improvements,  if  clearly  proved  in  each  case  to  be  done  with  re- 
ference to  the  parol  contract,  will  be  sufficient  part  performance 
to  justify  a  decree. 

§3132.  Any  good  reason,  in  equity  and  good  conscience,  why  of  per 
the  complainant  should  have  the  possession  of  specific  personalty 
to  which  he  has  title,  will  sustain  a  bill  for  specific  performance 
or  delivery,  and,  unless  rebutted  by  other  equitable  reasons,  will 
justify  a  decree.  The  jury,  in  such  cases,  may  decree  either  dam- 
ages or  specific  delivery. 

§  3133.  It  will  not  be  decreed  of  a  voluntary  agreement,  or 


sonalty. 


586 


PT.  2.— TIT.  9.— Equity. 


Chapter  13. — Trust  and  Trustees. 


Voluntary  merely  gratuitous  promise.     If,  however,  possession  of  lands  has 

and  gratuit-  •  i  i  •         •  ^ 

ouspromises  been  given  under  such  agreement,  upon  a  meritorious  considera- 
tion, and  valuable  improven^ents  made  upon  the  faith  thereof, 
equity  will  decree  the  performance  of  the  agreement. 

§  3134.  Mere  inadequacy  of  price,  though  not  sufficient  to  re- 
inariequacy  scind  a  contract,  may  justify  a  Court  in  refusing  to  decree  a  spe- 
cific performance ;  so  also  any  other  fact  showing  the  contract  to 
be  unfair  or  unjust,  or  against  good  conscience. 

§  3135.  The  vendor  seeking  specific  performance^must  show  an 
Ability  of  ability  to  comply  substantially  with  his   contract  in   every  part, 

complainant  •^  ni  ,  p-t  i- 

to  comply,  and  as  to  all  the  property;  but  a  want  of  title,  or  other  inability 
as  to  part,  will  not  be  a  good  answer  to  the  vendee  seeking  per- 
formance, who  is  willing  to  accept  title  to  the  part,  receiving  com- 
pensation for  the  other.  If  the  defects  in  vendor's  title  be  tri- 
fling, or  comparatively  small,  equity  will  decree,  at  his  instance^ 
granting  compensation  for  such  defects. 

§  3136.  If,  for  any  cause,  the  specific  performance  is  impossi- 
Damages  blc,  or  the  vcndce  declines  to  accept  a  performance  in  part,  the 
Court  may  proceed  to  assess  damages  for  the  breach  of  the  con- 
tract. 


CHAPTER    XIII. 

OF     TRUST     AND     TRUSTEES. 


Trusts. 


Sectioi>\ 

3137.  Trusts. 

3138.  Resulting  trusts. 

3139.  Court  will  appoint  trustee. 


Section. 

3140.  Limitation  of  actions. 
3111.  Relief  granted. 


§  3137.  Trusts  of  every  kind,  not  generally  cognizable  at  law, 
are  peculiar  subjects  of  equity  jurisdiction. 

§  3138.  Whenever  the  circumstances  are  such  that  the  person 
Eesuiting  talunfi:  the  leg^al  estate,  either  from  fraud  or  otherwise,  can  not 

trusts.  o  o  -' 

enjoy  the  beneficial  interest  Avithout  violating  some  established 
principle  of  equity,  the  Court  will  declare  him  a  trustee  for  the 
person  beneficially  entitled,  if  such  person  has  not  waived  his 
right  by  subsequent  ratification  or  long  acquiescence. 

§  3139.  A  trust  shall  never  fail  for  the  want  of  a  trustee. 

§  3140.  Subsisting  trusts,  cognizable  only  in  a  Court  of  Equity, 
are  not  within  the  ordinary  statutes  of  limitation ;  but  in  all  cases 


Trustee. 


Limitation 
of  act. 


PT.  2.— TIT.  9.— CHAP.  14.— Equity.  587 

Article  1. — Mandamus,  Quo  Warranto,  and  Prohibition. 

equity  will  consider  the  lapse  of  time  in  decreeing  an  account, 
and  where,  from  it  and  other  circumstances,  it  would  be  inequi- 
table, any  relief  will  be  refused. 

§  3141.  The  relief  granted,  in  cases  of  trust,  will  always  be  so  ^p^^^^^J.j'^ 
moulded  and  framed  as  to  render  the  trust  effectual,  and  secure 
the  best  interests  of  all  parties. 


CHAPTER    XIV. 

OF     EXTRAORDINARY     REMEDIES. 


Article  1. —  Of  Mandamus,  Quo  Warranto,  and  Prohibition, 

Article  2. — Of  Injunction. 

Article  8.— iVe  Exeat,  and  Quia  Timet. 

Article  4. — Of  Bills  of  Feace  and  Interpleader, 


ARTICLE    I. 

MANDAMUS,     QUO    WARRANTO,    AND    PROHIBITION. 


Section. 

3142.  To  enforce  official  duty. 

3143.  Lies  not  for  private  remedy. 

3144.  When  not  granted. 

3145.  Granted  in  vacation. 


Section, 

3146.  Governor  not  liable. 

3147.  Quo  warranto, 

3148.  Prohibition. 


§3142.  All  oiScial  duties  should   be  faithfully   fulJSlled,   and    To  enforce 

"^  official  duty. 

whenever,  from  any  cause,  a  defect  of  legal  justice  would  ensue  ^  s  ^r 
from  a  failure  or  improper  fulfillment,  the  writ  of  mandamus  may 
issue  to  compel  a  dae  performance,  if  there  be  no  other  specific 
legal  remedy  for  the  legal  rights. 

§  3143.  Mandamus  does  not  lie  as  a  private  remedy  between     Lies  not 
individuals  to  enforce  private  rights,  nor  to  a  public  officer  who  remedy. 
has  an  absolute  discretion  to  act  or  not,  unless  there  is  a  gross 
abuse  of  such  discretion,  but  it  is  not  confined  to  the  enforcement  disGretion. 
of  mere  ministerial  duties. 

§  3144.  Mandamus  will  not  be  granted  when  it  is  manifest  that    when  not 
the  writ  would,  for  any  cause,  be  nugatory  or  fruitless  ;   nor  will  it  ^^  ^ 
be  granted  on  a  mere  suspicion  or  fear,  before  a  refusal  to  act  or 
a  wrongful  act  done. 


5a8 


PT.  2.— TIT.  9.— CHAP.  14.— Equity. 


Article  2. — Injunction. 


§  3J45.  The  writs  of  mandamus,  quo  warranto,  and  prohibition 
Granted  in  may  be  granted  at  any  time,  on  proper  showing  made,  but  the 
return  must  be  in  term  time,  and  any  issues  of  fact  made  thereon, 
must  be  tried  as  other  equity  causes. 

§  3146.  Neither  of  these  writs  will  lie  to  the  duly  inaugurated 
Governor  Govomor  of  the  State,  but  they  do  lie  to  all  other  executive  or 

not  liable.  .  ^  •' 

military  officers. 

§  3147.  The  writ  of  quo  warranto  may  issue  to  inquire  into  the 
Quo  war-  right  of   any  person  to  any  public  office,  the  duties  of  which  he  is 
in  fact  discharging,  but  must  be  granted  at  the  suit  of  some  per- 
son, either  claiming  the  office  or  interested  therein. 

§  3148.  The  writ  of  prohibition  is  the  counterpart  of  mandamus, 

Prohibi-   to  arrost  illegal  proceedings  by  any  Court  officer  where  no  other 

legal  remedy  or  relief  is  given  ;  and  the  granting  or  refusal  thereof, 

is  governed  by  the  same  principles  of  right,  necessity,  and  justice. 


ARTICLE    II. 


OF     INJUNCTION. 


Section. 

3149.  For  what  purpose  granted. 

3150.  Granted  ex  parte. 

3151.  Dissolution  at  chambers. 

3152.  Enjoining  a  Court  of  law. 
3133.  To  restrain  a  trespass. 


Section. 

3154.  Answer  of  defendant. 

3155.  Verdict  and  appeal. 

3156.  Second  injunction. 

3157.  Can  not  compel. 

3158.  Perpetual  injunction. 


§  3149.  Equity  by  a  writ  of  injunction,  may  restrain  proceed- 
For  what  iugs  iu  auothcr  or  the  same  Court,  or  a  threatened,  or  existing 

purpose.  i-Ti  •  i-i 

gi-anted.  tott,  or  any  other  act  of  a  private  individual  or  corporation  which 
is  illegal  or  contrary  to  equity  and  good  conscience,  and  for  which 
no  adequate  remedy  is  provided  at  law. 

§  3150.  Injunction  may  be  granted  in  vacation  and  upon  an  ex 

Granted  eoj  parte  showing  in  the  discretion  of  the  Judge,  and  upon  such  terms 

parte.  ^  ii-  •  -iti 

as  to  the  affidavit  and  giving  bond  and  security,  as  the  Judge 
may  direct.  But  the  Judge  may  require  notice  to  the  party  to 
be  injoined,  and  appoint  a  day  and  place  for  hearing  the  applica- 
tion. 
'  §  3151.  The  defendant  may  move  the  dissolution  of  an  injunc- 
DiBsoiution  tion,  or  the  revoking  of  any  other  extraordinary  writ,  in  vacation, 

at  chambers,  '  .  J  t 

on  ten  days'  notice  to  the  opposite  party  or  his  solicitor,  and  the 

? 


PT.  2.--^TIT.  O.^CHAP.  14.— Equity. 


589 


Article  3. — Injunction. 


Chancellor  shall  decide  thereon  upon  the  same  principles  as  if  pre- 
siding in  term.  The  complainant  by  disclaiming  discovery,  can 
not  deprive  the  defendant  of  the  benefit  of  his  answer  on  a  motion 
to  dissolve  the  injunction ;  upon  such  a  motion,  affidavits  of  wit- 
nesses may  be  adduced  by  either  party. 

§  3152.  Equity  will  not  enjoin  the  proceedings  and  processes  (j^°jf  Jnfw 
of  a  Court  of  Law,  unless  there  is  some  intervening  equity,  or 
other  proper  defense,  of  which  the  party,  without  fault  on  his 
part,  can  not  avail  himself  at  law. 

§3153.  Equity  will  not  interfere  to  restrain  a  trespass,  unless   To  restrain 

\     ''  .  .       .  ^  trespass. 

the  injury  is  irreparable  in  damages,  or  the  trespasser  is  insol-v  u--^  /^j^X-^  , 
vent,  or  there  exists  other  circumstanced  w^hich,  in  the  discretion  ^  5  ^/w-*?  (I4^i 
of  the  Court,  render  the  interposition  of  this  writ  necessary  and  j  f^^yi    Ir/V^ 
proper,  among  which  shall  be  the  avoidance  of  circuity  and  mul- 
tiplicity of  actions.     The  granting  and  continuing  of  the  injunc-  i  •     >  /{  ( V 
tion  must  always  rest  in  the  sound  discretion  of  the  Judge,  accord-  cretion.  *^  ^ 
ing  to  the  circumstances  of  each  case* 


Answer  of 

defendant. 


Verdict 
and  appeali 


§  3154.  The  answer  of  the  defendant,  so  far  as  the  same  is 
founded  on  his  own  knowledge  and  responsive  to  the  allegations 
of  the  bill,  shall  always  be  considered  on  a  motion  to  dissolve. 

§  3155.  An  injunction  is  not  dissolved  by  a  verdictj  if  an  ap- 
peal be  entered  in  the  time  allowed  by  law. 

§3156.  A  second  injunction  maybe  granted  in  the  discretion    second  in- 

^  O  junction. 

01  the  Judge. 

§  3157.  An  iniunction  can  only  restrain — -it  can  not  compel  a     can  not 

♦^  •'  ^  compel. 

party  to  perform  an  act.     It  may  restrain  until  performance. 

§  3158.  A  perpetual  iniunction  can  be  srranted  only  after  a     Perpetnai 

y  .  ^  ^  \  injunction. 

hearing  and  upon  a  final  decree. 


ACTICLE   III. 

NE    EXEAT    AND     QUIA    TIMET. 


Section. 

3169.  May  issue-— when. 

3160.  Applicants  showing. 

3161.  Defendant  may  give  bond. 

3162.  Discretion  of  the  Court. 


Section. 

3163.  Affidavit  and  bond  of  complainant. 

3164.  May  issue  Without  sanction— When. 

3165.  Quia  timet  may  issue — when. 


§8159.  The  writ  of  m  exeat  issues  to  restrain  a  person  from    ite  exeats 
leaving  the  jurisdiction  of  the  State,  and  may  be  granted  in  the 
following  cases : 


590  PT.  2.— TIT.  9.— CHAP.  14.— Equity. 


Article  3. — Ke  Exeat  and  Quia  Timet. 


1.  At  the  instance  of   a   creditor  whose  debt  is  not  due,   or 
To  restrain  where,  froHi  somc  other  cause,  the  ordinary  process  is  not  availa- 

a  debtor.  '  .  .  .       ,  .  . 

ble  or  sufficient  against  his  debtor,  or  against  a  third  person  sec- 
ondarily or  otherwise,  under  any  circumstances,  chargeable  with 
the  debt. 

2.  In  favor  of  an  obligor  or  promisor,  or  partner  against  his 
In  favor  of  co-obligor,  or  joint  promisor,  or  copartner,  equally  or  partly  re- 

sponsible  with  him  for  the  debt  or  duty  to  be  performed. 
Of  surety.      3.  In  favor  of  a  surety  on  a  debt  not  due,  against  his  co-surety. 

4.  Against  persons  illegally  removing  the  property  of  a  dece- 
Of  orphan,  dent,  or  of  an  orphan,  or  married  woman,  at  the  instance  of  any 

person  interested  therein,  or  of  a  next  friend  of  such  orphan  or 
married  woman. 

5.  At  the  instance  of  a  remainder-man  or  reversioner,  against 
Remain-  any  onc  attempting  to  remove  the  property  in  which  such  remain- 
der or  reversion  exists,  or  may  contingently  exist. 

6.  At  the  instance  of  a  mortgagee  against  a  person  holding  the 
Mortgagee,  equity  of  redemption. 

7.  At  the  instance  of  any  person  interested  legally  or  equita- 
cienei-aiiy.  bly  in  property  about  to  be  removed,  where  no  adequate  remedy 

is  afforded  at  law. 

§  3160.  In  every  case  of  application  for  the  writ  of  ne  exeat, 
Complain-  the  partv  must  show  that  no  adequate  remedy  is  afforded  at  law, 

ant's    show-  r        j  k  ,/  i 

^°s-  and   that  the  defendant  is  either  removing,  or   about  to  remove, 

himself  or  his  property,  or  the  specific  property  to  which  the  com- 
plainant claims  title  or  an  interest. 

§  3161,  The  defendant  may,  in  all  cases,  relieve  himself  or  his 
Defendant's  property,  or  the  specific  property,  from  the  restraint  imposed,  by 
giving  bond  in  double  the  value  of  plaintiff's  claim,  with  good 
security,  to  the  officer  serving  the  process,  for  the  forthcoming  of 
each  or  either  (according  to  the  tenor  of  the  writ),  to  answer  to 
complainant's  claim,  or  abide  by  the  order  and  decree  of  the 
Court.  The  Judge  granting  the  writ  may,  in  his  discretion,  re- 
quire a  larger  bond.  The  officer  receiving  insufficient  security 
shall  be  held  surety  himself,  and  the  sureties  on  his  bond  may 
be  held  responsible  therefor. 

§  3162.  If  the  defendant  fg^ils  or  refuses  to  replevy  the  pro- 
Court'sdis-  pcrty,  the  Court  may,  in  its  discretion,  make  such  disposition  of 
it  as  shall  appear  most  advantageous  to  all  parties. 

§  3163.  In  every  application  for  a  writ  of  ne  exeat,  the  allega- 


PT.  2.— TIT.  9.— CHAP.  14.— Equity. 


591 


Article  3. — ISTe  Exeat  and  Quia  Timet. 


tioHS  of  the  bill  must  be  verified  by  the  affidavit  of  one  or  more      Affidavit 

''  ...  ^°'i  bond  of 

of  the  complainants ;  and  the  Judge  may,  in  his  discretion,  re.  complainant. 
quire  the  complainant  to  give  bond  and  security  for  the  payment 
of  any  damages  which  the  defendant  may  recover  of  him,  for 
suing  out  the  writ  before  granting  an  order  for  the  issuing  of 
the  same,  and  may  require  a  verification  by  all  or  any  of  the 
complainants. 

§  3164.  In  cases  of  emerffency,  upon   the  affidavit  of  the  com-     "^^^.^  \ 

"  o  ./  '       i  sued  without 

plainant  that  he  can  not  obtain  the  sanction  of  the  Judge  in  time  sanction. 
to  remedy  the  mischief,  the  writ  of  ne  exeat  may  issue  at  once,  to 
continue  until  the  first  term  of  the  Court  to  which  it  is  returna- 
ble, unless  earlier  heard  by  order  of  the  Judge. 

§  3165.  The  proceeding  quia  timet  is  sustained  in  equity  for  C'^a^^^e^- 
the  purpose  of  causing  to  be  delivered  up  and  canceled,  any 
instrument  which  has  answered  the  object  of  its  creation,  or 
any  forged  or  other  iniquitous  deed,  or  other  writing,  which, 
though  not  enforced  at  the  time,  either  casts  a  cloud  over  com- 
plainant's title,  or  otherwise  subjects  him  to  future  liability,  or 
present  annoyance,  and  the  cancellation  of  w^hich  is  necessary  to 
his  perfect  protection. 


ARTICLE  IV. 


BILLS     OF     PEACE     AND     I N T E E P L E A D E R. 


Section. 

3166.  Bill  of  peace. 

3167.  Peri)etual  injunction. 


Section. 

3168.  Interpleader. 

3169.  Collateral  to  other  proceedings. 


§  3166.  It  beinff  the  interest  of  this  State  that  there  should  be      ^^'^°^ 

,  peace. 

an  end  of  litigation,  equity  will  entertain  a  bill  of  peace — 

1.  To  confirm  some  right  which  has  been  previously  satisfac- 
torily established  by  more  than  one  legal  trial,  and  is  likely  to 
be  again  litigated. 

2.  To  avoid  a  multiplicity  of  suits  by  establishing  a  right,  in 
favor  of  or  against  several  persons,  which,  is  likely  to  be  the  sub- 
ject of  legal  controversy,  or  in  other  similar  cases. 

§  8167.  As  ancillary  to  this  jurisdiction,  equity  will  ffrant  per-     Perpetual 

,    .     .  .  X        ►'  o  r  Injunction. 

petual  injunctions. 

§  3168.  Wherever  a  person  is  possessed  of  property  or  funds,      i?ter- 
or  owes  a  debt  or  duty  to  which  more  than  one  person  lays  claim,   . 


592  PT.  2.— TIT.  9.— CHAP.  14.--Equity. 

Article  4. — Bills  of  Peace  and  Interpleader. 

and  the  claims  are  of  such  a  character  as  to  render  it  doubtful  or 
dangerous  for  the  holder  to  act,  he  may  apply  to  equity  to  com- 
>     /3         ^  ^      pel  the  claimants  to  interplead. 

^  f  ^  L  f    *  '  g  3169.  If,  in  the  progress  of   any  proceeding  in  equity,  the 

Collateral  Court  perccives  a  necessity  for  parties  to  interplead,  it  may  order 

and      other  ^^  J  r  I  t  J 

proceedings,  guch  interpleader  as  collateral  and  ancillary  to  the  main  case. 
All  the  extraordinary  remedies  of  equity  may  be  enforced  by  at- 
tachments. 


/ 


THE     CODE     OE     ERACTICE 


TITLE     L 

OF    THE  JUDaSS,  SESSIONS,  AND  ADJOURNMENTS 

OF    COURTS. 


Chapter  l.—Of  the  Suprejne  Court. 

Chapter  2.— Of  the  Superior  and  Inferior  Courts. 

Chapter  o. —  Of  the  Judges  of  the  Superior  Courts. 


CHAPTER   I. 

OP     THE     SUPREME     COURT 


Section. 

8170.  Times  and  place  of  holding. 

3171.  May  be  adjourned  to  another  time,  i 


Section. 

3172.  May  be  adjourned  to  another  place. 


§  3170.  FThe  Supreme  Court  of  the   State  of  Georgia  shall  be    T™^^  ^"^ 

,  place        of 

held  in  Milledgeville,  twice  in  every  year,  by  two  or  more  of  the  iioiding. 
Judges  of  said  Court,  on  the  first  Monday  in  June  and  Decem- 
ber of  each  year,   and  shall  continue  until  the   business  is  dis- 
posed of.]  (a) 

§  3171.  It  shall  be  the  duty  of  all  the  Judges  of  said  Court  to      ^^i  the 

*'  ^  ^    °      ^  Judges  shall 

attend  each  term  thereof;  but  if  from  providential  cause  any  one  attend. 
of  the  Judges  can  not  attend  the  Court,  such  Court  may  be  held 
by  two  Judges,  and  if  only  one  Judge  shall  attend,  it  shall  be  his 
duty  to  open  the  Court,  and  adjourn  from  day  to  day  for  one  for  ^\-h"at 
week,  and  if  at  the  expiration   of  that  time  (or  sooner  if  he   is  joumed. 
fully  advised),  one  other  Judge  can  not  attend,  and  no  appoint- 
ment is  made  by  the  Governor  as  hereinbefore  provided,  he  shall 
adjourn  the  Court  until  the  next  regular  term,  and  if  no  Judge 

(a)  Acts  of  1865-6,  p.  5G ;  Acts  of  1866,  p.  46. 
38 


594  PT.  8.— TIT.  t.— OHAP.  2.— Courts, 

Article  1. — Number  and  Times  of  Sessions. 


attends,  it  shall  be  the  duty  of  the  Clerk  and  Sheriff,  or  either  of 

them,  to  adjourn  said  Court  as  above  provided. 

§  3172.  When  from  providential  cause  the  Supreme  Court  can 

May  be  ad-  not  be  held  at  the  time  and  place  designated  by  law,  it  may  be  ad- 
journed    to  ^  ±  O  «/  7  ./ 

some  other  journed  bj  Order  of  the  Judges,  or  any  two  of  them,  in  vacation,  to 
some  other  convenient  time  and  place,  and  the  session  then  held 
shall  be  valid,  and  notice  shall  be  given  of  such  adjournment  if 
possible. 

CHAPTER    IL 

OF  THE  SUPEKIOE  AND  I  In  F  E  K  I  0  R  COURTS, 


Article  1. — Number  and  Times  of  Sessions  of  Superior  Courts, 
Article  2,— Adjournments  of  the  Superior  and  Inferior  Courts. 


sessions. 


ARTICLE  I. 

NUMBER    AND     TIMES     OF     SESSIONS. 

Section.  |  Section. 

3173.  Superior  Courts  to  be  held  twice.      '       3174.  Times  of  sessions,  etc. 

§  3173.  The  Superior  Courts  shall  be  held  in  each  County  in 
Confts^to  be  *^^  rcspcctive  Judicial  Circuits  twice  in  every  year,  by  one  or 
^^^•J  ^^^^® '^  more  of  the  Judges  of  the  Superior  Courts,  at  the  several  times 
hereinafter  mentioned. 

§  3174.  The  times  of  holding  the   Superior  Courts  are  as  fol- 

Times  of    1q     g.H< 

BLUE    RIDGE    CIRCUIT. 

Cherokee — First  Monday  in  March  and  first  Monday  in  August. 

Cobb — Third  Monday  in  Marcli  and  first  Monday  in  October. 

Milton — Fourtli  Monday  in  March  and  tliird  Monday  in  August. 

Forsyth — First  Monday  in  April  and  fourth  Monday  in  August. 

Lumpkin — Second  Monday  in  April  and  first  Monday  in  September. 

Dawson — Third  Mondaj'-  in  April  and  third  Monday  in  September. 

Pickens — Fourth  Monday  in  April  and  fourth  Monday  in  September. 

Gilmer — Second  Monday  in  May  and  second  Monday  in  October. 

Fannin — Third  Monday  in  May  and  third  Monday  in  October, 

Union — Fourth  Monday  in  May  and  fourth  Monday  in  October. 

Towns — Thursday  after  fourth  Monday  in  May  and  October;  but  should 
the  business  of  the  Union  Court  require  it,  Towns  Court  may,  hy  order 
of  the  presiding  Judge,  be  adjourned  to  Monday  thereafter. 

*  As  to  Counties  in  which  the  Superior  Court  sits  two  or  more  weeks,  see  local  acts. 


3.-^TIT,  1.  -CHAP.  2.— CoTTRTS.  595 

Article  1. — Number  and  Times  of  Sessions. 


BRUNSV/ICK    CIRCUIT. 

Appling — First  Monday  in  March  and  first  Monday  in  September. 
Camden — Friday  after  the  fourth  Monday  in  April  and  October. 
Charlton— Monday  after  the  fourth  Monday  in  April  and  October. 
Clinch — Fourth  Monday  in  March  and  fourth  Monday  in  September. 
Coifee— Second  Monday  in  March  and  second  Monday  in  September. 
Echols — Monday  after  fourth  Monday  in  March  and  September. 
Glynn — Third  Monday  in  April  and  third  Monday  in  October. 
Pierce— Thursday  before  the  first  Monday  in  March  and  September. 
Ware — Third  Monday  in  March  and  third  Monday  in   September. 
Wayne — Fourth  Monday  in  April  and  fourth  Monday  in  October. 

CHATTAHOOCHEE    CIRCUIT. 

Chattahoochee — Fourth  Monday  in  March  and  fourth  Monday  in  September. 
Harris — Second  Monday  in  April  and  second  Monday  in  October. 
Marion — Third  Monday  in  April  and  third  Monday  in  October. 
Muscogee — Second  Monday  in  May  and  second  Monday  in  ISTovember. 
Schley — Second  Monday  in  April  and  second  Monday  in  October. 
Talbot — Third  Monday  in  March  and  third  Monday  in  September. 
Taylor — First  Monday  in  April  and  first  Monday  in  October. 

CHEROKEE    CIRCUIT. 

Bartow — Second  Monday  in  March  and  second  Monday  in  September. 
Catoosa— Second  Monday  in  May  and  second  Monday  in  November. 
Chattooga — First  Monday  in  Marcii  and  lirsfc  Monday  in  September. 
Dade— -Fourth  Monday  in  May  and  fourth  Monday  in  November. 
Gordon — First  Monday  in  April  and  first  Monday  in  October. 
Murray — Third  Monday  in  April  and  third  Monday  in  October. 
Walker — Monday  before  the  first  Monday  in  March  and  September. 
Whitfield— Fourth  Monday  in  April  and  fourth  Monday  in  October. 

COWETA    CIRCUIT. 

Clayton — First  Monday  in  May  and  first  Monday  in  November. 
DeKalb— Fourth  Monday  in  April  and  fourth  Monday  in  October. 
Fayette — Second  Monday  in  March  and  second  Monday  in  September. 
Fulton — First  Monday  in  April  and  first  Monday  in  October. 
Meriwether — Third  Monday  in  February  and  third  Monday  in  August 
Troup — Third  Monday  in  May  and  third  Monday  in  November. 

EASTERN   CIRCUIT. 

Bryan — Fourth^  Monday  in  April,  and  second  Monday  after  fourth  Mon- 
day in  November. 

Bullock — Friday  after  third  Monday  in  March,  and  Friday  after  fourth  Mon- 
day in  October. 

Chatham — Second  Monday  in  January  and  second  Monday  in  May. 

Efiingham — Monday  after  fourth  Monday  in  March,  and  second  Monday 
after  fourth  Monday  in  October. 


596  PT.  8.— TIT.  1.— CHAP.  2.— Court.?. 

Article  1.— Number  and  Times  of  Sessions. 


Liberty — Third  Monday  in  ApriL  and  Monday  after  fourth  Monday  in  Ko- 

vember. 
Mclntosli — Thursday  after  second  Monday  in  April,  and  Thursday  after  fourth 

Monday  in  November. 
Montgomery — Thursday  after  the  s-econd  Monday  in  March,  and  Thursd-ay 

after  third  Monday  in  October. 
Tattnall — Third  Monday  in  March,  and  fourth  Monday  in  October. 

FLINT   CIRCUIT. 

Butts — Second  Monday  in  March  and  second  Monday  in   September. 
Henry — Third  Monday  in  April  and  third  Monday  in  October. 
Monroe — Fourth  Monday  in  February  and  fourth  Monday  in  August, 
Newton — Third  Monday  in  March  and  third  Monday  in  September. 
Pike — First  Monday  in  April  and  first  Monday  in  October. 
Spalding — First  Monday  in  February  and  first  Monday  in  August. 
Upson — First  Monday  in  May  and  first  Monda}''  in  November. 

MACON   CIRCUIT. 

Bibb — Third  Monday  in  May  and  third  Monday  in  November. 
Crawford — First  Monday  in  March  and  first  Monday  in  September, 
Dooly — First  Monday  in  April  and  first  Monday  in  October, 
Houston — Third  Monday  in  February  and  third  Monday  in  August. 
'Macon — Second  Monday  in  March  and  second  Monday  in  September. 
Twiggs — Fourth  Monday  in  March  and  fourth  Monday  in  September, 

MIDDLE   CIRCUIT. 

Burke— Third  Monday  in  May  and  third  Monday  in  November. 
Columbia — First  Monday  in  March  and  first  Monday  in  September. 
Emanuel — Second  Monday  in  April  and  second  Monday  in  October. 
Jefferson — Second  Monday  in  May  and  second  Monday  in  November. 
Johnson — Fourth  Monda}^  in  March  and  fourth  Monday  in  September, 
Richmond — Second  Monday  in  January  and  second  Monday  in  June. 
Scriven — First  Monday  in  May  and  first  Monday  in  November. 
Washington — Second  Monday  in  Mai'cli  and  second  Monday  in  September, 

NORTHERN    CIRCUIT. 

Elbert — Second  Monday  in  March  and  second  Mondayju  September. 
Glasscock — Third  Monday  in  Februar}'-  and  third  Monday  in  August. 
Hancock — Second  Monday  in  April  and  second  Monday  in  October. 
Hart — Third  Monda3^iu  March  and  third  Monday  in  September. 
Lincoln — Fourth  Monday  in  April  and  fourth  Monday  in  October. 
Madison — First  Monday  in  March  and  first  Monday  in  September. 
Oglethorpe — Third  Monday  in  April  and  third  Monday  in  October, 
Taliaferro — Fourth  Monday  in  February  and  fourth  Monday  in  August. 
Warren — First  Monday  in  April  and  first  Monda}^  in  October, 
Wilkes — Fourth  Monday  in  March  and  fourth  Monday  in  September. 

OCMULGEE   CIRCUIT. 
Baldwin— Fourth  Monday  in  February  and  fourth  Monday  in  August. 


PT.  3.— TIT.  1,— CHAP.  2.— Courts.  597 

Article  1. — Kamber  and  Time«  of  Sessions. 


trreene — Second  Monday  in  Marcli  and  second  Monday  in  September. 
Jasper — Fourth  Monday  in  April  and  fourth  Monday  in  October, 
Jones — Third  Monday  in  April  and  third  Monday  in  October. 
Morgan — First  Monday  in  March  and  first  Monday  in  September. 
Putnam — Fourth  Monday  in  March  and  fourth  Monday  in  September. 
Wilkinson — First  Monday  in  April  and  first  Monday  in  October. 

PATAULA   CIRCUIT. 

Clay — Fourth  Monday  in  February  and  fourth  Monday  in  August. 
Early — Firgt  Monday  in  April  and  first  Monday  in  October. 
Millei- — S'  cond  Monday  in  April  and  secoEd  Monday  in  October. 
?Quitman — Third  Monday  in  May  and  third  Monday  in  November. 
Randolph — First  Monday  in  May  and  first  Monday  in  JSTovember. 
'Stevv^art — Third  Monday  in  April  and  third  Monday  in  October. 
Terrell — Fourth  Monday  in  May  .and  fourth  Monday  in  November. 
Webster — Second  Monday  in  Mai'ch  and  second  Monday  in  September, 

SOUTHERN    CIRCUIT. 

Berrien — Monday  after  Irwin  Court. 

Brooks — Monday  after  Lowndes  Coiirt. 

Colquitt — Monday  after  third  Monday  in  May  and  November. 

Irwin — On  Thursday  after  Telfair  Court. 

Laurens — Second  Monday  in  April  and  second  Monday  in  October. 

Lowndes — Monday  after  Colquitt  Court. 

Pulaski — Tkird  Monday  in  April  and  third  Monday  in  October. 

Telfair — Friday  after  fourth  Monday  in  April  and  October. 

Thomas — Monday  after  Bi'ooks  Court. 

Wilcox — ^Fourth  Monday  in  April  and  fourth  Monday  in  October. 

Bl^itl  T±i-  VV  KSTi^iRIN    iJlROC  IT. 

'Baker — Third  Monda}^  in  May  and  third  Monday  in  November. 
■Oaihoun — Third  Monday  in  March  and  third  Monday  in  September. 
Decatur — Fourth  Monday  in  April  and  fourth  Monday  in  October. 
Dougherty — First  Monday  in  June  and  first  Monday  in  December. 
Lee — Fourth  Monday  in  March  and  fourth  Monday  in  September. 
Mitchell — Second  Monday  in  May  and  second  Monday  in  November. 
cBumter— Second  M(mday  in  April  and  second  Monday  in  October. 
Worth — Third  Monday  in  April  and  tliird  Monday  in  October, 

TALLAPOOSA    CIRCUIT. 

Campbell — Third  Monday  in  February  and  third  Monday  in  August 
Carroll — First  Monday  in  April  and  first  Monday  in  October. 
Coweta — First  Monday  in  March  and  first  Monday  in  September. 
Ployd — Second  Monday  in  January  and  second  Monday  in  July. 
Haralson — Third  Monday  in  April  and  third  Monday  in  October. 
Heard — Third  Monday  in  March  and  third  Monday  in  September. 
Paulding — First  Monday  in  February  and  first  Monday  in  August 
Polk — Fourth  Monday  in  January  and  fourth  Monday  in  July. 


598 


PT.  3.--TIT.  1.— CHAP.  2.— Courts. 


Article  ?. — Acljoiirnnients  of  the  Superior  and  Inferior  Court; 


WESTERN    CIRCUIT. 

Banks — First  Monday  in  April  and  first  Monday  in  October. 
Clarke — First  Monday  in  February  and  second  Monday  in  August. 
Franklin — Second  Monday  in  April  and  second  Mondaj'-  in  October. 
Gwinnett— First  Monday  in  March  and  second  Monday  in  September. 
Habersham — Third  Monday  in  April  and  third  Monday  in  October. 
Hall — Third  Monday  in  March  and  third  Monday  in  September. 
Jackson — Fourth  Monday  in  February  and  fourth  Monday  in  xlugust. 
Eabun — First  Monday  in  April  and  first  Monday  in  October. 
Walton — Third  Monday  in  February  and  third  Monday  in  August. 
White— Monday  after  fourth  Monday  in  April  and  October. 


ARTICLE  II. 

OF  ADJOURNMENTS  OF  THE   SUPERIOR  AND  INFERIOR    COURTS. 


^ 


Section. 

3175.  Superior  Court  may  be  adjourned. 

3176.  May  be  adjourned  in  vacation. 

3177.  Maybe  adjourned  in  term  time. 


Section. 

3178.  Adjourned  and  special  terms. 

3179.  Inferior  Court  may  be  adjourned. 

3180.  May  bo  adjourned  in  term  time. 


§  3175.  In  case  of  unavoidable  aecidents,  whereby  the  Superior 
Adjourn-  Court  in  anv  County  shall  not  be  held  at  the  time  appointed  for 

meat       by  "^  "^  ^  ^ 

Clerk  from  holding  the  same,  the  Clerk  of  such  Court  shall  adiourn  the  same 

day  to  day.  o  ?  o 

from  day  to  day,  not  exceeding  two  days ;  and  unless  the  presid- 
ing Judge  shall  order  to  the  contrary  within  the  two  days  afore- 
said, the  Clerk  shall  then  adjourn  said  Court  to  the  next  term. 
§  3176.  When  the  Clerk  of  the   Superior  Court  is  informed  by 
Clerk  of  the  presidinp;  Judge  that  it  is  not  possible  for  him  to  attend  the 

Superior  -^  ^  ^  ^ 

Courts,  etc.  regular  term  of  said  Court  from  sickness  of  himself  or  his  family^ 
or  other  unavoidable  cause,  which  shall  be  expressed  in  the  order 
of  adjournment,  the  Clerk  shall  adjourn  such  Court  to  such  time 
To  be  ad-  as  the  Judgo  may  direct,  and  shall  advertise  the-  same  at  the 
Court  House  of  the  County  in  which  said  Court  is  to  be  held,  and 
one  or  more  times  in  a  public  gazette. 

§  3177.  No  Superior  Court  shall  be  adjourned  by  the  Judge  in 

For  provi-  vacatiou,  cxcept  for  the  causes  above  stated  ;  but  the  Judge  may^ 

oniv,  etc.      m  term  time,  adjourn  such  Court  to  such  time  as  be  may  thmk  nt. 

§  3178.  [  The  Judges  of  the  Superior  Courts  of  this  State  may, 

jiKi-es  in  their  discretion,  hold  adjourned  terms  of  said  Courts  in  every 

may  hold  .   ,  .  ,      .  .  ^.  .  ,  i        i        • 

atijourned   (Joiintv  withiii  their  respective  Circuits,  when  the  business  re- 
terms.  .      '^.  ^  ' 

quires  it  to  close  the  dockets,  and  may,  in  the  exercise  of  a  sound 


/rf 


discretion,  cause  new  juries  to  be  drawn  for  the  same,  or  order 


PT.  3.— TIT.  1.— CHAP.  2.— Courts. 


599 


Chapter  3. — The  J'jclgcs  of  the  Superior  Courts. 


the  juries  drawn  for  the  regular  term  to  give  their  attendance  at 
such  adjourned  terms ;  and  such  Judges  are  authorized  to  hold 
special  terms  of   said   Courts   for  the  trial  of  criminals,  in  any  /i^fi  special 

-•■  '  *>    terms. 

County  of  their  Circuits^  at  discretion,  and  to  compel  the  attend- 
ance of  Grand  and  Petit  Jurors,  either  of  a  previous  term,  or  to 
draw  new  jurors  for  the  same,  according  to  the  laws  now  of 
force.]  (a) 

§  8179.  If,  from  any  circumstance,  a  maiority  of  the  Justices      Adjoum- 

^  '  -^  .  .  ment  of  In- 

of  the  Inferior  Court,  in  any  of  the  Counties  of  this  State,  should  ferior  court, 
fail  to  attend  at  any  session  of  said  Inferior  Court,  it  shall  and 
may  be  lawful  for  any  one  of  the  Justices  of  said  Court  in  the 
County  where  such  failure  may  take  place,  together  with  the 
Sheriff,  or  his  deputy.  Coroner,  or  Constable,,  and  the  Clerk  of 
said  Court,  to  adjourn  said  Court  to  such  time  as  they,  in  their 
judgment,  may  think  proper ;  and  if  no  one  of  said  Justices 
should  attend  on  the  first  day  of  any  session,  their  Clerk  shall 
have  the  same  power  as  the  Clerk  of  the  Superior  Court  in  such 
cases  until  one  of  such  Justices  shall  attend. 

§  3180.  The  Inferior  Court  may  be  adjourned  in  term  time,  as    Maybead- 

^1        o  '         r^  ^  journed     by 

the  buperior  Court.  thecierk. 


CHAPTER    III. 


OF    THE    JUDGES    OF    THE    SUPERIOR   COURTS. 


Section. 

3181.  Rules  of  practice,  etc. 

3182.  All  other  rules  void. 


Section. 

3183.  Judges  must  not  express  opinion. 

3184.  Must  charge  the  jury  specially. 


§  3181.   The  several  Judges   of   the    Superior   Courts  of   this     Euies  of 

n  ^  (>    n\  •  i  ^^®  Superior 

State  may  convene  at  the  seat  of  uovernment  once  m  each  year,  comt,  etc. 
at  such  time  as  they,  or  a  majority  of  them,  may  appoint,  for  the 
purpose  of  establishing  uniform  rules  of  practice  throughout  the 
several  Circuits  of  this  State  ;    which  rules,  so  established,  shall 

'  ,  '  '  Must   be 

be  published  immediately  after  the  adjournment  of  said  conven-  published. 
tion. 

§  3182.  All  rules  of  practice  for  the  Superior  or  Inferior  Courts,     ah  other 
prescribed  by  any  other  authority  than  that  which  has,  by  the 
previous  Section,  been  deputed  to  all  the  Judges  of  the  Superior 


(a)  Acts  of  1861,  p.  56 ;  and  Acts  of  1865-6,  p.  59. 


600  PT.  3.— TIT.  1.— Courts. 

Cliapter  3. — Tiie  Judges  of  the  Superior  Courts. 


Courts  of  Georgia,  in  convention,  shall  be  null  and  void  and  in- 
operative. 

§  3183.  It  is  error  for  any  or  either  of  the  Judges  of  the  Supe- 
jucigemufet  rior  Courts  of  this  State,  in  any  case,  whether  civil  or  criminal,  or 

not    express  .... 

theSts  ^°  "^^  ^^^^^y?  during  its  progress,  or  in  his  charge  to  the  jury,  to  ex- 
press or  intimate  his  opinion  as  to  what  has  or  has  not  been  proved, 
or  as  to  the  guilt  of  the  accused  ;  and  should  any  Judge  of  said 
Court  violate  the  provisions  of  this  Section,  such  violation  shall  be 
Error.       held  by  the  Supreme  Court  to  be  error,  and  the  decision  in  such 
case  reversed,  and  a  new  trial  granted  in  the  Court  below  with 
such  directions  as  the  said  Supreme  Court  may  lawfully  give. 
§  3184.  The  Judges  of  the  Superior  Courts  shall,  at  the  first 
jndgemust  Court  in  cach  year,  give  the  law  on  the  subject  of  educatinp;  tho 

charge     the  J  '  o  o  G       ^ 

jury,  etc.  poor.  Specially  in  charge  to  the  Grrand  Juries,  together  with  his 
suggestion  and  arguments  upon  their  duty  and  policy  in  relation 
to  the  same,  and  shall  also  at  each  term  of  said  Court  in  every 
year,  give  specially  in  charge  to  said  Grand  Juries  the  law  against 
gaming,  gambling  with  negroes,  carrying  deadly  weapons,  furnish- 
ing negroes  with  poisonous  drugs,  [the  law  requiring  railroads  to 
furnish  water  and  light  on  trains,  and  the  Section  against  fore- 
stalling, regrating  and  engrossing.]  (a)  * 


TITLE     II. 

OF        ACTIONS. 


Chapter  1. — G-eneral  Principles. 
Chapter  2. — Of  Attachments. 
Chapter  3. — Petition  and  Process, 
Chapter  4. — Of  the  Venue. 
Chapter  5. — Bail  in  Civil  Cases. 
Chapter  6. — Of  Maldng  Parties. 
Chapter  7. — Of  Abatement,  Retraxit,  etc, 

(a)  Acts  of  1863-4,  pp.  132,  46. 

*  For  further  powers  and  duties  of  the  Judges  of  tlie  Superior  Court,  see  Part 
1,  Title  5,  Chapters, 


PT.  3.— TIT.  2.— Actions. 


601 


Chapter  1. — General  Principles. 


CHAPTER  I. 


GENERAL    PRINCIPLES, 


Section. 

3185.  For  every  right,  etc. 

3186.  Action  defined. 

3187.  All  distinctions  of  actions  abolished 

3188.  A  civil  action  defined. 

3189.  A  penal  action  defined. 

3190.  Demand— when  required. 

3191.  Claims  of  persons  can  not  be  joined 


Section. 

3192.  Parties  to  actions  on  contracts. 

3193.  Parties  to  actions  for  torts. 

3194.  Tenant  in  common  may  sue  alone. 

3195.  Dates,  etc.,  may  be  in  figures. 

3196.  DiS"erent  claims  may  be  joined. 

3197.  When  parties  may  sue  separately. 

3198.  A  suit  by  an  infant  is  not  void. 


t<r/ 


^  3185.  For  every  right  there  shall  be  a  remedy,  and  every    i^or  every 
Court  havinsT  iurisdiction  of  the   one,  may,  if  necessary,  frame  stiaii  be   a 

o    J  ^  ,/  7  t/  '  remedy. 

the  other. 

§  3186.  An  action  is  merely  the  judicial  means  of  enforcing  a    An  action. 
right.  -  •:  ( ^ '       oC^t  t  v^   /  ^r  r^  ,  ^  ;u^tf7  r^,  f-   ^,„^^  ^  / ,  ^.^-Z  ^' ^ 

§  3187.  All  distinctions  of  actions  into  real,  personal  and  mixed    Distinction 

,  of       actions 

are  abolished.     An  action  may  be  against  the  person,  or  against  abolished. 
property,  or  both.     Generally,  a  proceeding  against  the  person 
binds  the  property  also,  and  a  proceeding  against  property  with- 
out service  on  the  person,  binds  only  the  particular  property. 

§  3188.  A  civil  action  is  one  founded  on  private  rights,  arising 
either  from  contract  or  tort. 
,      §3189.  A  penal  action  is  one  allowed  in  pursuance  of  public    Apenaiac- 

.        .  -  .   ^  ,        ^..  .         .         ,  tlon   definp.d 

lUbLiOd    uaufi     panjiCULini     ictVYO.        li    nO  bUeCiai  OiXlCfei    IS  aUtilOl'lZea  and     pai ties 

nrovidGd. 

to  be  the  plaintiif  therein,  the  State,  or  the  Governer,  or  the  Attor- 


A  civil  ac- 
tion defined. 


ney  or  Solicitor  General  may  be  the  plaintiif..^^  '■■..   ''  \,      .      ,       .      / 

'l2-S'^'      §3190.  No  demand  is  necessary  to  the  commencement  of  an  No  demand 

action  except  in  such  cases  as  the  law  or  the  contract  prescribes.  'Cj/yo  / 

§3191.   Distinct  and   separate  claims   of  or  asainst  different  Againstdif- 

*■  ^  ^  °  ferent     per- 

persons,  can  not  be  joined  in  the  same  action.  sons. 

§  3192.  As   a  general  rule,  the   action  on   a  contract,  whether    Parties  to 

,  actions      on 

express  or  implied,  or  whether  hj  parol,  or  under  seal,  or  of  re-  contracts. 
cord,  must  be  brought  in  the  name  of  the  party  in  whom  the       ;ii.i*'\/ 
legal  interest  in  such  contract  is  vested,  and   against  the  party      :,  ^lA 
who  made  it  in  person  or  by  agent. 

§  3193.  An  action  for   a  tort  must,  in  general,  be  brought  in    Parties  to 
the  name  of  the  person  whose  legal  right  has  been  affected,  and  torts. 
who  was  legally  interested  in  the  property  at  the  time  the  injury 
thereto  was  committed,   and  against  the  party  committing  the 


602  PT.  3.— TIT.  2.— Actions. 


Chapter  1. — General  Principles. 


injury,  either  by  himself,  his  servant,   or  agent  in  his   employ- 
ment. 

§  3194.  A  tenant  in  common  need  not  join  his  co-tenant,  but 
A  tenant  may  suc  Separately  for  his  interest,  and  the  iudgment  in  such  case 

in    common  ''  .  o       a 

may     sue  afFccts  Only  himsclf. 

alone.  *' 

§  3195.  Dates  and  amounts  in  pleading  may  be  set  out  in  fig- 
Dates  and  ures  or  Arabic  numerals,  and  when  a  party  signs  a  contract  with 

amounts  .        .  .  .      .  ±  j        o 

may  be  set  the  initials  of  his  Christian  name   only,  he  may  be  sued  in  the 

out  in  fig-  •'■'  "^ 

^^es.  same  way. 

§  3196.  All  claims  arising  ex  contractu^  between  the  same  par- 
Different  ties,  may  be  ioined  in  the  same  action ;  and  all  claims  arising  ex 

claims    may  '  %>  ^  ^    ^  o 

be  joined,  delicto  may  in  like  manner  be  joined.  The  defendant  may  also 
set  up,  as  a  defense,  all  claims  against  the  plaintiff  of  a  similar 
nature  with  the  plaintiff's  demand. 

§  3197.   Courts  will  not,  in  one  suit,  take  cognizance  of  distinct 
When  par-  and  Separate  claims  of  different  persons  ;  but  where  the  damage, 

ties  must  sue  -^  .  ,  .     .  . 

separately,  as  wcll  as  the  interest  is  several,  each  party  injured  must,  in  that 
case,  sue  separately. 

§  3198.  A  suit  commenced  and  prosecuted  by  an  infant  alone 
Suits  by  is  not  void,  and  although  the  suit  is  defective  in  wanting  a  guar- 

an  infant  not     .  .  .  . 

void.  dian  or  next  friend,  the  defect  is  amendable  before  verdict,  and 

cured  by  verdict. 


CHAPTER    IL 

OF      ATTACHMENTS 


Article  1. —  Of  Issuing  Attachments. 

Article  2. — In  ivJiat  Manner^  on  what  Property  Executed^  etc. 

Article  3. — Proceedings  on  Garnishments. 

Article  4. — Pleading  and  Defenses. 

Article  b.-^Replevy  and  Pisposition  of  Property  Attached. 

Article  6. —  Claim  and  Proceedings  Therein. 

Article  7. — Lien  of  Attachments,  Judgments,  and  Executions. 


PT.  3.— TIT.  2.— CHAP.  2.— Actions. 


603 


Article  1. — Tssnino-  A ttacliroents. 


ARTICLE  I. 


OF     ISSUING     ATTACHMENTS 


Section. 

3199.  Grounds  of  attachment. 

3200.  Affidavit. 

3201.  Bond  to  be  given. 

3202.  Copartner  may  make  oath,  etc. 

3203.  Issue  by  a  Judge,  Justice,  etc. 

3204.  Property  in  another  County. 

3205.  When  returnable. 

3206.  To  whom  directed. 

3207.  Issue  and  levy  on  Sunday. 


Section. 

3208.  When  the  debt  is  not  due. 

3209.  Joint  contracts — may  be  attached. 

3210.  Executors,  administrators,  etc. 

3211.  Security  or  endorsers  vs.  principal. 

3212.  May  issue  pending  suit. 

3213.  Foreign  incorporations. 

3214.  Bail  may  be  attached. 

3215.  Not  void  for  want  of  form. 
321G.  Affidavit,  bond,  and  attachment. 


§  3199.  Attachments  may  issue  in  the  following  cases: 

1.  When  the  debtor  resides  out  of  the  State. 

2.  When  he  is  actually  removing,  or  about  to  remove,  without 


Grounds  of 
attachment. 


^L^/HL.  v'/ 


J 


V 


■k:. 


/ 


/ 


1 


liom 
t 


the  limits  of  the  County. 
2.  When  he  absconds. 

4.  When  he  conceals  himself. 

5.  When  he  resists  a  legal  arrest.  ^^  /^ 

6.  When  he  is  causing  his  property  to  be  removed  beyond  the 
limits  of  the  State. 

^  3200,   Before  process  of  attachment  shall  issue,  the  party   ^?7/^<^f 

'^  -T  ^  •it/aiiiaavi 

seejcing  the   same,  his  agents,  or  attorney  at  law,  shall  make  an  "laybemade 
affidavit  before  some  Judge  of  the  Superior  Court,  Judge  of  the 
County  Court,  Justice  of  the  Peace,  or  Notary  Public,  that  the  Agent  or  at- 

"^  *^_    ^  torney    may 

debtor  has  placed  himself  in  some  one  of  the  positions  enumerated  swear.^ 
in  this  Code,  and  also  of  the  amount  of  the  debt  claimed  to  heC 
due.     When  the  affidavit  is  made  by  the  attorney  at  law,  or  agent 
of  the  party,  he  may  swear  that  the  amount  claimed  to  be  due,  is 
due  according  to  the  best  of  his  knowledge  and  belief. 

§  3201.  The   party   seeking;  the  attachment,  before  the  same       Plaintiff  i  /,- , 

.  •,     n      T  .        1  -,       .   1  1  .         •  -I  ^"st      give    -^^-^'-^ 

issues,  shall  also  2;ive  bond  with  snood  security  m  an  amount  at  least  bond  andse- 
double  the  debt  sworn  to,  payable  to  the  defendant  in  attachment,     ^  ,.,     ., 
conditioned  to  pay  such  defendant  all  damages  that  he  may  sus-   "  ' 
tain,  and  also  all  costs  that  may  be  incurred  by  him  in  consequence 
of  suing  out  the  attachment  in  the  event  the  plaintiff  shall  fail  to 
recover  in  said  case  ;  which  bond  it  shall  be  the  duty  of  the  magis- 
trate or  other  officer  before  whom  the  affidavit  is  made  to  take,  and  Agentorat- 
where  the  affidavit  is  made  b}^  the  agent  or  attorney  at  law  of  the  give  bon™.^"^ 
plaintiff,  such  agent  or  attorney  at  law  is  hereby  authorized  to 


u 


I 


604  PT.  3.— TIT.  2.— CHAP.  2.— Actions. 


Article  1. — Issuing  Attachments. 


sign  the  name  of  the  principal,  who  shall  also  be  bound  thereby  in 
the  same  manner  as  though  he  had  signed  it  himself. 
§/S*^0  '  §3202.   When  the  debt  for  the  recovery  of  which  the  attach- 

Co-partner,  ment  is  sought,  is  due  to  a  co-partnership,  or  is   due  to  several 

agent,  or  at-  •    •       i         •         i      n     i       i         r»   i     f 

torney  may  pcrsous  lomtly,  it  shall  be  lawful  for  any  one  of  the  co-partners 

make  affida-  ....  '^ 

vit.  or  joint  creditors,  his  agent  or  attorney  at  law,  to  make  the  affi- 

davit, and  give  the  bond  as  prescribed  by  this  Code,  and  to  sign 
the  name  of  the  other  co-partners  or  joint  creditors  to  said  bond, 
and  they  shall  be  bound  thereby  in  the  same  manner  as  though  they 
had  signed  it  themselves. 

§  3203.  Affidavit  being  thus  made  and  bond  given,  it  shall  be 

Attachment  the  dutv  of  the  officcr  before  whom  such  affidavit  is  made  and 

— who    may  ,  ,        .  ^  ^        •        ^ 

issue.  bond  given,  or  any  officer  authorized  so  to  do,  to  issue  an  attach- 

i.*  , ;',/  J"'  /^\  ment  against  the  defendant,  which  may  be  levied  on  the  property 
of  the  defendant,  both  real  and  personal,  if  to  be  found  in  this 
State. 

§  3204.  When  the  plaintiff  in  attachment  wishes  to  levy  his 
Property  attachment  upon  property  in  a  different  County  from  that  in  which 

in    a    difier-  .  Ti-iniii  r*      ^ 

ent  County  the  samo  IS  returnable,  it  shall   be  the  duty  ox  the  magistrate  or 

— how  levied        i  fv»  •  •  i  i  i  o       ^ 

upon.  other   omcer   issuing  such  attacnment,  upon  the  request  oi    the 

plaintiff,  his  agent  or  attorney  at  law,  to  make  out  a  cop}^  or  copies 

of  the   original  attachment,  bond,  and   affidavit,  and   certify  the 

Copies  to  same,  officially,  to  be  a  true  copy  or  copies ;   and  upon  such  copies 

the   County  being  delivered  to  any  officer  to  whom  the  same  is  directed,  of  the 

where       thf»   ^  ^  .  .  ,  .      _ 

property  is.     VjOUHly    W  Qere     tllC     piOpei'L^    01    lUO   uelt'nuauij    IS,   il     buitii     Ue     LutJ 

Officer  shall  duty  of  such  officer  to  levy  for4;hwith   the  same  upon  the  property 
turn.  of  the  defendant  in  such  County,  and  to  return  the  same,  with  his 

actings  and  doings  entered  thereon,  to  the  Court  to  which  the 
original  attachment  is  returnable. 

§  3205.  When  the  amount  sworn  to  shall  exceed  the  sum  of  fifty 

Attach-  dollars,  the  attachment  shall  be  made  returnable  to  the  next  term 

where  re-  of  the  Superior   or  County   Court  of  the  County  where  the  de- 

turnable.  -^   .  "^  / 

fendant  resides,  or  where  he  last  resided,  but  if  such  Superior 
Court  shall  sit  within  twenty  days,  or  such  County  Court  shall  sit 
within  fifteen  days  next  after  issuing  such  attachment,  it  shall  be 
made  returnable  to  the  next  term  of  the  Superior  or  County 
Court  thereafter  ;  and  when  the  debt  sworn  to  does  not  exceed  the 
•  '  ..._  sum  of  fifty  dollars,  the  attachments  shall  be  made  returnable  to 
the  next  Justices'  Court  of  the  district  in  Avhich  the  debtor  resides, 
or  last  resided ;   but  if  the  next  Justices'  Court  shall  sit  within  ten 


PT.  3.-— TIT.  2.— CHAP.  2.— -Actions.  GOi 


Article  1. — Issuing  Attachments. 


days  next  after  issuina^  such  attachment,  it  shall  be  made  returna-     whenre- 

11  T         •         »    /-(  tamable     to 

ble  to  the  next  Justices    Court  thereafter,  except  when  the  defen-  »    Justice's 

'  i  Court. 

dant  resides  out  of  the  State;  and  in  that  case,  if  the  debt  sworn 

to  exceeds  fifty  dollars,  the  attachment  may  be  made  returnable  ,  ^^*^"  *^! 

•^  ■'  J  (lefendant 

to  the  Superior  Court  of  any  County  in  this  State;  and  if  it  does  ^f'^the^tatc 
not  exceed  fifty  dollars,  the  attachment  may  be  made  returnable  ^rnJ>ie.  ^^' 
to  a  Justices'  Court  of  any  district  of  any  County  in  this   State. 

§  3206.  Attachments  returnable  to  the  Superior  and  County     To  whom 

.  directed. 

Courts  shall  be  directed  to  all  and  singular  the  Sheriffs  and  Con- 
stables of  this  State,  and  attachments  returnable  to  the  Justices' 
Courts  shall  be  directed  to  all  ^;nd  singular  the  Constables  of  this 
State. 

§  3207.  Attachments  may  issue  and  be  levied  on  Sunday  when    May  issue 
the  plaintiff,  his  agent,  or' attorney  at  law  shall  swear,  in  addition  to  bath  day. 
the  oath  prescribed  by  this  Code,  that  he  has  reason  to  apprehend 
the  loss  of  the  debt,  unless  process  of  attachment  do  issue  on  Sun-    Additional 
day,  and  shall  also  comply  with  the  other  provisions  of  this  Code 
in  relation  to  issuing  attachments. 

§  3208.  When  the  debt  is  not  due,  the  debtor  shall  be  subject  to    when  the 

.  /  ,'^  debt  is    not 

attachment  m  the  same  manner  and  to  the  same  extent  as  in  cases  due. 
where  the  debt  is  due,  except  that  where  the  debt  does  not  become 
due  before  final  judgment,  execution  upon  the  judgment  shall  be 
stayed  until  the  debt  is  due. 

§  3209.  In  cases  of  joint  contractors  and  co-partners,  where  any    Joint  con- 

„,'  11'  TPTii  1  T         ti-hctors  sub- 

one  01  them  shall   render  himselr  liable  to  attachment   according  ject  to   at- 

/  ^  ^  ^  ^       .        tachinent. 

to  law,  ail'  attachment  may  issue  against  him  upon  the  plaintiff,.-,  u^    .x 

his  agei/t,  or  attorney  at  law  complying  with  the  previous  pro-     "         ...^      ' 
vision^  of  this  Code  in  relation  to  the  issuing  of  attachments ;  and     '  0  J""^ 

the  proceedings  against  such  joint  contractors  or  co-partner  shall 
be  in^  all  respects  as  in  other  cases  of  attachments,  except  that  Tobeievied 
such  attachment  shall  be  levied  only  upon  the  separate  property  property.^'^  ^ 


of  siich  joint  contractor  or  co-partner. 

§{3210.  Process  of  attachment  may  issue  against  an  administra-    May  issue 

,         (  ,  f      1       1  -n  1  "  P    against    au 

tor  ton  an  estate,  or  the  executor  or  the  last  will  and  testament  oi  administra- 
any  deceased  person,  as  in  other  cases,  when  such  administrator  or 
exe^cutor  shall  be  actually  removing,  or  about  to  remove  the  prop- 
erty of  said  deceased  person  without  the  limits  of  any  County  of 
thjis  State;  provided^  final  judgment  shall  not  be  entered  up 
acVainst  such  administrator  or  executor  until  after  the  expiration     Judgment 

^^  ^  ^  maybestay- 

of  two  years  from  the  granting  of  letters  of  administration,  or  ^^' 


606  PT.  3.—TIT    2.— CHAP.  2.-»Action-.. 

Article  1. — Issuing  Attachments. 


^^■ 


letters  testamentary,  as  the  case  may  be ;  and  in  all  cases  of 

Miiy  issue  monev  demands,  whetlier  arising  ex  contractu  or  ex  delicto,  plain- 
in  all   cases     _  "^  ,  °  •*■ 

of    money  tiff  shall  liavc  the  riojht  to  sue  out  the  attachment  when  the  de- 

aemands.  "  ^  _ 

fendant  shall  have  placed  himself  in  such  situation  as  will  au- 
thorize a  plaintiff  to  sue  out  attachment  upon  the  plaintiff's  com- 
plying with  the  law  now  of  force  in  relation  to  issuing  attach- 
ments. 

§  3211.  In  all  cases  where  a  person  is  surety  or  endorser  upon 
May    be  an  instrument  of  writinsi;,  and  the  principal  shall  become  subiect 

sued  out  by  .     ®'  •    •  o 

a    security  to  attachment,  according  to  the  provision  of  Section  3199  of  this 

against     his  ^  ox 

inincipai.     Codo,  it  shall  bc  lawful  for  such  surety  or  endorser,  upon  com- 

/l<r  P^J^'^S  '^'^'^  t^6  provisions  of  this  Code  in  relation  to  the  issuing 

^        of  attachments,  to  have  attachment  agc'inst  his  principal ;  and  the 

proceedings  shall  be,  in  all  respects,  the  same  as  in  other  cases  of 

attachment,   according  to   the  provisions  of  this  Code,   and  the 

Proceedings,  moncy  raiscd  by  such   attachments  shall  be  paid  to  the  person 

holding  such  instrument  of  writing.     But  if  the  surety  or  endorser 

Money—  has  paid   the  debt,  then  the  money  raised  upon  such  attachment, 

how  paid  out  ■"•  '  ^  ii  i.  ' 

or  so  much  thereof  as  will  pay  the  amount  the  surety  or  endorser 
has  paid,  shall  be  paid  to  such  surety  or  endorser;  and  in  case  the 
debt  is  not  due  at  the  time  judgment  is  rendered  against  the  prin- 
cipal, execution  shall  be  stayed  until  the  debt  is  due. 

§  3212.  In  all  cases  where  the  plaintiff  has  commenced  suit  for 
.  ^hen  suit  the  recoverv  of  a  debt,  and  the  defendant,  durinsr  the  pendency  of 

IS  pending.  "^  ^  ^  ^  o  i.  ./ 

such  suit,  shall  become  subject  to  attachment,  agreeable  to  Sec- 
tion 3199  of  this  Code,  the  plaintiff,  upon  complying  with  the 
provisions  of  this  Code  in  relation  to  the  issuing  of  attachments, 
may  have  an  attachment  against  the  defendant,  and  all  the  pro- 
ceedings in  relation  to  the  same  shall  be  as  hereinbefore  pre- 
scribed in  relation  to  attachments  where  no  suit  is  pending.  And 
ofjudS^ent  ^  Satisfaction  of  the  judgment  in  the  common  law  action  shall  sat- 
isfy the  judgment  in  attachment,  and  a  satisfaction  of  the  judg- 
mentjn  attachment  shall  satisfy  the  judgment  in  the  common  law 
action.  i 

§3213.  Attachments  may  issue   against  incorporations  not   in- 
Foreign  in- corporated  by  the  laws  of  this  State,  who  are  transacting  businless 

corporations      .       .  \, 

subject    to  within  the  State,  under  the  same  rules  and  re2;ulations  as  are  (by 

attachment.        ^  \  ^  ;  '' 

this  Code  prescribed  in  relation  to  issuing  attachments  and  gir- 


Stay  of 
execution. 


nishments  in  other  cases. 


§  3214.  In  all  civil  suits  in  which  bail  has  been  required,  anjd 


} 


PT. 


O.- 


•TIT.  2.-^0HAP.  2.— Actions. 


607 


Atticle  1. — Issuing  Attachments. 


such  bail  has  been  given,  and,  pending  the  liability  of  said  bail, 
he  shall  attempt  to  remove  beyond  the  State  or  County  in  which 
such  bail  resided  at  the  time  the  same  was  required,  it  shall  be 
lawful  for  the  party  at  whose  suit  bail  was  required  to  attach  the 
property  of  said  bail  to  answer  the  suit  of  the  party  suing  out  the 
same ;  provided,  that  said  bail  may  discharge  his  property  from 
said  levy  by  delivering  up  the  body  of  the  principal  according  to 
the  laws  of  this  State. 

§  3215.  A  substantial  compliance  in  all  matters  of  form  shall 
be  held  sufficient  in  all  applications  for  attachment,  and  in  all  at- 
tachments issued  as  provided  by  this  Code.  --» 

§  3216.  In  all  cases  of  attachment  the  form  of  the  affidavit, 
bond,  and  attachment  may  be  as  follows : 


Attachment 
may  issue 
against  bail 
in  certain 
cases. 


A  compli- 
ance in  sub- 
stance suffi- 
cient. 

Forms. 


Georgia, 
—  Couinty. 


AFFIDAVIT. 


Before  me,  the  subscriber,  a  — —  in  and  for  said  County,  — — —    Affidavit. 

personally  — —  and  on  oath  says  that is  indebted  to  him  in 

the  sum  of  — — ,  and  that  the  said . 


Sworn  to  before  me, 


this  the 


day  of 


18-^ 


Georgia, 
—  County. 

We,  — ,  principal,  and 


BOND. 


selves  bound  unto 


,  security,  acknowledge  our- 

in  the  sum  of  — —  dollars,  subject  to 


the  following  conditions  : 

That  the  said ■,  principal,  is  seeking  an  attachment  against 

the  said ,  which  is  now  about  to  be  sued  out,  returnable  to 

the term  of  the Court  of  the  County  aforesaid  ;  now, 

if  the  said shall  pay  all  damages  that  the  said may 

sustain,  and  also  all  costs  that  may  be  incurred  by  him  in  conse- 
quence of  suing  out  such  attachment  in  the  event  that  the  said 
shall  fail  to  recover  in  said  case,  then  this  bond   to  be  void. 


Executed  in  presence  of 


this 


day  of 


Georgia, 
—  County, 


ATTACHMENT. 


18—. 

[L.  S.] 
[L.  S.] 


To  all  and  singular  the  Sheriffs  and  Constables  of  said  State : 
You  are  hereby  commanded  to  attach  and  seize  so  much  of  the 


Bond. 


608 


PT.  3.— TIT.  2.— CHAP.  2.— Actions. 


Article  2. — In  what  Manner,  and  on  what  Property  Executed. 


Attachment,  propertj    of  — 


as  will  make  the  sum  of 


dollars  and  all 


costs,  and  also  to  serve  sucli  summons  of  garnishment  as  may  be 
placed  in  your  hands,  and  that  you  make  return  of  this  attach- 
ment with  your  actings  and  doings  entered  thereon,  to  the  — ■ — • 
term  of  the •  Court  of  said  County,  to  which  Court  this  at- 
tachment is  hereby  made  returnable.  Hereof  fail  not.  Witness 
my  hand  and  seal  — -,  this  the day  of 18 — . 

[L.  S.] 


ARTICLE   II. 

IN  WHAT  MANNER,   ON   WHAT   PROPERTY    EXECUTED,   AND    PROCEED- 
INGS   THEREIN. 


Section. 

3217.  Duty  of  officer  to  whom  directed. 

3218.  Must  make  a  return. 

3219.  Must  be  levied  in  order  received. 

3220.  May  be  levied  on  property  of  deft. 

3221.  May  be  levied  by  garnish ment. 


Section. 

3222.  Shares  or  interest  in  incorporation. 

3223.  Transfer  after  levy  void. 

3224.  Certificate  of  purchase. 

3225.  Vendor  ®s.  vendee — sale  of  land. 


§  3217.  It  shall  be  the  duty  of  any  one  of  the  officers  to  whom 
Duty  of  the  an  attachment  may  be  directed,  as  provided  in  Section  3206,  Ar- 

officer       to.  "^  J  r  7 

whomtheat-  ticlc  I,  to  levv  tlic  Same  upon  the  property  of  the  defendant  that 

tachment  is  .  .        ^  . 

directed.      may  \)q  found  in  the  County  of  which  he  is  Sheriff  or  Constable ; 

and  when  any  attachment  shall  come  into  the  hands  of  any  officer 

of  the  County  in  which  such  attachment  is  returnable,  and  the  de- 

ifproperty  fcndant  shall  have  removed  his  property  beyond  the  limits  of  said 

is    removed,  . 

etc.  County  before  such  an  attachment  is  executed,  it  shall  be  the  duty 

of  the  officer  having  such  attachment  to  follow  such  property  into 
any  County  in  the  State,  and  levy  the  same,  and  bring  the  prop- 
erty back  into  the  County  where  the  attachment  is  returnable. 
§  3218.  It  shall  be  the  duty  of  the  officer  levying  such   attach- 

Attachment  mcnt  to  return  the  same,  with  his   actinars  and  doines  entered 

must  be   re-  '  00 

turned.        thcrcon,  together  with  the  affidavit  and  bond,   to  the  Court  to 
which  the  same  is  made  returnable. 

§  3219.  In  all  cases  it  shall  be  the  duty  of  the  officer  levying 
Officer  must  attachments  to  levy  them  in  the  order  in  which  they  came  into  his 

levy,  etc.  ^  "^ 

hands,  and  it  shall  be  his  duty  to  enter  upon  the  same,  the  year, 

month,  day  of  the  month,  and  hour  of  the  day  on  which  he  made 
the  levy. 

§  3220.  When  an  attachment  has  been  issued  by  the  proper  of- 
vi^^ou^the  fi^®^?  ^^^  same  may  be  levied  upon  the  property  of  the  defendant, 
property,etc.  ])qi]^  yqq\  ^nd  persoual,  which  may  be  found  in  the  County. 


PT.  3.— TIT.  2.— CHAP.  2.— Actions.  609 


Article  2. — In  what  Manner,  and  on  what  Property  Executed,  etc. 


§3221.  .Seivice__of  Jjbe  attachment,  bj  serving  process  of  gar-    Maybeie- 

■«.—«».*«„.««-    ..„.,-^ .. , .  _.  .  vied   t)V  scr- 

nisjirgent,  shall  be  as^^efFectual  for  all  purposes  as  though  the  at-  vice  of  gar- 
tachment  had  been  served  bj  levying  the  same  upon  the  property 
of  the  defendant. 

§  3222.  When  the  process  of  attachment  shall  issue  against  a     shares  or 

"  interest      in 

party  who  shall  have  or  own  any  interest  or  an  amount  of  shares  any  corpora- 

•••         -^  ^  ,  "^  tion,  etc. 

in  any  corporation  in  this  State,  the  same  may  be  attached  in  the 
following  manner:  The  officer  in  whose  hands  the  attachment  is 
placed,  shall  endorse  an  entry  thereon  of  his  levy  on  the  corpo- 
rate shares  or  interest  of  the  defendant,  and  shall  forthAvith  serve 
a  copy  of  the  attachment  so  endorsed  upon  the  president  of  the  How  levied 
corporation,  at  the  omce  ot  the  company,  or  by  leaving  the  same  soia. 
at  the  usual  or  most  notorious  place  of  doing  the  business  of  such 
company,  which  entry  and  service  shall  amount  to,  and  be  con- 
sidered a  seizure  of  said  corporate  interest  or  shares  to  all  intent^ 
and  purposes,  and  under  an  execution  issued  on  such  attachment, 
may  be  sold  as  in  other  cases  of  ordinary  execution. 

§  3223.  Any  transfer  by  the  defendant  of  the  stock  or  interest      Transfer 
so  attached  after  the  levy  of  such  attachment,  shall  be  void,  and  void. 
when  an  execution  is  issued,  the  said  stock  or  interest  shall  be  sold 
by  the  Sheriff,  or  his  deputy,  according  to  the  provisions  of  this 
Code,  to  make  bank  and  other  stocks  subject  to  executions. 

§  3224.  Certificates  of  purchase  shall  be  granted  by  the  officer    officer  seii- 
selling  as  prescribed  in  cases  of  executions,  and  on  presentation  giveacertifl- 
of  such  certificates  to  the  proper  officer  of  said  corporation,  it  shall 
be  his  duty  to  make  such  transfer  on  his  books,  if  necessary,  and    Transfer. 
afford  the  purchaser  such  evidence  of  title  to  the  stock  purchased  of-^i^jg*^^*'^ 
as  is  usual  and  necessary  with  other  stockholders. 

§  3225.  In  all  cases  of  sale  of  lands,  where  the  vendor  has  not        Vendor 

--—-„_«— * — '-^--^ - may    attach 

executed  a  deed  of  conveyance  to  the  purchaser  for  the  same,  but  ^^'^  purchase 

"  -'■  ^  money. 

has  given  bond  for  titles,  or  other  evidence  of  the  contract,  and 
the  purchase  money  has  not  been  paid,  and  the  vendee  shall  be- 
come liable  to  attachment  agreeable  to  the  provisions  of  Section 
3199  of  this  Code,  attachment  may  issue  against  him  at  the  in- 
sance  of  the  vendor,  upon  complying  with  the  provisions  of  this  Code 
in  relation  to  attachments  ;  which  said  attachment  shall  be  levied  up-  How  levied. 
on  the  land  described  in  the  bond,  or  other  evidence  of  contract  for 
titles,  and  the  subsequent  proceedings  shall  be,  in  all  respects,  as  ,    | 

heretofore  prescribed  in  this  Code  in   relation  to   attachments ; 
and  it  shall  be  lawful  for  the  party  bound  by  such  bond,  or  other 
39 


610 


PT.  3.— TIT.  2.— CHAP.  2.— Actions. 


Article  3. — Proceedings  on  Garnishments. 


Deedmust  contract  for  titles,  to  file  in  tlie  Clerk's  office  of  the  Superior 
Court  of  the  County  where  the  land  is  situated,  a  good  and  suffi- 
cient deed  of  conveyance  of  said  land  to  the  obligee  of  said  bond 
or  other  contract  for  titles ;  and  when  judgment  is  obtained  upon 
such  attachment,  the  execution  issuing  thereon  may  be  levied  upon 
said  land,  and  the  same  be  sold,  and  the  money  arising  from  said 
sale  shall  be  appropriated  to  the  payment  of  said  judgment  on 
the  attachment,  to  the  exclusion  of  any  other  attachment,  judg- 
ment, or  other  debt  of  the  defendant. 


Lien 
judgment 


of 


ARTICLE    III. 


PKOCEEDINGS     ON     GARNISHMENTS. 


SEjBTIOJiT. 

3226.  How  issued,  directed,  served,  etc. 

3227.  Garnishee  residing  out  of  County. 

3228.  Garnishee  failing  to  answer. 


Sectio>\ 

3229.  Answering  and  admitting  effects. 

3230.  Plaintiff  may  traverse  the  answer. 

3231.  Issue — how  tried,  etc. 


'^4!.. 


§  3226.  In  all  cases  where  attachment  may  issue,  it   shall  be 
Garnish-  the  duty  of  the  Magistrate,  or  other  officer  issuing  the  same,  at 

ment  —  how  r«     i  i    •       •  rv    i  • 

obtained,      the  rcqucst  01  the  plamtin,  nis  agent  or  attorney  at  law,  to  issue 
/>  %  0     summons  of  garnishment,  directed  to  any  person  that  may  be  in- 
debted to,  or  have  property  or  effects  of  the  defendant  in  their 
Garnishee  hands,  requirinsT  them  to  appear  at  the  Court  to  which  the  attach- 

required    to  .  ,        °  i  i         i  i       i  ■^  i         , 

answer.  mcut  IS  made  returnable,  then  and  there  to  depose  on  oath  what 
they  were  indebted  to  the  defendant  at  the  time  of  the  service  of 
said  garnishment,  or  what  property  or  effects  of  his  they  have  in 
their  hands,  or  had  at  the  time  of  the  service  of  said  summons  of 
How  served,  garnishment ;  and  it  shall  be  the  duty  of  the  officer  levying  such 
attachment  to  serve  such  summons  of  garnishment. 

§  3227.  When  the  plaintiff,  his  agent,  or  attorney  at  law,  shall 
When  gar-  dcsirc  to  garnishee  persons  not  residing;  in  the  County  in  which 

nishee      re-  .  .  .  . 

sides  out  of  the  attachment  issues,  it  shall  be  the  duty  of  the  Mao-istrate  issu- 

the    County,  ^  '  ... 

etc.  ing  the  same,  at  the  request  of  the  plaintiff,  his   agent,  or  attor- 

ney at  law,  to  make  out  a  copy  of  the  affidavit,  bond,  and  attach- 
ment, and  certify  the  same  to  be  a  true  copy ;  and  upon  the  de- 
livery of  such  copy  to  any  Magistrate,  or  other  officer  who  is  au- 
thorized by  law  to  issue  an  attachment,  in  the  County  of  which 
the  person  sought  to  be  garnisheed  resides,  it  shall  be  the  duty 
of  such  Magistrate,  or  other  officer,  to  make  out  a  summons  of 


PT.  S.— TIT.  2.~CHAP.  2.— Actions. 


611 


Article  3.— Proceedings  on  Garnishments. 


garnishment  for  such  persons  as  he  may  be  requested  to  do  by  the 
|)lamtiff,  his  agent,  or  attorney  at  law,  requiring  such  persons  to 
be  and  appear  at  the  next  Superior  or  County  Court,  or  Justices' 
Court,  of  the  County  in  which  it  issued,  and  depose  in  the  man- 
ner prescribed  by  law;  but  if  the  next  Court,  as  aforesaid,  shall 
be  held  within  less  than  ten  days  next  after  the  issuing  of  said 
summons  <5f  garnishment,  then  the  person  garnished  shall  be 
required  to  appear  and  depose  at  the  next  Court  thereafter  ;  which 
said  summons  may  be  served  by  any  officer  authorized  by  law  to 
levy  an  attachment,  who  shall  return  such  certified  copy,  affidavit,  By  Avhom 
Ibond,  and  attachment,  to  the  Court  as  aforesaid,  together  with  and  retained 
liis  actings  and  doings  entered  thereon. 

§'3228»  When  any  person  summoned   as  garnishee  fails  to  ap-    ifthepar- 

,  1  1        r>  nishee    tails 

pear,  in  obedience  to  the  summons,  and  answer  at  the  lirst  term  to    answer, 
of  the  Court  at  which  he  is  required  to   appear,  the  case  shall 
stand  continued  until  the  next  term  of  the  Court ;    and   if  he 
should  fail  to  appear  and  answer  by  said  next  term,  the  plaintiff    On  further 

.  ,  ,      ,  .  ,  .        p  ,  r.    ,       failure,  etc. 

may,  on  motion,  have  judgment  against  him  tor  the  amount  of  the 
judgment  he  may  have  obtained  against  the  defendant  in  attach- 
ment, or  so  much  thereof  as  shall  remain  unpaid  at  the  time  the    comtmay 

,  .  -jT  ••I  •   1  1       •>        /^  continue  the 

judgment  is  rendered   agamst  the  garnishee ;  and  the  Court  may  garnishment 
continue  the  case  until  final  judgment  is  rendered  against  the  de- 
fendant in  attachment. 

§3229.  When  the  garnishee   appears  and  answers  that  he  is    if  the  gar- 
indebted  to,  or  has  property  or  effects  in  his  hands  belonging  to  mits%fifects 
the  defendant  in  attachment,  judgment  shall  be  rendered  against 
him  in  favor  of  the  plaintiff  for  such  acknowledged  indebtedness, 
■and  the  property  and  effects,  whatever  they  may  be,  shall  be  de- 
livered into  the  hands  of  the  Sheriff  or  Constable  as  the  case  may 
be,  and  by  order  of  the  Court  shall  be  by  him  sold,  and  the  money 
arising  from  such  sale  shall  be  held  subject  to  the  order  of  the 
Court,  and  in  case  the  garnishee  fails  to  deliver  over  such  property 
or  effects  to  the  officer  as  aforesaid,  it  shall  be  lawful  for  the  Court 
to  attach  him  as  for  contempt ;  the  property  and  effects  so  surren- 
dered and  delivered  into  the  hands  of  the  officer  as  aforesaid,  shall 
be  sold  at  such  time  and  place,  and  after  such  notice  given,  as  the  pelty!^  ^^^" 
Court  ordering  the  same  shall  direct. 

§  3230.  When  the  summons  of  garnishment  is  returnable  to  the       Plaintiff 

n  .  -IT...  .  may  traverse 

Superior  or  County  Court,  and  the  plaintiff  in  attachment  is  not  the   answer 

■•■  .  ot'garnishee. 

content  with  the  answer  of  the  garnishee,  he  may  at  the  term  of 


Property 
returned. 


Failinor  to 


612 


PT.  3.— TIT.  2.— CHAP.  2.— Actions. 


Article  4, — Pleading  and  Defenses. 


the  Court  to  which  the  retnrn  is  made,  traverse  the  same,  and  the 
Issue—    issue  formed  upon  such  traverse  shall  be  tried  at  the  same  term  by 

how  tried.  ^  ^  "^ 

a  Petit  Jury,  unless  cause  is  shown  for  a  continuance,  and  either 

party  being  dissatisfied  with  the  finding  of   the  said  jury,  may 

Eitherpar-  appeal  as  in  cases  at  common  law,  and  the  same  shall  be  tried  and 

ty  may  ap- 
peal, governed  by   the  same  rules  and  regulations  as  in  other  appeal 

cases.     On  the  trial  of  said  issue,  it  shall  be   competent  for  the 

piaintifr  plaintiff  to  show  the  amount  of  indebtedness  of  the  garnishee,  and 

raay      show  ^  "  ' 

indebted-  the  valuc  of  the  property  and  effects  not  surrendered  as  aforesaid; 

11  ess  of  gar-  , 

nishee.        and  upon  final  judgment  being  rendered  against  said  garnishee^ 
the  plaintiff  in  attachment  shall  have  execution  for  the  amount  of 
Execution,  such  judgment  and  cost  as  at  common  law. 

§  3231.  When  the  summons  of  garnishment  is  returnable  to  a 
If  the  issue  Justices'  Court,  the  issue  farmed  upon  the  traverse  as  aforesaid, 

IS  in  a  Jus-  .  .  ■  . 

tices'  Court,  shall  be  tried  by  a  jury  in  the  same  manner  as  appeal  cases  in  a 
Justice's  Court. 


ARTICLE   IV. 


OF     PLEADING     AND     DEFENSES 


Sectiok. 

3232.  Declaration  to  be  field  at  first  term. 

3233.  Plaintiff  give  defendant  notice,  etc. 

3234.  Defendant  defend  at  any  time,  etc. 

3235.  May  plead  set-off  not  due. 

3236.  May  traverse  truth  of  prflf's  affidavit 

3237.  Traverse  shall  not  delay  judgment. 


Section. 

3238.  Death  of  pi 'ff— parties,  how  made, 

3239.  Death  of  deft — parties,  how  made* 

3240.  Pleadings  amendable,  etc. 

3241.  Judgment  may  be  set  aside. 

3242.  Interrogatories  may  be  sued  out. 


§  3232.  When  the  attachment  has  been  returned  to  the  proper 
Declaration  Court,  the  subscqucnt  proceedings  shall  be  in  all  respects  the  same 


-^when. 


as  in  cases  where  there  is  personal  service,  and  when  the  attach- 
ment is  returnable  to  the  Superior  or  County  Court,  the  plaintiff 
shall  file  his  declaration  at  the  first  term. 

§3233.  The  plaintiff,  his  agent,  or  attorney  at  law,  may  give 
Ton  days'  notice  in  writing"  to  the  defendant  of  the  pendency  of  such  attach- 

notice  to  de-   -^  -  ,     ^     ,  ,.  ,  i  •    i       i     n    i  i 

fendant.  ment  and  of  the  proceedings  thereon,  which  shall  be  served  per- 
sonally on  the  defendant  by  the  Sheriff,  his  deputy,  or  a  Consta- 
ble of  the  County  to  which  said  attachment  is  returnable,  by  giving 
shfiTbfmfaii  ^^^  ^  ^^Py  ^^  ^^^^  notice,  at  least  ten  days  before  final  judgment 
defimiant.^^  on  Said  attachment,  and  returning  said  original  notice  with  his 
service  entered  thereon  to  the  Court  in  which  said  attachment  is 
pending,  which  being  done,  the  judgment  rendered  upon  such  at- 


PT.  3.— TIT.  2.~CHAP.  2.— Actions.  613 

Article  A — Pleading  and  Defenses. 

tachment  shall  have  the  same  force  and  effect  as  judgments  ren- 
dered at   common   law;  and  no   declaration   shall   be   dismissed  ^Nodedara- 

'  tion  shall  be 

because  the  attachment  may  have  been  dismissed  or  discontinued,  dismissed. 

but  the  plaintiff  shall  be  entitled  to  judgment  on  the  declaration 

filed,  as  in  other  cases  at  common  law,  upon  the  merits  of  the  case.     Defendant 

,  nafty      make 

§  3234.  The  defendant  may  appear  by  himself  or  attorney  at  law.,  tis  defense. 
and  make  his  defense  at  any  time  before  final  judgment  is  rendered  Either  party 

....  .       i^^'J  appeal. 

against  him,  .and  either  party  being  dissatisfied  with  the  verdict 
that  may  be  rendered  io  the  case,  may  enter  an  appeal. 

5  3235.  Any  defendant  against  whom  an  attachment  may  issue    Defendant 

,  iT'i'  1  Tt-       '^^^  plead  a 

for  the  recovery  of  a  demand  which  is  not  due,  under  the  provis-  set-off  not 

•^  .  .  '  ^  due, 

ions  of  Section  3208,  Article  L,  may  avail  himself  in  his  defense 
of  any  set-off  pleadable  by  the  laws  of  this  State,  notwithstanding 
such  set-off  may  not  be  due  at  the  time  of  suing  out  such  attach- 
ment, or  at  the  trial  thereof ;  and  if  said  set-off,  so  pleaded,  shall 
exceed  the  plaintiff's  demand,  the  defendant  shall  have  judg-  Execution 
ment  against  the  plaintiff  for  such  excess  as  at  common  law, 
with  a  stay  of  execution  uiitil  the  time  the  said  set-off  so  pleaded 
shall  become  due. 

§  3236.  In  all  cases  of  attachment  the  defendant  may  traverse    May  trav- 

erse        the 

the  truth  of  the  affidavit  in  relation  to  the  around  upan  which  the  truth      of 

°  ^         ,  plaintiff's  af- 

.attachment  issued  at  tlie  return  of  the  attachment,  and  if  said  at-  fldavit. 
tachment  is   returnable  to  the   Superior  Court,  the  issue  formed^  ^  ^     /.  _ 
upon  such  traverse  shall  be  tried  by  a  lury  at  the  same  term,  un-^    issne— 
less  good  cause  is  shown  for  a  continuance ;  and  either  party  be- 
ing dissatisfied  with  the  verdict  of  the  jury  may  enter  an  appeal,  NEitherpar- 
and  if  the  final  verdict  upon  such  issue  shall  be  in  favor  of  the  de-  peai. 
fendant,  sa^id  attachment  shall  be  dismissed  at  the  cost   of  the 
plaintiff.     And  if  the  attachment  is  returnable  to  a  Justices'  Court,  jufuces^ 
the  issue  formed  upon  the  traverse  aforesaid  shall  be  tried  by  a  tried.*"  ^^ 
jury  in  the  same  manner  as  appeal  cases  in  a  Justices'  Court. 

§  3237.  No  traverse  of  the  plaintiff's  attachment,  affidavit,  or  No  traverse 

•^  ^         '  '  shall     delay 

other  prooeeding  of  the  attachment  .shall  delay  judgment  on  the  plaintiff. 
declaration  where  personal  service  has  been  perfected,  but  judg- 
ment may  be  had  thereon,  subject  to  the  rules  of  the  common  law,  may  bf^hiSd 
as  well  before  the  trial  of  tiie  issue  made  on  the  attachment  pro- Sration.^  ** 
ceedings  as  afterward. 

§3238o  In  ease  either  plaintiff  or  defendant  shall  die  Ibefore     k  either 
final  judgment  is  rendered  in  'any  ease,  and  there  is  representa- ^"^  ^  ^^' 
iion  upon  the  estate  of  the  defendant,  parties  shall  be  made  in  the 


614  PT.  3.— TIT.  2.— CHAP.  2.— AcTio]?fS. 


Article  4. — Pleading  and  Defenses. 


same  manner  as  in  cases  where  there   is  personal  service.     Bist  if 
there  is  no  known  representation  npon  the  estate  of  the  defend- 
ant within  this  State,  and  the  plaintiff  shall  die^  his  executor  or 
administrator  m-ay,  at  any  time   after   his   qualification  as   such^ 
cause  to  be  issued  by  the  Clerk  of  the  Court,  or  Justi^ce  of  the 
deSh  ^of  -P^®^^®?  ^  scire  facias  J  returnable  to  the  next  term  of  the  Court  af- 
piaintiflF.     iq^  issuiug  the  same,  giving  notice  to  the  opposite  party  of  his  in- 
tention to  be  made  a  party  in  place  of  his  deceased  testator  or  in- 
testate, which  shall  be  posted  up  at  the  door  of  the  Court  Housa 
where  sueh  attachment  is  pending  at  least  twenty  days  before  the 
the  term  at  which  such  scire  facias  is  made  returnable;  and  upon 
Parties—  affidavit  being  made  by  the  executor  or  administrator  of  this  being; 

liOW  made.  i         •  i       m  i        •      i      •  m     i  •  i 

done,  and  said  amdavifc  being  filed  among  the  papers  m  the  ease, 
said  executor  or  administrator  shall,  on  motion,  be  made  a  party, 
and  the  same  proceed  in  his  name. 

§  3239.  When  the  defendant  shall  die,  scire  facias^,  shall  issue  in 
dea?h  ^of  ^^^  manner  aforesaid  after  the  expiration  of  twelve  months  from 
defeniaiit   ^jj^  death  of  the  defendant,  directed  to  the  representative  of  the 
deceased  defendant,  notifying  him  of  the  pendency  of  such  attach- 
ment, and  of  the  intention  of  the  plaintiff  to  proceed  with  th-e 
same,  which  being  posted  as  aforesaid,  and  affidavit  made  and  filed 
as  aforesaid,  it  shall  be  lawful  for  the  plaintiff  to  proceed  in  the 
same  manner  as  though  the  death  of  the  defendant  had  not  oc>- 
iiow'made."  curred,  but  the  executor  or  administrator  upon  the  estate  may,,  at 
any  time  before  final  judgment  upon  the  attachment,  come  in  and 
be  made  a  party,  and  defend'  in  the  same  manner  as  ^his  testator 
or  intestate  might  have  done. 

§  3240.  The  plaintiff  in  attachment  shall  have  the  right  to 
Attaen-  amend  his  attachment,  or  bend,  or  declaration  as  in  other  cases  at 

ments    and  '  " 

thereon  oommon  law,  and  the  levying  officer  shall  have  the  right  to  amend 
amendable,  jj^jg  retum  by  Supplying  any  omissions  or  errors,  and  the  Court  be- 
ih    w  fore  which  the  attachment  shall  be  returned  shall  have  power  to* 

o-rder  said  amendments. 

§3241.  A  judgment  in  attachm-ent  may  be  set  aside  in  a^  Court 

♦^^f^^ment  of  la^  upon  an  issue  suggesting  fraud  or  want  of  consideration,. 

Sud    ^^^  tendered  by  a  judgment  creditor  of  the  defendant  in  attachment.. 

interroga-      §  3242.  In  cascs  of  attachment  and  garnishment,  interrogator 

sm^ed^out.^^^  J-ies  may  be  sued  out  and  served  as  provided  in  other  cases. 


Skctiok. 


PT.  3.— TIT.  2.— CHAP.  2.— Actions.  615 

Article  5. — Replevy  and  Disposition  of  Property  Attached. 

ARTICLE    V. 

EEPLEVY   AND    DISPOSITION   OF   PROPERTY   ATTACHED. 

Section. 


3243.  Defendant  may  replevy  property.  3245.  Perishable  property  not  replevied. 

3244.  Foreign  corporation  may  replevy. 

§'3243.  When  an  attachment  has  been  levied  upon  the  prop-      property 
erty  of  a  defendant,  it  shall  be  the  duty  of  the  officer  levyina;  the  be  delivered 

,    , .  '  1       '     ^  1         1    ^       ?  t"  defendant 

same  to   deliver  the  property  so  levied   upon  to  the  deiendant,  onhisgiving 
upon  his  giving  bond,  with  good  security,  payable  to  the  plain-  ^  s    '^  /  C> 
tiff  in  attachment,  obligating  themselves   to  pay  the  plaintiff  the"^/  ^  y 

'    amount  of  the  judgment  and   costs  that  he  may  recover  in  said  i^v"^  v^*^ 
case ;  in  case  the  property  levied  upon  shall  be  equal  to  or  exceed 
the  amount  of  the  debt  sworn  to  be   due,  in  double  the  value  of 
the  property  levied  upon.     When  the  property  shall  not  exceed    The  officer 

'         ,  p     ,  ,  .  Ill  .11-1  taking  such 

the  amount  of  the  debt  claimed  to  be   due,  then  m  double  the  bond    shaii 

return      the 

amount  of  the  debt  sw^orn  to  be   due,  and  the  officer  taking  said  same. 
bond  shall  return  the  same  with  said  attachment  to  the  Court  to 
which  the  same  is  made  returnable,  and  it  shall  be  lawful  for  the 
plaintiff  to  take  judgment  against  the  defendant  and  his  securities     judgment 
upon  said  bond  for  the  amount  of  the  judgment  he  may  recover  ^^en^aiiow^ 
in  his  said  attachment  case,  in  the  same  manner  that  by  this  Code  ^^' 
judgment  may  be  entered  up  in  case  of  securities  upon  appeals. 

§  3244.  When  an  attachment  shall  be  levied  on  the  property  property  of 
of  an  incorporation  not  incorporated  by  the  laws  of  this  State,  it  porationf^tc 
shall  be  law^ful  for  any  agent  of  such  incorporation  to  relieve  the 
property   levied  on,  or  discharge    the   summons  of  garnishment 
that  may  issue,  by  giving  bond  to  the  levying  officer  payable  to  the 
plaintiff,  conditioned  to  pay  the  amount  that  may  be  recovered  in 
said  case  ;  which  bond  the  levying  officer  shall  return  to  the  Court 
to  which  the  attachment  is  made  returnable,  and  judgment  may 
be  entered  up  in  like  manner  against  the  principal  and  security  on''^"*tfo™d— 
upon  said  bond  for  the  amount  the  plaintiff  may  recover  against  ^^^^  ^"^'^' 
such  corporation. 

§  3245.  When  the  defendant  fails  to  replevy  the  property,  and    Perishable 

...  i         ^  J.        X-        ./  7  property 

the  same  remains  m  the  hands  of  the  levying  officer,  and  is  of  a  may  be  sold 
perishable  nature,  or  liable  to  deteriorate  in  value  from  keeping, 
or  there  is  expense  attending  the  keeping  of  the  same,  (the  same 
not  being  land) ;  upon  these  facts  being  made  plainly  to  appear  to 


616  PT.  B.— TIT.  2.— CHAP.  2.— Actions. 


Article  6. — Claims  and  Proceedings  therein. 


a  Judge  of  the  Superior  Court,  or  County  Judge  of  the  County  in 
which  the  attachment  is  returnable,  where  the  same  is  returnable 
to  the  Superior  or  County  Court ;  or  to  a  Justice  of  the  Peace  of 
the  County  where  the  same  is  returnable  to  a  Justices'  Court,  it 
shall  be  their  duty  to  order  a  sale  of  the  property,  which  shall  be 
at  the  usual  place  of  holding  Sheriff's  sales  of  the  County  where 
such  property  may  be,  when  the  attachment  is  returnable  to  the 
Superior  or  County  Court ;  and  when  the  attachment  is  returnable  to 
a  Justices'  Court  at  the  usual  place  of  Constable's  sales  of  the  dis- 
trict where  the  property  may  be,  or  at  such  other  place  as  the 

advertised!^^  Magistrate  ordering  said  sale  may  direct ;  the  time  and  place  of 
holding  such  sale  shall  be  advertised  at  the  Court  House,  and  at 
two  other  public  places  in  the  County  where  the  same  is  to  take 
place,  at  least  ten  days  before  the  day  of  sale.  And  when  the 
attachment  is  returnable  to  a  Justices'  Court,  it  shall  be  advertis- 
ed at  the  Court  House  door  of  the  district  in  which  the  attach- 
ment is  returnable,  and  the  money  arising  from  such  sale  shall  be 

Money  held  ^^^^^  by  the  officcr  making  the  same,  subject  to  the  order  of  the 

dVof  covTrt"  Court  to  which  the  attachment  is  returnable. 


ARTICLE  VI. 

OF    CLAIMS    AND    PROCEEDINGS    THEREIN. 


Section. 


3246.  How  interposed  and  returned. 

3247.  Shall  be  tried  as  other  claims. 

3248.  Claimant,  his  agent  or  attorney,  etc. 


Section.' 

3249.  Suit  on  forthcoming  bond  by  officer. 

3250.  Plaintiff  vs.  claimant  for  damages. 

3251.  When  claim  may  be  interposed. 


§3246.  When  property  shall  be  levied  on  by  virtue  of  an  at- 
ciaims—  tachmont,  and  the  same  is  claimed  by  any  person  not  a  party  to 

how     inter-  '  J         J    tr  ir        j 

posed.         such  attachment,  it  shall  be  the  duty  of  the  person  claiming  the 

same,  his  agent  or  attorney  at  law,  to  make  oath  before  some  per- 

ciaimant  son  authorized  by  law  to  administer  an  oath,  that  the  property 

must     make  "^  .  . 

oath     and  levied  on  is  the  property  of  the  claimant,  and  is  not  subiect  to 

giye  bond,  i       i         ./  '  v 

such  attachment  according  to  the  best  of  his  knowledge  and  be- 
lief, and  said  claimant  shall  give  bond  with  good  security,  payable 
to  the  plaintiff  in  attachment,  in  a  sum  at  least  equal  to  double 
the  value  of  the  property  claimed,  to  be  judged  of  by  the  levying 
officer,  conditioned  to  pay  the  plaintiff  all  damages  which  the  jury 
on  the  trial  of  the  right  of  property  may  assess  against  him,  in 


PT.  3.— TIT.  2.— CHAP.  2.— Actions.  617 

Article  6. — Claims  and  Proceedinss  therein. 


case  it  should  be  made  to  appear  that  such  claim  was  made  for  the 
purpose  of  delay ;  and  in  case  the  claim  is  interposed  bj  the  agent 
or  attorney  at  law  of  the  claimant,  such  a^ent  or  attorney  at  law  ,^^^"*°''''^*- 

«^  7  o  t/  torney    may 

shall  have  power  to  sign  the  name  of  the  claimant  to  the  bond,  give  bond. 
and  such  claimant  shall  be  bound  in  the  same  manner  as  though 
he  had  signed  it  himself.  It  shall  be  the  duty  of  such  officer  tak- 
ing such  affidavit  and  bond,  to  return  the  same  to  the  Court  to  wh^rrm"dl 
which  the  attachment  is  returnable,  unless  the  property  levied  on 
should  be  real  estate ;  in  which  case,  it  shall  be  his  duty  to  return 
the  same  to  the  Superior  Court  of  the  County  where  the  land  lies. 

§  3247.  The  claim  shall  be  tried  in  the  same  manner  and  subject    Howtried. 
to  the  same  rules  and  regulations  as  are  prescribed  by  law  for  the 
trial  of  other  claims  in  the  Court  to  which  it  is  returned. 

^  3248.  The  claimant,  his  asrent,  or  attorney  at  law,  may  give    The  ciaim- 
bond,  with  good  security,  payable  to  the  levyms;  officer,  m  a  sum  ^  attorney 

'  &  J  •>  I     ^  .  mayreplevy, 

equal  to  double  the  value  of  the  property  claimed,  the  value  to  be 
judged  of  by  the  levying  officer,  conditioned  to  deliver  such  pro- 
perty at  the  time  and  place  of  sale,  provided  the  same  should  be 
found  subject  to  the  attachment ;  and  upon  the  delivery  of  such 
bond  to  the  levying  officer,  it  shall  be  his  duty  to  deliver  such 
property  to  the  claimant,  his  agent,  or  attorney  at  law,  and  it 
shall  be  the  duty  of  the  levying  officer  to  return  such  bond,  to- 
gether with  the  affidavit  and  claim  bond,  to  the  Court  to  which 
such  attachment  is  returnable ;  and  when  said  claim  is  interposed 
by  the  agent,  or  attorney  at  law,  of  the  claimant,  such  agent,  or 
attorney  at  law,  shall  have  power  to  sign  the  name  of  the  claim- 
ant to  the  bond,  who  shall  be  bound  thereby  in  the  same  manner 
as  though  he  had  signed  it  himself. 

§  3249.  Upon  the  failure  of  the  claimant  to  deliver  such  pro-    On  fanm-e 

•■•of    claimant 

perty,  according  to  the  conditions  of  said  bond,  the  levying  officer  to  deliver, 
may  immediately  sue  the  claimant  and  security  upon  the  bond, 
and  recover  the  full  value  of  the  property  claimed,  and  also  all 
damages,  costs,  and  charges,  that  the  plaintiff  may  have  sus- 
tained in  consequence  of  the  failure  of  the  claimant  to  deliver 
said  property. 

§  3250.  In  cases  where  the  claimant  shall  deliver  the  property,       ^ay  ^q 

■'••'■         •^     sued  for  liire 

and  upon  selling  the  same  a  sufficient  amount  shall  not  be  raised  or  use  of  pro. 

■■•  *-'  perty. 

to  pay  the  debt  and  costs  of  the  plaintiff,  it  shall  be  lawful  for 
the  plaintiff  to  institute  suit  against  the  claimant  and  his  securi- 
ties upon  his  said  bond,  and  to  recover  the  full  value  of  the  hire 


618  PT.  3.— TIT.  2.— CHAP.  2.— Actions. 

Article  7. — Lien  of  Attachments,  Judgments,  and  Execution. 


or  use  of  the  property  while  the  same  has  been  in  the  possession 
of  the  claimant,  and  also  full  damages  for  any  deterioration  of 
the  value  of  the  property,  by  use  or  otherwise,  while  the  same 
has  been  in  the  possession  of  the  claimant,  provided  such  recov- 
ery shall  not  exceed  the  amount  of  the  debt  that  may  remain  due 
from  the  defendant  in  attachment  to  the  plaintiff. 
Claim  may      §  3251.    In  casos"^  of   attachment,   a   claim  may  be  interposed 

be.  interpos-     .,,  ,     ^  el         '    ;i  ^ 

ed  either  beiore  or  alter  judgment. 


ARTICLE   VII. 

OF  LIEN   OP  ATTACHMENTS,  JUDGMENTS,  AND  EXECUTION. 


Section. 

3252.  Defendant's  property  bound — when 

3253.  Binds  property  levied  upon  only. 


Section. 

3254.  Money  raised — how  appropriated. 

3255.  Lien  of  attachments,  etc. 


§  3252.  When  the  defendant  has  given  bond  and  security,  as 
whenjudg-  provided  in  Section  3243  of  this  Code,  or  when  he  has  appeared 

ment    binds 

defendant's  and  made  defense  by  himself  or  attorney  at  law,  or  when  he  has 

property.  ^  *'  ^  , 

been  cited  to  appear,  as  provided  in  Section  3233  of  this  Code, 
the  judgment  rendered  against  him  in  such  case  shall  bind  all  his 
property,  and  shall  have  the  same  force  and  effect  as  when  there 
has  been  personal  service,  and  execution  shall  issue  accordingly, 
but  it  shall  be  first  levied  upon  the  property  attached.  In  all 
Shall  only  all  other  cases,  the  judgment  on  the  attachment  shall  only  bind  the 

bind  proper-  7  o       n  ./ 

ty  levied  on.  property  attached,  and  the  judgment  shall  be  entered  only  against 
such  property. 

§  3253.  After  the  judgment  has  been]  obtained  in  any  case  of 
Executions  attachment,  execution  shall  issue,  as   in   cases   at   common  law, 

must     issue 

on  all  judg-  which  executiou  shall  be  levied  in  the  same  manner  as  execu- 

ments. 

tions  issuing  at  common  law,  and  the  proceedings,  in  all  respects, 
shall  be  the  same,  except  that  when  the  judgment  only  binds  the 
property  levied  on  by  the  attachment,  as  aforesaid,  thejexecution 
shall  be  issued  against  such  property  only,  and  that  property  only 
shall  be  levied  on  and  sold. 

§  3254.  All  money  raised  by  the  sale  of  defendant's  property, 
Moneyrais-  or  othcrwise,  by  virtue  of  the  provisions  of  this  Code  in  relation 

ed— now  ap-  '      ''  ^ 

plied.  to  attachments,  shall  be  paid  over  to  the  creditors  of  the  defend- 

ant, according  to  the  priority  of  the  lien  of  their  judgments, 
saving  only  that  as  between  attaching  creditors,  the  attachment 


PT.  3.— TIT.  2.— CHAP.  3.— Actions. 


619 


Article  1. — General  Pmvisions. 


first  levied  shall  be  first  satisfied,  to  the  entire  exclusion  of  any 
attachment  of  younger  levy. 

§3255.  The  lien  of  attachment  is  created  by  the  levy,  and  not  ^  Lien  of  at- 
the  judgment  on  the  attachment;    and  in   case  of  a  conflict  be- ^^^ ^^■®^'"'^' 
tween  attachments,  the  first  levied  shall  be  firsj,  satisfied ;  but  in 
a  contest  between  attachments  and  ordinary  judgments,  or  suits^ 
it  is  the  judgment,  and  not  the  levy,  which  fiixes  the  lien.*  '^ 


/^<i  . 


CHAPTER   III. 

ETITION      AITD       PROCESS. 


Article  1.- — G-eneral  Provisions, 
Article  2. — Particular  Cases. 


AETICLE  I. 

GENERAL     PROVISIONS. 


Section. 

3256.  Suite 

3257 

3258, 

3259 

3260 


how  commenced. 
Time  of  filing  to  be  indorsed  on  writ. 
Process  to  be  attached  if  not  waived. 
Appearance  and  pleading,  etc. 
If  the  Judge  be  dead  or  disabled. 

3261.  Process  and  service  may  be  waived. 

3262.  To  be  filed  twenty  days  before  Court 
S263.  Must  be  served  fifteen  days. 


Section. 

3264.  Entry  of  Sheriff  may  be  traversed. 

3265.  Defendants  residing  out  of  County. 

3266.  If  no  SheriflT  or  Clerk  be  elected. 

3267.  If  process  be  delivered  too  late. 

3268.  If  the  Sheriff  is  a  party. 

3269.  Formal  defects  do  not  vitiate. 

3270.  No  special  p-leadings  allowed. 


§  3256.  Ordinary  suits  in  the  Superior  Court  shall  be  by  peti- 
tion to  the  Court,  signed  by  the  plaintifi"  or  his  counsel,  plainly, 
fully,  and  distinctly  setting  forth  his  charge  or  demand,  and  no 
want  of  form  shall  be  cause  of  delay,  if  this  article  is  substan- 
tially complied  with,  f  ;       '       /^     <^/\ 

§  3257.  Upon  such  petition  the  Clerk  shall  indorse  the  date  of 
its  filing  in  office,  which  shall  be  considered  the  time  of  the  com- 
mencement of  the  suit. 

§  3258.  To  such  petition  the  Clerk  shall  annex  a  process  (unless 


Suits — "how 
commenced^ 


^A 


Time  of 
filing  to  "bSf 
inSorsed» 


*  As  to  attachments,  garnishments,  claims,  and  other  like  proceedings  in 
the  County  Court,  see  County  Court. 

f  As  to  mode  of  commencing  suits  in  the.  County  Caurt^see  Sections  282-3. 


620  PT.  3.— TIT.  2.— CHAP.  3.— Actions. 


Article  1. — General  Provisions. 


/ 


Process  to  the  Same  is  waived),  sis!;ned  by  the  Clerk  or  his  deputy,  and  bear- 
be  attached  //       o  »/  x       j  7 

unless  waiv-  ing  test  ill  the  name  of  a  Judge  of  the  Court,  and  directed  to  the 
Sheriff,  or  his  deputy,  requiring  the  appearance  of  the  defendant 
at  the  return  term  of  the  Court, 

§  3259.  Appeagrance  and  pleading  shall  be  a  waiver  of  all  irreg- 
Appearance  ularitics  of  the  proccss,  or  of  the  absence  of  process,  and  the  ser- 

and  pleading     ^  ^  •"• 

cures  defects  vice  thereof. 

§  3260.  If  the  Judge  in  whose  name  the  process  bears  test  is 
If  the  Judge  dead,  or  otherwise  disqualified  at  the  time,  the  process  shall  be 

be  dead,  etc.  i     i  • 

good  and  amended  on  motion. 

§  3261.  The  defendant  may  acknowledge  service  and  waive  pro- 
Processand  ccss,  provided  the  same  be  in  writins;,  signed  by  the  defendant,  or 

service   may  '  ^  ,.,,..  &'       &  J  ' 

be  waived,    somc  One  authorized  by  him. 

§  8262.  The  original  petition  shall  be  deposited  in  the  Clerk's 

To  be  filed  ofiice  at  least  twenty  days  before  the  term  to  which  it  is  returna- 

before    the  blc  ',  and  if  delivered  within  the  twenty  days  the  Clerk  shall  make 

sitting      o  f    ^  1  P 

Court.         the  same  returnable  to  the  next  term  thereafter. 

§  3263.  The  Clerk  shall  deliver  the  original  petition,  with  pro- 
Originaiand  ccss  anuexcd,  together  with  a  copy  of  the  petition  and  process  for 
delivered  to  each  defendant,  to  the  Sheriff,  or  his  deputy,  who  shall  serve  such 

the  Sheriff.  ^     -,    n       i  -  i-  •         f       /^ 

copy  upon  each  defendant  residing  m  the  County  at  least  fifteen 
days  before  the  first  day  of  the  term,  and  within  five  days  from 
the  time  of  receiving  the  same,  and  make  an  entry  of  such  ser- 
vice upon  the  original  petition,  and  return  the  same  to  the  Clerk, 
Leaving  a  copy  at  the  defendant's  residence  shall  be  a  sufficient 
service.* 

§  3264.  The  entry  of  the  Sheriff,  [or  any  other  officer  of  the 
Entry  of  the  Court,!  (a)  or  lils  doputy  may  be  traversed  by  the  defendant  at 

Sheriff  may  'J   V    /  r  ^   J  J  ^  J  ^ 

be  traversed,  the  first  term  after  notice  of  such  entry  is  had  by  him,  and  before 
pleading  to  the  merits ;  but  this  shall  not  deprive  the  defendant  of 
his  right  of  action  against  the  Sheriff  for  a  false  return. 

§  3265.  If  any  of  the  defendants  reside  out  of  the  County,  the 

When  de-  Clerk  shall  issue  a  second  original  and  copy  for  such  other  County, 

Bide  out  of  or  Counties,  and  forward  the  same  to  the  Sheriff,  who  shall  serve 

the  Oounty. 

the  copy  and  return  the  second  original,  with  his  entry  thereon, 
to  the  Clerk  of  the  Court  from  which  the  same  issued. 

§  3266.  If  any  County  shall  refuse  or  neglect  to  elect  a  Sheriff 

*  As  to  service  of  process  against  insurance  .companjes,  expreas  companies, 
and  banks,  see  Sections  3333,  3334,  3337, 
(a)  Acts  of  180(3,  p.  23. 


PT.  3.-^TIT.  2.— CHAP.  3.— -Actions. 


621 


Article  1. — General  Provisions. 


or  Clerk  for  sixty  days  after  a  vacancy  shall  have  occurred,  suit- 
ors may  apply  to  any  Clerk  or  Sheriff  of  an  adjoining  County, 
and  have  the  requisite  duty  performed  by  them,  and  their  acts 
shall  be  as  valid  as  if  they  were  officers  of  such  delinquent  County. 

§  3267.  If  the  process  is  delivered  to  the  Sheriff,  or  his  deputy, 
too  late  for  service  within  the  time  specified,  he  shall  return  the 
same,  with  an  entry,  stating  the  truth  of  the  case,  and  if  the  de- 
fendant can  not  be  found,  and  does  not  reside  within  the  County, 
the  Sheriff  shall  make  return  of  the  fact  in  the  same  manner. 

§  3268.  If  the  Sheriff  is  a  party  to  the  cause^  the  process  shall 
be  directed  to  the  Coroner  of  the  County,  and  to  the  Sheriffs  of 
the  adjoining  Counties,  and  may  be  served  by  either,  as  conven- 
ience may  suggest. 

§3269.  'No  technical  or  formal  objections  shall  invalidate  any 
petition  or  process,  but  if  the  same  substantially  conforms  to  the 
requisitions  of  this  Code,  and  the  defendant  has  had  notice  of  the 
pendency  of  the  cause,  all  other  objections  shall  be  disregarded ; 
provided  there  is  a  legal  cause  of  action  set  forth  as  required  by 
this  Code. 

§  3270.  No  special  pleadings  shall  be  admitted  at  law  in  the 
Superior  Courts,  and  every  case  shall  go  to  the  jury  and  be 
tried  upon  the  petition,  process,  and  answer  alone,  and  no  non- 
suit shall  be  awarded  when  the  cause  of  action  is  substantially 
set  forth  in  the  declaration  for  any  formal  variance  between  the 
allegations  and  the  proof.  ^  /    // 


If  no  Sheriff 
or  Cleik  bu 
elected. 


If  procesa 
be  delivered 
too  late. 


If  the  Sher- 
iff' is  a  par- 
ty, etc. 


Petitioner 
process  not 
affected  by 
formal  ob- 
jections. 


Special 
pleadings 
not  ad- 
mitted. 


No  non-suit 
shall  be  al- 
lowed. 


>^§^t      ^6 


ARTICLE    IL 

PARTICULAR     CASES, 


Sectioj^T  1. — Against  Joint,  and  Joint  and  Several  Contractors, 

Section  2. — In  Ejectment. 

Section  3. — Against  Corporations. 

Section  4. — Against  Trustees. 

Section  5. — Against  Executors,  Administrators,  and  Cfuardians, 

Section  6. -^Particular  Forms. 


622  PT.  3.--TIT.  2.— CHAP.  3.^-AET.  2.-^AcTioNg. 


Section  1.— Against  Joint,  and  Joint  and  Several  Contractors. 

SECTION   I.  n 

AGAINST    JOINT,    AND    JOINT    AND    SEVERAL    CONTRACTORS. 


I 


XV    C^  ^  ^'      "    /        Section. 

3271.  Joint  contractors,  etc 
/  ^       ~P^  f\    i^  3272.  When  a  note  is  signed  by  two,  etc^ 

/  "^97.^.    Ae-n.ir»sf  nn--nn,vtTip.rs. 


3273.  Against  co-partners. 

3274.  When  two  or  more  are  sued,  etc. 


Section*, 

3275.  Partnership  property,  etc. 

3276.  If  several  are  sued,  etc-. 

3277.  A  maker  and  indorser,  etc. 

3278.  Suit  on  plaintiff's  hond. 


?L  -#»'-**^     §  3271.  In  all  cases  where  a  person  desires  to  institute  a  suit 
Joint  con-  upon  anv  bond,  note,  or  other  written  obligation,  subscribed  by 

tractors  may      it/''  o  :'  ,/ 

be  sued  in  sevcral  Dcrsous  who  reside  in  different  Counties,  such  person  shall 

the    Comity  -t^  '  Jr 

Sicle^^^^"  have  his  option  to  institute  his  suit  in  either  of  said  Counties,  and 
the  process  shall  be  issued,  served,  and  returned  as  provided  in 
this  Code,  and  on  such  return  the  plaintiff  may  proceed  as  in  other 
cases. 

§  3272.  Where  any  person  shall  be  in  possession  (in  his  own 

Qt^yoTob-  ^^g^^?  or  in  any  other  capacity,)  of  any  note,  bill,  bond  or  other 

Sed  Ttcf  ^^  obligation  in  writing,  signed  by  two  or  more  persons,  and  one  or 
more  of  the  persons,  whose  names  are  so  signed  as  aforesaid,  shall 
die  before  the  payment  of  the  money,  or  the  compliance  with  the 
conditions  of  said  bond,  or  obligation  in  writing,  the  person  hold- 
ing such  bill,  bond,  note,  or  other  obligation  in  writing,  shall  not 
be  compelled  to  sue  the  survivors  alone,  but  may  at  his  discretion 
sue  the  survivor,  or  survivors,  or  the  representatives  of  such  de- 
ceased person,  or  persons,  or  survivor,  or  survivors,  in  the  same 
action  with  the  representative,  or  representatives  of  such  deceased 
twelve  person,  or  persons  ;  provided  nothing  herein  contained  shall  author- 

^^^^l^  ^^'  ize  the  bringing  of  an  action  of  any  kind,  whatever,  against  the 
representative,  or  representatives  of  any  estate,  or  estates,  until 
twelve  months  after  the  probate  of  the  will,  or  the  granting  of 
letters  of  administration  on  such  estate,  or  estates. 

§  8273.  The  preceding  Section  shall  be  so  construed  as  to  em- 
Includes  brace  debts  against  co-partners,  as  well  as  asrainst  ioint  or  ioint 

co-partner«.  o  i  ?  q  o  o 

and  several  contractors. 

§  3274.  When  two  or  more  joint  contractors,  or  joint  and  seve- 
severai  joint  ral  contractors,  or  co-partners  are  sued  in  the  same  action,  and 

CO  -  partners  ^  ^ 

sued  in  the  scrvicc  shall  bc  perfected  on  one  or  more  of  said  contractors  or 

same  action,  ■•• 

®*^-  co-partnerS)  and  the  officer  serving  the  writ  shall  return  that  the 

rest  are  not  to  be  found,  it  shall  and  may  be  lawful  for  the  plain- 
tiff to  proceed  to  judgment  and  execution  against  the  defendants 


PT.  a— TIT.  2.— CHAP.  3.-— ART.  2.— Actions. 


623 


On  the  death 
of  one,  jjar- 
ties  may  be 
made. 


Judgments 
bind  co-part- 
nership pro- 
perty, etc. 


If  several 
are  served, 
the  plea  of 
infancy,  etc. 


Section  1. — Against  Joint,  and  Joint  and  Several  Contractors. 

who  are  served  with  process  in  the  same  manner  as  if  they  were 
the  only  or  sole  defendants,  and  if  either  of  the  defendants  die 
pending  such  action,  his  representative  may  be  made  a  party,  and 
the  case  proceed  to  judgment  and  execution  as  in  other  cases 
against  the  representatives  of  deceased  persons. 

§  3275.  Judgments  so  obtained  shall  bind,  and  execution  may 
be  levied  on  the  joint  or  co-partnership  property,  and  also  the  in- 
dividual property,  real  and  personal,  of  the  defendant  or  defend- 
ants who  have  been  served  with  a  copy  of  the  process,  but  shall 
not  bind  or  be  levied  on  the  individual  property  of  the  defendant 
or  defendants  who  are  not  served  with  a  process. 

§  3276.  In  all  cases  against  joint  obligors  or  promisors,  any 
one  or  more  of  the  parties  may  plead  infancy ;  if  such  plea  be 
sustained,  the  action  shall  not  abate,  but  the  Court  shall  award 
judgment  as  in  cases  of  non-suit,  in  favor  of  the  party  or  par- 
ties so  pleading,  and  permit  the  plaintiff  to  proceed  against  the 
other  defendant  or  defendants  to  said  suit,  without  further  delay 
or  costs.  \:>, 

§  3277.  In  case  a  maker  and  endorser  of  a  promissory  note  re- 
side in  different  Counties,  the  same  may  be  sued  in  the  same 
County  where  the  maker  resides ;  and  a  copy  of  the  petition  and 
process  served  on  the  indorser  residing  out  of  the  County  in  which 
the  suit  may  be  commenced,  as  provided  in  case  of  joint  obligors 
and  promisors  shall  be  deemed  sufficient  service. 

§  3278.  When  a  person  who  has  been  a  defendant  in  attach- 
ment desires  to  sue  the  plaintiff  for  damages,  and  the  plaintiff  shall 
not  reside  in  this  State,  it  shall  be  sufficient  to  serve  a  copy  of  the 
petition  and  process  on  the  security  to  the  bond  given  by  the  plain- 
tiff, and  said  action  may  proceed  against  both  principal  and  se- 
curity. 


(3 


i^. 


When  the 
maker  and 
indorser  of 
a  promissory 
note  reside 
in  different 
Counties.etc. 


Suit  on  at- 
tachment 
—  bond  of 
plaintiff. 


SECTION   IL 


SECTioiir. 

3279.  Ejectment  for  land,  etc. 

3280.  Count  for  mesne  profits. 

3281.  No  separate  action  for. 

3282.  Ej  ectment  by  on  e  j  oint  owner  alone. 

3283.  When  several  claimants,  etc. 

3284.  True  claimant — how  made  defend't. 


IN     EJECTMENT.   v> 


7  %4^ 


Section. 

3285.  Defendant  may  disclaim  title,  etc. 

3286.  Judgment  shall  be  conclusive,  etc. 

3287.  Damages  in  second  suit. 

3288.  Co-defendant— 'Who  may  be. 

3289.  The  consent  rule  may  be,  etc» 

3290.  Recovery  on  prior  possession. 


§  3279.  In  all  cases  where  any  person  residing  in  one  County 


/ 


624  PT.  3.— TIT.  2.--CHAP.  3.— AET.  2.— Actions. 

Section  2. — In  Ejectment. 
Land divi- whose  plantation  or  land  extends  over  the  line  into  an  adioinioa: 

dedbyCoun-  ^  ,     ,  .  .  JO 

ty lines,  etc.  Countj,  and  there  is  no  one  upon  whom  service  in  an  action  of  eject- 
ment can  be  legally  perfected  in  the  County  where  such  land  may 
lie,  it  shall  be  lawful  for  the  Clerk  of  the  Superior  Court  of  the 
County  wherein  such  land  may  lie,  to  issue  process  in  behalf  of 
the  plaintiff  against  the  defendant,  which  process  shall  be  direct- 
ed to  the  Sheriff  of  the  County  wherein  'such  land  may  lie,  and 
such  Sheriff  shall  serve  the  same,  and  such  service  shall  be  good 
and  valid. 

§  3280.  The  plaintiff  in  ejectment  may  add  a  count  in  his  writ 

ifemeprof-  or  declaration,  and  submit  the  evidence  to  the  iury,  and  recover 

its — now  re-  '  o       J  7 

covered.  j^y  ^g^j  ^f  damages  all  such  sums  of  money  to  which  he  may  be 
entitled  by  way  of  mesne  profits,  together  with  the  premises  in 
dispute.  The  count  for  mesne  profits  may  be  in  the  name  of  the 
nominal  or  real  plaintiff  in  the  action. 

§  3281.  No  plaintiff  in  ejectment  shall  have  and  maintain  a  sep- 

Mesneprof-  arato  action  in  his  behalf  for  the  recovery  of  mesne  profits  which 

its — no  sepa-  "^  ,  ■•• 

rate  suit  for.  may  havc  accrued  to  him  from  the  premises  in  dispute. 

§  3282.  Any  joint  tenant,  tenant  in  common,  or  other  person 
Joint  own-  having  a  part  interest  in  lands  or  tenements,  may  have  and  main- 

er    may  sue        .  .  „      . 

alone.  tain  an  action  of  ejectment  or  trespass  for  the  recovery  of  such 

Effect  of  the  lands  or  tenements,  or  for  an  iniury  thereto,  without  ioining;  with 

judgment.  ^  '  .       .  .  . 

him  any  other  person  as  plaintiff;  but  the  judgment  in  such  case 
shall  not  affect  the  rights  of  those  interested  in  such  lands  or  tene- 
ments who  are  not  parties  to  the  suit. 

§  3283.  When  several  persons  claim  several  parcels  of  land  un- 
Whensev-  (jgj.  (Jigtinct  titlcs,  and  do  not  sustain  to  each  other  the  relation  of 

eral     claim-  " 

ants  can  ^lot  landlord  and  tenant,  a  joint  action  of  ejectment  can  not  be  main- 
tained against  them,  nor  can  a  joint  or  several  recovery  be  had 
in  such  action,  either  for  the  premises  or  mesne  profits. 

§  3284.  A  plaintiff  in  ejectment  may  in  all  cases  make  the  true 
True  claim-  claimant  defendant  by  serving  a  copy  of  the  pending  action  upon 

antmadede-      .  J  &  srj  r  o  ^  r 

fendant.       him,  and  the  person  so  notified  shall  be  bound  by  the  judgment. 
§  3285.  A  defendant  in  ejectment  may  at  the  first  term  come  in 
Defendant  and  disclaim  any  claim  of  title,  or  right  of  possession  ;  and  after 
claim.         such  disclaimer  is  filed,  such  defendant  shall  not  be  liable  for  any 
future  cost. 

§  3286.  A  judgment  in  ejectment  shall  be  conclusive  as  to  the 
Judgment  title  between  the  parties  thereto,  unless  the  jury  find  for  the  plain- 

conclusive.      ,./v  i  it  .i       r- 

tiff  less  than  the  tee. 


/ir      '  5 '  ^^' 


1,     ^^t^^     M^ /f 


PT.  3.— TIT.  2.-~CHAP.  3.— ART.  2.— Actions. 


625 


Section  2. — In  Ejectment. 


§3287.  rOn  a  second  suit  between  tlie  same  parties,  involving:    Damage  in 

'-  ,  .  second     suit 

titles  to  land,  the  iury  shall  have  the  right  to  determine  whether  if    without 

'  ^      *i  ^  o  merit. 

said  action  has  any  real  merit,  and  if  none,  they  shall  have  the 
power  to  determine  what  amount  of  djimage  the  defendant  shall 
have  sustained  by  and  on  account  of  said  last  mentioned  suit,  and 
shall  return  the  same  in  their  verdict,  on  which  judgment  may  be 
rendered,  and  fieri  facias  issue,  as  in  other  cases  involving  mo- 
neys.] (a) 

§  3288.  A  previous  warrantor  of  the  title  to  the  land  in  dispute      Co-defen- 
,p,.  .p.  •Ill      ^^°*  —  ^^'^ 

may  be  a  co-deiendant  in  an  action  or   ejectment,  provided  he  maybe. 

would  be  answerable  in  damages  in  case  of  eviction. 

§  3289.  The  consent  rule  in  ejectment  shall  always  be  consid-     The  con- 
ered  as  filed,  and  admits  lease,  entry  and  ouster.     The  fictitious 
forms  in  pleading  in  ejectment  shall  be  sufficient. 

§  3290.  A  plaintiff  in  ejectment  may  recover  the  premises  in       Plaintiff 

may  recover 

dispute  upon  his  prior  possession  alone,  asrainst  one  who  subse-  on  tis  prior 

i:  X  J.  r  -»      o  possession — 

quently  acquires  possession  of  the  land  by  mere  entry,  and  with-  ^^^®^- 
out  any  lawful  right  whatever. 


SECTION  III. 

AGAINST   CORPOIIATIONS   AND   OTHER   COMPANIES. 


Section. 

3291.  Members  of  corporations,  etc. 

3292.  Railroad  companies — liability  of. 

3293.  Process  against  corporations. 
,  3294.  How  served  by  publication. 

3295.  Notice  to  stockholders. 


Section. 

3296.  Execution — property  subject. 

3297.  Presiding  officer  failing  to  disclose. 

3298.  President  or  stockholder  defend. 

3299.  Illegality  to  execution,  etc, 

3300.  Foregoing  provisions  cumulative. 


sued. 


§  3291.  In  all  suits  against  the  members  of  a  private  associa-   „  Members 

*^  ...  of  joint  stock 

tion,  ioint  stock  company,  or  the  members  of  existing  or  dissolved  «  t^inpaB  ks 

^  ^  1        ./  7  o  corporations 

corporations,  to  recover  a  debt  due  by  the  association,  company,  g^'^'~^°'^ 
or  corporation,  of  which  they  are  or  have  been  members,  or  for 
the  appropriation  of  money  or  funds  in  their  hands  to  the  pay- 
ment of  such  debt,  the  plaintiff  or  complainant  in  such  suit  may 
institute  the  same,  and  proceed  to  judgment  therein  against  all 
or  any  one  or  more  of  the  members  of  such  association,  company, 
or  corporation,  or ,  any  other  person  liable,  and  recover  of  the 
member  or  members  sued  the  amount  of  unpaid  stock  in  his 
hands,  or  other  indebtedness  of  such  member  or  members,  pro- 


(a)  Acts  of  1855-6,  p.  221. 


40 


626  PT.  3.— TIT.  2.— CHAP.  3.— ART.  2.— Actions. 

Section  3. — Against  Corporations  and  other  Companies. 

vided  the  same  does  not  exceed  the  amount  of  the  plaintiff's  debt 
against  such  association,  company,  or  corporation  ;  and  if  it  ex- 
ceed such  debt,  then  so  much  only  as  will  be  sufficient  to  satisfy 
such  debt. 

§  3292.  In  all  cases  where  the  person  or  property  of   an  indi- 

Eaiiroad  vidual  may  be  injured,  or  such  property  destroyed,  by  the  care- 
companies  -  ,.  .  1      .       n  '1         ^ 

liable    for  lessncss,  negligencc,   or  improper   conduct  oi  any  railroad  com- 

the   miscon-       _  ~>  ^  r  ^  •  i  ^ 

duct  of  offi-  pany,  or  omcer,  agent,  or  employee  ot  such  company,  m  or  by  the 

*  V         running  of  the  cars  or  engines  of  the  same,  such  company  shall 

-  vf  7  V   \    be  liable  to  pay  damages  for  the  same  to  any  one  whose  property 

"or  person  may  be  so  injured  or  destroyed,  notwithstanding  any 

by-laws,  rules,   or  regulations,  or   notice,  which   may  be  made, 

passed,  or  given,  by  such  company,  limiting  its  liability. 

§  3293.  Service  of  all  bills,  subpoenas,  writs,  attachments,  and 
Service  of  othcr  Original  process  necessary  to  the  commencement  of  any  suit 
how  perfect-  agaiust  any  corporation  in   any  Court  of  Law  or  Equity,  except 
,  as  hereinafter  provided,  may  be  perfected  by  serving  any  officer 

r*^  or  agent  of  such  corporation,  or  by  leaving  the  same  at  the  place 

of  transacting  the  usual  and  ordinary  public  business  of  such  cor- 
poration, if  any  such  place   of  business  then  shall  be  within  the 
Officer  jurisdiction  of  the  Court  in  which  said  suit  may  be   commenced. 
hSfserved!  The  officcr  shall  specify  the  mode  of  service  in  his  return. 

§  3294.  In  all  cases  where  any  corporation  shall  have  no  pub- 
When  and  lie  placc  for  doiuff  businoss,  or  shall  have  no  individual  in  office 

how  service  ^  .  . 

?iaybe  per-  upou  whom  scrvicc  of  writs  or  process  may  be  perfected  within 
publication,  the  knowledge  of  any  party,  complainant  either  in  law  or  equity, 
the  said  complainant  may  make  an  affidavit  that  the  said  corpo- 
ration has  no  public  place  of  doing  business,  or  has  no  individual 
in  office  upon  whom  service  of  writs  or  process  may  be  perfected, 
within  the  knowledge  of  said  complainant,  and  such  affidavit  be- 
ing filed  in  the  Clerk's  office  of  the  Court  to  which  the  said  writ 
may  be  made  returnable,  the  Clerk  of  the  said  Court  shall  issue 
a  citation  to  the  said  defendants  to  be  and  appear  at  the  said 
Court,  to  answer  the  complaint ;  which  citation  shall  be  published 
once  a  week  for  three  weeks  prior  to  the  Court  to  which  the  said 
complaint  may  be  returnable,  in  some  newspaper  published  in  the 
County  in  which  suit  is  brought.  If  no  paper  is  published  therein, 
then  in  the  one  nearest  thereto ;  and  such  advertisement  shall  be 
deemed  and  held  a  service  upon  such  corporation  for  all  pur- 
poses either  in  law  or  equity,  and  any  copy  of  the  newspaper  con- 


PT.  3.— TIT.  2.— CHAP.  3.— ART.  2.— Actions.  627 


Section  3, — Against  Corporations  and  other  Companies. 


taining  said  publication  shall  be  received  in  any  of  the  Courts  as 
sufficient  evidence  of  such  service, 

§  3295.  Plaintiffs  or  complainants,  within  one  month  after  the  J^'i^'-^^,'^,  *^ 
institution  of  any  suit  or  suits,  at  law  or  equity,  against  any  cor-  andeffe^-tof. 
poration,  joint  stock  or  manufacturing  company,  may  publish 
once  a  wefek,  for  four  successive  weeks,  in  some  public  gazette  of 
this  State,  notice  of  the  commencement  of  said  suit  or  suits,  and 
said  publication  shall  operate  as  notice  to  each  stockholder  in 
said  corporation,  joint  stock  or  manufacturing  company,  for  the 
purposes  hereinafter  mentioned. 

§  3296.  When  notice  has  been  given  as  provided  in  the  pre-     -Tudgment 

<j  t-  ■'•or  decree. 

<3eding  Sections,   and  a  judgment  or  decree    has    been    obtained 
against  any  corporation,  joint   stock  or  manufacturing  company, 
where  the  individual  or  private  property  of  the  stockholders  is 
bound  for  the  whole  or  any  part  of  the   debts  of  said  incorpora- 
tion, joint   stock  or  manufacturing  company,  execution  shall  first  _^„^^*''^^-s" 
be  issued  against  the  goods  and  chattels,  lands  and  tenements,  of  ^^^^J^ °^ pJ'J; 
said  corporation,  joint   stock   or  manufacturing   company;    and J^^*  *^^'^'^^' 
upon  the  return   thereof  by  the  proper  officer,  with  the   entry 
thereon  of  "no  property  to  be  found,"  then  and  in  that  case  the 
Clerk,  or  other  officer,  upon  an  application  of   the  plaintiff,  his 
agent,  or  attorney,  accompanied  with   a  certificate  as  hereinafter 
directed  to  be  obtained,  forthwith  shall  issue  an  execution  against 
^ach  of  the  stockholders  (if   required)  for  thfeir  ratable  part  of 
the  said  debt,  and  cost  of  suit,  in  proportion  to  their  respective 
shares,  or  other  liabilities  under  their  charter  of  incorporation. 

§  3297.  It  shall  be  the  duty  of  the  president  or  presiding  offi-  Presidentor 

•^  '■  .  presiding  of- 

•cer  of  such  incorporation,  joint  stock  or  manufacturing  company,  ^^^^^^  ^fj^<i 
by  whatever  name  he  may  be  designated,  upon  application  of  the  ^ame^,  etc. 
plaintiff,  his  agent,  or  attorney,  forthwith  to  give  a  certificate,  un- 
der oath,  of  the  stockholders  in  said  company,  and  the  number  of 
shares  owned  by  each  at  the  time  of  the  rendition  of  judgment 
against  said  company ;  and  if,  upon  application  by  the  plaintiff,     Execution 
his  agent,  or  attorney,  the  president,  or  officer  aforesaid,  shall  re-  '^J^g-^^ent^^® 
fuse  to  give  a  certificate  as  aforesaid,  or  shall  abscond  or  conceal 
himself,  to  avoid  giving  the  same,  the  plaintiff,  his  agent,  or  attor- 
ney, may  make  oath  of  such  refusal,  and  the  Clerk,  or  other  offi- 
cer, shall  issue  an  execution  against  such  president  or  presiding 
officer,  as  aforesaid,  for  the  amount  of  principal,  interest,  and  cost 
of  said  suit. 


628 


PT.  3.— TIT.  2.--CHAP.  3.— ART.  2.— Actioks. 


Section  4. — Against  Trustees. 


§  3298.  If  the  president,  or  other  officer  af  said  corporation^ 
The  presi-  loint  stock,  or  manufacturino;  company,  shall  fail  or  refuse  to  de- 

dentmayde-*^        i         .  i         •  •        i  ?  r       J? 

fendsnit,  fend  Said  suit  or  suits  brought  as  aforesaid,  any  one  of  the  stock- 
holders of  the  said  company  shall  be  permitted  to  plead  to  and  de- 
fend the  same  in  as  full  and  ample  manner  as  said  company,  in  its 
corporate  capacity,  could  or  might  do. 

§  3299.  In   a  judgment  against   a   corporation,  joint  stock,  or 

Illegality  of  manufacturin 2;  company,  under  the  provisions  of  this  Code,  the 

execution.        ,    ^       ,  t    o       i  -  • 

defendant,  or  defendants  in  execution  shall  be  entitled  to  an  ille- 
gality under  the  same  rules,  regulations,  and  restrictions  as  de- 
fendants are  in  other  cases. 

§  3300.    The    preceding    Sections    in    relation    to   proceedings 
Cumuia-  against  corporations,  joint  stock    and  manufacturing  companies 
shall  be  understood  and  construed   as  cumulative  of  the  common 
law. 


SECTION    IV. 


AGAINST     TRUSTEES, 


Section. 

3301.  Claim  against  trust  estates. 

3302.  Sued  in  Superior  Court— when. 

3303.  Party  defendant. 


Section. 

3304.  Sued  in  Justices'  Court — when. 

3305.  The  trust  estate  bound  by  judgment 

3306.  Execution  must  specify  property. 


Claims 
against  a 
trust  es- 
tate, etc 


§  3301.  Any  person  having  a  claim  against  any  trust  estate  for 
services  rendered  to  said  estate,  or  for  articles,  or  property,  or 
money  furnished  for  the  use  of  said  estate,  or  where  a  Court  of 
Equity  would  render  said  estate  liable  for  the  payment  of  said 
claims,  may  collect  and  enforce  the  payment  of  such  claim  in  a 
Court  of  Law. 

§  3302.  The  person  having  such  claim  as  provided  in  the  pre- 
How  and  vious  Scction,  if  the  same  exceeds  the  sum   of  fifty  dollars,  may 

where  sued,   ^,      ,.  ..  pit  t         t*  ii«  ii 

etc.  file  his  petition,  setting  forth  the  grounds  of  such  claim,  and  also 

how  and  in  what  manner  said  estate  is  liable  for  the  payment  of 
said  claims,  and  also  setting  forth  the  name  or  names  of  the  trus- 
tees and  the  cestui  que  trust,  which  petition  shall  be  filed  in  the 
office  of  the  Clerk  of  the  Superior  Court  under  the  same  rules 
and  regulations  as  in  ordinary  cases  at  common  law,  and  the  sub- 
sequent proceedings  shall  be,  in  all  respects,  the  same. 

§  3303.  If  there  is  no  trustee,  or  he  is  a  mere  naked  trustee 

fendaut.       and  non-rcsidont  in  the  County,  the  cestui  que  trust  shall  be  made 


PT.  3.— TIT.  2.™ CHAP.  3.— ART.  2.— Actions. 


629 


Section  5. — Agaiast  Executors,  Administrators,  and  Guardians. 

iihe  defendant,  and  the  proceedings  shall  be,  in  all  respects,  the 
same  as  when  the  tnastee  is  defendant. 

§  33v04.  When  the  claim  does  not  exceed  the  sum  of  fifty  dollars,    J^^^  ^^^ 

"^  >}  '  where  sued, 

suit  may  be  brought  in  a  Justices'  Oourt,  under  the  same  rules  and  ^*^^- 
regulations  as  in  ordinary  suits  in  those  Courts,  saving  only  that 
the  summons  shall  set  fortii  how  and  in  what  way  said  trust  estate 
is  liable  for  the  payment  of  said  claim  ;  arid  the  judgments  rendered 
in  a  Justices'  Oourt  shall  have  the  same  for<;eand  effect  as  is  here- 
inafter prescribed  m.  relation  to  judgments  rendered  in  the  Su- 
perior Court. 

§  3305.  The  iud.s:ment  thus  rendered  shall  impose  no  personal  Ttust^stat^ 

,  ,  .  only  bound. 

liability  on  the  trustee,  or  in  any  way  render  his  property  liable 
for  the  payment  of  the  same ;  but  said  judgment  shall  only  bind 
s^ch  trust  estate,  and  exeeuti'on  shall  issue  accordingly. 

§  3306.  All  executions  issued  upon  judgments  rendered  undor    Execution 

*■  tf       o  must  specify 

the  provisions  of  the  five  preceding  Sections  shall  specify  in  the  property. 
hodj  of  the  execution  the  property  upon  which  the  same  is  to  be 
levied,  and  it  shall  be  levied  on  no  other  property, 

A      ,   -  ■  ,     ' 


SECTION  V. 

AGAINST    EXECUTORS,   ADMINISTRATORS,   ANB    (JI/ARDIANS. 


Skctjojt. 

3307.  Exeeution  retui'ned  nulla  bona. 
S3Q8.  Executor,  etcu,  failing  to  seitle. 
'   3309.  Guardian  failing  to  settle. 


SSCTION- 

3310.  One  or  more  sureties  may  be  sued. 

3311.  Property  of  princip'i  to  be  exhaust'd 

3312.  Service  perfected  on  execution,  etc. 


§3307.  Upon  the  rendition  ©f  a  judgment  in  favor  of  a  party  Exex3ution 
against  an  CKecutor  or  administrator  upon  any  liability  of  th=e  nuiia^oim 
deceased,  and  a  return  of  nulla  bona  by  the  Sheriff,  or  other  officer 
authorized  to  make  the  same,  the  said  party  may  at  once  proceed 
to  sue  upon  the  bond  of  the  executor  or  administrator,  and  may 
recover  judgment  against  the  principal  and  his  sureties  in  the 
same  action,  and  if  the  principal  has  removed  beyond  the  limits 
•of  this  State,  or  has  departed  this  life,  or  has  no  legal  representa- 
tive, then  he  may  sue  the  sureties  on  his  bond. 

§  3308.  When  any  executor  or  administrator  shall  fail  to  settle      Principal 
and  account  with  any  distributee  or  legatee  of  the  estate  he  rep-  tS  wfth^f^- 
r^esents,  such  distributee  or  legatee  may  institute  his  suit  upon 
the  bond  of  such  representative  in  the  first  instance^  and  may  re- 


680 


PT.  3.— TIT.  2.— CHAP.  3.— ART.  2.— Actions, 


Section  5. — Against  Executors,  Administrators,  and  Guardians. 


A  ward 
m-iy  sue  his 
guardian. 


One  or  more 
srsreties  may- 
be sued  in 
the  first  in- 


Property 
of  principal 
first  to  be 
exhausted. 


How  seir- 
Ticeraaybe 
perfected  on 
administra- 
tor, etc. 


cover  judgment  against  the  principal  and  his  sureties  without  s 
suit  against  the  executor  or  administrator  in  his  represestatiye 
character. 

§  3809.  When  any  guardian  shall  fail  or  refee  to  settle  and  ac^ 
count  with  his  ward  upon  his  coming  of  age,  s^ch  ward  may  insti- 
tute his  suit  in  the  first  instance  against  Ms  guardian*  and  s-areties- 
without  first  suing  his  guardian. 

§  3810.  When  any  executor,  administrator,  or  guardian  shall' 
remove  from  this  State^  or  shall  place  himself  in  such  situation  as 
by  the  provisions  of  this  Code  an  attachment  wo^M  lie  against  a 
debtor,  or  if  such  executor,  admnistrator  or  guardian,  is  dead, 
and  his  estate  unrepresented,  it  shall  and  may  be  lawful,  for  any 
party  in  interest,,  or  any  person  having  demands  against  such  ex-^ 
ecutor,  administrator,  or  guardian  in  such  representative  charac- 
ter, to  institute  his  suit  against  the  sureties,  or  any  one  or  more- 
of  them,  upon  the  bond  of  such  executor,  administrator,  or  guar- 
dian  in  the  first  instance^  without  first  obtaining  a  judgment 
against  such  executor,  administrator,  or  guardian  in  his  represen- 
tative character. 

§8811.  When  judgment  shall  be  obtained  against  principals- 
and  sureties,  as  provided  in  the  four  preceding  Sections,  the  prop- 
erty of  the  sureties  shall  not  be  levied  upon  until  that  of  the 
principal  shall  be  exhausted,  which  may  be  evidenced  by  a  return, 
of  nulla  h&na. 

§  8812.  In  all  eases  where  there  are  tw©  or  more  executors  or 
administrators^  and  one  or  more  of  such  executors  or  administra- 
tors shall  remove  without  the  limits  of  this  State,  service  of  any 
writ  or  process  upon  those  remaining  in  the  State  shall  be  as  efiec- 
tual  and  complete,  for  all  purposes  whatever,  as  though  service- 
had  been  made  upon  all  such  executors  or  administrators. 


SECTION   YI. 

PJiRTICUJuAR    FORMS, 


Section'^ 

3313.  Form'  for  the- recovery  of  I'eal  estate. 

3314.  For  recoTcry  af  personal  property. 

3315.  For  roco>very  on  a  note,  etc. 

3316.  For  recovery  on  open  account. 

3317.  Form  of  an  action  on  a  judgment. 
3318v  For  breach  of  warranty. 


Section. 
331f>. 
3320. 
3321, 
3322. 
3323. 
3324, 


For  word&» 

All  suits  for  f^Iander,  etc. 

May  accompany  the  words,  efe.. 

Forms  apply  agtiinst  executors,  etsx 

Actions  heretofore  commencedu 

Abstract  of  title.» 


PT.  3.— TIT.  2.— CHAP.  3.— ART.  2.— Actions.  631 


Section  6. — Particular  Forms. 


-^f^B, 


'%  3313.  The  form  of  a  declaration  for  the  recovery  of  real  es-  ,  i^orm  for 

'^  ^  *'  the  recovery 

tate  and  mesne  profits  may  be  as  follows — to  wit :  ofreaiestate. 

'         [      To  the  Superior  Court  of  said  County.  ^  ir^r/  ^CJ    '  ^ 

The  petition  of  A.  B.  showeth  that  C.  D.,  of  said  County,  is  in  Jjf>//^-j.t,  5  7  /- 
possession  of  a  certain  tract  of  land  in  said  County,  (here  de 
scribe  the  land)  to  which  your  petitioner  claims  title  ;  that  the  said 

C.  D.  has  received  the  profits   of  said  land  since  the day 

of -,  18 — ,  of  the  yearly  value  of  dollars,  and  refuses 

to  deliver  said  land  to  your  petitioner,  or  to  pay  him  the  profits 
thereof:  wherefore  your  petitioner  prays  process  may  issue  requi- 
ring the  said  C.  D.  to  be  and  appear  at  the  next  Superior  Court 
to  be  held  in  and  for  said  County,  to  answer  your  petitioner's  com- 
plaint. 

§  3314.  The  form  of  a  declaration  for  the  recovery  of  personal    For  the  re- 

^  i/  Jr  CO  very     of 

property  may  be  as  follows — to  wit :  prVperty^^ 

^       '         \      To  the  ' Court  of  said  County. 

County.   J  '^  ^ 

The  petition  of  A.  B.  showeth  that  C.  D.  of  said  County  is  in 
possession  of  a  certain  (here  describe  the  property)  of  the  value 

of  dollars,  to  which  your  petitioner  claims  title ;  that  the 

said  C.  D.  refuses  to  deliver  the  said to  your  petitioner,  or  to 

pay  him  the  profits  thereof:  wherefore  your  petitioner  prays  pro- 
cess may  issue  requiring  the  said  C.  D.  to  be  and  appear  at  the 
next Court  to  answer  your  petitioner's  complaint. 

In  suits  brought  under  this  form,  the  verdicts  and  judgments 
may  be  the  same  as  in  actions  of  trover. 

§  3315.  The  form  of  an  action  to  recover  money  on  a  note,  bill,    ^orthere- 

t/  7  7    covery     o  f 

bond,  receipt,  or  written  promise  of  any  description,  by  adding  a  ™^°Ytc  ^^ 
copy  of  which,  with  the  indorser's  name  (if  any),  and  the  credits 
thereon,  and  when  the  action  is  on  a  bond,  the  breach  from  which 
arises,  the  right  of  action  shall  be   set  out  plainly,  may  be  as 
follows — to  wit:    , 

County   i       ^^  ^^^ Court  of  said  Counts/. 

The  petition  of  A.  B.  showeth  that  C.  D.,  of  said  County,  is 

indebted  to  him  in  the  sum  of dollars,  besides  interest,  on 

a ,  dated  ,  and  due  ,  which  said  C.  D.  re- 


632  PT.  3.— TIT.  2.— CHAP.  3.— ART.  2.— Actions. 

Section  6. — Particular  Forms. 

fuses  to  pay:  wherefore,  your  petitioner  prays  process  may  issue 

requiring  the  said  C.  D.  to  be  and  appear  at  the  next 

Court  for  said  County,  to  answer  your  petitioner's  complaint. 

§  3316.  The  form  of  an  action   on  an  account  may  be   as  fol- 

Forrecove-  lowS tO    wit  I 

ry  of  money 

on  open  ac-         ^  v 

count.  (jrEORGrIA,         |         m    j.i  n       j.     j:        'in        j. 

p        '       >      To  the iJourt  of  said  County, 

The  petition  of  A.  B.  showeth  that  C.  D.,  of  said  County,  is 

indebted  to  your  petitioner dollars,  on  an  account,  as  will 

fully  appear  by  reference  to  a  bill  of  particulars  hereto  annexed, 
which  account  the  said  C.  D.  refuses  to  pay :  wherefore,  your  pe- 
titioner prays  process  may  issue  requiring  the  said  C.  D.  to  be 

and  appear  at  the  next Court,  to  answer  your  petitioner's 

complaint. 

§  3317.  The  form  of  an  action   to  recover  money  on  a  judg- 
onajudg-  mcnt  may  be  as  follows — to  wit: 


ment, 


p       '       >      To  the Court  of  said  County. 

The  petition  of  A.  B.  showeth  that  C.  D.,  of  said  County,  is 
indebted  to  your  petitioner  the  sum  of dollars,  besides  in- 
terest, on  a  judgment   obtained   by  your  petitioner  against  the 

said  C.  D.,  at  a  (name  the  Court)  held  on  the day  of , 

18 — ,  in  the  (County,  district,  or  town,)  of  ,  in  the  State 

of  ,  as  will  fully  appear  by  reference  to  an  exemplification 

of  the  proceedings  in  said  case ;  that  the  said  judgment  is  unsat- 
isfied, and  that  the  said  C.  D.  neglects  to  pay  the  same :  where- 
fore, your  petitioner  prays  process  may  issue  requiring  the  said 

C.  D.  to  be  and  appear  at  the  next Court  to  be  held  for 

the  County  of ,  then  and  there  to  answer  the  plaintiff's 

complaint. 

§  3318.  The  form  of  an  action  for  a  breach  of  warranty  in  a 
Breach  of  deed  may  be  as  follows — to  wit: 

warranty. 

PoTTNTY    I       '^^  ^^^ Court  of  Said  County. 

The  petition  of  A.  B.  showeth  that  C.  D.,  of  said  County,  is 

indebted  to  him  in  the  sum  of  dollars,  for  this :  that  on 

the day  of ,  18 — ■,  the  said  C.  D.  executed  to  your 

petitioner  a  warranty  deed  to  a  certain  tract  of  land  (here  de- 


PT.  3.— TIT.  2.— CHAP.  3.— AKT.  2.— Actions.  683 

Section  6. — Particular  Forms. 

scribe  the  land),  for  the  sum  of  dollars,  paid  by  your  pe- 
titioner to  the  said  C.  D. ;  that  your  petitioner  has  been  evicted 
from  said  lot  of  land,  and  that  the  said  C.  D.  refuses  to  indem- 
nify your  petitioner  for  his  damages  in  that  behalf :  wherefore, 
your  petitioner  prays  process  may  issue  requiring  the  said  C.  D. 

to  be  and   appear  at  the  next Court  for^  said  County,  to 

answer  your  petitioner's  complaint. 

§8819.  The  form  of  an  action  for  words  may  be  as  follows — to    Form  of  an 

action       for 
wit  l  words. 

O'Ti'OT^PTA  I  •»-»- 

p       ^       V   To  the  Honorable Court  of  said  County, 


The  petition  of  A.  B.  showeth  that  C.  D.,  of  said  County,  has 
injured  and  damaged  your  petitioner  in  the  sum  of  dol- 
lars,  by  falsely  and  maliciously  saying  of  and  concerning  your 

petitioner,  on  the day  of  ,  18 — ,  the  following  false 

and  malicious  words — to  wit,  (here  give  the  words) :    wherefore, 
your  petitioner  prays  process  may  issue  requiring  the  said  C.  D. 

to  be  and  appear  at  the  next Court  to  be  held  in  and  for 

said  County,  then  and  there  to  answer   your  petitioner's  com- 
plaint. 

§  3320.  All  suits  for  slander  may  be  prosecuted  under  the  last     Apply  to 
preceding  lorm  oi  action,   and  the  writ   or   complaint    shall   be  slander. 
deemed  and  held  sufficiently  technical  and  full,  if  it  follows  such 
form  without  material  variation.     Every  thing  else   material  for 
the  maintenance  of  the  action  may  be  supplied  by  proof. 

§  3321.  When  the  last  preceding  form  of  action  is  adopted,  the      May  ac- 

T    '       Tc  1  1  n        1      1  11  company  the 

plaintm  may  accompany  the  words  set  lorth   by  such  explanatory  words,  etc. 
inuendoes  as  will  serve  to  state  the  cause  of  action  distinctly. 

§3322.  The  forms   of  action  hereinbefore  prescribed  maybe      Apply  to 
used  in  cases  for  or  against  executors,  administrators,  and  other     ek 
trustees. 

§  3323.  In  all  actions  which  have  been  heretofore,  or  may  be       Actions 
hereafter  commenced  in  the  forms  prescribed  by  this  Code,  the  commenced. 
evidence  admissible  and  the  form  of  the  verdict  shall  be  the  same 
as  though  said  actions  had  been  commenced  and  prosecuted  un- 
der the  forms  existing  and  in  use  by  the  common  law. 

§  3324.  To  the  declaration  prescribed  by  this  Code  for  the  re-    Abstract 
covery  of  land  and  mesne  profits,   the  plaintiff  shall  annex  an  ^  ^  ^ 
abstract  of  the  title  relied  on  for  such  recovery. 


634 


PT.  3.— TIT.  2.— Actions. 


Chapter  4. — Of  the  Yenue. 


CHAPTER    IV. 

OF    THE    VENUE. 


Section. 

3325.  Civil  cases  at  law— where  tried. 

3326.  Land  suits — where  tried. 

3327.  Suits  against  co-obligors,  etc. 

3328.  Against  makers  and  indorsers. 

3329.  Against  railroad  companies. 

3330.  Lessees  may  be  sued. 

3331.  Suits  against  insurance  companies. 

3332.  Service  of  process. 


Section. 

3333.  Suits  against  ex  press  companies. 

3334.  Service— how  perfected. 

3335.  President's  name  to  be  posted. 

3336.  Banks— where  sued. 

3337.  How  served. 

3338.  Subsequent  proceedings. 

3339.  Against  non-residents. 

3340.  Scire  facias  against  bail. 


r^!! 


§  3325.  All  civil  cases  in  law  (except  as  hereinafter  provided), 

Civil  cases 

at  law.        shall  be  tried  in  the  County  wherein  the  defendant  resides. 
Suits   re-      §  3326.  All  suits  respecting  the  title  to  lands  shall  be  tried  in 

specting    ti-.~  '         r^  pi/-i  ^  '^iit 

tiestoiand.  the  bupcrior  (Jourt  01  the  County  wherein  the  land  lies. 

§  3327.  Joint,  or  joint  and  several  obligors  or  promissors,  or 
Joint  con-  ioint  coutractors,  or  co-partners,  residing  in   different   Counties, 

tractors,  ^^  '  J-  ^  o  ' 

partners,  etc.  jjj^y  \yQ  g^e(J  ^g  g^^ij  [j^  ^\^q  game  action  in  either  County  in  which 
one  or  more  of  the  defendants  reside. 

§  3328.  When  a  maker  and  indorser  of  a  promissory  note  re- 
Maker  and  side  in  different  Counties,  they  may  all  be  sued  in  the  same  action 

Indorser.  ^  *^  ^^ 

in  the  County  where  the  maker  resides. 
x»  §  3329.  All  railroad  companies  shall  be  liable  to  be  sued  in  any 

I      Eaiiroad   Couuty  in  which  the  cause  of  action  originated,  by  any  one  whose 

s,    (C  companies.  "^  .     .  ,    ,  i  •!       *'  i 

i  vl^"^.  person  or  property  has  been  injured  by  such  railroad  company, 

their  officers,  agents,  or  employees,  in^oiL  by -the-rmining  of  the 

..cars  or  engines,  for  the  purpose  of  recovering  damages  for  such 

injury  ;  and  also  on  all  contracts'  to  be  performed  in  the  County 

where  the  suit  is  brought. 


11^ 


V? 


,4  t-k 


V  "^ 


§  3330.  [The  lessees  of  any  railroad,  or  the  person,  or  persons, 
Lessees  lia-  or  company  having  possession  of  the  same,  shall  be  liable  to  suit 
of  any  kind  in  the  same  Court  or  jurisdiction  as  the  lessors  or 
owners  of  the  railroad  were  before  the  lease.]  (a) 

§  3331.  [Whenever  any  person  may  have  any  claim  or  demand 
Suits  t)s.  in- upon  any  insurance  company  having  agencies,  or  more  than  one 

Burancecom-     ^  *'  i../  o^    <d  ■/ 

panics.  placc  of  doing  business,  it  shall  be  lawful  for  such  person  or  per- 
sons to  institute  suit  against  said  insurance  company  within  the 
County  where  the  pricipal  office  of  such  company  is  located,  or  in 
any  County  where  said  insurance  company  may  have  an  agency, 


(a)  Acts  of  1862-3,  p.  161,  and  Acts  of  1861,  pp.  58-9. 


PT.  3.— TIT.  2.— Actions. 


635 


Chapter  4. — Of  the  Venue. 


Service — 
how  perfect- 
ed. 


Express 
companies' 
venue. 


ExpreSvS 
companies 
may  be 
sued — how 


or'place  of  doing  business  which  was  located  at  the  time  the  cause 
of  action  accrued,  or  the  contract  was  made,  out  of  which  said 
cause  of  action  arose.]  (a) 

3332.  [In  all  such  suits,  service  shall  be  effected  upon  such  in- 
surance company  by  leaving  a  copy  of  the  bill  or  writ  with  the 
agent  of  the  company,  if  any ;  if  no  agent  should  be  in  the 
County,  then  at  the  agency  or  place  of  doing  business,  or  where 
the  same  was  located  at  the  time  such  cause  of  action  accrued, 
or  the  contract  was  made,  out  of  which  the  same  arose.]  (a) 

§  3333.  [The  Court  sitting  in  the  County  where  goods  are  re- 
ceived  for  shipment,  or  where  goods  are  to  be  delivered,  shall 
have  jurisdiction  over  all  express  companies  which  now  do  or 
may  hereafter  do  business  in  this  State,  and  the  judgment  shall 
bind  all  the  property  of  said  companies.]  (b) 

§  3334.  [Such  express  companies  may  be  effectually  sued  in  any 
proceeding  in  law  or  equity  against  them  (in  all  cases  where  their 
chief  olBficer  does  not  reside  in  this  State),  by  leaving  the  bill,  writ, 
subpoena,  attachment,  or  other  original  process  necessary  to  com- 
mence the  same,  at  any  of  the  offices  of  such  company  doing  busi- 
ness in  this  State,  or  by  serving  the  same  upon  any  agent  of  said 
company  within  this  State,  and  the  judgment  or  decree  obtained 
in  cases  so  commenced,  shall  bind  the  property  of  the  defendant 
as  fully  as  though  service  had  been  effected  on  the  president  or 
other  chief  officer.]  (b) 

§  3335.  [When  the  chief  officer  of  any  express^company  shall 
reside  in  this  State,  it  shall  be  the  duty  of  such  company  to  post 
in  a  public  and  conspicuous  place,  at  each  office  where  it  transacts 
business,  the  name  of  its  president  or  other  chief  officer,  on  whom 
service  can  be  perfected  in  this  State ;  otherwise,  service  made  as 
provided  for  in  the  preceding  Section  shall  be  deemed  sufficient 
and  proper  service.]  (b) 

§  3336.  [It  shall  be  lawful  to  sue  any  of  the  incorporated  banks 
of  this  State,  in  any  County  thereof,  for  any  acts  of  their  agents, 
where  said  banks  or  corporations  may  now  have,  or  hereafter  may 
establish  an  agency.]  (c) 

§  333T.  [Service  of  the  process  upon  the  agent  of  any  such 
banks  shall  be  as  legal  and  effectual  as  if  served  on  the  president, 
cashier,  or  bank,  at  its  usual  place  of  business.]  (c) 


TsTame  of 
chief  oflScer 
to  be  posted. 


Banks — 
where  sued. 


Service  of 
process. 


(a)  Acts  of  1862-3,  p.  161,  and  Acts  of  1861,  pp.  58-9.    (b)  Acts  of  1862-3, 
p.  162,  and  Acts  of  1865-6,  p.  222.    (c)  Acts  of  1862-3,  pp.  161-2. 


636 


PT.  3.— TIT.  2.— CHAP.  5.— Actions. 


Article  1. — Bail  at  the  Commencement  of  an  Action. 


§  3338.  [When  such  process  is  served  upon  such  agent,  the  pro- 
Proceedings.  ceedings  thereafter  shall  be  conformable  to  the  provisions  of  ex- 
isting law«  in  suits  against  banks ;  and  the  judgment  when   ob- 
tained shall  be  as  binding   and   effectual  as   judgments  against 
banks  now  are  by  law.]  (a) 

§  3339.  A  citizen  of  another  State,  passing  through  this  State, 
Citizens  maj  bc  sued  in  any  County  thereof  in  which  he  may  happen  to  be 
state,  at  the  time  when  sued. 

§  3340.  Scire  facias  against  bail  must  issue  from,  and  be  re- 

Scire  fa-  «/  o  7 

eiasvs.\)a.\\.  tumablc  to  the  Court  in  which  the  original  judgment  was  obtained. 


CHAPTER    Y. 

BAIL      IN      CIVIL      CASES. 


Article  1. — Bail  at  the  Commencement  of  an  Action, 
Article  2. — Bail  Pendente  Lite. 
Article  3. — Proceedings  Against  Bail. 
Article  4. — Bail  in  Trover. 


ARTICLE   I. 

BAIL  AT   the   commencement   OF  AN   ACTION. 


Section. 

3341.  Bail  affidavit. 

3342.  Before  whom  made. 

3343.  Bail  for  debts  not  due. 

3344.  Cause  of  action. 

3345.  Surety  may  require  bail. 

3346.  Bail  in  suits  ex  delicto. 

3347.  Contents  of  affidavit. 

3348.  Execution  of  bail  process. 


Section. 

3349.  When  Sheriff  is  special  bail. 

3350.  Defendant  failing  to  give  bail. 

3351.  Bail  against  itinerants. 

3352.  Security  for  jail  fees. 

3353.  Jail  fees  payable  in  advance. 

3354.  New  bail — when  taken. 

3355.  Service  of  process  on  Sabbath. 

3356.  Widows,  etc.,  exempt  from  arrest. 


§  3341.  In  all  cases  where  bail  is  requirable,  and  is  required  by 
Affidavitto  the  plaintifif,  except  as  hereinafter  provided,  such  plaintiff,  his 
agent  or  attorney,  shall  make  affidavit  of  the  amount  claimed  by 
him,  and  that  he  has  reason  to  apprehend  the  loss  of  said  sum,  or 
some  part  thereof,  [because  the  defendant  is  removing  or  about  to 
remove  beyond  the  limits  of  the  County,  or]  (b)  by  reason   of 


(a)  Acts  of  1862-3,  p.  161-3.    (b)  Acts  of  1865-6,  p.  32. 


PT.  3.-— TIT.  2.— CHAP,  5.— Actions. 


637 


Article  1. — Bail  at  the  Commencement  of  an  Action. 


the  fraud  of  the  defendant,  or  his  non-residence,  if  the  defendant 
is  not  held  to  bail,  which  affidavit  shall  be  filed  in  the  Clerk's  of- 

n  1  .1  c       cf         -y  ^  ..,..  ,  Sum  sworn 

fice,  and  copies  thereot  amxed  to  the  onsrmai  petition  and  process,  to  must  be 

-.1  1  r.  1       1  to  1  T      11    1         .     '   inflorsed   on 

and  to  the  copy  thereot,  and  the  amount  sworn  to,  shall  be  in-  petition. 
dorsed  on  the  said  petition  and  process. 

§  3342.  An  affidavit  to  obtain  bail  may  be  made  before  any  Affidavit- 
Judge  of  the  Superior,  or  Justice  of  the  Inferior  Court,  Judge  of  made, 
the  County  Court,  Justice  of  the  Peace,  Clerk  of  the  Superior  or 
Inferior  Court,  Ordinary,  or  l^otary  Public  of  this  State,  or  before 
any  commissioner  duly  appointed  for  this  State,  resident  in  any 
other  State  or  Territory  of  the  United  States,  or  before  any  Judge 
or  Justice  of  a  Superior  Court  of  any  one  of  the  United  States, 
and  shall  have  annexed  thereto  the  seal  of  the  State  from  which  it 
shall  have  come,  and  a  certificate  of  the  Governor  of  such  State  cer- 
tifying that  the  person  taking  such  'affidavit  is  one  of  the  Judges 
or  Justices  of  a  Superior  Court  of  that  State. 

§  3343.  When  the  debt  is  not  due,  and  the  creditor,  his  a^ent,  ,  whenfithe 

^  '  7  &         J  debt   is  not 

or  attorney  shall  make  affidavit  of  the  amount  of  the  debt  to  be-  <^^^- 
come  due,  and  that  the  debtor  is  about  to  remove,  or  is  moving 
without  the  limits  of  this  State,  and  that  he  has  reason  to  appre- 
hend the  loss  of  said  debt,  or  some  part  thereof,  if  the  debtor  is 
not  held  to  bail,  the  creditor  may  commence  an  action,  or  suit  at 
law,  and  hold  such  debtor  to  bail  under  the  same  regulations  as 
are  prescribed  in  the  preceding  Sections,  and  the  bail  so  taken    judgment 
shall  in  like  manner  be  liable  to  the  creditor;  but  judgment  shall  rendered  un- 
not  be  rendered  in  any  such  case  until  after  the  debt  shall  be- becomes  due 
come  due. 

§  3344.  It  shall  not  be  necessary  in  an  affidavit  to  obtain  bail,     cause  of 

action. 

to  set  forth  or  describe  the  cause  of  action,  or  character  of  the 
debt. 

§  3345.  When  a  security  or  indorser  shall  make  an  affidavit  that      security 

,       .  .  .     ^  may  require 

he  IS  security  or  indorser  upon  any  promissory  note,  single  bill,  ^^i'- 


due  bill,  or  bond,  and  that  he  apprehends  that  the  payment  of  said 
debt,  or  some  part  thereof,  will  devolve  upon  himself  if  the  prin- 
cipal is  not  held  to  bail,  and  presents  said  affidavit  to  the  owner  of 
said  note,  single  bill,  due  bill,  or  bond,  his  agent,  or  attorney,  it 
shall  be  the  duty  of  such  owner  to  commence  suit  forthwith ;  and 
such  affidavit  shall  take  the  place  of  the  one  now  required  of  the  indSser^s- 
plaintiif,  upon  which  bail  process  shall  issue,  and  all  other  pro-  piaTntlff  fan 
ceedings  shall  be  the  same  as  are  now  authorized  in  other  cases  of  baii.^''^ 
bail ;  and  if  the  owner  of  such  note,  single  bill,  due  bill,  or  bond 


638  PT.  3.— TIT.  2.~-CHAP.  5.— Actions. 

Article  1. — Bail  at  the  Commencement  of  an  Action. 


fail  to  sue  as  hereinbefore  prescribed,  such  security  or  indorser 
shall  no  longer  be  held  liable  for  the  same. 

§  3346.  In  all  cases  sounding  in  damages  in  which  bail  may  be 
tiSilVxde-  ^^quired,  the  Judge  of  the  Superior  Court  may,  on  an  affidavit,  as 
Ucio.  hereinbefore  prescribed,  grant  an  order  requiring  bail  of  the  de- 

fendant in  such  amount  as  he  may  think  proper. 

§  3347.  In  bail  cases  sounding  in  damages  the  sum  sworn  to 
Whattheaf-  need  not  be  indorsed  upon  the  back  of  the  writ,  nor  is  it  necessary 

fidavit  must    ■,  •,  rr>  t         ■,  -,  .       ■,  , 

contaiD.  that  the  amant  should  swear  ^to  any  particular  sum  as  damages, 
but  must  state  the  facts  as  to  the  nature  and  extent  of  the  injury 
which  he  has  sustained ;  but  it  is  no  objection  that  the  sum  for 
which  the  Sheriff  is  directed  to  take  bail  differs  from  that  claimed 
in  the  declaration. 

§  3348.  When  any  bail  process  shall  issue  out  of  any  of  the  said 
How  exe-  Courts,  wherebv  bail  shall  be  required  of  any  person  to  answer 

€uted      and  .         .  . 

returned,  any  action  in  any  of  said  Courts,  the  Sheriff,  or  other  arresting 
officer,  shall  take  abend,  payable  to  the  plaintiff,  with  one  or  more 
sufficient  securities,  for  double  the  sum  sworn  to,  and  shall  return 
such  bond,  with  the  petition  and  process,  to  the  Court  to  which 
it  is  made  returnable. 

§3349.  In  case  the  Sheriff,  or  other  officer,  shall  fail  to   take 
Officer  fail- bail  as  required  by  the  precedinff  Section,  or  the  bail  taken  shall 

ing  to  take  ^  ^  r  o  ?  ^ 

bail,  etc.  be  deemed  insufficient  by  the  Court,  on  exceptions  taken  thereto, 
and  an  entry  made  thereof  at  the  first  term  to  which  the  said  pe- 
tition and  process  shall  be  returned,  such  Sheriff,  or  other  officer, 
and  his  securities  in  either  case,  shall  be  deemed  and  stand  as  spe- 
cial bail,  and  the  plaintiff  may  proceed  to  judgment  according  to 
the  provisions  hereinafter  mentioned. 

§  3350.  In  all  cases  where  any  defendant  of  whom  bail  shall  be 
Defendant  required  shall  fail  to  srive  2;ood  and  sufficient  bail,  it  shall  be  the 

failing     to        ^  &  &  i  .  i 

give  bail,  duty  of  the  Sheriff,  or  other  officer  making  the  arrest,  to  commit 
such  defendant  to  the  common  jail  of  the  County ;  or  if  there 
shall  be  no  jail  in  the  County,  or  the  same  shall  be  insufficient, 
the  said  Sheriff,  or  other  arresting  officer,  shall  convey  such  de- 
fendant to  the  jail  of  any  adjoining  County,  and  deliver  such  de- 
fendant to  the  keeper  of  said  jail ;  but  such  person  so  arrested 
and  committed  to  jail  shall  be  allowed  all  the  benefits  of  appear- 
ance and  defense,  as  if  he  were  personally  present ;  and  shall  not 

miued\opibe  discharged  out  of  custody  but  by  putting  in  bail,  or  by  order 

County'""'^  of   CoUrt. 

§  3351.  When  a  bail  process  is  placed  in  the  hands  of  a  Sheriff, 


PT.  3.— TIT.  2.-^CHAP.  5.--Actions. 


639 


Article  1. — Bail  at  the  Commencement  of  an  Action. 


or  his  deputy,  and  the  person  against  whom  such  process  may  be 
is  moving  about  from  one  County  to  another,  the  said  Sheriff  or 
deputy  may  follow  the  said  person  into  any  County  in  this  State, 
and  serve  such  process. 

§  3352.  In  all  cases  where  a  defendant  shall  be  arrested  by 
virtue  of  any  civil  process,  at  the  suit  of  any  person  residing  out 
of  the  County  or  State,  or  where  the  arresting  officer,  for  the 
want  of  a  sufficient  jail  in  the  County,  shall  convey  such  defend- 
ant to  the  jail  of  an  adjoining  County,  as  provided  in  the  prece- 
ding Section,  the  keeper  of  such  jail  shall  receive  such  defendant 
into  his  custody,  and  him  safely  keep  until  he  is  discharged  from 
thence  according  to  Jaw,  or  by  the  direction  of  the  plaintiff; 
provided,  that  the  plaintiff,  his  agent,  or  attorney,  shall  give  bond 
with  sufficient  security,  to  the  keeper  of  such  jail,  or  deposit  the 
money  for  the  maintenance  and  jail  fees  of  the  defendant,  to  be 
paid  weekly. 

§  3353.  [When  any  person  is  about  to  be  imprisoned  in  the 
common  jail  of  any  County  in  this  State  on  mesne  or  final  pro- 
cess for  debt,  before  such  confinement  the  plaintiff  in  suit  or  exe- 
cution, his  agent,  or  attorney,  shall  pay  in  advance,  the  jail  fees 
each  week :  and  in  case  of  failure  to  make  such  payment  in  ad- 
vance, then  the  Sheriff  or  Jailor  shall  have  the  right  and  authority 
to  decline  to  receive  said  person  or  persons.]  (a)  * 

§  3354.  Where  the  bail  shall  surrender  his  principal  either  in 
open  Court  or  in  vacation,  to  the  Sheriff  of  the  County  in  which 
such  principal  may  reside,  and  before  the  principal  has  been  ar- 
rested by  a  capias  ad  satisfaciendum^  it  shall  be  the  duty  of  such 
Sheriff  to  take  new  bail,  if  the  bail  offered  is  good  for  the  forth- 
coming of  the  principal  to  be  arrested  with  a  capias  ad  satisfaci- 
endum in  said  case,  and  in  default  thereof  to  pay  the  debt  and 
costs. 

§  3355.  Bail  process  may  be  issued  and  served  on  the  Sabbath 
day  and  in  the  same  manner,  and  under  the  same  rules,  regula- 
tions, and  restrictions  as  are  provided  for  the  issuing  and  serving 
the  same  on  other  days,  provided  the  person  applying  for  such 
bail  process,  shall  in  addition  to  the  oath  heretofore  required  to 
be  taken,  swear  that  he  apprehends  the  loss  of  the  debt  or  some 


Bail  ajrainst 
itinerant 
persons  — 
liow  served. 


Non-resi- 
dent plaintiff 
must  give 
security. 


Jail  fees 
payable  in 
advance. 


New  bail 
in  certaiii 
cases. 


Bail  process 
may  be  serv- 
ed on  Sab- 
bath. 


(a)  Acts  of  1866,  p.  24. 

*  See  Sections  3333  and  3334  of  the  original  Code,  and  also  Section  3353. 


640 


PT.  3.— TIT.  2.— CHAP.  5.— Actions. 


Article  2. — Bail  Pendente  Lite. 


part  thereof,  unless  said  bail  process  shall  issue  on  the  Sabbath 
day. 

§  3356.  No  widow  or  feme  sole  shall  be  arrested,  imprisoned, 
Widowsand  or  in  any  manner  restrained  or  deprived  of  her  liberty  for  or  on 

feme      notes  "  i  */ 


exemptfrom  account  of  any  debt  or  demand  against  her. 


arrest, 


ARTICLE  II. 


BAIL     PENDENTE     LITE. 


Section. 

3357.  Bail  pendente  lite — affidavit. 

3358.  Process — how  issued  and  executed. 

3359.  Sheriff's  duty  as  to  process. 


Section.  * 

3360.  Defendant— how  dealt  with. 

3361.  Liability  of  bail. 

3362.  No  delay — service  of  process. 


§  3357.  In  all  cases  where  an  action  is  pending,  and  no  bail 
Bail  pen-  shall  havo  been  required  at  the  commencement  of  said  action,  or 
having  been  required,  may  have  been  discharged,  and  the  plain- 
tiff, his  agent,  or  attorney,  shall  require  bail,  such  plaintiff,  his 
agent,  or  attorney,  shall  make  affidavit  as  prescribed  in  Section 
3341,  which  affidavit  shall  be  filed  in  the  Clerk's  office  of  the  Court 
in  which  such  action  is  pending,  and  a  copy  or  copies  thereof 
affixed  to  the  process  to  be  issued  by  the  Clerk  of  said  Court  in 
which  such  suit  may  be  pending,  and  to  the  copy  or  copies  of  such 
process,  and  the  amount  sworn  to  shall  be  indorsed  on  such  pro- 
cess, and  the  copy  or  copies  thereof. 

§  3358.  When  an  affidavit  is  made  as  provided  in  the  preceding 
Process—  Scction,  and  filed  in  the  Clerk's  office  of  the  Court  in  which  such 

now     issued        .      ,  .  i       i     •  t         i        • 

and  execut-  suit  is  pending,  the  Clerk  thereof  shall  immediately  issue  a  pro- 
cess in  the  case  with  as  many  copies  as  there  are  defendants,  an- 
nexing a  copy  of  such  affidavit  to  said  process  and  copy  process, 
which  process  shall  be  made  returnable  to  the  next  term  of  said 
Court  after  the  issuing  of  the  same,  and  shall  be  executed  and 
returned  into  Court  by  the  Sheriff,  or  other  proper  officer,  and 
when  so  executed  and  returned,  shall  be  taken  and  considered  a 
part  of  the  record  in  said  case. 

§  3359.  When  the  said  process  and  copy  affidavit,  and  copy  pro- 

Sheriff's    cess  shall  issue  as  aforesaid,  they  shall  be  delivered  to  the  Sheriff, 

or  proper  officer,  whose  duty  it  shall  be  to  execute  the  same  at  any 

time  before  the  sitting  of  the  Court  to  which  the  said  process  may 


PT.  3.— TIT.  2.-— CHAP.  5.— Actions. 


641 


Article  2. — Bail  Pendente  Lite. 


be  returnable,  under  the  same  directions  and  provisions  as  pointed 
out  in  Section  3348. 

§  3360.  Any  defendant  when  arrested  by  virtue  of  said  process  pefendant— 

,  DOW      dealt 

shall  be  dealt  with  by  the  officer  arresting  him  in  the  same  man-  ^ith. 
ner  as  would  have  been  done  had  such  defendant  been  arrested 
at  the  commencement  of  said  action  on  bail  process,  and  may  be 
discharged  in  the  same  manner,  and  not  otherwise. 

§3361.  All  bail  taken  pendinsc  the  action  shall  be  held  and   ^^H^^^^*^ 

'^  r  o  of  bail  pen- 

bound,  and  liable  in  the  same  manner  as  he  would  have  been  had  ^^^*^  ^*^*- 
he  become  bail  at  the   commencement  of  the  action ;    and  the 
plaintiff  in  said  action  shall  be  authorized  to  proceed  in  the  same 
manner  against  the  defendant  and  bail,  or  either  of  them,  as  pro- 
vided in  cases  of  bail  at  the  commencement  of  the  action. 

§  3362.  A  defendant  so  held  to  bail  pending  an  action  shall  ^  Bau  pen- 

"  i  o  ae7it6      lite 

not,  on  account  thereof,  be  entitled  to  any  delay  or  continuance,  j^orks  no  de- 
but the   case   shall  proceed  to  trial  as  though  bail  had  been  re- 
quired and  taken  at  the  commencement  of  the  case ;    and  when 
there  are  more  defendants  than  one  in  such  suit,  some  of  whom 
reside  out  of  the  County  in  which  such  suit  is  pending,  a  second 
original  process,  and  copy  or  copies,  may  issue,  returnable  to  the  deSlant*! 
Court  in  which  such  suit  or  action  is  pending,  which,  when  served  countier* 
hj  the   Sheriif,  or  other  proper  officer  of  the  County  where  such 
defendant  or  defendants   reside,  the  said  defendant  or  defendants 
shall  be  subject  and  liable  to  the  same  provisions   as  they  would 
have « been  had  the  bail  process  issued  at  the  commencement  of 
the  action. 


ARTICLE  III. 


PROCEEDINGS     AGAINST     BAIL. 


Section. 

3363.  Nature  of  bail. 

3364.  Enforcement  of  bail's  liability. 

3365.  Surrender  of  principal. 

3366.  Scire  facias — bow  directed,  etc. 


Section. 

3367.  Against  whom  it  may  issue. 

3368.  When  it  may  be  returned. 

3369.  Judgment  on  scire  facias. 


§  3363.  All  bail  taken  according  to  the  provisions  of  this  Code  Speciaibaii. 
shall  be  deemed,  held,  and  taken,  as  special  bail,  and  as  such  be 
liable  to  the  recovery  of  the  plaintiff. 

§  3364.  The  plaintiff,  after  final  judgment,  shall  not  take  out  agai^tprin- 
€xecution  against  the  bail  until  a  capias  ad  satisfaciendum  shall  Sn'thlTeon 
41 


642  PT.  3.— TIT.  2.— CHAP.  5.— Actions. 


Article  3. — Proceedings  against  Bail. 


be  first  issued  thereon,  and  the  principal  can  not  be  found,  which 

process  shall  issue  without  any  additional  oath  by  the  plaintiff. 

Scirefaciaa  After  its  rctum  with  an  entry  of  *'not  to  be  found,"  a  scire  facias 

against  bail,  ^  ,  ,     "^       ,  '  *^    _ 

may  issue  against  the  bail,  which  shall  be  served  on  the  bail  at 
least  twenty  days  before  the  return  thereof.     If  the  bail  resides 
out  of  the  County  or  State,  scire  facias  may  be  served  by  publi- 
cation  as  prescribed  in  cases  of  scire  facias  to  revive  judgment. 
§  3365.  The  bail  may  surrender  his  principal  at  any  time  be- 
Baii  may  forc  final  judgment  on  scire  facias^  either  in  open  Court  or  to  the 
the  principal  Sheriff  of  the  County  in  which  such  principal  may  reside,  at  any 
time  in  vacation ;  and  if  surrendered  in  open  Court,  it  shall  be 
the  duty  of  the  Court  to  order  such  principal  into  the  custody  of 
the  Sheriff;  and  if  surrendered  in  vacation,  it  shall  be  the  duty 
of  the  Sheriff  to  receive  such  principal  into  his  custody,  and.  in 
either  event,  to  commit  him  to  jail  according  to  the  directions  of 
this  Code. 

§  3366.  All  writs  of  scire  facias  shall  be  directed  to  all  and 
Scira  fa-  singular  the   Sheriffs  of  the  State  of  Georgia,  and  copies  thereof 
directed  issued  by  the  Clerk  of  the  Court  to  which  said  scire  facias  is  re- 
turnable, and  may  be  served  by  the   Sheriff  of   the   County  in 
which  the  party  to  be  notified  may  reside,  and  the  original  re- 
turned to  the  office  of  the  Clerk. 

§  3367.  A  scire  facias  on  a  bail  bond  may  issue  against  the 
Scire  fa-  bail  alonc,  or  against  the  principal  and  bail  jointly,  and  if  the 

cias  may  be  .  ,  ..,,,..^ 

issued.         Sheriff  return  non  est  inventus  as  to  the  principal,  the  plamtin 
may  enter  up  judgment  against  the  bail. 

§  3368.  For  the  purpose  of  fixing  bail,  the  ca.  sa.  against  the 
When  re-  principal  may  be  returned  as  soon  as  the  Sheriff  or  other  officer 

turned.  ■'••'•  '^ 

has  made  due  search. 

§  3369.  In  scire  facias  against  bail,  if  no  plea   shall  be  filed. 
Judgment  iudsrment  may  be  rendered,  upon  motion,  at  the  return  term  with- 

on  scire  fa-  «^       »  J  ?      i 

c*««-  out  the  intervention  of  a  jury ;  but  if  such  bail  file  an  issuable 

plea,  he  shall  be  entitled  to  a  trial  by  a  jury. 


ARTICLE    IV. 

BAIL     IN     ACTIONS     FOR     PERSONALTY. 


Section. 

3370,  Bail  in  trover. 

3371.  AflBdavit  and  proceedings. 


Section. 

3372.  Bail  pending  the  suit,  etc. 


PT.  3.— TIT.  2.— CHAP.  5.— Actions.  648 

Article  4. — Bail  in  Actions  for  Personalty. 

m  -■■    ■ ■..— ■— i^i     .....      m.     ; , . ,.■■ ,        ,,,      .. ,     ,.,       , ,,      ,  ■      ,  ..■■ —J 

§  3370.  Where  any  person  who  is  about  to  commence  an  action     BaU  ^ 

,  ,  trover. 

<0Y  suit  at  law,  or  m  equity,  for  the  recovery  of  personal  property, 
shall  require  bail,  such  person,  his  agent,  or  attorney,  shall  make 
affidavit  that  the  property  is  in  the  possession,  custody,  or  con- 
trol of  the  defendant,  and  that  he  has  reason  to  apprehend 
that  the  said  personal  property  has  been  or  will  be  eloigned  or 
removed  away,  or  will  not  be  forthcoming  to  answer  the  judgment, 
■execution,  or  decree  that  shall  be  made  in  the  case  ;  and  shall  also 
state  in  his  affidavit  the  value  of  the  same,  and  the  amount  of  hire 
claimed,  if  any,  and  add  that  he  does  verily  and  bona  fide  claim 
said  personal  property,  or  some  valuable  interest  therein. 

§3371.  When  such  affidavit  is  made  as  prescribed  in  the  pre- ^  ^^<^*yi*— 

■•••«•  now       filed, 

cedinff  Section  it  shall  be  filed  in  the  Clerk's  office  of  the  Court  to  ^^'^    subse- 

O  quent     pro- 

which  said  petition,  bill,  or  other  process  may  be  returnable,  and  ^^edings, 
a  copy  thereof  affixed  to  the  original  petition,  bill,  or  process,  and 
to  the  copy  or  copies  thereof,  and  it  shall  be  the  duty  of  the  Sher- 
iff, or  other  lawful  officer  serving  such  petition,  bill,  or  other  pro- 
cess, to  take  a  recognizance,  payable  to  the  plaintiff  or  complain- 
ant, with  good  security,  in  double  the  amount  sworn  to,  for  the 
forthcoming  of  such  personal  property  to  answer  such  judgment, 
execution,  or  decree  as  may  be  rendered  or  issued  in  the  case,  and 
such  security  shall  be  bound  for  the  payment  of  the  eventual  con- 
demnation money,  and  liable  to  execution  in  the  same  manner  as 
securities  upon  appeals. 

§  3372.  When  such  affidavit  shall  be  made  during  the  pendency  Baiipending 
of  such  suit  or  action,  a  copy  thereof,  and  of  the  process  or  sub- 
poena, shall  be  served  in  like  manner  by  the  Sheriff,  or  other  law- 
ful officer,  and  security  taken  as  required  in  the  preceding  Sec- 
tion, and  upon  the  defendant  failing  to  give  such  security,  whether 
the  affidavit  be  made  at  the  commencement  of  the  suit  or  pending 
the  same,  the  property  shall  be  seized  and  taken  by  the  Sheriff,  or    Property— 

■^       ■*•         "^  '^  ^         how  replev- 

other  lawful  officer,  and  delivered  over  to  the  plaintiff  or  com-  i^^' 
plainant,  his  agent,  or  attorney,  upon  his  entering  into  like  re- 
cognizance, with  security  ;  and  if  such  property  is  not  to  be  found, 
and  can  not  be  seized  and  taken  by  such  Sheriff,  or  other  lawful 
officer,  the  defendant  shall  be  committed  to  jail,  to  be  kept  in  safe 
and  close  custody  until  the  said  personal  property  shall  be  pro- 
duced, or  until  he  shall  enter  into  bond,  with  good  security,  for 
the  eventual  condemnation  money,  in  the  nature  of  security  upon 
appeals. 


6U 


FT.  3.— TIT.  2.— .Actions. 


Chapter  6. — Making  Parties  Pending  Action, 


CHAPTER    VI. 


OF     MAKIKG    PARTIES     PENDING    ACTION. 


Section. 

3373.  Parties  made  on  motion. 

3374.  When  defendant  dies. 

3375.  When  executors,  etc.,  die. 

3376.  How  made  in  claim  cases, 

3377.  Appeal  when  party  dies. 

3378.  Appeal  revives  action. 

3379.  When  garnishee  dies. 

3380.  When  executor,  etc.,  is  removed. 

3381.  Contents  of  scire  facias. 


Section, 

3382.  How  issued  and  served. 

3383.  Service  in  different  Counties. 

3384.  When  non-resident  dies. 

3386.  When  female  marries. 
338^.  When  both  parties  die. 

3387.  On  death  of  usee. 

3388.  Successor  of  trustee. 

3389.  Execution  against  female  defendant 


Parties 
made  on 
motion. 


Party  defen- 
dant—  how 
and  when 
made. 


Successor 
oi  executor, 
etc.  may  be 
made  party. 


Pai  ties — 
how  made  in 
claim  cases. 


§  3373.  When  a  plaintiff  or  complainant  in  any  cause  now  or 
hereafter  pending  shall  die,  the  executor  or  administrator  of  such 
plaintiff  or  complainant  may  be  made  parties  on  motion,  to  be 
made  in  writing,  of  which  the  defendants,  or  their  counsel,  shall 
have  notice. 

§  3374.  In  case  the  defendant  shall  die  pending  a  suit  at  law,  or 
in  equity,  the  plaintiff  may  sue  out  a  scire  facias  immediately  after 
the  expiration  of  twelve  months  from  the  probaste  of  the  will  or 
granting  of  letters  of  administration,  requiring  such  executor  or 
administrator  to  appear  and  answer  to  the  said  cause. 

§  3375.  Upon  the  death  of  any  executor,  administrator,  or  guar- 
dian, or  upon  the  revocation  of  his  letters  testamentary,  of  ad- 
ministration, or  guardianship,  as  the  case  may  be,  pending  suits 
at  law  or  in  equity  by  or  against  such  executor,  administrator,  or 
g«ardian,  as  such,  and  such  death  or  removal  being  suggested  of 
record,  a  scire  facias  may  issue  to  make  the  successors  of  such  de- 
ceased or  removed  person  a  party  at  any  time  after  his  appoint- 
ment and  qualification,  instead  of  the  deceased  or  removed  exec- 
utor, administrator,  or  guardian. 

§  3376.  In  all  cases  where  a  claim  shall  be  interposed  to  prop- 
erty levied  upon  by  virtue  of  a,  fieri  facias  or  attachment  from  any 
of  the  Courts  of  this  State,  in  favor  of  one  or  more  persons,  and 
pending  such  claim  one  of  the  plaintiffs  shall  die,  the  case  shall 
proceed  in  the  name  of  the  survivor,  and  on  the  death  of  the  last 
or  only  plaintiff  the  executor  or  administrator  of  such  deceased 
may,  on  motion,  be  made  a  party  instanter,  and  said  case  shall 
proceed  without  further  delay. 

§3377.  When  either  the  plaintiff  or  defendant  shall  depart 
this  life  pending  a  trial,  or  after  a  cause  has  been  tried,  and  be- 


FT.  3.— TIT.  2.— Actions. 


645 


Chapter  6. — Making  Parties  Pending  Action. 


fore  the  expiration  of  tiie  time  within  which  such  party,  if  living, 
might  -enter  an  appeal,  and  no  .appeal  shall  have  been  entered,  the 
legal  representatives  of  such  party  dying  may  enter  an  appeal 
within  thirty  days  from  the  time  such  executor  or  administrator 
shall  have  been  qualified  ;  and  if  such  appeal  is  not  entered  with- 
in the  time  h-erein  prescribed,  judgment  may  be  entered  and  exe- 
cution issued  as  though  the  deceased  party  was  in  life,  without 
making  the  representative  a  party. 

§3378.  When  an  appeat  shall  be  entered  as  provided  in  the 
preceding  Section,  it  shall  not  be  necessary  to  revive  such  suit  by 
scire  facias^  but  it  shall  be  revived  by  the  party  appealing  giving 
notice  to  the  adverse  party  within  thirty  days  from  the  time  of  en- 
tering such  appeal,  and  when  a  defendant  shall  appeal,  said  cause 
shall  stand  for  trial  on  the  appeal  docket  at  the  first  term  of  the 
Court  after  the  expiration  of  twelve  months  from  the  qualification 
of  such  executor  or  administrator^ 

§  3379.  When  any  person  after  being  summoned  as  garnishee 
shall  die,  either  before  or  .after  answer,  the  executor  or  adminis- 
trator of  such  person  shall  be  made  a  party  by  scire  facias  in  the 
dsual  way. 

§  3380.  In  case  of  the  death  or  removal  from  office  of  any  such 
executor  or  administrator  pending  such  proceeding  as  prescribed 
in  the  preceding  Sections,  an  administrator  de  bonis  non  may  be 
made  a  party  in  like  manner. 

§  3381.  All  writs  of  scire  facias  for  the  purpose  of  making 
parties  to  any  suit  at  law  or  in  equity  pending  in  the  Superior 
Courts  of  this  State,  shall  be  issued  by  the  Clerk  of  said  Court, 
in  which  it  shall  be  sufficient  for  such  Clerk  to  state  the  names  of 
the  parties,  the  term  of  the  Court  to  which  said  cause  was  made 
returnable,  and  the  name  of  the  suit  or  action,  requiring  the  party 
to  show  cause  why  he  should  not  be  made  a  party  to  said  cause, 
without  setting  forth  the  substane^  of  the  bill,  or  declaration,  or 
the  proceedings  thereon. 

§  3382.  All  writs  of  scire  facias  to  make  parties  shall  be  issued, 
directed,  and  served,  and  returned  as  provided  in  Sections  3548 
and  354^. 

§  3383.  In  eases  where  there  are  several  parties  to  be  served 
with  scire  facias^  and  any  one  or  more  of  thom  reside  out  of  the 
State  or  County  in  which  the  suit  is  pending,  a  service  upon  those 
residing  in  the  County  where  the  suit  is,  and  a  return  that  the 


Appea 
where  parly 
dies  before  it 
is  entered.' 

Judgment 
where  no  ap- 
peal is  enter- 
ed. 


Appeal  re- 
vives the 
suit. 


Eepresenta.- 

tivesofjtuar- 
dainsmay  be 
made  parties 


Adminis- 
trator d  6 
bonis  own 
may  be  made 
party. 


Contents  of 
scirefacms. 


Scire  fa- 
cias —  how 
issued  and 
served. 


Scirefacias 
against  par- 
ties in  differ- 
ent Counties 


646  PT.  3.— TIT.  2.— Actions. 

Chapter  6. — Making  Parties  Pending  Action. 

others  are  not  to  be  found,  shall  be  sufficient  to  authorize  the 
making  of  the  representatives  of  the  deceased  plaintiff  or  defend- 
ant parties,  so  as  to  authorize  the  original  suit  in  the  name  af 
the  parties  so  made,  to  proceed  to  trial  and  judgment  as  though 
all  such  parties  had  been  served  with  scire  facias, 

§  3384.  In  all  eases  where  a  defendant  duly  served  with  process,^ 
Kepresenta-  or  subpoena  IB  asv  casc  at  law  or  equity,  shall  reside  out  of  this- 

tives  of  non-  ■••  •'  j.       »/ ' 

f?i*d*ants—  S*^^®?  ^^  shall  rcmove  therefrom  during  the  pendency  of  said 
parties  °^^^*  causc,  and  the  plaintiff  or  complainant  shall  dm^  bis  legal  repre- 
sentatives shall  be  made  parties  on  motion  and  without  notice. 
§  3385.  When  a  feme  sole  being  plaintiff  or   defendant  shall 
Husband  of  marry  pending  any  suit  at  law,  or  in  equity,  the  same  shall  not 
maybe  Join- abate  by  rcasou  of  such  intermarriage,  but  the  same  being  sug-> 
«ord.  gested  of  record,  suc-h  cause  shall  proceed  in  the  name  of  the  bus- 

band  and  wife,  either  as  plaintiffs  or  defendants  as  the  ease  may  be. 
§3386.  When  both  plaintiff  and  defendant   die,  before  a  scire 
Parties—  facias  issucs  to  make  parties,  the  action  d(i>es  not  abate,  but  »cire 

how      made  ^  ^  ' 

when  ^oth  fcK^'ias  may  issue  on  the  motion  of  the  representative  of  either 
party  again&t  the  representative  of  the  other,  and  the  cause  pro- 
ceed. 

§3387.  On  the  death  of  the  usee  his  representatives  must  be 

K.ej>resenta-  made  parties  as  hereinbefore  provided,  before  the  cause  ean  pro- 
tires  of  usee  .  . 

may      be  cecd  cvcn  in  a  claim  case. 

made  parties 

§  338^8.  On  the  death  of  a  trustee  or  re-ceiver  pending  a  suit  to 
saecessors  which  he  may  be  a  party  as  such,  the  same  does  not  abate,  but  his 

of     trustees  it"  ,  ,  .^.  t-t, 

may     b e  succcssor  may  he  made  a  party  thereto  by  scire  facias,  and  said 

made  parties  *'  .  r        ^  ./  ,^7 

cause  proceed  to  judgment. 
'r  ^r     §  3389.   On  the  death  or  marriage  of  a  female  defendant  after 

Exe^uiJoTi  gnal  iud2i:ment,  when  no  execution  has  been  issued  previous  to 

I  agaii^st      fe-  "J       o  ?  ^  r 

maiedef|cd--such  death  or  marriage,  execution  may  issue  as  though  such  mar- 
^^^  (^  viagfi  or  death  had  not  taken  place. 


CHAPTER    YIL 

ABATEMENT,  EETEAXIT,  DISMISSAL,  AND   RENEWAL   m'   ACTIONS., 


Section. 

3390.  Suits  not  abated  by  (Jeath. 

3391.  Nor  removal  of  execttton, 

3392.  Nor  death  of  one  administrator. 

3393.  Nor  of  co-defendant. 

3394.  Nor  wliea  some  are  not  liable,. 


S-KCTION.. 

3395.  Suits  against  Sheriff  survive. 
3S96.  Death  may  be  saggested. 

3397.  Retraxit  defined. 

3398.  Differs  from  dismissal,  etc. 

3399.  Suits  laay  be  dismiss-ed^ 


PT.  3.— TIT.  2.— Actions.  64T 

Chapter  7. — Abatement,  Retraxit,  Dismissal  and  Renewal  of  Actions. 

§  3390.  No  suit  shall  abate  by  the  death  of  either  party,  where    when  ac- 

,  „..,,.  .  'Ill   ^'^"    ^"^* 

such  cause  oi  action  will  in  any  case  survive  to  or  against  the  legal  not  abate. 

representatives  of  the  deceased  party,  either  in  the  same  or  any 

other  form  of  action. 

§  3391.  When  letters  testamentary  may  be  revoked,  and  an  in-  suits  against 

,  .  _  removed  ex- 

testacy  for  any  cause  declared,  no  suit  by  or  against  the  removed  ecutordonot 
executor  shall  abate,  and  the  newly  appointed  administrator  can 
be  made  a  party  plaintiff  or  defendant  in  his  stead. 

§  3392.  An  action  against  two  ioint  administrators   or   execu-      i^eath  of 

^  'J  oneofsever- 

tors  does  not  abate  by  the  death  of  one,  but  proceeds  against  the  jJj^tJ^g^JjjJlg 
survivor.  "*'.*     ^^^^^ 

suit. 

§3393.  On  the  death  of  a  co-defendant  in  an  action  of  eject-  Death  of  co- 
ment,  made  such  after  the  commencem.ent  thereof,  the  action  may 
proceed  against  the  surviving  defendant  without  making  the  rep- 
resentative of  the  deceased  co-defendant  a  party. 

§3394.  An  action  ag-ainst  several  persons  does  not  abate  where   oneofsev- 

n     ,  ^  i-i  ^'"^^  defend- 

it  appears  that  some  of  the  defendants  are  not  liable,  but  may  ants  not  be- 
proceed  against  those  who  are  liable. 

§  3395.  An  action  against  a  Sheriff  for  an  escape  out  of  pro-  SuUsagamst 

cess  shall  not  abate  on  the  death  of  such  Sheriff,  but  shall  survive  vive     h  i  s 

1  •  .  .  Ill  .  <i^*^- 

against  his  securities  and  legal  representatives. 

§3396.  In  all  cases  which  have  been,  or  may  be  commenced  in  Death  of  one 

.  of       several 

any  of  the  Courts  of  this  State,  at  law  or  in  equity,  against  two  defendants. 
or  more  defendants,  one  or  more  of  whom  have  died,  or  may  die 
pending  said  case  or  cases,  it  shall  and  may  be  lawful  for  the 
plaintiff  or  complainants  to  suggest  said  death  of  record,  and  to 
proceed  in  the  trial  of  said  case,  or  cases,  against  the  surviving 
defendant,  to  the  extent  of  their  respective  liabilities. 

§  3397.  A  retraxit  is  the  op^n,  public,  and  volun.tary  renuncia-    Eetraxit 
tion  by  the  plaintiff,  in  open  Court,  of  his  suit  or  cause  of  action ; 
and  if  this  is  done  by  the  plaintiff,  and  a  judgment  entered  up 
thereon  by  the  defendant,  the  plaintiff's  right  of  action  is  forever 
gone. 

§  3398.  A  retraxit  differs  from  a  non-suit,  dismission,  or  discon-  Differs  from 
tinuance,  in  this :  A  retraxit  is  positive  and  conclusive  of  the  plain- 
tiff's right  of  action,  while  a  non-suit,  dismission,  or  discontinuance, 
is  negative,  and  the  plaintiff  may  re-commence  his  suit  on  the 
payment  of  costs. 

§  3399.  The  plaintiff,  in  any  action,  in  any  Court,  may  dismiss  Actions  may 
his  action  either  in  vacation  or  term  time,  and  if  done  in  term  at  any  time. 
time,  the  Clerk  or  Justice  shall  enter  such  dismissal  on  the  docket. 


648  PT.  3.— TIT.  3.— CHAP.  1.— Defenses. 

Article  1. — General  Provisions. 

TITLE    III. 

OF    DEFENSES    AND    PROCEEDINGS    PENDING    ACTION, 


Chapter  1. — Of  Defenses,  Pleas,  etc. 
Chapter  2. — Of  Amendments, 
Chapter  3. — Of  the  Production  of  Papers. 
Chapter  4. — Of  Continuances. 
Chapter  5. —  Of  G-arnishments. 


CHAPTER   I. 

DEFENSES,      PLEAS,      ETC 


Article  1. — General  Provisions. 
Article  2. — Particular  Pleas. 


ARTICLE  I. 

GENERAL     PROVISIONS. 


Section. 

3400.  Answer  at  first  term. 

3401.  No  part  to  be  stricken  out. 

3402.  Bonds,  etc.,  denied  only  on  oath. 

3403.  Petition  and  answer  make  issues. 


Section. 

3404.  Dilatory  pleas  must  be  sworn  to. 

3405.  Judgment  by  default. 

3406.  General  issue — special  pleas. 

3407.  Patent  defects. 


§  3400.  In  all  cases  at  law  where  the  defendant  has  been  served 
Defendant's  with  petition  and  process,  as  provided  by  this  Code,  he  shall  ap- 

answer  to  be  x-'j.  »/  '  x 

filed  at  first  pear  at  the  Court  to  which  such  process  is  made  returnable,  and 

term.  ^  .       ^  .  ^       . 

on  or  before  the  last  day  of  said  Court,  shall  make  his  defense  in 
writing,  which  shall  plainly,  fully,  and  distinctly  set  forth  his  de- 
fense, and  be  signed  by  the  defendant  or  his  attorney ;  which  said 
answer  shall  contain  as  many  several  matters  as  such  defendant 
may  think  necessary  for  his  defense. 

§  3401.  No  part  of  an  answer  shall  be  stricken  out  or  rejected 
on  account  of  being  contradictory  to  another  part  of  the  same,  but 
the  Court  shall  suflfer  the  whole  answer  to  remain,  if  the  defend- 


PT.  3.— TIT.  3.— CHAP.  1.— Defenses. 


649 


Article  1, — General  Provisions. 


ant  should  desire  it,  and  avail  himself  of  any  advantage  he  can    no  part  of 

.  answer  to  be 

or  may  have  under  either  or  the  whole  of  said  answer,  and  pro-  stricken  out. 
ceed  to  trial  accordingly. 

§  3402.  No  person  shall,  in  his  plea  or  answer,  be  permitted  to  instmment 
deny  any  deed,  bill,  single  or  penal  bond,  note,  draft,  receipt,  or-  nie^  only  on 
der,  or  other  instrument  in  writing,  which  is  the  foundation  of  the 
action,  unless  he  shall  make  affidavit  of  the  truth  of  such  plea  or 
answer  at  the  time  of  filing  the  same. 

§  3403.  The  petition  and  answer  shall  be  sufficient  to  carry  the       Petition 

••  .         .  ,  aHd    answer 

cause  to  the  jury,  without  any  replication  or  other  course  of  pro-  »iake  the  is- 
ceeding.  "'■  'r  ^ 

§  3404.  No  dilatory  answer  shall  be  received  or  admitted,  un-     Dilatory 
less  an  affidavit  be  made  to  the  truth  thereof,  and  must  be  filed  ^^-q'J/^  /^^ 
the  first  term.  ^1 

§  3405.  When  any  defendant  shall  fail  to  appear  and  answer  at  Defauitand 
the  return  term  of  the  petition  and  process,  the  Court  shall  enter  thereon, 
default  upon  the  docket,  which   shall  be   considered  a  judgment 
by  default,  without  a  formal  entry  thereof,  and  the  plaintiff's 
claim,  allegation,  or  demand,  shall   be  tried,  in  all  cases  of  de- 
fault, by  a  jury ;    but  no  such  trial  shall,  in  any  case,  be  had  at*  _^_^ 
the  first  term,  except  specially  provided  for  by  law :    \_'provided^ 
that,  in  all  cases  of  suits  on  open  accounts,  in  the  several  Courts 
of  this  State,  where  the  writ  or  process  has  been  served  person- 
ally, as  the  law  now  directs,  on  the  defendant,  and  there  is  no  de- 
fense made  by  the  party  sued,  either  in  person  or  by  attorney,  at 
the  time  the  case  is  submitted  for  trial,  the  case  shall  be  consid- 
ered in  default,  and  the  plaintiff  or  plaintiffs  shall  be  permitted 
to  take  verdict,  as  if  each  and  every  item  were  proved  by  testi- 
mony.] (a) 

§  3406.  The  general  issue  is  a  denial  of  the  allegations  in  the      General 
plaintiff's  declaration,  and  shall  be  considered  as  filed  in  all  cases 
which  are  answered  to  at  the  first  term ;  and  no  other  evidence  is 
admissible  under  such  plea,  except  such  as  disprove  the  plaintiff's 
cause  of  action;    all  other  matters,  in  satisfaction  or  avoidance,  special pieas 
must  be  specially  pleaded. 

§  3407.  All  defects  which  appear  on  the  face  of  the  pleadings    Patent  de- 
may  be  taken  advantage  of  by  motion. 


Suits  on 
open  ac- 
counts. 


(a)  Acts  of  1861,  p.  59. 


650 


PT.  3.— TIT.  3.— CHAP.  1.— ART.  2.— Defenses. 


Section  1. — To  the  Jurisdiction. 


ARTICLE  11. 


PARTICULAR     PLEAS 


Section  1. — To  the  Jurisdiction, 

Section  2.-0/  Set-off, 

Section  3. — Of  Usury. 

Section  4. — Of  Failure  of  Consideration, 

Section  5. — Of  Non  est  Factum, 

Section  6. — Of  Other  Pleas, 


SECTION   I. 

to   the   jurisdiction, 


Section. 
k      3408.  Jurisdiction  not  given  by  consent. 

3409.  When  admitted. 

3410.  Pleas  to  the  jurisdiction. 


Section. 

3411.  Contents  of  the  plea. 

3412.  Must  be  sworn  to. 


§  3408.  Parties,  by  consent,  express  or  implied,   can  not  give 
Jurisdiction  iurisdiction  to  the  Court  as  to  the  person  or  subiect-matter  of  the 

not  give  a  by '-'  r  j 

consent.       g^jj^^     j^  Hiaj,  howover,  be  waived,  so  far  as  the  rights  of  the  par- 
ties are  concerned,  but  not  so  as  to  prejudice  third  persons. 
§  3409.  If  a  defendant  appear  and  plead  to  the  merits,  without 
Jurisdiction  pleading  to  the  jurisdiction,   and  without   excepting  thereto,  he 
u.itted.        thereby  admits  the  jurisdiction  of  the  Court. 

§  3410.  Pleas  to  the  jurisdiction  must  be  pleaded  in  person, 
Pleas  to  the  and  must,  when  relied  on,  be  pleaded  specially,  unless  a  want  of 
'  jurisdiction  appears   on  the  face  of   the   proceedings — in   which 
case,  it  may  be  taken  advantage  of,  on  motion. 

§  3411.  In  all  pleas  to  the  jurisdiction  of  the  Court,  it  must 
Contents  of  appear  that  there  is  another  Court  in  this   State  which  has  juris- 
diction  01  the  case. 


Must  be 
sworn  to. 


§  3412.  A  plea  to  the  jurisdiction,  being  a  dilatory  plea,  must 
be  sworn  to.         t^;  ,  ,  ^..^^^  ^      1\a.^^ 


-i 


PT.  3.— TIT.  3.— CHAP.  1.— Defenses. 


651 


Section  2.— Set-oflf. 


SECTION   II. 


OF    SET-OFF. 


Section. 

3413.  Pleas  of  set-off. 

3414.  Sets-off  against  estates. 

3415.  Judgments  may  be  set  off. 


Section. 

3416.  Set-off  of  improvements. 

3417.  Judgment  for  excess  of  set-off. 

3418.  Limitations  of  set-off, 


§3413.  Debts,  as  a  general  rule,  must  be  mutual  between  the 
same  parties  at  the  commencement  of  the  action  to  be  set  off 
against  each  other.  Every  plea  of  set-off  must  set  out  the  de- 
mand as  plainly  as  if  sued  on. 

§  3414.  When  a  defendant  pleads  a  set-off  of  a  larger  amount 
than  the  demand  of  the  testator  or  intestate,  the  plaintiff  may 
reply  by  showing  that  the  estate  is  insolvent,  and  that  there  are 
outstanding  debts,  of  higher  dignity  than  the  defendant's  set-off, 
sufficient  to  exhaust  the  assets,  for  the  purpose  of  protecting  the 
executor  or  administrator  from  an  absolute  judgment. 

§  3415.  One  judgment  may  be  set  off  against  another,  on  mo- 
tion, whether  in  the  hands  of  an  original  party  or  an  assignee. 

§  3416.  A  trespasser  can  not  set  off  improvements  in  an  action 
brought  for  mesne  profits,  except  when  the  value  of  the  prenaises 
has  been  increased  by  the  repairs  or  improvements  which  have 
been  made.  In  that  case,  the  jury  may  take  into  consideration 
the  improvements  or  repairs,  and  diminish  the  profits  by  that 
amount,  but  not  below  the  sum  which  the  premises  would  have 
been  worth  without  such  improvements  or  repairs. 

§  3417.  In  all  cases  of  mutual  debts  and  sets-off,  where  the 
jury  shall  find  a  balance  for  the  defendant,  such  defendant  may 
enter  up  judgment  for  the  amount,  and  take  out  execution  in 
such  manner  as  plaintiffs  may  do  by  this  Code ;  provided,  such 
defendant  shall,  at  the  time  of  filing  his  answer,  file  therewith  a 
true  copy  or  copies  of  the  subject-matter  of  such  sets-off;  and 
where  the  plaintiff  shall  be  indebted  to  the  defendant  on  open 
account  for  dealings  between  themselves,  and  where  the  defend- 
ant shall  hold  and  possess  in  his  own  right,  by  assignment  in- 
dorsement, or  otherwise,  according  to  law,  any  bond,  note,  bill, 
or  other  writing  for  money,  or  other  thing,  of  the  plaintiff's, 
such  defendant  may  offer  the  saine  as  set-off,  and,  on  due  proof, 
shall  be  allowed  the  same. 

§  3418.  The  statute  of  limitations  applies  to  the  subject-matter 
of  sets-off,  as  well  as  the  plaintiff's  demand. 


Set-off. 


Plea  of  set- 
off     a^ 
estates. 


Judgments 
may  be  set 
off. 

When  im- 
provements 
may  be  set 
off  in  eject- 
ment. 


Judgment 
for  excess  of 
set-off. 


What  plead- 
able as  set- 
off. 


Limitations 
of  sets-oftl. 


652  PT.  3.— TIT.  3.— CHAP.  1.— ART.  2.— Defenses. 

Section  3. — Usury. 

SECTION  III. 

USURY. 


I 


Section. 

3419.  Pleas  of  usury. 


Section. 

3420.  Examination  of  parties. 


usury. 


§  3419.  The  plea  of  usury  must  set  forth  the  sum  upon  which 
Plea  of     it  was  paid,  or  to  be  paid,  the  time  when  the  contract  was  made, 
when  payable,  and  the  amount  of  usury  agreed  upon,  taken,  or 
reserved. 

§  3420.  When  the  plea  of  usury  is  filed,  the  defendant  may  ex- 
Parties  may  amine  the  plaintiff  as  a  witness,  on  the   same  terms  and  in  the 

be  examined  .  i     n  -i  •         • 

/  ■    ,  same  manner  as   is  prescribed  for  the   examination  of  parties  as 
^  /        witnesses  in  other  cases ;  and  if  the  plaintiff  declines  to  answer, 


tVt'H 


J  the  defendant  himself  may  be  examined  as  a  witness. 

/' 


SECTION   IV. 

FAILURE     OF     CONSIDERATION. 
Section  3421.  Plea  of  failure  of  consideration, 

(s  A}  njyii  9         §3421.  "Whenever  an  action  shall  be  commenced  at  common 
Plea  of  fail-  law,  fouudcd  upon   any  contract,  the  defendant  in  such   action 

ure  of   con- 
sideration,   may  plead    and    give  in    evidence  to  the    jury,   upon    the    trial 

thereof,  that  the  consideration  upon  which  said  contract  was 
founded  has  totally  or  partially  failed.  Such  plea  shall  only  be 
pleaded  in  cases  between  the  original  parties  to  the  contract,  or 
their  privies  or  assignees,  whose  title  has  been  acquired  with  no- 
tice, actual  or  constructive,  or  by  operation  of  law. 


SECTION  Y. 

NGN     EST     FACTUM. 

Section  3422.   Plea  of  non  est  factum. 

§  3422.  The  plea  of  non  est  factum  is  a  denial  of  the  execu- 
tion of  the  instrument  sued  upon,  and  applies  to  notes  and  other 
instruments,  as  well  as  deeds,  and  applies  only  when  the  execu- 
tion of  the  instrument  is  alleged  to  be  the  act  of  the  party  filing 
the  plea,  or  adopted  by  him. 


PT.  3.— TIT.  3.— CHAP.  l.-^ART.  2.-^Defenses. 


653 


Section  6.— Other  Pleas. 


SECTION   VI. 


OV    OTHER     PLEAS 


Section. 

3423.  Pleas  peculiar  to  executors,  etc. 

3424.  Other  pleas  by  them. 

3425.  Plea  of  nul  i-iel  record. 


Section. 

3426.  Of  former  recovery,  etc. 

3427.  Plea  of  coverture. 

3428.  Defenses  by  SheriflF. 


§  3423.  When  an  executor  or  administrator  is  sued  as  such,  he 
may  plead  ne  unques  executor,  or  that  no  assets  have  come  into 
his  hands,  or  plene  administravit  froeter^  a  sum  not  sufficient  to 
satisfy  debts  of  a  higher  nature  against  the  deceased,  held  by 
third  persons,  or  plene  administravit^  that  he  has  fully  adminis- 
tered the  assets  that  came  into  his  hands,  or,  pending  the  action, 
his  letters  testamentary  or  of  administration  have  been  revoked, 
and  the.  administration  committed  to  another,  to  whom  all  the  as- 
sets which  came  into  his  hands  have  been  delivered. 

§  3424.  An  executor  or  administrator,  when  the  cause  of  action 
originated  in  the  lifetime  of  the  testator  or  intestate,  may  plead 
any  plea  which  such  testator  or  intestate  might  plead  if  living, 
and  he  may  also  plead  in  abatement  in  all  such  cases  where  such 
plea  is  applicable. 

§  3425.  The  plea  of  nul  tiel  record  can  only  be  pleaded  to  a 
record  which  is  the  gist  or  foundation  of  the  action,  and  not  to  a 
record  which  is  stated  as  an  inducement  only. 

§  3426.  A  former  recovery,  or  the  pendency  of  a  former  suit 
for  the  same  cause  of  action,  between  the  same  parties,  in  the 
same,  or  any  other  Court  that  has  jurisdiction,  shall  be  a  good 
cause  of  abatement ;  but  if  the  first  action  is  so  defective  that  no 
recovery  can  be  possibly  had,  the  pendency  of  a  former  suit  will 
not  abate  the  action. 

§3427.  When  a /ewe  sole  is  sued  on  a  contract  made  by  her 
while  covert,  and  she  plea(^s  her  coi^er^wre  in  bar,  it  is  not  a  suffi- 
cient reply  that  she  promised  to  pay  or  perforpa  the  contract  after 
she  is  constituted  a  free  dealer,  or  becomes  a  feme  sole^  unless  it 
Be  shown  that  there  was  a  new  consideration,  or  moral  obliga- 
tion, or  separate  estate  secured  to  her  at  the  time  she  made  the 
contract. 

§  3428.  A  Sheriff,  or  other  officer,  can  not  defend  himself  against 
an  action  for  escape  by  showing  that  the  process  under  which  the 
arrest  was  made  was  irregular,  though  he  may  when  the  process  is 
void. 


Pleas  pe- 
culiar to  ex- 
ecutors and 
administra- 
tors. 


other  pleas 
b  y  execu- 
tors, etc. 


Tlea  of  nul 
liel  record. 


Pleas  of  for- 
mer recove- 
ry and  pen- 
dency of  for- 
mer suit 


Plea  of  co- 
verture. 


Defense  by 

Sheriff. 


I 


654 


PT.  3.— TIT.  a.— CHAP.  2.— Defenses. 


Article  1. — General  Principles. 


CHAPTER    II. 

OF   AlVIENDMENTS. 


Article  1.— General  Principles* 
Article  2. -^-Particular  Cases, 


ARTICLE    I. 

eneral   prikciples. 


^ECTfiOiT. 

3429.  Amendment  of  pleadings. 

3430.  New  parties,  etc.,  not  allowable. 

3431.  Amendment  to  include  issue. 

3432.  Imposition  of  terms. 

3433.  Misnomers. 

3434.  Names  of  partners. 


Section. 

8435.  Names  of  defendants. 

3436.  Names  of  plaintiffs. 

3437.  Representative  character. 

3438.  Omission  of  jurisdiction. 

3439.  Scire  facias  amendable. 

3440.  Amendments  of  process. 


/  J^px^  0  i>'^        §  3429.  All  parties,  -whether  plaintiffs  or  defendants  in  the   Su- 

^^^Jiend- perior  or  other  Courts  (except  the  Supreme  Court),  whether  at 

whfn^^^lT  ^^^  ^^  ^^  ^^^i^y?  ^^J-)  ^^  ^^J  stage  of  the   cause,  as  matter  of 

lowed.        right,  amend  their  pleadings  in  all  respects,  whether  in  matter  of 

form  or  of  substance,  provided  there  is  enough  in  the  pleadings 

to  amend  by. 

§  3430.  No  amendment  adding  a  new  and  distinct  cause  of  ac- 
of'action^and  *^^^'  ^^  ^^^  ^^^  distinct  parties,  shall  be  allowed  unless  expressly 
Kwlbie.'''*  provided  for  by  law. 

§  3431.  [When  any  suit  or  action  is  pending  in  any  Court  of 
•  t^T^^'  ^^^  or  equity  in  this  State,  for  the  recovery  of  personal  property, 
elude  issue,  the  issuc  of  Said  property  born,  or  to  be  borii,  or  accruing  after 
the  commencement  of  such  suit  or  action,  may  be  recovered  in 
such  suit  or  action,  and  it  shall  be  the  duty  of  the  Court  to  allow 
the  declaration  or  bill  to  be  amended  at  any  stage  of  the  proceed- 
ings so  as  to  include  such  issue.] 

§  3482.  In  case  the  party  applying  for  leave  to  amend  the 
patty  ^"Say  pl^^dings  or  other  proceedings  shall  have  been  guilty  of  negli- 
terms?  ^^^^  gence  in  respect  to  the  matter  of  amendment,  the  Court  may  com- 
pel him  to  pay  his  adversary  the  cost  of  the  proceedings  for  which 
he  moves,  and  may  force  reasonable  and  equitable  terms  upon 
him  at  discretion,  not  touching  the  real  merits  of  the  cause  in  con- 
troversy. 


PT.  8.- TIT.  3.— CHAP.  2.— Defenses. 


655 


Article  1. — General  Principles. 


be 


§  3438.  The  omission  to  give  the  Court  jurisdiction  in  the  plead-  of  ^aiftiJS 

•  •  111  tion  amend- 

ings  IS  amendable.  aWe. 

§  3439.  Scire  facias  is  amendable  as  other  pleadings,  fmTndabie^* 

§  3440.  Void  process,  or  where  there  is  no  process  or  waiver  Amendment 
thereof,  can  not  be  amended,  but  if  service  be  acknowledged  bj 
the  defendant,  and  upon  hearing  testimony  the  Court  becomes 
satisfied  that  process  was  waived  by  the  defendant,  and  that  at  the 
time  such  service  was  acknowledged  by  accident  or  mistake  the 
entry  of  such  waiver  was  omitted,  such  omission  may  be  supplied 
by  amendment  nunc  pro  tunc,  ce 


§  3438.  All  misnomers,  whether  in  the  christian   or  surname.    Misnomers 

amendable 

made  in  writs,  petitions,  bills,  or  other  judicial  proceeding  on  the  instanter.     i     , 
civil  side  of  the   Court,  shall,  on  motion,  be  amended  and  cor-w  .^  AC    ^     ^ 
rected  instanter,  without  working  unnecessary  delay  to  the  party 
making  the  same. 

§3434.  In  all  suits  by  or  against  partners,  or  where  any  two     Names  of 
or  more  persons  sue  or  are  sued  in  the  same  action,  and  the  name  ™ay      be 

^  ...  .  added     *n- 

of  any  person  who  ought  to  be  joined  in  such  action  as  plaintiff  «^a^««^- 
or  defendant  is  omitted,  the  omissions  shall,  on  motion,  be  amended 
by  adding  the  proper  party  instanter. 

§  3435.  When  two  or  more  persons  sue  or  are  sued  in  the  same     Nomes  of 

.   -  _  1  1    •       •  rv  T  ^'^^  ^"^  more 

action,  either  on  a  contract  or  tor  a  tort,  the  piamtin  may  amend  defendants 
his  declaration  by  striking  out  one  or  more  of  such  defendants  and  stricken. 
proceed  against  the  remaining  defendant  or  defendants,  if  there  is 
no  other  legal  difficulty  in  the  case. 

§  3486.  When  several  plaintiffs  sue  jointly,  the  declaration  may     Name  of 
be  amended  by  strikina;  out  the  name  of  one  or  more  of  such  more  plain- 

•^  p  tiffs  may  be 

plaintiffs.     And  when  it  becomes  necessary  for  the  purpose  of  stricken. 
enforcing  the  rights  of  such  plaintiff,  he  may  amend  by  substitu- 
ting the  name  of  another  person  in  his  stead,  sueing  for  his  use. 

§  3437.  In  an  action  by  or  against  an  exector,  administrator,    Represent- 
or  other  representative,  the  declaration  may  be  amended  by  stri- LSr  of^r- 
king  out  the  representative  character  of  such  plaintiff  or  defend-  changed. 
ant.     And  in  an  action  by  or  against  an  individual,  the  pleadings 
may  be  amended  by  inserting  his  representative  character. 


/ 


656 


PT.   3.— TIT.   3.— CHAP.  2.— ART.  2.— Defenses. 


Section  1. — Amending  Verdicts,  Judgments,  etc. 


ARTICLE    11. 

PARTICULAR     CASES. 


Section  1. — Of  Amending  Verdicts^  Judgments^  and  Executions, 
Section  2. — Of  Amending  Official  Returns, 
Section  3. — Of  Amending  B.ecord8. 
Section  4. — Of  Other  Amendments. 


SECTION    I. 

OF    AMENDING    VERDICTS,    JUDGEMENTS,    AND    EXECUTIONS. 


Section, 

3441.  Amendments  of  verdicts. 

3442.  After  dispersion  of  jury. 

3443.  Where  part  is  legal  and  part  not. 


Section. 

3444.  Amendment  of  judgment. 
•    3445.  Of  executions. 


'4  ^ 


§  3441.  A  verdict  may  be  so  amended  as  to  make  it  conform  to 
Amendment  the  declaration,  if  the  error  plainly  appears  upon  the  face  of  the 

record. 
fo  ^  §  3442.  A  verdict  may  be  amended  in  mere  matter  of  form, 

After  dis-  after  the  jury  have  dispersed ;  but  after  it  has  been  received  and 

persion     of  .  .  it- 

jury.  recorded,  and  the  jury  dispersed,  it  can  not  be  amended  m  matter 

of  substance,  either  by  what  the  jurors  say  they  intended  to  find, 
or  otherwise. 

§  3443.  If  a  part  of  a  verdict  be  legal  and  a  part  illegal,  the 
Where  part  Court  will  coustruc  such  vcrdict,  and  order  it  amended  by  enter- 

is  leeal  and  .  .  i  •    i     •      -n         i  i        •  •     i 

part  illegal,  mg  a  remitter  as  to  that  part  which  is  illegal,  and  give  judgment 

for  the  balance. 
t  ^T)    \       §  3444.  A  judgment  may  be  amended  by  order"of  the  Court  in 
Amendment  conformity  to  the  verdict  upon  which  it  is  predicated,  even  after 
ments.        an  cxccution  issues. 
^/j^P/.  §3445.  A  fieri  facias  or  capias  ad  satisfaciendum  may  be 

Amendment  amended  so  as  to  conform  to  the  judgment  from  which  it  issued, 

of         execu-  .  i«p  ^        r      n       ^        ^        -      I 

tions.  and  also  as  to  the  time  of  its  return ;  but  if  such  fi.  fa.  be  levied, 

or  the  defendant  be  under  arrest  by  virtue  of  such  ca.  sa.  at  the 
time  of  the  amendment,  such  levy  or  arrest  must  fall ;  still  the 
amended  fi.  fa.  or  ca.  sa.  may  be  re-executed. 


r4 


PT.  3.— TIT.  8.— CHAP.  2.— ART.  2.— Defenses.  657 

Section  3. — Amending  Official  Returns. 

SECTION  XL 

AMENDING     OFFICIAL     RETURNS. 

Section.  i  Section. 

3446.  Official  returns  amendable.  I        3447.  May  be  made  nunc  pro  tunc, 

§3446.  The  Sheriff  or  other  executina'  officer  may  araend  his    official  en- 

,  tiies  amend- 

officiaLentries- and  returns  so  as  to  make  such  entries  and  returns  ^bio. 
conform  to  the  facts  of  the  case  at  the  time  such  entry  or  return 
was  made,     t 

§  3447.  If  the  Sheriff  or  other  executing  officer  shall  fail  to     May    be 

„    .  ,  .    I,-,,,,!,  ,  ,    made    nvmc 

ma^aji  official  r^etur%^  he.  skQuld  have  made,  such,  pro  tunc. 

entry  or  return  may  be  made  wm^  j?ro  tunc  hj  order  of  the 
Court,  so  as  to  make  the  proceedings  conform  to  the  facts  at  the 
time  the  entry  should  have  been  made. 


SECTION  III. 

OF    AMENDING    RECORDS. 

Section.  ,  Section. 

3448.  Amendment  of  records.  j       3449.  Discretion  of  the  Court. 

§  3448.  It  is  a  power  incident  to  all  Courts  to  correct  their  own  Amendment 

of  rGcords 

proceedings  before  final  judgment. 

§  3449.  In  allowing  or  refusing  amendments,  there  is  a  wide    Discretion 
discretion  to  be  exercised  by  the  Court :  hence  no  fixed  rule  can  to    amend 
be  laid  down  which  would  apply  to  each  particular  case  that  might  mies  'there- 
arise,  but  as  a  general  rule  the  Court  will  amend  the  entries  of  its 
orders  on  the  minutes,  or  the  records  and  other  proceedings,  nunc 
pro  tunc — 

1.  When  the  case  is  within  some  statutory  provisions. 

2.  When  there  is  something  on  the  face  of  the  proceedings  to 
amend  by,  from  which  what  actually  took  place  in  the  prior  pro- 
ceedings can  be  clearly  ascertained  and  known. 

3.  In  all  cases  where  such  amendment  will  clearly  be  in  fur- 
therance of  justice. 

42 


658 


PT.  3.— TIT.  3.— CHAP.  2.--ART.  2.— Defenses. 


Section  4. — Other  Amendments. 


SECTION  IV. 

OF    OTHER    AMENDMENTS. 


Section. 

3450.  Affidavits  of  illegality  amendable. 

3451.  Also,  insolvent's  schedule. 

3452.  Also,  rules  for  new  trial. 

3453.  Certain  affidavits  not  amendable. 


Section. 

3454.  Appeal  bonds  amendable. 

3455.  Also,  affidavits  to  appeal. 
3556.  Also,  clerical  mistakes. 


amendable. 


§  3450.  Affidavits  of  illegality  are,  upon  motion  and  leave  of 
Affidarits  Court,  amendable  instanter  by  the  insertion  of  new  and  independ- 

of   iJlegality  ^  j  i 

amendable,   ^nt  grounds ;  provided  the  defendant  will  swear  that  he  did  not 
know  of  such  grounds  when  the  original  affidavit  was  filed. 

§^3451.  A  schedule  filed  by  an  insolvent  debtor  is  amendable ; 
Insolvent's  providcd  hc  will  show  to  the  satisfaction  of  the  Court,  by  affidavit 

chedule  .  .  .  ..  .  . 

or  otherwise,  that  the  omission  arose  from  ignorance,  inadvertance, 
mistake,  or  inability  at  the  time  to  make  it  more  perfect ;  he 
must,  however,  amend  instanter^  and  will  not  be  permitted  to  de, 
lay  a  creditor  thereby. 

§  3452.  A  rule  ni  si  for  a  new  trial  may  be  amended  by  adding 
new  grounds  not  taken  at  the  time  the  application  was  filed. 

§  3453.  An  affidavit  which  is  the  foundation  of  a  legal  proceed- 
ing can  not  be  amended  except  expressly  provided  for  by  law. 

§  3454.  An  appeal  bond,  and  all  other  bonds  taken  under  requi- 


Araendment 
of  rules  for 
new  trial. 

Affidavits 
can  not  be 
amended. 


Amendment 
•peals 
other 


of    ap™eTis  sition  of  law  in  the  course  of  a  judicial  proceeding,  may  be  amend- 


and 
bonds 


ed  and  new  security  given  if  necessary. 

§  3455.  Where  material  words  are  omitted  by  accident  or  mis- 
Aflfidavit  take  in  an  affidavit  to  appeal  in  forma  pauperis^  such  omission  is 
amendable,   amendable. 

§3456.  The  mistake  or  misprision  of  a  clerk  or  other  ministe- 
ciericaimis-  rial  officer  shall  in  no  case  work  to  the  iniury  of  a  party  where  by 

takes  may  be  ,  J      J  r        J  J 

amended,     an  amendment  justice  may  be  promoted. 


CHAPTER   III. 

OF    THE    PRODUCTIOJST    OF    PAPERS 


I 
Section. 

3457.  Production  of  books,  etc. 

3458.  Notice  to  produce. 

3459.  Judgment  in  ease  of  failure. 

3460.  Continuance. 

3461.  Affidavit  of  non-resident. 

3462.  Notice— how  made  available. 


Section. 

3463.  Subpoena  duces  te  cum. 

3464.  Penalties  for  disobeying. 

3465.  Secondary  evidence. 

3466.  Transcripts  of  books. 

3467.  Examination  of  books. 


PT.  3.— TIT.  3.— Defenses.  659 

Chapter  3. — The  Production  of  Papers. 
§  3457.  The  several  Courts  shall  have  power  on  the  trial  of  any   Production 

.  n  t  •  .  "^    of  books,  etc. 

<jause  cognizable  before  them  respectively,  on  notice  and  proof  may  be  coia- 
thereof  being  previously  given  by  the  opposite  party  or  his  attor-      jy^ ^  . 

ney,  to  require  either  party  to  prjoduce  books,  writings  and  other  ' 
documents  in  his  possession,  power,  custody,  or  control,  which 
shall  contain  evidence  pertinent  to  the  cause  in  question,  under 
circumstances  where  such  party  might  be  compelled  to  produce  the 
same  by  the  ordinary  rules  of  proceeding  in  equity. 

§  3458.  The  notice  required  by  the  precedins;  Section  shall  be     Notice  to 

^  .  .  produce  pa- 

in writing,  signed  by  the  party  seeking  the  production   of  the  p^r'- 

books  or  other  writings,  or  his  attorney,  and  served  on  the  adverse 
party  or  his  attorney,  ten  days  before  the  production  of  the  books,  ' 

writings  or  documents  shall  be  required,  provided  such  party  re- 
sides in  the  County  where  the  suit  is  pended  ;  if  out  of  said  Coun- 
ty and  within  one  hundred  miles,  fifteen  days ;  if  over  one  hun- 
dred miles  and  less  than  two  hundred,  twenty  days  ;  and  if  beyond 
the  limits  of  this  State,  sixty  days. 

§  3459.  If  the  plaintiff  or  his  attorney,  being  so  notified,  shall  consequen- 

jf»'i  c  1  '   ^  T  ii/~<in  •         ces  of  failure 

fail  or  refuse  to  comply  with  such  order,  the  Court  shall  on  motion  to    produce 

.  .       .  .  papers. 

give  judgment  against  such  plaintiff  as  in  case  of  non-suit,  and  if 
the  defendant  shall  fail  or  refuse  to  comply  therewith,  the  Court, 
on  motion,  shall  give  judgment  against  such  defendant  as  in  case 
of  judgment  by  default. 

§  3460.  In  case  of  the  service  of  any  notice  as  aforesaid,  when  ooaWnu- 
it  shall  appear  to  the  satisfaction  of  the  Court,  by  an  affidavit  of 
the  party,  or  otherwise,  that  such  party  has  used  due  and  proper 
diligence  and  can  not  procure  the  books,  writings,  or  other  docu- 
ments required,  the  cause  may  be  continued  at  the  instance  of  the 
party  notified. 

§  3461.  When  the  party  notified  resides  without  the  limits  of  Affidavit 
this  State,  but  in  one  of  the  States  or  Territories  of  the  United  dent. 
States,  such  party  may  make  the  oath  required  before  a  commis- 
sioner of  this  State,  resident  in  such  State  or  Territory,  or  before 
any  officer  of  such  State  or  Territory  in  which  the  party  notified 
may  reside,  who  is  authorized  by  the  laws  of  such  State  or  Terri- 
tory to  administer  an  oath,  which  shall  be  sufficient,  provided  the 
official  character  of  the  officer  attesting  said  affidavit  shall  be 
properly  proven  by  the  certificate  of  the  Governor,  the  Secretary 
of  State,  the  Chancellor,  or  the  Keeper  of  the  Great  Seal  of  the 
State  or  Territory  in  which  such  affidavit  is  made. 


660  PT.  3.— TIT.  e.— Defenses. 

Chapter  3. — The  Production  of  Papers, 

§  3462.  Before  the  notice  provided  for  in  the  preceding  Sec- 

Notice—  tions  shall  be  available  ~the  party   sj'vin^  it,  or  his  a^ent,  must- 
bow     made  .^  '  rjoo?  o        •> 

available,  make  oath  (or  his  attorney  state  in  his  place)  that  he  has  reason  to 
believe  that  the  paper  required  is  or  has  been  in  existence ;  that 
it  is  in  the  possession,  power,  or  control  of  the  person  notified,  and 
that  it  is  material  to  the  issue. 

§  3463.  When  any  deed,  bond,  note,  book,  writing,  or  other  doc- 
snbposnaument  which  it  may  be  necessary   to  use  as  testimony  in   any 

duces  tecum  >j  */  »/  j 

cause  pending  in  any  of  the  Courts  of  this  State,  may  be  in  the 
possession  of  any  person  resident  in  any  County  in  this  State,  and 
who  is  not  a  party  to  said  cause,  the  Clerk  of  the  Court,  or  Jus- 
tice of  the  Peace,  as  the  case  may  be,  in  which  said  cause  is  pend- 
ing, shall,  upon  application  of  the  party  or  his  attorney,  desirous 
of  using  such  testimony,  issue  a  subpoena  duces  tecum  directed  to 
the  person  having  such  deed,  bond,  note,  book,  writing,  or  other 
document  in  his  possession,  requiring  him  to  be  and  appear  at  the 
next  term  of  said  Court,  and  to  bring  with  him  into  said  Court 
the  paper  desired  to  be  used  as  testimony,  which  said  subpoena 
shall  be  served  thirty  days  before  the  Court  to  which  it  is  made 
returnable,  by  a  Sheriff,  Constable,  or  some  private  person ;  and 
the  official  return  of  the  Sheriff  or  Constable,  or  the  affidavit  of 
such  private  person  shall  be  sufficient  evidence  that  the  same  was 
duly  served. 

§  3464.  When  a  subpoena  shall  be  issued  and  served  as  provided 
J'^caityfor  [^i  thc  preceding   Section,  and   the  person   whose  attendance  is 
^A^du^e^Z'-  t^^reby  required  shall  fail  to  comply  with  the  requisitions  thereof, 
cum,  ^^Q   Court  shall,   on  motion,  issue  an   attachment  against   such 

defaulting  person,  returnable  to  the  next  term  of  said  Court,  and 
shall  fine  such  person  in  a  sum  not  exceeding  three  hundred  dol- 
lars, unless  he  shall  make  a  sufficient  excuse  for  such  failure,  to 
be  judged  of  by  the  Court ;  but  such  person  shall  nevertheless 
be  subject  to  an  action  at  the  instance  of  the  party  by  whom  he 
was  subpoenaed  for  any  damages  which  such  party  may  have  sus- 
tained by  reason  of  such  failure ;  provided,  that  if  the  person  so 
Subpoena  subpoenacd  shall,  within  ten  days  after  the  service  of  such  sub- 

duce-s  tecum  ^  '  *> 

~r^ed\ith™  P^^^j  deliver  to  the  party  at  whose  instance  the  subpoena  was 
sued  out,  or  his  attorney,  or  file  in  the  office  of  the  Court,  or  Jus- 
tice of  the  Peace,  from  which  such  subpoena  issued,  the  paper, 
the  production  of  which  is  required  by  such  subpoena,  or  shall 
deliver  to  the  said  party  or  his  attorney,  or  shall  file  in  the  said 


PT.  8.— TIT.  3.— Defenses. 


Chapter  3, — The  Production  of  Papers. 


office  his  affidavit  tiiat  the  said  paper  is  not  in  his  power,  custody, 
possession,  or  control,  and  that  it  was  not  at  the  time  of  serving 
said  siiibposna,  then  such  delivery  or  filing  of  the  paper  so  sought 
as  aforesaid,  or  of  such  affidavit,  shall  be  considered  a  full  and 

complete  compliance  with  the  requisitions  of  such  suhpmna  duces 

tecum. 

§  3465.  In  all  cases  pending  in  any  of  said  Courts  where  any 
party,  either  at  law  or  in  equity,  shall  pursue  the  course  in  this 
Chapter  pointed  out,  and  is  unable  thereby  to  procure  such  deed, 
h'  nd,  note,  book,  writing,  or  other  document,  such  party  shall  bo 
permitted  to  go  into  parol  evidence  of  the  contents  of  such  deed, 
bond,  note,  book,  writing,  or  other  document. 

§  3466.  When  any  person  shall  be  notified  or  served  with  suh- 
pcena  duces  tecum  to  produce  books  in  his  possession  to  be  used  as 
testimony  on  the  trial  of  any  cause  as  hereinbefore  provided,  if 
such  perscn  will  make  oath  that  he  can  not  produce  the  books  re- 
quired without  suffering  a  material  injury  in  his  business,  and  shall 
also  make,  or  cause  to  be  made  out,  a  full  transcript  from  such 
books  of  all  the  accounts  and  dealings  with  the  opposite  party, 
and  have  such  transcript  examined  and  sworn  to  hj  an  impartial 
witness,  and  produce  the  same  in  Court,  it  shall  be  a  compliance 
with  the  notice  or  subpoena  duces  tecum. 

§  3467.  When  the  transcript  provided  for  in  the  preceding  Sec- 
tion shall  be  produced  in  Court,  if  the  adverse  party  is  dissatisfied 
therewith,  and  will  swear  that  he  believes  that  the  books  contain 
entries  material  to  him  which  do  not  appear  in  the  transcript, 
the  Court  will  grant  him  a  commission  to  be  directed  to  certain 
persons  named  by  the  parties  and  approved  by  the  Court,  to  cause 
the  adverse  party  to  produce  the  books  required  (he  being  sworn 
that  the  books  produced  are  all  that  he  has  or  had  that  answer  to 
the  description  in  the  notice),  and  to  examine  said  books,  and  to 
transmit  to  the  Court  a  full  and  fair  statement  of  the  accounts  and 
entries  between  the  parties  under  their  hand,  which  shall  be  sealed 
up  and  transmitted  to  the  Court,  as  in  case  of  interrogatories ; 
which  statement,  when  received  by  the  Court,  shall  be  deemed  a 
-compliance  with  the  notice,  or  subpoena  duces  tecum. 


Secondary 
evidence. 


Wiien  tran- 
scripts of 
books  may 
be  esed. 


When  books 
may  be  ex- 
amined by 
commission- 
ers. 


mh 


'^. 


PT.  3.— TIT.  3.— Defenses. 


Chapter  4. — Continuanees. 


CHAPTER    lY. 


OF     CONTINUANCES 


Section. 

S468.  One  continuance  at  common  law. 

3469.  When  amending  party  may  continue 

3470.  Continuance  for  surprise. 

3471.  For  absence  of  witnesses. 

3472.  Admission  of  facts. 

3473.  Continuance  for  absence  of  party.. 

3474.  For  absence  of  counsel. 


Section. 

3475.  When  case  is  not  reached. 

3476.  Of  eases  returned  from  S.  Court. 

3477.  Diligence  required. 

3478.  Non-return  of  interrogatories. 

3479.  Contiauanee  on  appeal. 

3480.  Discretion  of  the  Court. 


But  one  con- 
tinuance at 
common  law 


Amending 
party— when 
entitled  to 
continuance. 


Continuance 
charged  to 
a  m  e  n  d  i  n'g 
party— when 


Continuance 
for  absence 
of  witnesses. 


§  3468.  1^0  trial  in  any  civil  cause  shall  he  liad  at  tlie  first  term 
(except  expressly  provided  for  by  law),  and  no  ca^se  whatever  de- 
pending in  any  of  the  Courts  of  this  State,  shall  be  continued 
more  than  one  term  at  common  law,  at  the  instance  of  the  samo 
party  for  any  cause  whatever. 

§  3469.  The  party  amending  pleadings  or  other  proceedings  m 
any  of  said  Courts  shall  not  be  entitled  to  delay  or  continuance 
on  account  of  such  amendment,  except  by  leave  of  the  Court  to 
enable  him  to  make  such  amendment, 

§  3470.  When  any  amendment  shall  be  m.ade  to  the  pleadings 
or  other  proceedings  in  the  cause,,  if  the  opposite  party  will  make 
oath,  or  his  counsel  state  in  his  place  that  he  is  surprised  by  such 
amendment,  and  that  he  is  less  prepared  for  trial,  and  how,  than 
he  would  have  been  if  such  amendment  had  not  been  made,  and 
that  such  surprise  is  not  claimed  for  the  purpose  of  delay,  the  case 
may  be  continued  in  the  discretion  of  the  Judge,  at  the  instance 
of  the  amending  party, 

§  3471.  In  all  application  for  continuances  upon  the  ground 
of  the  absence  of  a  witness,  it  must  be  shown  to  the  Court  that 
the  witness  is  absent ;  that  he  has  been  subpoenaed  ;  that  he  resides 
in  the  County  where  the  case  is  pending ;  that  his  testimony  is  ma- 
terial ;  that  such  witness  is  not  absent  by  the  permission,  directly 
or  indirectly,  of  such  applicant ;  that  he  expects  he  will  be  able  to 
procure  the  testimony  of  such  witness  at  the  next  term  of  the 
Court ;  and  that  such  application  is  not  made  for  the  purpose  of 
delay,  but  to  enable  the  party  to  procure  the  testimony  of  such 
absent  witness,  and  must  state  the  facts  expected  to  be  proved  by 
such  absent  witness. 

§  3472.  No  continuance  shall  be  allowed  in  any  Court  on  ac- 
count of  the  absence  of  a  witness,  or  for  the  purpose  of  procuring 


PT.  3.— TIT.  3.— Defenses. 


663 


Chapter  4. — Continuances. 


testimony,  when  the  opposite  party  is  willing  to  admit,  and  does 
not  contest  the  truth  ^of  the  facts  expected  to  be  proved,  and  the 
Court  shall  order  such  admission  to  be  reduced  to  writing. 

§  3473.  If  either  party  shall  be  providentially  prevented  from 
attending  at  the  trial  of  any  cause,  and  the  counsel  of  such  ab- 
sent party  will  state  in  his  place  that  he  can  not  go  safely  to  trial 
without  the  presence  of  such  absent  party,  such  cause  shall  be 
continued,  provided  his  continuances  are  not  exhausted. 

§  3474.  The  illness  or  absence  from  providential  cause  of  coun- 
sel, where  there  is  but  one,  or  of  the  leading  counsel  where  there 
are  more  than  one,  shall  be  a  sufficient  ground  for  a  continuance, 
provided  the  party  making  the  application  will  swear  that  he  can 
not  go  safely  to  trial  without  the  services  of  such  absent  counsel, 
that  he  expects  his  services  at  the  next  term,  and  that  said  appli- 
cation is  not  made  for  delay  only. 

§  3475.  A  cause  not  reached  at  the  trial  term  stands  over  as 
continued. 

§  3476.  When  any  cause  shall  be  sent  back  to  the  Superior 
Court  by  the  Supreme  Court,  the  same  shall  be  in  order  for  trial 
at  the  first  term  of  the  said  Superior  Court  next  after  the  session 
of  the  Supreme  Court ;  and  if  such  case  is  upon  the  appeal,  and 
the  continuances  of  either  party  are  exhausted,  the  said  Superior 
Court  may  grant  one  continuance  to  said  party  as  the  ends  of 
justice  may  require. 

§3477.  In  all  cases  the  party  making  an  application  for  a  con- 
tinuance must  show  that  he  has  used  due  diligence. 

§  3478.  When  a  commission  issues  to  examine  a  witness,  it  not 
having  been  returned  shall  be  no  cause  of  a  continuance,  unless 
the  party  seeking  the  continuance  will  make  the  same  oath  of  the 
materiality  of  the  testimony  as  in  the  case  of  an  absent  witness, 
and  the  party  must  show  due  diligence  in  suing  out  and  having 
the  same  executed. 

§  3479.  ISTo  appeal  case  shall  be  continued  more  than  twice  by 
the  same  party,  except  for  providential  cause,  and  for  which  it 
may  be  continued  as  often  as  justice  may  require. 

§  3480.  All  applications  for  continuances  are  addressed  to  the 
sound  legal  discretion  of  the  Court,  and  if  not  expressly  provided 
for,  shall  be  granted  or  refused  as  the  ends  of  justice  may  require. 


Continu- 
ance refused 
when  the 
frets  are  ad- 
mitted. 

When  ab- 
sence of  par- 
ty is  cause  of 
continuance. 


Continuance 
for  absence 
or  illness  of 
counsel. 


l^^flL  6'^ 


^ . 


3  ^ 


When  case 
is  not  reach- 
ed. 

Continu- 
ance in  cases 
sent  back 
from  Su- 
preme Court. 


o  Diligence 
required. 


Continuance 
for  n  on -re- 
turn of  inter- 
rogatories. 


Continuance 
on  the  ap- 
peal. 


Discretion 
of  the  Court. 


664 


PT.  3.— TIT.  3.— Defenses. 


Chapter  5. — Garnishments. 


I 


CHAPTER   V. 

GAENISHMENTS.  JyK     AC    /o". 


Section. 

3481.  Garnishments  at  common  law. 

3482.  How  obtained. 

3483.  Affidavit  and  bond  by  agent,  etc. 

3484.  By  one  of  a  firm,  etc. 

3485.  How  and  by  whom  issued,  etc. 

3486.  Against  persons  out  of  the  County. 

3487.  How  issued,  etc. 

3488.  Grarnishments — how  dissolved. 

3489.  Distribution  of  money. 

3490.  Garnishee — when  to  pay  interest. 


Section. 

3491.  Judgment  against  garnishee. 

3492.  Answer  of  garnishee. 

3493.  Collateral  securities. 

3494.  Attorney  may  be  garnished. 

3495.  Receiver  exempt. 

3496.  Laborers'  wages  exempt. 

3497.  Legacies,  etc. 

3498.  Garnishment  of  executors,  etc. 

3499.  Garnishment  by  Tax  Collector. 

3500.  Proceedings  thereon. 


§  3481.  In  cases  where  suit  is  pending,  or  where  judgment  has 

Garnish-  been  obtained,  the  plaintiff  shall  be  entitled  to  the  process  of  gar- 
ments    at.  .  .  r  to 
common  law  nishment  under  the  following  regulations  : 

§  3482.  The  plaintiff,  his  agent  or  attorney  at  law,  shall  make 
Garnish-  an  affidavit  before  some  officer  authorized  to  issue  an  attachment 
obtained."  bj  this  Codc,  Stating  the  amount  claimed  to  be  due  in  suehaction, 
or  on  such  judgment,  and  that  he  has  reason  to  apprehend  the 
loss  of  the  same,  or  some  part  thereof,  unless  the  process  of  gar- 
nishment do  issue,  and  shall  give  bond,  with  good  security,  in  a  sum 
at  least  equal  to  double  the  amount  sworn  to  be  due,  payable  to  the 
defendant  in  the  suit  or  judgment,  as  the  case  may  be,  condition- 
ed to  pay  said  defendant  all  costs  and  damages  that  he  may  sus- 
tain in  consequence  of  suing  out  said  garnishment,  in  the  event 
that  the  plaintiff  fails  to  recover  in  the  suit  pending,  or  it  should 
appear  that  the  amount  sworn  to  be  due  on  such  judgment  was 
not  due. 

§  3483.  When  the  affidavit  is  made  by  the  agent  or  attorney  at 

Affidavit  law  of  the  plaintiff,  he  may  swear  according  to  the  best  of  his 

attorney,      knowlcdgc  and  belief,  and  shall  have  power  to  sign  the  name  of 

the  plaintiff  to  such  bond,  who  shall  be  bound  thereby  in  the  same 

manner  as  though  he  had  signed  it  himself. 

§  3484.  When  the  debt  for  the  recovery  of  which  the  garnish- 
Affidavit  ment  is  sought  is  due  to  co-partners,  or  several  persons  jointly, 
oneofafi'rm,  any  One  of  said  co-partners,  or  joint  creditors,  may  make  the  af- 
fidavit and  give  the  bond  in  the  name  of  the  plaintiff,  as  prescrib- 
ed in  cases  of  attachment. 

§  3485.  When  such  affidavit  has  been  made,  and  bond  given,  it 
shall  be  the  duty  of  the  officer  before  whom  the  same  is  made,  or 


s 


PT.  3.— TIT.  3.— Defenses. 


665 


Chapter  5. — Garnishments. 


any  other  officer  authorized  by  this  Code,  to  issue  attachments, 
to  whom  the  said  bond  and  affidavit  may  be  delivered,  upon  the 
request  of  the  plaintiff,  his  agent,  or  attorney  at  law,  to  issue  a 
summons  of  garnishment,  directed  to  the  person  sought  to  be 
garnished,  requiring  him  to  appear  at  the  next  term  of  the  Court 
where  such  suit  is  pending,  or  where  such  judgment  was  obtained; 
but  if  the  next  Superior  Court  shall  be  held  within  less  than 
ten  days  from  the  time  such  summons  shall  issue,  then  the  gar- 
nishee shall  be  required  to  appear  at  the  next  Court  thereafter, 
then  and  there,  or  before  that  time,  to  depose  on  oath  what  he  is 
indebted  to,  or  what  property  and  effects  he  has  in  his  hands  be- 
longing to  the  defendant,  or  had  at  the  time  of  the  service  of 
the  summons  of  garnishment ;  and  upon  such  affidavit,  bond,  and 
summons  of  garnishment,  being  delivered  to  any  officer  authorized 
by  law  to  levy  an  attachment,  it  shall  be  his  duty  to  serve  such 
summons  of  garnishment  upon  the  person  to  whom  it  is  directed, 
if  to  be  found  in  his  County,  and  to  make  an  entry  of  such  ser- 
vice, and  of  his  actings  aM  doings  in  the  premises  upon  the  affi- 
davit and  bond,  and  return  the  same  to  the  Court  to  which  the 
person  summoned  as  garnishee  is  required  to  appear ;  and  all 
subsequent  proceedings  shall  be  the  same  as  in  this  Code  pre- 
scribed in  relation  to  garnishment  in  cases  of  attachment.  [  Sum- 
mons of  garnishment  may  issue  under  the  provisions  of  this  Sec- 
tion, from  time  to  time,  before  trial,  without  giving  any  addi- 
tional bond.]  (a) 

§  3486.  When  any  of  the  persons  sought  to  be  garnished  re- 
side in  a  different  County  from  the  one  where  suit  is  pending,  or 
in  which  judgment  was  obtained,  it  shall  be  the  duty  of  the  offi- 
cer taking  such  affidavit  and  bond,  or  any  other  officer  of  the 
County  where  such  suit  is  pending,  or  where  such  judgment  was 
obtained,  authorized  by  this  Code  to  issue  an  attachment,  to 
whom  said  bond  and  affidavit  may  be  delivered,  to  make  out  a 
copy  thereof,  and  certify  the  same  to  be  true,  and  shall  deliver 
said  certified  copy  to  the  plaintiff,  his  agent,  or  attorney  at  law ; 
and  upon  such  certified  copy  being  delivered  to  any  officer  author- 
ized to  issue  an  attachment,  of  the  County  where  the  person 
sought  to  be  garnished  resides,  it  shall  be  the  duty  of  such  offi- 
cer to  issue  summons  of  garnishment  for  such  person  as  he  may 


Garnish- 
ment—  how 
and  bywhom 
issued. 


.^tJ 


/ 


Garnish- 
ment against 
persons  re- 
siding out  of 
the  County. 


(a)  Acts  of  1866,  p.  24. 


666  PT.  3.— TIT.  3.— Defenses. 

Chapter  5. — Garnishments. 

be  directed  by  the  plaintiff,  his  agent,  or  attorney  at  law,  requi- 
ring him  to  appear  at  the  next  Superior  or  Justices'  Court  of  said 
County,  according  as  such  suit  is  pending,  or  judgment  was  ob- 
tained in  the  Superior  or  Justices'  Court,  then  and  there  to  de- 
pose according  to  the  provisions  of  the  previous  Sections ;  but  if 
the  said  Superior  Court  shall  be  held  within  less  than  twenty  days, 
or  said  Justice's  Court  shall  be  held  within  less  than  ten  days 
from  the  time  such  garnishment  issues,  the  garnishee  shall  be  re- 
quired to  appear  at  the  next  Court  thereafter. 

§  3487.  Upon  such   certified  copy  of  affidavit,  bond,  and  sum- 
Howissued,  mous   of   firamishment,  beinsr  delivered  to  any  officer  authorized 

served,    and  °  •         i  i  •       i 

returned,etc.  by  law  to  Icvy  an  attachment,  it  shall  be  his  duty  to  serve  the 
summons  upon  the  person  to  whom  it  is  directed,  and  to  return 
the  said  copy  affidavit,  and  bond,  to  the  Court  where  such  per- 
son  is  summoned  to  appear,  together  with  his  actings  and  doings 
entered  thereon,  and  all  subsequent  proceedings  shall  be  the  same 
as  is  prescribed  by  this  Code  in  relation  to  garnishment  in  cases 
of  attachment,  where  the  garnishee  rRides  out  of  the  County  in 
which  the  attachment  is  returnable. 

§  3488;  In  cases  where  garnishments  are   issued  when  suit  is 
Garnish-  pendins",  or  ludgment  has  been  obtained,  the  defendant  may  dis- 

ments— how  ^  o'  ^       &  ?  ^^ 

dissolved,  solvc  such  garnishment,  and  have  the  same  dismissed  upon  filing 
in  the  Clerk's  office  of  the  Court  where  suit  is  pending,  or  judg- 
ment was  obtained,  or  with  the  Justice  of  the  Peace  where  suit  is 
pending,  or  judgment  was  obtained  in  such  Court,  a  bond,  with 
N  security,  payable  to  the  plaintiff,  for  the  payment  of  the  amount 
due  on  such  judgment,  or  which  may  be  recovered  in  said  action, 
and  the  costs  thereon,  and  the  plaintiff  may  enter  up  judgment 
upon  such  bond  against  the  principal  and  securities,  as  judgment 
may  be  entered  against  securities  upon  appeal. 

§  3489.  All  money  raised  by  virtue  of  the  process  of  garnish- 

Moneyrais-  mcut  uudor  this  Codc  shall  be  paid  over  to  the  creditors  of  the 

ed   by    gar-  ^  '■        ^ 

nishinent—  defendant,  according  to  the  priorities   now  established  by  law — 

how  distrib-  7  o  x  ./ 

uted.  the  expenses  of  the  moving  creditors  being  first  paid  pro  rata,  by 

the  judgment  creditors  receiving  the  benefit  of  his  diligence. 
§  3490.  As  a  general  rule,  a  party  who  is  prevented  from  pay- 
Garnishee  ing  ovcr  moncv  by  process  of  law  is  not  liable  for  interest ;  but  if 

liable     for  .  ,  t*      ^        o        i    '        1  •      i 

interest—  a  garnishee  resists  the  payment  of  the  fund  in  his  hands,  or  con- 

when.  *=  .      .  .        .  , 

troverts  his  indebtedness,  he  is  liable  for  interest  thereon — but  he 
may  relieve  himself  from  interest  by  paying  the  fund  into  Court. 


PT.  3.— TIT.  3.— Defenses. 


667 


Chapter  5. — Garnishments. 


§  3491.  The  plaintiff  shall  not  have  judgment  against  the  gar- 
nishee until  he  has  obtained  judgment  against  the  defendant. 

§  3492.  The  garnishee  must,  in  his  answer,  admit  or  deny  his 
indebtedness,  or  that  he  has,  or  had,  effects  in  'his  hands  be- 
longing to  defendant ;  and  if  he  is  unable  to  do  so,  his  inability 
must  appear  in  his  answer,  together  with  all  the  facts  plainly, 
fully  and  distinctly  set  forth,  so  as  to  enable  the  Court  to  give 
judgment  thereon. 

§  3493.  Collateral  securities  in  the  hands  of  a  creditor  shall 
not  be  the  subject  of  garnishment  at  the  instance  of  other  credi- 
tors. 

§  3494.  An  attorney  at  law  who  has  money  or  other  effects  in 
his  hands  belonging  to  the  defendant,  shall  be  subject  to  be  gar- 
nished. 

§  3495.  A  receiver  appointed  by  a  Court  of  Equity  shall  not  be 
subject  to  the  process  of  garnishment. 

§  3496.  All  journeymen,  mechanics,  and  day  laborers  shall  be 
exempt  from  the  process  and  liabilities  of  garnishment  on  their 
daily,  w^eekly,  or  monthly  wages,  whether  in  the  hands  of  their 
employers  or  others. 
. J  3497.  As  a  general  rule,  the  interest  of  a  legatee  or  distribu- 
tee is  not  the  subject  of  garnishment  issued  against  an  executor 
or  administrator,  but  if  the  legacy  has  been  assented  to  by  the 
executor,  and  such  legacy  is  not  defeated  by  debts  against  the 
estate,  and  when  there  has  been  a  final  settlement  by  the  admin- 
istrator, and  there  remains  in  his  hands  a  fixed  balance,  such  leg- 
acy or  the  interest  of  the  distributee,  or  heir,  may  be  reached  by 
the  process  of  garnishment,  at  the  instance  of  a  creditor  of  such 
legatee,  distributee,  or  heir  at  law,  as  the  case  may  be. 

§  3498.  In  every  case  a  garnishment  may  be  issued  against  an 
executor  or  administrator  for  a  legacy  or  distributive  share,  [or 
for  any  debt  or  demand  owing  by  said  estate  to  any  other  per- 
son,] (a)  if  the  creditor  will  swear — in  addition  to  the  oath  required 
in  ordinary  cases — that  his  debtor  resides  without  the  State,  or  is 
insolvent.  In  such  cases  the  executor  or  administrator  shall  not  be 
compelled  to  answer  the  garnishment  until  the  estate  in  his  hands 
is  sufficiently  administered  to  enable  him  safely  to  answer  the 
same. 


Judgment. 


Answer  of 
garnishee. 


Collaterals 
not  subje'it 
to  garnish- 
ment. 


Attorney  at 
law  is  sub- 
ject to  gar- 
nishment. 


Eeceivers 
not  snbiect 
to  garnish- 
ment 

Laborers' 
wages  ex- 
empt from 
garnishment 


When  lega- 
tees, etc.  are 
subject  to 
garnishment 


Executors, 
etc.  may  be 
garnished  — 
wheD. 


(a)  Acts  of  1865-6,  p.  33. 


668  PT.  3.— TIT.  3.— Defenses. 


Chapter  5. — Garnishments. 


§  3499.  When  any  Tax  Collector  can  find  no  property  of  the 
Tax  Collect-  defendant,  on  which  to  levy  any  tax  execution  in  his  hands,  it 

or  may  issue  \  ./  ./  i 

garnishment  shall  bc  his  duty  to  make  an  entry  to  that  effect  on  said  execu- 
tion ;  and  such  Tax  Collector  may  then  issue  summons  of  gar- 
nishment against  any  person,  whom  he  may  believe  is  indebted  to 

How  served  the  defendant,  or  who  may  have  property,  money,  or  effects  in  his 
hands  when  said  summons  of  garnishment  shall  bo  served  by  the 
Tax  Collector,  the  Sheriff,  his  deputy,  or  any  Constable  of  the 
County  in  which  the  garnishee  may  reside,  at  least  fifteen  days 
before  the  sitting  of  the  Court  to  which  the  same  is  made  return- 
able, and  returned  to  the  Superior  Court  of  the  County  for  which 
he  is  Tax  Collector. 

§  3500.  Said   Tax  Collector  shall  enter  on  said  execution  the 

Proceedings  namcs  of    the  pcrsons  garnished,  and    return  said  execution  to 

on    garnish-        •      c\  '        r^ 

™ent.  said  Superior  Court,  and  all  the  subsequent  proceedings  shall  be 

the  same  as  now  provided  by  law  in  relation  to  garnishments  in 
other  cases,  when  judgment  has  been  obtained,  or  execution  issued. 


TITLE     IV. 

OF  THE   VERDICT  AND   JUDGMENT. 


CHAPTER  I. 

VERDICT     AND     JUDGMENT. 


Article  1. — Of  the  Verdict  and  its  Reception, 

Article  2. — Entering  Judgment 

Article  3. — Effect  and  Lien  of  Judgment, 

Article  4. — Of  Attacking  Judgments, 

Article  5. — Transfer  of  Judgments, 

Article  6. — Confession  of  Judgments, 

Article  7. — Dormant  Judgments  and  Revival  thereof. 


PT.  3.— TIT.  4.— CHAP.  1.— Verdict  and  Jitdgment. 


669 


Article  1. — The  Verdict  and  its  Reception. 


ARTICLE  I. 


OF     THE     VERDICT     AND     ITS     RECEPTION. 


Section. 

3501.  Verdict  must  corer  the  issues. 

3502.  Must  show  on  what  plea  found. 

3503.  Construction  of  verdicts. 

3504.  Moulding  verdicts. 

3505.  Verdicts  in  trover. 


Section. 

3506.  Election  as  to  verdict. 

3507.  For  a  total  divorce. 

3508.  For  a  partial  divorce. 

3509.  Reception  of  verdicts. 


§  3501.  The  verdict  must  cover  the  issues  made  by  the  plead-       Verdict 

*^  i-  must    cover 

ings,  and  must  be  for  the  plaintiff  or  defendant.  t^^  issues. 

§  3502.  If  there  are  several  pleas  filed  by  the  defendant,  a  ver-    Must  show 

.  upon     what 

diet  for  the  defendant  must  show  upon  which  of  the  pleas  the  ver-  p^ea   it    is 

^  ^    ^  tound. 

diet  is  rendered.  The  jury  may  render  such  verdict  upon  all  the 
pleas  if  thej  see  proper  so  to  do. 

§  3503.  Verdicts  are  to  have  a  reasonable  intendment,  and  are  ,.  oonstruc- 

^  tion  of  ver- 

to  receive  a  reasonable  construction,  and  are  not  to  be  avoided  <^i^^^- 
unless  from  necessity. 

§  3504.  It  shall  be  within  the  power  of  the  Superior  Court,  in    Moulding 

*  .  verdicts. 

proper  case,  to  mould  the  verdict  at  law  so  as  to  do  full  justice  to 
the  parties,  and  in  the  same  manner  as  a  decree  in  equity,  and  the 
judgment  and  execution  shall  conform  to  the  verdict. 

§3505.  In  an  action  of  ^r over  the  verdict  may  be  in  the  alter- 
native :  that  is,  it  must  be  for  the  value  of  the  property  sued  for, 
which  may  be  discharged  by  the  return  of  the  property  within  a 
given  time  specified  in  the  verdict.    ^ 

§  3506.  It  shall  be  at  the  option  of  the  plaintiff,  in  an  action  to       Plaintiff 

1  T  •    1       1  c        ^        ^  ™^y    choose 

recover  personal  property,  to  say  upon  the  trial  thereoi  whether  verdict. 
he  will  accept  an  alternative  verdict  for  the  property  or  its  value, 
or  whether  he  will  demand  a  verdict  for  the  damages  alone,  or  for 
the  property  alone,  and  its  hire,  if  any ;  and  it  shall  be  the  duty 
of  the  Court  to  instruct  the  jury  to  render  the  verdict  as  the 
plaintiff  may  thus  select. 

§  3507.  The  form  of  a  verdict  in  case  of  a  total  divorce,  may   Verdict  for 

.  total  divorce. 

be  as  follows — to  wit :  We,  the  jury,  find  that  sufiicient  proofs 
have  been  submitted  to  our  consideration  to  authorize  a  total  di- 
vorce— that  is  to  say,  a  divorce  a  vinculo  matrimonii^  upon  legal 
principles,  betw^een  the  parties  in  this  case. 

§  3508.   In  cases  of  a  partial  divorce,  the  form  of  a  verdict  may    verdict  for 

,  -  .  .  n     -t       1  f  >    •  n    partial    d  i  - 

be  as   lollows — to  wit :   We,  the  jury,  find  that  suincient  proofs  vorce. 


Verdict 
In  trover. 


• 


r 


670 


PT.  3.— TIT.  4.— CHAP.  1.— Verdict  and  Judgment. 


Article  2. — Entering  Judgment. 


have  been  submitted  to  our  consideration  to  authorize  a  partial  di- 
vorce between  the  parties- — that  is  to  saj,  a  divorce  a  mensa  et 

tore  upon  legal   principles.     That   the  plaintiff  shall  pay on 

the  ■ day  of  • to  the  defendant  during  her  natural  life  the 

sum  of doUars  for  the  support  and  maintenance  of  the  issue 

of  such  marriage  during  their  natural  lives. 
Verdicts—      §  3509.  Ycrdicts  shall  not  be  received  except  in  open  Court,  un- 

how  receiv-  ■,  ■,  j      p    ,i 

ed.  less  by  agreement  or  the  parties. 


ARTICLE    IL 


OF     ENTERING     JUDGMENT. 


Section. 

3510.  Judgments — when  to  be  entered. 

3511.  Appeal  suspends  judgment. 

3512.  Judgment  for  principal  and  interest 

3513.  Judgment  on  appeals. 

3514.  Against  sureties  and  indorsers. 


Section. 

3515.  Against  executors,  etc. 

3516.  Costs  against  executors,  etc. 

3517.  Judgments  on  bonds. 

3518.  In  favor  of  and  against  partners,  etc 


Judgment 
—how  and 
■when  signed 
up. 


Appeal  sus- 
pends judg- 
ment 


Judgment 
for  principal 
and  interest. 


Judgment 
on  appeals. 


§  3510.  In  all  cases  when  a  verdict  shall  be  rendered,  the  party 
in  whose  favor  it  may  be,  or  his  attorney,  shall  be  allowed  to  en- 
ter and  sign  up  judgment  thereon  at  any  time  within  four  days  af- 
ter the  adjournment  of  the  Court  at  which  such  judgment  was 
rendered,  for  the  amount  thereof  and  all  costs  recoverable  thereon, 
and  no  execution  shall  issue  on  any  verdict  until  such  judgment 
shall  be  entered  up  and  signed  by  the  party  or  his  attorney. 

§  3511.  If  a  judgment  be  entered  within  the  time  allowed  for 
entering  an  appeal,  and  such  appeal  be  entered,  the  judgment  will 
be  suspended. 

§3512.  In  all  cases  where  judgment  may  be  obtained,  such 
judgment  shall  be  entered  up  for  the  principal  sum  due,  with  inter- 
est ;  provided  the  claim  upon  which  it  was  obtained  draws  inter- 
est— but  no  part  of  such  judgment  shall  bear  interest  except  the 
principal  which  may  be  due  on  the  original  debt. 

§  851^.  In  all  cases  of  appeal,  where  security  has  been  given, 
the  plaintiff,  or  his  attorney,  may  enter  up  judgment  against  the 
principal  and  surety,  jointly  and  severally,  and  execution  shall  is- 
sue accordingly,  and  proceed  against  either  or  both,  at  the  option 
of  the  plaintiff,  until  his  debt  is  satisfied. 

§  3514.  In  all  judgments  against  sureties  or  indorsers  on  any 
bill  of  exchange,  promissory  note,  or  other  instrument  in  writing, 


PT.  3.— TIT.  4.— CHAP.  1.— Verdict  and  Judgment.        671 


Article  3. — The  Eflfect  and  Lien  of  Judgments. 


the  plaintiff,  or  his  attorney,  shall  designate  and  identify  the  re- 
lation of  the  parties  under  the  contract  on  which  such  judgment 
is  rendered,  and  execution  shall  issue  accordingly. 

§3515.  In  a  suit  against  an  executor  or  administrator,  in  his 
representative  character,  the  judgment  must  be  de  bonis  testatoris, 
except  when  he  pleads  7ie  unques  executor,  or  a  release  to  himself, 
or  plene  administravit,  or  plene  administravit  prceter,  and  his  plea 
is  found  against  him  ;  in  which  case  the  judgment  is,  that  the  plain- 
tiff recover  both  the  debt  and  costs,  in  the  first  place  to  be  levied 
of  the  goods  and  chattels,  lands  and  tenements  of  the  deceased,  if 
to  be  found,  and  if  not  to  be  found,  then  to  be  levied  of  the  per- 
sonal goods  and  chattels,  lands  and  tenements  of  the  defendant. 

§  3516.  When  the  verdict  of  a  jury  is  against  an  executor  or 
administrator,  or  other  trustee,  in  his  representative  character,  a 
judgment  for  costs  should  be  entered  against  him  in  the  same 
character. 

§  3517.  All  judgments  entered  against  the  obligors  of  any  bond, 
whether  official  or  voluntary,  shall  be  for  the  amount  of  damni- 
fication found  by  the  verdict  of  a  jury,  and  not  for  the  penalty 
thereof. 

§  3518.  Judgments  entered  up,  or  executions  issued  in  favor  of 
or  against  co-partners,  when  the  partnership  style  is  used  therein 
instead  of  the  individual  names  of  .such  persons  comprising  said 
firm,  shall  be  good. 


Judgment 
against  sure- 
ties and  in- 
dorsers. 


Judgment 

agftinst  exec- 
utors and  ad- 
ministrators 


Judgment 
for  cost 
against  exec- 
utors, etc. 


Judgment 
on  bonds. 


Judgments 
in  favor  of 
or  against 
firms. 


ARTICLE  III. 


OE   THE   EFFECT  AND   LIEN   OP   JUDGMENTS. 


Section. 

3519.  Conclusiveness  of  judgment. 

3520.  Judgments  at  same  term  equal. 
8521.  Rank  of  affirmed  judgments. 

3522.  Dignity  of  judgments. 

3523.  Prevent  alienation — when. 


Section. 

3524.  Do  not  bind  choses  in  action, 

3525.  Lien  on  property  transferred. 

3526.  On  property  removed  from  State, 

3527.  In  trespass  and  trover. 

3528.  Sale  of  land — purchase  money. 


^.: 


§  3519.  The  judgment  of  a  Court  of  competent  jurisdiction  is 
conclusive  between  parties  and  privies  as  to  the  facts  which  it  de- 
cides until  reversed  or  set  aside. 

§  3520.  All  judgments  signed  on  verdicts  rendered  at  the  same 
term  of  the  Court  shall  be  considered  held  and  taken  to  be  of 
equal  date,  and  no  execution  shall  be  entitled  to  any  preference 


Conclusive' 
ness  of  judg- 
ments. 

Judgments 
at  same  term 
of  equal  date. 


672 


PT.  3.— TIT.  4.— CHAP.  1.— Verdict  and  Judgment. 


Article  3. — The  Effect  and  Lien  of  Judgments. 


SM 


^^    6 


^if^ 


by  reason   of  being    first    placed  in    tbe    hands   of    the  levying 

officer. 

§  3521.  A  judgment  in  the  Superior  Court,  which  is  taken  to 
judgment's*^®  Supreme  Court  and  affirmed,  loses  no  lien  or  priority  by  the 
s^'lfJtm^e  pi'oceeding  in  the  Supreme  Court,  but  takes  effect  from  the  first 
Court.        judgment. 

L.^^1  0  §  3522.  All  judgments  obtained  in  the  Superior,  Inferior,  Jus- 

MnS^^ef^  tices',  or  other  Courts  of  this  State,  shall  be  of  equal  dignity,  and 
f^jy  Sent"s!^"*^°"  shall  bind  all  the  property  of  the  defendant,  both  real  and  per- 
^^^"  sonal,  from  the  date  of  such  judgment,  except  as  otherwise  pro- 

vided in  this  Code. 

§  3523.  In  all  cases  where   a  verdict    shall   be  rendered,  and 
men?'"'"r^-i^^&^®^*  signod  up  thoreou,  and  an  appeal  shall  be  entered  from 
5on*in  casS  such  verdict,  the  property  of  the  defendant  shall  not  be  bound  by 
of  appeal,     ^j^^  ^^.^^  vordict  and  judgment,  except  so  far  as  to  prevent  the 
alienation  by  the  defendant  of  his  property  between  the  signing 
of  the  first  judgment  and  the  signing  of  the  judgment  on  the  ap- 
peal, but  shall  be  bound  from  the  signing  of  such  judgment  on 
7    ^         the  appeal. 

^  §  3524.  A  judgment  has  no  lien  upon  promissory  notes  in  the 

do'nft^bfnd  ^^^^s  of  the  defendant,  nor  are  choses  in  action  liable  to  be  seized 
tbn!r^^^°/^^^  sold  under  execution,  unless  made  so  specially  by  statute. 
'  IfP^^'  ('/\  /f^/A     §3525.  When  any  person  has   bona  fide,  and  for  a  valuable 
l^^^-f-  .^^j^^^®"^^'^^  consideration,  purchased  real  or  personal  property,  and  has  been 
property—  ^^  *^^®  posscssiou  of  such  real  property  for  four  years,  or  of  such 
c^^rged.^^'^  personal  property  two  years,  the  same  shall  be  discharged  from 
the  lien  of  any  judgment  against  the  person  from  whom  he  pur- 
\^  L-  chased. 

'^$^  '  §  3526.  When  a  judgment  lien  has  attached  on  •personal  pro- 

mlntf  ^"?n  P^^^J  which  is  romovcd  to  another  State  and  sold,  if  brought  back 

?nove?from  ^gaiu  to  this  State,  it  will  be  subject  to  the  judgment  lien. 

the  state.         g  3527.  When  a  verdict  for  damages  shall  be  rendered  in  favor 

Effect    of  of   a   plaintiff   in   trover    or   trespass,    and    a   iudgment    signed 

judgmcntsm  ^  i  ^  o       o  o 

trover    and  thereou,  the  said  verdict  and  iudgment  shall  not  have  the  effect  to 

trespass.  '  ♦^       o 

change  the  property  which  is  the  subject-matter  of  the  suit,  or  to 
vest  the  same  in  the  defendant  in  said  suit,  until  after  the  dam- 
ages and  costs  recovered  by  the  plaintiff  in  such  action  are  paid 
off  and  discharged,  except  so  far  as  to  subject  such  property  to 
be  sold  under  and  by  virtue  of  an  execution  issuing  from  such 
judgment  in  such  action  of  trespass  or  trover,  and  to  make  the 


PT.  3.— TIT.  4.— CHAP.  1.— Verdict  and  Judgment. 


673 


Article  4. — How  Attacked,  etc. 


same  liable  to  the  payment  of  the  damages  and  costs  recovered 
in  said  action,  in  preference  to  any  other  judgment,  order,  or  de- 
cree, against  the  said  defendant  in  said  action  of  trespass  or 
trover. 

§  3528.  When  a  person  holds  property  under  a  bond  for  titles,  saie  of  lands 
and  the  purchase  money  has  been   partially  paid,  the  same  may  chase  money 

.      -^  .       •^  r  J    r         5  ^    .g     partially 

be  levied  on  under  judgments  against  such  person,  and  the  en-  paid. 
tire  interest  stipulated  in  the  bond  shall  be  sold.  The  proceeds 
of  the  sale  shall  be  appropriated,  first  to  the  payment  of  the  bal- 
ance of  the  purchase  money,  and  the  remainder  to  the  judgment 
liens,  according  to  date.  In  all  such  cases,  notice  of  the  levy 
shall  be  given  by  the  levying  officer  to  the  holder  of  the  bond  for 
titles. 


AKTICLE   IV. 

HOVS^  ATTACKED,  AND  HEREIN  OF  MOTIONS  IN  ARREST  OF  JUDGMENT. 


Section. 

3529.  Arrest  of  judgment. 

3530.  Nature  of  the  motion. 

3531.  On  account  of  defective  pleadings. 

3532.  Where  defects  are  amendable. 

3533.  When  set  aside  for  perjury. 


Section. 

3534.  Jurisdiction  of  the  motion. 

3535.  Judgments — where  attacked. 

3536.  Void  judgments. 

3537.  Judgments  set  aside  in  equity^. 

3538.  How  attacked  by  creditors,  etc. 


§3529.  When  a  judgment  has  been  rendered,  either  party  mo 
may  move  in  arrest  thereof,  or  to  set  it  aside  for  any  defect  not  judgr 
amendable   which   appears  on  the  face  of   the  record  or    plead-^^ 


mgs. 


§  3530.  A  motion  in  arrest  of  judgment  differs  from  a  motion    Naturoot 

«  .    ,    .        ,  .  ^"7"  """"^  .  ^  ^  motion,    in 

tor  a  new  trial  m  this :    The  former  mu&t  be  predicated  on  some  arrest    ot 

-,    p  1  .    ,  judgments 

detect  which  appears  on  the  face  of  the  record  or  pleadings, 
while  the  latter  must  be  predicated  on  some  extrinsic  matter  not 
so  appearing.  It  also  differs  from  a  motion  to  set  aside  a  judg- 
ment in  this :  The  motion,  in  arrest  of  judgment,  must  be  made 
during  the  term  at  which  such,  judgment  was  obtained,  while  a 
motion  to  set  it  aside  may  be  made  at  any  time  within  the  statute 
of  limitations. 

§3531.  If  the  pleadings  are  so  defective  that  no  legal  judg- ,  For  defects 
ment  can  be  rendered,  the  judgment  will  be  arrested  or  set  aside,  ings.^^^^'"'^' 

§  3532.  A  judgment  can  not  be  arrested  or  set  aside  for  any   Amendable 

Ji?*iiT  1-1  defects      "" 

detect   m   the  pleadings  or  record  that  is  aided  by  verdict,  or  g^«""d 
amendable  as  matter  of  form. 
43 


no 
of 


motion. 


674        PT.  3.— TIT.  4.— CHAP.  1.— Verdict  and  Judgment. 

Article  4. — How  attacked,  etc. 

§  3533.  Any   judgment,   or  verdict,  rule,  or   order  of    Court, 
Judgments  which  may  have  been  obtained,  or  entered  up,  shall  be  set  aside 

obtained   by  "^  ^     ^  ^  ^^ 

perjury  will  and  bo  of  no  eflfect,  if  it  shall  appear  that  the  same  was  entered 

be  set  aside.  '  ^  ^ 

up  in  consequence  of  corrupt  and  willful  perjury;  and  it  shall  be 
the  duty  of  the  Court  in  which  such  verdict,  judgment,  rule,  or 
order,  was  obtained  or  entered  up,  to  cause  the  same  to  be  set 
aside  upon  motion  and  notice  to  the  adverse  party ;  but  it  shall 
not  be  lawful  for  the  said  Court  to  do  so,  unless  the  person  charg- 
ed with  such  perjury  shall  have  been  thereof  duly  convicted,  and 
unless  it  shall  appear  to  the  said  Court  that  the  said  verdict,  judg- 
ment, rule,  or  order,  could  not  have  been  obtained  and  entered  up 
without  the  evidence  of  such  perjured  .person,  saving  always  to 
third  persons  innocent  of  such  perjury,  the  right  which  they  may 
lawfully  have  acquired  under  such  verdict,  judgment,  rule,  or  or- 
der, before  the  same  shall  have  been  actually  vacated  and  set 
aside. 

§  3534.  All  motions  to  arrest  or  set  aside  a  judgment  must  be 
Jurisdiction  made  to   the  Court  by  whom  such  ludgment  was  rendered,  and 

of   the   mo-  .  "^  ^  J       to  ' 

tion  to  ar-  of  which  motiou  the  opposite  party  must  have  reasonable  notice. 

§  3535.  The  judgment  of   a   Court  of   competent  jurisdiction 
Judgments  can  not  bc  collaterally  attacked  in  any  other  Court  for  irresrular- 

can  not  be  *^  ''  .  .     . 

collaterally  ity^  but  shall  bc  taken  and  held  as  a  valid  judgment  until  it  is  re- 
£   •    '^       versed  or  set  aside. 
■'K   ^-  /^         §  3536.  The  judgment  of  a  Court  having  no  jurisdiction  of  the 

Judgments  person  and  subiect  matter,  or  void  for  any  other  cause,  is  a  mere 

—when void.  ^  "  ,  . 

nullity,  and  may  be  so  held  in  any  Court  when  it  becomes  mate- 
rial to  the  interest  of  the  parties  to  consider  it. 

§  3537.  The  judgment  of  a  Court  of  competent  jurisdiction 
Equitymay  may  bc  sot  asidc  by  a  decree  in  chancery  for  fraud,  accident,  or 
judgments,    mistake,  or  the  acts  of  the  adverse  party  unmixed  with  the  negli- 
gence or  fault  of  the  complainant. 
c ,  ,         §  3538.  Creditors  or  bona  fide  purchasers  may  attack  a  judg- 
judgments  mcut  for  any  defect  appearing  on  the  face  of  the  record,  or  plead- 
tacked    by  insTS,  or  for  fraud,  or  collusion,  whenever  and  wherever  it  inter- 

creditors,etc.       °   '  -'  ^  ' 

feres  with  their  rights,  either  at  law  or  in  equity. 


PT.  8.--.TIT.  4.— CHAP.  1.— Verbict  and  Judgment. 


675 


Article  5. — Transfer  of  Judirnients. 


ARTICLE  V. 

OF  THE  TRANSFER  OF  JUDGMENTS. 


Section,, 

3539.  Judgments  transferable. 


Section. 

3540.  Transfer  by  attorney  of  record. 


§3539.  Any  plaintiff  or  transferee  may  bona  -fide,  and   for  a   Judgments 

./     i.  ./  k/         /  may  b  e 

valuable  consideration,  transfer  any  judgment  or  execution  to  a  transferred. 
third  person,  and  in  all  cases  the  transferee  of  any  judgment  or  ex-      ^  \   3  u 
ecution  shall  have  the  same  rights,  and  be  liable  to  the  same  equi-         / 
ties,  and  subject  to  the  sam^  defenses,  as  the  original  plaintiff  in 
judgment  was. 

§  3540.  The  transfer  of  a  judgment  or  execution  by  the  attorney  Transfer  by 
of  record  shall  be  good  to  pass  the  title  thereto  as  against  every  record, 
person,  except  the  plaintiff,  or  his  assignee,  without  notice.     The 
ratification  by  the  plaintiff  shall  estop  him  also  from  denying  the 
transfer.     The  receiving  of  the  money  shall  be  such  a  ratification. 


ARTICLE  YL 

OF    CONFESSION    OF    JUDGMENT. 


Section. 

3541.  Confession — when  allowed. 

3542.  Judge  may  confess  in  his  Court. 


Section. 

3543.  Right  of  confession  and  appeal. 


§  3541.  No  confession  of  judgment  shall  be  entered  up  but  in 
the  County  where  the  defendant  resided  at  the  commencement  of 
the  action,  except  expressly  provided  for  by  law,  nor  unless  the 
cause  has  been  regularly  sued  out  and  docketed  as  in  other  cases. 

§  3542.  A  Judge  of  the  Superior  Court,  or  Justice  of  the  Peace, 
may  confess  a  judgment  in  his  own  Court. 

§  3543.  Either  party  has  a  right  to  confess  a  judgment  without 
the  consent  of  his  adversary,  and  appeal  from  such  confession 
without  reserving  the  right  so  to  do. 


Confession 
of  judgment 
—where  and 
when  allow- 
ed. 


Judge  may 
confessjudg- 
ment  la  his 
own  Court. 
Eight  of con- 
fession, and 
appeal  there- 
from. 


676 


PT.  3.— TIT.  4, — CHAP.  1.— Verdict  and  Judgment. 


Article  7. — Dormant  Judgments  and  Revival  thereof, 


ARTICLE    VII. 

OP   DORMANT   JUDGMENTS   AND   REVIVAL   THEREOF. 


Section. 

3544.  Judgments  need  no  renewal. 

3545.  Revival  of  dormant  judgments. 

3546.  Debt  on  dormant  judgments, 

3547.  Scire  facias  to  revive. 


Section. 

3548.  From  whence  issued. 

3549.  Revival  against  non-residents.- 

3550.  Judgment — when  taken. 

3551.  Scire  facias  in  favor  of  assignee. 


■^Need  not 
be  reaewed. 


§  3544.  Judgments  need  not  be  renewed  on  the  Court  roll. 
§  3545.  When   any   judgment  obtained  in  any  Court   of   this 
Dormant    State  is  or  shall  become  dormant,  the  same  may  be  renewed  by 
may  be  re-    actiou  of  debt,  or  sctve  facias,  at  the  option  of  the  plaintiff. 

vived.  .  . 

§  3546.  If  the  action  of  debt  be  adopted,  it  must  be  brought  irw 
Debt   on  i]^q  Countv  whoro  the  defendant  resides,  at  the  commencement  of 

where  to  be  +'kp  affion 

brought.       ^'^^  action. 

§  3547.  Scire  facias  to  revive  a  judgment  is  not  an  original  ac- 
Scirefixcias  tion,  but  the  Continuation  of  the  suit  in  which"  the  judgment  was 
obtained. 

§  3548.  A  scire  facias  to  revive  a  dormant  judgment  in  the  Su- 
Scire  facias  perior  Courts  must  issue  from   and  be  returnable  to  the  Court  of 

to    r6viv6 — 

where  to  is-  tho  Countv  in  which  the  iudscment  was  obtained,  shall  be  directed 

sue  from,  etc  *^  .  a         - 

to  all  and  singular  the  Sheriffs  of  this  State,  and  signed  by  the 
Clerk  of  such  Court,  who  shall  make  out  copies  thereof,  which 
shall  be  served  by  the  Sheriff  of  the  County  in  which  the  party 
to  be  notified  may  reside,  twenty  days  before  the  sitting  of  the 
Court  to  which  it  is  made  returnable,  and  the  original  returned  to 
the  Clerk  of  the  Court  from  which  it  issued,  and  an  original  and 
copy  shall  issue  in  each  County  in  which  any  party  to  be  notified 
may  reside. 

§  3549.  If  the  defendant,  or  party  to  be  notified,  resides  out  of 
Revival  of  tliis  State,  a  dormant  iudp-ment  may  be  revived   asjainst  such  de- 

ludgments  ^  .  ... 

St^^'  fendant,  or  his  representative,  by  such  process  as  is  now  issued  in 
cases  where  the  defendant  resides  in  this  State ;  i^rovided,  the  de- 
fendant or  party  to  be  notified  be  served  with  scire  facias^  by  pub- 
lication in  some  public  gazette  of  this  State  once  a  month  for  four 
months  previous  to  the  term  of  the  Court  at  which  it  is  intended 
to  revive  said  judgment ;  which  service  shall  be  as  effectual  in  all 
cases  as  if  the  defendant  or  p^son  to  be  notified  had  been  per- 
sonally served. 

§  3550.  In  all  cases  of  scire  facias  to  revive  a  judgment,  when 


J  u  a  gm 

agait 
residents. 


PT.  3.— TIT.  5.— CHAP.  1.— Appeals.  B7T 


Article  1. — In  what  Cases  Allowed. 


service  has  been  perfected  as  herein  provided,  such  iud^ment  may    Judgment 

.         '         ,        .  .  pOf  revival- 

be  revived,  on  motion,  at  the  first  term,  without  the  intervention  oi  when  to  be 

.  .  ,  .    ,    taken. 

a  jury,  unless  the  defendant  shall  put  in  an  issuable  plea  ;  in  which 
case  the  defendant  shall  be  entitled  to  a  trial  by  a  jury,  as  in 
other  cases. 

§  3551.  The  seire  facias,  when  the  iudgment  has  been  trans-  sdm/aeia 

•^  .^--  -— -_       -^  '  .     .  ,       .  in    favor   of 

ferred,  shall  issue  in  the  name  of  the  original  plaintiff  for  the  use  assignee. 
<^f  the  transferee. 


TITLE    Y. 

-OF      APPEALS 


CHAPTER   I 

OF  appeals- 


Article  1. — In  what  Cases  Allowed. 
Article  2. —  Whe7i,  hy  wliom^  and  how  Entered^ 
Article  3. — Effect  of  Appeals. 
Article  4. — How  and  luhen  Tried. 


ARTICLE  L 

IN     WHAT     CASES     ALLOWED. 


Section. 

3552.  When  either  party  may  appeaL 
*  3553.  Appeal  from  Court  of  Ordinary. 


Section. 

3554.  No  appeal  on  collateral  issues^ 

3555.  How  collateral  issues  tried.  ...    . '--  '  •     ^j 

0    /  '^^^ 


§  3552.  In  all  civil  eases  (except  as  hereinafter  provided)  when  Either  party 

■y.        .  IT-  rA  '^^y  appeal. 

a  verdict  is  rendered  m  the  County  Court  at  its  semi-annual  ses-  ^^-. 
sion,  or  by  a  Petit  Jury  in  the  Superior  Court,  and  on  all  confes--^-  -■ 
sions  of  judgments  in   either  of  said  Courts,  either  party  may,  as 
a  matter  of  right,  enter  an  appeal. 

§  3553.  An  appeal  lies  to  the  Superior  Court  from  any  decision 


678 


PT.  i.— TIT.  5.--CHAP.  1.— Appeals. 


Article  2. — Wlien,  by  whom,  and  how  Entered. 


-^A- 


An  appeal  made  bv  the   Court  of  Ordinary,  except  an  order   appomtma;  a 

lies  from  de-  "^  ,      .     .  ^  .\    ,       ^  ,  ^^  ^     , 

cision of  Or- temporary  administrator;  \_proviaea,  that  whenever  an  appeal 
shall  be  taken  from  a  decision  of  the  Ordinary,  made  under  Sec- 
tion 24T2  of  this  Code,  such  appeal  shall  not  operate  as  a  super- 
sedeas, unless  the  executor  or  administrator  shall  first  give  a  good 
and  sufficient  bond,  payable  to  the  Ordinary  and  his  successors  in 
office,  in  such  sum  as  the  Ordinary  may  require  (not  exceeding  the 
amount  of  the  estate  in  the  hands  of  the  administrator),  condi- 
tioned to  pay  all  costs  and  damages  that  may  accrue  to  the  estate 
pending  the  appeal.]  (a) 

§  3554.  'No  appeal  shall  be  allowed  in  collateral  issues  ordered 
No  appeal  by  the  Court ;  but  the   Superior   Court  may,  in  its   discretion, 

shall   be  al-  .    ,  ,  in  i  i  -s 

lowed     on  grant  a  new  trial  upon  such  terms  as  snail  appear  reasonable  ana 


J  9^ 


sues.  just ;  and  when  such  collateral  issue  is  tried  in  the  County  Court 

at  its  semi-annual  session,  if  the  Judge  of  said  Court  is  dissatis- 
fied  with  the  verdict,  he  may  permit  an  appeal  to  the  Superior 
Court  at  his  discretion. 

§  3555.  All  collateral  issues  in  the  Superior  Court,  unless  oth- 
How  sitcii  erwise  directed  by  law,  shall  be  tried  by  a  special  jury.  .  No  ap- 
be  tried.       peal  shall  be  allowed  on  a  verdict  rendered  on  a  dilatory  plea  filed., 
unless  by  express  leave  of  the  Court,  granted  on  motion^ 


ARTICLE    II. 


WHEN,     BY     WHOM,     AND     HOW     ENTERED. 


Section. 

3556.  When  appeal  shall  be  entered. 

3557.  Sundays  and  holidays  not  counted. 

3558.  By  whom  appeal  may  be  entered. 

3559.  Cost  must  be  paid  and  bond  given. 

3560.  Attorney  may  sign  for  principal. 

3561.  By  joint  contractors,  etc. 

3562.  One  or  more  may  appeal. 

3563.  Who  and  how  liable  on  appeal. 


Section. 

3564.  Seeurity  paying  debt  has  recom-se. 

3565.  Executors,  etc.,  need  not  pay  costs. 

3566.  InsolA' ent  may  appeal  by  afiBdarit, 

3567.  Appeals  from  Ordinarj-— costs  paid. 

3568.  OrdinaiT  to  send  up  proceedings. 

3569.  Application  made  to  Clerks. 

3570.  Appeals  from  Inferior  Court. 


§3556.  Appeals  to  the  Superior  Court  must  be  entered  jwithin 
Moat  be  en-  four  davs  after  the  adiournment  of  the  Court  in  which  the  verdict 

tered  witala  . 

four  days,     or  judgment  was  rendered. 

§  3557.  Sundays  and  holidays  shall  in  no  case  be  included  in 
Sundays  the  computatiou  of  the  time  within  which  an  appeal  shall  be  en- 

etc.  excepted  *■  ^  ^ 

tered. 

(a)  Acts  of  186.8,  p.  24. 


PT.  8.— TIT.  5.— CHAP.  1.— Appeals. 


679 


Article  2. — Wlien,  by  whom,  and  how  Entered. 


§  3558.  An  appeal  may  be  entered  by  the  plaintiff  or  defendant      May  be 

11.  P  1  -r.  1         1       1  entered     by 

in  person,  or  by  his  attorney  at  law  or  in  fact,  and  if  by  the  latter,  either  party 
he  must  be  authorized  in  writing,  which  authority  shall  be  filed  in  ney. 
the  Court  in  which  the  case  is  pending  at  the  time  such  appeal  is 
entered  ;  but  if  it  is  shown  to  the  Court  that  such  authority  exists, 
such  Court  may  allow  a  reasonable  time  to  file  the  same,  and  such 
appeal  shall  be  dismissed  and  execution  issue  without  further  or- 
der ;  if  such  authority  is  not  filed  within  the  time  allowed,  a  rati- 
fication of  an  appeal,  unauthorized,  if  made  in  writing,  and  filed 
in  the  Clerk's  office  before  the  next  term  of  the  Court,  shall  ren- 
der the  appeal  valid. 

§  3559.  The  appellant  (except  as  hereinafter  provided)  shall,  j^^ff ^®"^°^ 
previous  to  obtaining  such  appeal,  pay  all  costs  which  may  have  ^°^** 
accrued  in  the  case  up  to  the  time  of  entering  such  appeal,  and 
give  bond  and  security  for  the  eventual  condemnation  money. 

§  3560.  If  such  appeal  shall  be  entered  by  the  attorney  at  law 
or  in  fact,  he  may  sign  the  name  of  the  principal  to  said  appeal  P^i^cipai 
bond,  and  the  principal  shall  be  bound  thereby  as  though  he  had 
signed  it  himself. 

§8561.  When  several  partners  or  ioint  contractors  sue  or  are  ^°.7  P^/^"^^ 

'^  r  t»  or  joint  con- 


pay 


Attorney 
may  sign  for 


^. 


sued  as  such,  any  one  of  said  partners  or  joint  contractors  may  f^^^^^  ^^^ 
enter  an  appeal  in  the  name  of  such  firm  or  joint  contractors,  and 
sign  the  name  of  such  firm  or  joint  contractors  to  the  bond  re- 
quired by  law,  which  shall  be  binding  on  the  firm  and  such  joint 
contractors,  as  though  they  had  signed  it  themselves  ;  and  in  case  c^^rporations 
of  corporations,  the  appeal  may  be  entered  by  the  president  or  ™y president 
any  agent  thereof  managing  the  case,  or  by  the  attorney  of  re-  ^*^' 
cord. 

§3562.  When  there  shall  be  more  than  one  party  plaintiff  or  oneormore 

^         »/      J.  may  appeal. 

defendant,  and  one  or  more  of  said  parties  plaintiff  or  defendant, 
desires  to  appeal,  and  the  others  refuse  or  fail  to  appeal,  such  party 
plaintiff  or  defendant  desiring  to  appeal,  may  enter  an  appeal 
under  such  rules  and  regulations  as  are  provided  in  this  Code. 

§3563.  Upon  the  appeal  of  either  party  plaintiff  or  defendant,    Aiishaiibe 
as  provided  in  the  previous   Section,  the  whole  record  shall  be  fin"?   inul 
taken  up  and  all  shall  be  bound  by  the  final  judgment,  but  in  case 
damages  shall  be  awarded  upon  such  appeal,  such  damages  shall 
only  be  recovered  against  the  party  appealing  and  his  security, 
and  not  against  the  party  failing  or  refusing  to  appeal. 

§3564.  Such  security  shall  be  bound  for  the  judgment  on  the 

3^- 1    .4l^J^-- 


% 


"^ 


680  PT.  3.— TIT.  5,— CHAP.  1.— Appeals. 

Article  2. — When,  by  whom,  and  how  Entered. 


Security  appeal,  and  in  case  any  such  security  shall  be  compelled  to  pay 
against   the  off  the  debt  OF  damages  for  which  judgment  may  be  entered  in 
the  cause,  he  shall  have  recourse  only  against  the  party  for  whom 
he  became  security. 

§  3565.  Executors,   administrators,   and    other   trustees,   when 
Executors,  sucd  as  such,  or  defending  solely  the  title  of  the  estate,  may  enter 

etc.  may  ap-  i        •   i  •  i        •    •  ■»  i  i 

peal  without  an  appeal  without  paying  costs  and  giving  bond  and  security  as 

etc.  '  hereinbefore  required ;    but  if   a  judgment   should   be   obtained 

against  such  executor,  administrator,  or  other  trustee,  and  not  the 

assets  of  the  estate,  he  must  pay   costs  and  give  security  as  in 

other  cases. 

§  3566.  When  any  party  plaintiff  or  defendant,  in  any  suit  at 
When  party  lavf,  or  in  cquity,  shall  be  unable  to  pay  costs  and  give  security 
pay  cost,  etc.  as  hereinbefore  required,  if  such  party  will  make  and  file  an  affi- 
davit in  writing  that  he  is  advised  and  believes  that  he  has  good 
cause  of  appeal,  and  that,  owing  to  his  poverty,  he  is  unable  to  pay 
the  costs  and  give  the  security  required  by  law  in  cases  of  appeal, 
such  party  shall  be  permitted  to  enter  an  appeal  without  the  pay- 
ment of  costs  or  giving  security  as  hereinbefore  required. 

§  3567.  In  all  cases  in  the  Court  of  Ordinary,  the  party  desir- 
FromOrdi-  i^g  to  appeal,  his  attorney  at  law,  or  in  fact,  shall  pay  all  costs 
must  ^'^be  that  may  have  accrued,  and   give  bond  and  security  to  the  Ordi- 
^^^  '  ^  °'      nary  for  such  further  costs  as  may  accrue  by  reason  of  such  ap- 
peal ;  this  being  done,  the  appeal  shall  be  entered. 

§  3568.  When  an  appeal  has  been  entered  in  the  Court  of  Or- 

Must  be  dinary  it  shall  be  the  duty  of  such  Ordinary  to  transmit  the  same 

ten™  s be-  to  the  Clcrk  of  the  Superior  Court  of  the  County  in  which  such 

proceedings  may  have  been  had,  at  least  ten  days  before  the  next 

Superior  Court  of  said  County,  to  be  there  tried  as  other  appeals. 

§  3569.  All  applications  to  enter  an  appeal  in  the  Superior  or 

Appiica-  County  Courts  shall  be  made  to  the  Clerks  respectively,  except  in 

made  to  the  Collateral  issues  tried  in  the  County  Court  by  order  of  the  Court, 

in  which  case  the  application  must  be  made  to  said  Court. 

§  3570.  When  an  appeal  shall  be  entered  from  a  verdict  in  the 

How  trans-  Couuty  Court,  it  shall  be  the  duty  of  the  Clerk  thereof  to  trans- 

ciunty  ^^S  mit  the  same  to  the  Clerk  of  the  Superior  Court  of  the  County  in 

couft.^'       which  the  verdict  was  obtained,  by  whom  it  shall  be  entered  on 

the  appeal  docket  and  there  tried  as  other  appeals. 


PT.  3.— TIT.  6.— CHAP.  1.— Appeals. 


681 


Article  3. — Effect  of  Appeal. 


ARTICLE  III. 

EFFECT     OF     APPEAL. 


Section. 

3571.  Investigation  on  appeal. 

3572.  Appeal  suspends  judgment. 


Section. 

3573.  Appeals— how  withdrawn. 


§  3571.  An  appeal  to  the  Superior  Court  is  a  de  novo  investiga-     Appealers 
tion=     It  brinp-s  up  the  whole  record  irom  the  Court  below,  and  tii-ation    of 

.      .    T  ,  '11  r»  whole  case. 

all  competent  evidence  is  admissible  on  the  trial  thereof,  whether 
adduced  on  a  former  trial  or  not ;  either  party  is  entitled  to  be 
heard  on  the  whole  merits  of  the  case. 

§  3572.  An  appeal  suspends,  but  does  not  vacate  judgment,  and     Effects  of 
if  dismissed   or  withdrawn,  the  rights  of  all  the  parties  are  the 
same  as  if  no  appeal  had  been  entered. 

§3573.  No  person  shall  be  allowed  to  withdraw  an  appeal  after    can  not  be 

•^  r«      1  1  withdrawD. 

it  shall  be  entered  but  by  the  consent  of  the  adverse  party. 


Section. 

3574.  Trial  of  appeals. 


ARTICLE  IV. 

HOW    AND    WHEN    TRIED, 

1  Section. 

1       3575,  Frivolous  appeals. 


§  3574.  All  appeals  to  the  Superior  Courts  shall  be  tried  by  a 
special  jury  at  the  first  term  after  the  appeal  has  been  entered, 
unless  good  cause  be  shown  for  continuance. 

§  3575.  If  upon  the  trial  of  any  appeal  it  shall  appear  to  the 
jury  that  the  appeal  was  frivolous  and  intended  for  delay  only, 
they  shall  assess  damages  against  the  appellant  and  his  security, 
(if  any)  in  favor  of  the  respondent,  for  such  delay,  not  exceeding 
twenty-five  per  cent,  on  the  principal  sum  which  they  shall  find 
due,  which  damages  shall  be  specially  noted  in  their  verdict. 


Tried  by 
special  jury. 


Damages  for 
frivolous  ap- 
peals. 


682 


PT.  3.— TIT.  6.— CHAP.  1.— Exbcutioxs, 


Article  1. — When  and  how  Issued  and  Returned. 


TITLE     VL 

OF      EXECUTIONS. 


Chapter  1. — -Of  Different  Kinds  of  Executions. 
Chapter  2. — Of  the  Stay  of  Executions. 
Chapter  3. — Of  the  Illegality  of  Executions. 
Chapter  4. — Of  Forthcoming  Bonds. 


CHAPTER    I. 

OF    DIFFERENT    K  I  K  D  S    OF    EXECUTIONS. 


Article  1. —  When  and  how  Issued  and  Returned. 

Article  2. — Of  the  Levy  and  Proceedings  thereon. 

Article  3. —  Of  Sales  under  Execution — ivhen  and  how  made. 

Article  4. — -Of  the  Satisfaction  of  Executions. 


ARTICLE   I. 


when  and  how  issued  and  returned. 


Section. 

3576.  How  issued  and  on  what  levied. 

3577.  When  Sheriff  is  a  party. 

3578.  Affidavit  to  obtain  ca.  sa. 

3579.  When  ji.fa.  or  ea.  sa.  may  issue. 

3580.  Returnable  to  next  term. 


Section. 

3581.  Must  follow  the  judgment. 

3582.  Ejectment — writ  of  possession. 

3583.  Not  to  issue  against  third  persons. 

3584.  Judge  may  frame  executions. 


^  (J  (      -  §  3576.  Executions  (except  as  hereinafter    provided)  shall   be 

U  '^i  "Executions  issucd  bj  the  Clerks  of  the  several  Courts  in  which  judgment 

sued  by  the  shall  bc  obtained,  and  bear  test  in  the  name  of  one  of  the  Judores 

Clerks,  bear  .     ,  '  ° 

test  in  the  or  presidinor  Justices  of  such  Court,  and  shall  bear  date  from  the 

name         o  f         ■"■  ^  ' 

Justice  and  *^™^®  °^  their  issuiug,  and  (except  as  hereinafter  provided)  shall 
to  \h^lt^x-  ^®  (directed  "  to   all  and  singular  the  Sheriffs  of  this  State  and 


m&. 


their  lawful  deputies,"  and  may  be  levied  on  all  the  estate,  both 


PT.  3.— TIT.  6.— CHAP.  1.— Executions, 


683 


Article  1. — When  and  how  Issued  and  Returned. 


real  and  personal,  of  the  defendant,  subject  to  levy  and  sale,  or    onwhatto 

they  may  issue  against  the  body  of  such  defendant,  at  the  option 

of  the  plaintiff  or  his  attorney. 

S  3577.    All  executions,  orders,  decrees,  attachments  for  con-  wken  sher- 
iff is  a  party 

tempt,  and  final  process,  to  be  issued  by  the  Clerks  of  the  Supe- — Jowdirec- 
rior  Courts  in  favor  of  or  against  any  Sheriff  of  this  State,  shall 
be  directed  to  the  Coroner  of  the  County  in  which  said  Sheriff 
may  reside,  and  to  all  and  singular  the  Sheriffs  of  the  State,  ex- 
cept the  Sheriff  of  the  County  in  which  the  interested  Sheriff  may 
reside,  which  may  be  levied,  served,  and  returned,  by  the  Coro-       May  be 

^  •^  .  served  by 

ner,  or  other  Sheriff,  or  a  Constable  of  the  County,  at  the  option  constable. 
of  the  plaintiff  or  the  party  seeking  the  remedy. 

§  3578.  When  the  plaintiff,  or  his  attorney,  desires  an  execu-   Affidavit  to 
tion  aa;ainst  the  body  of  a  defendant,  the  plaintiff  shall  file  with  e  cution 
the  Clerk  of  such  Court,  or  with  the  Justice  of  the  Peace,  as  the  body. 
case  may  be,  an  affidavit  stating  that  he  has  just  cause  to  belieye 
that  the  defendant  has   money  or  property  of  his  own,  within  his 
power  or  control,  which  can  not  be  reached  by  fi,  fa.  (other  than 
that  allowed  by  law),  or  that  the  defendant  has  property  beyond 
the   jurisdiction  of  the  Court   in  which   the  judgment  was  ob- 
tained, or  that  the  defendant  is  able,  out  of  his  own  property,  to 
pay  the  plaintiff's  debt,  and  willfully  refuses  so  to  do;    and  in 
every  case  the  affidavit  must  state  of  \vhat  the  property  consists, 
and  particularly  describe  the  same. 

§  3579.  A  fi.  fa  or  ca.  sa.  may  issue  at  any  time  after  a  ver-    ^i  fa.  or 

i«T  11  1  .p...  ea.  sa.  may 

diet  IS  rendered  and  ludg-ment  entered  thereon  ;  but  if  it  is  issued  issue  at  any 

^       ^  ,  '  time,       but 

before  the  expiration  of  the  time  allowed  for  entering;  an  appeal, ^i^ib^  sus- 

■••  °  rr        7  pended     by 

the  same  will   be    suspended  on  the  entering  of    an  appeal   by  appeal. 
either  party. 

§  3580.  A-11  executions,   except  as  otherwise  provided  by  this  EeturnaWe 
Code,  shall  be  made  returnable  to  the  next  term  of  the  Court 
from  which  they  issued  respectively.  J%  X/  / 

§  3581.  All  executions  must  follow  the   iudgment  from  which     Must  m- 

.  lowthejudg- 

they  issued,  and  describe  the  parties  thereto  as  described  in  such  ^aent. 
judgment. 

§  3582.  When  a  verdict  in  ejectment  shall  be  rendered  in  favor  Uponjndg- 
of  the  plaintiff,   and  a  iudgment  entered  thereon,   the  Clerk  of  ejectment 

1     AN  1     n     .  o  cases,      MTlt 

such  Court  shall  issue  a  writ  of  possession,  in  which  the  Clerk  ^^    ppsses- 

•■■  '  sion      issues 

shall  incorporate  a  clause  directing  the  Sheriff  to  collect,  by  levy  J^^*^  %tiTect 
and  sale  of  the  defendant's  property,  all  such  sums  of  money  as,  SslnacoSL' 


684 


PT.  8.— TIT.  6.— CHAP.  1.— Executions. 


Article  2. — Ca.  Sa. — how  Executed,  and  Proceedings  thereon. 

by  the  finding  of  the  jury,  shall  have    been    awarded   to    such 
plaintiff  in  ejectment  as  mesne  profits  and  costs. 

§  3583.   The  writ  of  possession  shall  not  issue  against  third  per- 
writs  sons  not  known  in  the  suit  on  which  such  writ  of  possession  is 

of      posses-  ^  _  ^ 

sion  not  to  founded,  nor  put  in  possession  by,  nor  claiminD-  under  nor  by  yir- 

issue  against  -<  i  x  ,/  7  o  j 

third     per-  t^e  qP  ^j^y  conveyanco  from  the  defendant  in  such  suit. 

sons.  '  t/  »/ 

§  3584.  The  Judge  of  any  Superior  Court  may  frame  and  cause 

The  Judge  to  be  issuod  by  the   Clerk  any  writ  of  execution  to  carry  into 

may     franje  *^      ^  *'  ^  '' 

executions,    effoct  any  lawful  judgment  or  decree  rendered  in  his  Court. 


ARTICLE   II. 

OF   CA.   SA.-HOW   EXECUTED,  AND   PROCEEDINGS   THEREON. 


Section. 

3585.  Ca.  sa.  returned,  Ji.  fa.  may  issue. 
*  3586.  Defendant  maj'  be  released — how. 
35S7.  Discharge  of  person  no  satisfaction. 
3588.  "When  defendant  escapes. 


Section. 

3589.  Place  of  arrest  and  imprisonment, 

3590.  Damages  for  escapes. 

3591.  County  liable — when. 


§  3585.  When  a  ca.  sa.  shall  haye  issued,  and  the  same  shall 
ca.sa.may  uot  liavo  been  executed,  an  execution  may  issue  against  the  pro- 
and  Ji.  fa.  pcrty  of  the  defendant  on  the  return  of  said  ca.  sa, 

§  3586.  When  a  ca.  sa.  shall  have  been  served,  the  party  on 
whendefen-  wliom  the  samo  shall  have  been  served,  shall  be  released,  provided 

/In  lit-        ^Q  *TV— 

rested,     he  he  shall  dclivcr  to  the  ofiicer  serving  the  same,  property  which 
leased  on  de-  will,  in  the  Opinion  of  such  officer,  be  sufficient  to  satisfy  the  debt 

liyei'lnsr  pro-  .  ■, 

perty  to  the  aud  all  costs,  and  give  bond  and  sufficient  security  to  the  officer 

ofBcer   suffl-  .  .  . 

cient  to  pay  making  the  arrest  that  the  property  so  delivered  is  bona  fide  the 

tne  debt  and  ^  f      f        J  ... 

costs.  property  of  the  defendant,  and  subject  to  no  prior  lien  to  the  dis- 

Officer  to  charge  of  the  said  debt  and  costs  ;  in  which  case  the  officer  shall 

take       out  .  •  i  i        i  •  *       •  i 

^.  fa.  and  rotum  the  ca.  sa.  so  issued,  and  take  out  an  execution  against  the 

sell  the  pro- 
perty,       property  of  such  defendant,  and  advertise  and   sell   the  property 

so  delivered  up  to  satisfy  such  execution  and  all  costs. 

§  3587.  In  all  cases  where  a  debtor  may  have  been  arrested  un- 

Arrest  dcr  a  ca.  sa.  and  is  afterwards  discharged  from  such  arrest,  either 

charge  with-  by  tho  authority  of  the  plaintiff,   or  otherwise,  without  the  debt 

out  payment     ^  ^  »i  \.  > 

is  not  a  sat-  beina;  paid,  such  arrest  and  discharore  shall  not  operate  as  a  satis- 

iofaction     of  o  ^         '  o  ^ 

the  debt      faction  of  the  debt,  but  the  debtor's  property  shall  still  be  liable 

to  the  judgment  as  though  no  arrest  had  been  made ;  provided, 

Officer  shall  the  officor  making  such  arrest  shall  indorse  on  such  ca.  sa.  that 

make    entry     ^  -,    r.       -i  t-i  t     n  '   i  •  ^ 

w.c«. 6<j.     the  deiendant  was   discharged  from  arrest  without  paying  the 


PT.  S.— TIT.  6.— CHAP.  1.— Executions. 


685 


Article  2.— Ca.  8a. — how  Executed,  and  Proceedings  thereon. 

amount  due  on  sucli  ca.  sa.  The  plaintiff  can  not  release  a  de- 
fendant arrested  under  ca.  sa.  so  as  to  proceed  against  his  prop- 
erty without  the  consent  of  such  defendant. 

§  3588.  Whenever  any  officer  shall  arrest  a  defendant  on  a  ca.  if  defendant 

'^  escapes   ana 

sa.  and  such  defendant  shall  make  his  escape,  and  said  officer  shall  "ffl^'-^^  p^^^® 

jl     '  the     money, 

be  compelled  to  pay  the  amount  due  on  said  ca.  sa.  by  reason  of  J^^^^j/j'^^^^l 
said  escape,  such  officer  shall  have  the  control  of  the  fieri  facias  *^®  •^'  •^^■" 
issued,  or  to  be  issued  oh  the  judgment  upon  which  said  ca.  sa.  is 
founded,  for  the  purpose  of  reimbursing  himself  out  of  the  prop- 
erty of  the  defendant,  and  the  said  arresting  officer  shall  control 
8Siid  fi.eri  facias  in  as  full  and  ample  a  manner  as  the  plaintiff  in 
S3iid  fieri  facias  might  or  could  have  done  had  said  ca.  sa.  never 
issued,  or  had  the  money  due  on  said  judgment  not  have  been  paid     By  oFder 
by  such  officer ;  provided,  that  the  Court  by  whose  order  or  judg- 
ment such  officer  shall  be  required  to  pay  the  amount  due  shall 
pass  an  order  giving  such  control. 

§  3589.  Whenever   any  decree,    order,   ca.   sa.,  attachment  for   officermay 

t/  ^  ^  ^  arrest  wher- 

contempt,  or  other  final  process,  directed  as  required  by  this  Code^  |^j'^  *^an  "b^ 
shall  be  placed  in  the  hands  of  any  Sheriff,  or  other  arresting  of-  ^'^^°^- 
ficer,  and  under  and  by  virtue  of  said  process  it  shall  become  the 
duty,  under  the  laws  of  this  State,  for  said  Sheriff,  or  other  officer, 
to  imprison   any  defendant,  or  other  delinquent,  it  shall  be  the 
duty  of  such  Sheriff,  or  other   officer,  to   arrest  such  delinquent 
wherever  found,  and  it  shall  be  his  duty  to  imprison  him  in  the 
County  where  such  arrest  was  made,  or  in  the  County  where  the 
arresting  oiiicer  may  reside,  at  the  option  oi  the  party  requiring  on  in  that 
the  services  of  such  Sheriff,  or  other  officer.     If  there  is  no  jail,  the  county 

■,..,..  fY>.  ,  ,..,  of  the  arrest- 

er the  jail  is  insufficient,  the  person   arrested  may  be  imprisoned  ing officer. 

in  the  jail  of  an  adjoining  County. 

§3590.  In  all  cases  of  escape  of  persons  arrested  for  debt,  by    in  cases  of 

,  •'••'■  .        escape,     the 

a  Sheriff,  or  other  officer,  the  measure  of  damages  for  the  plain-  measure   of 

^  °  -'■damages 

tiff  against  the  officer  shall  be  the  actual  loss  sustained  by  the  ^gf^'^s^  H'® 

^  •'  officer  IS  the 

plaintiff,  unless  it  shall  appear  that  the  officer  voluntarily  permit-  ^ctuaiioss. 
ted  the   escape,  or   connived   at  it,  or  was  guilty  of  great  negli- 
gence, in  which   case  he  shall  pay  the  full  amount  due  to  the 
plaintiff. 

§  3591.  If  the  escape  was  effected  by  reason  of  the  inefficiency    Escape  by 

reason  of  in- 

of  the  iail,   the  creditor  may  recover  of  the  County  the  same  sufficiencyof 

„  "^  *^  jail— County 

amount  which  he  could  have  recovered  of  the  Sheriff  for  an  in-  liable. 
voluntary  escape. 


686 


PT.  3."-TIT.  6.— CHAP.  l.--ExEcuTioNg. 


Article  3.— Fi.  Fa.— how  Levied^  and  Proceedings  thereon. 


ARTICLE    III. 

o:e^  "FI.  rA.-How  Levied,  and  proceedings  thereon. 


3592.  What  levy  must  contain. 

3593.  On  what  to  be  levied  first. 

3594.  (Growing  crops  exempt — exceptions 


Sbction. 

3595.  Notice  of  levy  on  land. 

3596.  Land— where  sold,  etc. 

3597.  Constable  levying  on  land,  etc. 


•^ 


-V 


■%    Srst 


;^^- 


p\v..  -: 


X 


§  8592.  The  officer  making  a  levy  shall  always  enter  the  same 
Levy  must  on  the  process  by  virtue  of  which  such  levy  is  made,  and  in  such 

'describe  pro-  ^  .  ,  .  . 

pcrty,etc.  entry  shall  plainly  describe  the  property  levied  on,  and  the  amount 
of  the  interest  of  defendant  therein. 

§  3593.  When  a  defendant  in  fi.  fa.  shall  point  out  any  prop» 
Property  ertv  on  which  to  levy  the  execution,  such  property  being;  in  the 

in  possession         *^  ^  '^  '  x       .x         ./^  o 

«f  ^^efendant  hands  or  possession  of  a  person  not  a  party  to  the  judgment  from 
which  such  execution  issued,  the  Sheriff,  or  other  officer,  shall  not 
levy  thereon,  but  shall  proceed  to  levy  on  such  property  as  may 
be  found  in  the  hands  and  possession  of  the  defendant,  who  shall 

may^  ^  point  noverthcless  be  at  liberty  to  point  out  what  part  of  his  property 

iie  may  think  proper,  which  the  Sheriff,  or  other  officer,  shall  be 

bound  to  take  and  sell  first,  if  the  same  is,  in  the  opinion  of  such 

levying  officer,  sufficient  to  satisfy  such  judgment  and  ccrsts. 

§  3594.  No  Sheriff,  or  other  officer,  shall  levy  on  any  growing 

Growing  crop  of  corn,  wheat,  oats,  rye,  rice,  cotton,  potatoes,  or  any  other 

crop  not   to  .  I'lii  i  o  pi- 

be  levied  on  crop  usually  raiscd  or  cultivated  by  the  planters  or  farmers  of  this 


until  matur- 
ed- State,  nor  sell  the  same  until  such  crop  shall  be  matured  and  fit 

to  be  gathered ;  'provided.^  this  provision   shall  not 


prevent  any 

Excoti  n   l^^y^^g  officer  from  levying  on  and  selling  crops  as  heretofore  prac- 
ticed in  cases  where  the  debtor  absconds   or  removes  from  the 
County  or  State,  or  from  selling  growing  crops  with  the  land. 
§  3595.  The  officer  levying  on  land  under  an  execution  shall, 
Levying  en  within  five  days  thereafter,  leave  a  written  notice  of  such  levy  with 

land       must  .  . 

fn^flve"d'^^^&  the  tenant  in  possession  of  the  land,  if  any,  or  with  the  defend- 
ant, if  in  the  County,  or  transmit  such  notice  by  mail  to  the  de- 
fendant within  the  time  aforesaid. 

§  8596.  A  sheriff,  or   other  levying  officer,  shall  not  sell  land 
Officer  uot  out  of  the  County  in  which  he  is   Sheriff,  or  such  officer,  except 

to  sell  land  "^  .     '  '  * 

out  of  his  when  the  defendant  in  execution  shall  own  a  tract  or  tracts  of 

County. 

land  divided  by  the  line  of  the  County  of  his  residence,  in  which 
case  it  may  be  sold  in  the  County  of  his  residence  ;  or  if  such 
tract  of  land  is  in  other  than  that  of  the  defendant's  residence,  it 


PT.  3.^ 


.TIT.  6.— CHAP.  1.— Executions. 


687 


Article  4.— Sales  under  Execution — when  and  where  made. 


may  be  levied  on  and  sold  in  either  Cotinty.      In  all  cases  of     Kotiee  of 
levying  on  land,  written  notice  oi  such  levy  must  given  to  the  given. 
tenant  in  possession,  and  to  the  defendant,  if  not  in  possession. 

§  359T.  ISTo  Constable  (except  as  provided  by  this  Code)  shall  gg^te'^hafi 
be  authorized  to  levy  on  any  real  estate,  unless  there  is  no   per-  n«t^e levied 
sonal  estate  to  be  found  sufficient  to  satisfy  the  debt,  or  such  real 
estate,  being  in  the  possession  of  the  defendant,  was  pointed  out 
by  such  defendant,  which  he  has  a  right  to  do,  and  then  such  Con- 
stable is  authorized  to  levy  on  such  real  estate,  if  to  be  found  in 
his  County,  and  deliver  over  the  execution  to  the  Sheriff  of  the  6^6^0110™ 
County,  with  a  return  of  the  property  levied  upon,  who  shall  pro-  ^^^^'^^' 
ceed  to  advertise  and  sell  the  same,  as  in  case  of  levies  made  by 
himself. 


ARTICLE    IV. 

OF  SALES  "tJNDElIl  EXEGUTlON-WHEN   AND   WHERE   MADE, 


Section.  A 

3598.  Place,  time,  and  manner  of  sales. 

3599.  Notice  of  Sheriff  sales. 

3600.  Change  of  advertising. 

3601.  Purchaser  to  be  put  in  possession. 

,     ^02.  May  be  obtained  by  order  of  Court. 


Section. 

3603.  Widow  claiming  dower,  and  lessee* 

3604.  Execution  for  purchase  money. 

3605.  Purchaser  failing  to  comply, 

3606.  Action  against  purchaser. 


§3598.  No  sales  shall  be  made,  by  the  Sheriffs  or  Coroners,  of  Piace^time^ 

,  ,  ^  and  manner 

property  taken  under  execution  but  at  the  Court   House  of  the  of  sales. 
County  where  such  levy  was  made,  on  the  first  Tuesday  in  each 
month,  between  the  hours  of  10  a.  m.  and  4  p.  M.,  and  at  public 
outcry. 

§  3599.  It  shall  be  the  duty  of  the  Sheriffs  and  Coroners  [to  Fourweeiis' 

noticG         of 

publish  weekly,  for  four  weeks,]  (a)  in  some  newspaper  published  in  s  h  e  r  i  ff^s 

,        -^.  ^  Series     to     Dv 

their  Counties  respectively— and  if  there  be  no  such  pap  er  ublishedg^^en. 

in  the  County,  then  in  the  nearest  newspaper  having  the  largest  or 

a  general  circulation  in  such  County — notice  of  all  such  sales  of  land 

and  other  property  executed  by  him,  in  which  advertisement  he    -  • 

shall  give  a  full  and  complete  description  of  the  property  to  be 

sold,  making  known  the  name  of  the  plaintiff  and  defendant,  and  what  cattle 

,  .  may  be  sold 

the  person  who  may  be  in  the  possession  of  such  property,  except  ^^^\    }^^ 

^  «'  J^  ir,/7r     days^  notice, 

horses,  hogs,  and  cattle,  which  may  be  sold  at  any  time  by  the 
consent  of  the  defendant ;  in  which  case,  it  shall  be  the  duty  of 


(3 


(a)  Acts  of  1866,  p.  163. 


688  PT.  3.— TIT.  6.— CHAP.  I.^Executio^^s. 


Article  4. — Sales  under  Execution — when  and  where  made. 

such  officer  to  give  the  plaintiff  ten  days'  notice  thereof,  and  also 

to  advertise  the  same  at  three  or  more  puhlic  places  in  the  County 

where  such  property  may  be,  at  least  ten  days  before  the  sale. 

§  3600.  No  Sheriff,  Coroner,  or  other   officer,  shall   change  the 

Notice  of  advertising  connected  with  his  office  from  one  paper  to  another, 

cTianse  must       .,  _  ..  .  p,..  .  ,  ., 

be  given,  without  hrst  givmg  notice  01  ms  intention  to  do  so  m  the  paper 
in  which  his  advertisements  may  have  been  published. 

§  3601.  When  any  Sheriff,  or  other  officer,  shall  sell  any  real 
Officer  sell-  estato  bv  virtue  of  and  under  any  execution,  it  shall  be  the  duty 

in^  real   es-  ^  '  «/ 

tateshai  put  of  such  Sheriff,  or  other  levying   officer,  upon  application,  to  put 

purchaser  in  '    ^  ./       o  7      i  i  i  i  r 

possession,  the  purchascr,  his  agent,  or  attorney,  in  possession  of  the  real 
estate  sold ;  'provided^  that  the  provisions  of  this  Code  shall  not 
authorize  the  officer  to  turn  out  any  other  person  than  the  de- 
fendant, his  heirs,  or  their  tenants,  or  assignees,  since  the  judg- 
ment. 

§3602.  If  the  purchaser  of  real  estate,  at  Sheriff 's"and  other 

Possession—  salcs  Under  execution,  shall  fail  to  make  application  for  posses- 
how  obtain-     ^  .  •'■■'• 

ed.  sion  thereof  until  the  next  term  of  the  Superior  Court  after  such 

sale  takes  place,  or  until  the  officer  making  such  sale  goes  out  of 
office,  such  possession  can  only  be  obtained  under  an  order  of  said 
Superior  Court. 

§  3603.  The  widow  of  the  defendant  claiming  dower  can  not  be 

Widowand  disDosscssed  of  the  mansion,  nor  can  a  lessee  whose  lease  is  older 

lessee      can 

not  be  dis-  than  the  iudsiment  under  which  the  sale  was  made,  be  dispossessed 

possessed.  t^        o  ^  ^      ^  x 

under  the  provisions  of  the  two  preceding  Sections. 

§3604.  When   any  judgment   shall  be  rendered  in  any  of  the 
Purchaser  Courts  of  this  State,  upon  any  note,  or  other  evidence  of  debt  ffiven 

failing     to  1      I  J  ->  ^  O 

comply  for  the  purchase  money  of  land,  when  titles  have  not  been  made, 

•where  bond  i  »/  7  j 

for    titles  \^^^  ^  bond  for  titles  sriven,  it  shall  and  may  be  lawful  for  the  obli- 

has      been  o  ?  j 

given.  gQj,  \^  g^jd  bond  to  make  and  file,  and  have  recorded  in  the  Clerk's 
office  of  the  Superior  Court  of  the  County  wherein  the  land  lies, 
a  good  and  sufficient  deed  of  conveyance  to  the  defendant  for  said 
land,  and  if  the  said  obligor  be  dead,  then  his  executor  or  admin- 
istrator may,  in  like  manner^  make  and  file  such  deed  without  ob- 
taining an  order  of  the  Court  for  that  purpose  ;  whereupon  the 
same  may  be  levied  on.  and  sold  under  said  judgment  as  in  other 
^  ^    cases ;  provided,  that  the  said  iuda^ment  shall  take  lien  upon  the 

ment   takes  land  prior  to  any  other  iuderment  or  incumbrance  aorainst  the  de- 
prior  uen.  ir  J  O      Q  O 

fondant. 

§  3605.  Any  person  who  may  become  the  purchaser  of  any  real 


PT,  3.— TIT,  6.— CHAP.  1.— Executions. 


689 


Article  5. — The  Satisfaction  of  Executions. 


or  personal  estate  at  any  sale  which  may  be  made  at  public  out-     Porchaser 

^  ,  *^  "^  -^  at  salennder 

cry  by  any   Sheriff  or  other  officer,  under  and  by  virtue  of  any  execution 

J        'J^  'J  7  ,/  »/    liable— when 

execution  or  other  legal  process,  and  shall  fail  or  refuse  to  comply  , 

with  the  terms  of  such  sale  when  requested  so  to  do,  shall  be  lia--  -O 
ble  for  the  amount  of  such  purchase  money,  and  it  shall  be  at  the     ^  / 
option  of  such  Sheriff  or  other  officer,  either  to  proceed   against 
such  purchaser  for  the  full  amount  of  the  purchase  money,  or  to 
re-sell  such  real  or  personal  estate  and  then  proceed  against  the 
first  purchaser  for  the  deficiency  arising  from  such  sale. 

^3606.  The  action  provided  for  in  the  preceding;  Section  may  ..^orm  of 
be  brought  in  the  name  of  the  Sheriff  or  other  officer  making  the  ^"^^ 

a  o  chaser. 

sale,  for  the  use  of  the  plaintiff  or  defendant  in  execution,  or  any 
other  person  in  interest,  as  the  case  may  be. 


ac- 

ascainst 
pur- 


ARTICLE    V. 


F     THE     SATISFACTION     OF     EXECUTIONS. 


Section. 

3607.  Levy  on  personalty  unexplained. 

3608.  Release  of  property  subject. 


Section. 

3609.  Fund  applied  to  youngei;  j'l.'./ai. 

3610.  Agreement  not  to  eniOTiCe  judgment. 


§  3607.  A  levy  upon  personal  property  sufficient  to   pay   the    Levy  on 
debt  unaccounted  for,  is  'prima  facie  evidence  oF  satisfaction  to  Sne^xpiai/, 
the  extent   of  the  value  of  such  property,  and  the   dismissal  of 
such  levy  unexplained  is  an  abandonmsent  of  the  lien  so  far  as 
third  persons  are  concerned.  Jf'^/v^^i  cPf\^Jtu^^  ^ 

,  §3608.  If  the  plaintiff  in  execution,  for  a  valuable  consideration,  a  release  /(-^  i//  /. 
releases  property  which  is  subject  thereto,  it  is  a  satisfaction  of  sntj^ct.^^'^*^,  '  ''  "-", 
such  execution  to  the  extent  of  th^  value  of  the  property  so  re-  •  :• 

leased,  so  far  as  purchasers  and  creditors  are  concerned.  '  ^  ' 

§  3609.  If  an  execution  creditor,  having  the  older  lien  on  a  fund      Fundap-'  ■ 
in  the  hands  of  the  Sheriff  or  other  officerj  allows  such  fund   by  younger  ^ 
his  consent  to  be  applied  to^  a  younger  fi.  fa.,  it-  shall  be  eonsid-' 
ered  an  extinguishment  pro  tanto  of  such  creditor's  lien  so  far  as 
third  persons  may  be  concerned. 

§  3610.  An  agreement  for  a  valiiable  consideration  never   to   Agreement 

_  .     ,  .  ,  not    to    en- 

entorce  a  judgment  or  execution,  releases  the  judgment  or  exe-  ^'""^^  J"^s- 
cution. 

44 


/^w 


690 


PT.  3.— TIT.  6.— Executions. 


Chapter.  2. — The  Stay  of  Executions. 


CHAPTER    II. 

OF     THE     STAY     OF     EXECUTIONS. 


Section. 

3611.  Defendant  may  stay  execution. 

3612.  Fi.  fa.  to  be  stayed  sixty  days. 


Section. 

3613.  Security  to  have  control — when. 


§  3611.  In  all  cases  in  the  Superior  Court  where  a  verdict  shall 

Defendant  bc  rendered,  the  party  against  whom  the  same  may  be,  may,  either 

ecutioD.       in  open  Court  or  in  the  Clerk's  office,  within  four  days  after  the 

adjournment  thereof,  enter  into  bond  with  good  and  sufficient 

security  for  the  payment  of  such  verdict  or  judgment  and  costs, 

within  sixty  days. 

§  3612.  Bond  and  security  being  given  as  provided  in  the  pre- 

Execution  ccdinff  Scctiou,  the  verdict  and  iudgment,  or  the  execution  there- 
to be  stayed  °  '  .         . 

—when.  on,  shall  be  suspended  for  the  said  sixty  days,  and  if  the  party 
shall  fail  to  pay  the  said  verdict  or  judgment  within  that  time, 
execution  shall  then  issue  against  such  party  and  his  security 
without  further  proceedings  thereon. 

§  3613.  The  security  paying  off  such  judgment  or  execution, 

havTcontrol  shall  havc  control  thereof. 


CHAPTER   III. 

OF     THE     ILLEGALITY     OF     EXECUTIONS. 


Section. 

3614.  Illegality— how  taken. 

3615.  No  illegality  before  levy  and  arrest. 

3616.  Proceedings  stayed  and  returned. 

3617.  Damages,  if  for  delay  only. 


Section. 

3618.  No  judicial  interference. 

3619.  May  be  sold  under  other  fi.  fas. 

3620.  AVho  may  file  affidavit. 

3621.  Illegality  not  to  go  behind  judgm't. 


be 
— ^how. 


§  3614.  When  an  execution  against  the  property  or  against  the 
Execution  body  of  any  person  shall  issue  illegally,  or  shall  be  proceeding 
illegally  may  illegally,  and  such  execution  shall  be  levied  on  property,  or  the 
body  of  the  defendant  shall  be  arrested  by  virtue  thereof,  such 
person  may  make  oath  in  writing,  and  shall  state  the  cause  of 
such  illegality  and  deliver  the  same  to  the  Sheriff  or  other  execu- 
ting officer,  as  the  case  may  be,  together  with  bond  and  good  secu- 
rity for  the  forthcoming  of  such  property  as  provided  by  this 
Code,  or  for  the  appearance  of  the  defendant  as  provided  in  cases 
of  insolvent  debtors. 


PT.  3.—TIT,  6.— Executions.  691 


Chapter  3. — The  Illegality  of  Executions, 


§3615.  No  affidavit  of   illes^ality   shall   be   received   by   any  Noaffidavit 

.  .  ^  *^  "^   of   illegality 

SheriiF  or  other  executing  officer  until  a  levy  or  an  arrest  has  been  —when. 
made,  as  the  case  may  be. 

§  3616.  When  the  levy  or  arrest  shall  have  been  made,  and  affi-  Proceedings 

'^  J  '  to  be  stayed 

davit  and  bond  delivered  to  the  officer  as  herein  provided,  it  shall  r"turned^^to 
be  the  duty  of  such  officer  to  suspend  further  proceedings  on  such  court,  etc. 
execution,  and  return  the  said  execution,  affidavit,  and  bond,  to 
the  next  term  of  the  Court  from  which  the  execution  issued,  and 
it  shall  be  the  duty  of  said  Court  to  determine  thereon  at  the  first 
term  thereof,  unless  the  plaintiff,  ol*  his  attorney,  desire  to  contro- 
vert the  facts  contained  in  said  affidavit,  in  which  case  an  issue 
shall  be  joined,  which  issue  shall  be  tried  by  a  jury  at  the  same 
term,  unless  good  cause  is  shown  for  a  continuance. 

§  3617.  Upon  the  trial  of  an  issue  formed  on  an  affidavit  of  il-      damages 

,  ,  ,  ,  ii interposed 

legality,  filed  in  the  Superior  or  Inferior  Courts,  the  jury  trying  ["'^deiay  on- 
the  case  shall  have  power  to  assess  such  damages,  not  exceeding 
twenty-five  per  cent.,  as  may  seem  reasonable  and  just,  upon  the 
principal  debt,  provided  it  shall  be  made  to  appear  that  such  ille- 
gality was  interposed  for  delay  only. 

§3618.  No  replevin  shall  lie,  nor  any  judicial  interference  be   No  judicial 

11'  TT  o  IT  ••  PI  interference 

had,  m  any  levy  or  distress  for  taxes  under  the  provisions  of  this  to  be  had. 
Code,  but  the  party  injured  shall  be  left  to  his  proper  remedy  in 
any  Court  of  law  having  jurisdiction  thereof. 

§  3619.  When  an  execution  has  been  levied  on  property,  and  an      Property 
affidavit  of  illegality  fijed  to  stay  proceedings  thereon,  the  prop-  umier  other 

-.,  1111  !•  1  11  1  executions. 

erty  so  levied  on  shall  be  subject  to  levy  and  sale  under  other  ex- 
ecution, and  the  officer  making  the  first  levy  shall  claim,  receive, 
hold,  and  retain  such  amount  of  the  proceeds  of  the  sale  as  the 
Court  shall  deem  sufficient  to  pay  the  execution  first  levied,  in- 
cluding interest  up  to  the  time  of  the  Court  at  which  said  illegal- 
ity shall  be  determined ;  and  any  bond  given  by  the  defendant  on 
filing  such  affidavit  shall  be  released  and  discharged  so  far  as  re- 
lates to  the  property  sold.    -^  I4./     %  ^     ^2- 1  0 

§  3620.  An  affidavit  of  illegality  may  be  filed  by  an  attorney  in    By  whom  -'^' 

„  .     .  ^  atS  davit  may 

tact,  or  an  executor,  administrator,  or  other  trustee.  be  med. 

§  3621.  If  the  defendant  has  not  been  served,  and  does  not  ap-    wheniiie- 

.  „...^.— ~i  ^      gality       can 

pear,  he  may  take  advantage  of  the  defect  by  affidavit  of  illegality  ;  ":'t  go  be- 
but  if  he  has  had  his  day  in  Court,  he  can  not  go  behind  the  judg-  ^^'^t- 
ment  by  an  affidavit  of  illegality.         ^  ,  ^ 


itC^i 


^ 


<\k^ 


^92 


PT.  3.— TIT.  6.— Executions^. 


Chapter  4:. — Forthcoming  Bonds, 


CHAPTER     IV, 


OF     FORTHCOMING     BONI>S, 


Section. 

3622.  Forthcoming  bonds  may  be  taken. 

3623.  All  bonds  to  officers  good. 


Section.. 

3624..  Shall  not  prejudice  plain tifis^. 


When  forth 
eom.ing  bond 
may  be  giv- 
en. 


Bonds taken 
by  executing 
officers. 


The  rights 
of  plaintiffs 
in  ^.  fa. 


i 


§  3622.  When  an  execution  shall  be  levied  on  personal  proper- 
ty, and  an  illegality  filed  thereto  as  provided  by  this  Code,  and 
the  party  filing  such  illegality  desires  to  take  or  keep  possession 
of  such,  property,  he  shall  deliver  to  the  Sherifi",  or  other  levying 
officer,  a  bond,  payable  to  the  levying  officer,  with  good  security, 
in  a  sum  equal  to  double  the  value  of  the  property  sa  levied  upon, 
to  be  judged  of  by  the  levying  officer,  conditioned  for  the  delivery 
of  the  property  levied  upon  at  the  time  and  place  of  sale,  in  the 
event  that  such,  illegality  shall  be  dismissed  by  the  Court  or  with- 
drawn, which  bond  shall  be  recoverable  in  any  Court  having  cogni- 
zance thereof. 

§3623,  All  bonds  taken  by  the  Sheriifs  or  other  executing  of- 
ficers, from  the  defendants  in  execution,  for  the  delivery  of  proper- 
ty (on  the  day  of  sale  or  at  any  other  time)  which  they  may  have- 
levied  on  by  virtue  of  any  fi.  fa,^  or  other  legal  process  from  any 
Court,  shall  be  good  and  valid  in  law,  and  recoverable  in  any 
Court  in  this  State  having  jurisdiction  thereof. 

§  3624.  No  bond  taken  in  conformity  with  the  previous  Section 
shall,  in  any  case,  prejudice  or  affect  the  rights  of  plaintiff  in  ex- 
ecution, but  shall  relate  to,  and  have  affect  alone  between  the  of- 
cer  to  whom  it  is  given  and  the  defendant  in  execution ;  and  such 
officer  shall,  in  no  case,  excuse  himself  for  not  having  made  the 
money  on  an  execution  by  having  taken  such  bond,  but  shall  be 
liable  to  be  ruled  as  now  prescribed  by  law* 


PT.  3.— TIT.  7.— CHAP.  1.— Costs.  693 

Article  1. — How  Taxed, 

TITLE    VII. 

COSTS      IN      CIVIL     CASES., 


Chaptee  L — Costs  in  Civil  Cases, 
Chapter  2. — Fees  of  Officers  of  Court 


CHAPTER    I. 

F     COSTS     IK     CIVIL     OASES, 


Article  1. — How  Taxed. 
Article  2. — How  CdlleetecL 


ARTICLE   L 

HOW      T  A  X  E  D.. 


3625.  Party  fairing,  liable  for  costs., 

3626.  Attorney  liable  for  neglect. 

3627.  "When,  liable  in  other  cases. 

3628.  Cost— when  recovery  less  than  $50. 

3629.  When  costs  to  be  paid  in  advance. 


Section, 

3630.  Costs  in  slander  eases. 

3631.  Costs  in  personal  actions. 

3632.  Costs  of  witnesses. 

3633.  Revenue  stamps — how  taxed. 


§3625..  In  all   civil  ca&es,  in  anj  of  the  Courts  of  this  State    Party  faii- 
(except  as  provided  for  by  this  Code),  the  party  who  shall  dis-  costs. 
continue,  fail,  or  be  .east  in  such  suit,  shall  be  liable  for  the  costs 
thereof. 

§  3626.  If  any  plaintiff  shall  be  non-suited,  or  cast,  by  reason      Attorney 
©f  the  willful  neglect  or  misconduct  of  his  attorney,  such  attor-  costs     for 
ney  shall  be  liable  for  the  costs  which  may  have  accrued  in  such  lect. 
case;  and  in  like  manner,  if  any  defendant  shall  be  cast  by  rea- 
son of  the  willful  neglect  or  misconduct  of  his  attorney,  such  at- 
torney shall  be  liable  for  the  costs  thereof. 

§  3627.  When  any  attorney  shall  institute  a  suit  in  any  of  the      Attorney 
Courts  of  this  State  for  any  person  who  resides  out  of  this  State,  costs— when 
such  attorney  shall  be  liable  to  pay  all  costs  of  the  officers  of 
Court,  in  case  such  suit  shall  be  dismissed,  or  the  plaintiff  be 
caLSt  in  his  suit. 


694  PT.  3.— TIT.  7.— CHAP.  1.— Cosm 


Article  1. — How  Taxed. 


§  3628.  When  any  action  ex  contractu  shall  be  brought  to  the- 
When  re-  SupeHor  Court,  and  the  verdict  of  the  jury,  unreduced  by  matter 
than  $50.  of  sct-off  or  payment  pending  the  action,  shall  be  for  a  sum  un- 
der fifty  dollars,  the  defendant  shall  not  be  charged  with  more 
costs  than  would  have  necessarily  accrued  if  such  case  had  been 
before  a  Justice  of  the  Peace ;  and  the  remainder  of  the  Court 
charges  shall  be  paid  by  the  plaintiff,  and  may  be  retained  out  of 
the  sum  recovered  by  the  plaintiff,  and,  if  that  is  insufficient, 
judgment  shall  be  entered  by  the  Court  against  such  plaintiff  for 
the  balance. 

§  3629.  When  the  plaintiff  and  his  attorney  both  reside  out  of 

bedeSaSed  *^®  liHiits  of  this  State,  the  proper  officers  may  demand  their  full 

in  advance.  (jQsts  bcforc  they  shall  be  bound  to  perform  any  service  in  any 

cause  about  to  be  commenced  by  such  non-resident  attorney  or 

plaintiff. 

§  3680.  In  all  actions  upon  the  case  for  slanderous  words,  in 
No  more   any  Court  havine;  iurisdiction  of  the  same,  if  the  iury  shall  ren- 

costs  than  -^  °  '^  t  ■d      J 

damages—   (j^r  a  vcrdict  under  ten  dollars,  then  the  plaintiff  in  such  action 

"when.  '  ^ 

shall  have  and  recover  no  more  costs  than  damages. 

§  3631.  In  actions  of  assault  and  battery,  and  in  all  other  per- 
Costs  in  sonal  actions,  wherein  the  iury  upon  the   trial  thereof  shall  find 

personal  ac-  '  v      %i       i 

tions.  the  damages  to  be  less  than  ten  dollars,  the  plaintiff  shall  recover 
no  more  costs  than  damages,  unless  the  Judge,  at  the  trial  thereof, 
shall  find  and  certify  on  the  record  that  an  aggravated  assault 
and  battery  was  proved. 

§  3632.  No   party  plaintiff  or  defendant  shall  be  liable  for  the 

Costs  of  wit-  costs  of  any  witness  of  the  adverse  party,  unless  such  witness  was 

Besses  of  ad-  *'  .  . 

verse  party,  subpoeuacd,  swom,  and  examined,  on  the  trial  of  said  cause  (or 
the  plaintiff  voluntarily  dismisses  his  cause  before  trial),  and  no 
party  shall  be  liable  for  the  costs  of  more  than  two  witnesses  to 
the  same  point,  unless  the  Court  shall  certify  that  the  question  at 
issue  was  of  such  a  character  as  rendered  a  greater  number  of 
witnesses  necessary  to  a  single  point. 

§  3633.  [  The  amount  of  all  revenue  stamps  used  upon  affida- 
Revenue  yits,   declarations,   bills,    iud^ments,   executions,   and   any  other 

stamps  taxed  '  7  7    »j       o  7  7  j 

as  costs.  writ,  process,  order,  or  decree,  issued  by  any  Court  of  this  State, 
upon  which  a  revenue  stamp  has  to  be  used,  shall  be  taxed  in  the 
bill  of  costs  against  the  defendant,  in  all  cases  in  which  the  de- 
fendant is  cast  in  the  suit.]  (a) 

(a)  Acts  of  1865-6,  pp.  222-3. 


PT.  3.— TIT.  7.— CHAP.  1.— Costs. 


695 


Article  2. — How  Collected. 


ARTICLE  11. 


HOW      COLLECTED. 


Section. 

3634.  When  cost  demandable. 

3635.  Costs  included  in  judgment. 


Section. 

3636.  Plaintiff  liable — attorney  liable. 

3637.  Judgment  against  attorney  for  cost. 


§  3634.  The  manner  of  collecting  costs  in  all  civil  cases,  in  any 
of  the  Courts  in  this  State  (except  as  otherwise  provided  in  this 
Code),  shall  be  as  follows  :  The  several  officers  of  Court  are  here- 
by prohibited  from  demanding  the  costs  in  any  civil  case,  or  any 
part  thereof,  until  after  judgment  in  the  same,  except  as  provided 
in  the  case  of  non-resident  plaintiffs  and  attorneys. 

§  3635.  When  a  case  is  disposed  of,  the  costs  of  the  same,  in- 
cluding fees  of  witnesses,  shall  be  included  in  the  judgment  against 
the  J)arty  dismissing,  being  non-suited,  or  cast. 

§  3636.  If  the  plaintiff  should  recover  a  judgment  against  the 
defendant,  and  execution  issue  thereon,  and  the  executing  officer 
shall  return  the  same  "no  property  to  be  found,"  a  fi.  fa.  or  ca, 
sa.  may  issue  against  such  plaintiff  for  the  purpose  of  making  said 
cost  out  of  him ;  and  if  the  plaintiff  resides  out  of  the  State,  the 
fi.  fa.  shall  issue  against  the  attorney  also. 

§  3637.  In  all  cases  in  which  it  is  made  to  appear  that  an  at- 
torney is  liable  for  costs  by  the  provisions  of  this  Code,  the  Court 
shall,  on  motion,  order  a  judgment  and  execution  against  him  for 
the  same. 


Costs — 
when  de- 
mandable. 


Costs — how 
taxed. 


On  return  of 
nullahona. 


Execution 
against  at- 
torney for 
costs. 


CHAPTER    II. 


FEES  OF  OFFICERS  OF  COURT. 


Section.     ' 

3638.  Fees  of  Clerk  of  Supreme  Court. 

3639.  Judges  may  increase  or  diminish. 

3640.  Fees  of  Sheriff  of  Supreme  Court. 

3641.  Contingent  expenses  Supreme  C't. 

3642.  Contingent  expenses  Superior  C't. 

3643.  Fees  of  Ordinary. 

3644.  Fees  of  Clerks  of  Superior  Courts. 

3645.  Fees  of  Clerks  of  Inferior  Courts. 

3646.  Fees  of  Sheriffs. 
647.  Fees  of  Jailors. 

48.  Fees  of  Justices  of  the  Peace. 


Section. 

3649.  Fees  of  Constables. 

3650.  Fees  of  Coroners. 

3651.  Fees  of  County  Surveyors. 

3652.  Fees  of  County  Treasurers. 

3653.  Fees  of  Notaries  Public. 

3654.  Fees  not  to  be  charged  to  the  State. 

3655.  Statement  of  fees  may  be  demanded. 

3656.  Charging  fees  unlawfully. 

3657.  Table  of  fees  to  be  kept  in  office. 

3658.  Treble  costs— suits  against  officers, 

3659.  Dismissal  from  office. 


696 


Fees  of  Clerk 
of  Supreme 
Court. 


Judges  may 
diminish  or 
increase 
costs. 


Fees  of  Sher- 
iff Supreme 
Court,  etc. 


Contingent 
expenses  of 
Supreme 
Court. 


Contingent 
expenses  of 
Superior 
Court. 


Fees  of 
Ordinary. 


PT.  3.— TIT.  7.— Costs. 

Chapter  2. — Fees  of  Officers  of  Court. 

§  3638.  The  Clerk  of  the  Supreme  Court  is  entitled  to  the  fol- 
lowing fees — to  wit : 

[For  each  case  entered  and  carried  to  judgment $6  00 

For  recording  bills  of  exception  for  every  100  words 12^ 

For  recording  opinion 6  00 

For  remitter,  including  certificate  and  seal,  (a) 2  00] 

§  3639.  The  Judges  of  the  Supreme  Court  may,  on  application 
of  any  practicing  attorney  of  the  Court,  decrease  such  bill  of 
costs.,  or,  on  the  application  of  the  Clerk,  increase  it,  or  add  other 
items  thereto.  Due,  notice  in  writing  must  be  given  of  the  grounds 
of  the  motion,  and  the  decision  announced  by  one  of  the  Judges 
in  open  Court. 

§  3640.  The  SherilBf  of  the  Supreme  Court  is  entitled  to  the  fees 
following — to  wit : 

For  each  case  entered  and  carried  to  judgment $1  25 

Such  fee  must  be  charged  in  the  bill  of  costs,  collected  by  the 
Clerk  and  paid  to  the  Sheriff. 

§  3641.  Any  contingent  expenses  incurred  in  holding  the  sev- 
eral sessions  of  the  Supreme  Court,  for  lights,  fuel,  rent,  and  sta- 
tionery, etc.,  shall  be  paid  to  the  Clerk  of  said  Court  out  of  the 
State  Treasury,  on  the  certificate  of  the  Judges  thereof  as  to  the 
necessity  and  fact  of  such  expenditure, 

§  3642.  Any  contingent  expenses  incurred  in  holding  any  ses- 
sion of  the  Superior  Court,  including  the  above  and  similar  items, 
such  as  taking  down  testimony  in  cases  of  felony,  etc.,  shall  be 
paid  out  of  the  County  Treasury  of  such  County,  upon  the  cer- 
tificate of  the  Judge  of  the  Superior  Court,  and  without  further 
order. 

§  3643.  The  Ordinaries  are  entitled  to  the  following  fees — to 
wit: 

For  receiving  application  and  granting  citation $1  35 

For  taking  and  recording  administrators'  or  guardians'  bond 1  00 

For  issuing  letters  of  administration,  or  letters  testamentary 1  50 

For  recording  the  same 50 

For  copying  the  same 50 

For  signing  warrant  of  appraisement 50 

For  receiving  an  appraisement  or  sale  bill,  and  recording  the  same,  if 

under  five  hundred  dollars 1  00 

If  above  five  hundred  dollars,  and  under  two  thousand 1  25 

If  above  two  thousand,  and  under  ten  thousand  dollars 1  50 

If  above  ten  thousand,  and  under  twenty  thousand  dollars 1  75 

(a)  Acts  of  1865-6,  p.  251. 


PT.  3.— TIT,  7.~-CosTS. 

Chapter  2. — Fees  of  Officers  of  Court. 

If  above  twenty  thousand,  and  under  fifty  thousand  dollars $2  00 

If  above  fifty  thousand  dollars 2  50 

For  receiving  application  and  granting  letters  dismissory,  whole  service,  5  00 
For  granting  citation  to  show  cause  why  administration  should  not  be 

set  aside  or  repealed 2  00 

For  entering  a  caveat  against  administration  being  granted  or  will  proven  1  25 

For  each  copy  of  caveat 50 

[For  signing  probate  of  will  or  codicil 1  25 

For  each  case  litigated  before  the  Ordinary  where  no  fees  are  pre- 
scribed   3  00 

For  issuing  commissions  to  examine  witnesses 1  25 

For  commission  to  have  one  year's  support  set  apart  to  widow,  minor,  or 

minors 1  25 

For  recording  the  same 1  00 

For  examining  books  and  giving  extract 1  00 

Forevery  order  passed  where  no  fees  are  prescribed 50 

For  each  affidavit  when  no  cause  is  pending 30 

For  every  service  required  and  performed,  for  which  no  fees  are  specified 
by  law,  the  same  fees  as  are  allowed  Clerks  of  the  Superior  Courts 
for  similar  services,  or  for  a  like  amount  of  labor.]  (a) 

For  every  marriage  license 1  50 

For  every  order  for  sale  of  land,  or  other  property 50 

For  each  copy  of  the  same 25 

For  issuing  letters  of  guardianship 1  00 

For  recording  the  same 50 

For  rule  ni  siy  in  each  case 50 

For  copy 25 

For  issuing  process  against  a  person  for  not  making  returns 50 

For  each  additional  copy 25 

For  each  subpoena 15 

For  examining  and  recording  returns  on  all  estates  not  worth  more  than 

two  thousand  dollars , 1  00 

For  all  estates  worth  more  than  two,  and  not  more  than  five  thousand 

dollars ; 1  25 

For  all  estates  worth  more  than  five,  and  not  over  ten  thousand  dol- 
lars   1  40 

For  all  estates  worth  more  than  ten  thousand  dollars 1  60 

For  recording  all  vouchers  accompanying  returns  of  administrators,  ex- 
ecutors, and  guardians,  per  100  words 12 

For  recording  any  instrument  of  writing  not  mentioned,  per  100  words.  12 
For  proceedings  to  authorize  titles  to  be  made  to  lands  of  deceased  per- 
sons  , 5  00 

For  commission  to  freeholders  to  divide  estate 1  25 

For  each  certificate  and  seal 60 

For  entering  an  appeal  and  transmitting  the  proceedings  to  the  Supe- 
rior Court 1  50 

For  filing  and  recording  an  official  bond 1  00 

For  services  as  treasurer  of  the  school  fund  and  secretary  of  the  board 
of  education  not  exceeding  5  per  cent 

(a)  Acts  of  1865-^.  pp.  40,  41. 


697 


698  PT.  3.— TIT.  T.— Costs. 

Chapter  2. — Fees  of  Officers  of  Court. 

For  services  in  making  settlement  of  accounts  of  any  executor,  ad- 
ministrator, or  guardian,  as  prescribed  in  this  Code $10  00 

For  each  fi.  fa.  issued  by  him 60 

§  3644.  The  Clerks  of  the  Superior  Courts  are  entitled  to  the 
^,  ^^^^c*'^  followinsj  fees,  to  wit : 

Clerks  of  Su-                       o              7 
periorCourts         \^    J^  ^ivil  CaSCS 

in  civil  cases. 

For  every  suit  settled  by  the  parties  in  vacation $2  00 

If  settled  at  Court  or  non-suited,  and  the  recording  on  minutes 3  00 

For  every  writ  where  there  is  more  than  one  defendant,  after  first  copy.  60 
For  every  suit  commenced  and  prosecuted  to  judgment  including  ser- 
vice for  recording  petition,  process  and  judgment 6  00 

For  every  subpoena  ticket 15 

For  writ  of  partition  of  land  and  recording  proceedings 5  00 

For  recording  proceedings  in  civil  cases  per  hundred  words "^lo 

For  every  exemplification,  per  100  words 10 

For  recording  articles  of  partnership  under  the  law  regulating  limited 

partnerships , 5  00 

For  recording  incorporation  of  joint  stock  and  other  incorporated  com- 
panies   5  00 

For  recording  incorporation  of  charitable  or  religious  associations 5  00 

For  proceedings  to  forfeit  a  charter 10  00 

For  recording  proceedings  in  change  of  name 1  OO 

For  furnishing  and  certifying  any  bill,  process,  order,  etc.,  in  equity,  for 

publication 1  00 

For  recording  notice  of  carpenters'  and  masons'  liens 1  00 

In  trials  of  nuisance  and  recording  proceedings  5  00 

For  rule  vs.  garnishee *. 1  00 

For  issuing  commission  to  examine  witness 1  00 

For  recording  deeds 50 

For  every  hundred  words  over  300  words  thereof. 15 

For  recording  any  instrument  of  writing  not  specified,  per  100  words.  15 
'*'  For  every  foreclosure  of  any  mortgage  of  personalty  including  execu- 
tion and  recording  proceedings 3  00 

For  every  foreclosure  of  any  mortgage  of  realty,  including  execution 

and  recording  proceedings 5  00 

For  every  claim  case 2  50 

For  every  affidavit  to  hold  bail  50 

For  recording  and  copying  proceedings  in  chancery,  and  bills  of  excep- 
tion and  transcript  to  the  Supreme  Court,  per  100  words 15 

For  recording  remitter,  order,  and  judgment  of  the  Supreme  Court  on 

minutes 1  00 

For  issuing  fi.  fa.  or  ca.  sa.y  each 50 

For  certificate  and  seal,  each 60 

For  scire  facias  to  make  parties,  original 1  50 

For  copies  of  each 1  00 

For  recording  order  on  minutes 75 

For  issuing  jury  scrip,  each 10 

For  inspection  of  books  where  their  aid  is  required 25 

For  examination  of  books  and  abstract  of  results 1  00 


PT.  3.— TIT.  7.— Costs.  699 

Chapter  2.— Fees  of  Officers  of  Court. 

For  each  appeal  if  settled  before  verdict $1  25 

For  each  appeal  if  prosecuted  to  verdict 2  50 

For  entering  every  motion  on  the  minutes 1  00 

Whenever  services  are  required  by  the  law,  of  any  officer  of  the  Court, 
and  no  fee  for  such  service  is  prescribed,  the  Court  shall  tax  in  the 
bill  of  costs  a  reasonable  charge  therefor. 

2.  In  criminal  cases —  ^^.^^  ^^ 

cnmiDal 

For  all  bills  of  indictment,  if  settled  by  the  parties  or  nol.  pros' d,  including  ^*^®^* 

service  for  docketing  and  recording  on  the  minutes  and  all  other 

service 3  00 

For  every  bill  of  indictment,  when  the  defendant  is  arraigned,  tried  and 

found  guilty,  including  all  services 5  00 

For  transcribing  record  and  evidence  in  State  cases,  per  100  words 15 

For  recording  forfeiture  of  bond  on  minutes 1  00 

For  issuing  scire  facias  after  forfeiture,  original 1  50 

For  each  copy 1  00 

For  issuing  subpoenas  in  State  cases,  each 15 

[The  Judges  of  the  Superior  Courts  in  any  County  where  the   Extracom- 

.  111111  11  pensation— 

matter  is  not  regulated  by  local  laws,  may  allow  extra  compen-  when    ai- 

sation  to  the  Clerks  of  said  Courts  for  issuing  venires^  furnishing 

stationery,  etc.,  which  allowance,  by  an  order,  shall  be  entered  on 

the  minutes  of  said  Court ;  and  upon  presentation  of  a  certified 

copy  of  the  same  to  the  County  Treasurer,  the  said  Treasurer  is 

authorized  and  required  to  pay  the  same  out  of  any  money  in  the 

County  Treasurer  not  otherwise  appropriated.]  (a) 

§  3645.  The  Clerks  of  the  Inferior  Courts  are  entitled  to  the     Fees    of 
P  11      •       n  ^^^'■^      ^^ 

foUowms:  fees to  wit  :  the  inferior 

°  Ooxirt. 

For  every  estray  horse,  mule,  or  ass,  for  every  legal  service  required $2  00 

For  every  bull,  ox,  or  cow,  for  all  service  required .    1  25 

For  every  goat,  hog,  or  sheep 30 

For  retailer's  bond , 1  00 

For  retailer's  license 1  00 

For  copying  and  administering  oath  to  retailer 50 

For  each  peddler's  license 1  25 

For  filing  and  recording  each  bond  the  law  requires 1  00 

For  recording  mark  and  brands 50 

For  comparing  and  testing  weights  and  measures  and  stamping  or  mark- 
ing each 10 

For  all  the  proceedings  for  making  a  Notary  Public 5  00 

For  any  service  lawfully  performed,  that  is  also  performable  by  the  Clerks 
of  the  Superior  Courts,  the  same  fees  as  said  Clerks. 

TThe  Justices  of  the  Inferior  Courts,  in  any  County  where  the   Extra  com- 

.  ,  ,  1        •       1  •  pensation. 

matter  is  not  regulated  by  local  laws,  are  authorized  and  required, 

(a)  Acts  of  1862-3,  p.  24. 


700  PT.  3.— TIT.  7.— Costs. 

Chapter  2.— Fees  of  Officers  of  Court. 

when  sitting  at  any  session  of  said  Courts,  to  allow  the  Clerks  of 
said  Courts  such  compensation  as  shall  be  reasonable  and  just  for 
extra  services  in  keeping  the  records  of  the  Court  for  County  pur- 
poses, and  at  regular  sessions  for  making  out  venires,  furnishing 
stationery,  etc.,  which  shall  be  placed  on  the  minutes  of  said 
Court ;  and  upon  presentation  of  a  certified  copy  of  such  order  to 
the  County  Treasurer,  he  shall  pay  the  same  out  of  any  money  in 
his  hands  not  otherwise  appropriated.]  (a) 

§  3646.  The  Sheriffs  are  entitled  to  the  fees  following — to-wit : 
Fees  of      1.  In  civil  cases — 

Sheriff       in 

civil  cases.     _,              .                        ^                           t       -        •           .    •      ■■  ^^  «« 

For  serving  a  copy  of  a  process  and  returning  original,  per  copy $2  00 

If  suit  from  another  County  [to  be  paid  in  advance]  (b) 2  00 

For  summoning  each  witness  50 

For  summoning  jury  and  attending  trial  to  assess  damages  for  right  of 

vray 5  00 

For  service  in  every  case  before  a  special  jury 1  25 

For  each  levy  on  single  Ji.  fa 2  00 

For  each  levy  if  more  than  one,  on  each  levied 1  00 

For  search  and  return  of  nulla  bona 1  00 

For  conducting  a  debtor  under  confinement  before  a  Judge  or  Court. . .       1  00 

For  serving  rule  m.  garnishee 1  00 

If  more  than  one,  for  each  additional  copy 1  00 

For  summoning  jury  to  try  case  of  nuisance 3  00 

For  removing  nuisances,  such  fees  as  the  Court  may  deem  reasonable. 

For  summoning  the  juries  to  each  term,  to  be  paid  by  the  County 5  00 

All  sums  when  the  amount  collected  on  execution  by  sale  of  property 

does  not  exceed  fifty  dollars  and  under,  5  per  cent. 
For  all  sums  above  fifty  dollars  and  not  exceeding  five  hundred  dollars, 
V  2i  per  cent. 

For  all  sums  exceeding  five  hundred  dollars,  IJ  per  cent. 

Ko  commissions  shall  be  charged  unless  the  property  is  actually  sold. 

For  making  out  and  executing  titles  to  land 3  50 

If  presented  by  the  purchaser 1  00 

For  making  out  and  signing  bill  of  sale  of  property 1  25 

Provided  no  fee  shall  be  allowed  but  for  one  bill  of  sale,  when  it  will  be 

suffi-cient  to  convey  the  property  to  the  purchasers,  unless  they  should 

otherwise  require. 

For  taking  bail  bonds 1  00 

For  forthcoming  bonds 1  00 

In  issues  on  application  of  insolvent  debtors  for  service  not  in  term  time  5  00 
For  executing  process,  dispossessing  tenant  holding  under  plea  of  rent. .  3  50 
For  settling  execution,  if  property  be  levied  on  and  money  paid  before 

sale 2  00 

For  keeping  a  horse,  mare,  mule,  or  ox,  per  day 25 

For  keeping  each  head  of  neat  cattle  per  day 5 

For  keeping  sheep,  goats,  or  hogs,  per  day 4 

(a)  Acts  of  1862-3,  p.  24.    (b)  Acts  of  1866,  p.  24. 


I 


PT.  3.— TIT.  7.— Costs. 

Chapter  2. — Fees  of  Officers  of  Court. 

For  following  property,  with  attachment,  out  of  the  County,  going  and 

returning,  per  mile $        5 

2.  In  criminal  cases — 
For  re-committing  any  prisoner  when  a  habeas  corpus  is  sought  for  his 

relief. 1  25 

For  every  mile  a  prisoner  may  be  removed  under  Jiaheas  corpus^ 25 

For  removing  a  prisoner  by  haheas  corp)us,  wdien  no  mileage  is  paid,  per 

day 2  00 

For  attending  a  person  taken  by  warrant  to  the  Judge's  chamber 1  00 

For  conducting  a  prisoner  before  a  Judge,  or  Court,  to  and  from  jail. . .  1  25 

For  executing  warrant  of  escape 1  00 

For  executing  and  returning  a  bench  warrant 1  25 

For  apprehending  a  person  suspected,  if  committed  or  held  to  bail 1  25 

For  each  person,  not  exceeding  two,  who  may  be  employed  to  guard  a 

prisoner  to  jail,  per  day 1  50 

For  executing  a  criminal  10  00 

For  whipping,  cropping,  or  branding  a  criminal. 5  00 

[When  a  Sheriff,  Deputy  Sheriff,  Coroner,  or  Constable  of  this 
State,  shall  arrest  a  fugitive  from  justice  from  another  State,  un- 
der warrant  from  the  Executive  of  this  State,  such  arresting  officer 
shall  be  entitled  to  a  fee  of  two  dollars  for  said  arrest,  and  twenty- 
five  cents  for  every  mile  the  prisoner  may  be  removed  under  exec- 
utive warrant ;  and  said  fees  shall  be  paid  by  the  officer  or  officers 
of  the  State,  appointed  to  receive  such  fugitive  from  justice,  be- 
fore he  is  delivered  or  released  by  the  arresting  officer.]  (a) 

[The  Judges  of  the  Superior  Courts,  in  any  County  where  the 
matter  is  not  regulated  by  local  law,  may  allow  Sheriffs  extra 
compensation  for  summoning  Grand  and  Petit  Jurors,  and  for 
other  extra  services  in  attending  upon  the  Court,  as  in  their  judg- 
ment shall  be  reasonable  and  just ;  and  the  Justices  of  the  Infe- 
rior Courts  are  required  to  allow  the  Sheriffs  such  compensation 
as  shall  be  reasonable  and  just  for  summoning  juries  and  attend- 
ing upon  the  Courts,  which  compensation  shall  be  allowed  and 
paid  in  the  same  manner  as  is  provided  in  Sections  3644  and  3645 
in  relation  to  Clerks  of  the  Superior  and  Inferior  Courts.]  (b) 

§  3647.  Jailors  are  entitled  to  the  following  fees — to  wit  : 

For  receiving  prisoner  or  debtor |      60 

For  turning  the  key  or  discharging  the  prisoner,  by  virtue  of  habeas 

corpus^  by  order  of  the  Court,  Judge,  or  Justice 60 

[For  dieting  prisoners  confined  in  jail  on  any  ground  -whatever,  such 
fees  as  may  be  fixed  by  the  Justices  of  the  Inferior  Court  of  the 
County,  who  are  hereby  invested  with  the  power  to  fix  said  fees.]  (c) 

^  (a)  Acts  of  1865-6,  p.  33.    (b)  Acts  of  1862-3,  p.  24.    (c)  Acts  of  1866,  p.  52, 

4f 


701 


Fees  iii 
criminal 
cases. 


Fees  of 
Jailors. 


702  PT.  3.-— TIT.  7.— Costs. 


Chapter  3.— Fees  of  Officers  of  Court 

For  turning  key,  on  commitment  of  a  prisoner  except  as  hereinafter 

provided $  60 

County  to  Whenever  Jail   fees  are  chargeable  to  the  County,  the  same  shall  be 
pay  mon     y  ^^.^  monthly. 

§3648.  Justices  of  the  Peace  shall  have  the  following 
Feesof  Jus-  fees — to  wit : 

tices  of  the 

Peace  in  civ-        1.    Jq  civil  CaSCS 

11  cases. 

For  each  case  tried  by  said  Justices 35 

For  each  summons 35 

For  affidavit  to  obtain  an  attachment  or  to  hold  to  bail,  and  taking  the 

bond 75 

For  entering  a  judgment. 35 

For  each  execution,  ca.  sa.,  or  attachment 35 

For  drawing  jury  and  making  out  list 30 

For  each  cause  tried  by  s^id  jury 30 

For  affidavit  to  obtain  a  possessory  warrant  and  making  out  the  same. .  75 

For  trying  the  same 60 

For  making  out  interrogatories  and  certifying  the  same 1  25 

For  making  out  recognizance  and  returning  the  same  to  Court 35 

For  each  subpoena  for  witness 15 

For  each  affidavit,  when  there  is  no  cause  pending 30 

For  every  writ  of  certiorari  to  the  Superior  Court 60 

For  presiding  at  trial  of  forcible  entry,  or  detainer,  or  both — each  trial.  1  00 

For  presiding  at  each  trial  of  right  of  way 1  00 

F6r  issuing  rule  to  establish  lost  paper 35 

For  trying  the  same 35 

For  presiding  at  trial  of  nuisance 1  00 

For  witnessing  any  paper 25 

Fee's  in        2.  In  Criminal  cases — 

criminal 

cases.        j-p^^j.  Q^^i^  criminal  warrant  issued  by  them 1  25 

For  taking  examination  of  a  person  charged  with  a  criminal  offense,  (a)  1  25] 

For  examining  each  witness  in  criminal  cases 30 

For  making  out  a  commitment 35 

Fees  of     §  3649.  Constablos'  fees  shall  be  as  follows — to  wit : 

Constables. 

For  serving  a  warrant,  summons,  or  attachment 35 

For  each  additional  copy  of  summons,  warrant,  or  attachment 30 

For  summoning  every  witness 30 

For  each  cause  tried  by  a  Justice  or  jury  30 

For  attending  each  trial  in  Justices'  Court 35 

For  summoning  a  jury 75 

For  levying  a  ca.  sa,  ovji.  fa.  and  advertising 35 

For  settling/,  fa.  when  the  property  is  not  sold 30 

For  return  nulla  bona 30 

For  summoning  jury  on  inquest 1  00 

(a)  Acts  of  1866,  p.  68. 


PT.  3.— TIT.  7.— Costs.  703 

Chapter  3.— Fees  of  Officers  of  Court. 

For  collecting  execution  issued  by  Coroner $      75 

For  keeping  a  horse,  mule,  ass,  or  ox,  per  day 25 

For  each  head  of  neat  cattle 5 

For  sheep,  goats,  or  hogs,  per  day 4 

On  all  sales  made  by  him,  6J  per  centum  on  amounts  sold. 

For  attending  a  Grand  Jury,  per  day 1  00 

For  attending  Grand  Jury,  for  each  bill  found,  to  be  paid  by  delinquent,  30 

For  serving  a  warrant  in  criminal  cases 1  25 

For  keeping  and  maintaining  a  prisoner  before  examination,  not  exceed- 
ing twenty-four  hours 75 

For  serving  rule  to  establish  lost  paper 85 

For  every  additional  copy 30 

For  following  property  with  attachment  out  of  County,  going  and  re- 
turning, per  mile 5 

For  whipping  a  person  by  judgment  of  a  Court 1  00 

§  3650.  Coroners'  fees  are  as  follows — to  wit :  Fees  of 

Coroners. 

For  summoning  an  inquest  on  a  dead  body  and  returning  an  inquisition  10  00 

For  furnishing  coffin  and  burial  expenses 15  00 

When  performing  the  duties  of  a  Sheriff,  his  fees  are  the  same  as  a 
Sheriff. 

§  3651.  County  Surveyors'  fees  are  as  follows— to  wit :  Fees  of 

'J                  '^  County  Sur- 

For  surveying  a  town  lot  and  returning  a  certificate  thereof. 1  25  ^^5'^''^' 

For  surveying  a  tract  of  land  of  or  under  100  acres 3  50 

For  each  hundred  acres  after  the  first 1  00 

For  making  a  plat,  recording,  advertising,  and  transmitting  the  same  to 

the  Secretary  of  State's  office 1  25 

For  entering  a  caveat^  advertising,  and  giving  a  certified  copy  thereof. . .  2  00 

For  attending  trial  of  the  same 1  00 

For  each  postponement,  to  be  paid  by  the  postponing  party 60 

For  recording  judgment  and  giving  certified  copy  thereof. 60 

For  entering  an  appeal  and  giving  certified  copy  thereof 1  25 

For  a  re-survey  of  land  by  order  of  Court  of  or  under  100  acres,  for  the 

first  100  acres 3  50 

For  every  hundred  acres  after  the  first 1  00 

For  every  other  re-survey  of  the  same 1  00 

For  making  and  certifying  a  plat  thereof  and  transmitting  the  same 1  25 

Running  line  between  Counties,  districts,  or  making  new  lines,  per  day, 

he  furnishing  the  chainbearer  and  provisions 8  00 

§  3652,  County  Treasurer's  fees  are  as  follows — to  wit :  Fees  of 

•^  County 

Upon  all   amounts  received    and    paid    out    by  him,  2^    per   cent.  Treasurers. 

For  making  his  returns  to  the  Grand  Jury 1  00 

For  making  his  returns  to  Justices  of  the  Inferior  Court 1  00 

§3653.  The  fees  of  Notaries  Public  are  as  follows — to  wit:  Fees  of  No- 
taries Public. 

For  every  protest,  oath  included 2  00 

For  noting  a  protest 1  00 

For  registering  a  protest,  per  copy  sheet 10 


704  PT.  3.— TIT.  7.— Costs. 

Chapter  2.— Fees  of  Officers  of  Court. 

For  copy  of  a  protest,  per  copy  sheet — ■ .  $      10 

For  administering  an  oath  in  any  case 30 

For  each  attendance  on  any  person,  to  make  proof  as  a  Kotary  Public, 

and  certifying  the  same 1  00 

For  every  other  certificate 50 

The  cost  of  registering  is  likewise  a  charge  against  the  party 
noted  and  protested,  and  must  be  charged  in  the  costs  at  the  same 
time,  and  paid  to  the  Notary  by  the  party  for  whose  benefit  the 
noting  and  protesting  was  done.  All  other  registering  must  be 
paid  for  by  the  party  who  has  the  service  performed.  The  fees 
Fees  for  for  all  official  acts  which  the  Notary  is  allowed  to  perform  are 

other      aC-s,  *'  ^ 

other^offi-  ^^  same  as  those  prescribed  for  any  other  officers  who  are  like- 
cers.  ^jgg  permitted  to  perform  them. 

§  3654.    None   of   the  fees    hereinbefore    expressed    shall   be 
Fees  not  to  chars^ed  to  the   State  for  failure  to  collect  out  of    the    person 

be     charged     ,,,  ,  .  tiit  •!• 

to  State.       charged,  unless  otherwise  expressly  declared,  or  m  their  nature 
must  necessarily  be  so  paid. 

§  3655.  Every  public  officer  and  person  herein  mentioned,  their 

statement  deputy,  or   agent,  shall,  when  required,  give  a  statement  of  the 

manded    to  fecs  demanded,  and  a  receipt  for  the  same,  to  any  person   paying 

any  lawful  or  pretended  fees  of  office,  on  pain  of  ten  dollars  for 

every  such  neglect  or  refusal,  to  be  sued  for  within  twelve  months, 

and  recovered  by  the  person  paying  the  fees  and  making  the  de- 

V  mand. 

§  3656.  If  such  officers  or  person  shall  take  or  demand  any 
Forfeit  for  2;reater  fee  than  the  law  allows,  or  fee  for  services  not  performed, 

excessive  ^  -^  . 

charges.       hc  forfcits  fifty  doUars,  to  be  sued  for  and  recovered  as  prescribed 

in  the  preceding  Section. 

§  3657.  Every  public  officer  must  constantly  keep,  in  a  conspic- 
Tabieoffees  uous  placc  in  Ms  officc,  or  placc  where  he  usually  executes  the 
in  office.      busiucss  thereof,  a  table  of  his  fees,  in  fair  words  and  figures,  and, 

on  failure  to  do  so,  he  forfeits  one  dollar  per  day  for  every  day  he 

so  neglects,  to  be  recovered  at  the  suit  of  any  informer,  to  whom 

the  whole  recovery  shall  go. 

§  3658.  When  public  officers  are  sued  on  account  of  the  provi- 
Trebie  costs  sious  of  this  Chapter,  and  there  is  a  verdict  in  their  favor,  the 

— when.  .  in  1  .  1  T 

^    persons  suing  shall  pay  three  times  the  ordinary  costs. 

§  3659.  Any  public  officer  who  shall  charge  or  take  fees  not  al- 
penaity  lowcd  by  law,  or  for  service  not  performed,  shall,  on  conviction 
charges.       or  proof  thcrcof,  be  dismissed  from  office. 


PT.  3.— TIT.  8.— CHAP.  1.— New  Trials. 


705 


Article  1. — By  whom  and  for  what  Causes  Allowed. 


TITLE    VIII. 


OF       NEW       TRIALS 


CHAPTER   I. 

OF     NEW     TRIALS. 


Article  1. — By  whom  and  for  what  Causes  Allowed. 
Article  2. —  When,  where,  and  how  Tried. 


ARTICLE   L 

BY   WHOM,  AND   FOR  WHAT   CAUSES  ALLOWED. 


Section. 

3660.  What  Court  may  grant  new  trials. 

3661.  Sup'r  Court  may  correct  errors,  etc> 

3662.  Verdict  contrary  to  evidence. 

3663.  Evidence  illegally  admitted,  etc. 

3664.  Erroneous  chai'ge  of  the  Court. 

3665.  Newly  discovered  evidence. 


Section. 

3666.  Verdict  against  evidence. 

3667.  Judge  may  grant  on  other  grounds. 

3668.  Application— when  made. 

3669.  Another  Judge  may  grant. 

8670.  Motion  after  adjournment-^notice. 


9  ^^.9 


§  3660.    New  trials  can  be   granted  by  the   Superior   Courts      superior 

°  *^  ^  Court     only 

only  ;  the  Inferior  Courts  have  no  such  poTver.  can  grant. 

§  3661.  The  several  Superior  Courts  of  this   State  shall  have      superior 

■•■  Court     may 

power  to  correct  errors,  and  errant  new  trials  in  any  cause  depend-  correct    er- 
ing  in  any  of  the  said  Superior  Courts,  in  such  manner  and  un- 
der such  rules  and  regulations  as  they  may  establish  accordiag  to  lk  / 
law  and  the  usages  and  customs  of  Courts. 

§  3662.  In  any  case  when  the  verdict  of  a  special  iury  is  found  whenvor- 
contrary  to  evidence  and  the  principles  of  justice  and  equity,  the  trary  to  evi- 
presiding  Judge  may  grant  a  new  trial  before   another  special 

§3663.  The  Superior  Courts  may  grant  new  trials  in  all  cases    whenevi-'; 

.  .  dence    is  il- 

when  any  material  evidence  may  be  illegally  admitted  to,  or  ille-  legaiiy    ad- 

•^  J  &       J    •  7  mitted       or 

gaily  withheld  from  the  jury  against  the  demand  of  the  applicant,  excluded. 

§  3664.  A  new  trial  may  be  granted  in  all  cases  when  the  pre-   Forerrone- 
siding  Judge  may  deliver  an  erroneous  charge  to  the  jury  against  jury,  etc!      0 
such  applicant  on  a  material  point,  or  refuse  to  give  a  pertinent 
45 


706  PT.  3.-- TIT.  8.— CHAP.  1.— New  Tkials. 

Article  1. — By  whom  and  for  Avhat  Causes  Allowed. 

legal  charge  in  the  language  requested,  when  the  charge  so  re- 
^  quested  is  submitted  in  writing. 

/)  V^^    ffd^'"'      §  3665.  A  new  trial  may  be  granted  in  all  cases  when  any  ma- 
On  account  tcHal  evidcnce,  not  merely  cumulative  in  its  character,  but  relat- 

of  new  evi-  . 

dence.         jng  to  new  and  material  facts,  shall  be  discovered  by  the  appli- 
cant after  the  rendition  of  a  verdict  against  him,  and  shall  be 
'^  ^'  "^  brought  to  the  notice  of  the  Court  within  the  time  now  allowed  by 

law  for  entering  a  motion  for  a  new  trial. 
£  ^  §  3666.  The  presiding  Judge  may  exercise  a  sound  discretion 

When  the  in  granting  or  refusing  new  trials  in  cases  where  the  verdict  may 

VGrdict       is 

against  evi-  bc  dccidcdly  and  strongly  against  the  weight  of  evidence  although 
there  may  appear  to  be  some  slight  evidence  in  favor   of  the 
finding. 
-j  Ik.^  §  3667.  In  all  applications  for  a  new  trial  on  other  grounds,  not      ^  > 

Judge  may  provided  for  in  this  Code,  the  presiding  Judge  must  exercise  a  7 

grantonoth--^  i    i         i     t  ...  n      -  ^  t 

er  grounds,   souud  legal  discrctiou  m  granting  or  refusing  the  same  according 

to  the  provisions  of  the  common  law  and  practice  of  the  Courts.    /)f 
§  3668.  All  applications  for  a  new  trial,  except  in  extraordina-  4 


/v/ 


Application  rv  cascs,  must  be  made  durine;  the  term  at  which  the  trial  was  had, 

to    be  made     •'  '  .  _         <=  ^  ^  ' 

during  term,  "but  may  bc  heard,  determined,  and  returned  in  vacation. 

§  3669.  A  Judge  may  decide  a  motion  for  a  new  trial  who  did 
Another  not  try  the  case  either  when  he  is  presiding;  in  the  Court  in  which 

Judge     may  "^    .         .  ^  ^        -  i    •         i  i 

graijt    new  the  motion  IS  pending,  or  when  he  is  named  m  the  rule. 

§  3670.  In  case  of  a  motion  for  a  new  trial  made  after  the  ad- 
Motion  iournment  of  the  Court,  some  good  reason  must  be  shown  why  the 

made     after  *'         ,  .  ji«i  ^•^^^■^^'^^n 

adjournment  motiou  was  not  made  durms;  the  term,  which  shall  be  ludsed  of 

of  Court.  ^  '  •  ^  -i 

by  the  Court.     In  all  such  cases,  twenty  days'  notice  shall  be 
given  to  the  opposite  party. 


ARTICLE    II. 

WHEN,    AyHERE,    AND    HOW    TRIED. 


Section. 

3671.  Triable  next  term. 

3672.  By  a  special  jury. 


Section. 

3873.  Copy  rule  nisi  to  be  served. 
3674.  Snperseadeas  by  order. 


§  3671.  When   a  new  trial  has  been  granted  by  the  Superior 
Time  of  Court,  the  case  shall  stand  upon  the  docket  for  trial  at  the  next 

new  trial.  ^  ^ 

term  as  though  no  trial  was  had,  and  if  said  new  trial  is  ordered 
by  the  Supreme  Court,  said  case  shall  stand  for  trial  at  the  next 
term  of  said  Superior  Court  after  the  remitter  is  returned  from 


PT.  8.— TIT.  8.--CHAP.  1.— New  Trials.  Y07 

Article  2. — Wlien,  where,  and  liow  Tried. 

the  Supreme  Court,  and  skall  be  subject  to  the  rules  for  contin- 
uances provided  in  this  Code. 

§  3672.  All  new  trials  shall  be  had  by  a  special  jury  as  provided  .  ^y  special 
in  cases  of  appeals. 

§8673.  In   all  applications  for  a  new  trial  the  opposite  party    Euiemsi 
shall  be  served  with  a  copy  of  the  rule  m  si,  unless  such  copy  is   served. 
waived. 

§  3674.  A  rule  ni  si  for  a  new  trial  shall  not  operate  as  a  su-    Not  a  ei^ 

.  .  persedects. 

persedeas,  unless  so  ordered  by  the  Court :  m  which  case  the 
Court  may  demand  bond  and  security  for  the  eventual  condemna- 
tion money,  when  the  exigency  of  the  case  requires  it.       ^  /  /?        /""^^^ 


TITLE    IX. 

OF    CLAIMS. 


Chapter  1*-— 0/  Claims  to  Property  in  Execution, 
Chapter  2. — At  Other  Judicial  Sales, 


CHAPTER  L 

OF    CLAIMS    TO    PROPERTY    IN    EXECUTION, 


Article  I.-^-How  and  hy  whom  Inter posd. 
Article  2. —  When,  ichere,  and  how  Tried, 


ARTICLE  I. 

HOW    Ai;rD    BY    WHOM    INTERPOSED, 


3675.  Claims  to  Ibe  made  on  oath. 

3676.  Bond  and  security. 

3677.  Officer  must  postpone  sale. 

3678.  Claimant  give  forthcoming  bond. 


Section. 

3679.  To  whom  bonds  payahle. 

3680.  Bonds  recoverable — when,  where. 

3681.  Partners,  etc.,  claiming. 

3682.  Tax  fi.  fa.  claim — where  tried. 


§  3675.  When  any  Sheriff  or  other  officer  shall  levy  an  execu- 


70S  PT.  8.— TIT.  9.— CHAP.  1.— OLAmg. 

Article  1. — How  and  by  wliom  Interposed. 


Claim  must  tion  OH  property  claimed  by  a  third  person,  not  a  party  to  such 

be  made  on  .^^t  ,.  ^  ',^,/  , 

V   '   oath.  execution,  such  person,  his  agent,  or  attorney,  shall  make  oath  to 

such  property. 
-   '  §  3676.  The  person  claiming  such  property,  or  his  agent,  or 

\^       Bond  and  attomcy,  shall  ^ive  bond  to  the  Sheriff  or  other  officer,  as  the  case 

I       security    for  *^      .  °  . 

«^i     damages.  ,^  may  bc,  with  good  and  sufficient  security,  in  a  sum  equal  to  double 
y,.2  ,i^'  /i'      ^  the  amount  of  the  property  levied  upon,  at.  a  reasonable  valuation. 


x  to  be  judged  by  the  levying  officer,  conditioned  to  pay  the  plaintiff 


r 


?.[;>•*   '  ^'  /  "^  ^^^'^^ all  damages  v^hich  the  jury  on  the  trial  of  the  right  of  property 
^  '■\  ^  ^  ^^y  assess  against  him  in  case  it  should  appear  that  said  claim 

/  ^    /        ^    was  made  for  the  purpose  of  delay  only. 

§  3677.  Affidavit  and  bond  being  made  and  delivered  as  required 
Sale  must  in  the  preceding  Section,  it  shall  be  the  duty  of  the  Sheriff  or  other 

bepostponed  .  ^  i  i  p         •  i  -i         i 

—when.  levying  omcer  to  postpone  the  sale  oi  said  property  until  other- 
wise ordered. 

§  3678.  In  all  cases  where  a  levy  is  made  upon  property  that 
•  J^^^^?"™'  is  claimed  by  a  third  person,  and  such  person  shall  desire  the  pos- 
may  be  giv-  gession  thereof,  it  shall  be  the  duty  of  the  Sheriff  or  other  levyinc^ 

en,  etc.  '  •^  J       o 

officer  to  take  bond  with  good  security  for  a  sum  equal  to  double 
the  value  of  the  property  levied  on,  to  be  estimated  by  the  levy- 
ing officer,  for  the  delivery  of  such  property  at  the  time  and  place 
of  sale,  provided  the  property  so  levied  upon  shall  be  found  sub- 
ject to  such  execution. 

§  3679.  The  claim  bond  shall  be  made  payable  to  the  plaintiff 
Bondsmade  in  exccutiou,  and  the  forthcoming  bond  shall  be  made  payable  to 

payable  — to  ^  .^ 

■whom.         the  bherili. 

A  J  f  i     §  3680.  Bond  and  security  being  given  as  provided  in  the  pre- 
Bond  re-  yious  Scctiou,  it  shall  bc  the  duty  of  the  Sheriff  or  other  levyinsr 

coverable  on  '  ^     "^  ,  . 

failure.  officer  to  Icavc  such  property  in  the  possession  of  such  claimant, 
and  in  case  the  said  claimant  or  his  security  should  fail  to  deliver 
said  property,  said  bond  shall  be  made  recoverable  in  any  Court 
having  cognizance  of  the  same. 

§  3681.  One  of  several  partners  or  persons  jointly  interested 
Partner  or  may  make  the  affidavit  and  execute  the  bond  in  the  name  of  the 

joint    owner  "^ 

may  claim  firm  or  persons  jointly  interested,  who  shall  be  bound  thereby  as 
though  each  individual  had  signed  it  himself. 

§  3682.  When  any  execution  may  be  issued  against  any  Tax 
Tax  / /a.  Collector  or  tax  payer  for  taxes  due  the  State,  or  any  County 

IgvIgcI  etc*  * 

thereof,  and  the  Sheriff  or  other  officer  shall  levy  the  same  on 
property  claimed  by  a  person  not  a  party  to  such  execution,  such 


:^-^    ^ 

) 


PT.  3.~TIT.  ^.— CHAP.  1.— Claims.  709 


Article  2. — When,  where,  and  how  Tried. 


•claimant  skall  make  oath  as  herein  provided  in  the  case  of  other 
claims,  and  give  bond  as  provided  in  Section  898,  and  the  same 
proceedings  shall  be  had  thereon  as  provided  for  the  trial  of  the 
Tight  of  property,  except  that  such  trials  shall  be  had  in  the 
County  wherein  the  levy  was  madco 


ARTICLE  II. 

■WHEN,     WHERE,    AND    HOW    TEIED. 


Section, 

3883.  To  what  Court  claim  is  returnable. 

3684.  Tried  by  Petit  Jury. 

3685.  Damages,  if  for  delay  only. 

3686.  Burden  of  proof. 


Section. 

3687.  Withdrawal  of  claim. 

3688.  Assessment  of  damages. 

3689.  Either  party  may  appeal. 


3683.   Yfhen   an  execution  issued  from  the  Superior  Court        Where 

^  claim  to   be 


shall  be  levied  upon  personal  property,  and  claimed  by  a  per-  returneci. 

son  not  a  party  to  such  execution,  as  provided  in  this  Code,  it 

shall  be. the  duty  of  the  levying  officer  to  return  the  same,  to-  . 

gether'-'with  the  execution,  to  the  next  term  of  the  Court  from  ""    '       •       / 

which  said  execution  issued  ;  but  should  such  execution  be  levied  .  '      * 

upon  real  property,  and  the  same  shall  be  claimed  in  the  manner 

aforesaid,  it  shall  be  the  duty  of  the  officer  making  the  levy  to  return 

the  same,  together  with  the  execution  and  claim,  to  the  next  term 

'Of  the  Superior  Court  of  the  County  in  which  the  land  so  levied 

upon  shall  lie. 

§  3684.  The  Court  to  which  a  claim  shall  be  returned  shall  cause     TriM  by 

•i.i/»  11111  T\*T  t        n  PetitJury. 

the  right  of  property  to  be  decided  on  hj  a  Petit  Jury  at  the  first 
term  thereof,  unless  continued  as  other  cases  at  common  law. 

§3685.  Every  iuror  on  the  trial  of  the  claim  of  property,  either      Damages 

1  1  •  •       X         .         ,    ^  1111  ^«f        «^iay 

real  or  personal,  except  jurors  in  Justices  Court,  shall  be  sv/orn,  only. 
in  addition  to  the  oath  usually  administered,  to  give  such  dam- 
ages, not  less  than  tender  cent,  as  may  seem  reasonable  and  just, 
,to  the  plaintiff  ^against  the  claimant,  in  case  it  shall  be  sufficiently 
shown  that  such  claim  was  made  for  delay  only,  and  such  jury 
may  give  a  verdict  in  the  manner  aforesai-d,  by  virtue  whereof,  judg-  .  security 
ment  may  be  entered  .up  against  the  claimant  and  his  security  for  ( 

the  damages  so  assessed  by  the  jury  and  the  costs  of  the  trial  of 
the  right  of  property. 

§  3686.  Upon  the  trial  of  all  claims  provided  for  in  this  Chap-     Burden  of 

^  -"•  ■■■      proof        on 

ter,  the  burden  of  proof  shall  lie  upon  the  plaintiff  in  ejsecution  in  plaintiff. 


710 


PT.  3.— TIT.  9.— CHAP.  1.— Claims. 


Article  3. — When,  where,  and  how  Tried. 


all  eases  where  the  property  levied  on  is,  at  the  time  of  such  levy^ 
not  in  possession  of  the  defendant  in  execution. 

§  3687.  Whenever  a  claim  of  property  is  made  in  terms  of  this 
to^be°with*  ^^^®?  ^^^  returned  to  the  proper  Court  by  the  Sheriff,  or  other 
drawn.  levying  officer,  the  claimant  shall  not  be  permitted  to  withdraw  or 
discontinue  his  said  claim  more  than  once,  without  the  consent  of 
the  plaintiff  in  execution,  or  some  person  duly  authorized  to  rep- 
resent such  plaintiff;  but  such  Court  shall  proceed  to  the  trial  of 
the  claim  of  such  property,  and  it  shall  be  the  duty  of  the  jury 
to  assess  damages  accordingly. 

§  3688.  Upon  the  trial  of  claims  to  property  which  may  be 
How  (lam-  pending  in  the  Superior  Court,  when  damages  shall  be  found  by 
be  assessed,  the  jury,  the  said  damages  shall  be  assessed  upon  the  whole  amount 
then  due  upon  the  execution,  provided  the  value  of  the  property 
in  dispute  exceeds  the  amount  of  said  execution,  and  upon  the- 
value  of  the  property,  when  the  value  of  the  property  is  less  than 
the  execution  levied. 

§  3689.  Either  party  in  claim  eases  may  appeal  as  in  cases  at 

mayappeaL    COmmOn  laW^ 


CHAPTER   11. 


OF     CLAIMS     AT     OTHER     SALES. 


Section. 

3690.  Land — ^how  claimed  at  ex'r'&sale. 

3691.  Where  tried. 


Sbctiow. 

3692.  Persanalty — claim  of» 

3693,  Claim  postpones  sale. 


Claims  at 
executor's 
sale. 


§  ^690.  When  an  executor,  administrator,  guardian,  or  other 
trustee,  shall  advertise  that  it  is  his  intention  to  apply  for  leave 
to  sell  any  real  estate,  as  the  property  of  his  testator,  intestate, 
ward,  or  cestui  que  trust,  or  having  obtained  such  order,  it  may  be 
lawful  for  any  person  claiming  such  real  estate,  either  by  himself, 
his  agent,  or  attorney,  to  file  in  the  Court  of  Ordinary  an  affida- 
vit claiming  said  property,  a  copy  whereof  shall  be  served  on  such 
miistS*fiiSi  executor,  administrator,  guardian,  or  trustee,  as  the  ease  may  be^ 
served.  ^^^^  prcvious  to  the  day  of  sale. 

§§691.  Affidavit  having  been  made  and  filed,  and  notice  having 

TriedbySu-  bccn  givcn  as  required  in  the  preceding   Section,  it  shall  be  the 

in     County  duty  of  the  Ordinary  to  transmit  such  claim  affidavit  to  the  next 

lies.  term  of  the   Superior  Court  of  the  County  where  the  land  lies, 

and  the  right  of  property  shall  be  there  tried,  upon  an  issue  made 


PT.  3.— -TIT.  9.— Claims. 


711 


Chapter  3. — Claims  at  other  Sales. 


up  in  the  same  manner  and  under  tlie  same  regulations,  restric- 
tions, and  penalties  as  are  provided  for  the  trial  of  claims  to  prop- 
erty levied  on  by  execution. 

§  3692.  When  any  executor,  administrator,  guardian,  or  other       cw  to 

"^  •/  '  7  o  7  personalty — 

trustee,  shall  advertise  to  sell  any  personal  property  as  the  prop-  wheretried. 
erty  of  his  testator,  intestate,  ward,  or  cestui  que  trust,  and  the 
same  shall  be  claimed  on  oath,  and  the  claim  affidavit  shall  have 
been  filed  and  served,  as  required  in  the  first  Section  of  this  Chap- 
ter, it  shall  be  the  duty  of  the  Ordinary  to  transmit  such  claim 
affidavit  to  the  Superior  Court  next  to  be  held  after  such  claim  is 
filed  in  the  County  where  such  executor,  administrator,  guardian, 
or  trustee  resides. 

§3693.  When  a  claim  has  been  interposed,  as  provided  in  the   ciaimpost- 

,  ,  pones  sale. 

preceding  Sections,  the  sale  of  the  property  advertised  and  claimed 
shall  be  postponed  until  after  the  termination  of  the  claim  case. 


TITLE    X. 

OF     EVIDENCE. 


Chapter  1.- 
Chapter  2.- 
Chapter  3.- 
Chapter  4.- 
Chapter  5.- 
Chapter  6.- 
Chapter  7.- 


•G-eneral  Principles. 

■Of  the  Rules  G-overning  the  Admission  of  Testimony, 

■Of  Discovery  from  the  Parties, 

■Of  Records  and  other  Written  Evidence, 

Of  Oral  Testimony, 

■Of  Interrogatories  and  Depositions, 

■Of  Perpetuating  Testimony, 


CHAPTER   I. 

GENERAL     PRIJSTCIPLES. 


Section. 

3694.  Object  of  evidence. 

3695.  Sundry  definitions. 

3696.  Mental  conviction. 

3697.  Same  rules  in  all  Courts  and  cases. 

3698.  Matters  judicially  recognized. 


Sectiok. 

3699.  Presumptions  of  law  and  fact. 

3700.  Estoppels. 

3701.  Prima  facie  presumptions. 

3702.  Number  of  witnesses  necessary. 


kiiA 


712  PT.  ii.— TIT.  lO.—EviDENCE. 

Chapter  1. — General  Principles. 

§  3694.  The  object  of  all  legal  investigation  is  the  discoverj  of 
Object  of  truth.     The  rules  of  evidence  arc  framed  with  a  view  to  this 

evidence. 

prominent  end — seeking  always  for  pure  sources  and  the  highest    ' 
evidence. 

§  3695.   Competent  evidence  is  that  which  is  admissible.     Suf- 
sundr J  def- ficient  evidcncc  is  that  which  is  satisfactory  for  the  purpose.      Ckt- 

initions.  ,  .  ,.,.         ^  t   -         i 

mutative  evidence  is  that  which  is  additional  to  other  already  ob- 
JiQ^O     tained.     Direct  evidence  is  that  which  immediately  points  to  the 
^  question  at  issue.     Indirect^  or  circumstantial  evidence  is  that 

which  only  tends  to  establish  the  issue  by  proof  of  various  facts^ 
sustaining  by  their  consistency,  the  hypothesis  claimed.  Pre- 
sumptive evidence  consists  of  inferences  drawn  by  human  expe- 
rience from  the  connection  of  cause  and  effect,  and  observations 
of  human  conduct. 

§  3696.  Moral  and  reasonable  certainty  is  all  that  can  be  ex- 
Amount  of  pected  in  legal  investigation.     In  all  civil  cases  the  preponderance 

mental  con-      „.  .  >  ^  i         n*    -  i  -x  •      ' 

viction.  or  testimony  is  considered  suincient  to  produce  mental  conviction. 
In  criminal  cases  a  greater  strength  of  mental  conviction  is  held 
necessary  to  justify  a  verdict  of  guilty. 

§  3697.  Generally,  the  rules  of  evidence  are  the  same  in  all  the 
Same  rules  Courts   of  this   State,  and  upon  every  trial  the  exceptions  exist 

in  all  Courts  ^  r  ^  r 

and  cases,     only  by  cxprcss  statute. 

§  3698.  The  existence  and  territorial  extent  of  States,  their 
Matters  ju-  form  of  govomment,  and  symbols  of  nationality,  the  laws  of  na»- 
ognized.  tious,  and  general  customs  of  merchants,  the  admiralty  and  mari- 
time courts  of  the  world  and  their  seals,  the  political  constitution 
and  history  of  our  own  Grovernment,  as  well  as  the  local  divisions 
of  our  own  State,  the  seals  of  the  several  departments  of  the 
<xovernment  of  the  United  States,  and  of  the  several  States  of 
the  Union,  and  all  similar  matters  of  public  knowledge  are  judi- 
cially recognized  without  -the  introduction  of  proof. 

§  3699.  Presumptions   are  either  of  law  or  of  fact.     The  for- 
Premmp-  mor  are   conclusions   and  inferences  which  the  law  draws  from 
and  fact.       givcu  facts.     The  latter  are  exclusively  questions  for  the  jury,  to 
be  decided  by  the  ordinary  test  of  human  experience. 

§  3700.  Presumptions  of  law  are  sometimes  conclusive,  and  an 

Estoppels,  averment  to  the  contrary  will  not  be  allowed.     These  are  termed 

^'  1}       estoppels,  and  are  not  generally  favored.     Among  these  are  the 

presumptions  in  favor  of  a  record  or  judgment  unreversed,  of  the 

proper  conduct  of  Courts  and  judicial  officers  acting  within  their 


PT.  3.— TIT.  10.— Evidence.  713 

Chapter  1. — General  Principles. 


legitimate  sphere.  Of  other  officers  of  the  law  after  lapse  of 
time  has  rendered  it  dangerous  to  open  the  investigation  of  their 
acts  in  regard  to  mere  formalities  of  the  law.  Of  ancient  deeds, 
and  other  instruments  more  than  thirty  years  old,  when  they  come 
from  the  proper  custody,  and  possession  has  been  held  in  accor-  ' 
dance  with  them.  Recitals  in  deeds,  except  payment  of  purchase 
money,  as  against  the  grantor  acting  in  his  own  right,  and  sui  ju~ 
Kris  and  his  privies  in  estate,  blood  and  in  law.  The  landlord's 
I  title,  as  against  his  tenant,  while  tenant  in  possession.     Solemn  .^  ^  ^ 

j admissions  made  in  judicio,   and  other  admissions,   upon   which  ^' 

''other  parties  have  acted,  either  to  their  own  injury  or  the  benefit 
of  the  persons  making  the  admissions,  and  similar  cases  where  it 
would  be  more  unjust  and  productive  of  more  evil  to  hear  the 
truth  than  to  forbear  the  investigation. 

§  3701.  Other  presumptions  of  law,  such  as  of  innocence,  and    Prima fa- 
in  some  cases  of  guilt,    of  continuance  of  life  for  seven  years  of  sumptions. 
a  mental  state  once  proved  to  exist,  and  all  similar  presumptions 
may  be  rebutted  by  proof. 

§  3702.  The  testimony  of  a  single  witness  is  generally  sufficient  Numberof 
to  establish  a  fact.  Exceptions  to  this  rule  are  made  m  specified  cessary. 
cases ;  such  as  to  convict  of  treason  or  perjury,  in  any  case  of 
felony  where  the  only  witness  is  an  accomplice,  and  to  rebut  a 
responsive  statement  in  an  answer  in  equity — in  these  cases  (ex- 
cept in  treason)  corroborating  circumstances  may  dispense  with 
another  witness. 


CHAPTER    II. 

OF   KULES   GOVERKINa   THE    ADMISSION    OF    TESTIMONY. 


Aeticlb  1. — G-eneral  Rules. 

Article  2. — Of  Hearsay. 

Article  3. — Of  Admissions  and  Confessions. 

Article  4. — Of  Parol  Evidence  to  Effect  Written. 


714 


PT.  3.— TIT.  10.— CHAP.  2.— Evidence. 


Article  1. — General  Rules. 


ARTICLE  I. 


GENERAL     RULES. 


Section. 

3703.  Must  be  relevant. 

3704.  Character  and  conduct  of  parties. 

3705.  Burden  of  proof. 

3706.  Changing  onu8. 

3707.  Best  evidence. 

3708.  Primary  and  secondary  evidence. 

3709.  "Written  evidence. 


Section. 

3710.  Copies  of  wills  and  records. 

3711.  Officers  de  facto. 

3712.  Inscriptions  on  monuments,  etc. 

3713.  Other  exceptions. 

3714.  Secondary  evidence. 

3715.  Degrees  therein. 

3716.  Existence  of  original. 


/  /cU.^ 


.Z-1  "tfCi 


§  3703.  The  evidence  must  relate  to  the  questions  being  tried 
Must  be  by  the  jury,  and  bear  upon  them  either  directly  or  indirectly. 
Irrelevant  matter  should  be  excluded. 

§  3704.  The  general  character  of  the  parties,  and  especially  their 
Character  couduct  in  othcr  transactions,  are  irrelevant  matter,  unless  the 

and  conduct  '  ' 

of  parties,    naturo  of  the  action  involves  such  character  and  renders  necessary 
or  proper  the  investigation  of  such  conduct. 

§  3705.  The  burden  of  proof  generally  lies  upon  the  party  as- 
Burden  of  serting  or  affirming  a  fact,  and  to  the  existence  of  whose  case  or 

proof.  too? 

defense  the  proof  of  such  fact  is  essential.  If  a  negation  or  neg- 
ative affirmation  be  so  essential,  the  proof  of  such  negative  lies  on 
the  party  so  affirming  it. 

§  3706.  What  amount  of  evidence  will  change  the  onus  or  burden 
Changing  of  proof,  is  a  questiou  to  be  decided  in  each  case  by  the  sound 
discretion  of  the  Court. 


onus. 


t\/9     §  3707.  The  best  evidence  which  exists  of  the  fact  sought  to  be 
Best  evi-  proved  must  be  produced,  unless  its  absence  is  satisfactorily  ac- 
^  ,  counted  for.      Lv^fi^-vf   ,       C4u^Au^     %U-  I   ' 

;  .r /         §3708.  Pn'mar^  evidence  is  such  as  in  itself  does  not  indicate 
Primary  the  existeucc  of  other  and  better  proof.     Secondary  evidence  is 

ana  second-  ^  ^  ■••  ^  '^ 

ary  evidence  guch  as  from  ueccssity  iu  some  cases  is  substituted  for  stronger 

and  better  proof. 

§  3709.  Written  evidence  is  considered  of  higher  proof  than 

Written  Oral,  and  in  all  cases  where  the  parties  have  reduced  their  con- 
evidence.  .  .         ■*• 

tract,  agreement,  or  stipulation  to  writing,  and  assented  thereto, 
it  is  the  best  evidence  of  the  same. 

§  3710.  Copies  of  records  of  judicial  proceedings,  and  wills  ad- 
wiiis  and  mitted  to  probate,  are  admitted  as  primary  evidence,  when  prop- 
erly authenticated.     In  all  other  cases  a  copy  is  secondary  evi- 
dence. 

.      I-      ff^ 


records 


C^.-L'^O       ^ 


PT.  3.-~TIT.  10.— CHAP.  2.— Evidence. 


715 


Article  1. — General  Kules. 


^■ 


§  3711.  An  officer  de  facto  may  be  proved  by  his  acts,  without     officer  do 
the  production  of  his  commission  or  appointment. 

§  3712.  Inscriptions  on  walls,  monuments,  and  other  fixed  ob-  inscriptions 

'^  r  7  7  QQ       monu- 

jects,  may  be  proved  by  copies  established  as  such.  ™^°*S'  ®^«- 

§  3713.  Other  cases  of  necessity,  or  manifest  convenience,  rest-     other  ex- 
ing  on  like  principles  of  reason  and  justice,  may  be  made  excep- 


tions to  the  general  rule. 

§  3714.  In  order  to  admit  secondary  evidence,  it  must  appear 
that  the  primary  evidence,  for  some  sufficient  cause,  is  not  accessi- 
ble to  the  diligence  of  the  party.  This  showing  is  made  to  the 
Court,  who  will  hear  the  party  himself,  on  the  question  of  dili- 
gence, and  the  inaccessibility  of  the  primary  evidence. 

§  3715.  There  are  degrees  in  secondary  evidence,  and  the  best 
should  always  be  produced.  Thus,  a  duplicate  is  better  than  a 
copy,  and  an  examined  copy  than  oral  evidence. 

§  3716.  The  existence  of  a  genuine  original,  is  essential  to  the 
admissibility  of  a  copy.  The  amount  of  evidence  to  show  such 
existence,  must  vary  with  the  circumstances  of  each  case.  Where 
no  direct  issue  is  made  upon  this  fact,  slight  evidence  would  be 
sufficient. 


Secondary 
evidence — 
when  ad- 
mitted. 


Degrees 
therein. 


Original  ex- 
istence of« 


ARTICLE   II. 


OF      HEARSAY. 


Section. 

3717.  Hearsay  evidence. 

3718.  Sometimes  original  evidence. 

3719.  Pedigree. 

3720.  Res  gestce. 

3721.  Declarations  of  persons  in  possess'n. 

3722.  Declarations  of  conspirators. 

3723.  Of  deceased  persons. 


Section. 

3724.  Books  of  account. 

3725.  Matters  of  public  interest. 

3726.  Ancient  documents. 

3727.  Ancient  boundaries  and  landmarks. 

3728.  Dying  declarations. 

3729.  Testimony  of  witnesses. 


Hearsay 
evidence. 


§  3717.  Hearsay  evidence  is  that  which  does  not  derive  its  value 
solely  from  the  credit  of  the  witness,  but  rests  mainly  on  the  vera- 
city and  competency  of  other  persons.  The  very  nature  of  the 
evidence  shows  its  weakness,  and  it  is  admitted  only  in  specified 
cases  from  necessity. 

§  3718.  When,  in  a  legal  investigation,  information,  conversa-    sometimes 

,,.,.  original  evi- 

tions,  letters,  and  replies,  and  similar  evidence,  are  facts  to  ex-  ^^nce. 
plain  conduct  and  ascrtain  motives,  they  are  admitted  in  evidence 
not  as  hearsay,  but  as  original  evidence. 


716  PT.  3.— TIT.  10.— CHAP.  2.— Evidence. 

Article  2. — Hearsay. 

§  3719.  Pedigree,  including  descent,  relationship,   birth,   mar- 
Pedigree.   rlagc,  and  death,  may  be  proved  either  by  the  declarations  of  de- 
ceased persons  related  by  blood  or  marriage,  or  by  general  repute 
^F?'  ^^  *^®  family,  or  by  genealogies,  inscriptions,  ''family  trees,"  and 

/;:  similar  evidence. 

§  3720.  Declarations  accompanying  an  act,  or  so  nearly  con- 
Besgestm.  nected  therewith  in  time  as  to  be  free  from  all  suspicion  of  de- 
«/}»>?>'i^        vice  or  after- thought,  are  admissible  in  evidence  as  part  of  res 
" "  -  gestce, 

§  3721.  Declarations  of  a  person  in  possession  of  property  in 
Deciaratioris  disparagement  of  his  own  title  are  admissible  in  evidence  in  favor 

of  persons  m  ^        '  o 

possession.    Qf  g^j^y  q^q^  jjnd  agaiust  privies.     Declarations  in  favor  of  his  own 
7Xf  title  are  admissible  to  prove  his  adverse  possession. 

0  -    ^cf"/  §  3722.  After  the  fact  of  conspiracy  is  proved,  the  declarations 

Declarations  of  any  ouc  of  the  couspirators  during  the  pendency  of  the  crimi- 

of  conspu'a-  •^   ^  ^        '^  ox  ./ 

tors.  ^         nal  project,  are  admissible  against  all. 

"VVz  §  3723.  The  declarations  and  entries  of  a  person,  since  deceased, 

Ofdeceased  a2;ainst  his  interest,  and  not  made  with  a  view  to  pendini>;  litiga- 

persons.  ^  ....  a  o  o 

/'J!  2  iT        tion,  are  admissible  in  evidence  in  any  case. 
/"'SJ^  ^  f       §3724.  The  books  of  account  of  any  merchant,  shop-keeper, 
'""•  ^  Books  of  physician,  blacksmith,  or  other  person  doing  a  regular  business 
and  keeping  daily  entries  thereof,  may  be  admitted  in  evidence,  as 
proof  of  such  accounts,  upon  the  following  conditions  : 

1.  That  he  kept  no  clerk,  or  else  the  clerk  is  dead,  or  otherwise 
inaccessible. 

2.  Upon  proof  (the  party's  oath  being  sufficient)  that  the  book 
tendered  is  his  book  of  ^^^j^jj^gj,  ffltiF^'^s , 

3.  Upon  pro  of. -{fey*  "Ills  customers)  that\he  usually  kept  correct 
books.      ^^'^' 

4.  Upon  inspection  by  the  Court,  to  see  if  the  books  are  free 
from  any  suspicion  of  fraud. 

§  3725.  Hearsay  evidence  as  to  declarations  of  deceased  per- 
Matters  of  SOUS  as  to  ancicnt  rights,  and  made  before  the  litigation  arose,  are 

public  inter-       t..,-,  r-  t  t       '  •  ^  •    ^       ^ 

est,  admissible  to  prove  matters  of  public  interest  m  which  the  whole 

community  are  supposed  to  take  interest  and  to  have  knowledge. 

§  3726.    Ancient  documents,  purporting  to  be  a  part  of  the 

Ancient  .  i.i-i  i  i««it- 

documents,   transaction  to  which  they  relate,  are  admissible  in  evidence. 

§  3727.  Traditionary  evidence,  as  to  ancient  boundaries  and 
bounSies  landmarks,  is  admissible  in  evidence — the  weight  to  be'  deter- 
marks.^'^  '  mined  by  the  jury,  according  to  the  source  whence  it  comes. 


aceouat 


PT.  3.— TIT.  10.— CHAP.  2.-^Evidence. 


71T 


Article  3. — Admissions  and  Confessions. 


■ifZ 


%  3728.  Dying  declarations,  made  by  any  person  in  the  article  of    Dying  de- 

'^  ,  .  .    .  .     claratlons. 

death,  who  is  conscious  of  his  condition,  as  to  the  cause  of  his  •  7X 
death  and  the  person  who  killed  him,  are  admissible  in  evidence  /  ^--^3 

in  a  prosecution  for  the  homicide.  >       ^^/ 

§  3729.    The  testimony  of  a  witness,  since  deceased,   or  dis-  Testimony 

,  ,  of      witness 

qualified,  or  inaccessible  for  any  cause,  given  under  oath  on  a  «i]     former 
former  trial,  upon  substantially  the  same  issue  and  between  sub- 
stantially the  same  parties,  may  be  proved  by  any  one  who  heard 
it  and  who  professes  to  remember  the  substance  of  the  entire  tes- 
timony, as  to  the  particular  matter  about  which  he  testifies. 


ARTICLE    III. 


OF    ADMISSIONS    AND     CONFESSIONS. 


Section. 

Section. 

8730.  Definition. 

3739.  Weight  of  such  evidence. 

3731.  Parties  to  record. 

3740.  Confessions  must  bevoluntary» 

3732.  Real  parties  in  interest. 

3741.  Under  promise  of  secrecj',  etc. 

3733.  Of  strangers. 

3742.  Material  facts  discovered. 

3734.  Of  agents. 

3743.  Confession  of  conspirators. 

3735.  Of  privies. 

3744.  Confidential  communications. 

3736.  Admissions  improperly  obtained. 

3745.  Attorney  and  client. 

3737.  Effect  of  silence. 

3746.  When  Grand  Jury  may  disclose 

3738.  Entire  conversation. 

record. 


§  3730.  Admissions  usually  refer  to  civil  cases ;  confessions  to  Definitions, 
criminal.  ■  -■*-?  -> 

§  3731.  The  admission  of  a  party  to  the  record  is  admissible  in    Parties  to 
evidence  when  offered  by  the  other  side,  except  in  the  following 
cases : 

1.  In  case  of  a  mere  nominal  party  or  naked  trustee. 

2.  Where  there  are  several  parties  with  no  joint  interest,  the 
admissions  of  one  can  not  be  received,  unless  the  issue  is  of  such 
a  character  that  the  effect  of  the  admission  can  be  restrained  to 
him  alone. 

3.  The  admissions  of  any  trustee  before  he  is  clothed  with  the 
trust. 

4.  Defendants  in  ji,  fa.  in  claim  cases  after  the  pendency  of  lit- 
igation. 

§  3732.  The  admission  of  the  real  party  in  interest  is  admissi-  lieai parties 
ble,  though  he  be  not  of  record,  subject  to  the  exceptions  stated 
above. 


in  interest. 


T18  PT.  S.-^'TIT.  10.— CHAP.  2.— Evidence. 

Article  3. — Admissions  and  Confessions. 


A"v'vr 


§  3733.  The  admissions  of  third  persons,  strangers  to  the  suit, 
Of  strangers,  are  received  in  evidence — 

1.  When  the  party  refers  to  such  third  person  for  information. 

2.  Admissions  made  by  a  third  person  against  his  interest  as  to* 
a  fact  collateral  to  the  main  issue  between  the  litigants,  but  essen- 
tial to  the  adjudication  of  the  cause. 

3.  Statements  of  an  interpreter  where  from  any  cause  he  can 
not  be  sworn. 

§  3734.  The  admissions  of  an  agent  or  attorney  in  fact,  during 
Of  agents,  the  cxistcnce  and  in  pursuance  of  his  power,  are  evidence  against 
«    the  principal. 

§3735.  The   ad^iissions   of  privies  in  blood,  privies  in  estate, 
Ofprivies.  and  privics  in  law  are  admissible  as  against  the  parties  themselves, 
but  declarations  of  privies  in  estate,  after  the  title  has  passed  out 
of  them,  can  not  be  received. 

§  3736.  Admission  obtained  by  constraint,  or  by  fraud,  or  by 
Admissions  drunkenucss  induced  for  the  purpose,  or  admissions  or  proposi- 

Improperly  i.        i  7  x        1 

obtained,      tions  made  with  a  view  to  a  compromise,  are  not  proper  evidence. 
§  3737.  Acquiescence,   or  silence  when  the  circumstances  re- 
siienS^*  ^^  quire  an  answer  or  denial,  or  other  conduct,  may  amount  to  an  ad- 
mission. '^  t  ^    i }■ 

'   ''    ^]  :  §3738.   When  an  admission  is  ffiven  in  evidence  it  is  the  rio^ht    ,    / 

^   ->     ■/       f  ■'■  ^  o  f  .  ^         L,  f  f 

Entire  con-  of  the  Other  party  to  have  the  whole  admission  and  all  the  conver- 

Versation.  •••         *' 

sation  connected  therewith. 

§3739,  All  admissions  should  be  scanned  with  care,  and  con- 

Weigiit  of  fessions  of  guilt  should  be  received  with  g^reat  caution.     A  con- 
such      eVi-  ^  *^  .... 

vdence,     ,    fession  alonc,  uncorroborated  by  other  evidence,  will  not  justify  a 

^'■■■^"       \      -•     conviction.  /  ^-^     '         '  "  '    ;     . 

§  3740.  To  make  a  confession  admissible,  it  must  have  been 

Confession  made  voluntarily,  without  being  induced  by  another,  by  the  slight- 
must  be  vol-  P  1  r»  p  p   •    • 

untary.        est  hopc  01  Denent  or  remotest  tear  oi  injury. 

§  3741.  The  fact  that  a  confession  is  made  under  a  spiritual  ex- 
tTnderpro-  hortatiou,  or  a  promise  of  secrecy,  or  a  promise  of  collateral  ben- 

crecy^  etc.      fit,  shall  not  CXCludc  it. 

§  3742.  Any  material  facts  discovered  by  a  confession  by  a 
Material  prisoucr  mav  be  proved,  and  the  fact  of  its  discovery,  by  reason 

facts  discov-  %>  i.  '  %i  t      *i 

ered.  of  such  information,  though  the  confession  is  rejected. 

§  3743.  The  confession   of  one  joint  offender  or  conspirator, 
Confession  made  after  the  enterprise  is  ended,  is  admissible  only  against  him- 

of  conspira-       in  >  •/       o 

tors.  self. 


PT.  3.-^TIT.  lO.-^CHAP.  2.— Evidence. 


719 


Article  3. — Admissions  and  Confessions. 


§  3744.  There  are  certain  admissions  and  communications  ex-  confidential 

coDQinunica- 

oluded,  from  public  policy.     Among  these  are —  tione,  etc. 

1.  Communications  between  husband  and  wife.* 

2.  Between  attorney  or  counsel  and  client.*  .^'.{f  / 

3.  Among  Grand  Jurors. 

4.  Secrets  of  State. 

§  3745.  Communications  to  any  attorney,  or  his  clerk,  to  be  andtuenr^ 
transmitted  to  the  attorney  pending  his  employment,  or  in  an- 
ticipation thereof,  should  never  be  heard  by  the  Court.  So  the 
attorney  can  not  be  compelled  to  disclose  the  advice  or  counsel 
he  may  give  to  his  client,  nor  to  produce  or  deliver  up  title  deeds,  ■ 
or  other  papers,  except  evidences  of  debt  left  in  his  possession  by 
his  client.  This  rule  does  not  exclude  the  attorney  as  a  wit- 
ness to  any  facts  which  may  transpire  in  connection  with  his  em- 
ployment, f 

§3746.  Grand  Jurors  shall  disclose  every  thins;  which  occurs  when  Grand 

,  Jurors    may 

in  their  service  whenever  it  becomes  necessary,  in  any  Court  of  disclose. 
Becord  in  this  State. 


ARTICLE    IV. 

OF     PAROL     EVIDENCE     TO     AFEECT     WRITTEN, 


Section. 

3747.  General  rule. 

3748.  Contemporaneous  Writings. 

3749.  Void  instruments. 

3750.  Where  part  only  is  in  writing. 

3751.  Surrounding  circumstances. 


Section. 

3752.  Usage. 

3753.  Other  cases. 

3754.  Receipts. 

3755.  Blank  indorsements. 

3756.  Reducing  deed  to  mortgage. 


§  3747.  Parol  contemporaneous  evidence  is  inadmissible  gener-  General  rule, 
ally  to  contradict  or  vary  the  terms  of  a  valid  written  instrument. 

§  3748.  All  contemporaneous  writings  are  admissible  to  explain    contempo- 
each  other,  and  parol  evidence  is  admissible  to  explain  all  ambigu-  tfnls^.^^^ 
ities,  both  latent  and  patent. 

§3749.  Parol  evidence  is  admissible  to  show  that  the  writing 
was  either  originally  void  or  has  subsequently  become  so. 

§  3750.  If  the  writina;  does  not  purport  to  contain  all  the  stip-  Where  part 

.  ^  ^._  only    is     ia 

ulations  of  the  contract,  parol  evidence  is  admissible  to  prove  writing. 


Void   in- 
struments. 


*  As  to  tlie  competency  of  witnesses,  and  how  far  they  are  compelled  to  testi- 
^  fy,  see  Sections  3798  and  3799. 

t  As  to  the  competency  of  witnesses,  and  the  extent  of  their  obligation  to 
testify,  see  Sections  3798  and  3799. 


720 


PT.  3.— TIT.  10.— CHAP.  2.— Evidence. 


Article  4. — Parol  Evidence  to  Affect  Written. 


other  portions  thereof  not  inconsistent  with  the  writing ;  so  collat- 
eral undertakings  between  parties  of  the  same  part  among  them- 
selves would  not  properly  be  looked  for  in  the  writing. 
Surround-      §  3751.  The  surroundinff  circumstances  are  always  proper  sub- 

ing    circum-  .  •/» 

stances.       jects  of  proof  to  aid  in  the  construction  of  contracts. 

§  3752.  In  like  manner  evidence  of  known  and  established  usage 
tTsage.      is  admissible  for  the  same  purpose  as  well  as  to  annex  incidents. 
§3753.  Parol  evidence  is  also  admissible  to  rebut  an  equity,  to 
other  cases,  discharge  the  entire  contract,  to  prove  a  new  and  distinct  subse- 
(^uent  agreement,  to  enlarge  the  time  or  change  the  place  of  per- 
formance. 
ro  §  3754.  Receipts  for  money  are  always  only  prima  facie  evi- 

Eeceipts.    dcncc  of  payment  and  may  be  denied  or  explained  by  parol. 

§  3755.  Blank  indorsements  of  negotiable  paper  may  always 
Blank  in-  bc  explained  between  the  parties  themselves,  or  those  taking  with 

dorsements.  •r>Ti  c   \  in  n  ^  i 

notice  of  dishonor  or  of  the  actual  facts  of  such  indorsements. 

§  3756.  A  deed  or  bill  of  sale,  absolute  on  its  face  and  accom- 

Eeducing  panicd  with  possession  of  the  property,  shall  not  be  proved  (at 

mortgage,    the  instanco  of  the  parties)  by  parol  evidence  to  be  a  mortgage 

only,  unless  fraud  in  its  procurement  is  the  issue  to  be  tried. 


CHAPTER    III. 

OF     DISCOVERY     FROM     THE     PARTIES. 


Section. 

3757.  Discovery  at  law. 

3758.  Just  as  other  witnesses. 

3759.  Privilege  of  oral  examination. 


Section. 

3760.  Failingto  answer,  or  evading. 

3761.  Privileged  matters. 


§  3757.  Discovery  may  be  had  from  the  opposite  party,  either 

Discovery  .^  ,.  ,..  ^  '        ^  •      c^ 

at  law.         nominal  or  real,  m  any  case  pending  in  any  (Jourt  m  this  btate. 

§  3758.  The  party  seeking  the  discovery  may  either  subpoena 
justasoth-  the  other  party  as  a  witness,  or  else  file  interrosratories,  and  sue 

er  witnesses.  .  .  . 

out  a  commission,  as  in  cases  provided  for  other  witnesses.  In 
the  latter  event  the  right  of  cross  examination  exists  as  in  other 
cases. 

§  3759.  When  interrogatories  are  filed  in  office,  and  notice  given 
Privilege  of  thereof,  it  shall  be  the  duty  of  the  party  souajht  to  be  examined, 

oral    exanni-  '  J  Sr         J  g  ' 

to  see  to  the  execution  and  return  of  the  same  before  the  return 
term  thereof. 


nation. 


c^; 


PT.  3.— TIT.  10.— CHAP.  4.— Evidence. 


721 


Article  1. — Records  and  Public  Documents. 


§  3760.  A  party  failing  to  appear,  without  sufficient  excuse, 
when  properly  subpoenaed,  or  failing  or  refusing  to  answer,  either 
orally  or  to  the  interrogatories  filed,  or  answering  evasively,  shall 
be  subject  to  attachment  for  contempt,  and  the  Court  may  also 
dismiss  his  case,  if  he  be  plaintiff,  or  strike  out  his  pleas,  if  he  be 
d^efendant,  or  give  such  other  direct" on  to  the  cause  as  is  consis- 
tent with  justice  and  equity. 

§  3761.  No  party  shall  be  required  to  testify  as  to  any  matter 
which  may  criminate  or  tend  to  criminate  himself,  or  which  shall 
tend  to  work  a  forfeiture  of  his  estate,  or  which  shall  tend  to 
bring  infamy,  or  disgrace,  or  public  contempt  upon  himself,  or  any 
member  of  his  family.* 


Failing  to 
answer  or 
answering 
evasivelj'. 


Privileged 
matters. 


CHAPTER    lY. 

OF  RECORDS  AND  OTHER  WRITTEN  EVIDENCE. 


Article  1. — Of  Records  and  Public  Documents.., 
Article  2. — Of  Private  Writings. 


ARTICLE  I. 

OF     RECORDS     AND     PUBLIC    DOCUMENTS. 


Section. 

3762.  Laws  and  resolutions. 

3763.  Exemplifications. 

3764.  When  primary  evidence. 

3765.  Records  lost  or  destroyed. 

3766.  Proof  of  registry. 

3767.  Certified  copy. 

3768.  If  registry  is  destroyed. 

3769.  Presumption  of  proper  probate. 

§  3762.  All  laws  and  resolutions  of  the  General  Assembly  as     Laws  and 
published  by  authority,  shall  be  held,  deemed,  and  considered  pub-  '''^^''"^'''• 
lie  laws,  and  recognized  judicially  without  proof.     The  Journals 
of  each  branch  of  the  General  Assembly,  as  published,  shall  be 
in  like  manner  recognized  without  proof. 


Section. 

3770.  Eormer  acts  continued  in  force. 

3771.  Laws  of  U.  S.  and  several  States. 

3772.  Foreign  laws. 

3773.  Effect  of  judgments  as  evidence. 

3774.  Judgment  in  rem. 

3775.  Not  evidence  for  witness. 

3776.  How  attacked. 

3777.  Notarial  acts. 


r-f 


«^.t^^  *^  ^^^  ^^^  ^  witness  is  competent  and  commllable  to  testify,  see  Sections 
3798  and  3799. 

46 


'S'. 


722  PT.  3.— TIT.  10.— CHAP.  4.— Evidence. 


Article  1. — Records  and  Public  Documents. 


§  3763.  The  certificate,  or  attestation  of  any  public  officer^ 
Exempiifi-  either  of  this  State,  or  any  County  thereof,  shall  give  sufficient 
validity  or  authenticity  to  any  copy  or  transcript  of  any  record, 
document,  paper  of  file,  or  other  matter  or  thing  in  their  respec- 
tive offices,  or  pertaining  thereto,  to  admit  the  same  in  evidence 
in  any  Court  of  this  State. 

§  3764.   Such  Exemplifications  shall  be  primary  evidence  as  to 
When  pri-  all  rccords,  or  other  things  required  by  law  to  remain  in  such  of- 

mary       evi-  -^  . 

dence.         fices,  but  Only  secondary  evidence  as  to  such  documents  as  by  la'sr 
properly  remain  in  the  possession  of  the  party. 

§  3765.  When  a  record  has  been  burned,  or  otherwise  destroyed, 
Eecordsiost  j^s  contcnts  mav  be  proved  by  any  secondary  evidence  which  does 

or  destroyed.  ./  r  ./  ./  ./ 

not  disclose  the  existence  of  other  and  better  evidence. 

§  3766.  The  official  entry  of  the  proper  officer  on  a  paper  shall 
registry.      ^^q  sufficient  cvidcnce  of  its  registry. 

§  3767.  If  the  original  of  any  paper,  properly  registered,  is 
Certified  lost  Or  destroyed,  a  certified  copy  from  the  registry  shall  be  deem- 
ed good  secondary  evidence. 

§  3768.  If  the  registry  has  also  been  destroyed  before  a  copy 
If  registry  Jjas  been  made  and  certified,  any  secondary  evidence  is  admissible 

IS  destroyed.  .  . 

to  prove  the  original  and  its  registry,  which  does  not  disclose  the 
existence  of  other  and  better  evidence. 

§  3769.  If  the  original  is  found  to  have  been  recorded,  and  it 
tion?/"™^"  ^^^^  ^^*  appear  whether  it  was  done  on  proper  probate,  the  Court 
er  probate,    gj^all  prcsumc.  Until  the  contrary  appears,  that  the  same  was  done 
on  proper  probate. 

§  3770.  All  the  acts  heretofore  passed  allowing  papers  improp- 
rormeracts  erly  registered,  and  their  copies,  when  lost,  to  be  admitted  in  evi- 

contmued  in         »'         o  ?  r        y  ? 

force.  dence  shall  be  continued  in  force. 

/;{     P  §  3771.  The  public  laws  of  the  United  States,  and  of  the  sev- 

Lawsofu.  eral  States  thereof,  as  published  by  authority,  shall  be  judicially 

S.    and  sev-  . 

eral  States,    rccognizcd  without  proof. 

§  3772.  Foreign  laws  and  judgments  must  be  authenticated  un- 

Foreign  "^  /.     ,     .  •         ct 

laws.         der  the  great  seal  of  their  respective  States. 

§  3773.  A  judgment  is  admissible  between  any  parties  to  show 
judSJiStsaf t^®  fact  of  the  rendition  thereof:    between  parties   and  privies 
evidence.      -^  -g  (;oncli>sive  as  to  the  matter  directly  in  issue,  until  reversed  or 
set  aside.  ^    - 

§  3774.  A  judgment  in  rem  is  conclusive  upon  every  body. 
§  3775.  A  judgment  is  inadmissible  for  any  purpose  in  favor  of 


Judgments 
in  rem. 


FT.  3.— TIT.  10.— CHAP.  4.— Evidence.  753 

Article  1. — Records  and  Public  Documents. 


^j)arty  upon  whose  testimony,  in  whole  or  in  part,  it  was  render-     Not  evi- 
'ed,  except  judgment  from  Justices'  Court.*  witness. 

§  3776.  A  judgment  that  is  void  may  be  attacked  in  any  Court,      How  at- 

tucked 

^nd  by  any  body.  In  all  other  cases  judgments  can  not  be  im- 
peached collaterally,  but  must  be  set  aside  by  the  Court  rendering 
them. 

§  3777.  All  notarial  acts  of  Notaries  Public  in  relation  to  bills    Notarial 

acts. 

'of  exchange,  drafts,  and  promissory  notes,  required  to  be  done  by 
the  laws  of  this  State,  may  be  proved  by  the  certificate  of  su<3h 
Notary  under  his  hand  and  seal ;  provided,  such  certificate  is  filed 
in  the  Court  at  its  first  term,  and  permitted  there  to  remain  until 
the  trial. 

The  following  acts  of  Congress,  being  frequently  needed  for 
reference,  are  here  inserted  : 

ACT  OF  CONGRESS  OF  MAY  26,  1790.   1  GRAY  ;  DIGEST  272. 

The  acts  of  the  Legislatures  of  the  several  States  shall  be  au- 
thenticated by  having  the  seal  of  their  respective  States  affixed 
thereto.  The  records  and  judicial  proceedings  of  the  Courts  of 
any  State  shall  be  proved,  or  admitted,  in  any  other  Court  within 
the  United  States,  by  the  attestation  of  the  Clerk,  and  the  seal  of 
the  Court  annexed,  if  there  be  a  seal,  together  with  the  certificate 
of  the  Judge,  Chief  Justice,  or  Presiding  Magistrate,  as  the  case 
ifiay  be,  that  the  said  attestation  is  in  due  form.  And  the  said 
records  and  judicial  proceedings,  authenticated  as  aforesaid,  shall 
liave  such  faith  and  credit  given  to  them  in  every  Court  within  the 
United  States,  as  they  have  by  law  or  usage  in  the  Courts  of  the 
State  from  whence  the  said  records  are  or  shall  be  taken. 

ACT  OF  CONGRESS  OF  MARCH  27,  1804.     SEC.  2,  GRAY;  DIGEST  180. 

"  From  and  after  the  passage  of  this  act,  all  records  and  exem- 
plifications of  office  books,  which  are  or  may  be  kept  in  any  public 
office  of  any  State,  not  appertaining  to  a  Court,  shall  be  proved 
©r  admitted  in  any  other  Court  or  office  in  any  other  State,  by  the 
attestation  of  the  keeper  of  the  said  records  or  books,  and  the 
seal  of  his  office  thereunto  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  Presiding  Justice  of  the  Court  of  the 
County  or  District,  as  the  case  may  be,  in  which  such  office  is  or 

*  Is  not  this  Section  repealed  by  Sections  3798  and  3799,  making  parties  com- 
petent and  compellable  to  testify  ? 


724 


PT.  3.— TIT.  10.— CHAP.  4.— Eyidencf. 


Article  2. — Private  Writings. 


may  be  kept;  or  of  the  Governor,  the  Secretary  of  State,  the- 
Chancellor  or  the  Keeper  of  the  Great  Seal  of  the  State,  that  the 
said  attestation  is  in  due  form,  and  hy  the  proper  officer :  and  the 
said  certificate,  if  given  by  the  Presiding  Justice  of  a  Court,  shall 
be  further  authenticated  by  the  Clerk  or  prothonatary  of  the  said 
Court,  who  shall  certify  under  his  hand  and  the  seal  of  his  office- 
that  the  said  Presiding  Justice  is  duly  commissioned  and  qualified; 
or  if  the  said  certificate  be  given  by  the  Governor,  the  Secretary 
of  State,  the  Chancellor,  or  Keeper  of  the  Great  Seal,  it  shall  be 
under  the  great  seal  of  the  State  in  which  the  certificate  is  made. 
And  the  same  records  and  exemplifications,  authenticated  as  afore- 
said, shall  have  such  faith  and  credit  given  to  them  in  every  Court 
and  office  within  the  United  States  as  they  have  by  law  or  usage 
in  the  Courts  or  offices  of  the  State  from  whence  the  same  are  or 
shall  be  taken." 


ARTICLE    11. 


OF    PKIVATE     WRITINGS. 


SECTIOIf. 

3778.  Production  of  proof. 

3779.  In  case  of  loss. 

3780.  Production  in  Court. 

3781.  When  notice  unnecessary. 

3782.  Explaining  alteration. 


S'ectiox. 

3783.  Producing  dispenses  with  proof. 

3784.  Subscribing  witness. 

3785.  Other  proof. 

3786.  Handwriting. 

3787.  Comparison  of  hands. 


Production 
of  proof. 


§  3778.  Generally  the  original  writing  must  be  produced,  and 

its  execution  proved.     The  excepted  cases  are  prescribed  by  law. 

§  3779.  If  the  paper  is  lost  or  destroyed,  proof  of  the  fact  to 

lu  case  the  Court  will  admit  secondary  evidence.     The  party  is  a  compe- 

%      "h^    *®^^^  witness  to  this  point.     The  question  of  diligence  is  one  of 

^    '  sound  discretion  in  the  Court. 

Production      ^  ^780.  The  production  of  such  private  writing  is  provided  for 

in.  Court.      \^  another  part  of  this  Code. 

§  3781.  Notice  to  produce  is  not  necessary  when  the  action  is 

When  notice  ^  •  -j 

unnecessary  brought  to  rccovcr  the  paper  or  to  set  it  aside. 

§  3782.  If  the  paper  appears  to  have  been  materially  altered, 
Explain ai-  uulcss  it  is  the  causc  of  action,  and  no  plea  of  non  est  factum  is 

teration.  '  ^  _ 

filed,  the  party  ofiering  it  in  evidence  must  explain  the  alteration 
unless  the  paper  comes  from  the  custody  of  the  opposite  party. 


PT.  3.— TIT.  10.— CHAP.  4.— Evidence.  725 

Article  2. — Private  Writiners. 


§  3783.  The  production  of  the  paper  by  the  opposite  party  (if   .Proaudng 
.he  claims  any  benefit  under  it)  dispenses  with  the  necessity  of  witiiinoof. 
proof,  and  the  notice  to  produce  dispenses  with  proof  as  against 
the  party  giving  the  notice. 

§  3784.  The  subscribing:  witness  must  be  produced  in  all  cases, .   snbBcrib- 

'^  ^  o  ^  ^  ^  mg-witness. 

except  the  following :    1st.  Ancient  writings  which  prove  them- 
selves.    2d.  If  from  any  cause  the  witness  6an  not  be  produced    *; '  ^  y  ^^^ 
or  sworn.     3d.   Office  bonds  required  by  law  to  be  approved  or  ^^._cj  %^ 

tested  by  a  particular  functionary.  4th.  If  the  paper  is  only  inci- 
dentally or  collaterally  material  to  the  case. 

§  3785.  If  the  vritness  is  not  produced,  or,  being  produced,  can  other  proof, 
not  recollect  the  transaction,  the  Court  may  hear  any  other  evi- 
dence to  prove  its  execution. 

§  3786.  Proof  of  handwriting  may  be  resorted  to  in  the  absence    Handwrit- 

in"" 

of  direct  evidence  of  execution.  In  such  case,  any  witness  is 
"Competent  to  testify  as  to  his  belief,  who  will  swear  that  he  knows 
or  would  recognize  the  handwriting.  The  source  of  his  knowledge 
is  a  question  for  investigation,  and  goes  entirely  to  th-e  credit  and 
weight  of  his  evidence. 

§  3787.   Other  writin2;s,  proved  or  acknowledged  to  be  erenuinCo  oompansoia 
may  be  aamitted  m  evidenee  tor  the  purpose   oi  comparison  by 
the  jury.     Such  other  new  papers,  when  intended  to  be  intro- 
duced, shall  be   submitted  to  the  opposite  party  before  he  an- 
nounces himself  ready  for  trial. 


^A.  /  &^ 


CHAPTER      Y. 


r     ORAL     TESTIMONY.   O,^ 


Article  I. — Of  Witnesses — their  Attendance  and  Fees* 
Article  2. — Of  their  Competency, 
Article  3. —  Of  their  Examination. 


726  PT.  3.~TIT.  10.— CHAP.  5.— Evidexcit. 


Article  1. — Witnesses — their  Attendance  and  Fees. 


ARTICLE  I. 

OF   WITNESSES— THEIR   ATTENDANCE   AND   FEES. 


% 


h. 


Section. 

3788.  Subpoenas. 

3789.  Payment  of  fees. 

3790.  Excessive  claim. 

3791.  Failure  to  attend. 


Section. 

3792.  State's  witnesses  from  other  Go's;. 

3793.  Witnesses  in  prison. 
3794»  Freedom  from  arrest. 
3795,  No  fees  in  certain  cases. 


'T£ 


;  §3788.  When  the  attendance  of  any  person  resident   in  the 

Sttbpcena.  Countj  is  required  as  a  witness  in  any  Court,  the  Clerk  of  such 

^    ^2         Court  (or  if  there  be  no   Clerk,  the  presiding  Judge  or  Justice) 

shall,  on   application,  issue   a  writ  of  subpoena,  directed  to  such 

*^' '  I  person,  requiring  him  to  appear  and  testify  in  the  case  stated,  and 

^       at  the  time  stated.     Such  subpoena  shall  be  served  on  the  witness- 

personally,  by  any  person  capable  of  proving  the  same,  at  least 

five  days  before  the  term  of  the  Court.  The  witness  so  summoned 

shall  attend  the  Court  from  term  to  term  until  the  case  is  tried. 

And  if  there  be  an  appeal  or  new  trial,  notice  of  the  fact,  without 

a  new  subpoena,  shall  be  sufficient  to  require  the  attendance  of 

the  witness.     The  witness  fee  shall  be  seventy-five  cents  per  diem. 

§  3789.  The  payment  of  the  fees  of  a  witness  shall  not  be  de- 

Payment  mandcd  as  a  condition  precedent  to  an  attendance.     But  at  the^ 

offeea.  ^  . 

close  of  each  term,  or  any  term,  the  witness  may  make  affidavit 
before  any  Justice  of  the  Peace,  or  Clerk  of  the  Court,  of  the 
number  of  days  he  has  attended  on  such  subpoena  for  which  his 
fees  are  due,  which  affidavit,  when  countersigned  by  the  Clerk  (or 
Mod©  of  if  no  Clerk,  the  Judge,)  and  attached  to  the  subpoena,  shall  have 

collection,  '  o   ?/  ^  ^  r  ? 

the  force  and  effect  of  an  execution  against  the  property  of  the 
party  at  whose  instance  he  was  subpoenaed  (unless  in  behalf  of  the 
State). 

§  8790.  A  witness  who  shall  claim  more  than  is  due  to  him  for- 
Excessive  feits  all  his  fees,  and  shall  pay  to  the  injured  party,  in  addition 
thereto,  four  times  the  amount  so  unjustly  claimed. 

§  8791.  The  Court  may  proceed  hj  attachment  to  compel  the 

Failure  to  attendance  of  a  witness  who  fails  to  obey  the  precept,  and  also  to 

punish  him  by  a  fine  not   exceeding  three  hundred  dollars.     In 

addition  thereto  such  a  witness  shall  be  liable  in  damages  to  the 

person  causing  him  to  be  subpoenaed  for  his  failure  to  attend. 

§  3792.  Witnesses  for  the  State  in  a  criminal  prosecution  in  the 
Superior  Courts,  attending  in  a  different  County  from  that  of  their 


PT.  3.— TIT.  10.— CHAP.  5.— Evidench. 


727 


Article  1. — Witnesses — their  Attendance  and  Fees. 


residence,  sliall  receive  each,  two  dollars  per  day  during  their  at-   staters  wit- 
tendance,  and  two  dollars  for  each  thirty  miles  traveled  in  going  other  Coun- 
and  returning,  which  shall  be  paid  on  the  subpoena,  verified  as  in 
ordinary  cases,  by  the  County  Treasurer,  out  of  the  County  funds.  '' 

In  case  of  conviction,  the  amount  paid  by  the  County  shall  be 
taxed  in  the  bill  of  costs. 

§  3793.  The  writ  of  habeas  corpus  ad  testificandum  may  be  is-    witnesses 

-'■  .  .  i*^  imprison- 

sued  by  the  Superior  Court  to  cause  the  production  in  Court  of  Die°^- 
any  witness  under  legal  imprisonment. 

§  3794.  Witnesses  are  protected  from  arrest  on  any  civil  pro-      Freedom 

from  arrest. 

cess  while  going  to  or  returning  from,  and  attending  on  any  Court, 
and  the  officer  who  shall  hold  him  imprisoned  after  seeing  his  sub- 
poena, or  being  satisfied  of  the  fact,  shall  be  liable  for  a  false  im- 
prisonment. 

§  3795.  A  witness  shall  not  receive  any  fees  whatever  for  at- 
tendance on  a  subpoena  if  the  cause  at  any  time  is  continued  for 
his  absence,  or  if  he  is  absent  at  the  trial ;  provided,  such  ab- 
sence in  neither  case  arose  from  providential  causes ;  nor  shall 
any  witness  receive  fees  from  both  parties  in  the  same  case,  but 
shall  be  paid  equally  hj  each,  unless  one  shall  be  cast  in  all  the 
cost.     A  prosecutor  shall  in  no  case  receive  fees  as  a  witness. 


/f- 


No  fees  in 

crtain  cases. 


ARTICLE    II. 

OF    THE     COMPETENCY     OF     WITNESSES. 


Section. 

3796.  Court  decides  competency. 

3797.  Religious  belief. 

3798.  Who  are  competent. 

3799.  Excepted  cases. 

3800.  Idiots,  insane,  and  children. 


Section. 

3801.  Drunkards. 

3802.  Evidence  through  interpreter. 

3803.  Decision  by  inspection. 

3804.  Objections  to  competency. 

3805.  Restoration  of  competency. 


§  3796.  The  competency  of  a  witness  must  be  decided  by  the     court  de- 

_.  cidescompe- 

Court.  tency. 


Eeligious 
belief. 


§  3797.  Religious  belief  goes  only  to  the  credit. 

§  3798.  [No  person  offered  as  a  witness  shall  be  excluded  by     who  are 
reason  of  incapacity  from  crime  or  interest,  or  from  being  a  party,  Sfyf  ""^ 
from  giving  evidence,  either  in  person  or  by  deposition,  according     "  ^    ;;;,,  „    , 
to  the  practice  of  the  Court,  on  the  trial  of  any  issue  joined,  or  ,^         (^'j^^  n 
of  any  matter  or  question,  or  on  any  inquiry  arising  in  any  suit, 
action,  or  proceeding,  civil  or  criminal,  in  any  Court  or  before  any 


/Vu.fcW'O    '^r*^    ! 


r^n-^'^- 


728  PT.  3.— TIT.  10.— CHAP.  5.— Evidence. 

Article  2. — The  Competency  of  Witnesses. 


Judge,  Jury,  Sheriff,  Coroner,  Magistrate,  officer,  or  party,  .hav 
,  M^"''  ing,  by  law  or  consent  of  parties,  authority  to  hear,  receive,  and 

^  examine  evidence;  but  every  person  so  offered  shall  be  competent, 

and   compellable   to  give  evidence  on  behalf  of  either  or  any   of 

the  parties  to  the  said  suit,  action,  or  other  proceeding,  except  a.s 

follows : 

1.  Where  one  of  the  original  parties  to  the  contract  or  cause 
Exceptions,  of  action  in  issue  or  on  trial,  is  dead,  or  is  shown  to  the  Court  to 

s  ^j^  ^  J^  ^  be  insane,  or  where  an  executor  or  administrator  is  a  party  in  any 
suit  on  a  contract  of  his  testator  or  intestate,  the  other  party  shall 
not  be  admitted  to  testify  in  his  own  favor. 

2.  No  person,  who  in  any  criminal  proceeding  is  charged  with 
the  commission  of  any  indictable  offense,  or  any  offense  punisha- 
ble on  summary  conviction,  is  competent  or  compellable  to  give 
evidence  for  or  against  himself  or  herself. 

3.  No  person  shall  be  compellable  to  answer  any  question 
tending  to  criminate  himself  or  herself. 

4.  No  husband  shall  be  competent  or  compellable  to  give  evi- 
dence for  or  against  his  wife  in  any  criminal  proceeding,  nor  shall 
any  wife,  in  any  criminal  proceeding,  be  competent  or  compellable 
to  give  evidence  for  or  against  her  husband. 

5.  No  attorney   shall   be  compellable  to  give  evidence  for  or 
^^  {i                      against  his  client.]  (a) 

§  3799.-  [Nothing  contained  in  the  preceding  Section  shall  apply 
In  cases  of  to  any  actiou,  suit,  or  proceeding,  or  bill,  in  any  Court  of  Law  or 
breacf^^of  Equity,  instituted  in  consequence  of  adultery,  or  to  any  action 
contract.  "    for  breach  of  promise  of  marriage.]  (a)     ^^y^/f'".',V'^'>  V^J?a 

§  3800.  [Persons  who  have  not  the  use  of  reason,  as  idiots,  luna- 
idiots,  etc.  tics  during  lunacy,  and  children  who  do  not  understand  the  nature 
of  an  oath,  are  incompetent  witnesses.]  (a) 

§  3801.  Drunkenness  which  dethrones  reason  and  memory,  in- 
Drunkards.  capacitatcs  during  its  continuance. 

Evidence      §  3802.  No  physical  defects  in  any  of  the  senses  incapacitates 
terpre^ter.^"  a  witucss.     An  interpreter  may  explain  his  evidence. 

§  3803.  The  Court  must,  by  examination,  decide  upon  the  ca- 
Decisionby  pacity  of  oue  alleged  to  be  incompetent  from  idiocy,  lunacy,  or 

inspection.      .  .,  ,  ,  i  -i  ti  i 

insanity,  or  drunkenness,  or  childhood. 

§  3804.  The  objection  to  competency,  if  known,  must  be  taken 

(a)  Acts  of  1866,  pp.  138-9. 


PT.  3.~-TIT.  10.— CHAP.  5.— Evidence.  729 

Article  3. — The  Examination  of  Witnesses. 
before  th^  witness  is  examined  at  all.     It  may  be  proved  by  the     objection 

*'  *■  *'  ^     tocomjyeten- 

witness  himself,  or  by  other  testimony ;  if  proved  by  other  testi-  cy— when  to 

T  ''  »/   '  L  t/  \yQ  jnade  and 

mony,  the  witness  is  incompetent  to  explain  it  away.  iio^^  proved. 

^  3805.  Any  act  which,  in  the  iudgment  of  the  Court,  removes    oompeten- 

"V  7  J       a  '  cy — now  re- 

the  ground  of  incompetency,  will  restore  the  competency  of  the  ^*^^^*^- 
witness. 


ARTICLE  III. 

OE     THE     EXAMINATION"     OE     WITNESSES 


Section. 

3806.  Oath  or  affirmation. 

3807.  Separate  examination. 

3808.  Cross-examination, 

3809.  Leading  questions. 

3810.  Memorandum  in  aid  of  witness. 

3811.  Opinions  of  witness. 

3812.  Of  experts. 

3813.  Impeaching  one's  own  witness. 


Section. 

3814.  Privilege  of  witness. 

3815.  Impeaching  a  witness. 

3816.  Laying  the  foundation. 

3817.  General  character. 

3818.  Sustaining  witness. 

3819.  If  impeached  by  condradictory 
statements, 

3820.  State  of  feeling  and  relationship.  , 

§  3806.  The  sanction  of  an  oath,  or  affirmation  equivalent  there-    Oathoraf- 

•  r>  T         •  1  mi        /-i  firmation. 

to,  IS  necessary  to  the  reception  of  any  oral  evidence.  The  Court 
may  frame  such  affirmation  according  to  the  religious  faith  of  the 
witness.  s  "* 

§  3807.     In  all  cases  either  party  has  the  right  to  have  the  wit-      separate 

n     t  -,  •        1  c*     ^       ^  '  c  -t    examination 

nesses  oi  the  other  party  examined  out  ot  the  hearing  oi  each 
other.  The  Court  will  take  proper  care  to  effect  this  object  as  far 
as  practicable  and  convenient,  but  any  mere  irregularity  shall  not 
exclude  the  witness. 

§  3808.  The  right  of  cross-examination,  thorough  and  sifting,  oross-exam- 

o  =^»-**.-  ^,  -  ,,o     ^  .  ■'  '        ^    ination      of 

belongs  to  every  party  as  to  the  witnesses  called  against  him.     If  witnesses. 
several  parties  to  the  same  case  have  distinct  interests,  each  may 
exercise  this  right. 

§  3809.  Leading  questions  are  generally  allowed  in  cross-exami-       Leading 
nations,  and  only  in  these ;  but  the  Court  may  exercise  a  discre-  "^^^^ 
tion  in  granting  the  right  to  the  party  calling  the  witness,  and  in 
refusing  it  to  the  opposite  party  when,  from  the  conduct  of  the  wit- 
ness, or  other  reason,  justice  requires  it. 

§  3810.  A  witness  may  refresh  and  assist  his  memory  by  the     Memoran- 
use  of  any  written  instrument,  or  memorandum,  provided  he  finally  of  witnesses 
speaks  from  his  recollection  thus  refreshed,   or  is  willing  to  swear 
positively  from  the  paper. 

§  3811.  Where  the  question  under  examination,  and  to  be  de-      opinions 
cided  by  the  jury,  is  one  of  opinion,  any  witness  may  swear  to  his  ^^  ^^'^^°^^^- 

■j  /.•  /  "* "— ■»»    » 


*>% 


730  PT.  3.— TIT.  10.— CHAP.  5.— Evidence. 

Article  3. — The  Examination  of  Witnesses 

%^*-^'U/^'       opinion  or  belief,  giving  his  reasons  therefor;  but,  if  the  issue  is 
//6'  ''    X-^  ^      as  to  the  existence  of  a  fact,  the  opinions  of  witnesses  generally 
are  inadmissible. 

§  3812.  The  opinions  of  experts  on  any  question  of  science, 

Experts,    skill,  trade,  or  like  questions,  are  always  admissible  ;   and  such 

opinions  may  be  given  on  the  facts  as  proved  by  other  witnesses. 

§  3813.  A  party  may  not  impeach  a  witness  voluntarily  called 

Impeaching  by  him,  cxccpt  whcrc  he  can  show  to  the  Court  that  he  has  been 

one's      own  t    i  i  • 

witness.       entrapped  by  the  witness  by  a  previous  contradictory  statement. 

§  3814.  A  witness  is  relieved  from  testifying  as  to  the  same 
Privilege  of  matters  hereinbefore  specified  in  relation  to  a  party  makinc^  dis- 

witn  esses.  i         ./  o 

/  §  3815.  A  witness  may  be  impeached — 

Impeaching      1.  By  disproving  the  facts  testified  to  by  him. 
^   /     '-  \        2.  By  proof  of  contradictory  statements  previously  made   by 
^  *^*'.         ''       him  as  to  matters  relevant  to  his  testimony  and  to  the  case. 
'  /  ,  3.  By  evidence  as  to  his  general  bad  character. 

§  3816.  Before  contradictory  statements  of  the  witness  can  be 
Laying  the  proved  against  him,  (unless  they  are  written  statements,  made  un- 
der oath  in  connection  with  some  judicial  proceedings),  the  mind 
5tl-i.^-v^4.-  «ii«^     of  the  witness  himself  should  be  called  with  as  much  certainty  as 
lit^Tt^'  possible  to  the  time,  place,  person,  and  circumstances  attending 

VU  ^P^  the  former  statement ;  and  if  in  writing,  the  same  should  be  shown 

to  the  witness,  or  read  in  his  hearing,  if  in  existence  ;  and  to  lay 
this  foundation,  the  witness  may  be  recalled  at  any  time. 

§  3817.  To  prove  general  bad  character,  the  impeaching  witness 
General  should  bc  first  askcd  as  to  his  knowledo;e  of  the  general  character 

character.  "-"  *-' 

of  the  witness,  and  next  as  to  what  that  character  is,  and  lastly, 
he  may  be  asked  if,  from  that  character,  he  would  believe  him  on 
his  oath. 

§3818.  The  witness   may   be    sustained   by   similar  proof   of 

Sustaining  character.     But  the  particular  transactions,  or  the  opinions  of  sin- 

gle  individuals  can  not  be  inquired  of  on  either  side,  except  upon 

cross-examination  in  seeking  for  the  extent  and  foundation  of  the 

witness's  knowledge. 

§  3819.  A  witness  impeached  by  proof  of  contradictory  state- 
if  impeach-  mcuts  may  be  sustained  by  proof  of  general  good  character — the 

ed  by  contra-  \  "^    \  ?  i  i         . 

dictorystate-  effcct  of  the  evideucc  to  be  determined  by  the  lury. 


ments. 


§  3820.  The  state  of  the  witness's  feelings  to  the  parties,  and 
state  of  his  relationship,  may   always  be  proved  for  the  consideration  of 

feeling    and  .  r?  ./  j  r 

relationship,  the  jury.  ^ 


r 


7 


PT.  3.— TIT.  10.— Evidence. 


731 


Chapter  6. — Interrogatories  and  Depositions. 


CHAPTER    VI. 

OF    INTERROGATORIES    AND    DEPOSITIONS, 


Sbctiox. 

3821.  Who  may  be  examined  on,  etc. 

3822.  If  the  facts  cease  to  exist. 

3823.  Mode  of  obtaining  commission. 

3824.  Without  service. 

3825.  If  there  are  several  parties. 

3826.  Appointment  of  comissioners. 

3827.  Who  may  act  as  commissioners. 

3828.  How  executed. 


Section. 

3829. 
3830. 
3831. 
3832. 
3833. 
3834. 


Compelling  witness  to  answer. 
Where  to  be  examined. 
Writing  out  their  own  answer. 
Duty  of  commissioners. 
How  received  and  disposed  of. 
Failing  to  return  a  contempt. 


3835.  Exceptions— when  taken. 


§  3821.  A  witness  may  be  examined  on  interrosratories,  by  com-  ^  who  may 

"  *'  °  '     ''  he  examined 

mission,  at  the  instance  of  either  party,  in  any  civil  cause  pend-  ^J^^jj^gg^^''^-' 
ing  in  any  Court  in  this  State,  when  either  of  the  following  state 
of  facts  exists  : 

1.  Where  the  witness  resides  out  of  the  County. 

2.  Where,  from  the  condition  of  his  health,  from  age,  or  other- 
wise, he  can  not  attend  the  Court,  or  from  the  nature  of  his  busi- 
ness or  occupation,  it  is  not  possible  to  secure  his  personal  at- 
tendance without  manifest  inconvenience  to  the  public,  or  to  third 
persons  (such  as  postmasters,  public  carriers,  physicians,  school- 
teachers, etc.) 

3.  Where  the  witness  is  about  to  remove  from  the  County,  or 
is  about  to  leave  home  on  business,  for  a  sojourn,  or  tour,  which 
will  extend  beyond  the  term  of  the  Court. 

4.  All  female  witnesses. 

5.  Where  he  is  the  only  witness  to  a  material  point  in  the 
case. 

§  3822.  If  the  state  of  facts  on  which  the   commission  issued  „JL?f®/f^' 
ceases  to   exist  before  the  trial  of  the  cause,  and  the  witness  is  ^^*- 
then  accessible  by  subpoena,  the  testimony  taken  on  interrogato- 
ries can  not  be  used. 

§  3823.  The  party  seekinsc  to  examine  a  witness  by  commission  Modeof  ob- 

,  ,  ,  tainlng  com- 

must  prepare  written  interrogatories  sufficiently  explicit  to  inform  mission. 
the  other  party  of  the  nature  of  the  testimony  sought  and  ex- 
pected, and  yet  not  liable  to  the  objection  of  being  leading  ques- 
tions, which  must  also  state  the  residence  of  the  witness,  if  known, 
and  must  serve  a  copy  of  such  interrogatories  on  the  opposite 
party,  or  his  attorney,  with  a  notice  of  the  time  of  filing.  The 
original  interrogatories  shall  then  be  filed  in  office,  and  there  re- 
main fo,r  ten  days,  during  which  time  cross-interrogatories  may  be 


service. 


732  PT.  3.— TIT.  10.— Evidence. 

Chapter  6. — Interrogatories  and  Depositions. 

filed.  At  the  expiration  of  ten  days,  a  commission  shall  issue  by 
the  Clerk  (or  presiding  Judge,  if  no  Clerk)  for  the  examination  of 
such  witness  upon  the  interrogatories. 

§  3824.  If  in  any  case  the  opposite  party  is  beyond  the  juris- 

without  diction  of  the  Court,  or  can  not  be  found,  and  is  not  represented  by 

attorney,  a  notice  at  the  Court  House  door  for  ten   days  of  the 

filing  of  the  interrogatories,  shall  authorize  a  commission  to  issue. 

§  3825.  If  there  are  more  than  one  party  opposing,  and  they 

ifthereare  have  not  a  joint  interest,  but  several  independent  interests   are 

several   par-  i     i  t  m  •  i  ^ 

ties.  represented   by  dmerent  attorneys,  copies  must  be  served  upon 

each,  and  the  right  to  file  cross-interrogatories  belongs  to  each. 
In  every  case  the  Court  should  see  that  the  party  really  to  be  af- 
fected by  the  evidence  has  an  opportunity  of  cross-examination. 
§  3826.   Commissions  shall  issue  generally  in  blank,   allowing 
Appoint-  the  party  to  select  his  commissioners  ;  but  in  any  case,  the  oppo- 
missioners.   sitc  party  shall  have  the  privilege  of  naming  two  competent  com- 
missioners, whose  names  shall  be  inserted  in  the  commission,  and 
one  of  whom  shall  act  in  the  execution  thereof,  unless  a  good  and 
sufficient  reason  be  shown  for  his  failure. 

§  3827.  No  person  is  competent  to  act  as  commissioner  who 
Who  may  would  bc  incompetent  as  a  juror  on  account  of  relationship,  or  as 
a  witness  on  account  of  interest,*  nor  will  the  attorney  of  the 
party,  or  his  clerk,  or  an  agent  paid  to  discharge  this  duty,  be  a 
competent  commissioner.  A  commissioner,  like  a  judge,  should 
stand  perfectly  impartial  between  the  parties.  [Reasonable  com- 
^^^s.  pensation  may  be  paid  to  the  commissioners,  but  not  more  than 
two  dollars  per  day  shall  be  taxed  as  costs  against  the  party  cast 
in  the  suit.]  (a) 

§  3828.  No  party,  or  his  counsel,  or  his  agent,  or  other  person 
How  ex-  on  his  behalf  should  be  present  at  the  execution  of  the  commis- 
sion, and  every  thing  attending  the  execution  should  show  a  per- 
fect impartiality  and  freedom  from  bias. 

§  3829.  If  a  witness  refuses  to  appear  before  the  commissioners, 
Compelling  QT  to  auswcr  the  interrogatories,  upon  the  certificate  of  one  of  the 

■witnesses  to  ,      .  . 

answer.  commissioncrs,  or  the  affidavit  of  the  party  or  his  attorney  to  the 
fact,  presented  to  a  Judge  of  the  Superior,  or  Justice  of  the  In- 
ferior Court,  it  shall  be  his  duty  to  issue  an  order  to  the  Sherifi", 
his  deputy,  or  any  Constable,  to  arrest  the  witness  and  bring  him 

*  See  Sections  3798-9.     (a)  Acts  of  1866,  p.  35. 


I 


PT.  3.— TIT.  10.— Evidence. 


Chapter  6. — Interrogatories  and  Depositions. 


before  such  Judge  or  Justice,  and  after  hearing  his  excuse  and 
examining  the  interrogatories,  to  see  that  the  same  are  legal,  he 
shall  order  the  said  witness  to  be  lodged  in  jail  until  he  answers 
the  same.  This  provision  shall  extend  to  commissions  sent  from 
the  Courts  of  other  States  or  the  United  States. 

§  3830.  No  female  witness  shall  be  required  to  leave  her  home  e^lJJn^e*^^® 
to  appear  before  commissioners,  nor  shall  any  witness  be  required 
to  go  out  of  the   County,  or  more  than  ten  miles  from  his  resi- 
dence ;  and  any  witness  leaving  his  home  to  be  examined  shall 
have  the  fees  of  a  witness  subpoenaed  and  attending  the  Court. 

§  3831.  Witnesses  may  write  out  their  own  answers  in  the  pres-  wp*^^"""'^ 

'^  t/  r  their       own 

ence  of  the  commissioners,  and  by  their  consent,  but  in  no  other  answers. 
way  shall  they  prepare   the  same;   and  if  the  witnesses  answer 
from  written  memoranda,  such  memoranda  shall  be  sent  with  the 
commission,  and  the  fact  certified  by  the  commissioners. 

§  3832.  The  answers  should  be  under  oath,  and  certified  to  be  »uty<>fcom- 

^  ^  '  missioners. 

so  taken.  They  should  be  written  out  plainly,  and  be  full  and 
explicit  to  all  the  direct  and  cross  interrogatories ;  they  should  be 
signed  by  the  witness,  and  attested  officially  hj  the  commission- 
ers named  in  the  commission,  and  the  place  of  execution  should 
also  appear.  The  interrogatories,  answers,  and  commissions,  should 
be  then  sealed  up  in  an  envelope,  with  the  names  of  the  commission- 
ers written  across  the  seal,  and  directed  to  the  officer  of  the  Court 
whence  the  commission  issued.  The  package  can  be  sent  by  mail 
or  intrusted  to  the  party  or  some  private  hand.  In  the  former 
case,  the  postmaster  receiving  it  from  the  commissioner  must  cer- 
tify to  the  fact,  and  the  postmaster  delivering  it  to  the  Court  must 
certify  to  its  reception  by  due  course  of  mail.  In  the  latter  case, 
the  person  receiving  and  delivering  it  in  Court  must  make  affida- 
vit of  the  fact,  and  of  its  freedom  from  alteration. 

§  3833.  The  packao;e  thus  forwarded  must  be  received  in  open  Howreceiv- 

r^  iiii'i  n  ■'•ed  and    dis- 

Court,  and  opened  only  by  its  leave  or  the  consent  of  parties,  and  posed  of. 
when  thus  received,  shall  become  an  office  paper,  to  be  used  by 
either  party  under  the  direction  of  the  Court. 

§  3834.  A  commission  once  execution  must  be  returned,  and*  a     Failing  to 

/•   "T  ^■^^n   ^1         1  •  retnrn,acoD- 

party  tailing  to  return  or  williuUy  abstracting  such,  shall  be  at-  tempt. 
tached  for  contempt,  and  otherwise  dealt  with  until  the  same  is 
produced. 

§  3835.  All  exceptions  to  the  execution  and  return  of  commis-   Exceptions 

,  ,       .  .    .  — when     ta- 

sions  must  be  made  m  writing,  and  notice  thereof  given  to  the  ^^n. 


■■'^^ 


734 


PT.  8.— TIT.  10.— Evidence. 


Chapter  7. — Perpetuating  Testimony. 


Opposite  party  before  the  case  is  submitted  to  the  jury :  'provided^ 
the  same  have  been  in  the  Clerk's  office  for  twenty-four  hours 
prior  to  the  trial.  Depositions  read  on  the  first  trial  shall  not  be 
subject  to  formal  exceptions  on  the  appeal. 


CHAPTER   VII. 

PERPETUATING     TESTIMOKY. 


Skction. 

3836.  Application  and  order. 

3837.  Deposition  and  filings 

3838.  Application  recorded. 


Section. 

3839.  Effect  of  testimony. 

3840.  Fees. 


§  3836.  If  any  person  desires  to  perpetuate  the  testimony  of  a 
Application  iiyitness,  in  anticipation  of  litigation,  not  yet  pending,  and  which 
it  is  not  in  his  power  to  commence,  he  may  make  written  applica- 
tion to  the  Judge  of  the  Superior  Court  of  the  County  where  the 
witness  resides,  or  if  a  non-resident,  where  he  may  be  tempora- 
rily, stating  the  facts,  the  proof  expected,  and  the  parties  proba- 
bly interested  on  the  other  side,  accompanying  such  application 
with  the  written  interrogatories  to  be  propounded  to  the  witness ; 
whereupon  the  Judge  shall  pass  an  order  requiring  some  disinter- 
ested attorney  of  the  Court  to  act  as  commissioner  and  take  such 
testimony,  providing  in  such  order  for  the  most  effectual  notice  to 
the  opposite  parties,  and  for  any  cross  interrogatories  which  may 
be  filed. 

§  3837.  Such  commissioner,  after  executing  the  commission  in 
Depositions  the  Same  manner  as  in  ordinary  cases,  shall  file  the  package  with 

and  filing.  ^  ... 

the  Clerk  of  the  Superior  Court,  with  his  indorsement  of  the  fact 
thereon,  which  package  shall  be  safely  kept,  until  produced  by 
him  for  publication  under  the  order  of  the  Court. 

§  3838.  The  application  for  the  order,  and  the  order,  shall  be 
Application  entered  on  the  minutes  before  delivery  to  the  commissioner  for 

recorded.  .  *^ 

execution. 
•§  3839.  Testimony  thus  taken  shall  be  used  de  bene  esse  if,  at 
Effect  of  the  time  the  litisration  arises,  no  more  satisfactory  examination  of 

testimony.        i  . 

the  witness  may  be  had. 

§  3840.  The  Court  granting  the  order  shall  prescribe  the  fees 
Fees.        to  be  paid  to  the  commissioner  and  Clerk. 


PT.  3.— TIT.  ll.^CHAP.  1.— Juries.  735 

Article  1.— Qualification  of  Grand  Jurors. 

TITLE    II. 

OF   JURIES. 


Chapter  1. — Of  Grand  Juries. 
Chapter  2. — Of  Special  Juries, 
Chapter  3. — Of  Petit  Juries. 
Chapter  4. — Special  Provisions. 


CHAPTER    L 

OF     GKAKD     JURIES. 


Article  1. — Of  the  Qualification  of  Grand  Jurors, 
Aritcle  2. — ITow  Selected,  Drawn  and  Summoned. 
Article  S.-^—Oath  of  the  Grand  Jury. 
Article.  4.—- 0/  the  Power  and  Duty  of  a  Grand  Jury, 


ARTICLE   L 

OF     QUALIFICATION     OF     GRAND     JURORS. 

Section  3841.  Qualification  of  Gfand  Jurors. 

§  3841.  All  free  white  male  citizens  of  this  State,  above  the     Quaiiflca^ 

tion  of  Grand 

age  of  twenty- one  years,  and  under  the  age  of  sixty  years,  being  Jurors. 
neither  idiots,  lunatics,  nor  insane,  who  have  resided  in  the  Coun- 
ty for  six  months  preceding  the  time  of  serving,  and  who  are 
deemed  fit  and  proper  persons,  as  hereinafter  provided,  are  hereby 
declared  qualified  and  liable  to  serve  as  Grand  Jurors,  unless  ex- 
empted by  law. 


ARTICLE   IL 

how   selected,   drawn,   and   summoned, 


Section. 

3842.  How  selected  and  drawn. 

3843.  Number  to  be  drawn. 

3844.  Number  to  be  impanneled. 


Shction. 

3845.  Precept  to  the  SheriflF, 
8846.  How  summoned* 


736  PT.  3.~-TIT.  11.— CHAP.  1.— Juries. 

Article  2. — How  Selected,  Drawn,  and  Summoned. 

§  3842.  The  Justices  of  the  Inferior  Court  of  each  County,  or 
Howse-a  majority  of  them,  together  with  the  Sheriff  and  Clerk  of  the 
Superior  Court,  shall  convene  at  the  Court  House,  in  their  respec- 
tive Counties,  on  the  first  Monday  in  June  next  after  the  adoption 
of  this  Code,  and  biennially  on  the  first  Monday  in  June  thereaf- 
ter, and  shall  select  from  the  books  of  the  Receiver  of  Tax  Re- 
turns for  their  respective  Counties,  the  names  of  sach  able,  dis- 
creet, and  qualified  citizens  of  the  County  as,  in  their  judgment, 
are  fit  and  proper  persons  to  serve  as  Grand  Jurors,  and  shall  make 
a  list  of  the  names  of  the  persons  so  selected,  and  transmit  it 
nan^s^to  be  ^^^dcr  their  hands  to  the  next  Superior  Court  of  their  respective 
made  out.  (bounties,  and  the  Clerk  of  said  Superior  Court  shall  immediately, 
after  receiving  such  list,  fairly  enter  the  same  in  a  book  for  that 
purpose,  provided  at  his  own  expense ;  and  the  Judge  then  presi- 
ding shall  cause  the  Clerk  of  said  Superior  Court  to  make  out 
tickets,  with  the  names  of  the  persons  so  selected  written  thereon ; 
which  tickets  shall  be  put  in  a  box,  to  be  provided  by  the  Clerk 
at  the  public  expense — the  box  to  have  two  apartments,  marked 
number  one  and  two  ;  the  Judge  shall  then  lock  and  seal  up  the 
box,  and  place  it  in  the  care  of  the  Clerk,  and  the  key  in  the  care 
cierkkeops  of  the  Sheriff,  and  no  Grand  Jury  shall  be  drawn  and  impanneled 

box,    Sheriff  '  "^  ^  ■•■ 

Jur'  k)'^^be  ^^*  ^^  ^^®  presence  of  the  Judge  in  open  Court,  except  as  herein- 
open  court^  after  provided ;  nor  shall  any  Clerk  or  other  person  having  the  cus- 
tody of  the  jury  box,  presume,  under  any  pretence  whatever,  to 
open  said  box,  or  transpose,  or  alter  the  names,  unless  it  be  by  the 
direction  of  the  Judge  in  open  Court,  attending  for  the  purpose  of 
draAving  a  jury,  except  as  hereinafter  excepted. 

§3843.  The  Judge  in  open  Court  shall  break  the  seal  and  un- 
How  drawn.  Jock  the  box,  and  cause  to  be  drawn  from  the  apartment  of  the 
Number  to  samo  marked  number  one,  not  less  than  twenty-three  nor  more 
than  thirty-six  names,  unless  otherwise  directed  by  law,  to  serve 
as  Grand  Jurors,  which  names  so  drawn  out  shall,  after  an  account 
is  taken  of  them  at  each  time  of  drawing,  be  carefully  deposited 
in  the  other  apartment  of  said  box  marked  number  two ;  and 
when  all  the  names  shall  have  been  drawn  out  of  apartment  num- 
ber one,  the  drawing  shall  commence  from  apartment  number  two, 
and  the  tickets  be  returned  to  number  one,  and  so  on  alternately ; 
and  no  name  so  deposited  shall,  on  any  pretence,  be  thrown  out 
or  destroyed,  except  when  it  is  satisfactorily  shown  to  the  Judge 
that  the  juror  is  either  dead,  removed  out  of  the  County,  or  is 
otherwise  disqualified  by  law. 


PT.  3,— TIT.  11»— CHAP.  1.— Juries.  737 

Article  2. — How  Selected,  Drawn,  and  Summoned. 


§  3844.  No  Grand  Jury  shall  consist  of  less  than  eighteen  or    Number  to 

^  *'  °    •  serve. 

more  than  twenty-three. 

§  3845.  Within  thirty  days  after  the  Grand  Jury  is  drawn,  as  ^^^gS^*** 
hereinbefore  provided,  the  Clerk  of  the  said  Superior  Court  shall 
issue  and  deliver  to  the  Sheriff,  or  his  lawful  deputy,  a  precept  for 
summoning  the  same,  to  which  he  shall  annex  a  panel  containing 
the  names  of  the  persons  drawn  as  aforesaid,  exactly  transcribed 
from  the  minute  book,  and  in  the  mandatory  part  of  the  precept 
the  following  words  shall  be  written — viz  :  "  The  several  persons 
named  in  the  panel  hereunto  annexed." 

§3846.  Upon  the  receipt  of  the  precept  mentioned  in  the  pre- How  served, 
ceding  Section,  the  Sheriff,  or  his  deputy,  shall  cause  the  persons 
whose  names  are  written  in  tlie  panel  annexed  to  the  precept  to 
be  served  personally,  or  by  leaving  the  same  at  his  residence,  with 
a  summons,  at  least  ten  days  before  the  sitting  of  the  Court  for 
which  they  are  drawn,  which  summons  shall  be,  in  substance,  as 
follows — to  wit:  "By  virtue  of  the  precept  to  me  directed,  you  Form  of 
are  hereby  commanded  to  appear  before  the  presiding  Judge,  at 
the  next  Superior  Court  to  be  held  at  the  Court  House,  in  and  for 

the  County  of = — ,  on  the day  of ,  at  ten  o'clock  in 

the  forenoon  of  that  day,  to  be  sworn  as  a  Grand  Juror ;"  which 
summons  shall  be  signed  by  the  Sheriff,  or  his  lawful  deputy,  who 
shall  make  due  return  of  such  precept,  setting  -forth  the  names  of 
all  persons  served  as  aforesaid,  and  also  the  names  of  those  not 
served,  together  with  the  reason  why  they  were  not  served.  [If 
there  is  no  qualified  Sheriff  in  the  County,  the  duties  prescribed 
in  this  Section  may  be  performed  by  a  Bailiff,  who  shall  be  enti-. 
tied  to  the  fees  of  a  Sheriff  for  like  service.]  (a) 


ARTICLE    III. 

OATH  OF  THE  GEAND  JUKY, 

Section.  i  Sectiojt. 

3847.  Oath  of  Grand  Jury.  I       3848,  Oath  o|  Bailiff  to  Grand  Jury. 

§3847.  The  following  oath  shall  be  administered  to  the  fore-  Oathofth& 

man  of  all  Grand  Juries — viz:  "You,  as  foreman  of  the  Grand  '^^^     ^^^^ 

Jury  for  the  County  of ,  shall  diligently  inquire  and  trie 

'  "f. 

(a)  Acts  of  1866,  p.  137. 

47 


738  PT..3.— TIT.  11.— CHAP.  1.— Juries. 

Article  3. — Oath  of  the  Grand  Jury. 

presentments  make  of  all  such  matters  and  things  as  shall  be  given 
you  in  charge,  or  shall  come  to  your  knowledge,  touching  the  pres- 
ent service  ;  the  State's  counsel,  your  fellows',  and  your  own,  yon 
shall  keep  secret,  unless  called  upon  to  give  evidence  thereof  in 
some  Court  of  law  in  this  State  ;  you  shall  present  no  one  from  envy, 
hatred,  or  malice,  nor  shall  you  leave  any  one  unpresented  from 
fear,  favor,  affection,  reward,  or  the  hope  thereof,  but  you  shall 
present  all  things  truly,  and  as  they  come  to  your  knowledge.  So 
help  you  God."  And  the  same  oath  thus  taken  by  the  foreman 
shall  be  taken  by  each  and  every  member  of  any  and  all  Grrand 
Juries  in  this  State. 

§  3848.  The  following  oath  shall  be  administered  to  all  Bailiffs 
Oath  of  Bai- attending  Grand  Juries— to  wit:  "You  do  solemnly  swear  that 

liflf    to    the  .     °  .  .  .  '' 

Grand  Jury,  you  will  diligently  attend  the  Grand  Jury  during  the  present  term, 
and  carefully  deliver  to  that  body  all  such  bills  of  indictment,  or 
other  things,  as  shall  be  sent  to  them  by  the  Court,  without  altera- 
tion, and  as  carefully  return  all  such  as  shall  be  sent  by  that  body 
to  the  Court.     So  help  you  God." 


ARTICLE    IV. 

OF  THE  POWER  AND  DUTY  OE  A  GRAND  JURY. 


Section.  • 

3849.  When  bound  to  present. 

3850.  Foreman  may  swear  witnesses. 

3851.  Power  as  to  error  in  tax  books. 


Section. 

3852.  Shall  examine  County  ofiBces. 

3853.  Shall  examine  the  list  of  voters. 


§  3849.  Whilst  Grand  Jurors  are  bound  only  to  notice  or  make 
Whenbound  presentments  of  such  offenses  as  may  or  shall  come  to  their  knowl- 

to  notice  of-  ^  /»  t  i     ii    i  i  i_ 

fenbes.  edge  or  observation  after  they  shall  have  been  sworn  ;  yet  they 
have  the  right  and  power,  and  it  is  their  duty,  as  jurors,  to  make 
presentments  of  any  violation  of  the  laws  which  they  may  know 
to  have  been  committed  at  any  previous  time,  which  are  not  barred 
by  the  statute  of  limitations. 

§  3850.  The  foreman  of  each  Grand  Jury  in  this  State  may  ad- 
Foreman  minister  the  oath  prescribed  by  law  to  all  witnesses  required  to 

may     swear  •■■  ''  .  ,  . 

wfituesses.;  testify  before  such  Grand  Jury,  and  may  also  examine  such  wit- 
nesses. 

§  3851.  Whenever  it  shall  satisfactorily  appear  to  the  Grand 

Mistake  of  Jury  of  auv  County  in  this  State  that  the  Receiver  of  Tax  Re- 
Tax  Keceiv-  "^  ''  "^  .      ,  .      , .  « 

^'  turns  has  committed  an  error  in  making  an  entry  in  his  digest,  oi 


PT.  3.— TIT.  ll.—CHAP.  1.— Juries.  739 

-  ' • —  I  «:  t 

Article  4. — The  Power  and  Duty  of  a  Grand  Jury. 

mther  quantity  or  quality  of  property  returned  in  such  digest,  or 
in  the  amount  of  taxes  assessed,  such  Grand  Jury  may  recom- 
mend the  Inferior  Court  of  their  County  and  the  Comptroller 
General  of  the  State,  to  cause  such  error  (particularly  specifying 
the  same)  to  be  corrected. 

§  3852.  In  addition  to  the  duties  of  the   Grand  Jury,  as  indi-  ine^the^- 
cated  in  the  oath  administered  to  them,  and  as  required  by  law,  it  S  reeS 
shall  be  their  special  duty,  from  term  to  term  of  the  Superior  ^  ®"^  *^™* 
Court,  to  inspect  and  examine  the  offices,  papers,  books,  and  rec- 
ords of  the  Clerks  of  the  Superior  and  Inferior  Courts,  and  also 
the  books,  papers,  records,  accounts,  and  vouchers  of  the  County 
Treasurer,  and  cause  any  such   Clerk  or   County  Treasurer  who 
«hall  have  failed  or  neglected  to  do  his  duty  as  required  by  law  to 
be  presented  for  non-performance  of  official  duty. 

§  3853.  It  shall  also  be  the  duty  of  the  Grand  Jury  of  the  sev-  ine^tM^f 
«ral  Counties  in  this  State  to  carefully  examine  the  list  of  voters  ^^^'^o*^'^^- 
required  by  law  to  be  laid  before  them,  and  if  there  be  found  on 
such  list  any  voter  not  entitled  to  vote  according  to  the  provisions 
of  this  Code,  to  present  such  voter  for  such  violation  of  law.* 


CHAPTER    IL 

OF     SPECIAL     JURIES 


Section. 

3854.  How  selected  and  sworn. 

3855.  Oath  of  special  jury. 


Section. 

3856.  No  other  oath  in  divorce  cases. 

3857.  Oath  of  Bailiff  to  special  jury. 


§  3854.  All  special  juries  shall  be  taken  from  the  Grand  Jury,  ^^^^^'^  ^^ 
and  shall  be  stricken  in  the  presence  of  the  Court  in  the  following  s^®^^- 
manner :  The  Clerk  shall  furnish  a  list  of  the  Grand  Jurors  pres- 
ent and  then  impanneled,  from  which  the  parties  or  their  attor- 
neys may  strike  out  one  alternately,  until  there  shall  be  but 
twelve  left,  who  shall  be  forthwith  impanneled  and  sworn  as  spe- 
cial jurors;    in   cases   of   appeal  by  consent,  the  plaintiff  shall 

*In  addition  to  the  foregoing  provisions,  the  following  note  may  aid  Grand  Juries 
in  the  discharge  of  their  official  duties. 

1.  They  may  recommend  extraordinary  tax  for  County  purposes. 

2.  May  examine  and  allow  Tax  Collector's  insolvent  list.  ; 

3.  May  examine  and  recommend  abatement  in  certain  cases.    See  "  Tax." 

4.  Every  Fall  Term  examine  Clerk's  account  of  sales  of  estrays. 

5.  At  Spring  Term  may  recommend  a  tax  for  educational  purposes.    See  appropriate 
heads. 


740  PT.  3.—TIT.  11.— Juries. 

Chapter  2. — Special  Juries. 

strike  first,  and  in  all  other  cases  the  appellant  shall  strike  firsty 
and  should  either  party  fail  or  refuse  to  strike  such  special  jury 
after  being  notified,  or  required  so  to  do,  the  presiding  Judge 
shall,  in  behalf  of  the  party  so  failing  or  refusing  to  strike,  pro- 
ceed in  the  same  way  and  manner  as  if  the  party  failing  or  re- 
fusing were  striking  said  special  jury  in  person,  or  consenting  to 
the  same. 

§  3855.  The  following  shall  be  the  oath  of  all  special  juries — 
The  oath  to  wit  I     "  You  shall  Well  and  truly  try  each  cause  submitted  to 

of  a  special  i      •  i  i  t  • 

jToy.  you  during  the  present  term,  and  a  true  verdict  give,  according  to 

the  law  as  given  you  in  charge,  and  the  opinion  you  entertain  of 
the  evidence  produced  to  you,  to  the  best  of  your  skill  and  knowledge, 
without  favor  or  affection  to  either  party,  provided  you  are  not 
discharged  from  the  consideration  of  the  case  submitted.  So  help 
you  God." 
No  addi-      §  3856.  No  additional  oath  shall  hereafter  be  necessary  in  cases 

tioBal    oath  ^  *' 

in     divorce  of  divorCC. 

casea. 

§  3857.  The  following  oath  shall  be  administered  to  all  Bailifis 
oathofBai-  sworn  to  take  charge  of  special  and  Petit  Juries  in  the  Superior 
charge     of  Courts  of  this   State — to   wit :     "  You  shall  take  this  Jury,  and 

Petit  Juries.     ,,        ■•  .        ■,  •,  i      •  t 

all  others  committed  to  your  charge  during  the  present  term,  to 
the  jury  room,  or  some  other  private  and  convenient  place,  where 
you  shall  keep  them  without  meat,  drink,  or  fire,  candle-light  and 
water  only  excepted,  (unless  otherwise  directed  by  the  Court.) 
You  shall  not  speak  to  them  yourself,  nor  suJBfer  others  to  speak 
to  them,  unless  it  be  by  leave  of  the  Court  to  ask  them  if  they 
have  agreed  on  a  verdict,  or  are  likely  to  agree.  All  this  you 
shall  do  to  the  best  of  your  skill  and  power.      So  help  you  God." 


CHAPTER   III. 

OF    PETIT    JURORS. 


Article  1. — Qualification  of  Petit  Jwors, 

Article  2. — How  Selected^  Drawn,  Sum7noned,  and  Sworn, 


PT.  3.-— TIT.  11.— CHAP.  3.— Juries.  741 

Article  1. — Qualifications  of  Petit  Jurors. 

ARTICLE  I. 

QUALIFICATION     OF    PETIT     JURORS. 

Section.    3858.  Qualification  of  Petit  Jurors. 

§  3858.  All  white  male  citizens  of  this  State  above  the  age  of  Quaimcatioii 
twentj-one  years,  and  under  the  age  of  sixty  years,  who  are 
neither  idiots  nor  lunatics,  and  who  have  resided  in  the  County 
for  six  months  immediately  preceding  the  time  at  which  they  are 
called  upon  to  serve,  are  hereby  declared  competent,  qualified,  and 
liable  to  serve  as  Petit  Jurors. 


ARTICLE  IL 

HOW    SELECTED,    DRAWN,    SUMMONED,    AND    SWORN. 

.Section.  I  Section. 

3859.  Selected,  drawn,  and  summoned.      I       3860.  Oath  of  Petit  Jurors. 

§  3859.  The  citizens  of  the  County  whose  names  remain  on  the     how  ee- 
books  of  the  Receiver  of  Tax  Returns  after  the  Grand  Jurors 
have  been  selected,  and  who  possess  the  qualifications  prescribed 
in  the  preceding  Section,  shall  constitute  the  body  of  Petit  Jurors 
for  service  in  the  Superior  Courts  ;  and  a  list  of  their  names  shall  Hewdrawjo. 
be  made  out  and  returned,  written  upon  tickets,  and  placed  in  a 
box  in  the  same  manner  as  required  in  cases  of  Grand  Jurors ; 
and  from  the  box  there  shall  be  drawn  a  panel  of  persons,  con-    Howeum- 
sisting  of   not  less  than    thirty-six,  nor   more   than  forty-eight  ^^^^ 
names,  unless  otherwise  directed  by  law,  who  shall  be  summoned  in 
the  sa^me  manner  and  under  the  same  regulations  which  are  pre- 
scribed for  drawing  and  summoning  Grand  Jurors. 

§  3860.  The  following  oath  shall  be  administered  to  Petit  Jurors  Their  oath 
in  all  civil  cases- — viz  :    "  You  shall  well  and  truly  try  the  causes 
depending  between  the  parties  at  variance,  and  a  true  verdict 
given  according  to  evidence.     So  help  you  God." 

Note. — ¥ot  special  provisions  in  relation  to  drawing  Grand  and  Petit  Jurors 
in  Counties  in  which  the  Superior  Court  sits  two  or  more  weeks,  see  special  acts 
not  included  in  this  Code  or  repealed  by  it 


T42 


PT.  3.— TIT.  11.— Juries. 


Chapter  4. — Special  Provisions. 


CHAPTER     IVo 

SPECIAL     PROYISIOKS. 


Section. 

3861.  "When  Jiidge  fails  to  draw  a  jury» 

3862.  Juries  may  be  made  by  talesman. 
,8863.  Defaulters— how  dealt  with. 

3864.  Jury  box  destroyed — how  replaced. 

3865.  Persons  exempt  from  jury  duty. 

3866.  May  recommend  extra  tax. 


Section. 

3867.  Oath  of  jury  in  claim  ca^es. 

3868.  Failure  of  Court— jury  stands  over. 

3869.  When  jury  lists,  etc.,  may  be  made. 

3870.  May  be  fined  for  contempt. 

3871.  May  hare  refreshments. 


§  3861.  Ifj  from  any  cause,  the  Judge  of  tlie  Superior  Court 
Fpon failure  shall  fail  to  draw  Grand  and  Petit  Juries,  as  hereinbefore  required* 

of  the  Judge  .  '     ,  ■•■  ' 

todraw.  the  Justices  of  the  Inferior  Court,  or  a  majority  of  them,  together 
with  the  Sheriff  and  Clerk  of  the  Superior  Court  of  the  County 
in  which  such  failure  occurs,  shall  assemble  at  the  Court  House  in 
such  County  [a  sufficient  length  of  time  to  perfect  service  on  said 
jurors]  (a)  previous  to  the  sitting  of  the  Court  at  which  the  jurors 
are  required  to  serve,  and  proceed  to  open  their  jury  boxes,  and 
draw  therefrom  the  required  number  of  names  to  serve  as  Grand 
and  Petit  Jurors  at  their  next  depending  Superior  Court;  and  the 
juries  being  so  drawn,  the  boxes  shall  be  again  sealed  up,  and 
with  the  key,  delivered  to  the  custody  of  the  proper  officer. 

§  3862.  When  from  any  cause  there  shall  not  be  present  a  suffi- 
jnrorssum-  cient  number  of  persons,  drawn  and  summoned  as  hereinbefore 
mg  to  at-  required,  to  make  up  a  Grand  Jury,  or  the  Petit  Juries,  the  Court 

tend,  etc  ^  -,          ,       oi       -rv.   ^  •       i  \        n  i  -.. 

may  order  the  feherm,  nis  deputy,  the  Coroner,  or  any  other  dis- 
interested person,  to  summon  bystanders  or  others,  qualified  as 
hereinbefore  prescribed,  until  the  panel  shall  be  complete. 

§  3863.  [The  Clerk  of  the  Court  shall  make  due  entry  on  the 
Defaulting  minute  book  of  the  Court,  of  the  appearance  of  all  jurors,  and 
dealt  with,  shall  likewise  enter  and  make  report  of  the  names  of  all  such  as 
shall  make  default  in  appearing ;  and  if  any  person  who  shall  be 
drawn,  impanneled,  summoned,  and  returned,  to  serve  as  a  juror 
at  any  Court  according  to  law,  shall  neglect  or  refuse  to  appear, 
or  after  appearance  shall  refuse  to  serve,  or  shall  absent  himself 
without  leave  of  the  Court,  then  and  in  that  case  it  shall  be  law- 
ful for  the  Court  to  fine  such  person,  if  a  Petit  Juror,  in  a  sum 
not  exceeding  twenty  dollars,  and  if  a  Grand  Juror,  in  a  sum  not 
exceeding  forty  dollars,  unless  such  juror  shall  show  good  and 


(a)  Acts  of  1865-6,  p.  6a 


PT.  3.— TIT.  11.— Juries.  748 

Chapter  4. — Special  Provisions. 

sufficient  cause  of  excuse,  to  be  made  on  oath  before  any  Justice 
of  the  Peace,  and  filed  in  the  Clerk's  office  of  such  Court  within 
thirty  days  after  the  opening  of  said  Court ;  the  merits  of  which 
excuse  shall  be  determined  by  the  next  succeeding  Court.]  (a) 

§  3864.  When  the  jury  list  and  jury  boxes  of  any  County  in  desS-oyed— 
this  State  shall  be  destroyed,  the  Justices  of  the  Inferior  Court,  p^J^   ^^P" 
or  a  majority  of  them,  together  with  the  Clerk  of  the  Superior 
Court  and  the  Sheriff,  shall,  as  soon  thereafter  as  practicable, 
meet  at  the  Court  House,  and  make  out  jury  lists,  and  arrange 
the  names  in  boxes  as  hereinbefore  directed. 

§  3865.  All  the  Justices  of  the  Inferior  Court  and  cler^rymen  of  Persons  ex- 

_  ^•^^  empt     from 

this  State  may  at  their  own  option  be  exempt  from  the  service  and  i^^y  ^^^y- 
duties  of  a  Grand  Juror ;   [and  all  professors  of  any  college  or     .^-VC/v 
teacher  of  any  County  or  public  school  in  this  State,  and  all  per- 
sons actually  engaged  in  attending  to  a  grist  mill,  are  exempt  from 
all  jury  duty  so  long  as  they  are  thus  engaged.]  (b) 

§  3866.  Upon  the  recommendation  of  the  Grand  Jury,  the  Jus-    The  Grand 

'^  r  J  7  Jury  may  re- 

tices  of  the  Inferior  Court  of  the  several  Counties  in  this  State  commend  an 

extra  tax. 

may  assess  and  raise  a  tax  for  the  reasonable  compensation  of 
Grand  and  Petit  Jurors,  or  either  of  them,  and  at  their  pleasure 
and  discretion  discontinue  such  tax,  and  again  resume  and  reassess 
and  raise  it  upon  the  recommendation  aforesaid ;  the  jury  and 
confession  fees  paid  into  the  County  Treasury  being  in  such  case 
a  part  of  the  fund  for  that  purpose :  and  when  such  tax  is  raised, 
the  Clerk  of  the  Superior  Court  shall  issue  to  the  jurors,  whose 
compensation  is  provided  for  as  aforesaid,  a  certificate  which  shall 
be  deemed  and  held  a  warrant  on  the  County.  Treasury  for  the 
amount  of  the  money  due  such  juror,  according  to  the  per  diem  ou?°^  ^^^^ 
pay  fixed  by  the  Inferior  Court,  and  the  County  Treasurer  shall 
pay  the  same  out  of  the  fund  so  raised  by  taxation  as  aforesaid, 

and  the  Tax  Collector  shall  collect  the  tax  and  pay  it  over  as 
County  tax. 

§  3867.  The  following  oath  shall  be  administered  to  all  Juries   oathofthe 

°  jury  in  claim 

impanneled  to  try  claim  cases,  whether  at  common  law  or  on  the  cases. 
appeal — to  wit:  "In  addition  to  the  oath  you  have  already  taken, 
you  do  further  swear  that  you  will  give  such  damages,  not  less 
than  ten  per  cent.,  as  may  seem  reasonable  and  just  to  the  plaintiff 
against  the  claimant  in  case  it  shall  be  sufficiently  shown  to  you 
that  such  claim  was  made  for  delay  only.     So  help  you  God." 

(a)  Cobb's  New  Digest,  p.  548.    (b)  Acts  of  1865-6,  p.  78,  and  Acts  of  1866,  p.  138. 


744 


PT.  S.^TIT.  11.— Juries. 


Chapter  4 — Special  Provisions. 


§  3868.  Whenever  there  shall  be  a  failure  of  the  Superior  Court, 
On  failure  in  consequeiice    of  the   non-attendance  of  the    Judge,  or   other 

of  the  Court.  ^    .  °    ' 

cause,  the  jurors  summoned  for  such  Court  shall  stand  over  to  the 
next  succeeding  term  in  the  same  manner  as  suitors  and  wit- 
nesses do. 

§  3869.    Whenever  the  proper  officers  in  any  County  in   this 
When  list  gtate  shall  fail  to  meet  and  make  out  iury  lists  and  arrange  iury 

IS  not  made.  o      j  o      t»      ./ 

boxes  for  their  respective  Counties  at  the  time  directed  in  this 
Code,  the  same  may  be  done  at  any  time  before  the  next  term  of 
the  Superior  Court  to  be  held  in  the  County  after  the  time  at 
which  the  lists  should  have  been  made  out. 

§3870.  If  any  jury  shall  commit  a  contempt  of  Court,  or  shall 
May  be  fined  break  UD  beforc  givins;  in  their  verdict  in  any  civil  case  without 

for  contempt  ^  o  o  ... 

leave  of  the  Court,  the  Court  may  declare  a  mistrial  in  the  case, 
and  shall  fine  each  of  the  offending  jurors  in  a  sum  not  exceeding 
one  hundred  dollars. 

§3871.  When  any  jury  is  confined  in  the  investigation  of  a 
May  have  re-  casc  for  a  length  af  time  which  exposes  them  to  hunger  and  cold, 

freshments.  °  .... 

the  Court  may,  on  application  from  such  jury,  direct  them  to  be 
furnished  with  such  refreshments  as  the  presiding  Judge  may  deem 
meet  and  proper ;  and  the  said  Judge  shall  have  full  power  to 
draw  his  warrant  on  the  County  Treasurer  of  the  County  where 
the  investigation  is  had  for  the  payment  of  the  same,  which  the 
said  Treasurer  shall  pay  out  of  any  funds  on  hand.  The  Judge 
may  also  allow  the  jury  fire  if  the  circumstances  require  it. 


TITLE    XIL 

PROCEEDINGS   AGAINST  OFFICERS   OF   COURT. 


CHAPTER   I. 

PROCEEDINGS  AGAINST  OFFICERS  OF  COURT. 


Section. 

3872.  Officers  subject  to  suit,  etc. 
38V3.  Liability  of  Sheriffs. 

3874.  Demand  of  money  collected. 

3875.  Service  of  demand — how  proved. 

3876.  Retired  officers  may  be  ruled. 

3877.  Rules  ni  si  against  officers. 

3878.  Answer  and  proceedings. 


Section. 

3879.  When  ruled  without  notice. 

3880.  Judgment  on  rule. 

3881.  Defaulting  officers— how  punished. 

3882.  Delinquent  attorneys. 

3883.  Rule  against  deputy  Sheriff. 

3884.  Service  of  rule  against  Sheriff. 

3885.  Rule  against  Justices  of  the  Peace. 


PT.  3. — TIT.  12. — Proceedings  Against  Officers.  745 

Chapter  1. — Proceedings  Against  Officers  of  Court. 

§  3872.  All  SherifFs,  under  Sheriffs,  Coroners,  Jailors,  and  Con-     officers  of 
stables,  and  other  officers  of  Court,  shall  be  liable  to  all  actions,  for  suits,  etc. 
suits,  and  disabilities  whatever,  which  they,  or  either  of  them,  may 
or  shall  incur  for  or  on  account  of  the  escape  of  prisoners,  or  for 
or  in  respect  of  any  other  matter  or  thing  whatever,  relating  to  or 
concerning  their  respective  offices. 

§  3873.  The  Sheriffs  of  this  State  shall  be  liable  to  an  action      Liability 

of  Sheriffs. 

on  the  case,  or  an  attachment  for  contempt  of  Court,  at  the  option 

of  the  party,  whenever  it  appears  that  such  Sheriffs  have  injured 

such  party,  either  by  a  false  return,  or  by  neglecting  to  arrest  a 

defendant,  or  to  levy  on  the  property  of  the  defendant,  or  to  pay  ^'  ^^    *    '^/ 

over  to  the  plaintiff,  or  his  attorney,  any  moneys  collected  by  such 

Sheriffs  by  virtue  of  any  ^.  fa.  or  other  legal  process,  or  to  make  a 

proper  return  of  any  writ,  execution,  or  other  process  put  into  the 

hands  of  such  Sheriff. 

§  3874.  If  anv  Sheriff,  Coroner,  Justice  of  the  Peace,  Consta- ,  ^«"7<^«i- 

*^  v  7  7  7  lected  byof- 

ble.  Clerk  of  the  Superior  or  Inferior  Court,  or  attorney  at  law,  br^demS 
shall  fail,  upon  application,  to  pay  to  the  proper  person,  or  his  ^^'  ^^*'' 
attorney,  any  money  they  may  have  in  their  hands,  which  they 
may  have  collected  by  virtue  of  their  office,  the  party  entitled 
thereto,  or  his  attorney,  may  serve  said  officer  with  a  written  de- 
mand for  the  same,  and  if  not  then  paid,  for  such  neglect  or  refu- 
sal, the  said  officer  shall  be  compelled  to  pay  at  the  rate  of  twenty 
per  cent,  per  annum  upon  the  sum  he  has  in  his  hands,  from  the 
date  of  such  demand,  unless  good  cause  be  shown  to  the  contrary. 

§  3875.  A  copy  of  said  demand  produced  in  Court,  verified  by    serviceof 
affidavit,  stating  when  and  where  the  original  was  served  upon   howprov- 
the  officer,  shall  be  prima  facie  evidence  of  the  date  and  service 
thereof.  ■  ^ 

§  3876.  Sheriffs,  deputy  Sheriffs,  Coroners,  Clerks  of   the  Su-  officers  may 
perior  and  Inferior  Courts,  Justices  of  the  Peace,  and  Constables,  ter  going  out 

.  IIP  of  office. 

shall  at  any  and  all  times  be  subject  to  the  rule  and  order  of  the 
Courts  after  they  have  retired  from  their  respective  offices,  in  such 
cases  and  in  like  manner  as  they  would  have  been  had  they  re- 
mained in  office. 

§  3877.  The  Judges  of  the  Superior  Court,  Justices  of  the  In-  Euies  ni  si 

.  .     against    offi- 

ferior  Court,  and  Justices  of  the  Peace,  respectively,  upon  appli-  cers. 
cation,  may  grant  rules  ni  si  against  all  officers  subject  thereto,  in 
vacation,  or  in  term  time,  which  rule  ni  si  shall  contain  a  full 
statement  of  the  case  in  which  the  officer  is  called  upon  to  show 


746  PT.  3. — TIT.  12. — Proceedings  Against  Officers. 

Chapter  1. — Proceedings  Against  OflScers  of  Court. 

cause,  and  also  the  time  and  place  of  hearing,  and,  if  granted  in 
vacation,  the  officer  called  on  shall  be  served  with  a  copy  thereof 
before  the  sitting  of  the  Court  to  which  it  is  made  returnable,  and 
if  granted  in  term  time,  such  service  shall  be  perfected  before  the 
case  is  called  for  hearing. 

§  3878.  The  officer  called  on  by  rule  ni  si,  as  provided  in  the 

Answer  to  preceding   Section,  shall  fully  respond  in  writing  to  said  rule, 

and    subse-  which  answcr  shall  be  under  oath,  taken  at  the  time  the  answer  is 

quent     pro- 
ceedings,     filed ;  and  if  the  answer  is  not  denied,  the  rule  shall  be  discharged, 

or  made  absolute,  according  as  the  Court  may  deem  the  answer 
sufficient  or  not.  The  movant  of  the  rule,  however,  may  traverse 
the  truth  of  such  answer,  in  which  case  an  issue  shall  be  made  up 
and  tried  by  a  jury  at  the  same  term,  unless  good  cause  of  con- 
tinuance be  shown,  which  may  be  done  once  only  by  either  party. 
Upon  the  trial  of  such  issue,  the  Court  shall  discharge  the  rule  or 
make  the  same  absolute,  according  as  the  verdict  of  the  jury  may 
be  for  or  against  the  officer. 

§  3879.  If  a   Sheriff  or   other  officer  shall  designedly  absent 
When  offi- himself  from  his   Court,  the  presiding  Jud^e  or  Justices,  in  all 

cer  may  be  .  ^  ... 

ruled  with-  guch  instanccs,  when  required  by  plaintiffs  in  execution,  or  their 
attorneys,  shall  grant  a  rule  absolute  against  such  Sheriff  without 
the  notice  aforesaid,  unless  it  is  proven  at  such  term  of  the  Court, 
that  the  said  Sheriff,  from  sickness,  is  not  able  to  attend  said 
Court. 

§  3880.  When  a  rule  absolute  has  been  obtained   against  any 
Lien  of  rule  officcr  for  the  payment  of  money  as  provided  in  this  Chapter,  such 

absolute.  -^   *^  J  r  r        ? 

rule  shall  have  the  same  lien  upon  the  property,  both  real  and 
personal,  of  such  officer  as  an  ordinary  judgment  at  law,  and  if 
'•>*  not  punctually  paid,  such  demand  shall  thereafter  draw  an  interest 
at  the  rate  of  twenty  per  cent,  per  annum,  and  the  plaintiff  may 
have  either  an  attachment  or  an  execution  issued  from  said  rule 
.    ,  absolute,  and  may  have  either  of  said  processes  returned,  and  the 

other  issued  at  pleasure. 

§  3881.  If  any  Sheriff  or  Coroner  shall  fail  to  make  a  proper 
Default  return  of  all  writs,  executions,  and  other  processes  put  into  his 

of  officers—  i     n     ,»   -i  •        i 

how  punish-  hands,  or  shall  fail  to  pay  over  all  moneys  received  on  such  exe- 
cutions, on  his  being  required  so  to  do  by  the  Couyt,  he  shall  be 
liable  to  an  action  as  for  contempt,  and  may  be  fined,  imprisoned, 
or  removed  from  office,  in  the  manner  prescribed  by  the  Constitu- 
tion and  laws. 


i 


PT.  3. — TIT.  12. — Proceedings  Against  Officers.  747 

Chapter  1. — Proceedings  Against  Ojfficers  of  Court. 
§  3882.  If  any  attorney  shall  retain  in  his  hands  any  money   Delinquent 

.  1111/-1  attorney    to 

received  by  him  for  any  client,  after  bemff  ordered  by  the  Court  te  stricken 

•^  ,  .       .  from  the  ro  I 

to  pay  over  the  same  to  the  principal,  he  shall  be  stricken  from 
the  list  of  attorneys. 

§  3883.  All  Deputy  Sheriffs   shall  be  liable  to  be  ruled  and       Deputy 

,,.,  •«■•'  m'rvi  Sheriffs  Bub- 

attached  m  the  same  way  and  manner  as  Sheriffs ;  but  the  liabil-  ject  to  rule, 
ity  of  the  Sheriff  shall  not  be  affected  by  any  such  proceeding 
against  his  deputy,  when  the  same  is  not  effective. 

§  3884.  Whenever  the  Sheriff  or  his  deputy  is  a  party  to  said  Euie against 
rule,  or  interested  therein,  and  there  be  no  Coroner  or  other  law-  deputy  — by 

'  whom  eerv- 

ful  officer  of  said  County  to  execute  the  same,  it  shall  be  the  duty  ^^' 
of  the  Judge,  or  Justice,  or  Justices  of  said  Court  to  appoint, 
fro  tempore,  a  special  officer  to  carry  out  and  effectuate  the  order 
of  said  Court,  which  said  officer,  so  appointed,  shall  be  allowed 
the  usual  fees  of  Sheriffs  for  like  service. 

§  3885.  Justices  of  the  Peace  and  Constables  shall  be  so  far  con-    Justices  of 

the       Peace 

sidered  officers  of  the  Superior  Court,  as  to  be  subject  to  be  ruled  ^n^  Consta- 

■*•  ^  .  .      *  .  "^^^  —where 

under  similar  regulations  as  are  herein  provided  in  relation  to  any  '^'^^e^- 
other  officer  of  said  Court,  and  shall  be  subject  to  all  the  pains 
and  penalties  are  herein  provided,  in  case  of  a  rule  absolute 
against  Sheriffs  and  other  officers  of  said  Court,  when  they,  or 
either  of  them,  shall  refuse  or  neglect  to  pay  over  any  money 
which  they  may  have  received  or  collected  in  their  official  ca- 
pacity. 


TITLE    XIII. 

OF    PROCEEDINGS    TO     FORECLOSE    MORTGAGES. 


Chapter  1. — Of  Mortgages  on  Real  Estate — how  Foreclosed. 
Chapter  2. — Of  Mortgages  on  Personalty — how  Foreclosed, 

•   N^       , ■ 

l^HAPTER   I. 

MORTGAGES    ON    REAL    ESTATE— HOW    FORECLOSED. 


Article  1. — Of  the  Application — when  and  how  made. 
Article  2.— -Defenses,  Fleas,  etc. — when  and  how  made. 
Article  3. — Of  the  Judgment,  Disposition  of  Property,  etc. 
Article  4. — Of  the  Proceeds  of  Sale — how  Appropriated. 


748       PT.  8.— TIT.  13.— CHAP.  1.— Foreclosing  Mortgages. 

Article  1. — Application  to  Foreclose,  etc. 


ARTICLE  I. 

APPLICATION    TO    FORECLOSE-WHEN,    WHERE,    AND    HOW    MADE,    AND 

PROCEEDINGS    THEREON. 

SECTioiir.  j  Section. 

3886.  Mortgage  on  land — how  foreclosed,  j        3887.  Executors,  etc.,  may  foreclose. 

§  3886.  Mortgages  on  real  estate  in  Georgia  shall  be  foreclosed 
Foreciosura in  the  followinsj  manner — to  wit:  Any  person  applying  and  enti- 

of  mortgage  °  ^    r  r  i    ^       o 

on  realty,  tied  to  foreclose  such  mortgage  shall,  by  himself,  or  his  attorney, 
petition  to  the  Superior  Court  of  the  County  wherein  the  mort- 
gaged property  may  be,  which  petition  shall  contain  a  statement 
of  the  case,  the  amount  of  the  petitioner's  demand,  and  a  descrip- 
tion of  the  property  mortgaged ;  whereupon  the  Court  shall  grant 
a  rule  directing  the  principal,  interests  and  costs  to  be  paid  into 
Court,  on  or  before  the  first  day  of  the  next  term  immediately 
succeeding  the  one  at  which  such  rule  is  granted ;  which  rule  shall 
be  published  once  a  month  for  four  months,  or  served  on  the  mort- 
gager, or  his  special  agent  or  attorney,  at  least  three  months  pre- 
vious to  the  time  at  which  the  money  is  directed  to  be  paid  into 
Court  as  aforesaid. 

§  3887.  If  the  person  entitled  to  foreclose  the  mortgage  on  real 
By  repre-  estate  be  dead,  the  application  and  proceedins^  to  foreclose  may  be 

sentative   of  7  rr        ^  r  &  ^  J 

deceased  made  and  prosecuted  by  his  executor  or  administrator. 

mortgagee.  ^  •' 


ARTICLE    II. 

OF  PLEAS,  DEFENSES,  ETC.-WHEN  AND  HOW  MADE. 


Section. 


3888.  Defenses  against  foreclosure. 

3889.  Third  persons  can  not  defend. 


Section. 

3890.  Proceedings?  against  executors,  etc 

3891.  Issue — how  tried. 


§  3888.  When  a  rule  ni  si  to  foreclose  a  mortgage  on  real  estate 
Defense  has  been  granted,  and  the  same  has  been  published  or  served,  as 

against  fore-  ...  .  . 

closure     of  hereinbefore  required,  the  mortgager,  or  his  special  agent  or  at- 

mortgage  on  -■■  '  o    o      -'  i  o 

realty.  torney,  may  appear  at  the  term  of  the  Court  at  which  the  money 
is  directed  to  be  paid,  and  file  his  objections  to  the  foreclosure  of 
such  mortgage,  and  may  set  up  and  avail  himself  of  any  defense 
which  he  might  lawfully  set  up  in  an  ordinary  suit  instituted  on 
the  debt  or  demand  secured  by  such  mortgage,  and  which  goes  to 
show  that  the  applicant  is  not  entitled  to  the  foreclosure  sought, 


PT.  3.— TIT.  13.— CHAP.  1.— FoRECLosiNa  Mortgages.       749 

Article  3. — The  Judgment  and  Disposition  of  Mortgaged  Property. 


or  that  the  amount  claimed  is  not  due ;  provided^  that  the  facts  of 
such  defense  are  verified  by  the  affidavit  of  such  mortgager,  or 
special  agent,  or  attorney,  at  the  time  of  filing  the  same. 

§  3889.  If  the  mortgager,  or  his  special  agent,  or  attorney,  fail  so™anS 
to  set  up  the  defense  provided  for  in  the  preceding  Section,  it  is  ^<^^^°^- 
not  competent  for  any  third  person  to  interpose ;  neither  will  the 
Court  itself,  of  its  own  motion,  do  so. 

§  3890.  When  the  mortgager  is  dead,  the  proceeding  to  fore-  ^usf^S 
close  the  mortgage  on  real  estate  may  be  instituted  against  his  ^/"^^mortS 
executor  or  administrator.  ^^^' 

§  3891.  When  proceedings  to  foreclose  a  mortgage  are  insti-  J/^^^~^^"^ 
tuted,  and  a  defense  is  set  up  thereto,  as  hereinbefore  provided, 
the  issue  shall  be  submitted  to  and  tried  by  a  special  jury,  as  in 
appeal  cases. 


ARTICLE    III. 

OF   THE   JUDGMENT  AND   DISPOSITION   OF   MORTGAGED   PROPEHTY. 

Section  3892.  Judgment  of  foreclosure  and  sale. 

§  3892.  When  the  mortaraser,  after  bein^  directed  so  to  do,  fails  ^J«(igment 

'^  ^       ^  o    o      '  &  'of    foreclos- 

to  pay  the  principal,  interest,  and  cost,  as  hereinbefore  required,  "f®^"rt^ai- 
and  also  fails  to  set  up  and  sustain  his  defense  against  the  fore-  ^^  property. 
closure  of  the  mortgage,  the  Court  shall  give  judgment  for  the 
amount  which  may  be  due  on  such  mortgage,  and  shall  order  the 
mortgaged  property  to  be  sold  in  the  manner  and  under  the  same 
regulations  w^hich  govern  Sherifi*'s  sales  under  execution.  [And 
the  provisions  of  Section  3903  of  this  Code  shall  apply  as  well  to 
mortgages  upon  real  property  as  to  mortgages  upon  personal  prop- 
erty.] (a) 


ARTICLE    IV. 

PROCEEDS  OF  SALE  OF  MORTGAGED  PROPERTY-HOW  APPROPRIATED, 

Section.  I  Section. 

3893.  Disposition  of  proceeds.  1       3894.  When  proceeds  may  be  retained. 

§  3893,  The  money  arising  from  the  sale  of  mortgaged  property, 

(a)  Acts  of  1866,  p.  25. 


750       PT.  3.-~-TIT.  13.— CHAP.  2.— Foreclosing  Mortgages. 

Article  1. — The  Application  of  Foreclosure,  etc. 
Proceeds  brought  to  Sale  under  the  regulations  hereinbefore  prescribed,  shall 

of  sale — how  .  °  ^  ' 

disposed  of.  be  paid  to  the  person  foreclosing  the  mortgage,  unless  claimed  by 
some  other  lien  in  the  hands  of  the  officer,  which  in  law  has  pri- 
ority of  payment  over  the  mortgage  ;  and  when  there  shall  be  any 
surplus  after  paying  off  such  mortgage,  or  other  liens,  the  same 
shall  be  paid  to  the  mortgager,  or  his  agent. 

§  3894.  If  the  mortgage  is  given  to  secure  a  debt  due  by  install- 
ceSma?Te  ^^^t^?  ^^^  is  forecloscd  before  any  one  of  the  installments  falls 
S?court.^^  due,  and  there  is  a  surplus  of  funds,  as  above  stated,  the  Court 
may  retain  the  funds,  or  order  the  same  invested  to  meet  the  in- 
stallment still  unpaid. 


CHAPTER    II. 

OF  MORTGAGES  OH  PERSONAL  PROPERTY— HOW  FORECLOSED. 


Article  1. — Of  the  Application — hi/  whom  and  hoio  Made. 
Article  2. — Of  the  Defenses-— when  and  how  Made, 


ARTICLE   I. 

m  THE  APPLICATION    TO    FORECLOSURE-BY  WHOM  AND    HOW  MADE. 


Section 


Section. 


3895.  On  personalty—liow  foreclosed.  3897.  When  thej^./a.  may  claim  money. 

3896.  Levy  and  sale  of  property.  3898.  Property  may  be  sold  by  consent. 


§  3895.  Mortgages  on  personal  property  shall  be  foreclosed  in 

S'oreciosnre  ^bc  following  manner — to  wit :  Any  person  holdino:;  a  morts^ao-e  on 

on  personal-  personal  property,  and  wishing  to  foreclose  the  same,  shall  either 

in  person,  or  by  his  agent  or  attorney  in  fact,  or  at  law,  go  before 

some  officer  of  this  State  who  is  authorized  by  law  to  administer? 

oaths,  or  a  commissioner  for  this  State  residing  in  some  other  State 

Affidavit  and  make  affidavit  of  the  amount  of  principal  and  interest  due  on 

such  mortgage,  which  affidavit  shall  be  annexed  to  such  mortgage, 

and  when  such  mortgage,  with  such  affidavit  annexed  thereto,  shall 

be  produced  to  the  Judge  of  the  Superior  Court,  whose  Circuit 

embraces  the  County  wherein  the  mortgager  resides  at  the  date  of 

the  foreclosure,  if  a  resident  of  this  State,  or  where  he  resided  at 


PT.  3.— TIT.  13.— CH.iP.  2.— FoRECLosiNa  MouTaAGSs.      751 

Article  1.— The  Application  of  Foreclosure,  etc. 

the  date  of  the  mortgage  if  not  a  resident  of  this  State,  it  shall 
be  the  duty  of  such  Judge  to  pass  an  order  declaring  such  mort- 
gage foreclosed,  and  directing  the  Clerk  of  the  Superior  Court  of 
said  County  to  issue  an  execution  for  such  principal  and  interest,  j^^l^^^  ^ 
and  for  the  sale  of  the  mortgaged  property  as  on  a  judgment, 
which  order  shall  also  be  annexed  to  the  mortgage ;  and  when  the  • 

mortgage,  with  the  affidavit  and  order  aforesaid  annexed  thereto, 
are  delivered  to  the  said  Clerk  of  the  Superior  Court,  it  shall  be 
the  duty  of  such  Clerk  to  issue  an  execution,  directed  to  all  and  e^®^*^^^' 
singular  the  Sheriffs  and  Coroners  of  this  State,  commanding  a 
sale  of  the  mortgaged  property  to  satisfy  the  said  principal  and 
interest,  together  with  the  costs  of  the  proceedings  to  foreclose 
the  said  mortgage. 

§  3896.  When  the  execution  mentioned  in  the  preceding  Sec-  g^^g  ^^^0°^^ 
tion  shall  be  delivered  to  the  Sheriff  or  Coroner,  as  the  case  may  gp^  p'^^^P" 
be,  it  shall  be  his  duty  to  levy  on  the  mortgaged  property  where- 
soever the  same  may  be  found,  and  after  advertising  the  same  in 
one  or  more  of  the  public  gazettes  of  this  State,  [weekly  for  eight 
weeks]  (a)  before  the  day  of  sale,  the  said  Sheriff  or  Coroner 
shall  put  up  and  expose  said  property  to  sale  at  the  time  and  place, 
and  in  the  same  manner  as  govern  in  case  of  Sheriffs'  sales. 

§  3897.  If  other  fi.  fas.  are  levied  on  the  mortgaged  property.    Mortgaged 
and  the  same  is  sold  after  an  advertisement  of  only  thirty  days,  claim  money 
the  mortgage^,  fa.  may,  nevertheless,  claim  the  proceeds  of  the 
sale  if  its  lien  is  superior. 

§  3898.  If  a  mortgage  on  realty  or  personalty  is  not  foreclosed,    Mortgaged 
and  the  equity  of  redemption  is  levied  on  by  other  fi.  fas.,  by  may  be  sold 
consent  of  the  mortgager  and  mortgagee,  and  the  plaintiff  in  the  withoutfore- 
H.  fa.  levied,  the  entire  estate  may  be  sold,  and  the  mortgagee 
claim  under  his  lien,  in  the  same  manner  as  if  his  mortgage  was 
foreclosed. 


ARTICLE  11. 

OF     THE    DEFENSES  — WHEK     A  ]Sf  D     HOW     MADE, 


Section. 

3899.  Affidavit  of  illegality. 

3900.  Proceedings  thereoB. 

3901*  Sale  and  disposition  of  proceeds. 


Section. 

3902.  Executors,  etc.,  may  foreclose. 

3903.  Contest  of  lien  by  third  persons* 


(a)  Acts  of  18G6,  p.  163. 


752      PT.  3.— TIT.  13.— CHAP.  2.— Foreclosing  Mortgages. 


Article  2. — Defenses — when  and  how  Made. 


§  3899.  When  an  execution  shall  issue  upon  the  foreclosure  of 
Affidrvit  a  mortp^a^e  on  personal  property,  as  hereinbefore   directed,  the 

of   illegality  °    ^  /^  rr^J  ^  ^  ^5 

to  mortgage  mortgager,  or  his  special  agent,  may  file  his  affidavit  of  illegality 
to  such  execution,  in  which  affidavit  he  may  set  up  and  avail  him- 
self of  any  defense  which  he  might  have  set  up  according  to  law, 
in  an  ordinary  suit  upon  the  demand  secured  by  the  mortgage, 
and  which  goes  to  show  that  the  amount  claimed  is  not  due. 

§  3900.  When  an  affidavit  of  illegality  shall  be  filed  to  a  mort- 
Proceed-  o-age  cxccution,  as  provided  for  in  the    precedinsr   Section,   the 

ings      when  ^    °  ?  r  i  O  ' 

niegaiity  is  Judge  who  passed  the  order  of  the  foreclosure  may  order  the 
levying  officer  to  postpone  the  sale  of  the  mortgaged  property, 
upon  the  mortgager,  or  his  special  agent,  or.  attorney,  giving  bond 
with  good  and  sufficient  security,  in  double  the  amount  of  such 
execution,  conditioned  for  the  return  of  such  property  when  called 
for  by  the  levying  officer,  which  bond  shall  be  made  payable  to 
the  plaintifi*,  who  may  sue  and  recover  thereon  when  the  condition 
is  broken ;  and  when  such  affidavit  of  illegality  is  filed,  and  such 
order  of  postponement  is  passed,  and  such  bond  has  been  given, 
the  levying  officer  shall  postpone  the  sale  of  said  property,  and 
return  all  the  proceedings  and  papers  to  the  next  term  of  the 
Court  whose  Clerk  issued  the  execution,  where  the  questions  and 
issues  shall  be  tried  as  other  cases  of  illegality ;  and  the  jury 
shall  be  sworn  to  give  at  least  twenty-five  per  cent,  damages  to 
the  plaintifi"  on  the  principal  sum,  in  case  it  shall  appear  that  the 
affidavit  of  illegality  was  filed  for  a  delay  only. 

§  3901.  If  the  mortgager  fails  to  set  up  and  sustain  his  defense 
Saieofmort-  as  hereinbefore  authorized,  the  mortgaged  property  shall-  be  sold, 
erty  and  dis- and  the  procoods  of  the  sale  shall  be  applied  to  the  iudgment  of 

position     of  ^  *■  '^  V       o 

proceeds,  gaid  mortgage  execution,  unless  such  proceeds  are  claimed  by  some 
other  lien  in  the  hands  of  the  officer,  entitled  in  law  to  priority  of 
payment ;  and  if,  after  the  satisfaction  of  such  fi.  fa.  or  other 
lien,  there  may  be  any  surplus,  the  same  shall  be  paid  to  the  mort- 
gager or  his  agent. 

§  3902.  When  the  holder  of  a  mortgage  on  personal  property  is 
tatR?*of  de-  ^^^^5  *^®  affidavit  and  proceedings  to  foreclose  may  be  made  and 
ceased  mort-  prosecutcd  bv  his  exccutor  or  administrator ;  and  if  the  mort^a- 

gagee     may  y  j  7  o 

foreclose,  ggj.  ]yQ  dead,  his  legal  representative  may  set  up  the  same  defenses 
which  he  could  do  if  living. 

§  3903.  If  any  creditor  of  the  mortgager,  whether  his  debt  be 
in  judgment  or  not,  desires  to  contest  the  validity  or  fairness  of 


i 


PT.  3.— TIT.  14.— CHAP.  1.— Establishing  Lost  Papers.     753 

Article  1. — Establisliment  of  Lost  Papers  in  Superior  Courts, 


the  mortsra^e  lien  or  debt,  he  may  make  an  affidavit  of  the  grounds    How  third. 

<^    '-'  _  "^  ^^  persons  may 

upon  which  he  relies  to  defeat  such  mortgage,  and  upon  filing  the  contest 
same  with  the  levying  officer,  together  with  a  bond  and  good  secu-  'i^"- 
ritj,  payable  to  the  mortgagee,  and  conditioned  to  pay  all  costs 
and  damages  incurred  by  the  delay,  if  the  issue  be  found  against 
the  contestant,  it  shall  be  the  duty  of  such  officer  to  return  the 
same  to  the  Court  to  which  the  mortgage  Ji.  fa.  is  made  returna- 
ble, to  be  tried  in  the  manner  prescribed  above  for*  an  affidavit  of 
illegality  by  the  mortgager. 


TITLE    XIV. 

OF    PROCEEDINGS    TO    ESTABLISH    LOST    PAPERS. 


CHAPTER  I. 

LOST    PAPERS— WHEN,  WHERE,  AND    HOW    ESTABLISHED. 


Article  1.— Establishment  of  Lost  Papers  in  Superior  Courts. 
Article  2.—UsiabIishment  of  Lost  Papers  in  Justices'  Courts, 


ARTICLE   L 

ESTABLISHMENT   OF  LOST  PAPERS   IN   SUPERIOR   COURTS. 


Section. 

390L  Office  papers  established  on  motion. 

3905.  VVhen  office  papers. 

3906.  Other  papers— how  established. 

3907.  Continuance— when  granted, 

3908.  Rule  absolute. 


Section. 

3909.  Certified  indorsement  of  copy. 

3910.  Suits  on  lost  papers. 

3911.  Oyer  can  not  be  demanded. 

3912.  Lost  executions— how  established. 


§  3904.  Upon  the  loss  of  any  original  bill  in  equity,  answer,    office  pa- 
replication,  declaration,  plea,  bill  of  indictment,  special  present-  established 
ment,  or  other  office  paper,  a  copy  may  be  established  instanter  on 
motion. 

§  3905.  The  instrument  sued  on  shall  be  deemed  an  office  paper,  onTre^office 
after  the  case  of  which  it  is  the  foundation  has  gone  to  the  appeal,  when.^  ^  ^  ~ 
48 


754     PT.  3.— TIT.  14.~CHAP.  1.— Establishing  Lost  Papers. 

Article  1. — Establishment  of  Lost  Papers  in  Superior  Courts. 


§  3906.  The  owner  of  a  paper,   (other  than   an  office  paper, 
How  other  and  which  can  not  be  sued  on  and  collected  in  a  Justices'  Court,) 
established,  lost  or  dcstrojcd,   desiring  to   establish  the  same,  shall  present 
to  the   Clerk   of  the   Superior  Court   of  the  County  where  the 
Petition,    maker  of  the  paper  resides,  if  a  resident  of  this   State,  a  pe- 
tition in  writing,  together  with  a  copy,  in  substance,  of  the  pa- 
per lost  or  destroyed,  as  near  as   he  can  recollect,  which  copy 
shall    be  sworn  to   by   the   petitioner,   his    agent,   or  attorney ; 
Euie  ni  H.  whereupon  the  Clerk  shall  issue  a  rule  ni  si  in  the  name  of  the 
Judge  of  the  Superior  Court,  calling  upon  the  opposite  party  to 
show  cause,  if  any  he  has,  why  the  copy  sworn  to  should  not  be 
established  in  lieu  of  the  lost  or  destroyed  original ;  which  rule 
shall  be  served  by  the   Sheriff,  his  deputy,  or  any  Constable  of 
this  State,  personally,  upon  the  party,  if  to  be  found  in  this  State, 
Huio nisi—  twcuty  days  before  the  sitting  of  the  Court  to  which  the  rule  ni  si 
ow  serve  .  ^^  H;^r^(]e  returnable ;  and  if  the  party  can  not  be  found  in  this 
State,  then  the  rule  shall  be  published  in  some  public  gazette  of 
this  State  for  the  space  of  three  months  before  the  final  hearing 
of  the  rule. 

§  3907.  In  a  proceeding  to  establish  lost  papers  under  the  pro- 

Continu-  visious  of  the  preceding  Section,  no  continuance  shall  be  granted, 

granted.       uulcss  it  appear  reasonable  and  just  to  the  Court ;  nor  shall  a 

continuance  be  allowed  to  the  same  party  more  than  once,  except 

for  providential  cause. 

§  3908.  When  the  rule  ni  si  has  been  duly  served,  as  hereinbe- 

Kuie  abso- fore  provided,  the  Court  shall  grant  a  rule  absolute  establishing 

the  copy  of  the  lost  or  destroyed  paper  sworn  to,  unless. good  and 

sufficient  cause  be  shown  why  such  rule  absolute  should  not  be 

granted. 

§  3909.  When  the  copy  is  established,  the  Clerk  of  the  Court 

Certified  in  which  it  is  done  shall  furnish  the  copy  to  the  party  who  had  it 

of  copy.       established,  with  a  certified  indorsement  thereon  of  the  day  and 

term  of  the  Court  when  the  rule  absolute  was  granted ;  provided, 

all  costs  of  the  proceeding  are  paid. 

§  3910.  If  the  paper  lost  or  destroyed  be  a  note,  bill,  bond,  or 
suiton  lost  other  instrument  upon  which  suit  may  be  brought,  the  owner 
thereof  may  institute  suit  thereon  so  soon  as  the  rule  ni  si  has 
been  issued  as  hereinbefore  provided  for,  and  it  shall  be  set  forth 
in  the  declaration  that  the  paper  sued  on  is  lost  or  destroyed : 
and  in  no  case  shall  there  be  a  judgment  had  in  such  suit  until  it 


PT.  3.— TIT.  14.— CHAP.  1.— EsTABLiSHiNa  Lost  Papers.     755 


Article  1. — Establishment  of  Lost  Papers  in  Superior  Courts. 

shall  be  determined  whether  the  application  to  establish  the  paper 
be  granted  or  not ;  and  if  granted,  then  judgment  shall  be  had 
as  in  other  cases.    ■ 

S  3911,  In  a  suit,  such  as  provided  for  in  the  preceding  Section,  oyerofiost 
-oyer  of  the  paper  sued  on  shall  not  be  demanded  until  at  the  time  ^^^  be  de- 

•^  •'■•'■  manded. 


/ 


of  the  rendition  of  judgment  in  such  suit;  and  then  if  the  plaintiff 
produce  a  copy  of  the  paper,  with  a  certified  indorsement  thereon/'      ^    ^^     / 
by  the  Clerk  of  the  Court  in  which  it  was  established,  as  herein- 
before directed,  it  shall  be  taken  and  considered  as  the  original. 

^3912.  When  anv  execution  which  shall  have  been  res-ularly    Whenexe- 

"^  '^  _  o  ./    cutionislost 

issued  from  the  Superior  Courts  of  this  State  shall  be  lost  or  de-  aiiasmayis- 

■L  fiue   at    any 

^stroyed,  the  Judge  of  the  Court  from  which  the  same  issued  may  ^^™®- 
at  any  time,  either  in  open  Court  or  vacation,  upon  proper  appli- 
cation being  made  and  the  facts  proven  by  the  affidavit  of  the 
applicant,  ■  his  agent,  or  attorney,  or  by  any  other  satisfactory 
proof,  grant  an  order  for  the  issuing  of  an  alias  execution  in  lieu 
of  the  lost  original  execution. 


/C<. 


•^^J  Q 


ARTICLE  II. 


ESTABLISHMENT   OF   LOST    PAPERS   IN   THE   JUSTICES'  COURT, 


ISection. 

3913.  Of  papers  belonging  to  a  suit. 

3914.  Establishment  of  other  papers. 


Section. 

3915.  Establishment  of  lost  executions, 

3916.  Who  may  be  parties. 


Papers  be- 
lonfring     to 


§  8913.  When  any  bond,  bill,  note,  or  other  evidence  of  debt 
or  any  summons,  execution,  or  any  other  paper  belonging  or  ap-  suits  °vhea 
pertaining  to  any  suit  or  other  proceeding  in  any  Justices'  Court  ^^  estabiish- 

•*^  S  *'  r  o  ./  ed  at  once. 

of  this  State,  shall  be  lost,  destroyed,  or  mislaid  from  the  hands 
of  the  Justice  of  the  Peace,  such  Justice  may,  by  reason  and  vir- 
tue of  his  office,  establish  instanter  a  copy  in  substance  of  such 
paper  in  lieu  of  the  original  so  lost ;  and  if  any  such  paper  be 
lost,  destroyed,  or  mislaid  from  the  hands  of  any  person  other  than 
the  Justice  of  the  Peace,  the  .party,  plaintiff  or  defendant,  or  any 
one  interested,  wishing  to  use  such  lost  paper,  shall  be  permitted 
to  establish  and  use  in  lieu  of  the  original  a  substantial  copy  of 
the  same,  by  making  affidavit  of  the  loss  of  the  original,  and  that 
the  copy  proposed  to  be  used  is  a  copy  in  substance  of  the  lost 
original. 

§  3914.  The  owner  of  a  lost  paper,  which  may  according  to  law 


756     PT.  8— TIT.  14.— CHAP.  I.— Establishing  Lost  Papers. 


Article  2.— Establisliment  of  Lost  t^apers  in  Justices'  Court. 
other  lost  |>e  sued  on  and  collected  in  a  Justices''  Court,  wbo  wislies  to  estab- 

papers    may  , .   ,       ,  -^ 

be  establish-  lish  tae  Same,  may  present  to  one  of  the  Justices  of  the  Peace  of 

ed  by  rule,  .... 

the  district  in  which  the  mailer  resides,  if  a  resident  of  this  State.. 
a  copy  in  substance  of  the  paper  lost  as  nearly  as  he  can  reeollectj. 
which  copy  shall  be  sworn  to  hj  the  applicant,  his  agent,  or  attor- 
ney, or  be  proved  hy  other  evidence ;  whereupon  sueh  Justice  of 
the  Peace  shall  isstie  a  rule  ni  si,  calling  tipon  the  opposite  party 
to  show  cause,  if  any  he  has,  why  the  copy  should  not  be  estab- 
lished in  lien  of  the  original  so  lost  or  destroyed;  which  rule  shall 
be  served  upon  the  party  personally,  if  to  be  found,  ten  days  be- 
fore the  sitting  of  the  Court  tO'  which  he  is  called  upon  to  show 
E.ai<--how  cause,  by  any  Constable  of  the  State ;  and  if  the  party  is  not  to 

to  be  served;  '      .^  «/  -'  i  ./ 

be  foimd,  then  the  rule  may  he  published  in  a  public  gazette  of 
this  State  for  one  month  before  the  final  hearing  of  the  rule;  and 
if  no  sufficient  cause  be  shown,  the  Justice  shall  give  judgment 
establishing  the  copy  in  lieu  of  the-  original  so  lost  or  destroyed, 
and  the  copy  so  established  shall  b'e  certified  to  hy  the  Justice  of 
the  Court  in  which  it  was  established  and  shall  have  all  the  force 
and  effect  of  the  original. 

§  3915.  Executions  issued  frana   the   Justices^   Courts  of  this 

Aiiasj9xe-  State,  whoD  lost  or  destroyed^  may  be  supplied  by  an  alias  execu- 

Justices'  tion,  to  be  issued  by  the  Justice  of   the  Peace  under  the  same 

Court     nsay  ^  ^        '' 

isaue,  rulcs  and  regulations  as  those  which  prevail  in  the  Superior  Court 

on  the  subject  of  issuing  alias  executions. 

§  3916.  [In  all  cases  pending  on  the  15-th  I>ecemher,  1866,  or 
Who  may  eommonced  after  that  time  for  the  purpose  of  establishino;  any 

1)0  party.  i       r  o         ^ 

lost  or  destroyed  paper  (other  than  an  office  paper),  any  person 
whose  interest  is  to  be  affected  by  the  establishing  such  lost  papers 
shall^  upon  motion,  by  order  of  the  Court,  be  made  a  party  de- 
fendant to  such  proceeding,  and  be  allowed  all  the  rights  of  de- 
fense against  the  same  as  fully  as  if  he  was  the  maker  o-f  said  lost 
paper.]  (a) 


ARTICLE    III. 

StTMMART  ESTABLISHMENT  OF  LOST  PAPERS, 


SECTioiir. 

3917.  Lost  papers — how  established. 

3918.  Summary  mode  disallowed — when. 


S'ECTION. 

3919,  Cases  against  non-resident.- 


(a)  Acts  of  1866,  p.  139. 


FT.  S.— TIT.  14.— CHAP.  1.— Establishing  Lost  Papers.    757 


Article  2. — Summary  Establishment  of  Lost  Papers. 


§  8917.  [The  owner  or  legal  representative  ©f  the  owner  of  anj  Lost  papers 
l)ond,  bill,  MOte,  draft,  cheek»  or  other  evidence  of  indebtedness  tHbiished— 
which  has  been  lost  or  destroyed,  may  establish  a  copy  thereof  by 
giving  personal  notice  at  least  ten  days  previous  to  the  day  ap-    ^*^^"  ^ 
pointed,  which  notice  shall  eontaija  a  copy  of  the  paper  to  be  es-i%  /  ^/U.   2-  /' j^,, 
tablished,  and  shall  be  served  upon  the  party  against  whom  said 
indebtedness  is  sought  to  be  established,  and  by  making  oath  be- 
fore some  oiSeer  authorized  to  administer  an  oath,  that  he  is   the 
owner  of  s-iich  paper,  and  that  the  same  has  been  lost  or  destroyed;  t^^^^V^^^ 
.a  copy  tkus  established  with  said  affidavit  attached,  may  be  used 
an  any  Court  in  this  State  in  lieu  of  the  lost  original.J  (a) 

§  3918.  £If  any  party  who  is  liable  for  the  payment  of  said  lost  oathof  pan* 
paper,  in  whole  or  in  part,  or  whose  interests  are  affected  by  the  „     ..  '  /  /y 

^establishment  of  said  paper,  shall  make  oath  that  the  said  paper      '^->^ 
never  existed,  or  that  the  same  has  heen  paid  oiF  or  discharged,  the  jji/urd^'^^T 
party  seeking  to  establish  tlie  same  in  the  summary  manner  pro-  f^^^  ^^"^®~ 
vided  in  this  Article,  shall  be  remitted  to  the  remedies  provided  in 
Articles  I.  and  II.  of  this  Chapter  and  Title.J  (a) 

§  3919.  [In  all  eases  where  suit  may  have  been  instituted  on  any  in  eases 
bond,  bill,  note,  draft,  cheek,  or  either  evidence  of  indebtedness,  ^lents. 
and  said  suit  shall  not  have  gone  to  the  appeal,  and  the  defendant 
is  a  non-reside.nt,  so  that  personal  servi€e  can  n^ot  be  made  as 
provided  in  Section  3917,  such  evidence  of  indebtedness  may 
?be  established,  on  motion,  as  an  office  paper,  upon  the  plain- 
tiff, his  agent  or  attorney,  making  oath  that  the  same  has  been 
lost  or  destroyed  since  the  commencement  of  suit,  that  it  was  in 
Ms  po.sse.ssi#n  when  the  suit  was  commenced,  and  is  stiU  unpa-id.]  (b) 


TITLE  IV. 

OF    PEO€EEDiNG    TO     OBTAIN     PARTITION. 


Chapter  1. — Fartitwn  §f  Land — how  Ohtained. 

C^HAPTEB,  2,— Partition  of  Personal  Property — how  Obtained. 

(a)  Acts  of  1865-6,  p.  82.    (b)  Acts  of  1866,  pp.  139, 140. 


758  FT.  3.— TIT.  15.— CHAP.  1.— Paktitiok-. 


Article  1. — Wliere,  how,  and  by  whom  Application  must  be  made. 

CHAPTER   I. 

PARTITIOI^    OF    LAIsTD— HOW    OFTAINED 


Article  1. —  WTiere^  Jiow^  and  hy  ivJiom  Ajoplieation  must  Be  made. 

Article  2.—Not{ce  to  Parties — Jioiv  given  and  upon  whom  served'. 

Article  3. — Of  Issuing,  Uxecntion  and  Returii  of  Writ, 

Article  4. — Defenses — liow  and  when  made. 

Article  5. — Of  the  Judgment. 

Article  6. — Remedy  of  Parties  Abseiit  from  the  State. 


ARTICLE    I. 

where,  how,  and  by  whom  the  application  for  partition 

must  be  made. 

Section.  |  Sectiok. 

3920.  Proceeelings  to  obtain  p-a^i^tition..       l       3921.  B^y.  whom  api>liGatian  may  be  made- 

§  3920.  In  all  cases  where  two  or  more  persons  are  common 
Proceedings  owners  of  lands  and  tenements  in  this  State,  whether  by  descent, 

to  partition.  ^  . 

purchase  or  otherwise,  and  no  provision  is  made  by  will  or  other- 
wise, as  to  how  such  lands  and  tenements  are  to  be  divided,  any  one 
of  such  common  owners  may  apply  to  the  Superior  Court  of  the 
County  in  which  such  lands  and  tenements  are  situated  for  a  writ 
of  partition,  which  application  shall  be  by  petition^  setting  forth 
plainly  and  distinctly  the  facts  and  circumstances  of  the  ease,  de^ 
scribing  the  premises  to  be  partitioned  and  defining  the  share  and 
interest  of  each  of  the  parties  therein. 

§  3921.  If  the  party  desiring  the  writ  of  paiytition  "be  of  full 
Appiicatio®  ^gc,  and  free  from  -disability,  he  may  make  the  application  either 
^^^^-  in  person  or  by  his  agent,  or  atto^rney  in  fact,  or  at  law,  and  if  the 
application  is  for  the  benefit  of  a  minor,  a  lunatic,  feme  covert  or 
cestui  que  trust,  it  may  be  made  by  the  guardian  of  such  minor  or 
lunatic,  by  the  husband  of  such  feme  covert^  or  the  trustee  of  sucb 
cestui  que  trusty  as  the  case  may  be» 


PT.  3.— TIT.  15.— CHAP.  1.— Partition.  759 


Article  2. — Kotice  to  the  Parties— how  Given  and  on  whom  Served. 

ARTICLE  IL 

NOTICE    TO    THE    PARTIES-HOW    GIVEN    AND    ON    WHOM    SERVED. 
Skctiont.    3922.  Twenty  days'  notice  of  the  application. 

§  3922.  The  party  applying  for  the  writ  of  partition  shall  give  ^^  J^^^^^^I 
to  the  other  parties  concerned  at  least  twenty  days'  notice  of  his 
intention  to  make  application,  and  if  any  such  other  parties  con- 
cerned be  a  minor,  a  lunatic,  a  cestui  que  trust  or  feme  covert, 
said  twenty  days'  notice  may  be  served  on  the  guardian  of  such 
minor  or  lunatic,  or  on  the  trustee  of  such  cestui  que  trust,  or  on 
the  husband  of  such  feme  covert,  and  if  any  of  the  parties  reside 

1  '         ^  Service  by 

without  the  limits  of  this  State,  the  Court  may  order  service  by  pubucatioa. 
publication,  as  in  its  judgment  is  right  in  each  case. 


ARTICLE    III. 

OF  ISSUING,   EXECUTION   AND   RETURN    OF   THE   WRIT   OF    PARTITION. 


Section. 

3923.  Five  partitioners— how  appointed. 


Section. 

3924.  Power  and  duty  of  partition ers. 


§  3923.  When  the  application  for  partition  is  made,  and  when    Five  parti- 
due  proof  is  made  that  the  notice  hereinbefore  required  has  been 
given,  the   Court  shall  examine  the  petitioner's  title,  and  pafrt  or 
share  of  the  premises  to  be  partitioned,  and  shall  thereupon  pass 
an  order  directing  the  Clerk  of  such  Court  to  issue  a  writ  of  par- 
tition, framed  according  to  the  nature  of  the  case,  directed  to  five  Must  be  free- 
freeholders  of  the  County  in  which  the  lands  are  situated,  who  the  county. 
shall  execute  and  return  the  writ  as  hereinafter  provided. 

§  3924.   The  partitioners,  or  persons  to  whom  the  writ  is  directed,  surveyor  to 
shall  have  power  to  select  a  surveyor  to  aid  them  in  the  discharge 
of  their  duties,  and  after  giving  all  the  parties,   if  possible,  at 
least  eight  days'  notice  of   the  time  of   executing  the  writ,  and   Eight  days' 
after  being  sworn  before  some  officer  authorized  by  law  to  admin- 
ister such  oath,  duly  and  impartially  to  execute  such  writ,  the 
said  partitioners,  or  a  majority  of  them,  shall  proceed  to  make  a  towdfvideZ 
just  and  equal  partition   and  division  of  all  such  lands  and  tene- 
ments, either  in  entire  tracts  or  parcels  as  they  shall  judge  to  be 
in  proportion  to  the  shares  claimed,  and  most  beneficial  to  the  sev- 
eral common  owners  of  said  lands  and  tenements,  according  to  the 


760 


PT.  3.— TIT.  15.— CHAP.  1.— PAETiiioiNr. 


Artice  4. — Defenses — bow  and  when  made. 


best  of  their  skill,  ability  and  knowledge,  and  tliey  shall  return 

said  writ,  with  their  actings  and  doings  thereon,  under  their  hands 

and  seals,  to  the  said  Superior  Court  within  three  months  after  the 

issuing  of  said  writ,  which  return  shall  be  filed  and  kept  by  the 

said  Clerk  until  the  next  term  of  said  Court  after  the  filing  of  the 
same. 


how  made. 


ARTICLE   ly. 

DEFENSES-HOW     AND     WHEN     MADE. 

Section  3925.  Defenses — liow  and  when  made. 

§  3925.  At  the  term  of  the  Court  when  the  application  is  made, 
Defenses  or  at  the  term  next  after  the  said  partitioners  have  made  their  re- 

-when,    by  ■*■  ■  ^ 

whom,  and  turn,  anv  of  the  defendants  or  persons  concerned,  against  whom 
or  whose  right  or  title  a  judgment  is  sought,  may  file  objections 
to  the  right  of  the  applicant  and  the  writ  of  partition,  or  to  the 
return  of  the  partitioners,  and  may,  by  way  of  defense,  show  any 
good  and  probable  matter  in  bar  of  the  partition  asked  for,  or  may 
show  that  the  demandant  has  not  title  to  so  much  as  is  allowed 
and  awarded  to  him  by  the  said  partitioners,  or  to  any  part  of  the 
land ;  whereupon  an  issue  shall  be  made  up  and  tried  by  a  special 
jury,  as  in  appeal  cases. 


ARTICLE  V. 

OF     THE     JUDGMENT. 


Section. 

3926.  The  return  of  the  partitioners. 

3927.  If  lands  can  not  be  divided. 

3928.  Proceeds  of  sale— how  disposed  of. 


Section. 

3929.  Titles  to  property  sold. 

3930.  Cases  not  provided  for. 


§  3926.  If  no  objection  be  filed  by  any  of  the  parties  to  the 

When  re-  rotum  of  the  partitioncrs,  or  if,  being  filed,  the  jury,  on  the  trial, 

made     the  shall  find  a  vcrdict  against  the  party  setting^  up  such  objections, 

judgment.  n     -i  •    •  i     n    i  i        i         •     i  f» 

/  the  said  return  of  the  partitioners  shall  be  made  the  judgment  oi 

the  Court,  and  shall  be  final  and  conclusive  as  to  all  the  parties 
concerned  who  were  notified  of  the  application  for  partition,  and 
of  the  time  of  executing  the  writ,  as  hereinbefore  required,  and  a 
writ  of  possession  shall  issue  accordingly;  but  if  objections  to 
Anewpar-  Said  returns  be  filed  and  sustained  by  the  jury  trying  the  case,  or 

tition     may  .«.,,,  y        r^  \  .         .  .  ,. 

be  awarded,  if  it  shall  appear  to  the  Court  that  there  is  injustice  or  inequality 


PT.  3.— TIT.  15.— CHAP.  1.— Partition.  761 

Article  5. — Of  the  Judgment. 


in  the  division  made  by  the  partitioners,  said  Court  shall  award  a 
new  partition,  to  be  made  in  the  presence  of  the  parties  con- 
cerned (if  they  will  appear) ;  which  second  partition,  when  re- 
turned, shall  be  firm,  good,  and  conclusive  forever  against  all  par- 
ties notified  as  aforesaid. 

§  3927.  Whenever   application   is  made  for  partition  of  lands   ifiandscan 
and  tenements,   as   hereinbefore  provided  for,   and   either  of  the  videci,  they 

^         -^    _  _  must  be  sold. 

parties  in  interest  shall  make  it  satisfactorily  appear  to  the  Court  ^,  -       _,    I 
that  a  fair  and  equitable  division  of  the  lands  and  tenements  can  ^ 

not  be  made  by  means  of  metes  and  bounds,  by  reason  of  im- 
provements made  thereon,  or  by  reason  of  the  premises  being  val- 
uable for  mining  purposes,  or  for  the  erection  of  mills  or  other 
machinery,  or  that  the  value  of  the  entire  lands  and  tenements 
will  be  depreciated  by  the  partition  applied  for,  then  and  in  that 
case  the  Court  shall  order  a  sale  of  such  lands  and  tenements,  and 
shall  appoint  three  discreet  persons  to  conduct  such  sale  under  Three  super 

.  ^      .  I'll  '  t  iotendentsof 

such  regulations  and  upon  such  just  and  equitable  terms   as  said  sale. 
Court  may  prescribe  ;  which  sale  shall  take  place  on  the  first 
Tuesday  in  the  month,  at  the  Court  House  of   the  County  in 
which  the  land  is  situated,  after  an  advertisement  of  such  sale  in  notiief  °'^^ 
some  public  gazette  of  this  State  for  at  least  thirty  days. 

§  3928.  After  the  sale  of  any  lands  and  tenements,  as  provided  Proceeds  of 

n        •        1  T  o         •  1  •      •  1         •  1       sale  — how 

tor  m  the  preceding  bection,  the  commissioners  conducting  the  disposedof. 
sale  shall  return  their  proceedings  to  the  next  term  of  the  Court 
ordering  such  sale,  at  which  term  the  said  Court  shall  order  the 
proceeds  of  the  sale  to  be  divided  among  the  several  claimants 
ratably  in  proportion  to  their  respective  interests  after  deducting 
the  expenses  of  the  proceedings. 

§  3929.  Upon  the  sale  of  lands  and  tenements  as  aforesaid,  the  Tuietopro- 

T      n  .   T  1  1  T    .  f,  perty  sold. 

parties  m  interest  shall  execute  a  title  to  the  purchaser,  and  it  any 
of  them  fail  or  refuse  to  do  so,  the  said  commissioners,  so  appoint- 
ed as  aforesaid,  or  any  two  of  them,  shall  execute  a  deed  of  con- 
veyance to  said  lands  and  tenements  to  the  purchaser  at  such  sale, 
which  deed  shall  be  valid  and  binding  in  law  and  equity  as  if 
made  by  the  parties  themselves. 

§  3930.  In  any  extraordinary  case,  not  covered  by  the  foregoing     cases  not 
provisions,  the  Court  may  frame  its  proceeding  and  order  so  as  to      ^^   ^  - 
meet  the  exigency  of  the  case  without  forcing  the  parties  into  a  /^"^  y  (/ 

Court  of  Equity,  and  the  Court  may  deny  a  sale  or  partition  alto- 
gether, if  it  is  manifest  that  the  interest  of  each  party  will  not  be 
fully  protected. 


762  PT.  3.— TIT.  15.— CHAP.  1.— Partition. 

Article  6. — Remedy  of  Party  Absent,  etc. 

ARTICLE    VI. 

REMEDY  OF  PARTY  ABSENT,  UNDER  DISABILITY,   OR   NOT  NOTIFIIID.    ^ 
Section  3931.  Parties  laboring  under  disabilities. 

§  3931.  When  proceedings  have  been  instituted,  and  judgment 
When  mo-  of  partition  had  thereon,  accordins!:  to  the  regulations  prescribed 

tion   to    va-  ^  ,  '  .        . 

cate  maybe  in  this  Codc,  and  any  one  of  the  parties  in  interest  is  a  minor,  or 
a  lunatic  who  has  no  guardian,  or  is  absent  from  the  State  during 
such  proceeding,  or  has  not  been  notified  thereof,  such  minor  or 
lunatic  may,  within  twelve  months  after  coming  of  age,  or  resto- 
ration of  mind,  or  having  a  guardian  appointed ;  and  such  absent 
or  unnotified  party  may,  at  any  time  within  twelve  months  after 
rendition  of  the  judgment,  move  the  Court  to  set  aside  such  judg- 
ment on  any  of  the  grounds  upon  which  a  party  notified  and  free 
from  disabilities  might  have  resisted  the  judgment  upon  the  hear- 
ing, as  hereinbefore  authorized,  and  the  issue  shall  be  tried,  and 
the  subsequent  proceedings  shall  be  the  same  as  pointed  out  in 
cases  of  objections  filed  to  the  return  of  the  partitioners  before 
judgment;  and  if  such  motion  to  set  aside  the  judgment  be  not 
made  within  the  time  aforesaid,  such  judgment  shall  be  as  binding 
and  conclusive  upon  such  minor,  lunatic,  absent,  or  unnotified 
party,  as  if  he  had  been  notified,  present,  or  free  from  disability, 
of  tbi?d"lr-  But  in  no  event  shall  such  subsequent  proceedings  aff'ect  the  title 
tected.  ^^^  of  a  bofia  fide  purchaser  under  a  sale  ordered  by  the  Court. 


CHAPTER    II. 

PARTITION    OF    PERSONAL    PROPERTY— HOW    OBTAINED. 

Section  3932.  Personal  property  may  bo  partitioned. 

§  3932.  Application  may  be  made,  and  partition  of  personal 
Personal  property  may  be  obtained,  in  the  same  manner  and  under  the  same 

prop6rtv 

may  be  par-  rcaiulations  as  are  prescribed  in  this  Code  for  obtainino;  partition 

titioned.  r^^•, 

of  lands  and  tenements. 


PT.  3.— TIT.  16.— Habeas  Corpus. 


763 


Chapter  1. — Proceedings  on  Application  for  Habeas  Corpus. 

TITLE    XVI. 

PROCEEDINGS  ON  APPLICATION  FOR  HABEAS  CORPUS. 


CHAPTER   I. 

PROCEEDINGS    ON    APPLICATION   FOR  HABEAS    CORPUS. 


Section. 

3933.  Habeas  corpus,  etc.,  may  issue. 

3934.  Application — how  made,  etc. 

3935.  How  verified,  and  to  whom  made. 

3936.  When  the  writ  must  be  granted. 

3937.  Form  of  the  writ. 

3938.  Return  day  of  the  writ. 

3939.  Service  of  the  writ. 

3940.  Arrest  of  the  party  detained. 

3941.  What  time  return  must  be  made. 

3942.  Return  sworn  to — produc'n  of  body. 

3943.  Process  must  be  produced. 

3944.  Return  must  state  the  transfer,  etc. 


Section. 

3945.  Return  may  be  traversed. 

3946.  Attachment  for  disobedience. 

3947.  AVhen  party  can  not  be  discharged. 

3948.  Wife  and  child  may  be  disposed  of. 

3949.  Defect  in  warrant,  etc. 

3950.  Powers  of  the  Court  in  other  cases. 

3951.  Imprisoned  wisnesses,  etc, 

3952.  Discretion  of  Court  as  to  costs. 

3953.  Proceedings  to  be  recorded. 

3954.  Notice  of  the  hearing. 

3955.  Forfeiture  for  refusing  writ. 


§  3933.  Any  person  restrained  of  his  liberty,  under  any  pretext 
whatever,  in  this  State,  or  any  person  alleging  that  another  in 
whom  for  any  cause  he  is  interested  is  restrained  of  his  liberty,  or 
kept  illegally  from  the  custody  of  the  applicant,  may  sue  out  a 
writ  of  habeas  corpus.,  Xo  inquire  into  the  legality  of  such  restraint. 
And  this  right  shall  be  suspended  or  denied  only  -in  times  of  ex- 
isting war,  and  then  only  as  to  such  persons  as  shall  be  in  military 
confinement. 

§  3934.  The  application  for  the  writ  shall  be  by  petition  in 
writing,  signed  by  the  applicant,  his  attorney,  or  agent,  or  some 
other  person  in  his  behalf,  and  shall  state — 

1.  The  name  or  description  of  the  person  whose  liberty  is  re- 
strained. 

2.  The  person  restraining,  the  mode  of  restraint,  and  the  place 
of  detention,  as  nearly  as  practicable. 

3.  The  cause  or  pretence  of  such  restraint,  and  if  under  pretext 
of  legal  process,  a  copy  of  such  process,  if  within  the  power  of 
the  applicant,  must  be  annexed  to  the  petition. 

4.  A  distinct  averment  of  the  alleged  illegality  in  the.  restraint, 
or  other  reason  why  the  writ  of  habeas  corpus  is  sought. 

5.  A  prayer  for  the  writ  of  habeas  corpus. 

§  §935.  Such  petition  must  be  verified  by  the  oath  of  the  appli- 


When  writ 
of  habeas 
corpus  may 
issue. 


Application 
— how  made 
and  what  to 
contain. 


764  PT.  3.— TIT.  16.— Habeas  Corpus. 

Chapter  1. — Proceedings  on  Application  for  Habeas  Corpus. 


Application  caiit,  or  some  other  person  in  his  behalf,  and  may  be  presented  to 
fied  and  to  the  CounK  Judffe  where  the  alleged  illegal  detention  exists.     But 

whom     pre-  .  ./^  o  o  t=> 

sented.  if  the  applicant  sees  proper,  he  may  make  the  application  to  the 
Judge  of  the  Superior  Court  of  the  Circuit,  who  may  order  the 
party  restrained  of  his  liberty  to  be  brought  before  him,  from  any 
County  in  his  Circuit. 

§  3936.  If  upon  examination  of  such  petition  it  shall  not  appear 
When  the  to  sucli  Judge  that  such  restraint  of  liberty  is  legal,  he  shall  grant 

writmustbe  ,  °  ^    ^  J  Q      7  & 

granted.  the  Wfit  of  hdbeas  corpus,  requiring  the  person  thus  restraining 
the  liberty  of  another,  or  illegally  detaining  another  in  his  cus- 
tody, to  bring  such  person  before  him,  at  a  time  and  place  to  be 
specified  in  the  writ,  for  the  purpose  of  an  examination  into  the 
cause  of  such  detention. 

§  3937.  The  writ  of  habeas  corp2is  may  be  substantially  as  fol- 

Form  of    T  ,i      .^    •       i 

the  writ,      lows — tkat  IS  to  Say: 
State  of  Georgia, 


County.'-     ^o  A.  B.: 


li 


You  are  hereby  commanded  to  produce  the  body  of  C.  D., 
alleged  to  be  illegally  detained  by  you,  together  with  the  cause  of 

such  detention,  before  me,  on  the day  of ,  at , 

then  and  there  to  be  disposed  of  as  the  law  directs." 

"  Given  under  my  hand  and  official  signature,  this  the day 

of  .  (Signed)         E.  F. 

§  3938.  The  return  day  of  such  writ  shall  always  be  within 
ofth^wrlt.^  twenty  days  after  the  presentation  of  the  petition  therefor. 

§  3939.   Such  writ  shall  be  served,  by  delivering  a  "copy  of  the 

How  and  Same,  by  any  officer  authorized  to  make  a  return  of  any  process, 

writ  maybe  or  bv  any  Other  citizen;  and  the  entry  of  such  officer,  or  the  affi- 

served.  ./  v  ^  ^  ^  ^ 

davit  of  such  citizen,  shall  be  sufficient  evidence  of  such  service. 
The  person  serving  the  writ  shall  exhibit  the  original  if  required 
so  to  do.  If  personal  service  can  not  be  effected,  the  writ  may  be 
served  by  leaving  a  copy  at  the  house,  jail,  or  other  place  in  which 
the  party  in  whose  behalf  the  writ  issues  is  detained. 

§  3940.  If  with  the  petition  there  shall  be  filed  the  affidavit  of 
When  and  the  applicant,  that  he  has  reason  to  apprehend  that  the  party  de- 
ty  detained  taiuing  or  holding  the  other  in  custody  will  remove  him  beyond  the 
rested.         limits  of  the  County,  or  conceal  him  from  the  officers  of  the  law, 
such  Judge  granting  the  writ  shall  at  the  same  time  issue  his  pre- 
cept, directed  to  the  Sheriff,  deputy  Sheriff,  Coroner,  or  any  law- 


PT.  3.— TIT.  16.~Habeas  Corpus.  765 


Chapter  1. — Proceedings  on  Application  for  Habeas  Corpus. 

ful  Constable  of  the  County,  requiring  them  to  search  for  and  arrest 
the  body  of  the  person  detained,  and  bring  him  before  such  Judge, 
to  be  disposed  of  as  he  may  direct. 

§  3941.  The  return  of  the  party  served  with  the  writ  shall  be  ^jJ^tJ^f Re- 
made at  the  time  and  place  specified;  provided^  two  days  from  the  ^h"  mast  be 
time  of  service  shall  be  allowed  for  every  twenty  miles  which  such  ™^'^®" 
party  has  to  travel  from  the  place  of  detention  to  the  place  ap- 
pointed for  the  hearing ;  and  if  the  service  has  not  been  made  a 
sufficient  time  before  the  hearing  to  cover  the  time  allowed  in  this 
Section  to  reach  the  place  of  hearing,  such  return  shall  be  made 
within  the  time  so  allowed,  immediately  after  the  service. 

§  3942.  Every  return  to  a  writ  of  habeas  corpus  sha,ll  be  underi^eturn  to  be 

*^  -'-        ^  _^  und>ir    oath, 

oath;  and  if  the  custody  or  detention  of  the  party  in  whose  behalf  etc 
the  writ  issues  be  admitted,  his  body  shall  be  produced,  unless 
prevented  by  providential  cause,  or  prohibited  by  the  law  of  the 
land. 

§3943.  In  every  case  where  the  detention  is  justified  under    when  pro- 

111  1  iiii'i  ^^^*  Diust  be 

legal  process,  such  legal  process  shall  be  produced  and  submitted  produced, 
to  the  Judge  at  the  hearing  of  the  return. 

§  3944.  If  the  return  denies  the  custody  or  detention  of  the      Transfer 
party,  it  shall  further  state,  distinctly,  the  latest  date  at  which  the  must  be  sta- 
custody  was  had,  and  when  and  to  whom  transferred;   and  if  it  turn, 
shall  appear  that  such  transfer  of  custody  was  made  to  avoid  the 
writ  of  habeas  corpus^  the  party  making  the  return  may  be  impris- 
oned, in  the  discretion  of  the  Judge  hearing  the  same,  until  the 
body  of  the  party  kept  or  detained  shall  be  produced. 

§  3945.  If  the  return  denies  any  of  the  material  facts  stated  in  Eetumtra 

''  ^  verse  1. 

the  petition,  or  alleges  others  upon  which  issue  is  taken,  the  Judge 
hearing  the  return  may,  in  a  summary  manner,  hear  testimony  as 
to  such  issue,  and  to  that  end  may  compel  the  attendance  of  wit- 
nesses, the  production  of  papers,  or  may  adjourn  the  examination 
of  the  question,  or  exercise  any  other  power  of  a  Court  which  the 
principles  of  justice  may  require. 

§  3946.  Any  person  disregarding  the  writ  of  habeas  corpus  in     Disobedi- 
any  manner  whatever,  shall  be  liable  to  attachment  for  contempt,  writ— how 

.  1   1  1         T     1  •  •  punished. 

issued  by  the  Judge  granting  the  writ,   under  which  attachment 
such  person  may  be  imprisoned  until  he  shall  comply  with  the  le- 
gal requirements  of  the  writ.  j 
§^947.  No  person  shall  be  discharged  upon  the  hearinsr  of  a  whenapar-  | 

f,    T     T  .  or  &  ty  can  not  be  f 

writ  of  habeas  corpus  in  the  following  cases,  to  wit :  discharged. 


766  PT.  3.— TIT.  16.-^Habeas  Corpus. 


Chapter  1. — Proceedings  on  Application  for  Habeas  Corpus. 


1.  Where  he  is  imprisoned  under  lawful  process,  issued  from  a 
Court  of  competent  jurisdiction,  unless  in  cases  where  bail  is  al- 
lowed and  proper  bail  is  tendered. 

2.  When  the  return  is  heard  by  the  Judge  of  the  County  Court, 
and  the  party  is  imprisoned  under  final  process,  or  order  issued 
from  the  Superior  Court. 

3.  In  no  case  on  account  of  non-payment  of  jail  fees,  unless  the 
application  is  made  by  the  person  to  whom  the  fees  are  due,  and 
at  least  ten  days'  notice  has  been  given  to  the  person  from  whom 
the  fees  are  due,  his  agent  or  attorney,  prior  to  the  application  for 
the  writ. 

4.  By  reason  of  any  irregularity  in  the  warrant  or  commitment, 
where  the  same  substantially  conforms  to  the  requirements  of  this 
Code,  nor  for  want  of  bond  to  prosecute. 

5.  Where  the  party  is  imprisoned  under  a  bench  warrant  regular 
upon  its  face. 

6.  By  reason  of  any  misnomer  in  the  warrant  or  commitment, 
where  the  Court  is  satisfied  that  the  party  detained  is  the  party 
charged  with  the  offense. 

%  ^iLv  7.  Where  the  party  is  in  custody  for  a  contempt  of  Court,  and 

t^*****  J* '/the  Court  has  not  exceeded  its  jurisdiction  in  the  length  of  the 
UyiPiA^.^^'"^'-       '    imprisonment  imposed. 

'      '       ,)  ^^^^^.(  8.  In  no  other  case  where  it  appears  that   the    detention   is 

>   f^  tin  #t   /  authorized  by  law. 

,i  ,  , ,.  /i  ^t  ijfif^    §  3948.  In  all  writs  of  habeas  corpus  sued  out  on  account  of  the 
How  wife  or  detention  of  a  wife  or  child,  the  Court,  on  hearing  all  the  facts, 
I      disposed  of.  may  cxerciso  its  discretion  as  to  whom  the  custody  oi   such  wiie 
or  child  shall  be  given,  and  shall  have  power  to  give  such  custody 
of  a  child  to  a  third  person. 

§  3949.  If  the  party  is  detained  upon  a  criminal  charge,  and  it 

ifo  dis-  appears  to  the  Court  that  there  is  probable  cause  for  his  detention, 

defeat      in  he  shall  not  be  disehar^ed  for  any  defect  in  the  affidavit,  warrant, 

proceedings.  _      °  *^  , 

or  commitment,  until  a  reasonable  time  has  been  given  to  the 
prosecutor  to  remedy  the  defect  by  a  new  proceeding,  if  the  charge 
is  for  an  offense  committed  in  another  State,  and  he  is  arrested  on 
suspicion,  he  shall  not  be  discharged,  if  the  suspicion  is  reasonable, 
until  a  sufficient  time  be  given  for  a  demand  to  be  made  on  the 
Governor  for  his  rendition. 

§  3950.  In  all  other  cases,  the  Judge  hearing  the  return  shall 
discharge,  remand,  or  admit  the  party  to  bail,  or  deliver  him  to  the 


^ 


PT.  3.— TIT.  16.— Habeas  Corpus.  767 


Chapter  1. — Proceedings  on  Application  for  Habeas  Corpus. 


custody  of  the  officer  or  person  entitled  thereto,  as  the  principles     Powers  of 
of  law  and  justice  may  require.  .  creases. 

§  3951.  Any  Judge  of  the  Superior  Court  may  issue  his  order,    ^jg^JI^^i^^: 
to  any  officer  having  any  person  in   his   custody  lawfully  impris-  ^e^^^bro^ht 
oned,  to  produce  such  person  before  his  Court  for  the  purpose  of  "^• 
giving   evidence  in  any  criminal  cause  pending   therein,  without 
any  formal  application  or  writ  of  habeas  corpus  for  that  purpose. 

§  3952.  The  Judge  hearing  the  return  to  a  writ  of  habeas  cor-    costs. 
'pus  may,  in  his  discretion,  award  the   costs   of   the  proceeding 
against  either  party,  and  may  order  execution  to  issue  therefor 
by  the  Clerk. 

§  3953.  The  proceedins's  in  all  cases  of  habeas  corpus  shall  be  Proceedings 

ci  •  ri  ri  must  be  re- 

returned   to   the   Clerk   of  the   Superior   or  County  Court  of  the  corded. 
County  whose  Judge  may  have  heard  the  same,  and  shall  be  by 
such  Clerk  recorded,  as  in  other  cases,  for  which  he  shall  receive 
the  like  fees  as  in  other  cases  recorded  by  him. 

§  3954.  If  the  person  is  detained  upon  a  criminal  charge,  and     Notice  of 

.    .  ^  .  .  thehearing. 

the  Solicitor  General  is  in  the  County,  he  shall  be  notified  of  the 
hearing ;  if  he  is  not,  the  notice  shall  be  given  to  the  prosecutor. 

§  3955.  [When  any  person  shall  apply  for  a  writ  of  habeas  cor-    Penalty  for 
pus  to  any  Judge  whose  duty  it  is  to  grant  said  writ,  and  the  same  '^  "  ^^^^^ 
is  refused,  the  Judge  so  refusing  to  grant  said  writ  shall  forfeit  to 
the  party  aggrieved  the  sum  of  twenty-five  hundred  dollars,  to  be 
recovered  in  any  Court  of  law  in  this  State  having  jurisdiction  of 
the  same.]  (a) 


TITLE    XVII. 

POSSESSORY  WARRANTS  AND  PROCEEDINGS  THEREON. 


CHAPTER    I. 

POSSESSORY  WARRANTS  AND   THE  PROCEEDINGS   THEREON. 


Article  1. — By  whom  and  on  what  G-rounds  Warrants  may  Issue. 
Article  2. — How  the  Warrant  must  be  Executed  and  Returned. 
Article  3. — The  Trials  Judgment^  and  Subsequent  Proceedings. 

(a)  Acts  of  1863-4,  p.  45. 


768         PT.  3.— TIT.  17.— CHAP.  1.— Possessory  Warrants. 

Article  1. — By  whom  and  on  what  Grounds  Warrant  may  Issue. 


ARTICLE    I.  J^^   4f^V^ 

BY  WHOM  AND  ON  WHAT  GROUNDS  THE  WARRANT  MAY  ISSUE, 
Section  3956.  Who  may  issue — grovinds  of. 

\^  '^^fC'i    "^^   "'      §  3956.  Upon  complaint  being  made  on  oath  by  the  party  in- 
wfrant— ^by  J^^®^'  his  agent,  or  attorney  in  fact,  or  at  law,  to  any  Judge  of 
on*''"^  wh^at  *^®  Superior,  Judge  of  the  County  Court,  or  Justice  of  the  Peace 
Sr'^^  ^^'  of  the  County  in  which  the  property  in  controversy  may  be,  that 
^,,  -i:  ■    any  personal  chattel  has  been  taken,  enticed,  or  carried  away, 
'■/      -w  ^;^  either  by  fraud,  violence,  seduction,  or  other  means  from  the  pos- 
*-.     session  of  the  party  complaining,  or  that  such  personal  chattel, 
-  having  recently  been  in  the  quiet,  peaceable,  and  legally  acquired 
!^^  f,  possession  of  such  complaining  party,  has  disappeared  without  his 

consent,  and,  as  he  believes,  has  been  received,  or  taken  posses- 
sion of,  by  the  party  complained  against,  under  some  pretended 
r  claim,  and  without  lawful  warrant  or  authority,  and  that  the  party 

\%.-d  &%^'  complaining  does  in  good  faith  claim  a  title  to  or  interest  in  the 
personal  chattel,  or  the  possession  thereof,  it  shall  be  the  duty  of 
such  Judge  or  Justice  to  issue  a  warrant,  as  well  for  the  appre- 
ijf     y/  hension  of  the  party  against  whom  the  complaint  is  made  as  for 

the  seizure  of  the 'property  in  controversy,  which  warrant  shall  be 
directed  to  the  Sheriff,  his  deputy,  or  any  lawful  Constable  of  the 
County  aforesaid. 


How   di- 
rected. 


ARTICLE    11. 

HOW  THE  WARRANT  MUST  BE  EXECUTED  AND  RETURNED. 
Section  3957.  Warrant— liow  executed. 

§  3957.  The  officer  in  whose  hands  the  possessory  warrant  is 
Warrant-  placcd  shall  forthwith  proceed  to  apprehend  and  arrest  the  body 

how   execu-  ^  ^  .     .  , 

ted.  of  the   defendant,  or  party  against  whom  the  warrant  is  issued, 

and  also  to  seize  the  property  described  in  the  warrant,  if  the 
same  are  to  be  found  in  his  County,  and  carry  the  said  defendant 
and  said  property,  together  with  the  warrant,  before  the  Judge  or 
Justice  issuing  the  same,  or  before  any  other  Judge  or  Justice  of 
said  County. 


PT.  3.— TIT.  17.— CHAP.  1.— Possessory  Warrants.         769 

_fl : ■ ..  — ■ ■ 

Article  3. — The  Trial,  Judgment,  and  Subsequent  Proceedings. 


ARTICLE  III. 

THE  TRIAL,  JUDaMENT,  AND  SUBSEQUENT  PROCEEDINGS. 


Section. 

3958.  Hearing — continuance. 

3959.  Issue — ^judgments,  etc. 

3960.  Bonds — where  returned. 


Sectiox. 

39(31.  Imprisonment  of  defendant. 
3962.  Certiorari  and  trial  thereon. 
3933.  Judgment  on  certiorari. 


§3958;  The  Judge  or  Justice  before  whom  a  warrant  for  the  Trial, 
restoration  of  personal  property  may  be  returned  shall,  if  the  par- 
ties are  ready,  proceed  with  the  hearing  forthwith ;  but  if  either  Continuance 
of  the  parties  are  not  ready,  the  hearing  shall  be  postponed  to 
some  subsequent  time  to  be  fixed  by  the  said  Judge  or  Justice,  so 
as  to  allow  the  parties  a  reasonable  opportunity  to  procure  their 
testimony,  and  at  the  same  time  to  insure  a  trial  with  as  little  de- 
lay as  possible. 

§3959.  When  the  day  set  apart  for  the  trial  arrives,  the  Jud^e    Possession 

--«v««*'*'^«»»ra-w««'*'-'«'-A^^  ■•^  ''  a     the  only  is- 

or  Justice  shall  proceed  to  hear  evidence  as  to  the  question  of  g^^  ^^^   ^^ 
possession  in  a  summary  way,  without  investigating  the  title  ^ov/av-  //  /^y: 
the  property,  and  shall  cause  the  property  to  be  delivered  to  the"" 
party  from  whose  possession  the  same  was  violently  or  fraudulent-    Judgment, 
ly  taken  or  enticed  away,  or  from  whom  the  same  absconded,  or        \/*^  o    Jv 
in  whose  peaceable  and  lawful  possession  it  last  was  ;  provided^  such      -q^^^  ^^ 
party  shall  then  and  there  enter  into  a  recognizance,  with  good  m  pSty.^^^' 
and  sufficient  security,  in  double  the  amount  of  the  value  of  such,/-?  _.  ^    /  p'/n  ^f 
property,  and  the  hire  claimed,  if  any,  to  cause  the  said  property  to' 
be  produced  and  forthcoming  to  answer  any  judgment,  execution  or./',^^: 
decree  that  may  be  had,  issued  or  made  upon  such  suit  or  action, 
at  law  or  in  equity,  as  the  opposite  party  may  commence  or  pros- 
ecute within  the  next  four  years   touching  the  same ;  'provided^  fails  to^^giv? 
aho^  that  when  the  party  taking  out  the  warrant  shall  refuse  or  ert"/raarbe' 
fail  to  give  such  security,  then  the  Judge  or  Justice  may,  in  his  defSuiaDton 
discretion,  deliver  over  the  property  to  the  opposite  party  upon  bond,  ^^^^"f^ 
his  entering  into  a  like  recognizance,  with  security  of  the  same 
nature  and  effect. 

§  3960.   The  Judse  or  Justice  shall  return  any  recognizance        Bond— 

'-'  ./  o  where       re- 

taken as  provided  in  the  preceding  Section  to  the  next  Superior  turned. 

Court  of  the  County  where  the  same  is  taken,  to  be  transmitted  to 

the  Court  where  any  suit  or  action  may  be  commenced  touching 

said  property,  and   the   securities  on  such  recognizance  shall  be 

bound  and  liable  for  the  eventual  condemnation  money  in  such 

49 


■v.- 


770         PT.  3.— TIT.  17.— CHAP.  1.— Possessory  Warrants. 


Article  3. — The  Trial,  Judgment,  and  Subsequent  Proceedings. 

suit  or  action,  and  execution  shall  issue  against  them  in  the  same 

manner  as  against  security  on  appeals. 

§  3961.  Upon  the  return  of  a  possessory  warrant,  if  it  shall  ap- 

Defendant  peaj.  that  the  officer  can  not  find,  or  was  unable  to  seize  the  prop- 
may  oeim-  i  '  r     r 

when°^^~  erty  described  in  the  warrant,  and  that  such  property  is  in  the 
possession,  power,  custody,  or  control  of  the  defendant,  or  any 
agent  or  friend  of  his,  or  any  one  acting  for  or  intrusted  with  the 
same  for  him,  and  the  said  defendant  doth  not  produce  or  cause 
said  property  to  be  forthcoming  to  be  dealt  with  as  the  law  directs, 
and  as  the  judgment  of  the  said  Judge  or  Justice  awards,  the  said 
defendant  shall  be  committed  to  jail,  there  to  remain  in  safe  and 
close  custody  without   bail  or  main-prize  until  such  property  shall 
be  produced  or  forthcoming,  to  be  disposed  of  as  aforesaid ;  'pro- 
Proviso,     mded^  always^  that  no  person  shall  be  so  committed  to  jail  for 
&CL.r         such  failure  to  produce  property  if.  he  can  satisfactorily  prove  to 
^;_y^  ff    the  Judge  or  Justice  trying  the  case,  that  such  property  has  been 
in  his  quiet  and  peaceable  possession  for  four  years  next  immedi- 
ately preceding  the  issuing  of  said  warrant,  but  upon  such  proof 
being  made,  the  warrant  shall  be  dismissed;  and  "provided^  further^ 
that  no  person  shall  be  imprisoned  as  aforesaid  pending  an  appli- 
cation for  a  certiorari  before  the  Superior  Court,  who  shall  gi^e 
bond  and  security  to  abide  by  the  final  decision  of  the  cause. 
§  3962.  The  writ  of  certiorari  lies  to  every  decision  of  a  Court 
Certiorari  upon  a  posscssory  Warrant,  to  be  sued  out  as  in  other  cases ;  and 
ment      o^n  upou  the  hearing  of  such  writ  in  the  Superior  Court,  if  the  liberty 
warrant.       of  the  party  is  endangered  by  the  decision  of  the  Court  below,  he 
may  demand  a  trial  before  a  jury  impanneled  as  in  criminal  cases, 
upon  the  issue  of  fact  as  to  the  alleged  property  being  in  his  pos- 
session, power,  custody,  or  control,  or  that  of  his  agent,  friend,  or 
any  other  person  for  him,  and  the  verdict  of  such  jury  shall  be 
conclusive  on  the  question. 

§  3963.  Upon   hearing   the  certiorari  the  Judge  may  remand 
Judgment  the  casc  or  give  final  judgment  and  direction  therein  as  he  may 

tiorari.  gCC  fit. 


PT.  3.--TIT.  m.— Trial  of  Citizenship.  . 


TTl 


Chapter  1. — The  Proceedings  on  the  Trial  of  Citizenship, 

TITLE     lYIIL 

OF    PROCEEDINGS    ON    TRIAL    OF    CITIZENSHIP. 


CHAPTER  L 

OP   THE   PROCEEDINGS   ON    THE    TRIAL    OF    CITIZENSHIP. 


Section. 

3964.  Citizenship— liow  disputed, 

3965.  Any  citizen  may  be  made  party. 

3966.  Trial  and  judgment. 


Section. 

3967^  Evidence  of  the  plaintiff. 

3968.  Damages — when  given  to  defendant. 


§  3964.  Every  citizen  of  this  State,  of  full  age  and  laboring 
under  no  disability,  has  the  right  to  dispute  and  have  investigated 
hj  process  of  law,  the  claim  to  citizenship  set  up  by  any  other 
person  in  the  following  manner — to  wit :  He  shall  file  his  petition 
in  the  Superior  Court  of  the  County,  against  any  person  resident 
thereof,  who  may  claim  to  exercise  and  enjoy  the  rights  and  privi- 
leges of  a  free  white  citizen  of  this  State,  in  which  he  shall  dis- 
tinctly allege  that  such  person  so  claiming  to  exercise  and  enjoy 
the  rights  and  privileges  aforesaid,  is  of  mixed  blood,  and  not  a 
free  white  citizen,  to  which  the  Clerk  of  said  Court  shall  annex  a 
process,  and  a  copy  thereof  shall  be  served  on  the  defendant,  in 
the  manner  as  now  provided  for  in  cases  on  the  common  law  side 
of  said  Court;  provided,  that  before  filing  such  petition,  the  per- 
son filing  the  same  shall  make  oath  that  the  facts  set  forth  in  such 
petition  are  true,  according  to  the  best  of  his  knowledge  and 
belief. 

§  3965.  Pending  any  suit  as  provided  in  the  preceding  Section, 
it  shall  be  lawful  for  any  white  citizen  to  make  himself  a  party 
thereto,  and  prosecute  the  same,  subject  to  all  the  liabilities,  as 
though  he  had  commenced  such  suit. 

§  3966.  All  suits  instituted  as  provided  in  this  Chapter  shall 
be  tried  by  a  special  jury  at  the  first  term  of  the  Court  to  which 
the  same  may  be  returnable,  unless  continued  as  provided  by  this 
Code  in  cases  of  appeal;  and  final  judgment  shall  not  be  ren- 
dered, either  for  or  against  the  defendant,  until  there  shall  be  two 
concurring  verdicts,  as  in  cases  of  divorce,  as  provided  by  this 
Code ;  and  the  final  judgment  so  rendered  shall  be  deemed  and 


Claim  to 

citizenship 
may  be 
disputed. 


Allegation. 


Process 
service. 


Oatli. 


Parties. 


Trial  by 
special  jury. 


Must    be 

two    CollClU'- 

rent  verdicts 


k 


772 


FT.  8. — TIT.  19.' — PROCEBBIN'GS  TO  Obtain  Dowee. 


Chapter  1. — Proceedings  to  Obtain  Dower. 


lield  hj  all  the  Courts  of  this  State  as  conclusive  upon  the  rights 
and  privileges  of  said  defendant. 

§  3967.  On  the  trial  of  any  suit  instituted  by  the  authority  of 
Evidence,  this  Chapter,  it  shall  be  lawful  for  the  plaintiff  to  prove  that  the 
defendant  has  one-eighth  of  negro  or  African  blood  in  his  or  her 
veins. 

§  3968.  Upon  the  trial  of  the  ease,  aa  hereinbefore  provided^ 
Bamagfes  for  if  the  lurv  should  be  of  opinion,  from  the  evidence,  that  the  pro- 

defendsnt.  ...  . 

ceeding  is  malicious  and  without  probable  cause,  they  may  find 
in  favor  of  the  defendant,  against  the  plaintiff,  such  damages  as 
they  may  deem  reasonable  and  just,  under  all  the  circumstances 
of  the  case;  and  should  they  so  find,  one  verdict  shall  be  suffi- 
,.  ,  cient,  and  said  defendant  may  enter  indgment  and  have  execution 

One  verdiet  '  ,/  <j       o 


duffitienti 


thereon,  as  in  other  cases  at  law. 


TITLE    XIX. 

PROCEEDINGS     TO     OBTAIN     DOWER 


CHAPTER    I 


PROCEDINGS     TO     OBTAIN     DOWER. 


Section. 

3969.  Appointment  of  commissioners. 

3970.  Application— when  to  be  made. 

3971.  Notice  of  application, 

3972.  Oath  of  commissionei*s. 


Section. 

3973.  May  employ  surveyor. 

39'74.  Traverse  of  return  and  trial  of  issue, 

3975v  Finding  and  its  effect. 

3976.  Final  judgment. 


§  3969,  [The  Superior  Courts  of  this  State  shall  have  power  and 
Appoint-  authority,  upon  the  written  application  of  any  person  entitled  to 
missioners.    dowcr  in  any  lands  and  tenements  in  this  State,  to  appoint  five  fit 
and  discreet  freeholders  of  the  County  in  which  the  application  is 
made,   and  cause  the  Clerk   of  the  Court  to  issue  a  writ  for  that 
purpose,  directing  said  freeholders,  or  a  majority  of  them,  to  enter 
upon  such  lands  and  tenements,  and  to  admeasure,  lay  ofi*,  and 
Their  duty,  assign  the  doTfer  to  which  the  applicant  is  entitled  by  law  in  such 
lands,  having  regard  to  the  shape  and  valuation  of  the  same,   pro- 
vided such  lands  shall  be  without  the  limits  of  any  city,  town, 


PT.  3.— TIT.  19.— FaocEEDiNGS  TO  Obtain  Dower.  773 

Chapter  1. — Proceedings  to  Obtain  Dowor. 

village,  or  place  of  public  business ;  and  of  all  lands  within  a  city, 
town,  village,  or  place  of  public  business,  said  freeholders,  or  a 
majority  of  them,  may  lay  off  and  assign  one-third  part  of  the  lands 
and  tenements  tx)  which  the  applicant  is  entitled,  according  to 
quantity ^ and  valuation,  as  they  may  think  proper,  just,  and  equi- 
table.] (a) 

I  3970.  FThe  application  for  dower  shall  not  be  made  until  after  Application 

^        ^  ^  ^  —when  made 

the  expiration  of  three  months  from  the  death  of  the  person  to 
whom  snid  lands  and  tenements  belonged.]  (a) 

§■3971.  [The  applicant  shall  give  written  notice  to  the  repre-  ^^^^  ^^ 
sentative  of  &uch  estate,  or  if  she  be  the  representativ-e,  then  to 
the  person  or  persons  interested,  ten  days,  if  they  reside  in  this 
.State,  or  if  they  reside  without  the  State,  two  months'  notice  in 
some  public  gazette  of  this  State,  of  such  intended  application 
for  such  assignment  of  dower.]  (a) 

§  3972.  [The  persons  appointed  to  lay  off  dower  as  aforesaid  oathof «om- 

,  ,     .  mission-ers. 

shall  take  the  following  oath,  to  be  administered  hj  an  officer  au- 
thorized to  administer  oaths,  or  before  one  of  their  number,  he 
first  swearing  before  the  rest :  ^'  I  do  solemnly  swear  that  I  will 
duly  and  impartially  execute  the  laws,  to  the  best  of  my  under- 
rstanding.     So  help  me  God,'^]  (a) 

§  3973.  [The  commissioners  so  appointed  shall  have  power  to  Mayempioy 

Snrveyor, 

procmre  the  aid  of  the  County  Surveyor  of  the  County,  or  other 
competent  surveyor  of  an  adjoining  County,  in  making  the  survey 
and  admeasurement  of  dower,  who  shall  be  required  to  make, a 
careful  plat  of  such  survey  of  dower,  which  shall  be  recorded  with 
the  return  of  the  commissioners.  The  oommissioners  shall  make 
return  of  their  proceeding  to  the  succeeding  torm  of  tho  Court 
after  their  appointment.]  (a) 

§  3974.  [When  the  return  of  the  commissioners  is  made,  it  shall      Traverse 

*-  ^       of     return^ 

be  the  right  of  every  person  interested  to  enter  a  traverse  in  ^^"^^ 
writing,  plainly  stating  the  grounds  upon  which  it  is  made;   in 
which  case  it  shall  be  the  duty  of  the  Court  to  cause  an  issue  to  ^    ^ 

he  made  wp,  which  shall  be  tried  by  a  special  jury  at  the  same 
term  of  the  Court,  unless  good  cause  be  showa  for  a  continuance, 
which  shall  be  granted  for  Que  term,  and  ao  longer.]  (a) 

§  3975.  [If  such  issue  be  formed,  and  the  jury  find  in  favor  of  FiudiDgand 
the  return,  then  the  retiirn  of  the  commissioners  shall  be  confirm- 

(a)  Acts  of  1862-3,  pp.  160, 161. 


774  PT.  3.— TIT.  20.— CHAP.  1.— CERTroRARi. 

ff- , — , — * 

Article  1. — In  what  Cases  the  "Writ  of  Certiorari  Lies. 


ed  and  made  the  judgment  of  the  Court ;  but  if  the  issue  he 
found  against  the  return  of  the  commissioners,  then  the  Court 
shall  order  a  new  writ  to  be  issued  to  other  commissioners  named, 
requiring  them  to  make  the  admeasurement  and  assignment,  and 
make  return  thereof  to  the  next  term  of  the  Court.]  (a) 

§  3976.  [When  the  return  of  the  commissioners  is  made  the 
Return  of  final  fudsTment  of  the  Court,  it  shall  be  conclusive  between   all 

commission-  .        . 

frs-  parties  interested,  and  the  Clerk  shall  issue  writs  of  possession  in 

favor  of  the  applicant,  and  judgment  shall  be  entered  against  the 
representative  of  the  estate  of  the  deceased  husband  for  all  costs,. 
Costs.       including-  two  dollars  per  daj  each  for  the  commissioners^ J  (a) 


TITLE    XX. 

r    THE     WRIT    OF     CERTIORx\RT. 


CHAPTER     I. 

OF    THE    WRIT    OF    CERTIORARI 


Akticle  1. — In  what  Cases  the  Writ  of  Certiorari  Lies. 
,  Article  2. — How  Obtained^  and  Proceedings  thereon. 
Article  3. — Of  the  Answer^  Hearing^  Judgment^  and  Costa. 


a 


ARTICLE  I. 

IN  WHAT  CASES  THE  WRIT  OF  CERTIORARI  LIES. 
Section  3977.  When  a  writ  of  cerHorari  will  lie. 

§  3977.  The  writ  of  certiorari  will  lie  for  the  correction  of  er- 
Whenacer- rors  committed  by  the  Inferior  Court,   or  the  Justices  thereof, 

tiorari  will  ,  . 

lie.  Justices  of  the  Peace,  Corporation  Courts,  or  Councils,  or  any  in- 

ferior judicatory,  or  any  person  exercising  judicial  powers,  in- 
cluding the  Ordinary,  except  in  cases  touching  the  probate  of 
wills,  granting  letters  testamentary  and  of  administration.'*' 

(a)  Acts  of  1862-3,  p.  160, 161. 

*  As  to  certiorari  from  Oounty  Court,  see  Bections  297-8. 


PT.  3.— TIT.  20.— CHAP.  1.— Certiorari. 


775 


Article  2. — How  Obtained,  and  Proceedings  tliereon. 


ARTICLE  II. 

HOW    OBTAINED,    AND    PROCEEDINGS    THEREON. 


Section. 

3978.  To  the  Inferior  or  Court  of  Ordinary 

3979.  Judge  may  grant  out  of  his  Circuit. 

3980.  Other  inferior  judicatories. 

3981.  Affidavit  to  petition. 

3982.  Bond  and  security  must  be  given,  etc 

3983.  Security  compelled  to  justify. 


Section. 

3984.  Affidavit  in  lieu  of  bonds  and  costs. 

3985.  Must  be  applied  for  in  three  months. 

3986.  Docketed  fifteen  days,  etc. 

3987.  Ten  days'  notice  to  adverse  party. 

3988.  Shall  operate  as  a  supersedeas. 


'IL 


ua 


%iC.  e 


§  3978.  When  either  party  in  any  cause  in  any  Inferior  Court,     Fron>  the 

111  •  T  Inferior     or 

or  Court  of  Ordinary,  shall  take  exceptions  to  any  proceeding  or  comt  of  Or- 
decision  in  any  cause,  affecting  the  real  merits  of  such  cause,  the 
party  making  the  same  shall  offer  such   exceptions  in  writing,     ^  iy^ 
which  shall  be  signed  by  himself  or  his  attorney,  and  if  the  same 
shall  be  overruled  by  the  Court,  such  party  may  petition  the  Judge 
of  the  Superior  Court  for  a  writ  of  certiorari^  in  which  petition    ^^w  y  / 
he  shall  plainly,  fully,  and  distinctly  set  forth  the  errors  com- 
plained of;  and  if  such  Judge  shall  deem  the  objections  to  be  suf- 
ficient, he  shall  forthwith  issue  a  writ  of  certiorari,  directed   to 
the  Clerk  of  such   Inferior  Court,  or  to  the  Ordinary,  requiring 
him  to  certify  and  send  up  to  the  Superior  Court,  at  the  time  speci-  tmn.    ^  ^^'  nh  I 
fied  in  said  writ,  all  the  proceedings  in  said  cause. 

§3979.  No  Judffe  of  the  Superior  Court  shall  grant  or  issue '^iienJw'^ge 

'-'■'■  °  may      grant 

any  writ  of  certiorari  out  of  his  Judicial  Circuit,  unless  there  shall  '^^^^^   ^^^ 
be  a  vacancy  in  any  of  the  other  Circuits,  or  the  Judge  thereof  be 
indisposed,  or  be  absent  therefrom,  so  that  the  business  of  grant- 
ing certioraries  can  not  be  speedily  done. 

§  3980.  When  either  party  in  any  cause  in  a  Justices'  Court,     For    jus- 

^ .       '^  "^  .       .  tices        and 

Corporation  Court,  Council,  or  any  inferior  judicatory,  or  before  other  infori- 
any  person  exercising  judicial  powers,  shall  be  dissatisfied  with  the  "^s. 
decision  or  judgment  in  such  cause,  such  party  may  apply  for  and 
obtain  a  writ  of  certiorari  by  petition  to  the  Superior  Court,  in     ^^^J?*^  ^ 

*^     i-  i  '  sanctioned 

which  petition  he  shall  plainly  and  distinctly  set  forth  the  errors   ^y  'i^^g^- 

complained  of.     And  on  such  petition  being  filed  in  the  office  of 

the  Clerk  of  the  Superior  Court,  toc^ether  with  the  bond  or   affi-       shaii  be 

,.  issued       by 

davit  as  hereinafter  provided,  it  shall  be  the  duty  of  such  Clerk  to  ^lerk. 

issue  a  writ  of  certiorari,  directed  to  the  Justice  of  the  Peace  of 

the  district  where  the  decision  complained  of  was  made,  or  other    ^^Y  ^^' 

*^  '  reeled. 

tribunal  ojr  person  whose  decision  or  judgment  is  the  subject  mat- 
ter  of  complaint,  requiring  such  Justice  of  the  Peace,  or  other 


776  PT.  3.— TIT.  20.— CHAP.  1.— Certiorari. 

Article  2. — How  Obtained,  and  Proceedings  thereon. 


tribunal,  or  person,  to  certify  and  send  up  all  the  proceedings  in 
said  cause  to  the  Superior  Court  as  directed  in  said  writ./of  cer- 
tiorari. 

§3981.  No  writ  of  certiorari  shdAl  he  granted  or  issued  (except 
Affidavit  to  the  Inferior  Court  or  Court  of  Ordinary),  unless  the  party  ap- 

to  be  made.  ,  .  "^  ''^  i.         j      r 

plying  for  the  same,  his  agent,  or  attorney,  shall  make  and  file 
with  his  petition  the  following  affidavit — to  wit : 

Georgia, 
County. 


I,  A.  B.,  do  solemnly  swear  that  the  petition  for  certiorari  is 
Form  of.  not  filed  in  the  case  for  the  purpose  of  delay  only ;  and  I  verily 
believe  I  have  good  cause  for  certiorari,  and  that  the  facts 
stated  in  the  foregoing  petition,  so  far  as  they  come  within  my 
own  knowledge,  are  true,  and,  so  far  as  derived  from  the  knowl- 
edge of  others,  I  believe  them  to  be  true. 

Sworn  to  and  subscribed  before  me,  this day  of  — • , 

18~. 

§  3982.   Before  any  writ  of  certiorari  shall  issue  (except  as  here- 
Bond  and  inafter  provided),  the  party  applying  for  the  same,  his   agent,  or 
be  given.      attorney,  shall  give  bond   and  good  security,  conditioned  to  pay 
the  adverse  party  in  the  cause  the  eventual  condemnation  money, 
together  with  all  future  costs,  and  shall  also  produce  a  certificate 
fiom  the  Clerk  of  the   Inferior  Court,  or  the  officer  whose  deci- 
sion or  judgment  is  the  subject-matter  of  complaint,  that  all  costs 
Costs  must  which  may  have  accrued  on  the  trial  below  have  been  paid;  which, 
bond  and  certificate  shall  be  filed  with  the  petition  for  certiorari, 
and  the  security  on  said  bond  shall  be  liable  as  securities  on  ap- 
peal. 

§  3983.  The  party  authorized  to  take  said  bond  and  security 
Security  may  compcl  the  security  tendered  to  iustifv  upon  oath,  and  such 

oaaaybemade  ,       '^  o  y       r  -> 

to  justify,    justification  shall  exonerate  the  party  taking  the  same  from  any 
liability. 

I  3984.  If   the  party  applying  for  the  writ  of  certiorari  will 
Affidavit  make  and  file  with  his  petition  an  affidavit,  in  writing,  that  he  is 

in    lieu    of  .  /        ,       ,  i  p  .  .  , 

bond.  advised,  and  believes  that  he  has  good  cause  for  certioraring  the 

proceedings  to  the  Superior  Courty  and  that,  owing  to  his  poverty, 
he  is  unable  to  pay  the  cost  and  give  security,  as  required  in  the 
preceding  Section,  such  affidavit  shall,  in  every  respect,  answer 
instead  of  the  certificate  and  bond  above  mentioned. 


PT.  3.— TIT.  20.— CHAP.  1.— Certiorari.  77' 


Article  2. — How  Obtained,  and  Proceedings  thereon. 


§  3985.  All  writs  of  certiorari  shall  be  applied  for  within  three       Must  be 

^  '■  '^  applied     for 

months  after  the  final  determination  of  the  case  in  which  the  error  i "  ,^  ♦^'"ee 

months. 

is  alleged  to  have  been   committed,  and  not  after  ;   and  shall  be 
made  returnable  to  the  next  Superior  Court  after  the  issuing  of 
the  same,  unless  said  Superior  Court  shall  sit  within  twenty  days      Eetuma- 
after  the  issuing  of  said  writ — in  which  case,  said  writ  shall  be  term. 
made  returnable  to  the  next  succeeding  Court. 

§  3986.    When  the  foregoing    provisions    have  been   complied      Must  be 

,  ,  &        b     r  r  served      fif- 

with,  and  the  writ  of  certiorari  shall  have  been  issued,  the  Clerk  teen  days. 
of  the  Superior  Court  shall  place  the  same  on  the  certiorari 
docket ;  which  writ,  together  with  the  petition,  shall  be  delivered  ^^yyaTty' 
to  the  party  to  whom  it  is  directed  by  the  party  applying  for  the 
certiorari^  his  agent,  or  attorney,  or  the  Sheriff,  Deputy  Sheriff, 
or  any  Constable,  at  least  fifteen  days  previous  to  the  Court  to 
which  the  return  is  to  be  made.  V 

§  3987.  The  plaintiff  in  certiorari  shall  cause  written  notice  to     Ten  days' 

^  ^  notice  to  tae 

be  given  to  the  opposite  party  in  interest,  his  agent,  or  attorney,  adverse  par- 
of  the  sanction  of  the  writ  of  certiorari^  and  also  the  time  and  - ■  9  ^ 

place  of  hearing,  at  least  ten  days  before  the  sitting  of  the  Court  - 
to  which  the  same  shall  be  returnable  ;  and  in  default  of  such  no- 
tice (unless  prevented  by  unavidable   cause),  the   certiorari  shall 
be  dismissed. 

§  3988.  The  writ  of  certiorari,  when  ejranted,  shall   operate  as    p^^^i  ^pe- 

"  7  o  7  r  rate  as  a  su- 

a  supersedeas  of  the  judgment  until  the  final  hearing  in  the  Su-  persedeas. 
perior  Court. 


ARTICLE  III. 

OF  THE   ANSWER,  HEARING,  JUDGMENT,   AND   COSTS. 


Section  1. — Of  the  Answer. 

Section  2. — Of  the  Hearing. 

Section  8. — Of  the  Judgment  and  Costs. 


SECTION   I. 

OF    the    answer. 


Section. 

3989.  Answer  filed  on  first  day. 

3990.  Exceptions  must  be  in  writing. 


Section, 

^91.  Not  written  by  interested  party. 


'Z 


778 


PT.  3.— TIT.  20.— CHAP.  1.— ART.  3.— Certiorari. 


Section  2.— Of  the  Hearing. 


/ 


.     §  3989.  The   answer  to  the  writ  of  certiorari  shall  be  filed  on 
Answer  filed  the  first  day  of  the  term  to  v/hich  it  is  returnable,  unless  further 

on  first  day     ^  ^    '' 

of  term.       time  be  given,  and  shall  reply  specifically  to  the  allegations  in  the 
petition. 

§  3990.  Exceptions  to  the  answer  shall  be  filed  in  writing,  speci- 
Exceptions  fyin^;  the  defects,  and  notice  thereof  given  to  the  opposite  party 

to  answer.        «/o  ^'  ^      ^  o  ^  \.  r  n:        J 

before  the  case  is  called  in  its  order  for  hearing ;  and  if  such  ex- 
ceptions be  sustained,  the  answer  shall  be  perfected,  as  directed 
fectedr"  ^^^  by  the  Court. 

§  3991.  The  answer  shall  not  be  written  or  dictated  by  either 
Mnst  not  of  the  partics,  or  their  attorneys,  or  any  other  person  interested 
te^rested^  "^'  '^^  ^^  causc,  and  if  made  after  the  party  making  the  same  has 
retired  from  ofiice,  it  shall  be  verified  by  affidavit. 


SECTION    II. 

OF     THE     HEARING. 


Section. 

3992.  Stands  for  trial— first  term. 

3993.  Errors  must  be  set  forth. 


Section. 

3994.  Answer  may  be  traversed. 


§  3992.   Certiorari  causes  shall  stand  for  trial  at  the  return  term, 
tr-ai*at%rst  ^^^  ^^®  Judgc  shall  take  up  the  docket  and  dispose  of  the  same 


term. 


in  its  order  unless  continued  for  good  cause. 


"    §  3993.  No  ground  of  error  shall  be  insisted  upon  on  the  hear- 
be  setVorth.  lug,  wMch  is  not  distinctly  set  forth  in  the  petition. 

§  3994.  The  plaintiiF  in  certiorari  may,  at  the  first  term,  and 
Answtermay  l^efore  the  hearin2:7"^raverse  the  truth  of  the  answer  or  return, 

be  traversed  . 

at  first  term. -^Y-hich  travcrsc  shall  be  in  writing,  specifying  the  portion  of  the 
answer  or  return  intended  to  be  controverted,  and  verified  by  affi- 
davit, and  the  issue  formed  upon  such  traverse  shall  be  tried  by  a 
special  jury  at  the  same  term,  unless  good  cause  is  shown  for  a 
Tried  by  coutinuance,  and  their  verdict  shall  be  final  as  to  the  facts,  upon 

specia  juiy.  ^^j^^^j^  |.|^g  Court  shall  pronouncc  the  law. 


SECTION   III. 


OF     THE     JUDGMENT     AND     COSTS. 


Section. 

3995.  May  be  dismissed  or  returned. 

3993.  Where  Justice  dies. 

3997.  Damages  may  be  awarded. 


Section. 

3998.  Of  the  judgment  for  plaintifi". 

3999.  Of  the  judgment  for  defendant. 


PT.  3.-<TIT.  20.— CHAP.  l.~ART.  8.— Certioraei.         779 

Section  3. — Of  the  Judgment  and  Costs. 


^  3995.  Upon  the  hearing  of  the  writ  of  certiorari  the  Superior     certiorari 

"  ^  <->  ^  may  he  dis- 

Court  may  order  the  same  to  be  dismissed,  or  return  the  same  to  missed     or 

•J  '  returned. 

the  Court  from  which  it  came,  with  instructions,  and  in  all  cases    ^^  ^•,. 
when  the  error  complained  of  is  an  error  in  law  which  must  finally  "^ 
govern  the  case,  and  the  Court  shall  be  satisfied  there  is  no  ques-  ^'^f  J^g; 
tion  of  fact  involved,  which  makes  it  necessary  to  send  the  case  ^'^  ^^^^^' 
back  for  a  new  hearing  before  the  tribunal  below,  it  shall  be  the 
duty  of  the  said  Judge  to  make  a  final  decision  in  said  case  with- 
out sending  it  back  to  the  tribunal  below. 

§  3996.  rin  all  cases  now  pendino;,  or  which  may  be  hereafter  Certiorar 
pending,  m  the  Superior  Courts  of  this  State,  upon  certioraH  from  ticedies. 
any  Justices'  Court,  and  the  Justice  or  Justices  before  vfhom  the 
case  was  tried,  may  have  died  before  answering  the  writ  of  cer- 
tiorari served,  then  it  shall  be  the  duty  of  the  presiding  Judge 
forthwith  to  order  a  new  trial  to  be  had  upon  the  case  in  the 
Court  bel(>w.]  (a) 

§  3997.  The  presidinoj  Judo^e  before  whom  any  writ  of  certiorari      Damage 

^  o  o  ^  »/  uiay         be 

may  be  heard,  on  motion  of  the  opposite  party,  may  order  that  awarded. 
damages,  not  more  than  twenty  per  cent.,  be  recovered  by  the  de- 
fendant against  the  plaintiff  in  certiorari  and  his  security,  in  case 
it  shall  be  made  to  appear  that  the  said  certiorari  was  frivolous, 
and  applied  for  without  good  cause,  or  for  the  purpose  of  delay 
only,  and  judgment  may  be  entered  up  and  execution  issued  ac- 
cordingly. 

§  3998.  If,  on  the  hearina*.  the  certiorari  shall  be  sustained,  and    if  thecer- 

'-'  ^  tiorariissiis- 

a  final  decision  thereon  shall  be  made  by  the  Superior  Court,  the  tainedjudg- 

•^  -•■  '  ment       for 

plaintiff  may  sign  up  judgment  for  the  amount  by  him  recovered  plaintiff- 
in  the  Court  below,  and  the  costs  paid  to  obtain  the  certiorari,  and 
also  the  costs  in  said  Superior  Court ;  but  if  the  certiorari  shall 
be  returned  to  the  Court  below  for  a  new  hearing,  the  plaintiff 
shall  sign  up  judgment  for  the  costs  in  said  Superior  Court  only, 
leaving  the  costs  paid  to  obtain  the  certiorari  to  abide  the  final 
trial  below. 

§  3999.  If  the  certiorari  shall  be  dismissed,  and  a  final  decision    if  thecer- 

.  -iiri  '         r^  IIP!  tlorariisdis- 

made  m  the  cause  by  the  Superior  Court,  the  defendant  in  certio-  »i*sfed.iudg- 

J^  •*•  _  ^  ment  for  de- 

ran  may  sign  up  judgment  in  said   Superior  Court  against  the  fendant. 

plaintiff  and  his  security  for  the  sum  recovered  by  him,  together 

with  the  costs  in  said  Superior  Court ;   and  if  said  case  be  sent 

(a)  Acts  of  1861,  p.  63. 


780     PT.  8.— TIT.  21.— CHAP.  1.— Trespassers  and  Tenants. 

Article  1. — Proceedings  Against  Intruders. 

■ ; ,..■%•■/■  ■#■'■■    -     ■ ' ' ■ ' ■ ' — ' ■ — ■ — — ' ■ ■ ■ — 

Lack  to  the  Court  below,  and  there  be  a  judgment  in  said  case  in 
favor  of  said  defendant  in  the  Court  below,  the  security  on  the 
certiorari  bond  shall  then  be  included  as  in  case  of  security  on 
appeal. 


TITLE    XXI. 

PROCEEDINGS  AGAINST  TRESPASSERS    ON   LAND    AND 
TENANTS    HOLDING   OVER. 


Chapter  1. — Proceedings  Agairist  Intruders,  etc. 
Chapter  2. — Forcible  Entry  and  Detainer. 


CHAPTER    I. 


PROCEEDINGS  AGAINST  INTRUDERS  ON  LAND  AND  TENANTS 

HOLDING  OVER. 


Article  L — Proceedings  Against  Intruders. 
Article  2. — Proceedings  Against  Tenants. 


ARTICLE   L 

PROCEEDINGS    AGAINST    INTRUDERS. 


Sectiok. 

4000-  Affidavit  of  land  owner. 

4001>  Intruders  may  make  a  counter  affi't. 

4002-  How  issue  shall  be  tried. 


Section. 

4003.  A  writ  of  possession  shall  issue. 

4004.  Intruders  on  camp  grounds. 


§  4000.  Intruders  may  be  ejected  from  the  possession  of  lands 

Claimant  and  tenements  in  the  following  manner — to-wit :   When  any  per- 

oa'th  and  de-  son,  either  by  himself,  his  a^ent,  or  attorney  in  fact,  shall  take 

Siver    affida-  .  .... 

yit  to  sher-  and  subscribe  an  affidavit  in  writing,  before  any  officer  authorized 
to  administer  an  oath,  setting  forth  that  he  does  in  good  faith 
claim  the  right  of  possession  to  any  land  or  tenement  (describing 
the  same),  and  that  such  land  or  tenement  is  in  the  hands  of 
another  person  (naming  the  person),  who  does  not  in  good  faith 
claim  a  right  to  such  possession,  and  yet  refuses  to  abandon  the 


PT.  3.— TIT.  21.— CHAP.  1.— Trespassers  and  Tei^ants.      781 


Article  1. — Proceedin<2:s  Against  Intruders. 


«?... 


same ;  and  when  such  affidavit  shall  be  placed  in  the  hands  of  the 

Sheriff  of  the  County  ^here  the  land  or  tenement  is  situated,  it 

shall  be  the  duty  of  such  Sheriff,  at  the  earliest  practicable  day,  o^'^sherfff""^ 

to  exhibit  such  affidavit  to  the  person  described  as  being  in  p09-  ■■■,'> l./  >    ^  <^ 

session  of  such  land  or  tenement,  and  to  turn  such  person  out  of  ^  ♦    / 

possession,  unless  the  person  so  in  possession  shall  at  once  tender  _,^  '  ^    ^ 

to  the  Sheriff  a  counter  affidavit,  stating  that  he  does  in  good  faith  -  *.  •? 

claim  a  legal  right  to  the  possession  of  siiid  land  or  tenement,        ^  ^  ^^ 

§  4001.  The  Sheriff  shall  be  a  competent  officer  to  administer  sheriffmust 
the  oath  to  the  person  in  possession,  in  case  he  tenders  the  coun-  oath. 
ter  affidavit  provided  for  in  the  preceding  Section. 

§  4002.  If  a  counter  affidavit  be  tendered,  as  hereinbefore  pro-    where  am- 

'  .  davit     shall 

vided  for,  the  Sheriff  shall  not  turn  the  party  out  of  possession,  be  returned 

.         •  5        T  ,     .  .and       issue 

but  the  contending  parties  shall  be  remitted  to  their  respective  ^riea. 
rights,  and  the   Sheriff  shall  return  both  affidavits,  and  deposit 
them  in  the   office  of  the   Clerk   of  the   Superior   Court  of  the 
County  in  which  the  land  lies,  upon  which  an  issue  shall  be  made 
up  and  tried  by  a  jury,  according  to  the  laws  of  this  State.* 

§4003.  If  the  jSncling  of  the  jury  upon  the  trial  of  the  issue  if  verdict  be 
provided  for  in  the  preceding  Section  shall  be  for  the  plaintiff,  or  writ  of  pos- 

,        r^i      -,       1      -.T    .  T         •     1  '         f    7     1  session  shall 

movant,  the  Clerk  shall  issue  upon  the  judgment  a  writ  oi  habere  issue. 
facias  possessionem,  including  a  fieri  facias  for  the  costs. 

§  4004.  [The  trustees,  commissioners,  and  other  owners  of  camp 
grounds  in  this  State,  shall  have  the  exclusive  right  to  prevent  grounds" 
intruders  and  squatters  from  occupying  any  land  within  the  bound- 
aries of  said  camp  grounds,  and  for  instituting  proceedings  against 
any  such  intruders  and  squatters,  in  the  same  manner  as  is  now 
authorized  by  law,  against  intruders  and  trespassers  upon  land  in 
this  State.]  (a) 


Intrusions 
on         camp 


•\, 


ARTICLE    11. 


PROCEEDINGS    AGAINST    TENANTS. 


Section. 

4005.  Affidavit  of  the  landlord. 

4006.  Warrant  against  the  tenant. 

4007.  Tenant  may  arrest  proceedings. 

4008.  How  issue  shall  be  tried. 

4009.  Judgment  and  writ  of  possession. 


Skctiox. 

4010.  Distress  warrant— how  obtained. 

4011.  By  whom  levied. 

4012.  Replevy  of  property. 

4013.  Claims. 


§  4005.  In  all  cases  where  a  tenant  shall  hold  possession  of 
lands  or  tenements  over  and  beyond  the  term  for  which  the  same 


*See  Section  276.    (a)  Acts  of  1863-4,  pp.  63-4. 


782      PT.  3.— TIT.  21.— CHAP.  1.— Trespassses  and  Tenaxts. 

Article  2. — Proceedings  Against  Tenants. 
When  a  were  rented  or  leased  to  him,  Tor  shall  fail  to  pay  the  rent  when 

tenant  holds  \  .  i 

over,  etc.  the  samc  shall  become  due,]  (a)  and  in  all  cases  where  lands  or 
tenements  shall  be  held  and  occupied  by  any  tenant  at  will  or  suf- 
ferance, whether  under  contract  of  rent  or  not,  and  the  owner  of 
the  lands  or  tenements  shall  desire  the  possession  of  the  same, 
such  owner  may,  by  himself,  his  agent,  or  attorney  in  fact,  or  at- 
torney at  law,  demand  the  possession  of  the  property  so  rented, 
leased,  held,  or  occupied;  and  if  the  tenant  refuses  or  omits  to 
deliver  possession  when  so  demanded,  the  owner,  his  agent,  or  at- 
torney at  law,  or  attorney  in  fact,  may  go  before  the  Judge  of  the 
Superior  Court,  or  any  Justice  of  the  Peace,  and  make  oath  of  the 
facts. 

§  4006.  When  the  affidavit  provided  for  in  the  preceding  Sec- 
Warrant  tion  shall  bc  made,  the  officer  before  whom  it  is  made  shall  g-rant 

shall      issue  .  ^  ,  *-'        _ 

for  the  ten-  and  issuc  a  warrant,  or  process,  directed  to  the  Sheriff,  for  his 

ant's  remov-  ■••  ^    *- 

ai-  deputy,  or  any  lawful  Constable,]  (b)  of  the  County  where  the 

land  lies,  commanding  and  requiring  him  to  deliver  to  the  owner, 
or  his  representative,  full  and  quiet  possession  of  the  lands  or  ten- 
ements mentioned  in  the  affidavit,  removing  the  tenant,  with  his 
property  found  thereon,  away  from  the  premises. 

§  4007.  The  tenant  may  arrest  the  proceedings  and  prevent  the 

Tenantmay  rcmoval  of  himself  and  goods  from  the  land  by  declarinp;  on  oath 

arrest     pro-  ^  ^  . 

ceedings  by  that  his  Icasc  or  term  of  rent  has  not  expired,  and  that  he  is  not 

counter     ai-  ^  ' 

fidavit  and  holding  possession  of  the  premises  over  and  beyond  his  term,  [or 
that  the  rent  claimed  is  not  due,]  (b) ;  or  that  he  does  not  hold 
the  premises,  either  by  lease,  or  rent,  or  at  will,  or  by  sufferance, 
or  otherwise,  from  the  person  who  made  the  affidavit  on  which  the 
warrant  issued,  or  from  any  one  under  whom  he  claims  the  prem- 
ises, or  from  any  one  claiming  the  premises  under  him  ;  [^provided, 
such  tenant  shall  at  the  same  time  tender  a  bond  with  good  secu- 
rity, payable  to  the  landlord,  for  the  payment  of  such  sum  with 
costs  as  may  be  recovered  against  him  on  the  trial  of  the  case.]  (c) 
§  4008.  If  the  counter  affidavit  and  bond,  provided  for  in  the 
Issue  tried  preceding  Section,  be  made  and  delivered  to  the  Sheriff  or  Deputy 

Conrt"^^"^'  Sheriff,  or  Constable,  the  tenant  shall  not  be  removed ;  but  the 
officer  shall  return  the  proceedings  to  the  next  Superior  Court  of 
the  County  where  the  land  lies,  and  the  fact  in  issue  shall  be  there 
tried  by  a  special  jury  as  in  cases  of  appeal.* 

(a)  Acts  of  1865-6,  pp.  34-5.   (b)  Acts  of  1865-6,  p.  35.  (c)  Acts  of  1866,  p.  25. 
*  See  Section  276. 


PT.  3.— TIT.  21.— CHAP.  1.— Trespassers  and  Tenants.     783 


Article  2. — Proceedings  Against  Tenants. 


4 


?  4009.  If  the  issue  specified  in  the  precedino^  Section  shall  be  Double  rent 

'■  ^  ^  °  _  and  writ   of 

determined  against  the  tenant,  judgment  shall  go  against  him  for  P'jssession— 
double  the  rent  reserved  or  stipulated  to  be  paid;  or,  if  he  be  a 
tenant  at  will  or  suiFerance,  then  for  double  what  the  rent  of  the 
premises  are  shown  to  be  worth,  and  the  movant  or  plaintiff  shall 
have  a  writ  of  possession,  and  be  bj  the  Sheriff,  Deputy,  or  Con- 
stable, placed  in  full  possession  of  the  premises. 
*^  §  4010.  Any  person  who  may  have  rent  due,  when  the  sum  does       Distress^  )  ^'^y 

/  warrants —    /       a/'i 

*CO  not  exceed  fifty  dollars,  may  himself,  his  agent,  or  attorney,  make  ^^^  obtain-  > 

application  to  any  Justice  of  the  Peace  within  the  district  where        ^  ^—     /'", 
Ihis  tenant  may  reside,  or  where  his  property  may  be  found,  and    oathofthe 

y  _  '^  _'  _  J.       1         e/  «'  ^     y  principal,  hi6 

obtain  from  such  Justice  a  distress  warrant  for  the  sum  claimed  to  ^?^°t'  ^^  ^- 

torney  sum- 
be  due,  on  the  oath  of  the  principal,  his  agent,  or  attorney,  in  "^"*- 

.writing,  for  the  said  rent,  which  may  be  levied  by  any  Constable 

duly  qualified    on    any  property  belonging    to    the   said    tenant, 

whether  found  on  the  premises  or  elsewhere,  who  shall  advertise  may  be  lev- 

and  sell  the  same  as  provided  in   case  of  levy  and  sale  under  stable. 

execution. 

§  4011.  When  any  distress  warrant  shall  issue  for  a  sum  exceed-     ^\«^  p^ 

^  ''  may  be  lav- 

ing fifty  dollars,  it  shall  be  levied  by  the  Sheriff  of  the  County  or  gjf^^i^^  ^o® 

his  Deputy,  and  advertised  and  sold  as  provided  in  cases  of  other  ^^r"^';^'' 

executions.  f^  ^^  ^'"^^ " 

§  4012.  The  party  distrained  may  in  all  cases  replevy  the  prop-  Property le- 

erty  so  distrained  by  making  oath  that  the  sum,  or  some  part  "j^y.  \^  ^^' 

•z  */  o  7  r  plevied. 

thereof,  distrained  for  is  not  due,  and  give  security  for  the  even- 
tual condemnation  money ;  and  in  such  case  the  levying  officer 
shall  return  the  same  to  the  Court  having  cognizance  thereof,  which 
shall  be  tried  by  a  jury  as  provided  for  the  trial  of  claims. 

§  4013.  When  property  distrained  may  be  claimed  by  a  third      claims— 

1  ,,,,,.  T  ,  ,,  1.  liow     Inter- 

persoi),  the  same  snail  be  claimed  on  oath,   and    bond   given  as  posed     and 
required  in  cases  of  other  claims,  which  shall  be  returned  and  tried 
as  provided. by  law  for  the  trial  of  the  right  of  property  levied 
upon  by  execution.* 

*  See  Section  276.  ♦ 

/ 


784  PT.  8.— TIT.  21.— Trespasseks  and  Tenants. 

Chapter  2. — Forcible  Entry  and  Detainer. 

CHAPTER    II. 

FORCIBLE    ENTRY    AND    DETAINER. 


Section. 

4014.  Fact  to  be  tried  by  jury. 

4015.  If  all  do  not  attend. 

4016.  Possession  and  force  submitted. 

4017.  Oath  of  jury. 

4018.  Eestitution  to  be  made. 


Section. 

4019.  Time  allowed  for  certiorari. 

4020.  Service  on  non-residents. 

4021.  Non-residents  to  give  bond. 

4022.  No  bar  to  indictment. 


^U.  w  .^      g  4014.  Any  one  or  more  Justices  of  the  Peace,  upon  complaint 
justicesto  made  on  oatli  of  any  entry  into  lands  or  tenements,  or  of  any 

try  the  fact  J  J  ?  J    . 

by  a  jury,    forcible  detainer  of  the  same,  shall  have  power  to  draw  a  jury  of 
twelve  men  from  the  jury  box  of  the  district  in  which  the  lands 
/Cl-f^'-       ^^^  tenements  so  alleged  to  be  forcibly  entered  or  detained  are*, 
situated,  and  cause  the  Sheriff  of  the  County,  or  the  Constable  of 

monel^^"^'  the  district,  to  summon  them  to  be  and  appear  at  the  usual  place 
of  holding  Court  in  the  said  district  on  a  certain  day,  to  be  ap- 
pointed by  the  said  Justice  or  Justices,  for  the  purpose  of  trying 
the  fact  of  such  forcible  entry  or  detainer.  And  the  said  Justice 
or  Justices  shall  also  issue  a  summons  to  be  directed  to  the  person 
or  persons  charged  with  such  forcible  entry  or  detainer,  and  cause 
the  same  to  be  served  on  him  by  the  Sheriff  or  Constable  at  least 

„  five  days  before  the  time  appointed  for  trial,  requiring  him  to 

defendant,    appear  and  defend  the  charge  alleged  against  him. 

§  4015.  If  all  the  jurors  should  not  attend,  or  if  there  should 
If  all  the  be  a  lea;al  objection  to  any  of  them,  then  the  Justice  or  Justices 

jurors  do  act  .  . 

attend.  may  cause  the  jury  to  be  completed  by  tales  jurors,  [_ana  it  a 
jury  can  not  be  obtained  in  the  district,  the  Justice  or  Justices 
may  draw  a  jury  from  an  adjoining  district  in  the  County,  to  try 
said  case.]  (a) 

§  4016.  Upon  the  trial  the  only  facts  which  the  jury  shall  in- 

andforcfon^  quiro  iuto,  shall  be  the  possession  and  the  force,  but  they  shall 

mitted?  ^^^  havo  no  power  to  inquire  into  the  merits  of  the  title  on  either  side. 
§  4017.  The  following  oath  shall  be  administered  to  the  jurors — 

Oath  of  jury.  ^-^  .  "  You  shall  Well  and  truly  inquire  whether  A.  B.  has  made 
any  forcible  entry  into  the  lands  or  tenements  of  C.  D.,  and  him 
ejected  therefrom,  or  forcibly  detained  the  lands  or  tenements  of 
the  said  C,  D.,  and  a  true  verdict  give  according  to  the  facts  as 
they  may  appear  to  you  in  evidence.     So  help  you  God." 

(a)  Acts  of  1865-6,  pp.  85-6. 


PT.  3.— TIT.  21.— Trespassers  and  Tenants.  785 


Chapter  2. — Forcible  Entry  and  Detainer. 


§  4018.  If  upon  the  trial  of  such  case  the  iury  shall  find  such   RefiUtution 

'^  ^  _  ,  .  .         to  be  made. 

forcible  entry  or  forcible  detainer,  or  both,  then  the  said  Justice 
or  Justices  shall  give  judgment  accordingly,  and  cause  the  Sheriff 
to  make  restitution  of  possession  of  the  premises  to  the  party 
aggrieved ;  provided,  that  if  the  person  charged  with  such  forci- 
ble entry  or  detainer,  or  those  under  whom  he  claims,  shall  have  againfuh^ee 
been  in  peaceable  possession  of  the  premises  for  the  space  of  three  Son.  ^^^ 
years  or  more  as  aforesaid,  immediately  preceding  the  date  of  such 
warrant,  then  no  restitution  of  possession  shall  be  made. 

§  4019.  [In  all  cases  of  forcible  entry  and  detainer,  the  enforce-  Jr^cStSSS 
ment  of  the  judgment  shall  be  suspended  for  ten  days,  to  allow 
the  party  dissatisfied  with  the  same  time  to  make  out  his  writ  of 
certiorari ;  provided,^  that  the  party  complaining  of  said  decision 
shall,  at  the  time  it  is  made,  give  the  opposite  party  written  notice 
of  his  intention  to  take  said  case  to  the  Superior  Court.]  (a) 

§  4020.  If  the  defendant  charged  with  a  forcible  entry  or  de-        service 

f*     -,        ri  111  ^^  non-resi- 

tainer  is  not  a  resident  of  the  County  where  the  land  or  tenement  dents. 
is  situated,  service  of  the  summons  may  nevertheless  be  perfected 
on  him  or  his  tenant,  by  the  Sheriff  or  Constable,  as  though  he 
resided  in  the  County. 

§4021.  [All  non-residents,  defendants,  who  may  forcibly  enter     Non-resi- 

n         '^  T        ^  •  o         '^  ^  ti-/i  '  ^  dents  togive 

or  lorcibly  detain,  or  torcibly  enter  and  detain,  (and  against  whom  bond  in  ccr= 
suit  may  be  instituted  by  their  tenants,)  any  lot  or  parcel  of  land  in 
any  County  in  this  State,  shall  be  compelled  to  give  bond  and  secu- 
rity for  all  costs  and  damages  which  may  be  recovered  against  him 
for  such  forcible  entry  or  detainer,  or  forcible  entry  and  detainer  : 
provided^  that  such  defendant  shall  not  be  compelled  to  give  such 
bond  until  after  the  commencement  of  an  action  for  such  offence  as 
provided  by  law.  Said  bond  shall  be  made  payable  to  the  plaintiff 
in  such  action,  subject  to  be  recovered  as  in  cases  of  bond  given  on 
appeal  in  this  State,  and  on  failure  to  give  such  bond,  the  jury 
trying  said  cause  shall  award  possession  of  the  premises  in  dispute 
to  the  plaintiff.]  (b) 

§4022.  No  proceedings  under  the  provisions  of  this  Chapter  n   ^obarto 
shall  exempt  any  person  guilty  of  a  forcible  entry  or  detainer 
from  indictment  and  punishment,  under  and  by  virtue  of  the  pro- 
visions of  this  Code. 

(a)  Acts  of  1865-6,  p.  232.    (b)  Acts  of  1853-4,  pp.  42-3. 
50 


786 


PT.  3. — TIT.  22. — Abatement  of  Nuisances. 


Chapter  1. — Proceedings  for  the  Abatement  of  Nuisances. 


TITLE     XXII. 

PKOCEEDINGS  FOR  THE  ABATEMENT  OF  NUISANCES. 


CHAPTER    I. 

PROCEEDINGS    FOR    THE   ABATEMENT    OF    NUISANCES. 


Section. 

4023.  Nuisance — how  removed. 

4024.  When  in  a  town  or  city. 
^  4025.  Notice  to  parties. 

l!i^-^^4Q2Q.  When  it  is  a  grist  or  saw  mill. 


Section. 

4027.  Application — by  whom  made. 

4028.  Fees  of  Clerk,  witness,  and  jurors. 

4029.  Fees  of  the  Sheriff. 


rv 


§4023.  Any  nuisance  which  tends  to  the  immediate  annoyance 
May  be  re- of  the   citizcns  in  general,  is  manifestly  iniurious  to  the  public 

moved    and^        ^  ^  ^  ^  ^  '  ^  ,  -, 

how.  neaitn  and  saiety,  or  tends  greatly  to   corrupt  the  manners  and 

morals  of  the  people,  may  be  abated  and  suppressed  by  the  order 
of  any  two  or  more  Justices  of  the  Peace  of  the  County,  founded 
upon  the  opinion  of  twelve  freeholders  of  th&  same  County,  who 
shall  be  summoned,  sworn,  and  impanneled,  for  that  purpose  ; 
which  order  shall  be  directed  to  and  served  by  the  Sheriff  of  the 
County,  or  his  deputy. 

§  4024.  If  the  nuisance  complained  of  exists  in  a  town  or  city, 
When  in  under  the  government  of  a  Mayor,  Intendant,  Alderman,  War- 
*  dens,  or  a  Common  Council,  or  Commissioners,  such  nuisance,  by 
and  with  the  advice  of  said  Aldermen,  Wardens,  Council,  or  Com- 
missioners, may  be  abated  and  removed  by  order  of  said  Mayor, 
Intendant,  or  Commissioners ;  which  order  shall  be  directed  to 
and  executed  by  the  Sheriff  or  the  Marshal  of  said  town  or  city, 
or  their  deputy. 

§4025.  Reasonable  notice  shall  be  given  to  the  parties  inter- 
Notice.      ested  of  the  time  and  place  of  the  meeting  of  such  Justices  and 
freeholders,  or  of  such  Mayor,  Intendant,  Aldermen,  Wardens, 
Council,  or  Commissioners. 

§4026.  If  the  nuisance  complained  of  is  a  grist  or  saw  mill,  or 
Gristorsaw  Other  Water  machinery  of  valuable  consideration,  the  same  shall 

mill  or  other  *' 

water    ma-  not  bc  destroyed  or  abated  except  upon  the  affidavit  of  two  or 

chinery.  '^  ^  '■ 

more  freeholders,  before  one  or  more  of  the  Justices  of  the  Infe- 
rior Court  of  the  County  in  which  the  nuisance  complained  of  may 
exist,  testifying  that  the  health  of  the  neighborhood,  according  to 


PT.  S. — TIT.  22. — Abatement  of  Nuisances. 


78T 


Chapter  1. 


-Proceedings  for  the  Abatement  of  Nuisances. 


their  opinion  and  belief,  is  materially  injured  by  such  mill-dam, 
or  other  obstruction  to  a  water  course  by  other  machinery,  as  may 
be  complained  of ;  whereupon,  it  shall  be  the  duty  of  such  Infe- 
rior Court,  as  soon  as  practicable,  to  cause  a  jury  of  twelve  men 
to  be  drawn  from  the  jury  box  of  the  Inferior  Court,  and  sum-  drawnr  ^^ 
moned  by  the  Sheriff  or  his  deputy,  for  the  trial  of  the  cause, 
who,  together  with  the  said  Court,  shall  attend  at  the  Court 
House  of  said  County,  to  adjudge  the  case  of  nuisance  complained 
of;  and  all  parties  shall  have  a  reasonable  time  allowed  them  to 
summon  their  witnesses  and  procure  their  attendance. 

§4027.  A  public  nuisance  may  be  abated  on  the  application  of  ,^  Bywiiom 

^  iT  t!  J.  1  the    apphca- 

any  citizen  of  the  district,  and  a  private  nuisance  on  the  applica- Jj^^^'Jg"^'^^  ^^ 
tion  of  the  party  injured. 

§4028.  When  it  may  become  necessary  for  the  Justice  of  the  ^.^^es  of  the 

^  .  Clei'k,     wit- 

Inferior  Court',  or  other  tribunal  authorized  by  this  Code  so  to  peases, 

'    _  «/  jury. 

do,  to  cause  a  jury  to  be  summoned  and  impanneled  to  try  a 
cause  of  nuisance  arising  from  water  machinery,  mill-dam,  or  oth- 
erwise, the  Clerk,  witnesses,  and  jurors,  shall  be  allowed  such  fees 
in  said  causes  as  are  allowed  by  law  in  the  Inferior  Courts  of 
this  State. 

§  4029.  The  Sheriff,  or  other  officer,  for  summoning  such  jury, 
shall  receive  the  sum  of  three  dollars ;  and  when  acting  under 
the  order  of  said  Inferior  Court,  or  other  tribunal,  shall  remove 
any  nuisance,  machinery,  or  mill-dams,  for  which  he  shall  be  al- 
lowed such  fees  as  the  Cqurt  may  deem  reasonable  and  just. 


and 


Fees   for 
summoning 


TITLE     XXIIL 

OF    INQUESTS,    AND    PROCEEDINGS    THEREON. 


CHAPTER    L 

INQUESTS,    AND    PROCEEDINGS    THEREON. 


Section. 

4030.  Jury — how  summoned. 

4031.  Defaulting  jurors  may  be  fined. 

4032.  Number  of  jury,  etc. 
4083.  Jury — how  sworn. 
4034.  Oath  of  the  jury. 


Section. 

4035.  Coroner's  charge  to  the  jury,  etc. 

4036.  Witness — how  summoned,  etc. 

4037.  Witness  may  be  recognized. 

4038.  Inquests  to  be  returned  to  Sup'rC't. 

4039.  Removal  of  body. 


788  PT.  3.— TIT.  23.— I^questh. 


Chapter  1. — Inquests,  and  Proceedings  tbereon. 


§  4030.  Whenever  a  CoroBer  of  any  County  in  this  State  shall 
Coroner  have  notico  or  be  certified  of  the  death  of  any  person  within  the 

must   issue    ^      ^  "  ''    ^ 

precept  for  limits  of  the  Countv  of  which  he  is  Co^roner,  occurring:  under  cir- 

snmmomng  "^  t  g 

J"^7-  cumstances  which  make  it  his  duty,  under  the  laws  of  this  State^ 
to  hold  an  inquest,  he  shall  make  out  a  precept,  directed  to  any 
Constable  of  the  County  where  the  dead  body  is  found  or  lyings 
requiring  him  to  summon  a  jury  of  inquest  composed  of  good  and 
lawful  men  of  such  County,  to  appear  before  such  Caroner  at  the 
time  and  place  mentioned  in  the  precept ;  which  precept  lioay  be 
in  the  form  following — -that  is  to  say  : 

■^State  of  Georgia,  1    ^         ^     .,  ^       r.    .    ..^  ^     . 

n*  >    To  any:  Lawjtbl  OonstaUe  of  said  (JmLnty — Greeting  r 

"You  are  required  immediately  to  summon  eighteen  good  and 
Form  of  lawful  men  of  said  County  to  be  and  appear  before  me,  the  under- 

tne  precept,  ^  ^  ^  ^ 

signed.  Coroner  of  the  County  aforesaid,  at in  said  County, 

on  the  — - —  day  of at  — -  o'clock  of  that  same  day,  then  and 

there  to  inquire  of,  do  and  execute  all  such  things  as  in  behalf  of 
the   State  shall  be  given  them  in  charge  touching  the  death  of 

•,  (or  a  person  unknown,  as  the  case  may  be,)  and  be  you 

then  and  there  with  this  precept  to  certify  wkat  you  have  done  in 
the  premises,  and  further  to  do  whatsoever  else  may  in  behalf  of 
the  State  be  enjoined  upon  you. 

"  Given  under  my  hand  and  seal  this  the day  of in 

the  year  of  our  Lord ."  Coroner,  [l.  s.] 

Which  precept  shall  be  forthwith  executed  by  the  Constable  in 
Coiista^)ieor  whosc  hauds  it  may  be  placed :  and  if  the  services  of  a  Constable 

Coroner  may  ./  i  ' 

summon  the  can  not  bc  couvenieutly  obtained,  the  Coroner  may  summon  the 
jury  himself. 

§4031.  Any  juror  failing  to  attend  and  serve  on  such  Coroner^s 
.  ^ef*^^*^"«  inquest,  after  beino:  duly  summoned,  maybe  fined  by  the  Coroner 

jurors    may         J-  ?  g  J  7  ./  J 

be  fined.  \^  ^  g^^  j^q^  exceeding  ten  dollars,  to  be  levied  and  collected  by 
execution  issued  by  the  Coroner,  unless  such  defaulting  juror  shall 
file  in  the  Clerk's  ofiice  of  the  Inferior  Court  a  good  and  sufficient 
excuse  for  the  default,  to  be  judged  of  by  the  next  Inferior  Court 
held  thereafter. 

§4032.  Every  Coroner's  jury  shall  be  composed  of  twelve  ju- 
Number  of  rors,   scven  of   whom  shall   be  competent    to  return   a    verdict, 

jury,  etc.  '  ^  ^ 

[Except  when  the  deceased  body  upon  which  an  inquest  is  to  be 


I 


PT.  3.— TIT.  23.— Inquests.  789 

Chapter  1.— Inquests,  aucl  Proceedings  thereon. 


field  is  fou?!id  lying  without  the  corporate  limits  of  any  city  or 
town  m  this  State :  then,  and  in  that  case,  a  jury  of  six  persons 
■shall  be  competent  to  tiold  ttie  inquest  and  return  a  verdict,  a  ma-    - 
jority  of  them  concurring  therein.]  (a) 

§  4033.  The  following  oath  shall  be  administered  to  the  foreman       Oath  of 

'-'  foreman  and 

of  the  jury  by  the  Coroner — t©  wit :  ^'  You,  as  foreman  of  the  jury, 
inquest,  shall  diligently  inquire,  and  true  presentment  make,  on 
'behalf  of  the  State  of  Georgia,  how  and  in  what  manner  C.  D., 
(or  a  person  deceased,  unknown,  as  the  case  may  be,)  now  here 
i}^ing  dead,  came  to  his  death,  and  of  such  other  matters  relating 
to  the  same  as  shall  be  lawfully  required  of  you  according  to  evi- 
dence." And  the  remainder  of  the  jury  in  convenient  numbers  at 
^  time  shall  be  sworn  by  the  Coroner  as  follows — -to  wit :  ^'  The 
same  oath  which  the  foreman  of  this  inqmest  has  taken  on  his  part, 
you  and  each  of  you  shall  observe  and  keep  upon  your  part.  So 
help  yoa  Crod." 

§4034.   The   Coroner  shall  charge  the  iurors  to  declare  of  the  ^  charge  of 

o  *r  Coroner  and 

death  of  the  person  upon  whose  body  the  inquest  is  held,  whether  powers  of 
such  person  died  by  murder,  manslaughter,  misadventure,  misfor- 
'tune,  accident,  or  otherv^^ise;  and  who,  and  when,  and  by  what 
means,  and  in  what  manner ;  and  if  by  murder,  who  were  princi- 
pals and  who  were  accessories ;  and  if  by  manslaughter,  who  were 
the  perpretators,  and  with  what  instrument  the  stroke  or  wound 
was  in  either  case  given ;  and  so  of  all  the  prevailing  circumstan- 
ces which  may  ca^me  from  presumption.  And  if  by  misadventure, 
misfortune,  accident,  or  otherwise,  whether  by  the  act  of  God  or 
man ;  and  whether  by  hurt,  fall,  stroke,  drowning,  or  in  any  other 
way.;  also  what  person  was  present  at  the  death ;  also  from  whence 
the  deceased  came,  and  who  he  was,  and  who  are  his  parents,  re- 
lations and  neighbors  ;  also  who  were  the  finders  of  the  body ; 
also  whether  he  died  in  the  same  place  the  body  was  found,  or 
•elsewhere ;  and  if  elsewhere,  who  moved  the  body ;  and  also  of 
all  the  circumstances  relating  to  said  death ;  and  if  the  deceasecl 
died  in  prison,  the  Coroner  shall  farther  charge  the  jury  to  in- 
quire whether  he  died  by  hard  usage  there  or  not,  and  if  so  hj 
whom ;  and  if  the  deceased  put  an  end  to  his  life,  to  inquire  of 
the  manner,  means  used,  or  instrument  employed,  and  of  the  cir- 
cumstances concerning  it ;  and  the  jury  shall  have  full  and  unre- 

(a)  Acts  of  1862-3,  pp,  165-6. 


790  PT.  3.— TIT.  23.— Inquesiis. 

Chapter  1. — Inquests,  and  Proceedings  thereon. 


stricted  powers  to  inquire  and  pass  upon  all  the  matters  and  thingsr 
thus  given  them  in  charge,  and  thej  shall  have  this  power  even  if 
the  whole  or  a  part  of  the  charge  he  omitted. 

§  4035.  The  Coroner  shall  have  full  power  to  issue  suhpcenas  to^ 
i  ,'  Witnesses  ol*  Otherwise  to  compel  the  attendance  of  witnesses  upon  such  in 

'  -^bovv  sum- 

i  moned   and  quests,  to  declare  their  knowledge  touching  the  matters  of  inquiry 
i  before  the  inquest,  and  the  Coroner  shall  administer  to  such  wit- 

]  nesses  the  following  oath — to  wit :     "  The  evidence  that  jou  shall 

\  give  this  inquest  on  behalf  of  the  State  touching  the  death  of  C. 

D.,  (or  a  person  unknown,  as  the  case  may  be,)  shall  be  the  truth^ 
;  the  whole  truth,  and  nothing  but  the  truth.     So  help  you  God." 

;  §  4036.  If  the  inquest  discloses  facts  which  lead  or  m?.j  lead  to 

I  Witnesses  to  the  prosccution  of  any  person  for  the  homicide  of  the  person  upon 

be  recogniz- 

I  ed  to  appear  ^hose  bodv  the  iuQuest  is  held,  it  shall  be  the  duty  of  the  Coro- 

I  and  give  evi-  .  .  .  . 

I  dence.         ner  to  require  all  witnesses   who  testify  to  facts  material  to  the 

I  issues  involved  in  such  prosecution  to  enter  into  a  recognizance  to 

I  i"             appear  and  give  evidence  in  the  Superior  Court  of  the  County  in 

I  "which  the  inquest  is  taken,  against  the  defendant  in  such  prosecu- 

;  tion ;  and  shall  also  issue  a  warrant  for  the  arrest  of  the  person 

]  suspected  of  the  homicide,  returnable  as  other  warrants. 

]  §  4037.  The  Coroner  shall  commit  to  writing  the  substance  of 

;i  Inquisition  the  testimonv  delivered  before  the  inquest,  and  shall  return  all 

to  be  return-  "^ 

;  ed  to  supe-  the  papers  and  proceedings  touching  the  inquisition  to  the  Supe- 

rior Court  of  the  County  in  which  it  is  taken,  held  next  after 
such  inquest. 

§  4038.  If  the  verdict  of  the  jury  suggests  that  the  death  was 
caused  by  poison,  the  Coroner  shall  have  power  to  cause  an  ac- 
curate examination  of  the  contents  of  the  stomach  and  intestines, 
by  skillful  physicians,  and  the  reasonable  expenses  of  such  ex- 
amination shall  be  paid  out  of  the  County  Treasury. 

§4039.  [When  the  deceased  body  lies  in  a  place  inconvenient 
Body  may  for  holding:  an  inquest,  the  Coroner,  or   any  other  person  under 

be  removed.   .  o  a.  -'  7  ,/  c 

his  direction,  shall  be  allowed  to  remove  the  body  to  a  suitable 
spot.]  (a) 

(a)  Acts  of  1862-3,  p.  166. 


PT.  3.— TIT.  24.— CHAP.  1.— Courts  of  Ordinary.  791 

Article  1. — Sessions  and  Adjournments  of  the  Court  of  Ordinary. 

TITLE     XXIV. 

PROCEEDINGS    IN    COURTS    OF    ORDINARY. 


CHAPTER   I. 

PROCEEDINGS  IN  COURTS  OF  ORDINARY. 


Article  1. — Sessions  and  Adjournments  of  the  Court  of  Ordinary. 
Article  2. — Practice  in  the  Court  of  Ordinary. 


ARTICLE  I. 

SESSIONS  AND   ADJOURNMENTS   OF   THE   COURT   OF   ORDINARY. 


Section. 

4040.  When  held. 

4041.  Ofl&ce — where  kept. 


Section. 

4042.  May  be  adjourned. 


§4040.  The  several  Courts  of  Ordinary  shall  be  held  in  each  wheuheid. 
County  in  this    State,  by  the  Ordinary  thereof,  on  the  first  Mon- 
day in  each  month. 

§  4041.  The  said  Ordinary  shall  keep  his  office  at  the  County       Office— 

''  .  .        where  kept. 

site,  or  such  other  place  as  naay  be  authorized  by  law ;  which 
office  shall  be  open  for  the  transaction  of  all  business  at  all  times,  when  open. 
except  Sundays  and  holidays;  but  no  will  shall  be  admitted  to  re- 
cord, or  letters  testamentary  of  administration  or  guardianship, 
or  letters  dismissory,  nor  shall  any  order  for  the  sale  of  real  es- 
tate be  granted,  except  at  a  regular  term  of  said  Court. 

§4042.  If,  from  any  circumstance,  the  Ordinary  should  fail  to  Maybe  ad- 
hold  said  Court  at  the  regular  term,  or  at  any  adjourned  term,  or 
the  business  of  the  Court  requires  it,  said  Ordinary,  or  his  deputy 
clerk,  may  adjourn  said  Court  to  such  times  as  he  may  think  pro- 
per, provided  such  adjournment  shall  be  entered  on  the  minutes 
of  the  Court. 


792 


PT.  3.— TIT.  24.— CHAP.  1.— Courts  of  Ordinary. 


Article  2. — The  Practice  in  the  Court  of  Ordinary, 


ARTICLE    II. 


OF   THE   PRACTICE   IN   THE   COURT   OF   ORDINARY. 


Section. 

40-43.  Applications  and  proceedings. 

4044.  The  order — what  it  must  contain. 

4045.  Objections  must  be  in  writing. 

4046.  Proeeedincs  naust  be  filed. 


Section. 

4047.  Minutes  of  proceedings. 

4048.  Docket  of  applications. 

4049.  Docket  of  executors  and  adm'rs. 
40-50.  May  attach  for  contempt. 


and 
made 


§  4043.  Every  application  made  to  the  Ordinary  for  the  grant_ 
Applications  ing  of  any  order  shall   be   by  petition  in  writing,   stating   the 
writing.       grounds  of  such  application  and  the  order  sought.     If  notice  of 
such   application,  other  than  by  published  citation,  is  necessary 
under  the  law  or  in  the  judgment  of  the  Ordinary,  he  shall  cause 
a  copy  of  such  application,  together  with  a  notice  of  the  time  of 
hearing,  to  be  served  by  the  Sheriff,  or  some  lawful  officer,  upon 
proceedings  ^^®  party  or  parties  to  be  notified,  at  least  ten  days  before  the 
~^^  ^^how  hearing,  and  an  entry  of  such  service  made  on  the  original.     In 
extraordinary  cases,  where  it  is  necessary  to  act  before  such  no- 
tice can  be  given,  the  Ordinary  shall  so  direct  the  proceedings 
as  to  make  no  final  order  until  such  notice  has  been  given. 

§  4044.    The   order  of   the  Ordinary  shall  always    recite  the 
Order—  namcs  of  the  persons   so  notified,  and  the   compliance  with  the 

what  it  must  .    .  .       ^ 

contain.       provisions  required. 

§  4045.  All  objections  or  caveats  to  an  order  sought  shall  also 
Objections  be  in  writing,  setting  forth  the  grounds  of  such  caveat.     The  pe- 

must   be  in..  ,  ini  tit  n»  i    ' 

writing.       tition  and  caveat  shall  be  amendable  at  all  times  and  m  every 
particular. 

§  4046.  The  proceedings  shall  always  be  kept  of  file,  and  when- 
Proeoed-  cvor  the  Order  is  granted  the  proceedings  shall  be  recorded  in  a 
filed.  book  to  be  kept  for  that  purpose,  for  which  the  Ordinary  shall  re- 

ceive the  same  fees  as  are  allowed  Clerks  of  the  Superior  Court 
for  similar  services. 

§  4047.  The  Ordinary  shall  keep  a  regular  book  of  minutes  of 
Minutes  of  the  procecdings  of  his  Court,  on  which  he  shall  enter  all  the  ap- 

proceedings.      , .         . 

plications  refused  as  well  as  those  granted. 

§4048.  He  shall  keep  a  docket  of  all  applications  and  causes 
Docket  of  pending  in  his  Court,  which  shall  be  regularly  continued  from  term 

applications.  -it        r*       t    t  ••  ^ 

to  term  until  the  final  disposition  thereoi. 

§  4049.  He  shall  also  keep  a  docket  of  all  the  executors,  ad- 
Docketof  ministrators,  guardians,  and  trustees  who  are  liable  to  make  re- 
etc.        '   turns  in  his  Court,  with  rearular  entries  of  their  returns,  and  of 


PT.  3.— TIT.  25.~CriAP.  1.— Infehior  Courts. 


793 


Article  1. — Sessions  and  Adjournments. 


such  as  have  failed  to  make  returns  as  required  by  law  and  the 
order  of  the  Court. 

§4050.  The  Ordinary  shall  have  power  to  enforce  obedience  to    May  attach 

^  •/  i  for  contempt 

all  lawful  orders  of  his  Court,  by  attachment  for  contempt,  in  the 
same  manner  as  a  Court  of  Equity  may  do. 

§  4051.  [The  Ordinary  may  appoint  some  fit  and  proper  person 
to  open  and  adjourn  his  Court,  in  the  absence  of  an  officer  to  do 
so.]  (a) 


TITLE    XXV. 

PROCEEDINGS   OF  THE  INFEPJOR  COURT  SITTING  FOR 

COUNTY    PURPOSES. 


CHAPTER    I. 


PROCEEDINGS  OF  THE   INFERIOR  COURT   SITTING  FOR   COUN- 
TY  PURPOSES. 


Article  1. — Sessions  and  Adjournments. 
Article  2. — .Proceedings  therein. 


ARTICLE    I. 


SESSIONS     AND     ADJOURNMENTS, 


Section. 

4052.  When  held,  and  by  whom. 

4053.  May  adjourn. 

4054.  May  hold  special  meetings. 


Section. 

4055.  Sheriff  shall  attend. 

4056.  The  Clerk  and  his  duty. 

4057.  Jurisdiction  of  said  Court. 


§4052.  The  Justices  of  the  Inferior  Court  (or  a  majority  of  By  whom 
them)  in  the  several  Counties  in  this  State,  shall  meet  at  the  and  where 
Court  House  of  their  respective  Counties  on  the  first  Tuesday  in 
every  month,  for  the  purpose  of  hearing  such  matters  as  may  be 
brought  before  them  within  their  jurisdiction,  and  when  so  assem- 
bled and  organized,  they  shall  be  known  as  the  Inferior  Court  sit- 
ting for  County  purposes. 

(a)  Acts  of  1861,  p.  56. 


794 


PT.  3.— TIT.  25.— CHAP.  I.—Inferior  Courts. 


Article  2. — Proceedings  therein. 


§4053.  Such  Court  may  adjourn  to  such  other  time  as  will  best 
May  adjourn  promotc  the  euds  of  justice. 

§  4054.  Any  one  of  said  Justices  may  call  a  special  meeting  of 
Special   ga|(j  Court  for  County  purposes,  at  any  time  "when  the  ends  of 

meeting,  ,/     i       i  :'  j 

justice  may  require  such  meeting,  and  in  such  case  the  Justice 
making  such  call  shall  notify  the  other  Justices  of  the  time  of 
such  meeting. 

§4055.  The  Sheriff  of  the  County  shall  attend  all  meetings  of 
TheSheriffsaid  Court,  when  sitting  for  County  purposes,  and  be  subject  to 
the  order  thereof. 

§  4056.  The  Clerk  of  the  Inferior  Court  shall  by  virtue  of  his 
The  Clerk,  officc  be  Clerk  of  said  Court  when  sitting  for  County  purposes, 
and  subject  to  the  order  thereof. 

§4057.  Said  Court  may  hear  and  determine  all  matters  over 
Jurisdiction  which  the  law  gives  the  Justices  jurisdiction. 


ARTICLE  11. 


PROCEEDINGS     THEREIN 


\ 


Section. 

4058.  Application  to  said  Court. 

4059.  Docket  must  be  kept. 

4060.  Notice  of  proceedings. 

4061.  Minutes  of  proceedings. 


Section. 

4062.  Jury  fees — when  paid  to  Treasurer. 

4063.  May  punish  contempts. 

4064.  Amendments. 


§  4058.  All   applications  for   proceedings  before  the  Inferior 
Petition  or  Court  sitting  for  County  purposes  shall  be  by  petition  in  writing, 

application       ,  .    ,        ,  .    ,  ^      t      •  r>       i       \ 

must  be  in  which  shall  plainly   and  distinctly  set  forth  the  grounds  of  the 

writing.  .        .  . 

proceedings  desired,  and  in  like  manner,  all  objections  to  said  pro- 
ceedings shall  be  in  writing,  which  shalFfully  set  forth  the  grounds 
of  objection. 

§  4059.  Said  Court  shall  cause  a  docket  to  be  kept  in  which 
Docket  must  shall  bc  entered  all  motions  and  applications,  which  shall  be  called 

be  kept.  .  .  rr  ? 

and  disposed  of  in  the  order  in  which  they  stand  upon  the  docket, 
unless  the  ends  of  justice  require  a  different  course. 

§  4060.  When  individuals  are  to  be  affected  by  any  order   or 
Notice  of  judgment  of  said  Court,  such  individuals  shall  have  reasonable  no- 
tice of  the  time  and  place  of  hearing. 

§  4061.   Said  Court  shall  cause  to  be  kept  a  minute  of  its  pro- 
Minutes  of  ceedings. 

§  4062.  For  each  decree  or  verdict  in  the  Superior  Court,  the 


PT.  3.— TIT.  26.— CHAP.  1.— Justices'  Courts.  795 

Article  1. — When  and  where  Held. 
lury  fee  shall  be  three  dollars,  and  for  each  confession  of  iuda;-   Jury  fees— 

^      "^  ,    '  ,  .JO    liow  coUect- 

ment,  one  dollar,  to  be  taxed  in  the  bill  of  costs,  and  when  collect-  ed  and  dis- 

^  ^  posed  of. 

ed,  shall  be  paid  into  the  County  Treasuries  respectively. 

§4063.  The  said  Court   shall  have  power  to  punish  for  con-    contempts 

— ^^"^^  pun- 
tempts,  under  the  same  rules  and  regulations  as  are  provided  for  isiied. 

the  Inferior  Courts. 

§  4064.  Amendments   shall   be  allowed  as  provided  in    other  ^gQ^®^*^" 

Courts.  ■<  y  >s  ^       6  <r  ^ 

Note. — As  to  other  powers  and  duties  of  the  Justices  of  the  Inferior  Court,     ff^S 
see  Part  1,  Title  5,  Chapter  5,  Article  1 ;  and  Part  1,  Title  6,  Chapters  1, 2, 3.  Jw  P%/Z-^ 


^^-i/sTS 


TITLE    IIVI. 

OF     PROCEEDINGS     IN     JUSTICES'     COURTS. 


CHAPTER  I. 

OF    PROCEEDINGS    IN    JUSTICES'     COURTS 


Article     1. — Justices'  Courts — when  and  where^Jield, 

ft 

Article     2. — Jurisdiction  of  Justices'  Courts. 

Article     3. — Commencement  of  Suits — Service  of  Summons. 

Article     4. — Pleas  and  Defenses. 

Article     5. — Evidence —  Witnesses- — Interrogatories, 

Article     6. — Trial  and  Judgment. 

Article     7. — Appeals. 

Article     8. — Claims  and  trial  thereof. 

Article     9. — Final  Judgment  and  Execution. 

Article  10. — Justices'  Courts  may  Rule  Constables^  etc. 

Article  11. — Levy  and  Sale  under  Fi.  Fas.  from  a  Justices'  Court. 


ARTICLE  I. 

JUSTICES'    COURTS- WHEN    AND    WHERE    HELD. 

Section.  i  Sectiox. 

4065.  When  held.  I        4066.  Where  held. 

§  4065.  The  Justices'  Courts  of  this  State  shall  be  held  once  a 


796  PT.  3.— TIT.  28.— CHAP.  1.— Justices'  Courts. 

Article  2. — Jurisdiction. 

Court—  month  in  each  militia,  or  company  district,  on  a  day  to  be  fixed 
and  appointed  by  the  Justices  of  the  Peace  of  the  district ;  and 
whenever  the  business  requires  it  the  term  may  continue  for  two 
or  more  days. 

Court—      §  4066.  The  Justices'   Court  shall  be  held  at  a  place  in  each 

wliere  held.         .....  . 

militia  district  as  nearly  central  as  convenience  will  admit. 


ARTICLE  II. 

JURISDICTIOK     OF    THE    JUSTICES'    COURTS 


Section. 

4067.  Shall  not  try  action  for  damages. 

4068.  Notes  for  the  same  consideration. 

4069.  Jurisdiction  as  to  amount. 

4070.  Residence  necessary  for  jurisdiction 


Section. 

4071.  Co-obligors  in  different  districts,  etc 

4072.  Justice  being  a  party — how  sued. 

4073.  When  suit  is  in  adjoining  district. 

4074.  Maker  and  indorser — how  sued. 


■^i'.^.    .   ") 


^ 


/  w*' 


§  4067.  The  Justices'  Courts  shall  try  no  action  to  recover  dam- 
•     Can  not  agcs,  [cxccpt  cascs  of  trcspass  upon  personal  property,  where  the 

try  cases  for  I'li  t      ^         •       -     t      •  n      i        r^ 

damages.  amount  Claimed  does  not  exceed  the  jurisdiction  ot  the  Court :  m 
Excepttres-  which  cascs  Said  Courts  may  give  judgment  for  plaintiffs  for  the 
sonai  prop-  amount  of  damages  that  may  be  proven,  under  the  same  rules  and 
regulations  as  in  the  Superior  Courts  in  such  cases ;  provided, 
that  either  party,  being  dissatisfied  with  the  judgment  of  the  Court, 
shall  have  the  right  of  an  appeal  to  a  jury,  Avhich  shall  be  tried 
as  other  appeals  in  said  Court.]  (a) 

§  4068.  The  Justices'  Courts  shall  have  jurisdiction  of  all  suits 
Suits  on sev- brought  ou  two  or  more  promissory  notes,  or  other  evidences  of 
same  debt,    debt  uot  exceeding  fifty  dollars  each,  although  given  between  the 
same  parties  for  one  and  the  same  debt  or  consideration. 

§  4069.  The  Justices'  Courts  shall  have  jurisdiction  to  hear  and 
Suits  not  determine  all  suits  on  promissory  notes,  accounts,  due  bills,  and 
principal.     Other  cvidenccs  of  debt,  where  the  principal  sum  sued  for  does  not 
exceed  fifty  dollars. 

§  4070.  Ten  days'  residence  of  a  party  within  a  militia  district 
Tendaysres-  shall  be  sufiicicnt  to  givc  the  Justices'  Court  of  such  district  juris- 

idence  gives  j-    ,•  r»         •,  '       i.  r.' 

jurisdiction,  diction  01  suits  agaiiist  him. 

co-obiig-      §  4071.  When  a  bond,  note,  bill,  open  account,  or  other  evi- 
euhe?^  diT-  dcncG  of  debt  shall  be  against  several  persons,  residing  in  differ- 

trict. 

t 

(a)  Acts  of  1861,  p.  63. 


PT.  3. 


■TIT.  26.--CHAP.  1.- 


JUSTICES'  COIJ] 


LTS. 


797 


Article  3. — Commencement  of  Suits,  Service,  etc. 


ent  Counties  or  districts,  the  plaintiff  shall  have  his  option  to  bring 
suit  on  such  demand  in  either  of  such  Counties  or  districts. 

§  4072.  In  all  cases  in  which  a  Justice  of  the  Peace  is  a  party, 
the  suit  may  be  brought  in  the  Justices'  Court  nearest  to  the  resi- 
dence of  the  defendant  in  the  County,  or  in  the  district  where  the 
defendant  resides,  at  the  option  of  the  plaintiff. 

§  4073.  In  cases  provided  for  in  Section  4072,  the  Justice  of 
the  Peace  in  the  adjoining  district  may  issue  summons,  and  pro- 
ceed against  the  defendant  in  the  same  manner  as  if  the  defend- 
ant were  a  resident  of  such  adjoining  district. 

§  4074.  The  maker  and  indorser  of  a  promissory  note  or  other 
evidence  of  debt,  not  exceeding  fifty  dollars  principal,  may  be 
sued  in  the  district  of  the  maker's  residence,  and  the  indorser  may 
be  served  with  process  in  the  same  manner  as  that  prescribed  in 
the  case  of  joint  contractors. 


If  Ju3ticeof 
the  Peace  is 
a  party. 


When  ad- 
joining? dis- 
trict has  ju- 
risdiction. 


Snit  «s. 
maker  and 
indorser  to 
be  in  district 
of  maker. 


ARTICLE    III. 

COMMENCEMENT    OF    SUITS,    SERVICE,    ETC. 


Section. 

4075.  Summons — how  issued  and  directed 

4076.  Must  specify  time  and  plac§. 

4077.  Must  be  served  nine  days  before  C't 

4078.  Who  may  serve  the  summons. 

4079.  What  officer  may  servo  co-obligors. 

4080.  How  summons  is  to  be  returned. 


Sectiox. 

4081.  Proceedings  uniform. 

4082.  Appearance  term  of  cases. 

4083.  Bail  in  Justices'  Courts. 

4084.  Parties  may  settle  cases. 

4085.  Justices  and  Constables  give  receipt 


§  4075.  All  suits  in  the  Justices'  Courts  of  this  State  shall  be  summons- 

how    issued 

commenced  by  warrant  or  summons,  which  shall  be  issued  and  ^nd  signed. 
signed  by  the  Justice  of  the  Peace  of  the  district  in  which  the 
suit  is  brought,  and  shall  be  directed  to  the  defendant,  command- 
ing him  to  appear  at  the  Court  to  which  the  summons  is  returna- 
ble, to  answer  the  plaintiff's  demand,  which  summons  shall  bear 
date  ten  days  before  the  return  term  of  the  Court. 

§  4076.  The  time  and  place  of  holding  the  Court  must  be  speci-  ^Je^^^f^gt 
fied  in  the  summons.  ^«  specified. 

§  4077.  The  summons  or  warrant  shall  be  served  upon  the  de-     summons 

•»■  — how     ana 

fend  ant,  either  by  giving  him  a  copy  of  the  same  in  person,  or  by  ^jj^^«  ^^^^' 
leaving  such  copy  at  his  usual  and  most  notorious  place  of  abode, 
at  least  nine  days  before  the  sitting  of  the  Court  to  which  the 
summons  is  returnable. 

§  4078.  The  summons  may  be  served  by  the   Constable  of  the 


788  PT.  3.— TIT.  26.— CHAP.  1.— Justices'  Courts. 

Article  3. — Commencement  of  Suits,  Service,  etc. 


Who  may  district  in  whicli  the  suit  is  commenced,  or  if  there  be  no  such 

86rV6  ttlG 

summons.     Constablc,  or  he  be  a  party  to  or  interested  in  the  case,  such  sum- 
mons may  be  served  by  any  Constable  of  the  County. 

§  4079.  In  cases  where  suit  is  brought  against  joint  obligors  or 
In  case  of -joint  promissors,  or  other  ioint  debtors,  and  in  cases  where  the 

co-obligors.     ^        •  r*     i       -r.  •  i     • 

Justice  of  the  Peace  is  a  party,  and  m  cases  where  there  is  no 
Justice  in  the  district  of  the  defendant's  residence — in  all  these 
and  like  cases,  the  Constable  of  the  district  in  which  suit  is  brought 
may  serve  all  processes,  on  all  the  parties,  and  do  all  other  legal 
acts  required  of  him  in  the  progress  of  such  suit,  in  any  district 
of  the  County. 

§  4080.  The  officer  serving  the  summons  shall  return  the  origi- 
siimmons  nal,  with  his  entry  of  service  thereon,  to  the  Justice  of  the  Peace 
and  kept,     before  whose  Court  the  suit  is  pending,  and  the  Justice  shall  file 
and  preserve  the  said  original  summons  with  the  other  papers  ap- 
pertaining to  his  office. 

§  4081.  The  proceedings  of  the  Justices'  Courts  shall  be  uni- 
Proceedings  form  tliroughout  the  State,  unless  otherwise  provided  for,  and  each 
form.  Justice  of  the  Peace  shall  keep  a  fair  and  legible  book  of  entry 

of  all  civil  proceedings  had  before  him  for  the  recovery  of  debts. 
§  4082.  The  term  of  the  Court  to  which  the  summons  is  made 
Appearance  returnable  shall  be  deemed  and  considered  the  appearance  term, 
when  the  case  shall  be  docketed  on  what  shall  be  called  the  ap- 
pearance docket,  unless  the  demand  sued  on  be  for  rent,  in  which 
case  it  shall  stand  regularly  for  trial  at  the  first  or  appearance 
term. 

§  4083.  The  Justices'  Courts  shall  have  power  and  authority  to 
Bail  in  Jus- hold  to  bail  for  all  debts  within  their  jurisdiction  and  to  enforce 
'  the  liability  of  bail  under  the  same  rules  and  regulations  as  those 
which  prevail  on  that  subject  in  the  Superior  Courts ;  and  when  a 
bail  process  is  placed  in  the  hands  of  a  Constable  against  one  who 
is  moving  about  from  one  district  to  another,  such  Constable  may 
follow  such  itinerant  defendant,  and  serve  the  process  in  any  dis- 
trict in  the  County. 

§  4084.  Any  case  in  the  Justices'  Court  may  be  settled  at  any 
Parties  may  time  by  the  parties,  upon  payment  of  the  costs  which  have  accrued 
up  to  the  time  of  such  settlement. 

§  4085.  Whenever  any  claim  is  given  to  j^  Justice  of  the  Peace 
or  Constable  for  collection,  such  Justice  or  Constable  shall  give  a 
receipt  therefor,  and  when  the  money  is  collected,  such  Justice 


PT.  3.— TIT.  26.— CHAP.  1.— Justices'  Courts.  799 


Article  4. — Fleas  and  Defenses. 


or  Constable  shall  pay  the  same  to  the  plaintiff,  his  agent,  or  at-     ,  Justices 
torney,  unless  there  be  conflictins;  claims  for  the  money,  in  which  t>!es     must 

•^  '  «->  .  "^  give  receipts 

case  the  question  shall  be  decided  at  the  first  Court,  unless  a  con-  ^^^  claims. 
tinuance  be  had  according  to  law. 


ARTICLE  IV. 

PLEAS    AND    DEFENSES. 

Section,  i  Section. 

4086.  Defenses  same  as  in  Superior  Courts.  |        4087.  Non  est  factum  and  dilatory  picas. 

§  4086.  At  the  appearance   term  the  defendant  may  plead  any  „  what  de- 
■'■•'•  ^t/  1.  »r  fpxises   may- 

matter  of  defense  to  a  suit  in  the  Justices'  Court  which  would  be  b^setup. 

allowed  to  suits  in  the  Superior  and  Inferior  Courts. 

§4087.  All  dilatory  pleas  must  be  filed  at  the  first  term  of  the    Whatpieas 

Court,  unless  the  failure  to  do  so  is  shown  to  be  the  result  of  un-  under  oath. 

avoidable  cause ;  and  all  dilatory  pleas  and  pleas  of  non  egt  faa- 

tum  must  be  verified  hj  the  affidavit  of  the  defendant  at  the  time 

of  filing  the  same. 


.ARTICLE  V. 

EVIDENCE. 


Section. 

4088.  Best  evidence  must  be  produced. 

4089.  Account  against  moving  party. 

4090.  Defendant  pleading  usury. 

4091.  If  plaintiff  fails  to  answer. 


Section. 

4092.  Party  subject  to  cross-examination. 
'    4093.  Witnessescompelled  to  attendance. 

4094.  Testimony  taken  by  commission. 


§  4088,  In   all  cases  in  the  Justices'  Courts  of  this  State,  the     Best  evi- 
dence     re- 
best  evidence  the  nature  of  the  case  will  admit  of  shall  be  re-  quired. 

quired. 

§  4089.  Where  suit  is  brought  upon  an  open  account,  against  a      Accounta 

party  who  has  removed  from  the  County  in  which  the   debt  was  moving    or 

•^  ,  non-resident 

contracted,  or  who  resides  out  of  the  County  in  which  the  debt  p^^^ty    "^^y 

•'be      proved 

was  contracted,  such  account  must  be  proved  by  the  written  alSi-  ^y  affidavit, 
davit  of  the  plaintiff;  and  when  so  proved  shall  be  received  in 
evidence  as  if  it  was  proved  in  open  Court.  Kevertheless,  if  the 
defendant  will  file  his  written  affidavit  denying  the  justice  and 
fairness  of  the  whole  or  any  part  of  such  account,  the  Court  shall 
not  give  judgment  in  favor  of  the  plaintiff  for  that  part  of  the 
account  so  denied  and  controverted,  unless  supported  by  other 
proof. 


^00  PT.  3.— TIT.  20.— -CHAP.  1.— Justices'  Courts. 

Article  5. — Evidence. 


§  4090.  When  a  plea  of  usury  is  filed  in  tlie  Justices'  Court, 

How  defen-  tlie  ciefendant  may  give  the  plaintiff  ten  days'  notice  of  the  plea 

io|    Jbtam  accompanied  with  a  copy  of  the  same,  and  this  notice  shall  entitle 

discovery.     i\^q  defendant  to  the  written  affidavit  of  the  plaintiff,  as  to  whether 

or  not  the  facts  of  the  plea  are  true  as  to  the  usury,  and  whether 

or  not  the  contract  sued  on  was  usurious,  and  such  affidavit  may 

be  read  on  the  trial  as  evidence  by  either  party. 

§  4091.  If  the  plaintiff,  after  being  notified  of  the  plea,  fails 
If  thepiain-  to  make  the  affidavit  provided  for  in  the  preceding  Section,  the 

XlII     ItlllS     to 

answer.  defendant  shall  be  permitted  to  verify  the  facts  of  his  plea  by 
written  affidavit,  which  affidavit  may  be  read  in  evidence  on  the 
trial  by  either  party. 

§  4092.  Either  party  making  an  affidavit  under  the  provisions 

.  Party  sub- of  the  two   preceding   Sections  shall,  nevertheless,  be  sworn  and 

ject  to  cross-  j.  o  ^  --  ^ 

examination  examined  by  the  adverse  party  as  any  other  witness;  and  in  every 

case  where  one  party  offers  himself  as  a  witness,  the  other  party 

shall  have  the  privilege  of  being  heard  also  on  his  own  motion. 

§4093.  Either  one  of  the  Justices  of  the  Peace  of  the  district 

Witness  in  which  a  suit  is  pendino;,  may  issue  a  subpoena,  directed  to  any 

maybe  sub-       .  r  &?  J  r  J  .7 

pcenaed.  witucss  whoso  testimony  may  be  desired  by  either  party  in  any 
case,  which  subpoena  shall  be  served  on  the  witness  three  days 
before  the  day  of  trial.  ' 

§  4094.  Testimony  may  be  taken,  and  brought  into  Court  by 

Testimony  intcrrogatories  and  commission,  in  any  case  pending  in  the  Justi- 

ken  by  inter-  Qgg'  Court,  uudcr  the  Same  rules  and  regulations  which  prevail  on 

rogatories.  '  or 

that  subject  in  the  Superior  Court,  except  that  the  interrogatories 
shall  be  filed  with  the  Justice  of  the  Peace  instead  of  the  Clerk, 
and  the  notice  required  shall  be  five  days  instead  of  ten,  after 
the  expiration  of  which  the  Justice  shall  issue  a  commission,  which 
shall  be  executed  as  provided  for  in  the  Superior  and  Inferior 
Courts. 


ARTICLE  VI. 

TRIAL     AND     JUDGMENT. 


Section. 

4095.  Tho  second  term  shall  be  trial  term. 

4096.  Cases  may  be  continued  three  terms 


Section. 

4097.  Justices  to  give  judgment. 


§4095.  The  second  term  shall  be  deemed  and  considered  the 
trial  term  of  all  suits  for  the  recovery  of  debts  (except  for  rent), 


PT.  3.— TIT,  26.— CHAP.  1.— Justices'  Courts.  801 

Article  7. — Appeals. 

at  whicli  term  the  case  shall  be  tried,  unless  the  same  be  continued    TnaiteiDi. 
according  to  law. 

§  4096.   Cases  in  the  Justices'  Courts  may  be  continued  three      cont|nii- 

"^        '  J  ances — liow 

times,  under  the  same  rules  which  govern  continuances  in  the  Su-  ?>^^^^^^' 
perior  Courts. 

§  4097.  When  cases  are  tried,  the  Justices  of  the  Peace  shall  ^^jye^^'^ju^til? 
render  judgment  therein  according  to   the  law  and  the  facts  of  °^^"*- 
each  case,  and  such  judgment  shall  be  enforced  by  execution,  un- 
less prevented  hj  appeal  or  other  lawful  means. 


ARTICLE    YIL 

APPEALS. 

'Section?-,  |  Section., 

4098.  Api>eals— wlien  and  how  entered.      I       4099.  Appeals— how  tried— juries. 

§4098.  Either  partj,  being  dissatisfied  with  the  judgment  of    Appeais-- 
the  Justice  of  the  Peace,  may,  as  matter  of  right,  enter  an  appeal  ^^^^^^  ^°ter- 
from   such  judgment,  within  three  days   (exclusive  of  Sundays)    J^QCy'^^iJ^' 
after  the  adjournment  of  the  Court,  under  the  same  rules,  regula-   ^^'/ 
tions,  restrictions,  and  liabilities  (except  as  to  damages  for  a  friv-    ^      '         '  '■'  '"^' 
olous  appeal)  which  prevail  on  the  subject  of  appeals  in  the  Supe- 
rior Courts. 

§  4099.  All  appeals  in  the  Justices'  Courts  shall  be  tried  before  j^o^Y^jy^?" 
one  or  both  of  the  Justices  of  the  Peace  presiding  therein,  by 
five  jurors,  drawn,  impanneled,   and   sworn  as   follows — to  wit : 
The  Justices  of  the  Peace  in  each  district  shall,  once  in  every  how'^"drJ^^ 
two  years,  make  out  or  procure  a  list  of  all  persons  liable  to  serve  ^^  ^^^°'°' 
as  jurors  in  the  Superior  Court,  who  may  reside  in  their  respective/ 7  <V^.  hO  V 
districts,  and  shall  write  the  names  of  every  person  so  liable  on  Q/t      %--  O'si 
a  separate  piece  of  paper,  or  ticket,  which  ticket  shall  be  depos- 
ited in  a  box  in  an  apartment  marked  No.  1,  and   the  said    Jus- 
tices, or  one  of  them.,  in  public,  on  a  Court  day,  in  the  presence  of 
and  in  conjunction  with  two  freeholders,  shall  draw  from  said  box 
not  less  than  five  nor  more  than  seven  of  the  names  so  deposited, 
from  time  to  time,  to  try  the  causes  depending  on  the  appeal  in 
said   Court ;  which  names,  when  so  drawn,  shall  be  entered  in  a 
book  by  the  Justice  who  presides  at  such  drawing,  and  the  tick- 
ets so  drawn  shall  be  deposited  in  another  apartment  of  the  box 
marked  No.  2.     After  all  the  names  shall  be  drawn  from  apart- 
51 


802 


PT.  3 - 


-TIT.  26.- 


■CHAP.  1.— Justices'  Coitrts. 


Article  8. — Claims  in  the  Justices'  Court. 


ment  No.  1,  tlie  drawing  of  names  shall  commence  from  apart- 
ment No.  2,  and  so  on  alternately.  The  jurors  drawn  as  afore- 
said shall  be  summoned  bj  the  Constable  of  the  district  five  day& 
before  the  Court  at  which  they  are  called  upon  to  serye.  If  there 
be  a  deficiency  of  jurors^  the  Constable,  by  direction  of  the  pre- 
siding Justice,  shall  complete  the  jury  by  talesmen  from  the  by- 
standers ;  provided^  at  least  three  of  the  persons  drawn  as  afore- 
said shall  be  present.  The  following  oath  shall  be  administered 
to  the  jury — to  wit :  "You  shall  well  and  truly  try  the  causes  de- 
pending between  the  parties  at  variance,  and  true  verdicts  give, 
according  to  equity  and  the  opinion  you  entertain  of  the  evidence 
produced  to  you,  to  the  best  of  your  skill  and  knowledge,  without 
favor  or  aiFection  to  either  of  the  parties ;  "provided^  the  case  or 
cases  submitted  shall  not  be  withdrawn  from  your  consideration. 
So  help  you  God.''' 


ARTICLE    VIII. 


CLAIMS     IN     THE     JUSTICES'     COUKT, 


Sectiost. 

4100.  Claim,  affidavit,  anct  bond. 

4101.  Claim — where  and  when  tried. 


Sectioit. 

4102.  Continuanee  of  claim  cases. 


§4100,  When  an  execution  issued  from  a  Justices'  Court  shall 
ciaim^s—  '\qq  levied  on  property  claimed  by  any  person  not  a  party  to  the 
posed.  execution,  the  claimant,  his  agent,  or  attorney,  shall  make  oath 
that  the  property  levied  on  is  the  right,  and  property  of  the  claim- 
ant, and  shall  also  give  bond  and  security  in  double  the  amount 
of  the  execution ;  which  bond  the  levying  ofiicer  is  empowered  to 
take,  payable  to  the  plaintiff  or  assignee  of  the  execution,  as  the 
case  may  be,  with  condition  to  pay  all  costs  and  damages  which 
the  said  plaintiiT  or  assignee  may  sustain,  in  case  it  shall  appear 
that  such  claim  was  frivolous  and  intended  for  delay  only ;  w^hich 
bond,  on  breach  of  the  condition  thereof,  shall  be  recoverable  in 
any  Court  having  cognizance  of  the  same. 

§4101.  When  the  claim  affidavit  is  made,  and  the  bond  given, 
Claims—  3.S  directed  in  the  preceding  Section,   the   Constable  shall  post- 
ed "'^*  how  pone  the  sale  of  the  property,  and  return  the  papers  to  the  next 
Justices'  Court  from  which  the  fi.  fa,  issued  (unless  the  property 
levied  on  be  land) ;  and  it  shall  be  the  duty  of  said  Court  to  di- 
rect an  issue  to  be  made  up,  and  to  cause  the  right  of  property  to 


tried, 


PT.  3.— TIT.  26.— CHAP.  1.— Justices'  Courts, 


803 


Article  9.— Final  Judgment  and  Execution. 


be  tried  at  the  first  term  by  five  jurors,  impanneled  and  sworn  as 
in  cases  of  appeal. 

§  4102.  Upon  good  cause,  shown  on  oath,  a  claim  case  may  be  Continuance 
continued  for  one  term  by  each  party,  and  no  longer. 


ARTICLE   IX. 


FINAL     JUDGMENT     AND     EXECUTION. 


Section. 

4103.  Dignity  and  lien  of  judgments. 

4104.  Judgment  against  securities  as  such. 

4105.  Judgment  in  cases  of  set-off. 


Section. 

4106.  Stay  of  execution. 

4107.  If  defendant  be  insolvent. 


§  4103.  All  iud^ments  that  may  be  obtained  in,  and  executions  /Dignityand 

,  ...        lien  of  judg- 

issued  from,  the  Justices'  Courts,  shall  bear  equal  dignity  with  ments. 
judgments  obtained  in,  and  executions  issued  from,  the  Superior 
and  Inferior  Courts,  and  shall  bind  all  the  property  of  the  de- 
fendant, and  his  securities,  if  any  (except  such  as  is  exempt  by 
law),  from  the  date  of  such  judgment  until  the  same  is  fully  sat- 
isfied. 

§  4104.  Where  suit  is  brought  against  ioint  oblisrors  and  ioint     Judgment 

°  °  '^  °  ,*^  and     execu- 

promissors,  and  any  one  or  more  of  them  shall  make  it  satisfac-  tion   to  go 

■••  '  •'  against     se- 

torily  appear  to  the  Court  that  he  signed  the  contract  sued  on  as  I'^l^^^^    ^^ 

security  only,  and  was  not  interested  in  the  consideration  thereof, 

the  Court  shall  enter  up  judgment  and  award  execution  against 

such  party  as  security ;  and  when  the  execution  shall  be  satisfied 

by  such  security  out  of  his  own  money  or  property,  he  shall  have 

the  right  to  control  such  judgment  and  execution  for  the  purpose 

of  remunerating  himself  out  of  the  property  of  the  principal  in 

the  same  manner  that  securities  on  stay  of  execution  may  do ; 

provided,  the  judgment  and  execution  shall  also  be  against  such 

principal, 

§  4105.  When  the  defendant   pleads   and  establishes  a  set-off    Judgment 

for   defend- 
er eater  than  the  demand  of  the  plaintiff,  the  Court  shall  render  ant  in  cases 

f  .  .  .  of  set-off. 

judgment  in  favor  of  the  defendant  against  the  plaintifi"  for  the 
excess  or  balance  over  and  above  the  demands  of  the  plaintiff, 
unless  such  balance  exceeds  the  sum  of  fifty  dollars  principal,  in 
which  event  the  set-off  of  the  defendant  shall  be,  by  the  judg- 
ment of  the  Court,  credited  with  the  amount  of  the  demand  estab- 
lished and  proven  by  the  plaintiff — and  the  plaintiff  in  such  case 
shall  pay  the  costs. 


804 


PT.  3.— TIT.  26.— CHAP.  1.— Justices'  Courts. 


Article  9. — Final  Judgment  and  Execution. 


§  4106.  When  final  judgment  is  rendered  in  the  Justices'  Court, 
How  exe-  either   without   an    appeal  or   after    a  trial   on    the  appeal,   the 

cution    may  ^  ^  ^     ^  ^  , 

be  stayed,  party  against  whom  the  judgment  is  rendered,  at  any  time  within 
four  days  after  the  adjournment  of  the  Court,  shall  have  the 
right,  by  paying  all  the  costs  which  have  accrued,  and  giving 
good  and  sufficient  security  for  the  principal  and  interest  in- 
volved in  the  case,  to  stay  the  execution  for  sixty  days,  if  the 
judgment  is  for  more  than  thirty  dollars  principal;  and  if  the 
judgment  be  for  thirty  dollars  principal,  or  under  that  sum,  the 
execution  shall  be  stayed  for  forty  days,  and  when  the  time  for 
which  the  execution  is  so  stayed  has  expired,  execution  shall  issue 
against  the  party  and  his  security  on  stay  for  the  amount  of  the 
judgment.  In  case  any  person,  after  being  summoned  on  any 
complaint  for  debt  in  a  Justices'  Court,  shall,  before  the  sitting  of 
such  Court,  remove  out  of  the  district,  such  Court  may,  neverthe- 
less, give  judgment  against  him  ;  and  if  any  person  shall,  after 
judgment  of  such  Court,  remove  out  of  the  district  or  County,  or 
holds  property  in  a  different  district  or  County,  before  satisfaction 
is  made,  such  Justice  may,  in  either  case,  issue  execution  against 
such  person  ;  which  execution,  being  backed  by  any  Justice  of  the 
County  Avhere  such  person  resides,  or  where  his  property  may  be 
found,  may  be  levied  by  any  Constable  of  said  County,  and  the 
after  proceedings  shall  be  the  same  as  provided  in  other  cases  of 
levy  and  sale,  by  virtue  of  executions  from  Justices'  Courts. 
§  4107.  When  an  execution  issued  from  a  Justices'  Court  shall 
When  plain-  ])q  returned  by  the  proper  officer,  with  an  entry  thereon  that 
for  costs,  there  is  no  property  of  the  defendant  out  of  which  satisfaction  of 
the  execution  can  be  made,  the  plaintiff  in  execution  shall  be 
bound  and  liable  for  the  costs  due  thereon ;  and  if  the  plaintiff, 
upon  being  notified  of  the  return  and  the  costs  being  demanded  of 
him,  shall  fail  or  refuse  to  pay  such  cost,  execution  therefor  may 
"issue  against  such  plaintiff. 


ARTICLE   X. 

JUSTICES'   COURTS   MAY   RULE   THEIR    CONSTABLES,    PUNISH    DEFAULT- 
ING JURORS   AND   WITNESSES.  AND   PUNISH   CONTEMPTS. 


Section. 

4108.  Liability  of  Constable  for  miscond't 

4109.  Constable  may  be  ruled. 


Section. 

4110.  Witnesses  failing  to  attend. 

4111.  Jurors  may  be  fined  for  default. 


PT.  3.— TIT.  26.— CHAP.  1.— Justices'  Courts.  805 


Article  10. — Justices'  Courts  may  Rule  Constables,  etc. 


^4108.  If  any  Constable  shall  fail  to  execute  and  return  any      Liability 

/        .  *^    of  Constable 

process  placed  in  his  hands,  or  shall  fail  to  account  with  and  pay  f<>r  miscon- 
over  to  the  person  entitled  thereto  any  money  which  he  has  received  enforced. 
on  any  note,  execution,  or  other  paper,  placed  in  his  hands  as  such 
Constable,  within  ten  days  after  the  money  is  received,  the  person 
injured  by  such  failure  may  apply  to  the  Justice  of  the  Peace  of 
the  district  in  which  the  defaulting  Constable  is  acting  as  such,  or 
in  which  he  did  act  as  such  if  he  has  gone  out  of  office,  (and  if 
there  be  no  Justice  in  such  district,  the  party  injured  may  apply 
to  the  Justice  of  any  adjacent  district,)  and  obtain  a  warrant 
against  such  Constable  ;  and  upon  satisfactory  proofs  of  the  facts, 
the  Justice  to  whom  the  application  is  made  may,  either  in  term 
time  or  vacation,  award  judgment  and  execution  against  the  Con- 
stable for  the  full  amount  of  the  money  collected  and  withheld,  or 
which  might  have  been  collected,  and  the  Justice  may  also  fine 
the  Constable  for  such  default  in  a  sum  not  exceeding  ten  per  cent, 
on  the  amount  of  said  money  so  collected,  or  which  might  have 
been  collected. 

§  4109.   Constables  may  be  ruled  by  their  respective  Justices'    Constables 

"^       .  "^  I  •  1  J^tiayberujed 

Courts  and  compelled  to  give  an  account  of  their  actings  and 
doings,  or  to  pay  over  money  received  or  collected  by  them  in 
their  official  capacity,  under  the  same  rules  and  regulations  as  are 
pursued  in  the  Superior  Court  in  relation  to  officers  of  said  Supe- 
rior Court. 

§  4110.  Any  witness  failing  to  attend  the  Justices'  Court,  after  witnesses 
being  duly  served  with  a  subpoena,  shall  be  subject  to  a  fine  not  tend"may  be 
exceeding  ten  dollars,  which  may  be  collected  by  execution,  unless 
good  excuse  be  shown  for  such  failure  at  or  before  the  next  court 
day  after  the  default ;  and  such  witness  shall  also  be  liable  to  a 
suit  for  damages  at  the  instance  of  the  party  injured  by  his  default, 
in  any  Court  having  cognizance  of  the  same. 

§  4111.  Any  juror,  drawn  and  summoned,  who  shall  neglect  to    Defaulting 
appear  and  serve  as  such,  shall  be  fined  by  the  Justice  of  the  befined."'*^ 
Peace  in  a  sum  not  exceeding  three  dollars,  unless  such  juror  shall 
show  sufficient  excuse  for  his  default  at  the  next  Court  thereafter, 
which  fine  may  be  collected  by  execution,  or  imprisonment  until 

is  paid,  unless  discharged  by  law. 


806  PT.  8— TIT.  26.— CHAP.  1.— Justices'  Courts. 

Article  11. — Levy  and  Sale  under  Fi.  Fa.  from  Justices'  Court. 

ARTICLE  XL 

LEVY   AND    SALE   UNDER  FI.  FA.  FROM   JUSTICES'   COURT. 


Section. 

4112.  Levy  and  advertisement. 

4113.  Land — when  subject. 


Section. 

4114.  Bank  and  other  stock. 

4115.  Compensation  of  Constables. 


§  4112.  All  Constables  shall  advertise  all  intended  sales,  to  be 
Time  and  made  bv  them  under  execution,  at  three  or  more  of  the  most  pub- 

place  of  sale.  ...  .,.., 

lie  places  111  their  respective  districts  (unless  otherwise  provided), 
at  least  fifteen  days  before  any  sale  shall  be  made,  and  shall  give 
a  full  and  clear  description  of  the  property  to  be  sold ;  and  all 
Constables'  sales  shall  be  at  the  place  of  holding  Justices'  Courts 
Levy  and  de-  in  the  scvcral  Company  districts,  and  on  a  Court  day,  and  that 

scription    of,  ii  n  >ii  i^ 

property.      Dotween  the  hours  oi  ten  o  clock,  a.  m.,  and  lour  o  clock,  P.  M. 

§4113.  No  Constable  shall  levy  on  any  land  unless  there  is 
Land  may  no  persoual  property  to  be  found  sufficient  to  satisfy  the  debt, 

be  levied  on  ^  ■'^        ^         "^  t/  7 

—when.  which  fact  must  appear  by  an  entry  on  the  execution,  to  be  levied 
by  a  Constable  of  the  County  where  such  execution  was  issued, 
or  where  the  property  to  be  levied  upon  may  be  found ;  provided^ 
that  the  defendant  shall  have  the  right  in  all  cases  to  point  out 
any  portion  of  his  property  in  his  possession  he  may  think  proper, 
and  should  he  point  out  land  to  be  levied  upon,  the  above  entry  of 
no  personal  property  may  be  omitted. 

§  4114.  When  any  Constable  shall  have  any  execution  placed 
Bank  and  in  liis  hands  against  any  person  who  is  the  owner  of  any  shares 

—how levied  or  stock  in  any  bank,  or  other  corporation,  or  joint  stock  compa- 
ny in  this  State,  he  shall,  on  the  application  of  the  plaintiff,  his 
agent,  or  attorney,  indorse  a  levy  on  said  execution  of  the  num- 
ber of  shares  belonging  to  the  defendant,  and  make  a  return  of 
the  same  to  the  Sheriff  of  the  County  in  which  he  lives,  which 
said  Sheriff  shall  proceed  to  advertise  and  sell  the  same  as  requir- 
ed by  law.  When  the  Constable  levies  an  execution  in  which  the 
Sheriff  is  a  party,  or  in  which  he  is  interested,  he  may  proceed  to 
sell  the  property  as  a  Sheriff  is  authorized  to  do. 

§  4115.  A  reasonable  compensation  shall  be  allowed  to  Consta- 
compensa-  blcs  for  carryiuor  property  levied  upon  to  the  place  of  sale,  where 

tionot  Con-     ,  1  /     -,  .         „         ,    .  1        •      i 

stables.        there  appears  to  be  an  absolute  necessity  tor  doing  so,  to  be  judg- 
ed of  by  the  Justices  of  the  district. 

Note. — For  otlier  powers  and  duties  of  Justices  of  the  Peace  and  Constables, 
see  Part  1,  Title  5,  Cliapter  9,  Articles  1,  2.  As  to  levies  on  land,  see  Section 
3597.     When  the  Sheriff  is  aparty,  see  Section  3577. 


PT.  3. — ^TIT.  27. — Equity  Pleading  and  Practice. 


807 


Chapter  1. — Of  tbe  Bill  and  SubpoBna,  etc.. 


TITLE    XIVIl. 

EQUITY     PLEADING     AND     PRACTICE, 


'Chaptee  1. — Of  'the  Bill  and  Subpoena  and  Service  thereof. 

€hapter  2.- — Of  Demurrers^  Pleas  and  Answers, 

€hapteh  3.— 0/  Interlocutory  Decrees^  Receivers,  Masters,  etc. 

C^^iiaptee  4. — -Of  the   Trial  and  its  Incidents. 

Chapter  5. — -Of  the  Decree  and  its  Enforcement. 

'Chapter  6. — Of  Other  Proceedings  in  Ohancery, 


CHAPTER     I 


OF  THE  BILL  AND   SUBPCEKA  AND   SERVICE  THEREOR 


.'Section. 

4116.  Proceedings  "fey  bill. 

4117.  Biscovery — interrogatories. 

4118.  Amendments. 

4119.  y/ho  may  sue.  * 

4120.  Persons  laboring  under  disability. 

4121.  Parties  defenda,nt. 

4122.  Bills— different  kinds  of, 

4123.  Diseovery,  etc^ 


Secti-on. 

4124.  Venue, 

4125.  Manner  and  time  of  filing. 

4126.  Subposna  and  service  thereof. 

4127.  Sanction  of  the  Judge — when. 

4128.  Duty  of  the  Clerk. 

4129.  Service  of  bills  to  marshal  assets, 

4130.  Addition  ©f  parties. 

4131.  Dismissal  of  bill. 


§  4116.  The  ordinary  proceeding  in  cliaocery  sliail  be  by  bill,  .    Proceed- 
which  shall  be  addressed  to  the  Superior  Court,  or  the  Judge  pre- 
siding therein,  and  shall  plainly  set  forth  the  ground  of  complaint, 
and  the  persons  against  whom  a  subpoena  is  prayed, 

§  4117.  If  discovery  is  sought  of  one  or  more  of  the  defendants     Discovery 

,      ,,   ,  <  —  interroga- 

it  shall  be  specially  prayed,  and  interrogatories  regularly  number-  Tories. 
€d  shall  be  ennbodied  in  the  bill,  as  to  every  point  on  which  dis- 
covery is  sought,  and  the  names  of  the  defendants  from  wham  an- 
swers under  oath  or  affirmation  are  required. 

§  4118.  No  mere  formality,  or  omission  of  a  formality  shall  vi 
tiate  or  delay  a.  proceeding  in  equity,  but  the  same  liberality  as  to  ^^°*- 
amendment  shall  be  aliow-ed  therein  as  in  a  proceeding  at  law. 

§4119.  Any  person  who  can  not  sue  at  Iaw%  may  complain  in    who  may 
equity,  and  every  person  who  is  remediless  elsew^here,  may  claim 
the  protection  and  assistance  of  a  Court  of  Equity  to  enforce  any 
right  recognized  by  the  law. 

§  4120.  Persons  not  sni  juris  may  appear,  either  hj  guardian  or 


Formality 
and   amend- 


sue. 


808  PT.  3.— TIT.  27.— Equity  Pleading  axd  Practicje. 

Cliapter  1. — Of  the  Bill  and  Subpoena^  etc. 


Persons  next  friend,  or  guardian  ad  litem  appointed  bj  the  Court.     In 
biiity.         the  latter  two  cases  the  Court  may  require  such  bond  as  shall  pro- 
tect the  interest  of  the  person  under  disability. 

§  4121.   Generally,  all  persons  interested  in  the  litigation  should 
Parties  de-  be  parties  to  a  bill,  but  legatees,  distributees,  and  wards  suing  ex- 
ecutors, administrators,  and  guardians  need  not  join  others  inter- 
ested in  such  estate  as  parties,  complainant  or  defendant,  unless 
Distribu-  som^c  spccial  advcrse  claim  is  set  up  as  against  such  co-distributees 

tee,  etc.   su- 
ing alone,      or  legatees. 

§  4122.  A  bill  is  either  original  or  in  the  nature  of  original. 

Division  Evcrv  bill  is  oric^inal  which  commences  a  proceedins;  for  relief  or 

of  bills.  .        *^  .  .  .    . 

discovery,  or  both.     Bills  for  the  review,  or  avoidance,  or  injunc- 
tion, or  execution  of  a  former  decree,  are  in  the  nature  of  original 
bills.     A  cross  bill  need  not  bo  filed  in  this^^  State.     The  defend- 
cross  MIL    ant  in  every  case  may  set  up  any  matter  in  his  answer,  which  un- 
der  the  English  practice  should  be  the  subject  of  a  cross  bill,  and 
may  require  therein  any  discovery  from  the  complainant  he  may 
desire.     No  supplemental  bill  need  be  filed  in  this   State.     All 
such  matter  shall  be  allowed  by  way  of  amendment.     If  new  par- 
suppiement-  tics  are  necessary,  by  reason  of  any  matter  thus  set  up  in  the  an- 
.  swer  or  by  way  of  amendment,  the  Court  shall  give  such  direc- 
tion to  the  cause,  to  secure  a  hearing  to  such  parties,  as  if  a  cross 
bill  or  supplemental  bill  had  been  filed.     Bills  of  revivor  are  abol- 

Bill  of  re-  ^  ^ 

vivor.         ished. 

§  4123.  A  bill  for  discovery  merely,  or  to  perpetuate  testimony, 
Discovery  shall  not  be  sustained  unless  some  reason  is  shown  why  the  pro- 

and    perpet-  _  «'  ■«■ 

uating  testi-  ceedins;  at  law  is  inadequate. 
■^'fh    ^  ^  §  4124.  All  bills  shall  be  filed  in  the  County  of  the  residence  of 

Vmue.     one  of  the  defendants,  against  whom  a  substantial  relief  is  prayed, 
>••    /  except  in  cases  of  injunctions  to  stay  pending  proceedings,  when 

the  bill  may  be  filed  in  the  County  where  the  proceedings  are  pen- 
ding, provided  no  relief  is  prayed  as  to  matters  not  included  in 
such  litigation. 

§  4125.  No  bill  shall  require  the  sanction  of  the  Judge  before 
Mode  and  its  filing  unlcss  it  pravs  some  extraordinary  remedy.     Each  bill 

time  of  filin""  i       */  %j  %j 

'^  shall  be  filed  in  the  Clerk ''s  office,  at  least  thirty  days  before  the 
term  to  which  it  is  returnable,  and  shall  be  served  on  the  defend- 
ant at  least  twenty-five  days  before  such  term. 

§  4126.  It  shall  be  the  duty  of  the  Clerk  to  annex  to  each  bill 
Subpoena,  a  subpoeua  directed  to  the  defendant,  and  requiring  his  appearance 


PT.  3.— TIT.  27.~Equity  Pleading  and  Practice.  809 

^Chapter  1. — Of  the  Bill  and  Subpoena,  etc. 

at  the  term  of  the  Court  to  which  the  bill  is  returnable ;  and  also, 
to  make  out  and  hand  to  the  Sheriff,  or  his  deputy,  a  copy  of  the  cierk'sduty. 
bill  and  subpoena  to  be  served  on  the  defendant  in  like  manner  as 
petitions  at  common  law.     Service  on  defendants  residing  in  an-  s-ifeS!^^^^ 
other  County,  may  be  made  by  the  Sheriif  of  such  County,  or  any 
person,  who  after  examination  of  the  original  and  copy,  will  file  comity^^^^^ 
an  affidavit  (subject  to  be  traversed)  as  to  the  fact  of  service.     If 
the  defendant  does  not  reside  in  the  State,  service  of  the  bill  or  idJnts!'^'^^^" 
any  order  of  Court  may  be  made   by  publication  in  any  public 
gazette  of  this   State  (under  the   direction  of  the  Court)  once  a 
month  for  four  months.     If  the  non-resident  defendant  is  repre- on attorney, 
sented  in  Court  by  an  attorney  at  law  or  in  fact,  service  on  such 
attorney  shall  be  sufficient.     And  in  all  cases  not  embraced  within  nary  service" 
the  foregoing  provisions,  the  Judge  may  prescribe  for  extraordi- 
nary service,  according  to  the  exigency  of  each  case. 

§4127.  If  an  extraordinary  process  or  remedy  is  prayed,  the    sanctionof 

r./^  TiPi(^.        Judge  to  ex- 

sanction  of  the  Judge  of  Court,  or  of  some  Judge  of  the  Superior  tra  writs. 
Courts  of  this  State,  must  be  first  obtained  before  such  process  is   ^1,^/  {/"  t 
issued  or  such  remedy  grante^i.     The  application  may  be  ex  parte,  _^^q^.^^^^ 
and  granted  without  a  hearing,  in  cases  of  manifest  necessity.     In 
all  other  cases  the  Judge  should  be  careful  to  allow  «a.  hearing  be- 
fore passing  the  order.     In  all  cases,  on  ten  days'  previous  notice 
and  the  filing  of  defendant's  answer,  a  motion  may  be  made  at    Motion  to 
chambers  to  set  aside  or  dissolve  the  order  granting  the  sanction  chambers. 
of  the  Court. 

§4128.  When  such  extraordinary  process  is  granted,  the  Clerk     Duty  of 
shall  annex  the  same,  together  with  the  ordinary  subpoena,  to  the 
original  bill,  and  also  a  copy  thereof  to  the  copy  bill.     Such  bills 
and  processes  can  be  served  only  by  a  Sheriff,  or  his  deputy,  or  a    service. 
Coroner,  and  must  be  personal. 

§4129.  [When  a  bill  in  equity  to  marshal  the  assets  of  the  es-     service  of 

J-  ,  .  ,  tills  to  mar- 

tate  of  a  deceased  person  is  brought,  service  of  the  same  may  be  siiai  assets. 
effected  by  serving  the  defendants,  or  either  of  them,  with  a  copy 
of  the  subpoena,  of  the  injunction,  and  of  the  fiat  of  the  Judge 
sanctioning  the  bill,  without  a  copy  of  the  bill,  or  any  of  the  ex- 
hibits attache  dthereto,  and  service  so  effected  shall  be  sufficient ; 
but  the  defendants,  or  any  of  them,  shall  be  entitled  to  a  copy  or 
copies  of  the  bill  and  exhibits,  or  any  part  thereof,  on  applying 
to  the  Clerk  of  the  Court  for  the  same,  the  Clerk  charging  to  the 
plaintiff  such  fees  as  the  existing  laws  now  authorize  the  Clerk  to 


810 


PT.  3.— TIT.  27.— Equity  PLEADiNa  and  Practice. 


Chapter  2. — Demurrers,  Pleas,  and  Answers. 


charge;  provided  such  defendants  as  may  be  designated  by  the 
Judge  sanctioning  the  bill,  shall  be  served  as  required  by  existing 
laws.]  (a) 

§4130.  [It    shall   be   lawful,    on   application    of    any   of    the 
Parties  de- complainants,  for  the  Clerk,  at  any  time,  to  insert  in  such  bill, 

fendantmay  ^  ... 

beaddedand  subpoeua  and  iniuuction,  the  name  of   any  defendant  that  may 

served.  . 

have  been  omitted ;  and  service,  perfected  in  the  manner  specified 
in  the  preceding  Section,  shall  be  of  the  same  effect,  and  operate 
in  the  same  manner  as  though  such  defendant's  name  had  been 
inserted  in  the  original  bill.]  (a) 

§4131.  A  complainant  may  dismiss  his  bill  at  any  time,  either 

Dismissal  in  term  or  vacation,  so  that  he  does  not  thereby  prejudice  any 

right  of  the  defendant.     If  equitable  claims  by  way  of  set-off  or 

otherwise  have  been  set  up  by  the  answer,  the  dismissal  of  the 

Defend-  bill  shall  not  interfere  with  the  defendant's  ri^ht  to  a  hearing^  and 

ant's  right.  ^  ° 


trial  on  such  claims  in  that  proceeding. 


CHAPTER    II. 

OF      DEMURRERS,     PLEAS,     K^Ti     ANSWERS. 


Section. 

4132.  Mode  of  defense,  etc. 

4133.  Demurrer — grounds  of. 

4134.  Pleas — different  kinds  of. 

4135.  Answer  and  exceptions  thereto. 

4136.  Verification — when  necessary. 


Section. 

4137.  Amendments — effect  of,  etc. 

4138.  How  defendant  must  answer. 

4139.  Verification  of  non-residents. 

4140.  No  replication  or  order  for  trial. 

4141.  Notice  of  filing,  etc. 


§  4132.  A  defendant  may  either  demur,  plead,  or  answer  to  a 

Modes  of  cause  in  equity,  or  may  file  two  or  all  of  these  defenses  at  once, 

without  waiving  the  benefit  of  either ;    or,  may  file  two  or  more 

^  ,        pleas  to  the  same  action,  in  like  manner  as  at  law.     In  all  cases, 

Order    of -'^^  '  ,  ' 

disposition,  demurrer,  pleas,  and  answer,  shall  be  disposed  of  in  the  order 
named ;  and  all  demurrers  and  pleas  shall  be  filed  and  deter- 
mined at  the  first  term,  unless  continued  by  the  Court  or  by  con- 
sent of  parties. 

§  4133.  A  demurrer  denies  the  right  to  the  discovery  or  relief, 

Demurrer,  in  whole  or  in  part,  admitting  the  allegations  of  the  bill  to  be 
true,  and  is  founded  either  upon  a  want  of  jurisdiction  in  the 
Court,  or  of  equitable  right  in  the  complainant,  or  upon  a  non- 


Time  of 

filing. 


Grounds  of. 


(a)  Acts  of  1866,  p.  140. 


PT.  3.— TIT.  27.— Equity  Pleading  and  Practice.  811 

Chapter  2. — Demurrers,  Pleas,  and  Answers. 

joinder  or  misjoinder  of  parties,  or  causes  of  action,  or  the  ab- 
sence of  liability  by  the  defendant  to  the  complainant. 

§  4134.  A  pure  plea  sets  up  some  additional  factor  facts  which,    Purepiea. 
taken  with  the  facts  stated  in  the  bill,  show  that  the  complainant 
is  not  entitled  to  relief.     An  impure  or  anomalous  plea  is  filed  ^^p"""®?^^^- 
when  the  complainant,  anticipating  the   defendant's  plea,  alleges 
facts  to  impeach  or  annul  its  effect.     In  such  case,  the  plea  must 
negative  the  impeaching  allegations,  and  must  be  accompanied  by 
an  answer  discovering  all  the  facts  within  defendant's  power  as  to 
such  allegations.     A  pure  plea  need  not  be  verified.     The  answer  Verification, 
accompanying  an  anomalous  plea  must  be  under  oath  or  afiirma- 
tion.  "  J 

§  4135.  The  answer  of  defendant  (unless  further  time  be  given),  ,  Answer.  i^^^4 
shall  be  filed  within  thirty  days  after  the  first  term  of  the  Court.     ^'"\^      ''z^  \  v 
If  the  answer  is  not  full  (where  discovery  is   sought),  exceptions  ExceptWs.'        '  /"^ 
may  be  filed   at  once,  and,  on   ten  days'  notice,  shall  be  argued 
and  decided  at  Chambers.     If  sustained,  the  Judge  shall  recjuire 
additional  answer,  on  such  terms  as  he  ,may  direct.     Exceptions 
must  be  filed  before  the  hour  for  jury  business,  on  the  second 
day  of  the  second  term. 

§  4136.  If  discovery  is  specially  disclaimed,  the  defendant  need  Verification 

^       .  of  answer. 

not  verify  his  "answer;  but  the  deiendant  shall  always  have  the 
privilege  of  puttinsj  in  an  answer  under  oath  for  the  purpose  of  defendant's 

,  ,  ,  .  .     .  privilege. 

using  the  same  as  evidence  on  any  motion  to  dissolve  an  injunc- 
tion, or  to  set  aside  any  extraordinary  process  or  remedy  granted. 
A  sworn  answer  is  subject  to  amendment   at  any  time,  by  leave  Amendment 
of  the  Court,  as  other  pleadings ;  but  an  admission  made  in  such 
answer  shall  always  be  evidence,  when  offered  by  the  other  party. 

§4137.  An  amendment  to  a  bill  which  materially  changes  the     Effect  of 

^  ^  amendment. 

case  opens  the  bill,  as  amended,  to  demurrer  or  plea.  The  de- 
fendant shall  be  allowed  reasonable  time  for  answering  such  an 
amendment.     An  immaterial   amendment  does  not  so  open  the    Answer  to 

,.,,,,,  ,  1      n  1  1  amendment. 

bill,  and  need  not  be  answered  at  all,  or  shall  be  answered  instanter. 

§4138.  When  discovery  is   sought,  the  defendant  must  answer  Howdefen- 
to  the  best  of  his  knowledge,  information,  and  belief.     If  the  de-  answer."""^* 
fendant  knows  nothing,  but   answers  only  to   his  belief  from  the 
information  of  others,  such  an  answer  does  not  require  the  testi- 
mony of  two  witnesses  to  overcome  it. 

§  4139.  When  a  bill,  or  answer,  or  other  proceeding  in  equity, 
is  required^  to  be  verified  by  a  complainant  or  defendant  who  re- 


812     PT.  3.— TIT.  2T.— Equity  Pleading  and  Practice. 

Chapter  3.— Interlocutory  Decrees,  etc. 

Verifying  sides  bevond  the  limits  of   this  State,  an   affidavit,  made  before 

answer       of  ..  n      ^  '      n  n  ••  -n/r 

non-resident  anj  Commissioner  01  this  fetate,  or  any  (Jommissioner,  or  Master, 
or  Chancellor  of  a  Court  of  Equity,  or  Judge  of  any  Court  of  the 
State  where  made,  authorized  to  administer  an  oath,  shall  be  a 
sufficient  verification. 

§4140.  No  replication  shall  be  filed,  and  no  order  setting  down 
Replication  ^ho  casc  for  trial ;    but   the  parties  may  commence  to  take  testi- 

and  order  for  ^  x  ./ 

trial.  mony  as  soon  as  the  bill  is  filed. 

§  4141.  If  a  demurrer  or  plea  is  filed,  notice  of  such  filing 
filing  of  de-  must  bc  givcu  to  the  complainant,  or  his  solicitor,  a  reasonable 
plea.  time  before  the  end  of  the  first  term. 


CHAPTER    III. 


OF  INTERLOCUTORY  DECREES,  AND  THE  APPOINTMENT  OF  RECEIVERS, 

MASTERS,  AND  AUDITORS. 


Section. 

4142.  Interlocutory  decrees  and  orders. 

4143.  Master  or  Auditor. 


Section. 

4144.  Report  of  Master — exceptions. 

4145.  Fees  of  Master  or  Auditor. 


"'  §  4142.  At  any  stage  in  the  progress  of  an  equity  cause,  if  any 

interiocuto-  portion  of  the  same  is  ready  for  or  reciuires  a  decree,  the  Court 

ry      decrees  _  .  i     •  i 

and  orders,  may  hear  and  determine  such  matters,  and  pass  such  interlocuto- 
ry decree  or  order  as  may  advance  the  cause  and  expedite  a  final 
hearing.  If  no  issue  of  fact  is  involved,  the  verdict  of  a  jury  is 
unnecessary. 

§  4143.  Every  Chancery  Court  in  this  State  may  appoint  a 
Master  or  Mastcr,  to  whom  it  may  refer  such  matters  of  account  as  are  com- 
plicated in  their  nature ;  or,  by  consent  of  parties,  may  appoint 
an  Auditor  to  investigate  and  report  upon  similar  matters  in  dis- 
pute. Such  Master  or  Auditor  may  subpoena  witnesses,  adminis- 
ter oaths,  and  hear  testimony  on  any  disputed  fact,  always  giving 
due  notice  of  his  sittings  to  the  parties  or  their  solicitors. 

§  4144.  The  report  of  the  Master  or  Auditor,  when  returned 
Eeportand  to  Court,  shall  be  subject  to  exceptions  for  such  time  as  the  Court 
e-^cep  1  n ,    ^^^  allow ;  and  the  exceptions  so  filed  shall  be  the  only  issues 
of  fact  submitted  to  a  jury,  so  far  as  the  matters  referred  are  con- 
cerned.    When  submitted,  the  jury  shall  return  a  verdict  on  each 
exception  seriatim. 

§  4145.  The  fees  of  the  Master  or  Auditor  shall  be  determined 
His  fees,    by  the  Court,  unless  agreed  on  by  the  parties. 


PT.  S.' — TIT.  27.— Equity  Pleading  and  Practice. 


813 


Chapter  4. — The  Trial  and  its  Incidents. 


CHAPTER   IV. 

OF   THE   TRIAL  AISTD   ITS   INCIDENTS. 


Section. 

4146.  Trial  term— when. 

4147.  Jury^-when  necessary. 

4148.  Rules  of  evidence  and  practice. 

4149.  Bill  taken  jpro  confesso. 


Section. 

4150.  Decree  for  specific  performance. 

4151.  Special  verdicts  and  costs. 

4152.  New  trials — appeals. 


^-^^-^^^* '§'4146.  The  trial  terra  of  all  equity  causes  shall  be  the  second    Trial  term. 
^  i  ^  term  after  service  has  been  perfected  on  all  the  parties. 

§  4147.  When  any  question  of  fact  is  involved,  the  same  shall    J"it  tnai 

^  «'      X  ■'  — when    ne- 

be  decided  by  a  special  jury^  selected  as  in  cases  of  appeals.     If  cessary. 
there  be  no  such  question,  or  the  Master's  report,  unexcepted  to, 
covers  all  such  questions,  the  Judge  may  render  a  decree  without 
the  verdict  of  a  jury. 

^  4148.  The  rules  of  evidence  shall  be  the  same  a-s  in  trials  at  Euiesofevi- 

dence      and 

law,  and  the  rules  of  practice  as  to  continuance,  and  in  the  con-  practice. 
duct  of  the  cause  before  the  jury,  except 'that  when  a  complainant 
relies  solely  on  the  defendant's  answer,  he  shall  be  entitled  to  open 
and  conclude  the  cause. 

§  4149.  If  at  the  trial  term  no  answer  has  been  filed,  and  the  biu  taken 
complainant  has  not  in  his  bill  disclaimed  discovery,  and  no  g^f_  ^^^ ^^^  ^*®^ 
ficient  excuse  is  rendered  for  the  neglect  of  defendant,  the  facts 
charged  in  the  bill  shall  be  taken  as  confessed,  so  far  as  the  com- 
plainant (or  his  solicitor  in  his  absence)  will  swear  that  the  same 
are  true,  or,  according  to  his  information  and  belief,  must  have 
been  admitted  to  be  true  by  the  defendant  in  an  honest  answer ; 
and  the  Court  may  proceed  to  decree  thereon, 
shall  be  enforced  against  a  complainant  who  fails  or  refuses  to 
respond  as  to  any  matter  set  up  in  defendant's  answer  and  of 
which  discovery  is  sought  from  complainant.  In  proper  cases  the 
Court  may  compel  an  answer  by  attachment  for  contempt. 

§4150.  A  decree  for  specific  performance  shall  operate  as  a    Decree  for 

specific  per- 

deed  to  convey  land   or  other  property  without  any  conveyance  formance. 
being  executed  by  the  vendor.      Such  decree,  certified  by  the 
Clerk,  shall  be  recorded  in  the  registry  of  deeds  in  the  County 
where  the  land  lies,  and  shall  stand  in  the  place  of  a  deed. 

§  4151.  Special  verdicts  may  be  found  by  the  jury,  and  they 
may  recommend  to  the  Court  the  assessment  of  costs  upon  the 
respective  parties.  It  is  the  province  of  the  Chancellor,  however, 
to  determine  upon  whom  the  costs  shall  fall. 


The  same  rule  LTr'Sng 

to  answer. 


Special 
verdicts. 


Costa. 


cl 


814 


PT.  3.— TIT.  27.— Equity  Pleading  and  Peactice. 


Chapter  5, — Decrees  and  their  Enforcement. 


§  4152.  New  trials  may  be  granted  from  the  verdicts  of  juries 
Newtriais.  in  equitj  cases  in  like  manner  as  in  cases  at  law.     But  there  shall 
Appeals,    be  no  appeal  from  the  verdict  of  the  jury. 


CHAPTER  V. 

OF  DECREES   AND    THEIR   ENFORCEMENT. 


Section. 

4153.  A  decree  defined. 

4154.  Decrees  and  remedies. 

4155.  Decrees  in  vacation. 

4156.  Execution. 

4157.  Attachments  for  contempt. 


Section. 

4158.  Transferable  like  judgments. 

4159.  Enforcing  injunctions. 

4160.  Dormant  decrees— revival. 

4161.  Limitation  on  bills  of  review. 


ring 
tioa 


§  4153.  A  decree  in  Chancery  is  the  judgment  of  the  Chancellor 
What  is  a  upon  the  facts  ascertained,  and  should  be  sio^ned  by  him  and  en- 

decree.  n  J 

tered  on  the  minutes  of  the  Court. 

§4154.  A  Court  of  Equity  has  full  power  to  mould  its  decrees 

Decrees  and  so  as  to  meet  the  exigencies   of  each  case;  and  shall  have  full 
power  to  enforce  its  decrees  when  rendered. 

r  §  4155.  [When  for  any  reason  already  existing,  or  to  exist,  it 

Decree du-  bccomcs  impossible  to  carry  out  any  last  will  and  testament,  in 
whole  or  in  part,  the  Judges  of  the  Superior  Courts  shall  have 
power  to  render  at  chambers  during  vacation  any  decree  that  may 
be  necessary  and  legal  in  the  premises  ;  provided  all  parties  in  in- 

Partiescon-  tcrcst  cousont  thereto  in  writing,  and  there  is  no  issue  as  to  the 

senting.  .  ^  ^  ^     ° 

facts ;  or  if  there  is  such  an  issue,  there  is  a  like  consent  in  wtI- 
ting  that  the  Judge  presiding  may  hear  and  determine  such  facts, 
subject  to  a  revision  by  the  Supreme  Court,  as  in  other  cases ; 

Proviso,  provided,  that  in  all  cases  where  minors  are  interested,  the  consent 
of  the  guardian  at  law,  or  guardian  ad  litem,  Bhsill  be  obtained 
before  such  decree  is  rendered.]  (a) 

§  4156.  A  decree  in  favor  of  any  party  for  a  specific  sum  of 

Execution  moucy.  Or  for  regular  installments  of  money,  shall  be  enforced  by 

on       money  ;  ,      °  -i  ^T^^  ^     '       'rf 

decrees.       executiou  agaiust  the  person  or  property  as  at  law.     Ine  plaintm 
in  such  execution  shall  be  the  person  actually  entitled  without  re- 
gard to  his  relative  position  in  the  cause.     The  defendant  in  such 
Defenses,  exccution  shall  be  entitled  to  all  the  privileges  and  defenses  al- 
lowed to  executions  from  a  judgment  at  law. 

§  4157.  Every  decree  or  order  of  a  Court  of  Equity  may  be 
enforced  by  attachment  against  the  person  for  contempt,  and  if  a 


(a)  Acts  of  1865-6,  p.  221. 


PT.  3.— TIT.  27.— Equity  Pleading  and  Practice.  815 

Chapter  6. — Other  Proceedings  in  Chancery. 


decree  be  partly  for  money  and  partly  for  the  performance  of  a  Attachment 

^  "  ./  i  ^  ^  r  for  contempt 

duty,  the  former  may  be  enforced  by  execution,  and  the  latter  by 
attachment  or  other  process. 

§  4158.  A  decree  in  equity  is  transferable  like  other  judgments,    Transfer. 
and  when  for  money  shall  have  a  like  lien. 

§  4159.  Ini unctions,  ne  exeat,  prohibition,  and  other  extraordi- .  Enforcing 

"  ^  ^  -'   ■•■  ^  ii    ^       jT-  injunctions. 

nary  remedies  may  be  enforced  also  by  attachment.  C*  y   "V^^     /^  / 
§4160.  Decrees  in  equity  for  the  payment  of  money  shall  be-  Dormantde- 

1    ^  ./  J.     »/  »/  crees  —  revi- 

come  dormant  like  other  judgments  "when  not  enforced,  and  may  ^ai. 
be  revived  upon  petition  and  notice  without  a  bill  or  writ  of  %cire 
facias. 

§4161.  Bills  of  review  shall  be  brought  within  three  years  from    Limitation 

^  c3  ^  •^  on     bills    of 

the  date  of  the  decree  rendered,  or  from  the  time  of  the  removal  review. 
of  the  disability  of  infancy,  coverture,  imprisonment,  or  insanity 
from  the  person  complaining. 


CHAPTER  VI. 

OF     OTHER    PROCEEDINGS    IN    CHAKCERY. 


Section. 

4162.  Proceedings  by  petition. 

4163.  "What  may  be  done  at  chambers. 


Section. 

4164.  Notice— when  necessary. 

4165,  To  minors. 


§4162,  All  proceedings  ex  parte,  or  in  the  executon  of  the  pro-  Proceedings 

„      ,  p    ,       by  petition. 

tective  powers  of  chancery  over  trust  estates,  or  the  estates  or  the 
wards  of  chancery,  may  be  presented  to  the  Court  by  petition 
only,  and  such  other  proceedings  be  had  therein  as  the  necessity 
of  each  cause  shall  demand. 

§  4163.  A  Court  of  Equity  is  always  open,  and  hence  the  Judge    what  may 

.  -,  T^®    done    at 

m  vacation  and  at  chambers,  may  receive  and  act  upon  such  pe-  chambers. 
titions,  always  transmitting  the  entire  proceedings  to  the  Clerk  to 
be  entered  on  the  minutes  or  other  records  of  the  Court. 

§  4164.  In  all  cases  of  applications  for  the  removal  of  trustees,      Notice— 

"wlicn  HGCCS'' 

or  the  sale  of  trust  property,  or  the  investment  of  trust  funds,  or  sary. 
similar  cases  where  any  person  is  interested  besides  the  applicant, 
notice  to  such  persons  must  be  shown,  or  its  absence  accounted  for 
before  the  Court  shall  proceed  in  the  cause. 

§4165.  If  minors  are  interested,  and  they  have  no  guardians.    To  minors, 
guardians  ad  litem  must  be  appointed  and  notified  before  the  cause 
proceeds. 


816      PT.  3.— TIT.  28.— CHAP.  1  .—Arbitration  and  Award. 

Article  1. — The  Submission. 

TITLE    XXVIII. 

ARBITRATION    AND     AWARD. 


Chapter  1. — Special  Provisions. 
Chapter  2. — 'General  Provisions. 


CHAPTER   I. 

SPECIAL     PROVISIONS. 


Article  1. — Of  the  Submission. 

Article  2. — Of  the  Organization  and  bearing ^ 

Article  3.-— 0/  Oontiniiances  and  Adjournments^ 

Article  4.— 0/  the  Evidence  and  Witnesses. 

Article  5. — Of  the  Poivers  of  the  Arbitrators. 

Article  6. — Of  the  Rendition  and  Effects  of  the  Azvard. 

Article  7. — Eow  Attacked. 

Article  8. — Of  Costs  and  Compensation  of  the  Arbitrator s. 


ARTICLE  I. 

OF    THE    submission. 

Section.  j  Section. 

4166.  Controversies  submitted.  |       4167.  Submission  must  be  signed. 

§  4166.  All  persons  having  matters  of  controversy,  whether  in 
Coniroversy  suit  or  otherwiso,  mav  submit  the  same  to  arbitration,  and  any 

submitted  to  .  „  t  r.  • 

arbitration,  personal  representative  or  any  decedent,  or  guardian  of  any  in- 
fant, idiot,  lunatic,  or  any  trustee,  may  submit  to  arbitration  any 
matter  of  controversy  touching  the  estate  or  property  of  such  de- 
cedent, idiot,  lunatic,  infant,  or  of  such  trust  estate,  in  the  fol- 
lowing manner. 

§  4167.  All  such  submissions  to  arbitration  shall  be  in  writing, 
Submission  and  shall  contain  a  clear  and  accurate  statement  of  the  matters  in 

to  be  in  wri-  i       •         i  i  i  • 

ting.  controversy  submitted,  and    any  other  matter   that  may  be  perti- 

nent to  said  submission,  and  also  the  names  of  the  arbitrators 


PT.  3.— TIT.  28.— CHAP.  1.— Arbitration  and  Award.       81T 


Article  2. — The  Organization  and  Hearing. 


chosen  by  the  parties.  Said  subm'ission  shall  be  signed  by  the 
parties  or  their  agents,  and,  when  so  signed,  shall  be  delivered  to 
one  of  the  abitrators  chosen  by  the  parties  ;  and  when  this  is  done, 
said  submission  shall  be  irrevocable,  except  by  consent  of  all  the 
parties. 


ARTICLE  II. 


OF  THE  ORGANIZATION  AND  HEARING. 


bECTIOK. 

4168.  Must  be  three  arbitrators. 

4169.  How  chosen.       lik 

4170.  Shall  appoint  time  and  place. 


Sectiox. 

4171.  List  of  witnesses  to  be  furnished. 

4172.  If  any  fail  to  attend. 

4173.  Arbitrators  must  be  sworn. 


§4168.  Every  arbitration  under   this   provision   of   this  Code     to  consist 

•^  of  three. 

shall  be  composed  of  three  arbitrators,  one  of  whom  shall  be 
chosen  by  each  of  the  parties,  and  one  by  the  arbitrators  chosen 
by  the  parties. 

§4169.    When  the  submission  is  delivered  to  the   arbitrators  How  chosen 
chosen  by  the  parties,  or  either,  such  arbitrators  shall  then  choose 
another  arbitrator,  whose  name  shall  be  inserted  in  the  submis- 
sion. 

§  4170.   The  arbitrators  so  chosen  shall  then  appoint  their  time     Time  and 

^  ■*■  ^  place         0  f 

and  place  of  meeting,  which  shall  be  as  soon  as  practicable,  con-  meeting, 
sistent  with  a  proper  preparation  of  the  case,  and  the  parties  shall 
have  ten  days'  notice  of  such  time  and  place  of  meeting. 

§4171.  At  the  time  the  submission  is  made,  or  so  soon  there-    Listofwit- 

•  ^      Ti    n  •    ^        t  t  •  nesses  to   be 

after  as  may  be  done,  the  parties  shall  furnish  the  arbitrators  so  furnished. 
chosen,  or  one  of  them,  with  a  list  of  the  witnesses  whose  testi- 
mony they  desire  to  be  before  said  arbitrators ;  and  any  party 
neglecting  to  do  this  for  ten  days  after  said  submission  is  made, 
shall  not  be  entitled  to  delay  or  continuance  for  the  absence  of 
his  testimony  or  witnesses. 

§4172.  If  anyone  of  the  arbitrators  selected  by  the  parties  oneoftbe 
should  fail  to  attend  at  the  time  and  place  of  meeting,  or  be  dis-  failing  to 

.  attend. 

qualified,  the  party  whose  arbitrator  is  absent  or  disqualified  shall 
then  choose  another  in  his  place ;  and  if  the  arbitrator  chosen  by 
the  arbitrators  is  atbsent  or  disqualified,  the  arbitrators  chosen  by 
the  parties  shall  choose  another  in  his  place,  and  the  arbitrators 
so  chosen  shall  have  all  the  powers  of  the  arbitrators  first  chosen. 
§4173.  Before  the  arbitrators  enter  upon  a  hearing  of  said 
52 


818      PT.  3.~TIT.  28.— CHAP.  1.- -Arbitration  and  Award. 

Article  3, — Continuances  and  Adjournments. 
Arbitrat-  case,  to  make  up  their  award,  they  shall  be  sworn   impartially  t^^ 

ors  must  be   ^        '      .  ,  i       •         i  i  -. .  -,  , 

sworn.  determine  the  matters  submitted  to  them,  according  to  law  and 
the  justice  and  equity  of  the  case,  without  favor  or  affection  to 
either  party;  which  oath  they  may  administer  to  each  other. 


ARTICLE  III. 


OF     CONTINUANCES     AND     AD  JOUKNMENTS. 


Section. 

4174.  Parties  not  ready  —postponement. 


Skction. 

4175.  Adjournments. 


§  4174.  When,  upon  the  meeting  of  the  arbit|j^tors,  if  either  party 
Parties.pot  shall  uot  bc  ready  for  trial,  the  arbitrators  may  postpone  the  heaiv 

ready— case  ,  "^  _  ^   i.         x. 

postponed,  ing  of  the  case  to  a  future  day,  which  day  shall  be  as  early  as 
may  be  -consistent  with  the  ends  of  justice,  considering  all  the 
circumstances  of  the  case.  But  there  shall  not  be  .more  than  two 
adjournments  of  the  case,  except  for  providential  cause. 

§  4175.  After  the  arbitrators  shall  have  commenced  their  in'ves- 
May  adjourn  tigations,  they  may  adjourn  from  day  today,  or  for  a  longer  time, 
<i»y-  if  the  ends  of  justice*  r^uire  it,  until  their  investigations  are  c(5ia- 

pleted,  and  they  have  made  up  their  award. 


ARTICLE  IV. 


OF     THE     EVIDENCE     AND     WITNESSES. 


Sectiox.  * 

4176.  Testimony  taken  by  commission. 

4177.  Competency  of  witness. 


Section. 

4178.  Examination  of  witnesses,  etc. 


§4176.    Testimony  may  be  taken  by  commission,  under   the 

Testimony  samo   circumstauccs,   in  the    same    manner,   and    subject  to  the 

ken  by  com-  samo  rulcs  and  regulations,  as  are  now  or  may  be  prescribed  by 

mission,  ^    '-'  ;  .  .  . 

law  for  the  taking  of  testimony  by  commission  in  the  Superior 
Courts,  saving  only  that  the  original  interrogatories  shall  be  filed 
with  one  of  the  arbitrators  and  the  commission  issue  by  one  of 
the  arbitrators,  and  the  testimony,  when  taken,  shall  be  directed 
to  the  arbitrator  who  issued  the  commission. 

§  4177.  All  free  white  persons  who  have  arrived  at  sufficient 
Competency  affc  to  Understand  the  obligations  of  an  oath,  and  are  not  idiots  or 

of  witnesses.     ^        ^  o  ? 

lunatics,  including  also  the  parties  to  said  submission,  shall  be 
competent  as  witnesses  in  all  cases  before  said  arbitrators,  saving 


PT.  3.— TIT.  28.— CHAP.  1.— Arbitration  and  Award.       819 


Article  5. — Powers  of  the  Arbitrators. 


only  that  the  wife  shall  not  be  a  witness  for  or  against  the  hus- 
band, nor  the  husband  for  or  against  the  wife,  except  in  cases 
where  the  same  is  allowed  by  law."^ 

§  4178.  The  examination  of  witnesses  and  the  admission  of  tes- 
timony shall  be  governed  by  the  r.ules  of  the  Superior  Courts,  ex- 
cept as  herein  provided. 


Examina- 
tion of  wit- 
nesses—  ad- 
mission of 
evidence. 


ARTICLE    V. 

OP  THE  POWERS  OF  THE  ARBITRATORS. 


Section. 
.  4179.  Powers  of  arbitrators. 
,  4180.  May  compel  produc'n  of  books,  etc. 


Section. 

4181.  Administer  oaths  to  witnesses,  etc. 

4182.  If  all  do  not  attend  two  may  act. 


§4179.  The  arbitrators^shall  be  clothed  with  all  the  powers  of     Maycom- 
the  Superior  Courts  to  compel  the  attendance  of  witnesses  before  ance  of  wit- 

■•■  ^  ^  neeses. 

them,  and  also  to  compel  them  to  testify,  and  any  one  of  said  ar- 
bitrators shall, have  power  to  issue  subpoenas  requiring  the  atten- 
dance of  witnesses  at  the  time.and  place  of  their  meeting,  which 
subpoenas  shall  be  served  in  the  manner  pointed  out  by  law  for  the  ^.compen&a- 

^  _    •»•  "^  tion  of  wit- 

service  of  subpoenas  in  cases  pending  in  the  Superior  Courts,  and  ^^esses. 
witnesses  so  attending  shall  be  entitled  to  the  same  compensation 
as  witnesses  attending  Superior  Courts,  and  it  may  be  collected  in 
the  same  manner. 

§4180.  Said  arbitrators  shall  be  clothed  with  all  the  powers  of-i^^^yco^pei 

*■  the    produc- 

the  Superior  Courts  to  compel  parties  to  produce  books  and   all  tionofbooks, 
other  papers  which  they  may  deem  necessary  and  proper  for  the 
investigation  of  the  matters  submitted  to  them,  giving  to  the  par-        ^ 
ty,  his  agent,  or  attorney,  from  whom  the  production  is  required,    ,  Notice  to 
such  notice  as  is  required  in  the  Superior  Courts  for  the  produc- 
tion of  papers. 

§  4181.  Said  arbitrators  shall  have  power  to  administer  oaths  to  Mayadmin- 

•*•  ister  oaths. 

witnesses,  and  all  other  oaths  that  may  be  necessary  for  carrying 
the  provisions  of  this  Chapter  into  full  effect. 

§4182.  If  the  arbitrators  so  chosen  shall  fail  to  agree  upon  an     Two  may 
award,  then  any  two  of  them  may  make  an  award,  which  shall  award. 
have  the  same  force  and  effect  as  if  made  by  all  three  of  them. 


*  As  to  competency  of  witnesses  generally,  see  Sections  3798-9  ;  and  as  to 
the  competency  of  persons  of  color,  see  Sections  1662-3. 


820      PT.  3.— TIT.  28.— CHAP.  1.~Arbitratiox  and  Award. 


Article  G. — The  Renclition  and  Effect  of  the  Award. 


ARTICLE   YI. 

OF    THE    RENDITION   AND  EFFECT    O'F    THE    AWARD, 

Section  41S3.  Rendition  and  effect  of  award. 

§  418B.  After  the  arbitrators  shall  have  made  up  their  awards 
Copytobe  they  shall  furnish  each  of  the  parties  with  a  copy  thereof,  and  re- 

given  to  the  "^  ^     ^  '■  . 

parties ;orig-  turn  tlic  oriffinal  award  to  the  next  Superior  Court  of  the  County 

mal   return-  o  i  »/ 

ed  t^  siipe-  where  the  award  was  made,  and  said  award  shall  be  entered  on 

nor  Court.  ' 

the  minutes  of  said  Court,  and  shall  have  all  the  force  and  eifect 
of  a  judgment  or  decree  of  said  Court,  and  may  be  enforced  in 
Effect  of  the  same  manner  at  any  time  after  the  adiournment  of  said  Court, 
and  shall  be  final  and  conclusive  between  the  parties  as  to  all  mat- 
ters submitted  to  the  arbitrators,  unless  objection  should  be  pleaded 
to  the  same  as  provided  in  the  next  Section  of  this  Code. 


ARTICLE   YIL 

now     ATTACKED. 

Section.  I  Section. 

4184.  Award— how  attacked,  etc.  I        4185.  Verdict  of  jurj' and  proceedings. 


§4184.  When   said   award  shall    have   been  returned  to  said 
Fraiidsmay  Court  and  entered  upon  its  minutes,  as  provided  in  the  previous 

be  suggested  ^  ^  ^  ^ 

attiieVnurn  gection  of  this  Code,  either  of  the  parties  may  su2;2:est,  on  oath. 

T  ^   ir       term.  '  ^  •^         oo        ?  7 

*  /-/-/q^'  at  the  term  to  which  said  award  is  returned,  that  the  award  was 

^  the  result  of  accident,  or  mistake,  or  the  fraud  of  some  one  or 

all  of  the  arbitrators  or  parties,  or  is  otherwise  illegal.  Where- 
upon the  Court  shall  cause  an  issue  to  be  made  up,  which  issue 
byT\pe"iai  shall  be  tried  bj  a  special  jury  under  the  same  rules  and  regula- 
tions as  are  prescribed  for  the  trial  of  appeals ;  which  trial  shall 
be  had  at  the  same  term  of  the  Court  .at  which  the  suggestion  is 
made,  unless  good  cause  be  shown  for  a  continuance,  when  the 
May  be  con-  same  may  be  continued  for  one  term  only,  except  for  providential 

tinued      for  »'  »/  -'  i.  i 

one  term.        cauSeS. 

§  4185.  If  upon  the  trial  of  such  issue  the  jury  shall  return  a 
Verdict  of  verdict  finding  against   said  award  on  the  specifications  made  in 

the  jury.  . 

the  issue  submitted,  the  Court  shall  forthwith  pass  an  order  va- 
cating and  setting  aside  said  award ;  but  if  the  jury  shall  not  so 

Orticr  of 

the  Court,     find,  Said  award  shall  remain  in  full  force  as  provided  in  the  pre- 


PT.  3.— TIT.  28.— CHAP.  L— Arbitkation  and  Award.      821 


Article  8. — Costs  and  Compensation  of  Arbitrators. 


Tious  Section  of  this  Code,  and  shall  be  final  and  conclusive  unless      shaii  be 

CH  '         r^  -I  •  n  1     •  1       ^"^^    unless 

the  judgment  of  the  Superior  Court  on  the  trial  of  such  issue  be  reversed, 
rever-sed  bj  th<e  Supreme  Court. 


ARTICLE   YIII. 


OF   COSTS   AND    COMPENSATION   OF   ARBITRATORS. 


Section. 

4180.  Cork's  fees  for  his  services. 
4187.  The  costs  may  be  taxed,  etc. 


Sectiox. 

4188.  Compensation  of  arbitrators,  etc. 


§4186.  For  each  award  entered  upon  the  minutes  of  the  Supe-  ci«rk'«fees. 
rior  Court,  the  Clerk  shall  be  entitled  to  the  same  pay  now  allowed 
hj  law  for  the  entering  of  judgment  in  other  cases,  to  be  paid  hj 
the  parties  as  directed  in  said  award. 

§  4187.  The  arbitrators  shall  return  in  their  award  the  costs  of  costs— how 

tased. 

"the  case,  which  they  may  tax  against  either  party,  or  a  part 
against  one  and  a  part  against  the  other,  according  as  they  may 
think  just  and  right. 

§  4188.  The  arbitrators  shall  have  such  compensation  for  their      compen- 

-'■  sation         of 

services  as  may  be  agreed  upon  by  themselves  and  the  parties,  arMtrators- 
which  shall  be  paid  equally  by  the  parties,  or  included  in  the  ^°^  coiiect- 
judgment  or  decree  of  the  Court  to  which  said  award  is  returned 
as  part  of  the  costs  in  said  case ;  and  if  the  parties  fail  to  agree 
on  the  amount  so  to  be  paid,  the  Court  to  which  said  award  is  re- 
turned shall  direct  an  issue  (as  to  the  amount  of  the  fee)  to  be 
formed  between  the  parties  and  the  arbitrators,  which  shall  be 
tried  by  a  special  jury,  whose  verdict  shall  be  final  and  conclusive, 
unless  reversed,  and  the  subsequent  proceedings  thereon  shall  be 
the  same  as  in  cases  of  appeal. 


CHAPTER    IL 

GENERAL     PRINCIPLE 


Section, 

4189.  Any  number  of  arbitrators. 


Section. 

4190.  Submissions  when  suit  is  pending. 


§  4189.  Nothing  in  the  preceding  Chapter  contained  shall  pre- 
sent any  of  the  parties  named  in  the  first  Section  thereof  from 
submitting  any  and  all  matters  of  controversy  to  the  arbitrament 


822 


PT.  3. — TIT.  28. — Arbitration  and  Award. 


Chapter  2. — General  Principles. 


submis-  and  award  of  any  number  of  arbitrators,  as  provided  by  this  Code» 

sionsto  arbi-  ,..  ^  •  -,       i 

tration  other  ^yiietner  the  same  be  in  suit  or  otherwise  :  and  when  so  submitted, 

than      those  _  '  ^  ^ 

provided  in  the  proceodings  shall  be  governed  by  the  provisions  of  this  Code 
ing  chapter,  qj^^  ^ho  common  law. 

§  4190.  In  all  matters  submitted  to  reference  by  parties  in  a 
Submission  guit  under  a  rule  of  Court  or  other  agreement  in  writing;,  signed 

when  suit  is  •^  «=>  o?       c 

pending.  ]yj  ^ho  parties  (except  as  hereinbefore  provided),  judgment  shall 
be  entered  up  by  the  party  in  whose  favor  the  award  is  given,  and 
execution  shall  issue  for  the  sums  awarded  to  be  paid  as  they 
respectively  become  due,  and  to  be  levied  on  the  property  of  the 

Proceedings  party  against  whom  the  judgment  shall  have  been  entered  up,  and 
such  other  proceedings  shall  be  had  thereon  by  the  Court  as  in 
cases  of  judgments  entered  upon  verdicts  of  juries. 


TITLE    XXIX. 

PRACTICE   IN    CONNECTION   WITH  SUPREME   COURT. 


Chapter  1. —  Of  Bills  of  Exceptions  and   Writs  of  Error. 
Chapter  2. — Of  Proceedings  in  Supreme  Court. 


CHAPTER   I, 

OF  BILLS   OF  EXCEPTIONS  AND   WRITS   OF  ERROR. 


Section-. 

4191.  When  a  writ  of  error  lies. 

4192.  Bill  of  exceptions. 

4193.  Tendering  and  certifying. 

4194.  Exceptions  pendente  lite. 

4195.  Judge  removing,  dead,  or  absent, 

4196.  Death  of  either  party. 

4197.  Judge  refusing  to  certify. 

4198.  Failing  to  certify. 

4199.  Notice — how  served. 


Section. 

4200.  Ex  ijarte  proceedings, 

4201.  Criminal  cases— proceedings  in. 

4202.  Bill  of  exceptions — how  filed. 

4203.  Operates  as  supersedeas — when. 

4204.  Clerks  and  Sheriffs  failing  in  duty, 

4205.  Filing  papers  in  the  Supreme  Court. 

4206.  Cases  from  City  Courts. 

4207.  Change  of  laws  apply. 


§  4191.  No  cause  shall  be  carried  to  the  Supreme  Court  upon 

o7?>T"?iie^*  any  bill  of  exceptions,  so  long  as  the  same  is  pending  in  the 

Court  below,  unless  the  decision  or  judgment  complained  of,  if 

^  it  had  been  rendered  as  claimed  by  the  plaintiff  in  error,  would 

have  been  a  final  disposition  of  the  cause.     But  at  any  stage  of 

the  cause,  either  party  may  file  his  exceptions  to  any  decisi«on, 


PT.  3.— TIT.  29.— Supreme  Court  Practice.  823  | 

Chapter  1. — Bills  of  Exceptions  and  Writs  of  Error. 

— — — — —  ij. 

sentence,  or  decree  of  the  Superior  Court ;   and  if  the  same  is  J 

certified  and  allowed,  it  shall  be  entered  of  record  in  the  cause;    bhis  of  ex- 
ceptions ' 

and  should  the  case  at  its  final  termination  be  carried  by  writ  of  pending  the 

*'  cause. 

error  to  the  Supreme  Court  by  either  party,  error  may  be  as- 
signed upon  such  bills  of  exception,  and  a  reversal  and  new  trial 
may  be  allowed  thereon  when  it  is  manifest  that  such  erroneous 
decision  of  the  Court  has  or  may  have  aiffected  the  final  result  of 
the  case. 
.§4192.  Either  party  in  any  civil  cause,  and  the  defendant  in    Buisofes- 

^  r        «'  «'  7  ceptione. 

any  criminal  proceeding  in  the  Superior  Courts  of  this  State,  may 
except  to  any  sentence,  judgment,  or  decision,  or  decree,  of  such 
Court,  or  of  the  Judge  thereof,  in  any  matter  heard  at  Cham- 
bers. Such  bill  of  exceptions  shall  specify  plainly  the  decision 
complained  of,  and  the  alleged  error,  and  shall  be  signed  by  the 
party,  or  his  attorney,  or  solicitor. 

§  4193.   Such  bill  of  exceptions  shall  be  tendered  to  the  Judsje    Tendering 

"^  ^  o     and  certify- 

who  presided  in  the  cause,  within  thirty  days  from  the  adjourn-  ^"^• 

ment  of  the  Court,  or  the  date  of  the  decision  at  Chambers;  ^^^ ^) ^^h<y^2^yj 

if  the  same  is  true  and  contains,  in  connection  with  the  transcript 

of  the   record,  all  the  facts  necessary  to  the  understanding  and 

adjudication  of  the  alleged  error,  the  said  Judge  shall  sign  and 

certify  the  same,  substantially  as  follows : 

"I  do  certify  that  the  foregoing  bill  of  exceptions  is  true,  and     Writof 
contains  all  the  evidence  material  to  a  clear  understanding  of  the 
errors  complained  of;  and  the  Clerk  of  the  Superior  Court  of  the 

County  of  '■ —  is  hereby  required  and  ordered  to  make  out  a 

complete  copy  of  the  record  of  said  case,  and  certify  the  same  as 

such,  and  cause  the  same  to  be  transmitted  to  the term  of 

the  Supreme  Court,  that  the  errors  alleged  to  have  been  commit- 
ted may  be  considered  and  corrected." 

This  certificate  shall  be  the  writ  of  error. 

§  4194.  Exceptions  tendered  before  the  final  hearing  or  judg-        Excep- 
ment,  for  the  mere  purpose  of  being  made  a  part  of  the  record,  dente  ute. 
shall  be  certified  to  be  true  by  the  Judge,  and  ordered  to  be 
placed  on  the  record.     Such  exceptions  must  be  tendered  during 
the  term. 

§  4195.  If  the  Judge  trying  the   cause  resigns,   or  otherwise     Judge  re- 
ceases  to  hold  his  office  as  Judge,  when  the  bill  of  exceptions  is 
tendered,  he  may  nevertheless  sign  and  certify  as  above ;    and  if 
he  should  die  before  certifying  the  same,  or  otherwise  becomes  in- 


movmsr. 


824     •  PT.  3.— TIT.  29.— Supreme  Court  Practice. 

Chapter  1. — Bills  of  Exceptions  and  Writs  of  Error, 


capablp  of  acting,  then  the  party  may  verify  his  bill  of  exceptions 
by  his  own  oath,  or  that  of  his  attorney,  together  with  the  oath  of 
Or  dying,  at  Icast  onc  disinterested  member  of  the   bar  who  was  present  at 
the  trial ;    and  such  verifications  shall  operate  in  the  same  man- 
or absent,  ncr  as  the  certificate  of  the  Judore.     If  the  Judsje  is  absent  from 

etc.  .     °  .  ° 

home,  or  by  other  casualty  fails  to  certify  the  bill  of  exceptions 
within  the  time  specified  (and  without  fault  of  the  party  tender- 
ing), he  may  still  sign  and  certify  as  soon  as  possible,  which  shall 
be  held  and  deemed  valid. 

§4196.  If  either  party  dies  between  the  hearing  and  the  ten- 

Party  dying,  dering  of  the  bill  of  exceptions,  the  Judge  shall  nevertheless  sign 

and  certify  the  salne,  and  parties  shall  be  made  in  the   Supreme 

Notices.     Court  as  in  other  cases.     The  notices  required  in  such  cases  to  be 

given   and  received  may  be  given  and  received  by  the  attorneys 

of  the  respective  parties,  though  such  parties  be  dead. 

§  4197.  If  the  Judge  shall  determine  that  the  bill  of  exceptions 
judcforefns- is  not  truc,  or  does  not  contain  all  the  necessary  facts,  he  shall 

irig  to  certi-  ,       .  '' 

ly-  return  the  same,  within  ten  days,  to  the  party,  or  his   attorney, 

with  his  objections  to  the  same  in  wTiting.  If  these  objections 
are  met  and  removed,  the  Judge  may  then  certify,  specifying  ixx 
his  certificate  the  cause  of  the  delay.  If  the  Judge  sees  proper, 
he  may  order  notice  to  the  opposite  party  of  the  fact  and  time  of 
otii?i^*!art  ^^  tendering  the  exceptions,  and  may  hear  evidence  as  to  the  truth 
thereof. 

§4198.  If,  from  any  cause,  the  bill  of  exceptions  is  not  certi- 

judf^'c  fail-  fied  by  the  Judp;e  without  fault  of  the  party  tenderintr,  such  party, 

or   his  attorney,  shall  apply  at  the  next  term  of  the   Supreme 

Court,  wherever  it  may  be,  and,   on  petition,    obtain   from  said 

Mandam-  Qourt  a  mafidamiis  ni  si,  directed  to  such  Judo-e.     Such  petition 

lis  n%  S'l.  '  &  r 

must  set  out  substantially  the  bill  of  exceptions  tendered,  and 
shall  be  verified  by  the  attorney  as  to  the  truth  of  the  bill  as  ten- 

service.  (]gj.g(j^  ^ud  by  tlic  party,  or  his  attorney,  as  to  the  other  facts 
stated  therein.  The  mandamus  ni  si  shall  be  served  by  some 
Sherifi"  of  this  State,  and  his  return  made  to  the  Clerk  of  the 
Supreme  Court.     It  shall  be  returnable  at  some  term  of  the  Su- 

judge'sreg-  prcmc  Court,  at  which  term  the  Court  shall  consider  and  deter- 
mine  the  validity  of  the  reasons  given  by  the  Judge  for  his  fail- 
ure or  refusal ;  but  in  no  case  shall  a  traverse  as  to  the  truth  of 
such  return  of  the  Judge  be  allowed.     If  the  reasons  be  insufii- 

absolute.      cicut,  or  the  Jadge  tails  or  reiuses  to  make  any  return  to  the  man- 


PT.  3.— TIT.  29.— Supreme  Court  Peactice.       825 

Chapter  1. — Bills  of  Exceptions  and  Writs  of  Error. 


damns  ni  si^  the  Supreme  Court  shall  issue  a  mandamus  absolute, 
commanding  the  Judge  to  sign  and  certify  the  bill  of  exceptions. 
If  he  still  refuses  so  to  do,  the  cause  shall  be  heard  by  the  Su- 
preme Court  on  the  exceptions  as  verified  in  the  petition  for  man- 
damus. 

§4199.  Within  ten  days  after  the  bill  of  exceptions  is  signed  service  of 
and  certified,  the  party  plaintiif  therein  shall  serve  a  copy  thereof  fendants. 
upon  the  opposite  party  or  his  attorney,  and  if  there  be  several 
parties  with  different  attorneys,  upon  each,  with  a  return  of  such 
service  (or  acknowledgment  of  service)  indorsed  upon  or  annexed 
to  such  bill  of  exceptions,  and  tbey  alone  are  parties  defendant  in 
the  Supreme  Court  who  are  thus  served. 

§  4200.  If  the  proceeding  in  the  Court  below  be  ex  parte,  and     ex  parte 

,  ,  .  proceedings. 

there  is  no  opposite  party,  notice  to  no  one  is  necessary.     In  cases 

of  interpleader  or  otherwise,  where  the  real  contestant  is  not  the      Notice  to 

••■  '  real  contest- 

opposite  party  on  the  record,  notice  shall  be  given  to  such  real  ^^^ 
contestant,  in  addition  to  the  copy  served  as  above. 

§4201.  In  a  criminal  case,  the  copy  bill  of  exceptions  shall  be      incrimi- 

n    T    •  /^  1  nal  cases. 

served  upon  the  Attorney  or  Solicitor  General,  as  the  case  may  be, 
or  upon  a  Solicitor  General  pro  tem.  who  tried  the  cause,  if  he  is 
still  acting  under  the  appointment. 

§4202.  Within  fifteen  days  from  the  date  of  the  certificate  of      Filing  in 
the  Judge,  the  bill  of  exceptions  shall  be  filed  in  the  office  of  the 
Clerk  of  the  Court  where  the  case  was  tried  ;  and  in  ten  days  from 
the  date  of  such  filing,  it  shall  be  the  duty  of  the  Clerk  to  make 
out  a  copy  of  such  bill,  together  with  a  complete  transcript  of  the 
record  in  such  cause.     Such  transcript,  together  with  the  original  cierk'sduty 
bill  of  exceptions,  the  Clerk  shall  transmit,  together  with  a  cer-  ~~  ^^°^^"^*- 
tificate  that  the  same  is  the  true  original  bill  of  exceptions,  and  a 
true  and  complete  transcript  of  the  record  in  such  case,  to  the 
next  term  of  the  Supreme  Court,  as  required  in  the  Judge's  cer- 
tificate, directing  the  same  to  the  Clerk  of  the  said  Court.*     The    copywiiof 
copy  bill  of  exceptions  shall  be  retained  in  the  office  of  the  Clerk  ^^^^^^  ^°"^' 
of  the  Superior  Court. 

§  4203.   The  bill  of  exceptions  thus  filed  shall  operate  as  a  su-     snperse- 
persedeas  upon  the  plaintiff  in  error  complying  with  the  following 
terms:  In  a  civil  cause,  the  party  shall,  on  or  before  filing  the       incivii 
bill  of  exceptions,  pay  all  costs,  and  by  himself,  his  agent,  or  at- 

*  See  Acts  of  1855-6,  p.  200,  as  to  whether  the  proviso  iu  Section  8  of  the 
Act  of  March  Cth,  1856,  is  stiil  in  force. 


cases. 


826      PT.  3.— TIT.  29.— Supreme  Court  Practice. 


Chapter  1. — Bills  of  Exceptions  and  Writs  of  Error. 


Bond.       tornej  in  fact  or  at  law,  give  bond  with  good  security^  payable  to 
the  opposite  party,  and  conditioned  for  the  payment  of  the  even- 
tual condemnation  money,  and  all  subsequent  costs,  which  bond 
shall  be  attested  and  approved  by  the  said  Clerk.     Or  he  may  file 
In  forma  ^^  affidavit  with  the  said  Clerk,  stating  that  he  is  unable,  from  his 
pauperis,    poygj-ty,  to  pay  the  costs  and  give  the  security  for  the  eventual 
condemnation  money,  and  that  his  counsel  has  advised  him  that  he 
has  good  cause  for  a  writ  of  error,  which  affidavit  shall  operate  as- 
In  crimi-  ^^  ^^^  costs  woro  paid  and  bond  given.     In  a  criminal  cause,  where 
the  ofiense  is  bailable,  the  defendant  shall  enter  into  a  recogni- 
zance before  the  said  Clerk,  with  security  to  be  approved  by  him, 
in  a  sum  to  be  fixed  by  the  presiding  Judge,  conditioned  for  the 
personal  appearance  of  such  defendant,  to  abide  the  final  order, 
judgment,  or  sentence  of  said  Court.     If  the  offense  is  not  baila- 
ble, the  Judge  shall  order  a  supersedeas  at  the  time  of  filing  the 
bill  of  exceptions.     If  the  party  is  unable,  from  his  poverty,  to 
give  the  recognizance,  the  Judge  shall  order  a  supersedeas  upon 
the  filing  of  an  affidavit  as  provided  in  civil  cases,  but  the  defen- 
dant shall  not  be  set  at  liberty  without  the  recognizance. 

§4204.  If  any  Sheriff,  or  Clerk,  or  other  officer  shall  fail  to 
Mandamus  discharge  any  duty  required  of  him  in  connection  with  the  foreg-o- 

vs.  Clerk  or  ....    . 

Sheriff.        ing  provisions,  upon  petition  the  Supreme  Court,  or  the  Judge  of 

the  Superior  Court,  may  compel  the  performance  of  such  duty  by 

mandamus ;  and  no  suitor  shall  lose  any  right  by  reason  of  the 

Suitors  not  failure  of  such  officers  to  discharge  their  duties,  where  he  has  been 

to  suffer.  .  ,  .... 

guilty  of  no  fault  himself,  and  has  exercised  ordinary  diligence  to 
secure  their  discharge  of  duty. 

§  4205.  [All  bills  of  exceptions,  taking  up  cases  for  review  be- 
Time  of  fore  Said  Court,  shall  be  filed  in  the  Clerk's  office  at  least  twenty 

filing  bill  of  1.1,  • 

exceptions,  days  before  the  commencement  of  the  term  at  which  the  same  is 
to  be  heard — to  wit :  The  first  Monday  in  June  and  December  ; 
otherwise  the  case  shall  be  docketed  for  the  term  held  next  after 
filing  the  same.]  (a) 

§  4206.  [The  mode  now  prescribed  by  law  for  carrying  cases  from 

Modeofcar-  the  Superior  Courts  to  the  Supreme  Court,  shall  obtain  in,  and 

to  Supreme  apply  to,  the  City  Courts  of  the  cities  of  Savannah  and  Augusta, 

and  such  other  like  Courts  as  may  be  hereafter  established ;  and 

the  Judges,  Clerks,  and  Sheriffs  of  such  inferior  judicatories,  are 

• 

(a)  Acts  of  1866,  p.  46. 


PT.  3.— TIT.  29.— Supreme  Court  Practice. 


827 


Chapter  2. — Proceedings  in  the  Supreme  Court. 


hereby  authorized  and  required  to  do  and  perform  all  the  acts  in 
relation  to  carrying  cases  from  their  respective  Courts,  which  are 
now  performed  or  required  of  like  officers  of  the  Superior  Courts 
where  cases  are  carried  from  the  Superior  Courts.]  (a) 

§4207.  [Any  change  or  modification  in  the  mode  of  carrying 
cases  from  the  Superior  Courts  to  the  Supreme  Court,  which 
may  hereafter  be  made,  shall  apply  to  and  govern  such  inferior 
judicatories,  mutatis  mutandis^  although  they  may  not  be  spe- 
cially named.]  (a) 


Duty  of 
Judges  and 
oflBcers. 


Changes 
made  shall 
apply  to  city 
Courts. 


CHAPTER    II. 


OF   PROCEEDINGS    IN    THE    SUPREME    COURT. 


Section. 

4208.  Order  of  docketing  cases. 

4209.  Number  to  be  published. 

4210.  Mode  of  decision. 

4211.  Decisions  at  the  first  term. 

4212.  Written  arguments. 

4213.  Time  of  filing  brief. 

4214.  Argument  to  be  read. 

4215.  Costs  must  be  paid, 

4216.  Making  parties. 

4217.  If  the  record  is  incomplete. 


Section. 

4218.  Judges  dissenting. 

4219.  Decision  and  future  direction. 

4220.  Remitter. 

4221.  Damages. 

4222.  Execution  may  issue — when. 

4223.  Amendments. 

4224.  Transcript  to  be  filed. 

4225.  Attorneys  liable  for  costs. 

4226.  Taxing  cost. 


§4208.  [It  shall  be  the  duty  of  the  Judges  of  the  Supreme 
Court  to  fix,  and  cause  to  be  published  on  the  first  of  January, 
1867,  for  twenty  days,  in  one  newspaper  in  Augusta,  Savannah, 
Atlanta,  Macon,  and  Columbus,  and  in  the  Southern  Recorder  and 
Federal  Union  at  Milledgeville,  the  order  in  which  the  cases  from 
the  respective  Judicial  Circuits  will  be  heard,  which  shall  not  be 
changed,  except  by  an  order  of  the  Court,  published  in  the  same 
manner  at  least  sixty  days  before  the  term  of  the  Court  at  which 
the  alteration  is  to  take  efi'ect.]  (b) 

§  4209.  [It  shall  be  the  duty  of  the  Clerk  of  the  Supreme  Court 
to  cause  to  be  published,  in  the  manner  specified  in  the  preceding 
Section,  for  fifteen  days  immediately  preceding  each  session  of 
said  Court,  the  number  of  cases  docketed  from  each  Court  in  each 
Circuit,  for  the  information  of  all  persons  having  business  in  said 
Court.]  (b) 

§  4210.  [No  decision  shall  be  delivered  ore  tenus ;  but  the  same 
shall  be  announced  by  a  written  synopsis  of  the  points  decided, 


^  ier  of 
cases  by  cir- 
cuit to  be 
published. 


Number  of 
oases  from 
each  circuit 
to  be  pub- 
lished 


Mode  of 
announcing 
decisions. 


(a)  Acts  of  1865-6,  p.  58.    (b)  Acts  of  1866,  pp.  46-7. 


828  PT.  3.— TIT.  29.— Supreme  Court  Practice. 

Chapter  2. — Proceedings  in  the  Supreme  Court. 

which  shall  be  delivered  during  the  term  at  which  the  decision  was 
made.  And  no  decision  shall  be  pablished  in  the  reports  until 
the  said  decision  shall  have  been  revised  by  each  of  the  Judges 
presiding  in  the  case.]  (a) 

§4211.  The   Supreme  Court  shall  proceed  to  hear  at  the  first 
Decisions  term  (unlcss  prevented  by  providential  cause)  all  cases  properly 

Jit  nrst  tGriii.  ^ 

docketed,  and  with  the  records  made  up  ready  for  a   hearing. 

Continuance  And  no  coutinuanco  shall  be  allowed  except  for  providential  cause. 

§  4212.  [Attorneys  and  solicitors  who  have,  or  may  have  causes 

Attorneys  pendinsj  in  the  Supreme  Court,  may  ar2;ue  the  same  in  writino-  as 

may      agree  i  cs  j.  >  ^  a  o 

in  writing,    hereinafter  set  forth.]  (b) 

§4213,  [When  any  attorney  or  solicitor  shall  from  any 
sendwritten  cause  dcsiro  to  make  his  argument  in  writing,  he  shall  prepare  the 
Clerk.  same,  and  address  the  package  containing  it  to  the  Clerk  of  the 

Supreme  Court  of  Georgia,  which  said  written  argument  shall  be 
filed  in  the  Clerk's  office  of  said  Court,  by  or  before  the  com- 
mencement of  the  term  to  which  it  is  made  returnable.]  (b) 

§  4214.  [It  shall  be  the  duty  of  said  Clerk  when  the  cause  is 
Duty  of    sounded  to  furnish  the  Court  with  said  argument ;  which  argument 
Of  Court    ^^  shall  be  the  duty  of  the  Court  to  read,  or  cause  the  same  to  be 
done.]  (b) 
/  §  4215.  [It  shall  be  the  duty  of  the  attorney  or  solicitor  for  the 

CoBts.  plaintiff  in  error,  when  forwarding^his  argument  in  writing  to  fur- 
nish a  sum  sufficient  to  pay  the  costs  of  said  suit,  and  in  default 
thereof,  his  cause  shall  be  liable  to  be  dismissed.]  (b) 

§  4216.  Should  any  party  die  after  the  bill   of  exceptions  has 
Makingpar-  been  signed  and  certified,  the  death  being  suggested  of  record  in 
the  Supreme  Court,  parties  shall  be  made  by  sci?^  facias,  in  the 
manner  heretofore  prescribed  by  the  rules  of  said  Court. 

§  4217.  If  the  transcript  of  the  record  is  incomplete  in  a  mate- 

if  the  re- rial  point,  the  fact  being  suggested  on  the  oath  of  the  party  or 

complete,     his  counscl,  the  cause  shall  be  postponed,  and  a  mandamus  issued 

requiring  the  Clerk  to^complete  the  transcript.     If,  however,  the 

Admission  other  party  will  admit  the  existence  and  ejQfect  of  the  omitted 

of    opposite  ^        '^ 

party.         rccord,  such  admission  in  writing  shall  constitute  a  part  of  the 

Mandamus  ^^^cord,  and  the  cause  shall  proceed  to  a  hearing.     If  tlie  Clerk 

m vacation,   j-gf^ges  to  Send  up  any  of  the  papers,  the  plaintiff  in  error,  or  his 

counsel,  may  apply  to   any  one   of  the  Judges  of  the  Supreme 

(a)  Acts  of  18G6,  pp.  46-7.      (b)  Acts  of  18G5-6,  pp.  57-8. 


PT.  3.~TIT.  29.--~SuPREME  Court  Practice.  829 

Chapter  2. — Proceedings  in  the  Supreme  Court. 


Court  in  vacation  and  obtain  a  mandamus  ni  si  against  said  Clerk, 
and  returnable  to  the  term  of  the  Court  where  the  case  should  be 

Attachment 

tried;  and  for  a  continued  failure  or  refusal,  the  Supreme  Court  foicoDtcmpt 
may  attach  the  Clerk  for  contempt. 

§4218.    If   the   Court  is  not  unanimous   in   its  decisions,   the    Jiifgesdis- 

<J  '  senting. 

Judges  shall  deliver  the  opinions  seriatim^  but  they  shall  not  be 
required  to  write  them  out.  The  opinion  of  the  majority  shall 
decide  each  question.  If  but  two  judges  preside,  and  they  are 
divided  in  opinion,  the  cause  shall  be  re-argued  before  the  remain- 
ing Judge,  with  a  full  bench,  ere  the  term  closes,  if  possible.  If 
not  possible,  the  judgment  of  the  Court  below  shall  stand  affirmed, 
upon  the  certificate  of  the  fact  of  the  division  of  the  Court,  unless 
the  Judge  is  absent  from  providential  cause,  in  which  event  the 
cause  shall  stand  continued. 

§  4219.  The  decision  in  each  cause  shall  be  entered  on  the  min-    decision, 
utes,  and  it  shall  be  within  the  power  of  the   Supreme  Court  to  poweroffu- 
award  such  order  and  direction  to  the  cause  in  the  Court  below  as  tion. 
may  be  consistent  with  the  law  and  justice  of  the  case.  J  c^,;'  '^-'.f       '  >^^' 

§  4220.  The  decision  of  the  Court,  and  any  direction  awarded  Eemitter. 
in  the  case,  shall  be  certified  by  the  Clerk  to  the  Court  below, 
under  the  seal  of  the  Supreme  Court,  and  shall  be  respected,  and 
in  good  faith  carried  into  full  efi"ect,  by  the  Superior  Court.  The 
remitter  shall  contain  nothing  more,  except  the  costs  paid  in  the 
Supreme  Court. 

§  4221.   Ten  per  cent,  damas^es  may  be  awarded  by  the  Supreme  Dama^esin 

"^  -i-  o .  ■J  ^  i.  cases  of    ai- 

Court  upon  any  judgment  for  a  sum  certain,  which  has  been  car-  firm^Jice. 
ried  to  said  Court,  and  there  affirmed ;  'provided^  in  their  opinion, 
the  cause  was  taken  up  for  delay  only,  and  it  shall  be  so  entered 
in  the  remitter. 

§  4222.  If  the  judgment  below  is  affirmed,  upon  filing  the  remit-  ^^g'^j.^Jlf^g"* 
ter  with  the  Clerk  of  the  Superior  Court  in  vacation,  the  super-  f^^^^"^    ^^ 
sedeas  shall  cease,  and  execution  shall  issue  at  once  for  the  amount 
of  the  original  judgment. 

§  4223.  The  bill  of  exceptions  may  be  amended  in  the  Supreme     Biiiofex- 

•^  JT  t/  r  captions 

Court,  so  as  to  conform  to  the  record  in  the  cause.  amendable. 

§  4224.  The  transcript  of  the  record  shall  not  be  recorded  by  Transcripts 

■'■  "^    to  be  filed. 

the  Clerk  of  the  Supreme  Court,  but  shall  be  carefully  labeled 
and  filed,  so  as  to  be  easily  found  when  needed. 


830  PT.  3.— TIT.  29.— Supreme  Court  Practice. 

Chapter  2. — Proceedings  in  the  Supreme  Court. 


§4225.  The  attorney  representing  tlie  plaintiff's  cause  shall,  in 
Attorney  all  cases,  be  responsible  for  the  costs  in  the  Supreme  Court.     If 
costs.  there  is  a  judgment  of  reversal,  the  plaintiff  in  error  shall  be  enti- 

tled to  a  iudsrment  for  the  amount  of  such  costs  against  the  defend- 

Judgment  .  '^       ^  ,  .  .  i  •,        ^  i     , 

against  other  ^^t  in  error,  SO  soou  as  the  remitter  is  returned  to  the  Court  below. 

§  4226.   At  the  close  of  each  judgment  on  the  minutes,  the 

Taxing  coats  Clerk  shall  tax  his  costs,  subject  to  revision  by  the  Judges  of  the 

Supreme  Court,  and  the  costs  so  taxed  shall  be  entered  as  a  part 

of  the  remitter. 


PART    IV. 


PENAL       LAAVS. 


TITLE    I. 

PENAL      CODE. 


Division 

1. 

Division 

2. 

Division 

3. 

Division 

4. 

Division 

5. 

Division 

6.- 

Division 

7.- 

Division 

8. 

Division 

9.- 

Division 

10. 

Division  11.- 

Division 

12. 

Division  13. 

Division  14.- 

DlVISION 

15.- 

-^Persons  Capable  of  Committing  Crimes. 

-^Principals  and  Accessories. 

-^Crimes  Against  the  State  and  People. 

'^Crimes  Against  the  Person. 

•^Crimes  Against  the  Mahitation. 

—Crimes  Relative  to  Property. 

■-Forging^  Counterfeiting,  and  Unlawful  Currency* 

--Crimes  Against  Public  Justice. 

—Against  Public  Peace  and  Tranquillity. 

—Against  Public  Morality,  Health,  Police,  etc. 

—Cheats  and  Swindles. 

—Fraudident  or  Malicious  Mischief. 

—Indictments  and  Proceedings  to  Execution. 

—Contempts,  etc.,  and  Attempts  to  Commit  Crimes* 

—Proceedings  in  Preliminary  Courts. 


FIRST    DIVISION. 

PERSONS  CAPABLE  OF  COMMITTING  CRIMES* 


Section. 

Section. 

4227.  Crime-'definitioii. 

4234.  If  insanity  is  pleaded* 

4228.  Intention. 

4235,  Married  women. 

4229.  Infants,  fourteen  years— liable. 

4286.  Drunkenness— when  excuse. 

4230.  Under  ten— incapable. 

4237.  Misfortune  or  accident. 

4231.  Lunatics. 

4238.  Persons  under  fear. 

4232.  Idiots. 

4239.  Felony— what  is. 

4233.  Aiders  and  abettors  instead. 

•^ 

is^---              ■^J\  -         v'^ 

-il/ut  (^tv' 


§  422T.  A  crime  or  misdemeanor  shall  consist  in  a  violation  of    Whatpef^ 
a  public  law,  in  the  commission  of  which  there  shall  be  a  union  or  of  commit^ 

.r  .  (,  T.  .  ..,,.  ting  crimes. 

joint  operation  of  act  and  intention,  or  criminal  negligence. 
§  4228.  Intention  will  be  manifested  by  the  circumstances  con^ 


832 


PT.  4.— TIT.  1.— Penal  Code. 


Division  1. — Persons  Capable  of  Committing  Crimes. 


Intention. 


Infants  of 
fourteen  ca- 
pable. 


Under  ten, 
according  to 
capacit}',  etc. 


Lunatics. 


nected  with  the  perpetration  of  the  offense,  and  the  sound  mind 
and  discretion  of  the  person  accused. 

t  §  4229.  A  person  shall  be  considered  of  sound  mind,  who  is 
neither  an  idiot,  a  lunatic,  or  afflicted  by  insanity,  or  who  hath 
arrived  at  the  age  of  fourteen  years,  or  before  that  age,  if  such 
person  know  the  distinction  between  good  and  evil. 

§  4230.  An  infant  under  the  age  of  ten  years,  whose  tender  age 
renders  it  improbable  that  he  or  she  should  be  impressed  with  a 
proper  sense  of  moral  obligation,  or  be  possessed  of  sufficient 
capacity  deliberately  to  have  committed  the  offense,  shall  not  be 
considered  or  found  guilty  of  any  crime  or  misdemeanor. 

§4231.  A  lunatic  or  person  insane,  without  lucid  intervals, 
shall  not  be  found  guilty  of  any  crime  or  misdemeanor  with  which 
he  or  she  may  be  charged  ;  provided,  the  act  so  charged  as  crimi- 
nal, was  committed  in  the  condition  of  such  lunacy  or  insanity  ; 
but  if  a  lunatic  hath  lucid  intervals  of  understanding,  he  shall 
answer  for  what  he  does  in  these  intervals  as  if  he  had  no  de- 
ficiency. 

§  4232.  An  idiot  shall  not  be  found  guilty  or  punished  for  any 
crime  or  misdemeanor  with  which  he  or  she  may  be  charged. 

§  4233.  Any  person  counseling,  advising,  or  encouraging  an  in- 
fant under  the  age  of  ten  years,  a  lunatic  or  an  idiot,  to  commit 
an  offense,  shall  be  prosecuted  for  such  offense  when  committed, 
as  principal ;  and  if  found  guilty,  shall  suffer  the  same  punish- 
ment as  would  have  been  inflicted  on  said  infant,  lunatic,  or  idiot, 
if  he  or  she  had  possessed  discretion  and  been  found  guilty. 

§  4234.  Whenever  the  plea  of  insanity  is  filed,  it  shall  be  the 
duty  of  the  Court  to  cause  the  issue  on  that  plea  to  be  first  tried 
by  a  special  jury,  and  if  found  to  be  true,  the  Court  shall  order 
the  defendant  to  be  delivered  to  the  Superintendent  of  the  Asy_ 
lum,  there  to  remain  until  discharged  by  the  General  Assembly. 

§  4235.  A  feme  covert,  or  married  woman,  acting  under  the 
threats,  command,  or  coercion  of  her  husband,  shall  not  be  found 
guilty  of  any  crime  or  misdemeanor  not  punishable  by  death  or 
perpetual  imprisonment ;  and,  with  this  exception,  the  husband 
shall  be  prosecuted  as  principal,  and,  if  convicted,  shall  receive 
the  punishment  which  otherwise  would  have  been  inflicted  on  the 
wife,  if  she  had  been  found  guilty ;  provided  it  appears,  from  all 
the  facts  and  circumstances  of  the  case,  that  violent  threats,  com- 


Idiots. 


Their  coun- 
selors and 
instigators 
punisliable 
in  tiieir  stead 


Plea  of  in- 
sanity— how- 
tried. 


Married  wo- 
men—if co- 
erced not 
punishable. 


But  their 
husbands  in 
their  stead. 


mand,  and  coercion,  were  used. 


PT.  4.~TIT.  1.— Penal  Code. 


833 


Division  1. — Persons  Capable  of  Committing  Crimes. 


S4236.  Drunkenness  shall  not  be  an  excuse  for  any  crime  or    Voluntary 

•^  drunkenness 

misdemeanor,   unless  such  drunkenness    was   occasioned   by  the  Q**  ^^^uae. 
fraud,  artifice,  or  contrivance,  of  other  person  or  persons,  for  the  ^^  ^^^^^^  ^ 
purpose  of  having  a  crime  perpetrated ;  and  then  the  person  or  f^lH'  ^^, 
persons  so  causing  said  drunkenness,  for  such  malignant  purpose,  ^^^^^^^• 
shall  be  considered  a  principal,  and  suffer  the  same  punishment  as 
would  have  been  inflicted  on  the  person  or  persons  committing 
the  offense,  if  he,  she,  or  they,  had  been  possessed  of  sound  rea- 
son and  discretion. 

§  4237.  A  person  shall  not  be  found  guilty  of  any  crime  or  mis-    Misfortnjie 

'^  r  G         J  J  or  accident. 

demeanor  committed  by  misfortune  or  accident,  and  where  it  sat- 
isfactorily appears  there  was  no  evil  design,  or  intention,  or  cul- 
pable neglect. 

§  4238.  A  person  committing;  a  crime  or  misdemeanor  under  threats  ^^rsona  act- 

'^  r  o  ing       under 

or  menaces,  which  sufficiently  show  that  his  or  her  life  or  member  was  [gJ^iJe*^^^" 
in  danger,  or  that  he  or  she  had  reasonable  cause  to  believe,  and 
did  actually  believe,  that  his  or .  her  life  or  member  was  in  dan- 
ger, shall  not  be  found  guilty ;  and  such  threats  and  menaces  be- 
ing proved  and  established,  the  person  or  persons  compelling,  by 
said  threats  and  menaces,  the  commission  of  the  offense,  shall  be 
considered  a  principal  or  principals,  and  suffer  the  same  punish- 
ment as  if  he,  she,  or  they,  had  perpetrated  the  offense. 

§4239.  The  term  ''felony,''  when  used  in  this  Code,  shall  be  ^j^^^*"^^^;'! 
construed  to  mean  an  offense,  for  which  the  offender,  on  con  vie-  "felony." 
tion,  shall  be  liable  by  law  to  be  punished  by  death  or  imprison- 
ment in  the  Penitentiary,  and  not  otherwise. 


SECOND   DIVISION. 

PRINCIPALS     AND     ACCESSORIES     IN     CRIME. 


Skction. 

4240.  Principals,  first  and  second  degree. 

4241.  Accessories. 

4242.  Before  the  fact. 


Section. 

4243.  After  the  fact. 

4244.  Punishment  of  each. 

4245.  Of  accessory  after  the  fact. 


§  4240.  A  person  may  be  principal  in  an  offense  in  two  degrees.  Principal  in 
A  principal  in  the  first  degree  is  he  or  she  that  is  the  actor  or  ab- 
solute perpetrator  of  the  crime,     A  principal  in  the  second  degree  sfcond^^di" 
is  he  or  she  who  is  present,  aiding  and  abetting  the  act  to  be  done ;  ^^^^' 
which  presence  need  not  always  be  an  actual  immediate  standing    ^  \   q      V  0  i"^ 


"W  -^-jf 


%%Hk.  ffi  :  «6^>A. 


/)  9^ 


So 


^-,  ... 


834 


PT.  4.— TIT.  1.— Penal  Code, 


Divission  2. — Principals  and  Accessories  in  Crime. 


^■L£t 


%<"t        ^y?  within  sight  or  hearing  of  the  act ;  but  there  may  be  also  a 
constructive  presence,  as  ^yhen  one  commils  a  robbery,  or  murder^ 
or  other  crime,  and  another  keeps  watch  or  guard  at  some  conve- 
nient distance. 
■    ,        ,,    -  §4241.  An  accessory  is  one  w^ho  is  not  the  chief  actor  in  the 

Accessory,  offensc,  nor  present  at  its  performance,  but  is  some  way  concerned 
IXU.S-   ^  ^  1         therein,  either  before  or  after  the  act  committed.   /  /'I^  f  ^  / 0 


\0 


§  4242.  An  accessory  before  the  fact  is  one  who,  being  absent 
Accessory  at  the  time  of  the  crime  committed,  doth  yet  procure,  counsel,  or 

before      the  .  •  if   £  /^       '  /  tk 

fact.   ^        command  another  to  commit  a  crime.  Is'^ff^S^U,     >  ^r^/A   Gw"/ 
§  4243.  An  accessory  after  the  fact  is  a  person  who,  after  full  • 
Accessory  kuowledgo  that  a  crime  has  been  committed,  conceals  it  from  the 

alter  the  fact.  .  ^    ,        ^  . 

magistrate,  and  harbors,  assists,  or  protects  the  person  charged  ' 
with  or  convicted  of  the  crime. 

§  4244.  A  principal  in  the  second  degree  and  an  accessory  be- 
Punishment  forc  the  fact,   cxccpt  whcrc  it  is  otherwise  provided  for  in  this 

of   principal  ^     ,  ,      ,,  .  ^  .    ,  •       t  it* 

in  second  de-  Codc,  shali  rccoive  the  same  punishment  as  is  directed  to  be  m- 
flicted  on  the  principal  in  the  first  degree,  or  perpetrator  of  the 
crime. 

§  4245.  Accessories  after  the  fact,  except  where  it  is  otherwise 

Punishment  ordered  in  this  Code,  shall  be  punished  by  [a  fine,  not  to  exceed 

for   accesso-  i     i    n  •  •  i       •  i 

Ties  after  the  one  thousand  dollars ;  imprisonment,  not  to  exceed  six  months; 
whipping,  not  to  exceed  thirty-nine  lashes ;  to  work  in  a  chain 
gang  on  the  public  works,  not  to  exceed  twelve  months ;  and  any 
one  or  more  of  these  punishments  may  be  ordered  in  the  discre- 
tion of  the  Judge.]  (a) 


C^ 


THIRD  DIYISIOK 

CRIMES  AGAINST   THE  STATE  AND  PEOPLE. 


Section. 

4246.  Treason  and  insurrection. 

4247.  Treason,  first  degree. 

4248.  Treason,  second  degree. 

4249.  Insurrection. 


Sectiox. 

4250.  Attempt  to  incite. 

4251.  Punishment. 

4252.  Insurrectionary  papers. 


§  4246.   Crimes  against  the  State  and  the  people  shall  consist  in 
Insurrection  trcasoii  in    the  first  degree  and  second  degree,   exciting,  or  at- 
tempting to  excite,  an  insurrection. 

§  4247.  Treason  in  the  first  degree  shall  consist  in  levying  war 


(a)  Acts  of  1865-6,  p.  233 


PT.  4.~TIT.  1.— Penal  Code.  835 

Division  3. — Crimes  Against  the  State  and  People. 


ao;amst  the  State  m  the  same,  or  beirip;  adherent  to  the  enemies  of    Treason  in 
the  btate  withm  the  same,  giving  to  them  aid  and  comfort  in  this  grce. 
State  or  elsewhere,  and  thereof  being  legally  convicted  of  open 
deed,  by  two  or  more  witnesses,  or  other  competent  and  credible 
testimony,  or  voluntary  confession ;  these  cases  shall  be  adjudged 
treason  against  the  State  and  people ;  and  when  the  overt  act  of 
treason  shall  be  committed  without  the  limits  of  this  State,  the 
person  charged  therewith  may  be  arrested  and  tried  in  any  County 
in  this  State,  within  the  limits  of  which  he  may  be  found,  and, 
being  thereof  convicted,  shall  be  punished  in  like  manner  as  if 
the  said  treason  had  been  committed  and  done  within  the  limits  of 
said  County.     Treason  in  the  first  decree  shall  be  punished  with 
death,  Lbut  the  punishment  may  be  commuted  in  contormity  with  death. 
the  provisions  of  Section  4257  of  this  Code.]  (a) 

§  4248.  Treason  in  the  second  degree  shall  consist  in  the  know-    Treason  in 

-,  .   ,  .  .  .  second     de- 

ledge  and  concealment  oi  treason,  without  otherwise  assenting  to  gree. 
or  participating  in  the  same.     The  punishment  of  treason  in  the 
second  degree  shall  be  confinement  and  hard  labor  in  the  peni-  four  ye^arT^ 
tentiary  for  four  years. 

§  4249.  [Insurrection  shall  consist  in  any  combined  resistance  to  insurrection 
the  lawful  authority  of  the  State,  with  intent  to  the  denial  thereof, 
when  the  same  is  manifested,  or  intended  to  be  manifested,  by  acts 
of  violence.]  (b) 

§  4250.  [Any  attempt,  by  persuasion,  or  otherwise,  to  induce    Aftempt  to 

,  ...  T'l*  iir»ii-        incite  insur- 

others  to  join  m  any  combined  resistance  to  the  lawiul  authority  reuion. 
of  the  State,  shall  constitute  an  attempt  to  incite  insurrection.]  (b) 

§  4251.  [Any  person  convicted  of  the  ofi'ense  of  insurrection,  punishment 
or  an  attempt  Si^  insurrection,  shall  be  punished  with  death  ;  or,  if  tiori."''^^'^^^^' 
the  jury  recommend  to  mercy,  confinement  in   the  penitentiary 
for  a  term  not  less  than  five  nor  more  than  twenty  years.]  (b) 

§  4252.  [If  any  person  shall  bring,  introduce,  permit,  or  circu-  circulating 
late,  or  cause  to  be  introduced,  circulated,  or  permitted,  or  aid  or  ary  papers, 
assist,  or  be  in  any  manner  instrumental  in  bringing,  introducing, 
circulating,  or  printing  within  this  State,  any  paper,  pamphlet,  cir- 
cular, or  any  writing,  for  the  purpose  of  exciting  insurrection,  riot, 
conspiracy,  or  resistance  against  the  lawful  authority  of  the  State, 
or  against  the  lives  of  the  inhabitants  thereof,  or  any  part  of 
them,  such  person  or  persons  so  offending  shall  be  guilty  of  a 

(a)  Acts  of  1866,  p.  150.    (b)  Acts  of  1866,  pp.  152-3. 


836 


PT.  4.— TIT.  1.— Penal  Code. 


Division  4. — Crimes  and  OflFenses  Against  the  Persons  of  Citizens  or  Individuals. 


Puniahmect  high  misdemeanor,  and  on  conviction  shall  be  punished  bj  con- 
finement in  the  penitentiary  for  a  term  not  less  than  five  nor 
longer  than  twenty  years.]  (a) 


FOURTH   DIVISION. 

CRIMES  AND  OFFENSES  AGAINST  THE   PERSONS  OF  CITIZENS  OR  INDI- 
VIDUALS. 


Section. 

Section. 

4253.  Homicide. 

4281.  Wounding  privates. 

4254.  Murder. 

4282.  Other  mayhems. 

4255.  Express  malice. 

4283.  Rape. 

4256.  Implied  malice. 

4284.  Punishment. 

4257.  Punishment  of  murder. 

4285.  Assault  with  intent. 

4258.  Manslaughter. 

4286.  Sodomy. 

4259.  Voluntary. 

4287,  Punishment. 

4260.  Punishment. 

4288.  Bestiality. 

4261.  Involuntary. 

4289.  Punishment. 

4262.  Punishment. 

4290.  Attempt. 

4263.  Fine  and  imprisonment. 

4291.  Assault. 

4264.  Justifiable  homicide. 

4292.  Punishment. 

4265.  Reasonable  fear. 

4293.  With  intent  to  rob. 

4266.  Invasion  of  property. 

4294.  Punishment. 

4267.  Self-defense. 

4295.  With  intent  to  injure  clothes. 

4268.  Other  cases. 

4296.  Battery. 

4269.  No  punishment. 

4297.  False  imprisonment. 

4270.  Advisers  to  infanticide. 

4298.  Without  process. 

4271.  Concealment  of  child. 

4299.  Under  color  of  process. 

4272.  Fine  and  imprisonment. 

4300.  Kidnapping. 

4273.  Mayhem. 

4301.  Inveigling  children. 

4274.  Specification. 

4302.  Assault  with  intent  to  murder. 

4275.  Tongue— punishment. 

4303.  Stabbing. 

4276.  One  eye— punishment. 

4304.  Shooting. 

4277.  Only  one  eye,  or  both  eyes. 

4305.  Seduction. 

4278.  Nose — punishment. 

4306.  Using  abusive  or  obscene  language 

4279.  Ear  or  lip— punishment. 

4307.  Abandonment  of  children. 

4280.  Castration— punishment. 

§  4253.  Homicide  is  the  killing  of  a  human  being,  of  any  age 
Homicide,  or  scx,  and  is  of  three  kinds — murder,  manslaughter,  and  justifi- 
able homicide. 

§  4254,  Murder  is  the  unlawful  killing  of  a  human  being,  in  the 
Murder,     peacc  of  the  State,  by  a  person  of  sound  memory  and  discretion, 
with  malice  aforethought,  either  express  or  implied. 

§  4255.  Express  malice  is  that  deliberate  intention  unlawfully 
Express  to  take  away  the  life  of  a  fellow-creature,  which  is  manifested  by 
^^^^^'      external  circumstances  capable  of  .proof.  y  (/i/S^ 

16  t    t-^r 


(a)  Acta  of  1866,  pp.  152-3. 


PT.  4.— TIT.  1.— Penal  Code.  837 


Division  4. — Crimes  and  Offenses  Against  the  Persons  of  Citizens  or  Individuals, 
§  4256.  Malice  shall  be  implied  where  no  considerable  provoca-     implied 

^  _  J-  malice. 

tion  appears,  and  where  all  the  circumstances  of  the  killing  show 
an  abandoned  and  malignant  heart. 

5  4257.  The  punishment  of  murder  shall  be  death,  but  may  be    Murder— 

-r.--  •^•ir»i-  -death. 

confinement  in   the  Penitentiary  for  life  in  the  following  cases :  <  (f^  ^       ./*** 
1.  By  sentence  of  the  presiding  Judge,  if  the  conviction  is  founded  ' 

solely  on  circumstantial  testimony,  or  if  the  jury  trying  the  tra-  ^ 

verse  shall  so  recommend.     In  the  former  case,  it  is  discretionary  '% 

with  the  Judge ;  in  the  latter,  it  is  not.     2.  By  act  of  the   Gen- 
eral Assembly. 

^  4258.  Manslaughter  is  the  unlawful  killinor  of  a  human  crea-  Mansiaugiit- 
ture,  without  malice,  either  express  or  implied,  and   without  any    /^fh^   ^Q 
mixture  of  deliberation  whatever,  which  may  be  voluntary,  upon  n.    ^.y^f-^f^-  ^ 
a  sudden  heat  of  passion:  or  involuntary,  in  the  commission  of  an  "S/      S/Tf*  . 
unlawful  act,  or  a  lawful  act,  without  due  caution   and  circum-  \ 

spection. 

§  4259.  In  all  cases  of  voluntary  manslaughter,  there  must  be    voinntsry 

^  .     .  manslaught- 

some  actual  assault  upon  the  person  killing,  or  an  attempt  by  the  ^r. 
person  killed  to  commit  a  serious  personal  injury  on   the  person  ^-^^  '-"'t  ^-^  ^^ 
killing,  or  other  equivalent  circumstances  to  justify  the  excite-  '^'' /  / 

ment  of  passion,  and  to  exclude  all  idea  of  deliberation  or  malice,  ^  ^  ^  -  IS^^ 
either  express  or  implied.  Provocation  by  words,  threats,  men-  ^-^  -  , 
aces,  or  contemptuous  gestures,  shall  in  no  case  be  sufficient  to  free 
the  person  killing  from  the  guilt  and  crime  of  murder.  The  kill- 
ing must  be  the  result  of  that  sudden,  violent  impulse  of  passion, 
supposed  to  be  irresistible  ;  for  if  there  should  have  been  an  inter- 
val between  the  assault  or  provocation  given  and  the  homicide, 
sufficient  for  the  voice  of  reason  and  humanity  to  be  heard,  the 
killing  shall  be  attributed  to  deliberate  revenge,  and  be  punished 
as  murder. 

§  4260.  Voluntary  manslaughter  shall  be  punished  by  confine-  Punishment 
ment  and  labor  in  the   Penitentiary  for  a  term  not  less  than  one 
nor  longer  than  twenty  years. 

§4261.  Involuntary  manslausrhter  shall  consist  in  the  killins:  of,    IhtoIuh- 

•^  *-*  o         tary       maii- 

a  human  being  without  any  intention  to  do  so,  but  in  the  commis-  slaughter. 
sion  of  an  unlawful  act,  or  a  lawful  act,  which  probably  might 
produce  such  a  consequence  in  an  unlawful  manner :  provided^  al- 
ways, that  where  such  involuntary  killing  shall  happen  in  the  com- 
mission of  an  unlawful  act  which,  in  its  consequences,  naturally 
tends  to  destroy  the  life  of  a  human  being,  or  is  committed  in  the 


$'<'^*^-y^^ 


3-^     ^t<^   IM 


888  PT.  4.— TIT.  1.— Penal  Code. 


Division  4. — Crimes  and  Offenses  Against  the  Persons  of  Citizens  or  Individuals. 

prosecution  of  a  riotous  intent,  or  of  a  crime  punishable  bv  death 
or  confinement  in  the  Penitentiary,  the  offense  shall  be  deemed 
and  adjudged  to  be  murder, 

§  4262.  Involuntary  manslaughter,  in  the  commission  of  an  un- 

Punisiiment  ]g^^-f|^|  ^^^^  shall  be  punishcd  by  confinement  and  labor  in  the 

2''7--    /'^A  (-/Jq    penitentiary  for  a  term  not  less  than  one  nor  longer  than  three 

Years, 
t/ 

§  4263.  Involuntary  manslaughter,  in  the  commission  or  per- 
Punisiiment  formancc  of  a  lawful  act,  where  there  has  not  been  observed  ne- 
cessary discretion  and  caution,  shall  be  punished  [as  prescribed  in 
Section  4245  of  this  Code.]  (a) 

§  4264.  There  being  no  rational  distinction  between  excusable 
hoSJid'de.  ^^  ^^^  justifiable  homicide,  it  shall  no  longer  exist.  Justifiable  homi- 
cide is  the  killing  of  a  human  being  by  commandment  of  the  law 
in  execution  of  public  justice ;  by  permission  of  the  law  in  ad- 
vancement of  public  justice  ;  in  self-defense,  or  in  defense  of 
habitation,  property,  or  person,  against  one  who  manifestly  intends, 
or  endeavors  by  violence  or  surprise,  to  commit  a  felany  on  either; 
or  against  any  persons  who  manifestly  intend  and  endeavor,  in  a 
riotous  and  tumultuous  manner,  to  enter  the  habitation  of  another 
for  the  purpose  of  assaulting  or  off'ering  personal  violence  to  any 
person  dwelling  or  being  therein. 

§  4265.  A  bare  fear  of  any  of  those  offenses,  to  prevent  which 
a/^"excuse^  ^^^^  homicidc  is  alleged  to  have  been  committed,  shall  not  be  suffi- 
Suabie!  ^^^"  cient  to  justify  the  killing.     It  must  appear  that  the  circumstan- 
ces were  sufficient  to  excite  the  fears  of  a  reasonable  man,  and 
%}^-^^   j^       that  the  party  killing  really  acted  under  the  influence  of  those 
/  fears,  and  not  in  a  spirit  of  revenge. 

§4266.  If,    after   persuasion,    remonstrance,    or    other    gentle 
deftise^^  ^^  measures  used,  a  forcible  attack  and  invasion  on  the  property  or 
habitation  of  another  can  not  be  prevented,  it  shall  be  justifiable 
homicide  to  kill  the  person  so  forcibly  attacking  and  invading  the 
property  or  habitation  of  another ;  but  it  must  appear  that  such 
killing  was  absolutely  necessary  to  prevent  such  attack  and  inva- 
.    sion,  and  that  a  serious  injury  was  intended,  or  might  accrue  to 
the  person,  property,  or  family  of  the  person  killing. 
^  §  4267.  If  a  person  kill  another  in  his  defense,  it  must  appear 

-/    ./t    /^'V       that  the  danger  was  so  urgent  and  pressing   at  the  time  of  the 

(a)  Acts  of  1865-6,  p.  233. 


PT.  4.— TIT.  1.— Penal  Code.  839 

Division  4. — Crimes  and  Offenses  Against  the  Persons  of  Citizens  or  Individuals, 
killino;,  that  in  order  to  save  his  own  life,  the  killing  of  the  other     The  dan- 

^     .  Ill  ^^^'  ™"st  bo 

was  absolutely  necessary;  and  it  must  appear,  also,  that  the  per- urgent. 

son  killed  was  the  assailant,  or  that  the  slayer  had  really  and  in """ ^.^^'  A' 


<r''  ^6^cj 


good  faith  endeavored  to  decline  any  further  struggle  before  the    ^  \      / 

mortal  blow  was  given.  ^      '     / 

§4268.  All  other  instances  which  stand  upon  the  same  footing     Another 

■"■  ^         ^  *-*  instances. 

of  reason  and  justice  as  those  enumerated,  shall  be  justifiable 
homicide. 

§  4269.  The  homicide  appearinsi;  to  be  justifiable,  the  person  in- ,  Justifiable 

^  1  1  o  «/  7  i  homicide  not 

dieted  shall,  upon  the  trial,  be  fully  acquitted  and  discharged.        imnished. 

§  4270.  If  any  person  shall  counsel,  advise,  or  direct  a  woman   Advisersto 
to  kill  the  child  she  is  pregnant  or  goes  with,  and  after  she  is  de- 
livered of  such  child,  she  kill  it,  every  such  person  so  advising  or 
directing,  shall  be   deemed  an  accessory  before  the  fact  to  such 
murder,  and  shall  have  the  same  punishment  as  the  principal. 

§4271.  The  constrained  presumption  arising  from  the  conceal-  Conceal- 
ment of  tbe  death  of  any  child,  that  the  child  whose  death  is  con-  child's  death 
cealed,  was  therefore  murdered  by  the  mother,  shall  not  be  suffi- 
cient or  conclusive  evidence  to  convict  the  person  indicted  of  the 
murder  of  her  child,  unless  probable  proof  be  given  that  the  child 
was  born  alive,  nor  unless  the  circumstances  attending  it  shall  be 
such  as  shall  satisfy  the  minds  of  the  jury  that  the  mother  did 
willfully  and  maliciously  destro}^  and  take  away  the  life  of  such 
child. 

§  4272.  If  any  woman  shall  conceal  or  attempt  to  conceal  the  Punishment. 
death  of  any  issue  of  her  body,  male  or  female,  which,  if  it  were 
born  alive,  would,  by  law,  be  a  bastard,  so  that  it  may  not  come 
to  light  whether  it  was  murdered  or  not,  every  ^such  mother  being 
convicted  thereof,  shall  be  punished  [as  prescribed  in  Section  4245 
of  this  Code.]  (a) 

§  4273.  Mayhem  shall  consist  in  unlawfully  depriving  a  person    Mayhem. 
of  a  member,  or  disfiguring,  or  rendering  it  useless.  S^'^A.  i^O 

§  4274.  If  any  person  shall   unlawfully,  and  without  sufficient     in  what  it 

consists. 

cause  or  provocation,  cut  out  or  disable  the  tongue,  put  out  an  eye, 
slit  or  bite  the  nose,  ear  or  lip,  or  cut  or  bit  ofi"  the  nose,  ear  or 
lip,  or  castrate,  or  cut,  or  bite  off,  or  disable  any  other  limb  or 
member  of  another,  with  an  intention  in  so  doing  to  maim  or  dis- 
figure such  person,  or  shall  voluntarily,  maliciously,  and  of  pur- 

(a)  Acts  of  .1865-6,  p.  233. 


840  PT.  4.— TIT.  1.— Penal  Code. 


Division  4. — Crimes  and  Offenses  Against  the  Persons  of  Citizens  or  Individuals. 

pose,  while  fighting  or  otherwise,  do  any  of  these  acts,  every  such 
person  shall  be  guility  of  mayhem. 

§  4275.  A  person  convicted  of  cutting  out  the  tongue,  with  the 

Cutting  the  intention,  or  voluntarily,  or  maliciously,  as  expressed  in  the  pre- 

penitentiary  cediuo^  Scction,  shall  be  Dunished  by  confinement  and  labor  in  the 

five     to  fif-  °      _  '       _  ^  -^     _ 

teen  years,   penitentiary  for  life.     A  person  convicted  of  disabling  the  tongue, 

with  the  intention,  or  voluntarily,  or  maliciously,  as  expressed  in 

the  preceding  Section,  shall  be  punished  by  confinement  and  labor 

in  the  penitentiary  for  a  term  not  less  than  five  years,  nor  more 

^     ,than  fifteen  years. 

3^/0  H^45§  4276.  A  person  convicted  of  putting  out  an  eye  with  the  in- 

,  Puttingout  tention,  or  voluntarily,  or  maliciously,  as  before  expressed,  in  fight 

'Mk      punishment,  or  Otherwise,  shall  be  punished  [as' prescribed  in  Section  4245  of 

i  this  Code.]  (a) 

*  §  4277.  A  person  convicted  of  putting  out  the  eyes  of  another, 

Both  eyes  or  the  cyc  of  another  having  but  one  eye,  with  a  similar  intention, 

eye  — peni-  or  voluntarily,  or  maliciously,  while  fighting,  or  otherwise,  shall 

tentiary   for  •ii-i  n  iii-i  •• 

life.  be  punished  by  confinement  and  labor  m  the  penitentiary  for  and 

during  the  term  of  his  or  her  natural  life. 

§  4278.  A  person  convicted  of  slitting  or  biting  the  nose,  ear  or 
Slitting  or  lip  of  another,  with   the  intention,  or  voluntarily,  or  maliciously, 
punisliment.  as  before  expressed,  while  fighting,  or  otherwise,  shall  be  punished 
[as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4279.  A  person  convicted  of  cutting   or  biting  ofi"  the  nose, 
Cutting  or  ear,  or  lip  of  another,  with  the  intention,  or  voluntarily,  or  mali- 
nosefear,  or  ciously,  as  bcforc  cxpresscd,  while  fighting  or  otherwise,  shall  be 
ment'         punishcd  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4280.  A  person  convicted  of  the  crime  of  castrating  another, 
^Castration  -^ith  the  intention,  or  voluntarily,  or  maliciously,  as  before  ex- 
pressed, while  fighting  or  otherwise,  shall  be  punished  with  death, 
'■^'^  "  [but  the  punishment  may  be  commuted  in  conformity  with  the 

provisions  of  Section  4257  of  this  Code.]  (b) 

§  4281.  A  person  convicted  of  willfully  and  maliciously  injuring, 

Wounding  wounding,  or  disfiguring  the  private  parts  of  another,  with  the  in- 

gree— Vni-  tcntiou   aforcsaid,   whilst   fighting  or  otherwise,    which  injuring, 

tentiary  five  ,.  t    n  •  i  •iiii 

to  fifteen  woundmg  or  disnguring,  do  not  amount  to  castration,  shall  be 
punished  by  confinement  and  labor  in  the  penitentiary  for  a  term 
not  less  than  five  years  nor  longer  than  fifteen  years. 

(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1866,  p.  150. 


PT.  4.— TIT.  1.— Penal  Code.  841 


Division  4. — Crimes  and  Offenses  Against  the  Persons  of  Citizens  or  Individuals. 

§4282.  A  person  convicted  of    cutting  or  biting  off,  or   dis-  other may- 
abling  any  limb  or  member  of  another,  not  hereinbefore  designat- 
ed, with  the  intention,  or  voluntarily,  or  maliciously,  as  before  ex- 
pressed, while  fighting  or  otherwise,  shall  be  punished  [as  pre- 
scribed in  Section  4245  of  this  Code.]  (a)  . 

§4283.  Rape  is  the  carnal  knowledge  of  a  female,  forcibly  and    ^^^p®- 
against  her  will. 

§  4284.  [The  crime  of  rape  in  this  State  shall  be  punished  with  Punisiiment 
death,  unless  the  defendant  is  recommended    to    mercy   by  the 
jury,  in  which  case  the  punishment  shall  be  the  same  as  for  an  as-  p^^y  ^ 
sault  with  intent  to  commit  a  rape.]  (b)  ,«y    fuJC-  ^f¥^' 

§  4285.  An  assault  with  intent  to  commit  a  rape  shall  be  pun-        Assault 

r-T/\  '1  ••  with    intent 

ished  by  an  imprisonment  at  [hard]  (b)  labor  m  the  penitentiary  of  rape.  j,  ^ 

[of  this  State]  (b)  for  a  term  not  less  than  one  year  nor  longer  than   "  -^    '"^^-  ^^^, 

[twenty]  (b)  years.  .  .  .        /  Z/    \     "40/^ 

§4286.  Sodomy  is  the  carnal  knowledge  and  connection  against    Sodomy. 
the  order  of  nature,  by  man  with  man,  or  in  the  same  unnatural 
manner  with  woman. 

§  4287.  The  punishment  of  sodomy  shall  be  imprisonment  at  a^^forufe  ^" 
labor  in  the  penitentiary  for  and  during  the  natural  life  of  the 
person  convicted  of  this  detestable  crime. 

§  4288.   Bestiality    is    the    carnal   knowledge    and    connection  Bestiality. 
against  the  order  of  nature  by  man  or  woman  in  any  manner  with 
a  beast. 

§  4289.  The  punishment  of  bestiality  shall  be  imprisonment  at     Penitenti- 
labor  in  the  penitentiary  for  and  during  the  natural  life  of  the 
person  convicted  of  this  detestable  crime. 

§  4290.  An  attempt  to  commit  sodomy  or  bestiality  shall  be    Attempt. 
punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4291.  An  assault  is  an  attempt  to  commit  a  violent  injury  on    Assauit^v/^/,*^c?n 
the  person  of  another. 

§  4292.  A  bare  assault  shall  be  punished  [as  prescribed  in  Sec-  Punishment. 
tion  4245  of  this  Code.]  (a)  ^  ^  4^  ^^^ 

§4293.  An  assault  with  intent  to  murder,  by  using  any  weapon    .   Assault.    ^ 
likely  to  produce  death,  shall  be  punished  by  imprisonment  and  to  murder—    *     '  i 

>'  r  '  J.  %/  I  penitentiary 

labor  in  the  penitentiary  for  a  term  not  less  than  two  years  nor^^^^^Q  ten 
longer  than  ten  years.  ^^  '■' $%   ^>^| 

§  4294.  An  assault  with  intent  to  rob  is  where  any  person  or        *.  J 

(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1866,  p.  151. 


842  PT.  4.— TIT.  1.— Pexal  Code. 


Division  4. — Crimes  and  Offenses  Against  the  Persons  of  Citizens  or  Individuals, 


(at^ 


Assault  with  persoDS  shall,  With  any  offensive  or  dangerous   weapon  or  mstru- 

intenttorob.  ^  i         f   n  t  t    •  i  i  i  tut 

ment,  unlawiulij  and  maliciously  assault  another,  or  shall,  by 
menaces,  or  in  and  by  any  forcible  or  violent  manner,  demand  any 
money,  goods,  or  chattels,  of  or  from  any  other  person  or  persons, 
with  intent  to  commit  robbery  upon  such  person  or  persons. 

§  4295.  A  person  convicted  of  an  assault  with  intent  to  rob  shall 
Penitentiary  be  Dunishod  bv  Confinement  and  labor  in  the  penitentiary  for  a 

two   to   four  ^  "^  i.  J 

years.  term  uot  Icss  than  two  years  nor  more  than  four  years. 

§  4296.  An  assault  with  an  intent  to  spoil  or  injure  clothes  or 

Assault  garments,  is  where  any  person  or  persons  shall,  at  any  time,  will- 

ciothes—  fully  and  m.alicioasly  assault  any  person  or  persons,  with  an  intent 

punishment.  "^  .  "^  "^    ^  . 

to  tear,  spoil,  cut,  burn,  or  deface,  and  shall  tear,  spoil,  cut,  burn, 

or  deface  the  garments  or  clothes  of  such  person  or  persons ;   and 

every  such  offender,  being  thereof  convicted,  shall  be  punished  [as 

prescribed  in  Section  4245  of  this  Code.]  (a) . 

I  §  4297.  Battery  is  the  unlawful  beating  of  another^_  and  sjiall 

Battery,    be  punishcd  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

,    ■  §  4298.  False  imprisonment  is  a  violation  of  the  personal  liberty 

False  im-  of  a  porson,  or  citizen,  and  consists  in  confinement  or  detention 

:*~>y    e(  pnsonment.  . 

\  )        S^^  ^^  Buch.  person,  w^ithout  sufiicient  legal  authority. 

'^yj/L,  J. /J  ,Ji^       §4299.  Any  person  who  shall  arrest,  confine,  or  detain  a  per- 
Faise  im-  son  or  citizcn,  without  process,  warrant,  or  legal  authority  to  lus- 

prisonment,  ^  7  ^         r  7  70  ^  o     ^ 

—fine,  etc.  tify  it,  shall  bc  punished  [as  prescribed  in  Section  4245  of  this 
Code.]  (a) 

§  4300.  The  arrest,  confinement,  or  detention  of  a  person  or 
When  under  citizon,  by  the  warrant,  mandate,  or  process  of  a  masristrate,  beinsr 

color  of  legal  '      »/  7  '  i  o  '  o 

process.  manifestly  illegal,  and  showing  malice  and  oppression,  the  said 
magistrate  shall  be  removed  from  ofiice;  and  such  magistrate,  and 
all  and  every  person  and  persons,  knowingly  and  maliciously  con- 
cerned therein,  shall  be  punished  by  fine  and  imprisonment  in  the 
common  jail  of  the  County,  or  imprisonment  and  labor  in  the 
penitentiary  for  any  time  not  less  than  one  nor  more  than  tw^o 
years,  at  the  discretion  of  the  Court.* 

§  4301.  Kidnapping  is  the  forcible  abduction  or  stealing  away 
Kidnap:  of  any  person,  without  lawful  authority,   or   warrant,   from  this 

ping  — peni-  ./     i  7  ./  7  7 

tentiaryfour  State  or  any  County  thereof,  and  sending  or  conveying  such  per- 

years.  gon  boyond  the  limits  of  said  State  or  County  against  his  or  her 

will.     Each  and  every  person  who  shall  be  guilty  of  this  crime, 

*See  Section  4608.    (a)  Acts  of  1865^6,  p.  233. 


PT.  4-— TIT.  1.— Penal  Code.  848 


Division  4. — Crimes  and  Offenses  Ao^ainst  the  Persons  of  Citizens  or  Individuals. 


"-to 


and  be  thereof  laAvfullj  convicted,  shall  be  punished  by  imprison- 
ment and  labor  in  the  penitentiary  for  any  time  not  less  than  four 
years  nor  longer  than  seven  years. 

§  4302.  If  any  person  shall  forcibly,  maliciously,  or  fraudu-  ^,,i^[5.r^*ehn^ 
lently  lead,  take,  or  carry  away,  or  decoy,  or  entice  away,  out  of  j'j^JJ^y^f^JJJp 
the  limits  of  this  State,  or  any   County  thereof,  any  child  under  yJJ^rs.  ^^"^^^ 
the  age  of  twelve  years,  from   its  parent  or  guardian,  or  against 
his,  her,  or  their  will  or  wills,  and  without  his,  her,  or  their   eon- 
sent  or  consents,  such  person  so  offending  shall  be  indicted  for 
kidnapping,  and  on  conviction,  shall  be  punished  by  imprisonment 
and  labor  in  the  penitentiary  for  any  time  not  less  than  four  nor 
more  than  seven  years. 

§  4303.  Any  person  who  shall  be  guilty  of  the  act  of  stabbins;    stabbing— 

"  ^^    A  c  ./  o  punishment. 

another,  except  in  his  own  defense,  or  other  circumstances  of  JU-S-^  "n  ^g^^<^ / 
tification,  with  a  sword,  dirk,  or  knife,  or  other  instrument  of  the-  ^^  ?.-.  - 
like  kind,  shall,  on  conviction,  be  punished  [as  prescribed  in  Sec-^  ^/  ,  ^  ,„  . 
tion  4245  of  this  Code;]  (a)  'provided^  always^  that  if  such  stab-  P^viso.  ^ 
bing  shall  produce  death,  the  offender  shall  be  guilty  of  murder  or 
manslaughter,  according  to  the  facts  and  circumstances  of  the  case  ;  -^  •»-  ^ 
or  if  such  stabbing  shall  not  produce  death,  and  the  facts  and  cir- 
cumstances show  that  it  was  the  intention  of  the  person  stabbing  to 
commit  the  crime  of  murder,  then  and  in  such  case,  the  offender  shall 
be  guilty  of  the  offense  of  an  assault  with  intent  to  commit  murder. 

§4304.  Any  person  who  shall  be  guilty  of  the  offense  of  shoot- ^^^JJ^^j^"^^i"° 
ing  at  another  (except  in  his  own  defense  or  under  circumstances  Vv  ^^         ^,. 
of  justification  according  to  the  principles  of  this   Code),  with  a  ^ 

gun,  pistol,  or  other  instrument  of  the  like  kind,  shall  be  punished  -     "  ''  .- 

by  a  fine  not  exceeding  one  thousand  dollars,  and  imprisonment 
in  the  common  jail  not  less  than  twelve  months,  or  confinement  in 
the  penitentiary  not  less  than  one  nor  more  than  four  years,  in  the 
discretion  of  the  Court.* 

§  4305.  If  any   person   shall,  by  persuasion   and  promises   of  Seduction 
marriage,  or  other  false  and  fraudulent  means,  seduce  a  virtuous  "  ^  JA4Hi''    ^  f* 
unmarried  female,  and  induce  her  to  yield  to  his  lustful  embraces,  ■>  ,^ /l^'  u  "/  / 
and  allow  him  to  have  carnal  knowledge  of  her,  such  person,  on  t^  ,/*         ,      . 
conviction,  shall  be  punished  by  imprisonment  and  labor  in  the 
penitentiary  for  a  term  not  less  than  two  nor  longer  than  twenty  /  O^^^-^^  Ox^ 
years.     The  prosecution  may  be  stopped  at  any  time  by  the  mar-/^^.^  ^.    ^  ^ ^ 

(a)  Acts  of  1865-6,  p.  333.    *  See  Section  4608, 


844 


PT.  4.--TIT.  1.— Penal  Code. 


Division  5. — Crimes  and  Offenses  Against  the  Habitations  of  Persons. 

riage  of  the  parties,  or  a  bona  fide  and  continuing  offer  to  marry 
on  the  part  of  the  seducer. 

§  4306.  Any  person  who  shall,  without  provocation,  use  to  or  of 
Using abii-  another,  and  in  his  presence,  opprobrious  words,  or  abusive  lan- 

Bive   or   ob-  _  ■*■  '      t.  t. 

Ian-  guage  tending  to  cause  a  breach  of  the  peace,  or  who  shall  in  like 
manner,  use  obscene  and  vulgar  language  in  the  presence  of  a 
female,  shall  be  guilty  of  a  misdemeanor,  and  on  conviction  shall 
i  be  [punished  as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4307.  [If  any  father  shall  willfully  and  voluntarily  abandon 
Abandon-  bis  child,  or  children,  leaving  them  in  a  dependent   or  destitute 

ment  of  cbil-  ^    ^      '  -'  °  ^  ^ 

condition,  such  father  shall  be  guilty  of  a  misdemeanor,  and  on 
conviction  thereof  shall  be  punished  as  for  other  misdemean- 
ors.] (b)  * 


dren. 


FIFTH    DIVISION. 


CRIMES   AND   OFFENSES   AGAINST   THE    HABITATIONS   OF   PERSONS. 


Section. 

4308.  Crimes  against  habitations. 

4309.  Arson. 

4310.  In  a  town. 

4311.  Elsewhere. 

4312.  Attempt. 

4313.  Out-house  not  in  town. 

4314.  Setting  fire  to. 

4315.  Burning — what  is. 


Section. 

4316.  Setting  fire— what  is. 

4317.  Burning  railroad  bridge. 

4318.  Arson — day  and  night. 

4319.  Causing  death. 

4320.  Burglary. 

4321.  In  the  day. 

4322.  In  the  night. 


Crimes 

against  hab- 
itations. 


§  4308.   Crimes  against  the  habitations  of  individuals  shall  con- 
sist of — 1st,  Arson  ;  2d,  Burglary. 

§  4309.  Arson  is  the  malicious  and  willful  burning  of  the  house 

Arson,     or  out-housc  of  another.        t^t-' 

^1(K.  /^^  §4310.  The  willful  and  malicious  burning,  or  setting  fire  to,  or 

Death,  if  attempting  to  burn  a  house  in  a  city,  town,  or  village,  shall  be 

village.        punished  with  death,  [but  the  punishment  may  be  commuted  in 

conformity  with  the  provisions  of  Section  4257  of  this  Code.]  (c) 

§4311.  The  willful  and  malicious  burning  of  [an  occupied]  (d) 

Elsewhere  dwelljnar-house  of  another  on  a  farm  or  plantation,  or  elsewhere, 

—  penitenti-  ^  i.  '  ' 

J^y  gfi^e^  *'' shall  be  punished  [with  death]  (d)  [but  the  punishment   may  be 
years.         commutcd  in  conformity  with  the  provisions  of  Section  4257  of 
this  Code.]  (c) 


(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1866,  p.  151.     *  See  Section  4608. 
(c)  Acts  of  1866,  p.  150.    (d)  Acts  of  1865-6,  p.  232. 


PT.  4.— TIT.  1.— Penal  Code.  845 


Division  5. — Crimes  and  Offenses  Against  the  Habitations  of  Persons. 


§  4312.  Setting  fire  to  the  dwellinff-honse  of  another,  with  in-    Attempt— 

,,  ^  ,.  11/  penitentiary 

tent  to  burn  the  same,  on  a  farm,  or  plantation,  or  elsewhere  (not  three  to  ssrv- 

en  years. 

in  a  city,  town,  or  village),  shall  be  punished  by  imprisonment  and 
labor  in  the  penitentiary  for  a  term  not"  less  than  three  years,  nor 
longer  than  seven  years. 

§  4313.  The  willful  and  malicious  burning  of  an  out-house  of  an-    Bumingof 

*-'  an  out-house 

other,  such  as  a  barn,  stable,  or  any  other  house  (except  the  dwelling-  °ot  in  town, 
house)  on  a  farm  or  plantation,  or  elsewhere,  (not  in  a  city,  town, 
or  village),  shall  be  punished  by  imprisonment  and  labor  in  the 
penitentiary  for  any  term  not  less  than  two  years  nor  more  than 
seven  years. 

§4314.   Setting  fire  to  an  out-house  of  another,  as  described  in    settingfire 

*-'  .  .  to  such  out- 

the  preceding   Section,  shall   be  punished  by  imprisonment  and  ^^nse. 
labor  in  the  penitentiary  for  any  term  not  less  than  one  year  nor 
more  than  three  years. 

§  4815.  The  crime  of  burning  shall  be  complete  where  the  house  ^e^^rni?'^^^ 
is  consumed  or  generally  injured. 

§  4316.  The  offense  of  setting  fire  to  a  house  shall  be  complete    whatshaii 

I'll  .,...l>e      setting 

when  any  attempt  is  made  to  burn  it,  though  no  material  injury  is  fire. 
the  consequence. 

§  4317.   [The  willful  or  malicious  burning,  or  attempting  to  burn.       Burning 
any  railroad  bridge  within  this  State,  shall  be  deemed  and  adjudged  bridges. 
arson,  and  shall  be  punished  with  death ;  but  the  punishment  may 
be  commuted  in  conformity  with  Section  4257  of  this  Code.]  (a) 

§4318.  Arson  in  the  day  time  (except  in  a  city,  town,  or  vil-      'J"^"^^ 
lage)  shall  be  punished  by  a  shorter  period  of  imprisonment  and  nighttime. 
labor  than  arson  committed  in  the  night. 

§  4319.  Arson  which  produces  the  death  of  any  person,  shall  be  Arson  caus- 

■^  .     .  ing  death. 

punished  by  the  death  of  the  person  or  persons  committing  the 
arson ;  [but  the  punishment  may  be  commuted  in  conformity  with    .  ^ 

the  provisions  of  Section  4257  of  this  Code.]  (b)  J-4/-^^i.  "f  ^'^ 

K^vV-    §  4320.  [Burglary  is  the  breaking  and  entering  into  the  dwell-  Burgiaryy   ^  *  / 
{f/^ymg,  mansion,  or  store-house,  or  other  place  of  business  of  another,     *^  ^' 
/  where  valuable    goods,  wares,  produce,  or  any  other  article  of 

value  are  contained  or  stored,  with  intent  to  commit  a  felony  or  ^  May  be  in 

'  t/  day  or  night. 

larceny.     All  out-houses  contiguous  to  or  within  the  curtilage  or 
protection  of  the  mansion  or  dwelling-house,  shall  be  considered  X  > . 
as  parts  of  the  same.     A  hired  room  or  apartment  in  a  public  J-unf^r 

(a)  Acts  of  1861,  p.  69,  and  Acts  of  1866,  p.  150.    (b)  Acts  of  1866,'p.  150. 


846 


PT.  4.— TIT.  1,— Penal  Code. 


Division  6. — Crimes  and  Offenses  Relative  to  Property, 


u        tavern,  inn,  or  boarding-house,  shall  be  considered  as  the  dwelling- 
/         house   of  the  person  or  persons  occupying  or  hiring   the   same. 
Eurglary  may  be  committed  in  the  day  or  night.]  (a) 

§  4321.  Burglary  in  the  day  time  shall  be  punished  by  irapris- 
in  the  day—  onmont  in  the  penitentiary  for  any  time  not  less  than  three  years 

penitentiary  r  «/  »/  o/ 

^^arV^  ^^®  nor  longer  than  five  years. 

§4322.  Burglary  in  the  night  shall  be  punished  [with  death; 
j"  the  night  1311^  the  punishment  may  be  commuted  in   conformity    with  the 
provisions  of  Section  425T  of  this  Code.]  (b) 


^"ff 


|jr" 


SIXTH   BiyfsiOK 

OF  CRIMES  AND  OFFENSES  RELATIVE  TO  PROPERTY. 


SSCTIOX. 

Section. 

4323.  Robbery. 

4349.  Entering  with  intent. 

4324.  By  force. 

4350.  Breaking  With  intent. 

4325.  By  fear. 

4351.  Breaking  and  entering. 

4326.  Larceny. 

4352.  Public  buildings. 

4327.  Simple  larceny. 

4353.  Hut,  tent,  etc. 

4328.  Of  horse. 

4354.  Seizures  by  pretended  Gov't  agents 

4329.  Indictment. 

4355.  Public  or  bank  offices. 

4330.  Punishment. 

4356.  Bailee — fraudulently  converting. 

4331.  Of  cattle. 

4357.  Clerks,  agents,  etc. 

4332.  Indictment. 

4358.  Any  other  agent. 

4333.  Punishment. 

4359.  Violating  bank  charter. 

4334.  Of  hogs. 

4360.  Presumption  against  officers. 

4335.  Punishment. 

4361.  Bank  insolvency. 

4336.  Other  animals. 

4362.  Fraudulent  transfers-. 

4337.  Altering  marks. 

4363.  Purchasing  at  discount. 

4338.  Skinning  cattle. 

4364.  Fraudulent  dividends. 

4339.  Larceny  of  deeds,  etc. 

4365.  Purchasing  shares,  etc. 

4340.  Of  bonds,  notes,  etc. 

4366.  Unlawful  mining. 

4341.  Of  fixtures. 

4367.  Erecting  machinery. 

4342.  From  distressed  vessels. 

4368.  Embezzling  County  funds. 

4343.  Other  larcenies. 

4339.  Fraudulent  levies. 

4344.  Larceny  from  the  person. 

4370.  Intruding  on  1-ailroad. 

4345.  Penitentiary. 

4371.  Obstructing  railroad,  etc. 

4346.  Secret  taking. 

4372.  Injuring  telegraph. 

4347.  Larceny  from  house. 

4373.  Acts  of  trespass  indictable. 

4348.  Punishment. 

4374.  Illegal  hunting. 

§  4823.  Robbery  is  the  wrongful,  fraudulent,  and  violent  taking 
Befiniiion  of  money,  goods,  or  chattels,  from  the  person  of  another  by  force 
or  intimidation,  without  the  consent  of  the  owner. 

§  4324.  Robbery  by  open  force  or  violence  shall  be  punished  by 
violence— iniprisonment  and  labor  in  the  penitentiary  for  any  time  not  less 

penitentiary         ^  l  ,J  ^ 

ty'^years'^'^"  than  four  years  nor  longer  than  twenty  years. 


(a)  Acts  of  1866,  pp.  151-S.  (b)  Acts  of  186G,  pp.  150-1-3 


ii 


PT.  4.— TIT.  1.— Penal  Code.  847 

H  A   A.  Division  6. — Crimes  and  Offenses  Relative  to  Property. 

^4325.  Robbery  by  intimidation,  or  without   usinsr  force  and    Byintimi 

'111-  •  1   T    1  •         1  •     f^ation— two 

violence,  shall  be  punished  bj  imprisonment  and  Ubor  m  the  peni-  to  five  years. 


tentiary  for  any  time  not  less  than  two  years  nor  longer  tban  five 
years.  ...  ,." 

§  4326.  Larceny,  or  theft,  as  contradistinguished  from  robbery  J^?^^^7®J^ 
by  violence,  force,  or  intimidation,  shall  consist  of — -Ist.  Simple  larceny. 
theft  or  larceny.     2d.    Theft  or  larceny   from   the  person.     3d.        /         -  C 
Theft  or  larceny  from  the  house.     4th.   Theft  or  larceny  after  a     /j^  C^^^ 
trust  or  confidence  has  been  delegated  or  reposed.  ^-H^      7~~    V>  / 

,       §4327.  Simple  theft,  or  larceny,  is  the  wronfi^ful  and  fraudulent       simple      i  \^ 

/  "^  r»     1  -•         larceny.  (b  J\J 

/    taking  and  carrying  away,  by  any  person,  of  the  personal  gooas  ^ ^     ^y      ^    * 
of  another,  with  intent  to  steal  the   same.     The  thief  may  be  in-      «     *     >^!?2  * 
dieted  in  any  County  in  which  he  may  carry  the  goods  stolen.         <^    ^'^■tin^^'i^ 

§4328.  Horse  stealing  shall  be  denominated  simple  larceny,    of  horses.  ^ 

and  the  term  "horse"  shall  include  mule  and  ass,  and  each  ani- 
mal of  both  sexes,  and  without  regard  to  the  alterations  which 
may  be  made  by  artificial  means. 

§4329.  The  ofi"ense  shall,  in  all  cases,  be  charged  as  simple  lar-  IIo^ycharg- 

,  ,       .     ,.  ed    and    de- 

ceny,  but  the  indictment  shall  designate  the  nature,  character,  and  scribed, 
sex  of  the  animal,  and  give  some  other  description  by  which  its 
identity  may  be  ascertained. 

§4830.  The  stealing  of  a  horse  or  mule  shall  be  punished  [with  Punishment. 
death,  unless  recommended  by  the  jury  to  the  mercy  of  the  Court,  ^"^-^^  ^f^fSi' 
in  which  event  the  punishment  shall  be]  (a)  confinement  and  la-  {^^J      ji^l    l^ 
bor  in  the   Penitentiary  for  any  time  not  less  than  two  years  nor     ::siM'^M^ 
longer  than  five  years. 

§4331.   Cattle  stealing  shall  be  denominated  simple  larceny,  ,cattie steal- 
and  be  so  charged  in  the  indictment,  and  shall  include  the  theft 
or  larceny  of  any  horned  animal  or  animals,  and  all  animals  hay- 
ing the  hoof  cloven,  except  hogs. 

§  4332.  The  indictment  shall  sufficiently  describe  the  animal  or  indictment. 
animals  falling  under  the  description  of  cattle  in  the  preceding 
Section,  so  that  it  or  they  may  be  ascertained   and  identified  by 
the  owner  or  owners  thereof. 

§  4333.  The  stealing  of  one  or  more  animals  falling  under  the  Punighment, 
above  description  of  cattle  [shall    be  punished  as  prescribed  in 
Section  4245  of  this  Code.]  (b) 

§  4334.  The  stealing  of  a  hog  or  hogs  is  simple  larceny,  and 

(a)  Acts  of  1865-6,  p.  232,    (b)  Acts  of  1865-6,  p.  233. 


848  PT.  4.— TIT.  1.— Penal  Code. 

Division  6. — Crimes  and  Offenses  Relative  to  Property. 
Hog  steal-  shall  be  so  charfi-ed  in  the  indictment,  and  the  hosj  or  ho^s  so  de- 

ing.  .  .  o  o 

scribed  that  it  or  they  may  be  identified  by  the  owner. 

§  4335.  The  punishment  of  hog  stealing  [shall  be  as  prescribed 
Punishment,  in  Scction  4245  of  this  Code.]  (a) 

§  4336.  All  other  domestic  animals  which  are  fit  for  food,  and 
otheran-  also  a  dog,  may  be  subjects  of  simple  larceny;  and  any  person  or 
persons  who  shall  steal  any  such  animal  or  animals  [shall  be  pun- 
ished as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4337.  If  any  person  or  persons   shall  mark   and  brand,   or 
Altering  mark  or  brand,  any  animal  or  animals  before  mentioned,  or  alter 

brands       or  '         *'  ^ 

marks  same  or  change  the  mark  or  marks,  or  brand  or  brands,  of  any  such 

as  stealing.  ©  '  t  J 

animal,  being  the  property  of  another,  with  an  intention  to  claim 
or  appropriate  the  same  to  his  or  her  own  use,  or  to  prevent  iden- 
tification by  the  true  owner  or  owners  thereof,  the  person  or  per- 
sons so  offending  shall  be  guilty  of  a  misdemeanor,  and,  on  con- 
viction, shall  suffer  the  same  punishment  as  is  inflicted  for  the 
theft  or  larceny  of  said  animal  or  animals. 

§  4338.  [It  shall  be  unlawful  for  any  person  in  this  State  to  skin 

Skinning ,  any  dead  cow,  or  any  other  kind  of  stock,  cattle,  sheep,  or  goats, 
that  do  not  belong  to  him,  her,  or  them,  without  consent  of  the 
owner  of  such  stock,  cattle,  sheep,  or  goats,  his  agent  or  overseer, 
without  accounting  to  the  owner  or  owners  thereof  for  the  skin, 
when  thereunto  demanded  ;  and  in  all  such  cases,  when  any  person 
or  persons  shall  have  been  engaged  in  skinning  any  cow,  or  other 
kind  of  stock,  cattle,  sheep,  or  goats,  and  shall  refuse,  on  demand 
of  the  owner  thereof,  or  his  agent  or  overseer,  to  pay  the  reason- 
able value  of  the  skin,  he,  she,  or  they  shall  be  subject  to  iudict- 

indictment  ment,  and,  upon  conviction,  shall  be  punished  as  prescribed  in 

an^I^^punish-  g^^^-^^  4245  ^^f  this  Codc.]  (b) 

§  4339.  If  any  person  shall  take  and   carry  away  any  paper, 
Larceny  of  document,  deed,  will,  or  other  writing  relating  to  real  or  personal 

deeds  or  pa-  .  .  .  .  -y  -x-cv       ^l. 

pers  —  peni- estate,  With  an  intention  to  impair,  prevent,  or  render   dimcult 

tentiary  one  ,  t   1  t>  -  ^  -i  i  m 

to     three  the  establishment  of  a  title  to  real  or  personal  estate,  or  mutilate, 

years.  ^ 

cancel,  burn,  or  otherwise  destroy  said  paper,  document,  deed, 
will,  or  other  writing,  with  the  intention  aforesaid,  such  person 
shall  be  guilty  of  simple  larceny,  and  be  punished  by  imprison- 
ment and  labor  in  the  penitentiary  for  any  time  not  less  than 
one  year  nor  longer  than  three  years. 

(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1863-4,  p.  64,  and  Acts  of  1865-8,  p.  233. 


PT.  4.— TIT.  1.— Penal  Code.  849 


Division  6. — Crimes  and  Offenses  Relative  to  Property. 


^4340.  If  any  person  shall   take  and    carry   away  any  bond,    Larcenyof 

"^  '^    ^  ./  ./^  ./  7  bonds,  notes, 

note,  bank  bill,  or  due  bill,  or  paper  or  papers,  securing  the  pay-  etc.— peni- 
ment  of  money  or  other  valuable  thing,  or  any  receipt,  acquit-  toiouryears. 
tance,  or  paper  or  papers,  operating  as  a  discharge  for  the  pay- 
ment of  money,  or  other  thing  belonging  to  another,  with  intent 
to  steal  the  same,  such  person  shall  be  guilty  of  simple  larceny, 
and  be  punished  by  imprisonment  and  labor  in  the  penitentiary 
for  any  time  not  less  than  one  year  nor  longer  than  four  years. 

§  4841.   Theft  or  larceny  may  be  committed  of  any  thing  or    Fixtures, 
things  which,  in  the  language  of  the  law,  savors  of  the  realty,  or  of 
any  fixture  or  fixtures  ;  and  the  punishment  shall  be  [as  prescribed 
in  Section  4245  of  this  Code.]  (a) 

§  4342.  Plundering:   or   stealing   any  article  of   value  from  a  .    Piunder- 

'^  ^  <=>  Or'  ing  or  steal- 

vessel  in  distress,  or  from  a  wreck,  or  any  other  vessel,  boat,  or  '^^s     from 

'  7  ,/  7  7  wrecked     or 

water-craft,  within  the  jurisdictional  limits  of  this  State,  is  simple  yesVeis^^^^^ 
larceny,  and  shall  be  punished  by  imprisonment  and  labor  in  the 
penitentiary,  for  any  time  not  less  than  one  year  nor  longer  than 
five  years. 

§  4343.  All  simple  larcenies  or  thefts  of  the  personal  goods  of    other  lar- 

.  .  1  o  cenies. 

another,  not  mentioned,  or  particularly  designated  in  this  Code, 
shall  be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 


§  4344.  Theft  or  larceny  from  the  person  as  distinguished  from       Larceny 

1  ^  If  1  Mi»i  r  1  from  the  per- 

roobery,  beiore  described,  is  the  wrongful  and  fraudulent  taking  £on defined. 
of  money,  goods,  chattels,  or  efi'ects,  or  any  article  of  value  from 
the  person  of  another,  privately,  without  his  knowledge,  in  any 
place  whatever,  with  intent  to  steal  the  same. 

§4345.  A  person  convicted  of  this  class  of  larceny  shall  he  ^^^^jj^^t^^^^ 
punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a)  five  years. 

§  4346.  Any  sort  of  secret,  sudden,  or  wrongful  taking  from  whatsecret, 
the  person  with  the  intent  described  in  Section  4344  of  this  ing  shaii  be 
Code,  without  using  intimidation,  or  open  force  and  violence, 
,  shall  be  within  this  class  of  larceny,  though  some  small  force 
be  used  by  the  thief  to  possess  himself  of  the  property ; 
provided,  there  be  no  resistance  by  the  owner,  or  injury  to  his 
person,  and  all  the  circumstances  of  the  case  show  that  the  thing 
was  taken,  not  so  much  against  as  without  the  consent  of  the 
owner. 

§  4347.  Larceny  from  the  house  is  the  breaking  or  entering  any 

(a)  Acts  of  1865-6,  p.  233. 


850  PT.  4.~-TIT.  1.— Penal  Code. 

Division  6. — Crimes  and  Offenses  Relative  to  Property. 


Larceny  house  witli  the  intent  to  steal,  or  after  breaking  or  enterins:  said 

from     the  tip 

house.        house,  stealing  therefrom  any  money,  goods,  chattels,  wares,  mer- 
chandise, or  any  thing  or  things  of  value  whatever. 

§  4348.  Any  person  who,  by  day  or  night,  shall  in  any  dwelling- 
Punishment  house,  store,  shop,  or  warehouse,  or  any  other  house  or  building, 
privately  steal  any  goods,  money,  chattels,  wares,  or  merchandise, 
or  any  other  article  or  thing  of  value,  shall  be  punished  [as  pre- 
^*  A    .\ .      scribed  in  Section  4245  of  this  Code.*]  (a) 
i  ■       *  **^  §4349.  Any  person  entering  a  dwelling-house,  store,  shop,  or 

/[         Punishment  "warehouse,  or  any  other  house  or  buildins;,  w^ith  intent  to  steal, 

i  for  entering  ,,.,,,  ir»T' 

■\         with  intent  but  who  IS  dctcctcd  and  prevented  from  so  doing,  shall  be  pun- 
ished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4350.  Any  person  breaking  any  dwelling-house,  store,  shop, 
Breaking  or  warehousc,  or  any  other  house  or  building,  with  intent  to  steal, 

with       such  .  P      .  . 

intent.         \^y^\^  -yy^^o  is  detected  and  prevented  from  efiecting  such  intention, 

shall  be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4351.  Any  person  breaking  and  entering  any  house  or  build- 

Breaidng  inff  fothcr  than  a  dwellinsi-house  or  its  appurtenances),  with  intent 

and  entering  ,  i       •      i  i  i  in 

to  steal,  but  who  is  detected  and  prevented  from  carrying   such 
intention  into  effect ;  or  any  person  breaking  or  entering  any  such 
enter?n^ind  ^^use  or  building,  and  stealing  therefrom  any  money,  goods,  chat- 
steaiing.       ^g|g^  warcs,  or  merchandise,  or  any  other  thing  or  article  of  value, 
shall  be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 
§  4352.  Any  house,  building,  or  edifice,  belonging  to  the  State 
Pubiicbuiid-  or  a  Corporate  body,  or   appropriated   to  public  worship,  or  any 
ed!  other  public  purpose,  shall  be  taken  and  considered  as  a  house  or 

building  within  which  this  class  of  larceny  may  be  committed. 
§  4353.  Any  person  entering  and   stealing  from  any  hut,  [rail- 
■  Hut,  tent,  road  car,]  (b)  tent,   booth,  or   temporary  building,  shall  be  pun- 
ished [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§4354.  [If  any  person,  fraudulently  claiming  to  act  as  agent 

Fraudulent  or  officcr  of  the   United  States,  or  any  department  thereof,  shal, 

of  property  scizc,  detain,  or  remove  the  property  of  any  citizen  or  resident  of 

by  pretended    ■,  .     r^  •  t*  ini*  i  re 

u.  s.  agents,  tiiis  btatc  ;  or,  II  any  person  snail  claim  to  be  an  omcer  or  agent 
of  the  United  States,  or  any  department  thereof,  with  authority 
to  make  said  seizure,  detention,  or  removal,  and  who  shall  not 
have  such   authority,  such  person,  officer,  or  agent,  so  offending, 

(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1862-3,  p-  139  ;   and  Acts  of  1865-6, 
p.  233. 


PT.  4.— TIT.  1.— Penal  Code.  851 

Dmsion  6. — Crimes  and  Offenses  Relative  to  Property. 


shall,  upon  conviction^  be  punished  by  confinement  and  labor  in 
the  penitentiary  not  less  than  one  year  nor  longer  than  ten 
years,  or  shall  be  punished  as  prescribed  in  Section  4245  of  this 
€ode,  at  the  discretion  of  the  Court.]  (c) 

§4355.  Any  officer,  servant,  or  other  person,  employed  in  any  Personsem- 
public  department,  station,  or  office  of  government,  of  this  State,  p'^'^^^^    ^®" 
•or  any  County,  town,  or   city,  of  this  State,  or  in  any  bank  or  J^n"''^,/^"e^l 
other  corporate  body  in  this  State;  or  any  president,  director,  or  ^Hf^^^ ^^.l', 
stockholder,  of  any  bank   or  other  corporate  body  in  this  State,  ^^^^^' 
'ivho  shall  embezzle,  steal,  secrete,  fraudulently   take  and  carry 
away  any  money,  gold  or  silver  bullion^  note  or  notes,  bank  bill 
or  bills,  bill  or  bills  of  exchange,  vrarrant  or  warrants,  bond  or 
bonds,  deed  or  deeds,  draft  or  drafts,  check  or  checks,  security  or 
securities  for  the  payment  of  money,  or  delivery  of  goods  or  other 
things,  lease,  will,  letter  of  attorney,  or  other  sealed  instrument, 
or  any  certificate   or   other  public  security  of  the  State  for  the 
paym^ent  of   money,   or  any  receipt,  acquittance,  release,  or  dis- 
charge of  any  debt,  suft,  or  other  demand,  or  any  transfer  or  as- 
surance of  money,  stock,   goods,   chattels,  or  other  property,  or 
any  day  book,  or  other  book  of  accounts,  or  any  agreement  or 
contract  vfhatever,  such  person  so  offending  shall,  on  conviction, 
be  punished  by  imprisonment  and  labor  in  the  penitentiary  for 
any  time  not  less  than  two  years  nor  longer  than  seven  years. 

§  4356.  If  any  factor,  commission  merchant,  warehouse  keeper,  Any  bailee 

^  "^  .  .  fraudulently 

•wharfinger,  wagoner,  stage   driver,  or  other   common   carrier  on  converting 

o      •'  o  '  o  '  the  goods  or 

land  or  water,  or  any  other  bailee,  with  whom  any  money,  bank  pi'oceeds. 
bill  or  bills,  note  or  notes,  bill  or  bills  of  exchange,  draft  or  drafts, 
check  or  checks,  bond  or  bonds,  or  other  security  or  order  for  the 
payment  of  money  or  other  valuable  thing,  or  any  cotton,  corn, 
or  other  produce,  goods,  wares,  or  merchandise,  or  any  other  thing 
or  things  of  value,  are  or  may  be  entrusted  or  deposited  by  any 
person,  shall  fraudulently  convert  the  same,  or  any  part  thereof, 
or  the  proceeds  of  any  part  thereof,  to  his  or  her  own  use,  or  oth- 
erwise dispose  of  the  same,  or  any  part  thereof,  without  the  con- 
sent of  the  owner  or  bailor,  and  to  his  or  her  injury,  and  without 
paying  to  such  owner  or  bailor,  on  demand,  the  full  value  or  mar- 
ket price  thereof;  or  if,  after  a  sale  of  any  of  the  said  articles, 
with  the  consent  of  the  owner  or  bailor,  such  person  shall,  fraud- 
Co)  Acts  of  1865-6,  p.  336. 


852  PT.  4.— TIT.  1.— Penal  Code. 


Division  6. — Crimes  and  Offenses  Relative  to  Property. 


ulentlj  and  without  the  consent  of  the  said  owner  or  bailor,  con- 
vert the  proceeds  thereof,  or  any  part  of  the  said  proceeds,  to  his 
or  her  own  use,  and  fail  or  refuse  to  pay  the  same  over  to  such 
owner  or  bailor,  on  demand,  every  such  person  so  offending  shall, 
on  conviction,  be  punished  by  imprisonment  and  labor  in  the  pen- 
itentiary for  any  time  not  less  than  two  years  nor  longer  than 
seven  years. 
/  §  4357.  If  any  person,  employed  as  a  clerk,  agent,  or  servant, 

Klerks,  or  in  any  other   character  or  capacity,  in  any  store,  warehouse, 

agents,    etc.  "^  k  J  ■>  J  •)  J 

fraudulently  counting-room,   exchange   office,   shop,   or  other  place  of    trade, 
coivverting  traffic,  or  exchanffc,  where,  from  the  nature  of  the  business  or 

goons       en-  "  o    ^  7 

thefc''^     *^  employment,  it  is  necessary  or  usual  to  entrust  to  such  person 
any  goods,  wares,  or  merchandise,  cotton,  corn,  or  other  produce, 
money,  notes,  bills  of  exchange,  bank  notes,  checks,  drafts,  orders 
for  payment  of  money,  or  other  valuable  thing,  or  any  other  thing 
1  or  article  of  value,  shall  fraudulently  take  and  carry  away,  or  con- 

\  vert  to  his  own  use,  or  otherwise  dispose  of  any  of  the  said  goods, 

\  wares,  or  merchandise,   cotton,   corn,    or   other    produce,  money, 

notes,  bills  of   exchange,  bank   notes,   checks,  drafts,  orders,  or 
\       other  thing  or  things  of  value,  thus  entrusted  to  him,  or  commit- 
^      ted  to  his  charge,  to  the  injury  and  without  the  consent  of  the 
owner   thereof,  or    person    thus  entrusting,  him,  such   person  sa 
offending  shall,  on  conviction,  be  punished  by  imprisonment  and 
labor  in  the  penitentiary  for  any  time  not  less  than  one  year  nor 
longer  than  five  years. 
f      §  4358.  If  any  person  who  has  been  entrusted  by  another  with 
Any  other  any  moncy,  note   or  notes,  bill,  or  bills  of    exchange,  bond  or 
feliding.       bouds,  chock   or  checks,  draft  or  drafts,  bank   note   or  notes,  or- 
der or  orders  for  the  payment  of  money,   or  other  valuable  article 
or  thing,  or  any  cotton,  corn,  or  other  produce,  goods,  wares,  or 
merchandise,  horse   or  horses,  mule  or  mules,  cattle,  sheep,  goats, 
hogs,  or  other  article  or  articles  of  value,  for  the  purpose  of  ap- 
■  plji^g  the  same  for  the  use  or  benefit  of  the  person  to  whom  they 

belong,  or  the  person  delivering  them,  or  any  of  them,  or  for  the 
purpose  of  collecting  money,  or  other  thing  due  on  any  such  note 
or  notes,  bill  or  bills  of  exchange,  bond  or  bonds,  check  or 
\  checks,  draft  or  drafts,  bank  note  or  notes,  or  order  or  orders, 
and  paying  the  proceeds  thereof  over  to  the  owner  or  other  person 
\  so  entrusting  or  delivering  the  same,  or  for  the  purpose  of  selling 
such  cotton,  corn,  or  other  produce,  goods,  wares,  or  merchandise, 


PT.  4.— TIT,  1.— Penal  Code.  853 

Division  6. — Crimes  and  Offenses  Relative  to  Property. 


horse  or  horses,  mule  or  mules,  cattle,  sheep,  goats,  hogs,  or 
other  valuable  article,  and  paying  over  the  proceeds  of  such  sale 
to  the  owner,  or  other  per^son  so  entrusting  or  delivering  the  said 
article  or  articles,  or  any  of  them,  or  the  money,  or  other  thing 
arising  from  the  sale  or  collection  of  them,  [shall  fradulently  con- 
vert the  same,  or  any  part  thereof,  or  the  proceeds  of  any  part 
thereof,]  (a)  to  his  or  her  own  use,  or  shall  otherwise  dispose  of 
them,  or  any  of  them,  to  the  injury,  and  without  the  consent  of 
the  owner,  or  other  person  so  entrusted  or  delivering  them,  and 
wi'hout  paying  to  such  owner,  or  person  entrusting  or  delivering 
the  same,  the  full  value  or  market  price  thereof,  such  person  so 
offending  shall,  on  conviction,  be  punished  by  imprisonment  and 
labor  in  the  penitentiary  for  any  time  not  less  than  one  year, 
nor  longer  than  five  years. 

§4359.  Any  president,  director,  or  other  officer  of  any  char- Bank  officers 

,         ^  ,  ,  .  .      violatiBgtlie 

tered  bank  in  this  State,  who  shall  violate,  or  be  concerned  in  charter. 
violating  -any  provision  of  the  charter  of  such  bank,  shall  be 
guilty  of  a  high  misdemeanor,  and  on  indictment  and  conviction 
thereof,  shall  be  punished  by  imprisonment  and  labor  in  the  peni- 
tentiary for  any  term  not  less  than  one  year,  nor  longer  than  ten 
years. 

§  4360.  Every  president,  director,  or  other  officer  of  any  char-  Presump- 
tered  bank  in  this  State,  shall  be  deemed  to  possess  such  a  knowl-  sucii officers, 
edge  of  the  affairs  of  the  corporation  as  to  enable  him  to  deter- 
mine whether  any  act,  proceeding  or  omission,  is  a  violation  of 
the  charter.  And  every  president  and  director  who  shall  be  pres- 
ent at  a  meeting  w^hen  such  violation  shall  happen,  shall  be  deemed 
to  have  concurred  therein,  unless  he  shall  at  the  time,  cause,  or  in 
writing  require,  his  dissent  therefrom  to  be  entered  at  large  on  the 
minutes  of  the  board.  And  every  president  and  director  not 
present  at  any  meeting  when  such  violation  shall  take  place,  shall, 
nevertheless,  be  deemed  to  have  concurred  therein,  if  the  facts 
constituting  such  violation  appear  on  the  books  of  the  corporation, 
and  he  remain  a  director  for  three  months  thereafter,  and  do  not 
within  that  time  cause,  or  in  writing  require,  his  dissent  from  such 
illegal  proceedings  to  be  entered  at  large  on  the  minutes  of  the 
board. 

§4361.  Every  insolvency  of  a  chartered  bank,  or  refusal,  or 

(a)  Acts  of  1866,  p.  233. 


854 


PT.  4.— TIT.  1.— Penal  Code. 


Division  6. — Crimes  and  Offenses  Relative  to  Propeily. 


Every  bank 
insolvency 
shall  be 

deemed 
fraudulent, 
etc. 


Certain 
transfers,etc. 
o  f  stock 
fraudulent, 
etc. 


Bank  offi^ 
cers  purchas- 
ing its  pa- 
pers at  dis- 
coutit. 


Declaring 
fraudulent 
dividends. 


failure  to  redeem  its  bills  on  demand,  eitber  with  specie  or  current 
bank  bills  passing  at  par  value,  shall  be  deemed  fraudulent,  an(J 
the  president  and  directors  may  be  seyefally  indicted  for  a  misde- 
meanor, and  on  conviction,  shall  be  punished  bj  imprisonment  and 
labor  in  the  penitentiary  for  any  time  not  less  than  one  year,  nor 
longer  than  ten  years  ;  provided^  nevertheless,  that  the  defendant 
may  repel  the  presumption  of  fraud,  by  showing  that  the  aifairs 
of  the  bank  have  been  fairly  and  legally  administered,  and  gen- 
erally with  the  same  care  and  diligence  that  agents  receiving  a 
commission  for  their  services  are  required  and  bound  by  law  to  ob- 
serve ;  and,  upon  such  showing,  the  jury  shall  acquit  the  prisoner. 

§  4362.  All  conveyances,  assignments,  transfers  of  stock,  effects, 
or  other  contracts  made  hy  any  bank  in  contemplation  of  insol- 
vency, or  after  insolvency,  except  for  the  benefit  of  all  the  credi- 
tors and  stockholders  of  said  bank  shall,  unless  made  to  an  inno- 
cent purchaser  for  a  valuable  consideration,  and  without  knowledge 
or  notice  of  the  condition  of  said  bank,  be  fraudulent  and  void. 
And  the  president,  directors,  and  other  officers  of  said  bank,  or 
any  of  them,  making,  or  consenting  to  the  making  of  such  con- 
veyance, assignment,  transfer,  or  contract,  whether  the  same  be 
made  to  an  innocent  purchaser  or  any  other,  shall  severally  be 
guilty  of  a  misdemeanor,  and,  on  indictment  and  conviction  thereof, 
shall  be  punished  by  imprisonment  and  labor  in  the  penitentiary 
for  any  time  not  less  than  four  years,  nor  longer  than  ten  years. 

§4363.  If  any  president,  director,  officer,  or  agent  of  any  bank 
shall,  by  himself  or  agent,  or  in  any  other  manner,  either  for  him- 
self or  for  the  bank,  directly  or  indirectly  purchase,  or  be  inter- 
ested in  the  purchase  of  any  bill,  or  check,  or  other  evidence  of 
debt  issued  by  the  said  bank,  for  a  less  sum  than  shall  appear 
then  due  on  the  face  thereof,  such  person  so  offending  shall  be 
guilty  of  a  misdemeanor,  and,  on  indictment  ^and  conviction 
thereof,  shall  be  punished  by  imprisonment  and  labor  in  the  peni- 
tentiary for  any  time  not  less  than  four  years  nor  longer  than  ten 
years. 

§  4364.  No  dividends  shall  be  made  by  any  bank,  except  from 
the  net  profits 'i|ising  from  the  business  of  the  corporation;  and 
if  any  presidenrand  directors  shall  declare  or  pay  over  any  divi- 
dend from  the  capital  stock,  or  any  other  funds  of  the  bank,  ex- 
cept the  net  profe  thereof,  such  president  and  directors  shall, 
severally,  be  guilty  of  a  misdemeanor,   and,   on  indictment  and 


PT.  4.— TIT.  1.— Penal  Code.  855 

Division  6. — Crimes  and  Offenses  Relative  to  Property. 

conviction  thereof,  shall  be  punished  by  confinement  and  labor  in 
the  penitentiary  for  any  time  not  less  than  one  year  nor  longer 
than  ten  years. 

§4365.  If  the  president  and  directors  of  any  bank,  or  any  of  g^^'J^^^^^^°| 
them,  shall  use  and  apply  any  part  of  the  capital  stock  of  such  capital  stock 
bank  to  the  purchase  of  shares  of  its  own  stock,  such  president 
and  directors  shall  be  guilty  of  a  misdemeanor,  and,  on  indict' 
ment  and  conviction  thereof,  shall  be  punished  by  imprisonment 
and  labor  in  the  penitentiary  for  any  time  not  less  than  one  year 
nor  more  than  ten  years. 

§4366.  If  any  person  shall  dig,  or  take  and  carry  away  from  umawfui 
the  land  of  another,  any  gold,  bullion,  silver,  or  other  metallic 
substance,  with  intent  to  appropriate  the  same  to  his  or  her  own 
use,  without  having  previously  obtained  permission  of  the  owner 
of  such  land  so  to  do,  he  or  she  shall  be  guilty  of  a  misdemeanor, 
and,  upon  conviction,  shall  be  punished  [as  prescribed  in  Section 
4245  of  this  Code.]  (a) 

§  4367.  If  any  person  shall  erect  or  use  any  machinery  for  the  Erecting  or 

^s,ing      ma- 
purpose  of  procuring;  gold  or  other  metals  from  the  land  of  another,  cwnery    to 

^  ^   f  .  ^  °  ^.  .  '  procure  gold. 

With  intent  to  appropriate  the  same  to  his  or  her  own  use,  or  for 
any  other  person  whatsoever,  without  the  permission  of  the  owner 
of  the  land  or  his  agent,  he  or  she  shall  be  guilty  of  a  high  misde- 
meanor, and,  upon  conviction,  shall  be  punished  [as  prescribed  in 
Section  4245  of  this  Code.]  (a) 

§  4368.  Any  Clerk  of  the  Inferior  Court  or  County  Treasurer  Embezzling 
of  any  County  in  this  State,  who  shall  divert,  misapply,  embezzle,  funds. 
or  conceal  any  money  belonging  to  the  County  of  which  he  is 
such  Clerk  or  County  Treasurer  as  aforesaid,  with  intent  to  appro- 
priate the  same  to  his  own  use,  shall  be  goilty  of  a  misdemeanor, 
and,  upon  conviction,  shall  be  punished  with  fine  or  imprisonment 
in  the  common  jail,  or  both,  at  the  discretion  of  the  Court,  and 
shall  moreover  be  removed  from  office;*  and  on  the  trial  of  such 
defendant,  proof  of  his  having  failed  or  refused  to  make  an  exhibit 
to  the  Grand  Jury  of  the  County  of  which  he  is  such  Clerk  or 
County  Treasurer,  at  the  Superior  Court  first  held  in  each  year  in 
said  County  (unless  prevented  by  providential  cause),  a  full  and 
complete  statement  of  the  County  funds,  as  required  by  law,  re- 
ceived by  him  during  the  preceding  year,  shall  be  deemed  prima 

(a)  Acts  of  1865-6,  p.  233.    *See  Section  4608. 


856  PT.  4.— TIT.  1.— Penal  Code. 


Division  6. — Crimes  and  Offenses  Relative  to  Property. 


facie  evidence  of  guilt,  and  throw  the  burden  of  proof  upon  the 
defendant.  The  prosecuting  officer,  on  the  trial  of  any  indictment 
founded  on  this  clause,  shall  not  be  required  to  identify  the  money, 
coin,  or  bank  bills,  or  other  property  misapplied,  embezzled,  or 
concealed ;  but  in  all  cases,  an  allegation  that  any  sum  of  money 
or  evidence  of  debt  has  been  received  by  the  defendant,  belonging 
to  the  County,  and  that  he  fails  or  refuses  to  account  for  the  same, 
if  proved,  shall  authorize  a  conviction,  unless  the  defendant  shall 
set  up  and  sustain  a  valid  and  legal  defense  to  the  charge. 

§  4369.  Any  person  who  shall  fraudulently  cause  any  process. 
Fraudulent  attachment,  distress,  or  execution,  to  be  levied  on  any  estrayed 
property,  animal,  or  any  lot  or  lots  of  land,  or  other  property,  knowing  the 
same  not  to  be  subject  to  such  process  or  writ,  shall  be  guilty  of  a 
misdemeanor,  and,  on  conviction  for  the  first  offense,  shall  be 
[punished  as  prescribed  in  Section  4245  of  this  Code ;]  (a)  and  on 
any  subsequent  conviction,  shall  be  sentenced  to  labor  in  the  pen- 
itentiary not  less  than  two  nor  longer  than  four  years. 

§  4370.  Any  person  intruding  unlawfully  upon  the  constructed 
Intruding  track   of  any   chartered  railroad   company  of  this   State,  or  the 

on     railroad  '-i  i  ^  -^^        n      ^  m  • 

tracks.         btatc  railroad,  contrary  to  the  will  oi  the  company  or  feuperin- 

tendent,  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 

[shall  be  punished  as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4371.  If  any  person  shall  willfully  and  maliciously  destroy,  or 

Destroying  in  any  manner  hurt,  damage,  injure,  or  obstruct,  or  shall  willfully 

obstructing  and  maliciously  cause,  or  aid  and  assist,  or  counsel  or  advise  any 

railroads.  i  •  i 

other  person  or  persons  to  destroy,  or  in  any  manner  to  hurt, 
damage,  or  injure,  or  obstruct  any  such  railroad,  or  any  branch 
thereof,  or  any  bridge  connected  therewith,  or  any  vehicle,  edifice, 
right  or  privilege  granted  by  charter,  and  constructed  for  use  un- 
der authority  thereof ;  or  if  an  unauthorized  person  or  persons 
shall  turn,  move,  or  in  any  manner  interfere  or  meddle  with  any 
gate,  switch,  sideling,  or  other  appurtenances  to  any  such  railroad, 
such  person  so  offending  shall  be  guilty  of  felony ;  and  on  con- 
viction, shall  be  imprisoned  in  the  penitentiary  not  less  than  four 
nor  longer  than  eight  years.  If  death  ensues  from  such  act,  to 
any  person,  the  offender  shall  be  guilty  of  murder,  and  punished 
accordingly.  This  penalty  shall  in  no  case  interfere  with  the 
offender's  liability  to  civil  damages. 

(a)  Acts  of  1865-6,  p.  233. 


PT.  4.— TIT.  1.— Penal  Code.  857 

Division  6. — Crimes  and  Offenses  Relative  to  Property. 


§  4372.  If  any  person  shall  willfully  destroy,  damage,  or  in  any  interference 
way  injure  the  posts,  wires,  or  j&xtures  of  any  magnetic  telegraph  neti(i    teie- 
company  in  this  State,  he  shall  be  guilty  of  a  misdemeanor,  and  panics. 
on  conviction,  shall  be  punished  as  prescribed  in  Section  4245  of  ■ 
this  Code.]  (a) 

§4373.  [The  following  shall  be  deemed  and  held  to  be  trespass,  ^e^^g^^Jtrfs- 
and  indictable — to  wit :  i^^^^ 

1.  The  willful  cutting  or  felling  of  any  wood,  timber,  or  shade-  Wiiifuicut- 
tree,  upon  the  land,  enclosed  or  unenclosed,  of  another,  without  wood,  etc 
the  consent  of  the  owner. 

2.  The  taking  and  carrying  away,  or  attempting  to  take  and  Taking  etc. 
carry  away,  any  timber,  wood,  rails,  fruit,  vegetables,  corn,  cot-  etc 

ton,  or  any  other  article,  thing,  produce,  or  property  of  any  value 
whatever,  from  the  land,  enclosed  or  unenclosed,  of  another,  with- 
out the  consent  of  the  owner. 

3.  The  pulling  down  or  removing  any  fence,  paling,  or  enclo-    Removing 
sure  of  another,  without  the  consent  of  the  owner. 

4.  The  squatting  or  settlins;  upon  the  land,  enclosed  or  unen-     sqnatting 

■■■  ^  or  7      ^  or  settling. 

closed,  of  another,  whether  public  or  private,  with  no  bona  fide 

claim  or  color  of  title,  and  without  the  consent   of  the  owner;      ,^^    ^ 

'  ^       After  ten 

'provided  the  intruder  shall  not  remove  oif  the  land  after  ten  days'  (lays' notice. 
notice  ;  and  provided  further ^  that  this  paragraph  shall  not  apply  ^avfarers 
to  wayfarers  who  shall  camp  for  a  night,  or  in  case  of  providential  "y*hen/^^^^~ 
detention,  for  a  longer  time,  on  unenclosed  land. 

Any  person  committing  any  of  the  acts  of  trespass  specified  in  indictment. 
this  Section,  shall  be  held  and  deemed  guilty  of  a  misdemeanor, 
and  subject  to  indictment  in  any  Court  having  jurisdiction  thereof, 
and  upon  conviction  shall  be  punished  [as  prescribed  in  Section  Punisiiment. 
4245  of  this  Code.]  (b) 

§  4374.  [It  shall  not  be  lawful  for  any  person  to  hunt  with  dos:s,       niegai 

1-1  •  11  1111       hunting. 

fire-arms,  or  other  implements,  m  or  through  any  enclosed  lands, 
fields,  walks,  or  pastures,  wherein,  or  whereon  sheep  are  kept  or 
confined,  without  the  consent  of  the  owner  thereof;  and  for  every 
violation  of  the  provisions  of  this  Section,  the  person  so  off'ending 
shall  be  deemed  and  held  guilty  of  trespass  and  misdemeanor,  and 
subject  to  indictment  in  any  Court  having  jurisdiction  thereof, 
and  upon  conviction,  shall  be  fined  or  imprisoned,  or  both,  at  the 
discretion  of  the  Court ;  the  fine  not  to  exceed  fifty  dollars — the 
imprisonment  not  to  exceed  thirty  days  for  each  offense.]  (c) 

a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1865-6,  pp.  237-8.    (c)  Acts  of  1866,  p.  155. 


858 


PT.  4.— TIT.  1.— Penal  Code. 


Division  7. — Forgery  and  Counterfeiting,  and  Unlawful  Currency. 


SEVENTH    DIVISION. 


FOEGERY   AND   COUNTERPEITINa,   AND   UNLAWFUL   CURRENCY. 


Section. 

4375.  Official  certificates,  etc. 

4376.  Countei'feiting  coin. 

4377.  Bank  notes. 

4378.  Bank  check  or  draft. 

4379.  Altering  bank  note. 

4380.  Knowingly  uttering. 

4381.  Possessing  to  pass. 

4382.  Possessing  implements. 

4383.  Forging  notes,  bills,  etc. 


Section. 

4384.  Any  other  writing. 

4385.  Forged  public  seal. 

4386.  Using  fictitious  name. 

4387.  Personating  another. 

4388.  Buying  under  false  letters,  etc. 

4389.  Issuing,  etc.,  unlawful  currency. 

4390.  Each  bill — new  offense. 

4391.  Duty  of  Grand  Jury. 

4392.  Disposition  of  fine. 


a 


?■ 


f 


§  4375.  If  any  person  or  persons  shall  falsely  and  fraudu- 
Forsingany  lentlj  make,  forge,  alter,  or  counterfeit,  or  cause  or  procure 
tificates,  etc.  to  be  falselj  and  fraudulently  made,  forced,  altered,  or  counter- 

7T^  A     felted,  or  willingly  aid  or  assist  in  falsely  and  fraudulently  making, 

I  /  ^  forging,  altering,  or  counterfeiting  any  audited  certificate  or  other 
certificate  issued  or  purporting  to  have  been  issued  by  the  Auditor 
General,  or  other  officer  authorized  to  issue  the  same,  or  any  order 
or  warrant  issued  or  purporting  to  have  been  issued  by  the  Gover- 
nor, or  the  President  of  the  Senate,  or  Speaker  of  the  House  of 
Representatives  of  the  General  Assembly  of  this  State,  or  by  any 
ofiicer  of  the  Government,  or  authorized  person,  on  the  Treasury 
of  said  State,  for  any  money  or  other  thing,  or  any  warrant  for 
land  issued  or  purporting  to  have  been  issued  by  the  Justices  of 
any  Land  Courfc,  or  by  any  other  tribunal,  officer  or  person, 
authorized  to  do  so,  within  this  State ;  or  any  certificate,  draft, 
warrant,  or  order,  from  any  of  the  public  officers  of  this  State, 
issued  or  purporting  to  have  been  issued  under  or  by  virtue  of  an 
act  or  resolution  of  the  General  Assembly  of  this  State ;  or  any 
certificate,  draft,  order,  or  warrant,  issued  or  purporting  to  have 
been  issued  by  any  Court,  officer,  or  person  authorized  to  draw  on 
the  Treasury  of  this  State,  or  for  public  money,  wherever  the 
same  may  be  deposited,  or  any  deed,  will,  testament,  bond,  wri- 
ting obligatory,  bill  of  exchange,  promissory  note,  or  order  for 
money,  or  goods,  or  other  things  of  value,  or  any  acquittance  or 
receipt,  or  any  indorsement  or  assignment  of  any  bond,  writing 
obligatory,  bill  of  exchange,  promissory  note,  or  order  for  money 
or  goods,  or  other  thing  or  things  of  value,  .with  intent  to  de- 
fraud the  said  State,  public  officer  or  officers,  Courts,  or  any 
persons  authorized,  or  any  person  or  persons  whatever,  or  shall 
utter  or  publish  as  true  any  false,  fraudulent,  forged,  altered  or 


PT.  4.— TIT.  1.— Penal  Code.  859 


Division  7. — Forgery  and  Counterfeiting,  and  Unlawful  Currency. 


counterfeited  audited  certificate,  Governor's,  President's,  Speak- 
er's, public  officer's,  Court's,  or  other  dulj  authorized  person's  cer- 
tificate, draft,  warrant,  or  order,  so  as  aforesaid  issued,  or  purport- 
ing to  have  been  issued,  or  any  deed,  will,  testament,  bond,  waiting 
obligatory,  bill  of  exchange,  promissory  note,  or  order  for  money, 
or  goods,  or  other  thing  or  things  of  value  ;  or  any  acquittance  or  re- 
ceipt for  money  o-r  goods,  or  other  thing  or  things  of  value  ;  or  any 
indorsement  or  assignment  of  any  bond,  writing  obligatory,  bill  of 
exchange,  promissory  note,  or  order  for  money  or  goods,  or  other 
thing  or  things  of  value,  with  intent  to  defraud  the  said  State,  public 
officers,  Courts,  or  persons  authorized  as  aforesaid,  or  any  other  per- 
son or  persons  whatsoever,  knowing  the  same  to  be  so  falsely  and 
fraudulently  made,  forged,  altered,  or  counterfeited ;  every  such 
person  so  ofiending,  and  being  thereof  lawfully  convicted,  shall  be 
punished  by  imprisonment  and  labor  in  the  penitentiary  for  any 
time  not  less  than  four  years,  nor  longer  than  ten  years. 

§  4376.  If  any  person  shall  falsely  and  fraudulently  make,  forge,  connterfeit- 
or  counterfeit,  or  be  concerned  in  the  false  and  fradulent  makina;,  ingiy  utter- 

^     in<^  counter- 
forging  and  counterfeiting  of  any  gold,   silver,  or  copper  coin,  feit  coins— 

which  now  is   or  shall  be  passins;,  or  in  circulation  within  this  ^""""  ^^  *®^ 

A  o '  years. 

State;  or  shall  falsely  and  fraudulently  make,  or  be  concerned  in 
the  false  and  fradulent  making  of  any  base  coin  of  the  likeness  or 
similitude  of  any  gold,  silver,  or  copper  coin,  which  now  is,  or 
shall  be  passing,  or  in  circulation  within  this  State ;  or  shall 
falsely  and  fraudulently  utter,  publish,  pay,  or  tender  in  payment 
any  such  counterfeit  and  forged  coin  of  gold,  silver,  or  copper,  or 
any  base  coin,  knowing  the  same  to  be  forged,  or  counterfeited,  or 
base,  or  shall  aid  or  abet,  counsel  or  command  the  perpetration  of 
either  of  the  said  crimes,  such  person  shall,  on  conviction,  be  pun- 
ished by  imprisonment  and  labor  in  the  penitentiary  for  any  time 
not  less  than  four  years,  nor  longer  than  ten  years. 

§  4377.  If  any  person  shall  falsely  and  fraudulently  make,  sign,  counterfeit- 
or  print,  or  be  concerned  in  the  false  and  fraudulent  making,  sign-  notis— peni- 
ing  or  printing  of  any  counterfeit  note  or  bill  of  any  bank  of  this  trte^yeS 
State,  or  the  note  or  bill  of  any  incorporated  bank,  whose  notes  or 
bills  are  in  circulation  in  this  State,  or  falsely  and  fraudulently 
cause,  or  procure  the  same  to  be  done,  such  person  so  ofiending 
shall,  on  conviction,  be  punished  by  imprisonment  and  labor  in  the 
penitentiary  for  any  time  not  less  than  four  years,  nor  longer  than 
ten  years. 


860  PT.  4.— TIT.  1.— Penal  Code. 


Division  7. — Forgery  and  Counterfeiting,  and  Unlawful  Currency. 


§  4378.  If  any  person  shall  falsely  and  fraudulently  make,  sign. 
Bank  check  or  print,  or  be  concerned  in  the  false  and  fraudulent  makinoj,  sigrn- 

or  draft.  ...  o'       & 

ing,  or  printing  of  any  check  or  draft  upon  any  bank  of  this 
State,  or  bank  as  aforesaid ;  or  falsely  or  fraudulently  procure  the 
the  same  to  be  done,  such  person  so  offending  shall,  on  conviction, 
be  punished  by  imprisonment  and  labor  in  the  penitentiary  for 
any  time  not  less  than  three  years,  nor  longer  than  seven  years. 
§  4379.  If  any  person  shall  falsely  and  fraudulently  alter,  or  be 
Alteration  of  concerned  in  the  false  and  fraudulent  alteration  of  any  sienuine 

bank    notes,  _  '^    ° 

etc.— peni-  note,  bill,  check,  or  draft  of,  or  on  any  bank  as  aforesaid  ;  or  falsely 

tentiary''  '  '  •^  '  •' 

three  to  ten  ^.-^^  fraudulently  cause  or  procure  the  same  to  be  done,  such  person 

years.  j  r  t  r 

so  offending  shall,  on  conviction,  be  punished  by  imprisonment  and 
labor  in  the  penitentiary  for  any  time  not  less  than  three  years, 
nor  longer  than  ten  years. 

§  4380.  If  any  person  shall  falsely  and  fraudulently  pass,  pay. 
Knowing-  or  tender  in  payment,  utter  or  publish  any  false,  forged,  counter- 

,ly     littering  r    J  ?  r  J  5  &        5       ^ 

or    passing  fgit  or  altered  note,  bill,  check,  or  draft,  as  aforesaid,  knowinoi;  the 

them.  7  7  7  7  7  o 

same  to  have  been  falsely  and  fraudulently  forged,  counterfeited, 
or  altered ;  such  person  so  offending  shall,  on  conviction,  be  pun- 
ished by  imprisonment  and  labor  in  the^penitentiary  for  any  time 
not  less  than  two  years,  nor  longer  than  ten  years. 

§  4381.  If  any  person  shall  have  in  his  or  her  possession  any 
Possessing  such  falsc,  forged,  counterfeit,  or  altered  note  or  notes,  bill  or  bills, 
pass  them,    draft  or  drafts,  check  or  checks,  with  intention  fradulently  to  pass 
the  same,  such  person  so  offending  shall,  on  conviction,  be  punish- 
ed by  imprisonment  and  labor  in  the  penitentiary  for  any  time  not 
less  than  two  years,  nor  longer  than  ten  years. 

§  4382.  If  any  person  shall  have  in  his  or  her  possession  any 

Posse  sing  bank  paper,  types',  plates  or  machinery,  for  the  purpose  of  falsely 

etc.,  intend-  or  fraudulently  forgino;  and  counterfeitina:  any  notes,  bills,  checks 

ing  to  coun-  .7  to      &  ■.  '    .      . 

terfeit.         or  drafts  as  aforesaid,  such  person  so  offending  shall,  on  conviction, 

be  punished  by  imprisonment  and  labor  in  the  penitentiary  for 

any  time  not  less  than  four  years,  nor  longer  than  ten  years. 

§  4383.  If  any  person   shall  falsely  and    fraudulently  make. 

Forging  or  fora:;e,  counterfeit,  or  alter  any  note,  bill,  draft,  or  check  of  or  on 

uttering  cer-  °    '  '  J  t  ^ 

taiabiiis,etc.  any  person,  body  corporate,  company,  or  mercantile  house  or  firm, 
or  purporting  so  to  be ;  or  fraudulently  and  falsely  utter,  publish, 
pass,  pay,  or  tender  the  same  in  payment,  or  demand  payment  of 
the  same,  knowing  the  said  bill,  note,  draft,  or  check  to  be  forged 
and  counterfeited,  or  falsely  and  fraudulently  aljtered,  such  person 


PT.  4.— TIT.  1.— Penal  Code.  -  861 


Division  7. — Forgery  and  Counterfeiting,  and  Unlawful  Currency. 

SO  offending  shall,  on  conviction,  be  punished  by  confinement  and 
labor  in  the  penitentiary,  for  any  time  not  less  than  two  nor 
longer  than  ten  years. 

§  4384.  If   any  person   shall  fraudulently  make,   sign,  forge,  rorgingany 
counterfeit,  or  alter,  or  be  concerned  in  the  fraudulent  making,  ing. 
signing,  forging,  counterfeiting,  or  altering  any  other  writing  not 
herein  provided  for,  with  intent  to  defraud  any  person  or  persons, 
bank  or  other  corporate  body,  or  shall  fraudulently  cause  or  pro- 
cure the  same  to  be  done,  such  person  so  offending  shall,  on  con- 
viction, be  punished  by  imprisonment  and  labor  in  the  penitentiary,  tJ^efrauc?"*^ 
for  any  time  not  less  than  two  years  nor  longer  than  five  years. 

§4385.  If  any  person  shall  falsely  and  fraudulently  forge  or    Forging  or 

i-p'T  ••        ^  using  forged 

counterfeit,  or  be  concerned  in  forging  and  counterfeiting  the  great  public  seals. 
seal  of  this  State,  or  any  seal  used  for  Government  purposes,  the 
public  and  common  seal  of  any  Court,  office.  County,  or  corpora- 
tion, or  any  other  seal  authorized  by  law,  or  shall  falsely  and 
fraudulently  cause  or  procure  the  same  to  be  forged  and  counter- 
feited, or  shall  falsely,  fraudulently,  and  knowingly  impress,  or 
cause  to  be  impressed,  any  instrument  whatever,  whether  the  same 
be  written  or  printed,  or  partly  written  and  partly  printed,  with 
such  forged  and  counterfeit  seal,  or  shall  falsely,  fraudulently, 
and  knowingly  annex  or  affix,  or  cause  to  be  annexed  or  affixed  to 
any  such  instrument,  such  forged  and  counterfeit  seal,  or  shall 
falsely  and  fraudaleritly  utter  or  publish  any  instrument  or  writing 
whatever,  impressed  with  such  forged  and  counterfeit  seal,  know- 
ing the  same  to  be  forged  and  counterfeit,  such  person  so  offending 
shall  be  punished  by  imprisonment  and  labor  in  the  penitentiary, 
for  any  time  not  less  than  two  years  nor  longer  than  ten  years. 

§  4386.  Any  person  who  shall  draw  or  make  a  bill  of  exchange,    usingficti- 

T         1  .11  .  ,  •     1  ,     ,1  •  tlous  names. 

due  bill,  or  promissory  note,  or  indorse  or  accept  the  same  m  a 
fictitious  name,  shall  be  guilty  of  forgery,  and,  on  conviction,  be 
punished  by  confinement  and  labor  in  the  penitentiary,  for  any 
time  not  less  than  two  years  nor  longer  than  seven  years. 

§  4387.  If  any  person  shall  put  his  own  name  to   any  instru-  Personating 

1  '  If,  1  t-rr  n     1  another. 

ment,  representing  himself  to  be  a  dinerent  person  oi  that  name, 
such  person  shall  be  guilty  of  forgery,  and,  on  conviction,  shall  be 
punished  by  imprisonment  and  labor  in  the  penitentiary,  for  any 
time  not  less  than  two  years  nor  longer  than  seven  years. 

§  4388.  If  any  person  shall  designedly,  by  color  of  any  coun-   ' 
terfeit  letter  or  writing,  made  in  any  other  person's  name,   or 


862  PT.  4.— TIT.  1.--Penal  Code. 


Division  7. — Forgery  and  Counterfeiting,  and  Unlawful  Currency. 


Obtaining  fictitious  name,  obtain  from  anj  person  money,  goods,  chattels,  or 
onfoisewrit-  other  Valuable  thing,  with  intent  to  defraud  any  person,  mercan- 
tile house,  or  body  corporate,  or  company  of  the  same,  such  person 
so  offending  shall,  on  conviction,  be  punished  by  imprisonment 
and  labor  in  the  penitentiary,  for  any  time  not  less  than  two  nor 
longer  than  seven  years. 

§  4389.  Any  person  or  persons,  body  corporate  or  politic,  who 
TJnauthoriz-  may  hereafter  make,  issue,  circulate,  pay,  or  tender  in  payment  (not 
currency,     being  an  innocent  holder  thereof),  any  check,  order,  draft,  or  bill 
for  the  payment  of  money,  or  other  thing  having  the  form  or  simili- 
tude of  a  bank  note,  and  intended  to  be  used  and  circulated  as 
money,  or  circulating  medium,  except  such  banking  institutions 
and  corporations  as  by  law  are  authorized  to  issue  notes,  or  bills 
for  circulation,  shall  be  liable  to  indictment,  as  for  a  misdemeanor, 
\  and,  on  conviction,  shall  be  punished  [as  prescribed  in  Section 

4245  of  this  Code.]  (a) 

§  4390.  The  making  or  issuing  each  check,  order,  draft,  or  bill 
Each biiia  for  the  payment  of  money,  or  other  thinar  having  the  similitude  of 

new  offense.  ^    '^  *^  *^  ^ 

money,  as  above,  shall  be  considered  and  held  as  a  separate  and 

distinct  offense ;  and  if  done  by  any  corporation  or  body  politic, 

the  officer  or  member  of  the  same  signing  the  said  check,  order, 

bill,  or  other  thing  having  the  similitude  of  money,  or  intended  to 

be  used  as  money,  shall  be  liable  to  prosecution  and  conviction. 

§  4391.  It  shall  be  the  duty  of  every  Grand  Jury  to  notice  and 

Duty  of  present  all  violations  of  the  foregoing  provisions  as  to  unauthor- 

jury!  ized  currency,  and  of  the  presiding  Judges  of  the  Superior  Courts, 

whenever  necessary,  to  give  the  same  in  special  charge. 

§  4392.  In  all  cases  of  conviction  for  violation  of  Sections  4389 

Disposition  and  4390,  one-half  of  the  fine  shall  be  paid  to  the  prosecutor,  if 

there  be  one,  and  the  other  half  to  the  Educational  Fund  of  the 

County. 

(a)  Acts  of  1865-6,  p.  233. 


PT.  4.— TIT.  1.— Penal  Code. 


863 


Division  8. — Crimes  and  Offenses  Against  the  Public  Justice. 


EIGHTH    DIVISION. 

CRIMES  AND   OFFENSES  AGIAINST   THE   PUBLIC   JUSTICE. 


•  f 


Section. 

4393.  Perjury. 

4394.  Puniphment. 

4395.  False  swearing. 

4396.  Punishment. 

4397.  Subornation. 

4398.  Punishment. 
4390.  Disqualification. 

4400.  Verdicts  void. 

4401.  Causing  death. 

4402.  Bribery. 

4403.  Punishment. 

4404.  Altering  public  documents. 

4405.  Cruelty  in  jailor. 
440G.  Detaining  records. 
4407.  Personating  in  bail. 
440S.  Obstructing  process. 

4409.  Assaults  colore  ojfficie. 

4410.  Rescue. 

4411.  Punishment  in  criminal  cases. 

4412.  In  civil  cases. 

4413.  Attempt  to  rescue. 

4414.  Aiding  to  escape. 

4415.  From  custody. 

4416.  From  penitentiary. 


/A 


^^' 


Skction. 

4417.  Voluntary  escape. 

4418.  Refusing  to  receive  prisoner. 

4419.  Refusing  penitentiary  prisoners. 

4420.  Receiving  stolen  goods. 

4421.  Principal  escaping. 

4422.  Accessories  after  the  fact. 

4423.  Compounding  felonies. 

4424.  Compounding  penalties. 

4425.  Conspiracies. 

4426.  Interfering  with  apprentices. 

4427.  Who  may  testify. 

4428.  Illegal  employment  of  servants. 

4429.  Barratry. 

4430.  Punishment. 

4431.  Embracery. 

4432.  Malpractice  by  Justice  of  the  Peace. 

4433.  Threatening  letters. 

4434.  Extortion. 

4435.  Punishment. 

4436.  Other  offenses. 

4437.  Mutiny. 

4438.  Instigating  mutiny. 

4439.  Receiving  stolen  goods  from  negroes 


j^"rj 


Perjury 
defined. 


/ 


§  4393.  Perjury  shall  consist  in  willfully,  knowingly,  absolutely, 
and  falsely  sv/earing,  either  with  or  without  laying  the  hand  on  the 
Holy  Evangelist  of  Almighty  God,  or  affirming  in  a  matter  mate-^  '  ^^Tu\ 
rial  to  the  issue  or  point  in  question,  in  some  judicial  proceeding, '^v^*         / 
by  a  person  to  whom  a  lawful  oath  or  affirmation  is  administered.  ^ ij,ij\l  , 

§  4394.  Any  person  who  shall  commit  the  crime  of  perjury  shall  punishment. 
be  punished  by  imprisonment  and  labor  in  the  penitentiary  for 
any  time  not  less  than  four  years  nor  longer  than  ten  years. 

§  4395.  False  swearing  shall  consist  in  willfully,  knowinscly,  ab-  False  swear- 

°  ^./ ^  o  »/ '  iiig defined. 

solutely,  and  falsely  swearing,  either  with  or  without  laying  the 
hand  on  the  Holy  Evangelist  of  Almighty  God,  or  affirming  in 
any  matter  or  thing  (other  than  a  judicial  proceeding),  by  a  per- 
son to  whom  a  lawful  oath  or  affirmation  is  administered. 

§  4396.  Any  person  who  shall  commit  the  crime  of  false  swear- 
ing shall  be  punished  by  imprisonment  and  labor  in  the  peni- 
tentiary for  any  time  not  less  than  three  years  nor  longer  than 
ten  years. 

§4397.  Subornation  of  perjary  and  false  swearing  shall  consist  subornation. 
in  procuring  another  person  to  commit  the  crime  of  perjury  or 
false  swearing. 


Penitenti* 
ary  three  to 
ten  years. 


864  PT.  4.— TIT.  1.— Penal  Code. 


Division  8. — Crimes  and  Offenses  Against  the  Public  Justice. 


/l/fcA-  ^^g  same  to  be  set  aside,  upon  motion  and  notice  to  the  adverse 

^/  fli/^i  1        party  ;  but  it  shall  not  be  lawful  for  the  said  Court  to  do  so  unless 


§  4398.  Any  person  who  shall  commit  the  crime  of  subornation 
Pcnitenti-  of  periurv,  or  false  swearinsr,  shall  be  punished  by  confinement 

ary  three  ^o         ^      \      '^  \  .  .  «  .  ,  , 

ten  years,  and  labor  m  the  penitentiary  for  any  time  not  less  than  three 
years  nor  longer  than  ten  years. 

§4399.  Any  person  who   shall  be  lawfully  convicted  of  either 
Disqualified  of   the   crimes  mentioned  and  defined    in    Sections  4393,  4395, 

as  witness.  ,  ...  . 

and  4397  of  this  Code,  shall,  in  addition  to  the  punishment  pre- 
scribed in  Sections  4394,  4396,  and  4398  of  this  Code,  be  forever 
thereafter  disqualified  from  being  a  witness  in  any  controversy. 
§4400.  Any  verdict   or  judgment,  rule    or   order,   of    Court, 
Verdicts,  wliich  may  have  been  obtained  or  entered  up,  shall  be   set  aside 

etc.  obtained  *^  ^  ^ 

by    perjury  and  bo  of  uo  offect,  if  it  shall  appear  that  the  same  was  obtained 

set  aside.  ^  •'•  '■ 

.        |.       p^'^-'OT  entered  up  in  consequence  of  willful  and  corrupt  perjury;  and 
/•  ^//    it  shall  be  the  duty  of  the  Court  in  which  such  verdict,  judgment, 

K^^  \^''^i,^-y^    rule,  or  order,  may  have  been  obtained  and  entered  up,  to  cause 
^^^       -  y-    the  same  to  be  set  aside,  up 
y  fJp^i  i        party ;  but  it  shall  not  be  la^^ 

^  /     the  person  charged  with  said  perjury  shall  have  been  thereof  duly 

convicted,  and  unless  it  shall  appear  to  the  said  Court  that  the 
said  verdict,  judgment,  rule,  or  order,  could  not  have  been  ob- 
tained or  entered  up  without  the  evidence  of  such  perjured  per- 
Proviso.  son — saving  always  to  third  persons,  innocent  of  such  perjury, 
the  right  which  they  may  have  lawfully  acquired  under  such  ver- 
dic*",  judgment,  rule,  or  order,  before  the  same  shall  have  been 
actually  vacated  and  set  aside. 

§  4401.  If  any  person,  by  Avillful  and  corrupt  perjury,   shall 
False  wit-  take  away  the  life  of  another,  or,  by  such  willful  and  corrupt  per- 

ness  causing  '^  .  . 

death, etc., tx)j my ^  couvict  another  of  any  offense  which,  by  this  Code,  is  pun- 
ishable with  death  or  perpetual  imprisonment,  such  person  shall 
be  punished  with  death  or  perpetual  imprisonment. 

§  4402.  Bribery  is  the  giving  or  receiving  any   undue  reward 
Bribery    to  influence  the  behavior  of  the  person  receiving  such  reward  in 
the  discharge  of  his  duty,  in   any   office  of   government   or  of 
justice. 

§  4403.  If  any  person  shall  directly,  or  indirectly  give,  or  offer 
Punishment  to  givc  any  monev,  goods,  or  other  bribe,  present,  or  reward ;  or 

of  bribery.        .  ,  .  r»         i 

give  or  make  any  promise,  contract,  or  agreement  lor  the  payment, 
delivery,  or  alienation  of  any  money,  goods,  lands,  or  other  bribe ; 
or  use  any  promises,  threats,  persuasions,  or  other  like-sinister, 
unfair,  or  fraudulent  practices  in  order  to  obtain  or  influence  the 


PT.  4.— TIT,  1.— Penal  Code.  860 

Division  8. — Crimes  and  Offenses  Against  tlie  Public  Justice. 


opinion,  judgment,  decree,  or  behavior,  of  any  member  of  the 
General  Assembly,  or  any  officer  of  this  State,  Judge,  Justice, 
referee,  or  arbitrator  in  any  discussion,  debate,  action,  suit,  com- 
plaint, indictment,  controversy,  matter,  or  cause  depending,  or 
which  shall  depend  before  him  or  them,  such  person  shall,  on  con- 
viction, be  punished  [as  prescribed  in  Section  4245  of  this 
Code.]  (a)  And  the  member  of  the  General  Assembly,  or  officer, 
Judge,  Justice,  referee,  or  arbitrator  who  shall  accept  or  receive    oftii<-ppr- 

ii'i  in  ••  •    1        T      r  Ml-       ^"^^  bribed. 

such  bribe,  shall,  on  conviction,  be  punished  \_iis  prescribed  m 
Section  4245  of  this  Code.]  (a) 

§4404.  If  any  Judge,  Justice,  Mayor,  Alderman,  Clerk,  Sher-  steaHRg,ai- 
iff,  Coroner,  or  other  public  officer,  or  any  other  person  whatsoever,  "f      P"Wic 

^  ^  r  7  J  r  7  documents. 

shall  steal,  embezzle,  alter,  corrupt,  withdraw,  falsify,  or  avoid 
any  record,  process,  charter,  gift,  grant,  conveyance,  or  contract ; 
or  shall  knowingly  and  willingly  take  off,  discharge,  or  conceal 
any  issue,  forfeited  recognizance,  or  other  forfeiture ;  or  shall 
forge,  deface,  or  falsify  any  document  or  instrument  recorded,  or 
any  registry,  acknowledgment,  or  certificate  ;  or  shall  alter,  de- 
face, or  falsify  any  minute,  document,  book,  or  any  proceeding 
whatever,  of  or  belonging  to  any  public  office  within  this  State ; 
or  if  any  person  shall  cause  or  procure  any  of  the  offenses  afore- 
said to  be  committed,  or  be  in  anywise  concerned  therein,  the  per- 
son so  offending  shall  be  punished  by  imprisonment  and  labor  in 
the  penitentiary  for  any  time  not  less  than  two  years,  nor  longer 
than  ten  years. 

§4405.  If  any  jailor,  by  too  great  a  duress  of  imprisonment,  .  Cruelty  m 
or  other  cruel  treatment,  make  or  induce  a  prisoner  to  become  an 
approver,  or  accuse  and  give  evidence  against  some  other  person  ; 
or  be  guilty  of  willful  inhumanity  or  oppression  to  any  prisoner 
under  his  care  and  custody,  such  jailor  shall  be  punished  by 
removal  from  office,  and  imprisonment  and  labor  in  the  peniten- 
tiary for  any  time  not  less  than  one  year,  nor  longer  than  three 
years. 

§  4406.  If  any  officer,  after  the  expiration  of  the  time  for  which        officers 
he  may  have  been  elected,  or  appointed,  shall  willfully  and  unlaw-  books,    etc. 
fully  withhold,  or  detain  from  his  successor  the  records,  papers,  sors. 
documents,  books,  or  other  writings  appertaining  and  belonging 
to  his  office,  or  mutilate,  destroy,  take  away,  or  otherwise  prevent 
the  complete  possession  by  his  said  successor  of   said  records, 

(a)  Acts  of  1865-6,  p.  233, 

55 


/    1 


866  PT.  4.— TIT.  1.— Penal  Code. 

Division  8. — Crimes  and  Offenses  Against  the  Public  Justice. 

documents,  papers,  books,  or  other  writings,  sucli  person  so  offend- 
ing shall,  on  conviction,  be  punished  [as  prescribed  in  Section  4245 
of  this  Cocie.]  (a) 

§  4407.  If  any  person  except  the  Attorney  of  Record  shall 
personatin?  acknowledge  or  procure  to  be  acknowledged,  in  any  of  the  Courts 
inent,fctc.  Qf  *}jjg  gtatc,  or  bcfore  any  authorized  officer,  any  recognizance, 
bail,  or  judgment  in  the  name  of  any  other  person  not  privy  or 
consenting  thereto,  such  person  so  offending  shall,  on  conviction, 
be  punished  by  imprisonment  and  labor  in  the  penitentiary  for 
an}  period  of  time  not  less  than  one  year,  nor  longer  than  four 
years. 

§  4408.  If  any  person  shall  knowingly  and  willfully  obstruct, 
Obstructing  resist,   or  oppose   any    Sheriff,   Coroner,   or   other  officer  of  this 

legal  process  ^  ^  *^  i        •        i     • 

State,  or  other  person  duly  authorized  m  serving,  or  attempting 
to  serve  or  execute  any  lawful  process,  or  order  of  any  Court, 
Judge,  Justice,  or  arbitrators,  or  any  other  legal  process  what- 
ever ;  or  shall  assault  or  beat  any  Sheriff,  Coroner,  Constable,  or 
other  officer,  or  person  duly  authorized,  in  serving  or  executing 
any  process  or  order  aforesaid,  or  for  having  served  or  executed 
the  same  ;  every  person  so  offending  shall,  on  conviction,  be  pun- 
ished [as  prescribed  in  Section  4245  of  this  Code.]  (a)    - 

§  4409.   If  any  officer  of  this  State,  whatever,  shall  assault  or 
Assauit,etc.  j^gat  any  individual  under  color  of  his  office,  or  commission,  with- 

iinaer    color  *'  '  ^ 

of  office.'      Qy|^  e^  lawful  necessity  so  to  do,  such  officer  so  offending  shall,  on 

conviction,  be  punished  [as  prescribed  in  Section  4245  of  this 
Code.]  (a) 

§  4410.  Rescue  is  the  forcibly  and  knowingly  freeing  another 

Eescue  de-  .  . 

fined.  from  an  arrest  or  imprisonment. 

§  4411.  If  any  person  shall  rescue  another  in  legal  custody  on 
Punibhmeiit  criminal  process,  such   person  so  offending  shall,  on  conviction? 

in     criminal  _  ,  o  / 

cases.  receive  the  same  punishment  as  the  person  rescued  would,  on  con- 

viction, be  sentenced  to  receive,;  but  if  the  person  rescued  shall 
have  been  acquitted  of  the  crime  charged  against  him,  then  and 
in  such  case,  the  person  rescuing  shall  be  punished  [as  prescribed 
in  Section  4245  of  this  Code.]  (a) 

§  4412.  If  any  person  shall  rescue  another  in  legal  custody  on 
Punisiiment  civil  proccss,  such  pcrsou  SO  offending  shall,  on  conviction,  be  pun- 
ished [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4413.  If  any  person  shall  attempt  to  rescue  another  in  legal 

(a)  Acts  of  1865-6,  p.  233. 


PT.  4.— TIT.  1.— Penal  Code.  867 


Division  8. — Crimes  and  Offenses  Against  tlie  Public  Justice. 

custody  on  criminal   process,  such  person   so  offending  shall,  on    Atteu.pt  to 
conviction,  be  punished  by  confinement  in  the  common  jail  of  the 
County  for  any  time  not  exceeding  six  months,  or  by  confinement 
and  labor  in  the  penitentiary  for  any  time  not  less  than  one  year 
nor  longer  than  two  years,  at  the  discretion  of  the  Court. 

§  4414-   If  any  person  shall  aid  or  assist  a  prisoner,  lawfully   Assistingto 

'J    ^  .     escape  from 

committed  or  detained  in  any  jail,  for  any  offense  against  thisJ^^^- 
State,  or  under  any  civil  process,  to  make  his  or  her  escape  from 
jail,  whether  such  escape  be  actually  effected  or  not,  or  if  any 
person  shall  convey,  or  cause  to  be  delivered  to  such  prisoner  any 
disguise,  instrument,  or  arms,  proper  to  facilitate  the  escape  of 
such  prisoner,  such  person  so  offending  shall,  on  conviction,  be 
punished  by  confinement  and  labor  in  the  penitentiary  for  any  time 
not  less  than  one  year  nor  longer  than  four  years. 

§  4415.  If  any  person  shall  aid  or  assist  any  prisoner  to  escape,   Assistingto 

c  ^  T  c  m        TP    /-(  escape   from 

or  attempt  to  escape  irom  the  custody  oi   any  feherin,  Coroner,  custody. 
Constable,  officer,  or  other  person,  who  shall  have  the  lawful  charge 
of  such  prisoner,  such  person  so  offending  shall,  on  conviction,  be 
punished  by  confinement  and  labor   in  the  penitentiary  for   any 
time  not  less  than  one  year  nor  longer  than  five  years. 

§  4416.   If  any  person  confined  in  the  penitentiary  shall  escape  Escapefroni 

*^  ,  penitentiary 

therefrom,  and  be  thereafter  retaken,  such  person  shall  be  indicted 
for  an  escape,  and,  on  conviction,  shall-  be  punished  by  imprison- 
ment and  labor  in  the  penitentiary  for  the  term  of  four  years ;  ^^^^^[^^^ 
and  any  person  who  shall  aid  or  assist  a  prisoner  confined  in  the 
penitentiary  to  escape,  or  in  an  attempt  to  escape  therefrom,  shall, 
on  conviction,  receive  the  like  punishment. 

§  4417.   If  any  Sheriff',   Coroner,   Constable,  keeper  of  a  iail,     voluntary 

*'  ...  escapes. 

keeper,  officer,  or  other  person  employed  in  the  penitentiary,  hav- 
ing any  offender,  guilty,  or  accused  of,  or  confined  for  any  crime, 
in  his  custody,  shall  voluntarily  permit  or  suffer  such  offender  to 
escape  and  go  at  large,  every  such  Sheriff,  Coroner,  keeper  of  a 
jail,  keeper,  officer,  or  other  person  employed  in  the  penitentiary, 
Constable,  or  other  officer,  or  person  so  offending,  shall,  on  convic- 
tion, be  punished  by  confinement  and  labor  in  the  penitentiary  for 
any  time  not  less  than  two  years  nor  longer  than  seven  years,  and 
shfill  moreover,  if  a  public  officer,  be  dismissed  from  office. 

§4418.  If  any  Sheriff,  Coroner,  Constable,  keeper  of  a  jail,  or    Eefusingto 

y  rr  1   "^         T  •       •  •  1  J        •   1  receive  pris- 

otner  oincer,  whose  duty  it  is  to  receive  persons  charged  with  or  cner. 
guilty  of  an   indictable   offense,  shall  refuse  to  receive  and  take 
charge  of  such  person  or  persons,  every  such  Sheriff,   Coroner, 


868  PT.  4.— TIT.  1.— Penal  Code. 

Division  8. — Crimes  and  Offenses  Asainst  the  Public  Justice. 


Constable,  keeper  of  a  jail,  or  other  officer,  so  offending,  shall,  on 
conviction,  be  punished  by  confinement  and  labor  in  the  peniten- 
tiary for  any  time  not  less  than  two  years  nor  longer  than  seven 
years;  and  such  officer  shall  moreover  be  dismissed  from  office. 
§  4419.  If  the  keeper  of  a  penitentiary,  or  other  officer  or  per- 
Ecfusing  son  employed  there,  whose  duty  it  is  to  receive  convicts,  shall  fail 
prisoners,     or  rcfusc  to  do  SO,  such  keeper,  officer,  or  other  person  so  offend- 
ing, shall,  on  conviction,  be  punished  by  confinement  and  labor  in 
the  penitentiary^  for  any  time  not  exceeding  ten  years ;  and  shall 
moreover  be  dismissed  from  office. 

§  4420.   If  any  person  shall  buy  or  receive  any  goods,  chattels. 
Receiving  moncy,  or  other  effects,  that  shall  have  been  stolen  or  feloniously 

stolen  goods.         -i^  ii'i  i  ^  n   i         '  i 

taken  irora  another,  knowing  tne  same  to  be  stolen  oi  leloniously 
taken,  such  person  shall  be  taken  and  deemed  to  be  an  accessory 
after  the  fact,  and  shall  receive  and  suffer  the  same  punishment  as 
would  be  inflicted  on  the  person  convicted  of  having  stolen  or 
feloniously  taken  the  said  goods,  chattels,  money,  or  effects^  so 
bought  or  received. 

§  4421.  If  the  principal  thief  or  thieves  can  not  be  taken,  so  as 
If  principal  to  bc  prosccuted  and  convicted,  it  shall  be  lawful  to  prosecute  any 

can    not    be  !•  ••  iiiii  re      l 

taken.         pcrson  Duying  or  receiving  any  goods,  chattels,  money,  or  enects, 
stolen  or  feloniously  taken  by  such  principal  thief  or  thieves, 
knowing  the  same  to  be  stolen  or  feloniously  taken,  as  for  a  mis- 
demeanor, and,  on  conviction,  such  person  shall  be   punished  as 
prescribed  in  the  preceding  Section ;   and  a  conviction  under  this 
Section  shall  be  a  bar  to  any  prosecution  under  Section  4420. 
§  4422.  If  any  person  shall  receive,  harbor,   or   conceal,  any 
Accessory  pcrson  guilty  of  a  crime  punishable  by  death,  or  imprisonment 
and  labor  in  the  penitentiary,  knowing  such  person  to  be  guilty, 
such  person  so  receiving,  harboring,  or  concealing,  shall  be  taken 
and  deemed  to  be  an  accessory  after  the  fact,  and,  on  conviction, 
shall  be  punished  by  imprisonment  and  labor  in  the  penitentiary 
for  any  time  not  less  than  one  year  nor  longer  than  three  years. 
§  4423.  If  any  person  shall  take  or  receive  any  money,  goods, 
Compound-  cliattcls,  lands,  or  other  reward,  or  promise  to  compound,  or  shall, 
ingcumes.    ^^^  ^^^  causc,  compound  any  crime  or   offense   punishable   wdth 

* 

/  /)         /  death  or  imprisonment  and  labor  in  the  penitentiary,  such  person 

A  r/4    f'    /    so  offending  shall,  on  conviction,  be  punished  by 'imprisonment 

and  labor  in  the  penitentiary  for  any  time  not  less  than  one  year 

nor  longer  than  five  years. 

§  4424.  If  any  person,  informing  or  prosecuting  under  pretence 


PT.  4.— TIT.  1.— Penal  Code.  869 

Division  8. — Crimes  and  Offenses  Against  the  Public  Justice. 


of  any  penal  law,  shall  compound  with  the  offender,  or  direct  the  compoami- 

.  .  .  .  .  ^°o  penalties 

suit  or  information  to  be  discontinued,  unless  it  be  by  leave  of  the 
Court  where  the  same  is  pending,  such  person  so  offending  shall, 
on  conviction,  [be  punished  as  prescribed  in  Section  4245  of  this 
Code.]  (a) 

§4425.  If  any  two  or  more  persons  shall  conspire  or  agree,  Conspiracy. 
falsely  and  maliciously,  to  charge  and  indict  any  innocent  person 
of  a  crime,  who  is  accordingly  indicted  and  acquitted,  such  person 
so  cons})iring,  and  each  and  every  one  of  them,  shall,  on  convic- 
ti  n,  be  punished  by  imprisonment  and  labor  in  the  penitentiary 
for  any  time  not  less  than  twelve  months  nor  longer  than  five  years. 

§4426.  [If  any  two  or  more  persons  shall  associate  themselves      Enticing 
together  lo  any  society  or  organization  whatever,  with  intent  and  prentices. 
for  the  purpose  of  preventing,  in   any  manner  whatever,  any  per- 
son or  persons   whomsoever  from   apprenticing  himself  or  them- 
selves to  learn  and  practice  any  trade,  craft,  vocation,  or  calling 
whatsoever,  or  for  the  purpose  of  inducing,  by  persuasion,  threats, 
fraud,  or   any  other  means,  any  apprentice  or  apprentices  to  any 
such  trade,  craft,  vocation,  or  calling,  to  leave  the  employment  of 
their  employer  or  employers,  or  for  the  purpose,  by  any  means 
whatever,  of  preventing  or  deterring  any  person  or  persons  whom- 
soever, from  learning  and  practicing  any  such  trade,  craft,  voca- 
tion, or  calling  whatsoever,  every  such  person  so  associating  him- 
self in   such  society  or  organization  shall  be  deemed  guilty  of  a 
misdemeanor,  and,  upon  conviction   thereof,  shall  be  punished  as  Punishment 
prescribed  in  Section  4245  of  this  Code.]  (b) 

§  4427.  [  Upon  the  trial  of  any  person  or  persons  under  the  prece-    Evidence 

T  oi         '  '  -IT-  ^  O^  trial. 

amg  Section,  any  person  may  be  made  a  witness;  and  no  statements 
made  by  him  or  her,  on  such  trial,  shall  be  given  in  evidence 
against  him  or  her,  except  upon  an  indictment  for  perjury.]  (b) 

§4428.  [If  any  person,  by  himself  or  agent,  shall  be  guilty  of  iiiegaiem- 
'^'  <gffijkiying  the  servant  of  another,  during  the  term  for  which  he,  servS. 
"Jy  *5she,  or  they,  may  be  employed,  knowing  that  such  servant  was  so 
employed,  and  that  his  term  of  service  was  not  expired — or,  if  any 
person  or  persons  shall  entice,  persuade,  or  decoy,  or  attempt  to 
entice,  persuade,  or  decoy,  any  servant  to  leave  his  employer, 
either  by  offering  higher  wages,  or  in  any  other  way  whatever, 
during  the  term  of  service,  knowing  that  said  servant  was  so  em- 
ployed, shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon  con- 

(a)  Acts  of  1865-6,  p.  233    (b)^  Acts  of  1862-3,  p.  173. 


870  PT.  4.— TIT.  1.— Penal  Code. 


0. 


Division  8. — Crimes  and  Offenses  Against  the  Public  Justice. 

viction   thereof,  shall  be   fined   any  sum  not  more  than  two  hun- 
dred dollars,  or  be  confined  in  the  common  jail  of  the  County,  in 
the  discretion  of  the  Court,  not  to  exceed  three  months.]  (a) 
§  4429.   Common  barratry  is  the  ofi"ense  of  frequently  exciting 
Barratry    and  stirrinff  suits  and  quarrels  between  individuals,  either  at  law 

defined.  °  ^  ' 

or  otherwise. 

§  4430.  Any  person  who  shall  be  found   and  adjudged  a  com- 

Punishment.  mon  barrator,  vexing  others  with  unjust  and  vexatious  suits,  shall, 

on  conviction,  be  punished  by  a  fine  not  exceeding  five   hundred 

dollars;  and  if  the  offender  belongs  to  the   profession  of  the  law, 

he  shall  also  be  disqualified  from  practicing  for  the  future.* 

§  4431.  Embracery  is  an  attempt,  whether  successful  or  not, 
Embracery,  to  influence  a  jury  corruptly  to  one  side  by  promises,  persuasions, 
entreaties,  money,  entertainments,  and  the  like.  Every  embracer 
who  shall  procure,  or  attempt  to  procure,  a  juror  to  take  money, 
gain,  or  profit,  or  shall  corruptly  influence,  or  attempt  to  influ- 
ence, a  juror  by  persuasions,  promises,  entreaties,  or  by  any  other 
means,  shall,  on  conviction,  be  punished  by  imprisonment  and  la- 
iSor  in  the  penitentiary  for  any  time  not  less  than  one  year  nor 
longer  than  four  years.  And  the  juror  convicted  of  taking  money, 
gain,  or  profit,  or  of  being  corruptly  influenced  as  aforesaid,  shall 
be  punished  by  confinement  and  labor  in  the  penitentiary  for  any 
time  not  less  than  two  years  nor  longer  than  five  years,  and  shall 
moreover  be  forever  disqualified  to  act  as  a  juror. 

§  4432.  [Any  Justice  of  the  Inferior  Court,  or  Justice  of  the 
Malpractice  Pcacc,  who  shall  be  charged  with  malpractice  in  office,   or  with 

by     Justices         .  .  ...  ...  •T-nr»n  f»' 

of  the  Peace  usiug  opprcssiou  or  tyrannical  partiality,  or  with  williuily  reiusing 

and  others.  r'  -i         .  ^      ^  ^     ^   -       n\  ^  i 

or   tailing  to  preside   m   or   hold   his  Court  at  the  regular  terms 
/,//?  'f^    ^      thereof,  or  when  it  is  his  duty  under  the  law  to  do  so,  or  with 
using  any  other  means  to  delay  or  avoid  the  due  course  or  pro- 
ceeding of  law,  or  with  any  other  conduct  unbecoming  the  ehar- 
, ,   i       I  acter   of   an]  (b)  upright   Magistrate  or   who  shall  willfully  and 

knowingly  demand  more  cost  than  he  is  entitled  to  by  law,  in  the 
administration  and  under  color  of  his  office,  may  be  indicted: 
which  indictment  shall  specially  set  forth  the  merits  of  the  com- 
plaint, and  a  copy  thereof  be  served  on  the  defendant  before  the 
same  is  laid  before  the  Grand  Jury ;  and  the  prosecutor  and  the 
Justice,  and  their  witnesses,  shall  have  the  right  of  appearing 
and  being  heard  before  the  Grand  Jury ;    which  indictment,  if 

(a)  Acts  of  1866,  pp.  153-4.    *  See  Section  4608.    (b)  Acts  of  1865-6,  pp.  238-4. 


PT.  4.— TIT.  1.— Penal  Code.  871 


Division  8. — Crimes  and  Offenses  Asrtiinst  the  Public  Justice. 


found  true  by  the  Grand  Jury,  shall,  as  in  other  cases,  be  tried  by 
a  Petit  Jury — and  if  the  defendant  be  convicted,  he  shall  be  pun- 
ished by  fine  or  imprisonment  in  the  common  jail  of  the  County, 
or  both,  at  the  discretion  of  the  Court — and  shall  moreover  be  re- 
moved from  office,  if  still  in  office.*- 

§  4433.  If  any  person  shall  knowingly  send  or  deliver  any  let-  inJ^eSl!"" 
ter  or  writing,  threatening  to  accuse  another  person  of  a  crime,  ^^    ^,     f      /vTy.- 
with  intent  to  extort  money,  goods,  chattels,   or  other   valuable'  C^X^^  I^ 

thing  ;  or  threatening  to  maim,  wound,  kill,  or  murder  such  per-  f 

son,  or  any  of  his  family,  or  to  burn  or  otherwise  destroy  or  injure 
his  or  her  house,  or  other  property,  real  or  personal,  though  no 
money,  goods,  chattels,  or  other  valuable  thing,  be  demanded,  such 
person  so  offending  shall,  on  conviction,  be  punished  by  imprison- 
ment and  labor  in  the  penitentiary  for  any  time  not  less  than  two 
years  nor  longer  than  five  years. 

•§  4434.  Extortion  shall  consist  in  any  public  officer's  unlawfully     Extortion 
taking,  by  color  of  his  office,  from  any  person,  any  money  or  thing 
of  value  that  is  not  due  to  him,  or  more  than  his  due. 

§  4435.  Any  public  officer  who  shall,  by  himself,  his  deputy,  ^jjgjj^g"^,^"'^ 
agent,  or  other  person  employed  by  him,  be  guilty  of  extortion  in 
demanding  and  receiving  other  and  greater  fees  than  by  law  are 
allowed  him  ;  or  shall,  by  color  of  his  office,  take  from  any  person 
any  money  or  other  thing  of  value  that  is  not  due  to  him,  or  more 
than  his  due,  such  officer  shall  be  subject  to  indictment,  and  on 
conviction,  shall  be  punished  [as  prescribed  in  Section  4245  of  this 
Code,]  (a)  and  shall  moreover  be  dismissed  from  office. 

§4436.  Any  other  offense  against  public  iustice  not  herein  pro- ,  other  of- 

-'  "^  o  r  J  r  fenses       vs. 

vided  for,  shall  be  punished  [as  prescribed  in  Section  4245  of  this  P'jWic   jus- 
Code,]  (a) 

§4437.  If  any  prisoner  in  the  penitentiary  shall  assail,  oppose,     Mutiny  in 

•^    -^  /  _  '^  7      ri  7  penitentiary 

or  resist  any  officer  of  the  penitentiary,  or  any  member  of  the 
guard,  with  any  weapon,  or  implement  calculated  to  cause  death  or 
serious  bodily  injury,  such  prisoner  so  offending,  shall  be  deemed 
guilty  of  mutiny,  and  on  conviction  thereof,  shall  be  punished  by 
an  additional  term  of  imprisonment  and  labor  in  the  penitentiary, 
not  less  than  two  years  nor  longer  than  five  years,  at  the  discre- 
tion of  the  Court,  to  be  computed  from  the  expiration  of  the  term 
of  imprisonment  and  labor  to  which  such  prisoner  shall  have  been 
previously  sentenced. 

*  See  Section  4608.    (a)  Acts  of  1865-6,  p.  233. 


872 


PT.  4.— TIT.  1.— Pexal  Code. 


Division  8. — Crimes  and  Offenses  Against  the  Public  Justice. 

§4438.  If  any  person  shall  persuade,  entice,  or  instigate  any 
Instigating  prisonor  to  mutiny,  such  person  so  offending  shall  be  £:uilty  of  a 

mutiny.  -^    .  .       .  .  to  .^ 

misdemeanor,  and  on  conviction,  shall  be  punished  by  confinement 
and  labor  in  the  penitentiary  for  any  time  not  less  than  two  years 
nor  longer  than  five  years,  at  the  discretion  of  the  Court,  to  be 
computed,  if  a  prisoner  in  the  penitentiary,  from  the  expiration  of 
the  term  of  imprisonment  and  labor  for  which  he  shall  have  been 
previously  sentenced. 

§  4439.  If  any  free  white  person  shall  buy  or  receive  any  money, 
stoSr^oidf  g'^^^s,  chattels,  or  other  effects,  from  any  negro  or  free-  person  of 
fromanegro.  color,  that  has  or  liavc  been  stolen,  or  feloniously  taken,  knowing 
the  same  to  have  been  so  stolen  or  feloniously  taken,  such  person 
so  offending  shall  be  deemed  and  taken  to  be  an  accessory  after 
the  fact,  and  being  convicted  thereof,  shall  be  punished  by  im- 
prisonment and  labor  in  the  penitentiary  for  any  time  not  less  than 
one  year  nor  more  than  four  years. 


NINTH    DIVISION. 

OFFENSES  AGAINST  THE  PUBLIC  PEACE  AND  TRANQUILLITY, 


Section. 

4440.  Uunlawful  assemblies. 

4441.  Riot. 

4442.  Affrays. 

4443.  Dueling,  challenging. 

4444.  Seconds. 

4445.  Dueling,  fighting. 

4446.  Officers  not  preventing. 

4447.  Charging  the  "coAvard." 


Section. 

4448.  Libel. 

4449.  Printer,  witness. 

4450.  Truth  proved. 

4451.  Forcible  entry. 

4452.  Forcible  detainer. 

4453.  Punishment. 

4454.  Carrying  deadly  weapons. 

4455.  Other  offenses. 


§  4440.  If  two  or  more  persons  assemble  for  the  purpose  of  dis- 
Uniawfui  turbing  the  public  peace,  or  committing  any  unlawful  act,  and  do 

assemblies.  . 

not  disperse  upon  being  commanded  to  do  so  by  a  Judge,  Justice, 

Sheriff,  Constable,  Coroner,  or  other  peace  officer,  such  person  so 

offending  shall  be  guilty  of  a  misdemeanor,  and  on   conviction, 

shall  be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§4441.  If  any  two  or  more  persons,  either  with  or  without  a 

■y^,j^  aiioL^  j.^'Common  cause  of  quarrel,  do  an  unlawful  act  of  viojence,  or  any 

fe  J^fj^,    y\  i    other  act  in  a  violent  and  tumultuous  manner,  such  persons  so  of- 

I  ^'i/  ^  fending  shall  b^  guilty  of  a  riot,  and  on  conviction,  shall  be  pun- 


"Z' 


f7 


\fO  ^t  //. 


f      //   \     t  ^    <^ashed  [as  preslribed  in  Section  4245  of  this  Code.]  (a) 


•i  ^-\ 


7  s} 


rr^ 


(a)  Acts  of  1805-6,  p.  233. 


PT.  4.— TIT.  1.— Penal  Code.  873 


Division  9. — Offenses  Against  tlie  Public  Peace  and  Tranquillity. 

§  44-42.  An   affray  is  the  fighting  of  two  or  more  persons  in     Affrays. 
some  public  place,  to  the  terror  of  the  citizens  and  disturbance  of    i    >^     ^ 
the  public  tranquillity.     Persons  so  oifending  shall  be  indicted,  and  ^^ 

on  conviction,  shall  be  punished  [as  prescribed  in  Section  4245  of 
this  Code ;]  (a)  and  it  shall  be  considered  a  great  aggravation  of 
this  offense  if  any  contempt  or  disobedience  of  the  Magistrate,  or 
other  peace  officer  commanding  the  peace,  shall  be  proved. 

§4443.  If  any  person  shall  deliberately  challenge,  by  word  or  Duelling. 
writing,  the  person  of  another,  to  fight  with  sword,  pistol,  or 
other  deadly  weapon,  or  if  any  person  so  challenged  shall  accept 
the  said  challenge,  in  either  case,  such  person  so  giving,  or  send- 
ing, or  accepting  any  such  challenge,  shall,  on  conviction,  be  pun- 
ished by  a  fine  not  less  than  five  hundred  dollars,  and  be  impris- 
oned in  the  common  jail  of  the  County  for  any  time  not 
exceeding  six  months.  Or,  if  the  jury  should  so  recommend, 
such  person  shall,  in  addition  to  the  fine  herein  imposed,  be  pun- 
ished by  imprisonment  and  labor  in  the  penitentiary  for  any  time 
not  less  than  one  year,  nor  longer  than  two  years.* 

R  4444.  If  any  person  shall  knowingly  and  willfully  carry  and       Seconds 

"^     ^  .  °  .  same      pun- 

deliver  any  written  or  printed  challenge,  or  verbally  deliver  any  ishment. 
message  or  challenge  to  another,  to  fight  with  sword,  pistol,  or 
other  deadly  weapon,  or  shall  consent  to  be  a  second  in  any  such 
duel  or  combat,  such   person  so  ofiending  shall,  on  conviction,  be 
punished  in  the  same  manner  as  prescribed  in  the  preceding  Section. 

§  4445.  If  any  person  shall  be  engaged  in  the  act  of  fighting  a  Actof fi-ht- 
duel,  with  sword,  pistol,  or  other  deadly  weapon,  either  as  princi-  mfano?."^  ^' 
pal  or  second,  such  person  shall  be  guilty  of  a  high  misdemeanor, 
and  on  conviction,  shall  be  punished  by  imprisonment  and  labor 
in  the  penitentiary  for  any  time  not  less  than  four  years,  nor  lon- 
ger than  eight  years ;  lorovided,  nevertheless^  that  if  death  should 
ensue  from  such  duel,  then  all  the  parties,  both  principals   and  ensues. 
seconds,  shall  be  guilty  of  murder,  and  suffer  the  punishment  of 
death,  [but  the  punishment  may  commuted  in  conformity  with  the 
provisions  of  Section  4257  of  this  Code.]  (a) 

§  4446.  If  any  Justice,  or  other  public  officer  bound  to  preserve        officers 

.  .  ^  tnowingand 

the  public  peace,  shall  have  knowledge  of  an  intention  in  any  not  prevent- 

^  ^  '  ^  °  _  ,        "^   ing  duels. 

person  or  persons  to  fight  with  any  deadly  weapon,  and  shall  not 
use  and  exert  his  official  authority  to  arrest  the  parties  and  pre- 
vent the  duel,  by  binding  over  the  parties  concerned  to  keep  the 

(a)  Acts  of  1865-6,  p.  233.    *  See  Section  4608.    (b)  Acts  of  1866,  p.  150. 


J. 


874  PT.  4.— TIT.  1.— Penal  Code. 


Division  9. — Offenses  Against  the  Public  Peace  and  Tranquillity. 


.^ 


peace  toward  each  other,  such  Judge,  Justice,  or  other  peace  offi- 
cer so  offending,  shall,  on  conviction,  be  dismissed  from  office. 
§  4447.  If  any  person  or  persons  shall,  in  any  newspaper,  or 
Proclaiming:  handbill.  Written  or  printed,  publish  or  proclaim  any  other  person 

as  "coward,"  '  i  7  r  i  j  i 

etc..  in  print,  or  pcrsons  as  a  coward  or  cowards,  or  use  any  other  opprobrious 
and  abusive  language  for  not  accepting  a  challenge  or  fighting  a 
duel,  such  person  or  persons  so  offending  shall,  on  conviction,  be 
punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4448.  A  libel  is  a  malicious  defamation,  expressed  either  by 
Libel  de-    printing,  or  writing,   or   signs,   pictures   or   the  like,   tending   to 
blacken  the  memory  of  one  who  is  dead,  or  the  honesty,  virtue, 
^  '    "?  integrity,  or  reputation  of  one  who  is   alive,  and  thereby  expose 

him  or  her  to  public  hatred,  contempt,  or  ridicule.  Every, person 
convicted  of  this  offense,  shall  be  punished  [as  prescribed  in  Sec- 
tion 4245  of  this  Code.]  (a) 

§4449.  In  all  prosecutions  under  the  two  preceding  Sections  of 

Printer,  a  this  Divisiou,  the  printer  or  publisher  of  a  newspaper,  handbill, 

or  other  publication  containing  the  offensive  or  criminal  matter, 

shall  be  a  competent  witness  ;  and  if  such  printer  or  publisher 

Eefusing  shall  rcfusc  to  tcstifv  in  the  cause,  or  to  give  up  the  real  name  of 

to  testify.  ■^  ^  '  &  r 

the  author  or  person  authorizing  and  causing  the  publication,  so 
that  he  may  be  indicted,  then  such  printer  or  publisher  shall  be 
deemed  and  considered  the  author  himself,  and  be  indicted  and 
punished  as  such ;  and  may,  moreover,  be  punished  for  a  contempt 
of  the  Court,  as  any  other  witness  refusing  to  testify. 

§  4450.  In  all  cases  of  indictment  for  a  libel,  or  for  slander,  the 
iaevMence.  pcrson  prosccutcd  shall  be  allowed  to  give  the  truth  in  evidence. 

§  4451.  Forcible  entry  is  the  violently  taking  possession  of  lands 

Forcible     and  tenements  with  menaces,  force,  and  arms,  and  without  author- 
entry,  -x       r  1 

ity  01  law. 

§  4452.  Forcible  detainer  is  the  violently  keeping  possession  of 

Forcible    lands  and  tenements  with  menaces,  force  and  arms,  and  without 

detainer.  j^i        -^  r*   i 

authority  01  law. 

r-t;>^    'v7ljv?  ,,      §4453.  Any  person  who  shall  be  guilty  of  a  forcible  entry, 

Punishment  or  a  forcible   detainer,   or   both,  may   be  indicted,   and,   on  con- 
fer   forcible     _      ^  ^  '  .  .  . 

entry  or  de- yigtion,  shall  bc  punislicd  by  fine  or  imprisonment  in  the  com- 
mon  jail  of  the  County,  or  both,  at  the  discretion  of  the  Court; 
and  the  Court  before  whom  the  conviction  takes  place,  shall 
cause  restitution  of  possession  of   the  premises  to  be  made  to 

(a)  Acts  of  1865-6,  p.  233. 


PT.  4.— TIT.  1— Penal  Code. 


875 


Division  9,— Offenses  Against  tlie  Public  Peace  and  Tranquillity. 


the  party  aggrieved  ;*  provided,  always,  that  if  the  party  for- 
cibly detaining  lands  and  tenements,  or  those  under  whom  he 
claims,  shall  have   been  in  peaceable  possession  of  the  same  for  Uniessthrec 

'  ^  -i^  years      pos- 

the   space   of   three   years   or   more,   immediately    preceding   the  session, 
filing  of  the  complaint,  such  person  or  party  shall  not  be  subject 
to  the  penalties  of  this  Section,  nor  shall  restitution  of  possession 
be  made  ;  and  provided,  also,  that  the  only  questions  to  be  sub- 
mitted to  and  determined  by  the  jury  in  trials  for  forcible  entry,  aminabio.^''^" 
or  forcible  detainer,  shall  be  the  possession  and  the  force,  without 


regard  to  the  merits  of  the  title  on  either  side. 


Caii'yin^n^ 
con  cealed, 
wca- 


S  X->  »•    ^-  zv***^ 


§  4454.   Any  person  having  or  carrying  about  his  person,  unless 
in  an  open  manner  and  fully  exposed  to  view,  any  pistol  (except  <^eadiy 
horseman's  pistols),  dirk,  sword  in  a  cane,  spear,  bowie  knife,  or  . 

any  other  kind  of  knives  manufactured  and  sold  for  the  purpose"^  «>-*7^4..  ^<f^j,^^ 
of  offense  and  defense,  shall  be  guilty  of  a  misdemeanor,  and,  on'* 

conviction,  shall  be  punished   [as  prescribed  in  Section  4245  of 
this  Code.]  (a) 

§  4455.  All  other  offenses  against  the  public  peace,  not  provided 
for  in  this  Code,  shall  be  prosecuted  and  indicted  as  heretofore,  and  p^ibiicpeace. 
the  punishment,   in  every  such   case,  shall  be  [as  prescribed  in 
Section  4245  of  this  Code.]  (a) 


other  of- 
fenses      vs. 


TENTH  DIVISION. 

OFFENSES  AGAINST  THE    PUBLIC   MORALITY,  HEALTH,  POLICE,  ETC. 


Sectiois 

r. 

Section. 

4456. 

Bigamy. 

4478. 

Nuisances. 

4457. 

Punishment  on  married  person. 

4479. 

Disinterring  bodies. 

4458. 

On  unmarried  person. 

4480. 

Bastardy. 

4459. 

Incest. 

4481. 

Retailing  without  license. 

4460. 

Adultery. 

4482. 

Illegal  marrying. 

4461. 

Lewdness. 

4483. 

Marrying  white  and  colored. 

4462. 

Lewd  houses. 

4484. 

Illegal  voting. 

4463. 

Disorderly  houses. 

4485. 

Buying  or  selling  votes. 

4464. 

Gaming  houses. 

4486. 

Minor  voting. 

4465. 

Gaming  tables. 

4487. 

Adultery  with  negroes. 

4468. 

Gambling. 

4488. 

Whipping  wife. 

4467. 

Gaming  with  minors. 

4489. 

Interfering  with  religious  worship 

4468. 

Gaming  with  clerks  and  bank  offi'rs. 

4490. 

Retailing  near  church. 

4469. 

Players— witnesses. 

4491. 

Vending  near  campgrounds. 

4470. 

Judge's  charge. 

4492. 

Running  freight  trains  on  Sunday 

4471. 

Suspected  houses. 

4493. 

Violating  Sabbath. 

4472. 

Unwholesome  provisions. 

4494. 

Illegal  bathing. 

4473. 

Unwholesome  bread,  etc. 

4495. 

Fines  from  Sabbath-breakers. 

4474. 

Spreading  small  pox. 

4496. 

Bonds  in  case  of  vagrancy. 

4475. 

Violating  quarantine. 

4497. 

Att'y  or  Sol'r— duty  in  such  case. 

4476. 

Vagrants. 

4498. 

Yf  ater  and  light  on  railroads. 

4477. 

Common  rogues. 

*  Bee  Section  4608.    (a)  Acts  of  1865-6,  p.  233. 


876  PT.  4.— TIT.  1.— Penal  Code. 

Division  10. — Offenses  Against  the  Public  Morality,  Health,  Police,  and  Decency. 


'Hi  i  r  §4456.    Polygamy,    or   bigamy,    shall    consist    in   knowingly 

and  bigamy,  having  a  plurality  of  husbands  or  wives  at  the  same  time. 

§4457.  If  any  person  or  persons  within  this  State,  being  mar- 
Piinisiiment  ried,  do  or  shall  at  any  time  hereafter  marry   any  person  or  per- 

— if     before  '  '^  ... 

married.  sons,  the  lawful  husband  or  wife  being  alive,  and  knowing  that 
such  lawful  husband  or  wife  is  living,  such  person  or  persons  so 
offending  shall,  on  conviction,  be  punished  by  confinement  at  labor 
in  the  penitentiary,  for  any  time  not  less  than  two  years  nor  longer 
than  four  years,  and  the  second  marriage  shall  be  void ;  but  five 

ablencl^'^^'*'  ycars'  abscncc  of  the  husband  or  wife,  and  no  information  of  the 
fate  of  such  husband  or  wife,  shall  be  sufficient  cause  of  acquittal 
of  the  person  indicted  ;  and  in  every  case  the  issue  of  such  second 
marriage,  born  before  the  commencement  of  any  prosecution  for 
polygamy,  or  w^ithin  the  ordinary  time  of  gestation  thereafter, 
shall,  notwithstanding  the  invalidity  of  such  marriage,  be  con- 
sidered as  legitimate. 

§  4458.  If  any  man  or  woman,  being  unmarried,  shall  knowingly 

Pnnishment  marry  the  wife  or  husband  of  another  person,  such  man  or  woman 

—if     before  '^  .      .  .   ,      ,  .  . 

unmarried,    shall,  on  conviction,  be  punished  by  imprisonment  and  labor  in 
the  penitentiary,  for  any  time  not  less  than  one  year  nor  longer 
than  three  years. 
-   r  §  4459.  If  any  person  shall  commit  incestuous  fornication  or 

Incest,     adultery,  or  intermarry  within  the  Levitical   degrees   of  consan- 
guinity, or  affinity,  such  person  so  offending  shall,  on  conviction, 
be  punished  by  imprisonment  and  labor  in  the  penitentiary,  for 
any  time  not  less  than  one  nor  longer  than  three  years,  and  such 
.    marriage  shall  be  void. 

§4460.  Any  man  and  woman  who  shall  live  together  in  a  state 

Adultery  of  adultcry  or  fornication,  or  of  adultery  and  fornication,  or  who 

tion.  shall  otherwise  commit   adultery  or  fornication,   or  adultery  and 

\  '  fornication,  shall  be  severally  indicted,  and,  on  conviction,  such 

^  ^'  f    offenders  shall  be  severally  [punished  as  prescribed  in  Section  4245 

of  this  Code ;]  (a)  but  it  shall,  at  any  time,  be  within  tl^e  power  of 

the  parties  to  prevent  or  suspend  the  prosecution  and  the  punish- 

y  /  merit  by  marriage,  if  such  marriage  can  be  legally  solemnized. 

/  'v?  i     }  d  /      §  4461.  Any  person  who  shall  be  guilty  of  open  lewdness,  or 

Lewdness  any  uotorious   act  of   public  indecency  tendins;  to  debauch  the 

and       keep-         "^  f  J  t=> 

ing  tippling  morals,  or  of  keeping  open  tippling  houses  on  the  Sabbath  day  or 
Sabbath  night,  shall,  on  conviction,  be  [punished  as  prescribed  in 
Section  4245  of  this  Code.]  (a) 

(a)  Acts  of  18C5-6,  p.  233. 


PT.  L— TIT.  1.~Penal  Code.  877 


Division  10.— Offenses  Ag-ainst  the  Public  Morality,  Health,  Police,  and  Decency. 

" ;---.--^ - ;?cP"'v^/m 

§  4462.  If  any  person  shall  maintain  and  keep  a  lewd  house,  or^    Lewd  / 

\  .  «       houses.  / 

place  for  the  practice  of  fornication  or  adultery,  either  by  himself,  /  r—^?  /  c/t/*^ 
or  herself,  or  others,  he  or  she  so  offending  shall,  on  conviction,  ^^  ^  ^  y  r  4'' 
be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4463.  Any  person  who  shall  keep  and  maintain,  either  by  j  £^se"^^^' 
himself,  or  herself,  or  others,  a  common  ill-governed   and  disor-    ,,.      >,  ^  *~' 

derly  house,  to  the  encouragement  of  idleness,  gaming,  drinking,      '  ' 
or  other  misbehavior,  or  to  the  common  disturbance  of  the  neigh- 
berhood  or  orderly  citizens,  such  person  so  offending  shall,  on  con- 
viction, be  [punished  as  prescribed  in  Section  4245  of  this  Code.]  (a)  >r  ^f^..  (/f\^ 

§  4464.  If  any  person  shall,  by  himself,  servant,  or  agent,  keep,  h^usS^finf 
have,  use,  or  maintain  a  gaming-house,  or  room,  or  shall,  in  any  onienT.^'*'^ 
house,  place,  or  room,  occupied  by  him,  permit  persons  with  his  '^  n  -^      *Z>^^ 
knowledge  to  come  together  and  play  for  money,  or  any  other  val-     /  f^  d-L 

uable  thing,  at  any  game   of  faro,  loo,  brag,  bluff,  or  any  other     «      "''     v    \_ 
game  played  with  cards,  or  shall  knowingly  rent  or  let  any  house  /  0    ''     J  ^   ^. 
or  room,  with  the  view  or  expectation  of  the  same  being  used  for  ;  C/        ^    ^  (■ 
such  purpose,  such  person  so  offending  shall,  on  conviction,  be  ^2.    ".'    ^^/ 
[punished  as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4465.  If  any  person  shall,  by  himself,  or  servant,  or  any  other  Gaming 
agent,  keep  or  employ  any  faro  table,  E  0  table,  or  A  B  C  or 
roulette  table,  or  other  table  of  like  character,  and  shall,  either  by 
himself  or  agent,  preside  or  deal  at  any  faro  table,  or  use  any  E 
0  or  A  B  C  or  roulette  table,  or  other  table  of  like  character,  for 
the  purpose  of  playing  and  betting  at  the  same,  such  person  so 
offending  shall,  on  conviction,  be  punished  [as  prescribed  in  Sec- 
tion 4245  of  this  Code.]  (a) 

§  4466.  If  any  person  shall  play  and  bet  for  money,  or  other  Gambling. 
thing  of  value,   at  any  game  of  faro,  loo,  brag,  bluff,  three-up,  .:  q  /.. 
seven-up,  poker,  vingtun,  euchre,  or  any  other  game  or  games  "^ ^    ^  "'^^ 
played  with  cards,  or   shall  play  and  bet  for  money,  or  other  3 

thing  of  value,  at  any  E  0  or  A  B  C  table,  or  at  other  table 
of  like  character,  or  at  roulette,  or  rouge  et  noir,  or  chuckluck,  or 
any  similar  game  of  chance  played  with  dice,  or  cards  or  balls,  or 
shall  bet  at  any  game  of  nine-pins  or  ten-pins,  or  at  any  other  num- 
ber of  pins,  or  at  any  billiard  or  pool  table,  such  person  so  offend- 
ing, on  conviction,  shall  be  [punished  as  prescribed  in  Section 
4245  of  this  Code.]  (a) 

§  4467.  Any  person  keeping  any  table,  or  dealing  at  any  gamej 

(a)  Acts  of  1865-6,  p.  233. 


878  PT.  4.'-Tri\  I.^Pexal  Code. 

Division  10.— -Offenses  Against  the  Public  Morality,  Health,  Police,  and  Decency. 


With  minors  as  abovG  Specified,  who  shall  permit  any  minor  to  play  and  bet 
thereat,  or  any  person  of  full  age  who  shall  gamble  with  a  minor 
at  any  of  the  games  above  specified,  shall,  on  conviction,  be  [pun- 
ished as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4468.   The  provisions  of  the  above  Section  shall  extend  to  all 

jy^it^^jj^^^j^^  persons  gaming  with   the  officer  or   agent  of  any  bank  entrusted 

officers.        -yyj^^i^  jj^^y  of  jj-g  funds,  or  any  clerk  in  any  post-office  in  this  State. 

§4469.   On  the  trial  of  any  person  for  offending  against  the  five 

Players  prccedina;  Sections  of  this  Division,  any  other  person   who  may 

competent    i  o  •>         J  i  J 

witnesses,  havc  played  and  betted  at  the  same  time  or  table,  shall  be  a 
competent  witness,  and  be  compelled  to  give  evidence;  and  nothing 
then  said  by  such  witness  shall  at  any  time  be  received  or  given 
in  evidence  against  him  in  any  prosecution  against  the  said  wit- 
ness, except  on  an  indictment  for  perjury,  in  any  matter  to  which 
he  may  have  testified. 

§  4470.  It  shall   be   the   duty   of  the   Judges   of  the  Superior 
Judge  to  Courts  of  this  State,  at  the  openina;  or  commencement  of  every 

give    gamb-  ^  .  " 

ling       in  Court,  to  j2;ive  in  charge   to  the   Grand  Juries,  respectively,  the 

charge.  '  o  o  ^  i  ^  j 

substance  of  the  Sections  contained  in  this  Code  relative  to  gam- 
bling. 

§  4471.    It  shall   be   lawful  for   any  lawful   officer,   with  legal 
Suspected  authority,  to  break  open  suspected  rooms  or  houses,  where  it  is 

rQoins        or  1-1  1  ...     1  ,  , 

houses  may  commonly  known  that  2;amina;  is  carried  on,  and  to  take  any  per- 

be      broken  r  ^  •  fi  •      i  i  i 

open.  sons  found  gaming,  and  bind  or  cause  them  to  be  bound  over  to 

the  next  Superior  Court  to  be  held  in  and  for  the  County  where 
such  offenses  may  be  committed  ;  and  if  such  person,  so  found 
gaming,  shall  fail  or  refuse  to  give  security  for  his  or  their  appear- 
ance at  Court,  to  answer  for  such  offenses,  then  it  shall  be  lawful 
to  commit  such  person  or  persons  to  jail. 

§  4472.  Any  butcher  or  other  person  selling  the  flesh  of  a  dis- 
Seiiinsun-  cascd  animal,  or  other  unwholesome  provisions,  shall* be  indicted, 
provisions,  and,  on  conviction,  shall  be  [punished  as  prescribed  in  Section  4245 
of  this  Code.]  (a) 

§4473.  Any  baker,  brewer,  distiller,  merchant,  grocer,  or  other 
Unwhoie-  pcrson,  Selling  unwholesome  bread,  drink,  or  pernicious  and  adul- 

some     bread  .  in-i-Ti  i 

or  drink.  tcrated  liquor,  knowing  them  to  be  so,  shall  be  indicted,  and,  on 
conviction,  [shall  be  punished  as  prescribed  in  Section  4245  of 
this  Code.]  (a). 

§  4474.  Any  physician,  surgeon,  or  other  person,  willfully  en- 

(a)  Acts  of  1865-6,  p.  233. 


PT.  4.— TIT.  1.--PENAL  Code.  879 


Division  10. — Offenses  Against  the  Public  Morality,  Health,  Police,  and  Decency. 


deavorinf^  to  spread  the  small-pox,  vfithout  inoculation,  "or  by  in-     spreading 

o  ^  I-        '  ^  .  smnll  pox. 

oculation  with  matter  of  the  small-pox,  or  using  any  other  inocu- 
lation than  that  called  vaccination,  unless  by  special  commission 
or  authority  from  the  Inferior  Court  of  the  County  where  the 
small-pox  shall  make  its  appearance,  shall  be  indicted,  and,  on 
conviction,  [shall  be  punished  as  prescribed  in  Section  4245  of 
this  Code.]  (a) 

§4475.  Any  person  who  shall  come  into  this  State,  by  land  or  vioiationof 

.  .,.  -,.      quarantine. 

water,  irom  any  place  mrected  with  a  contagious  disease,  and  m 
violation  of  quarantine  regulations,  shall  be  indicted  in  any  County 
in  this  State  in  which  he  may  be  found,  and,  on  conviction,  [shall 
be-punished  as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§4476.  [All  persons  wandering  or  strolling   about  in  idleness,      Vaf^rants 

^  L  r  i=>  to  .  7  defined. 

who  are  able  to  work  and  have  no  property  to  support  them ;   all 
persons   leading  an  idle,  immoral,  or  profligate  life,  who  have  no 
property  to  support  them,  and   who  are  able  to  work,  and  who  do 
not  work  ;   all  persons  able  to  work,  having  no  property  to   sup- 
port them,  and  who  have   not  some  visible  and  known  means  of  a 
fair,  honest,  and  reputable  livelihood ;  all  persons  having  a  fixed 
abode,  who  have  no  visible  property  to  support  them,  and  who 
live  by  stealing,  or  by  trading  in,  bartering  for,  or  buying,  stolen 
property,  and  all  professional  gamblers  living  in  idleness,  shall  be 
deemed  and  considered  vagrants,  and  shall  be  indicted  as  such  ; 
and  it  shall  be  lawful  for  any  person  to  arrest  said  vagrants,  and    May  bear- 
have  them  bound   over  for  trial  to  the  next  term  of  the  County 
Court,  and,  upon  conviction,  they  shall  be  fined  or  imprisoned,  or 
sentenced  to  work  on  the  public   works  or  roads  for  not  longer  I'l^n^s^^e"' 
than  a  year,  or  shall,  in  the  discretion  of  the  Court,  be  bound  out 
to  some  person  for  a  time  not  longer  than   one  year,  upon  such 
valuable   consideration   as  the  Court   may  prescribe — -the   person 
giving  bond  in  a  sum  not  exceeding  three   hundred  dollars,  paya- 
ble to  said  Court,  and  conditioned  to  clothe  and  feed,  and  provide 
said  convict  with  medical  attendance  for  and  during   said  time  ;* 
provided,  that  the  defendant  may,  at  any  time  before  conviction,     proviso, 
be  discharged  upon  paying  costs   and  giving  bond  and  security 
in  a  sum  not  exceeding  two  hundred  dollars,  payable  to  said  Court,  mij^br*di^^ 
and  conditioned  for  the  good  behavior  and  industry  of  the  defend-  giwng1)ond! 
ant  for  one  year.]  (b) 

(a)  Acts  of  1865-C),  p.  233.     *  See  Section  4608,  as  to  punishment,      (b)  Acta 
of  1865-6,  pp.  234-5. 


880  PT.  4.-^TIT.  1.— Penal  Code. 


Division  10.— Offenses  Against  the  Public  Morality,  Health,  Police,  and  Decency. 


§  4477.   If  any  person  shall  be  apprehended,  having  upon  him 
iiayingpos- or  her  any  picklock,  key,  crow,  bit,  or  other  instrument,  with  in- 

session       of  ^    ^  t         j  ->  t  •>  i 

false    keys,  tent  to  break  and  enter  into  any  dwellins-house,  warehouse,  store, 

picklocks,  J  o  '  ?  ? 

^tc-  shop,  coach-house,  stable,  or  out-house,  in  order  to  steal  or  com- 

mit any  other  crime — or,  shall  have  upon  him  any  pistol,  hanger, 
cutlass,  bludgeon,  or  other  offensive  weapon,  with  intent  to  com- 
mit crime  on  any  person  which,  if  committed,  would  be  punisha- 
ble by  death  or  confinement  in  the  penitentiary — or,  shall  be 
found  in  or  upon  any  dwelling-house,  warehouse,  store,  shop, 
coach-house,  stable,  or  out-house,  with  intent  to  steal  any  goods 
or  chattels,  every  such  person  shall  be  deemed  a  rogue  and  a  vag- 
abond, and,  on  conviction,  shall  be  punished  by  confinement  -and 
labor  in  the  penitentiary  for  any  tim^e  not  less  than  one  year  nor 
longer  than  five  years,  or  by  imprisonment  in  the  common  jail  of 
the  County,  at  the  discretion  of  the  Court.* 
iU  §  4478.  Any  person  who  shall  erect,  or  continue,  after  notice  to 

What  nui- abate  any  nuisance  which  tends  to  annoy  the  community,  or  in- 

sances      are  '^  ./»/-' 

indictable.  yy^Q  '^q  health  of  the  citizens  in  general,  or  to  corrupt  the  public 
m.orals,  shall  be  indictable  and  punishable  [as  prescribed  in  Sec- 
tion 4245  of  this  Code.] 

§  4479.  If  any  person  or  persons  shall  remove  the  dead  body 

OT^^pureS  ^^  ^  human  being  from  the  grave  or  other  place  of  interment,  or 

iTodies.  ^""^^  from  any  vault,  tomb,  or  sepulcher,  or  from  any  other  place,  with- 
out the  consent  of  the  friends  of  said  deceased,  except  malefactors 
executed  under  the  sentence  of  the  law,  for  the  purpose  of  selling 
or  dissecting  the  same,  or  from  mere  wantonness,  such  person  or 
persons  so  offending  shall  be  punished  [as  prescribed  in  Section 
4245  of  this  Code ;]  (a)  and  any  person  who  shall  receive  or  pur- 
chase such  dead  body,  knowing  it  to  liave  been  disinterred  or  re- 
moved from  any  tomb,  vault,  or  sepulcher,  or  such  other  place, 
for  the  purpose  aforesaid,  shall,  on  conviction,  receive  the  same 
punishment. 

§  4480.  If  any  putative  father  of  a  bastard  child  or  children 

Putative  fa-  shall  refusc  or  fail  to  ffive  security  for  the  maintenance  and  edu- 

ther  refusing  ,  . 

^  cation  of  such  child  or  children,  when  required  to  do  so  in  terms 
of  the  law,  such  putative  father  shall  be  indicted  for  a  misde- 
meanor, and,  on  conviction  of  the  fact  of  being  the  father  of  such 
bastard  child  or  children,  and  of  his  failure  or  refusal  to  give  such 

*  See  Section  4608.    (a)  Acts  of  1865-6,  p.  233. 


PT.  4.— TIT.  1.— Penal  Code.  881 


.■'^MNsaiff*^ 


Division  10. — Offenses  Against  the  Public  Morality,  Health,  Police,  and  Decency. 

security,  he  shall  be  punished  [as  prescribed  in  Section  4245  of  this 
Code ;  and  if  fined,]  (a)  said  fine  shall  be  paid  over  to  the  Inferior 
Court  of  the  County,  to  be  by  them  improved  and  applied  from 
time  to  time,  as  occasion  may  require,  for  the  maintenance  and 
education  of  such  child  or  children.  ^^  i :44f^. 

§4481.  If  any  person  shall  keep  a  tippling  shop,  or  sell  by  the    .Retailing 
quart  without  the  license,  and  taking  the  oath  prescribed  in  this  ^^^  ^^^^"^^• 
Code,  or  sell  by  retail  in  quantities  less  than  one  quart,  any  wine,^  6£^—   f    ^ ^ 
brandy,  rum,  gin,  whisky,  or  other  spirituous  liquors,  or  any  mix-/V  ""    ^^  ^  ^ 
ture  of  such  liquors,   in  any  house,  booth,  arbor,  stall,  or   other ''    )        ^  / 
place  whatever,  without  license  from  the  Inferior  Court  of   the    /?. 
County,  or  without  license  from  the  corporate  authorities  of  any   y  . 

town  or  city,  where,  by  law,  authority  to  grant  licenses  is  vested  ^  '^^  t" 
in  the  corporate  authorities  of  such  towns  or  cities,  such  person  so 
offending  shall  be  guilty  of  a  misdemeanor,  and  on  conviction,  "  i  '  .^  '' h 
[shall  be  punished  as  prescribed  in  Section  4245  of  this  Code  ;]  (a) 
frovided^  no  person  shall  be  liable  to  indictment  in  the  Superior 
Courts  of  this  State  for  a  violation  of  this  Section  when  said  per- 
son has  been  already  tried  by  the  corporate  authorities  for  the 
same  oifense. 

§4482.  If  any  minister  of  the  ffospel,  Jud2;e,  Justice  of  the     Marrying 

"^      ,  J  _  &      r      ?  &  ^?   ^  ^      illegally     or 

Inferior   Court,   or  Justice  of  the   Peace,  shall  ioin  together  in  ^ittiout    ii- 

^  '  ^  li  D  cense. 

matrimony  any  man  and  woman,  without  a  license  or  publication  of 
banns,  as  provided  By  law,  or  where  either  of  the  parties  within 
his  own  knowledge  shall  be  an  idiot  or  lunatic,  or  subject  to  any 
other  disability,  under  this  Code,  which  would  render  such  con- 
contract  or  marriage  improper  and  illegal,  such  minister,  Judge, 
Justice  of  the  Inferior  Court,  or  Justice  of  the  Peace,  shall  be 
guilty  of  a  misdemeanor,  and,  on  conviction,  [shall  be  punished  as 
prescribed  in  Section  4245  of  this  Code,  and  if  fined,]  (a)  said  fine, 
when  collected,  shall  be  paid  over  to  the  Justices  of  the  Inferior 
Court  of  the  County  where  the  offense  was  committed,  for  the  use 
of  the  common  school  fund  of  said  County. 

§  4483.  [If  any  officer  shall  knowingly  issue  any  marriage  license     intermar- 
to  parties,  either  of  whom  is  of  African  descent,  and  the  other  a  wwtes   and 
white  person,  or  if  any  officer  or  minister  of  the  gospel  shall  mar-  pie   proMb- 
ry  such  persons  together,  such  officer  or  minister  of  the  gospel 
shall  be  guilty  of  a  misdemeanor,  and,  on  conviction  thereof,  shall 
be  punished  as  prescribed  in  Section  4245  of  this  Code.]  (b) 

(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1865-6,  p.  341.  • 
56 


882  .  PT.  4.~-TIT.  1.— Penal  Code. 

Division  10. — Oifenses  Against  the  Public  Morality,  Health,  Police,  and  Decency. 

§  4484.  If  any  person  shall  hereafter  vote  more  than  once  at 
votinpmore  anv  olection  which  may  be  held  in  any  County  of  this  State,  or 

than  once.  -^  n     .        n  •  i  •    i     i  n  •  -i        p 

vote  out  01  the  County  m  which  he  may  usually  reside,  lor  mem- 
bers of  the  Legislature,  or  for  County  officers,  unless  authorized 
by  law,  such  person  shall  be  indicted  for  a  misdemeanor,  and,  on 
conviction,  shall  be  punished  by  imprisonment  and  labor  in  the 
penitentiary  for  any  time  not  less  than  one  year  nor  more  than 
two  years. 

§4485.  If  any  person  shall  hereafter  buy  or  sell,  or  offer  to 
Buying  or  buy  or  scll  a  vote,  or  be  concerned  in  buyinoj  or  sellino:  a  vote,  or 

selling  vote.  ^  '  .  ,  .  »  > 

shall  unlawfully  vote  at  any  election  which  may  be  held  in  any 
County  in  this  State,  such  persons  shall  be  indicted  for  a  misde- 
meanor, and,  on  conviction,  shall  be  punished  by  imprisonment  and 
labor  in  the  penitentiary  for  a  term  not  less  than  one  year  nor 
more  than  four  years. 

§  4486.  If  any  person  under  the  age  of  twenty-one  years  and 

Illegal  vo-  above  the  age  of  fourteen,  shall  vote  illegally  at  any  election,  he 

f^  .minor.         shall  be  [punishcd  as  prescribed  in  Section  4245  of  this  Code.]  (a) 

f     y     /I    -i'^J^     §4487.  Any  white  man  and  woman  of  color,  [or  any  white  wo- 

"  "^    '■     Adultery  man  and  male  person   of  colorl   (b)  who  shall   live   to>Tether  in  a 

with  negro.  ^  .         .  . 

state  of  adultery  or  fornication,  or  adultery  and  fornication,  such 
[persons  so  offending]  (b)  shall  be  guilty  of  the  crime  of  living  in 
such  state,  and  on  conviction  shall  be  [punished  as  prescribed  in 
Section  4245  of  this  Code.]  (a) 

§  4488.  If  any  man  shall  whip  beat,  or  otherwise  cruelly  mal- 

wwpping  treat  his  wife,  he  shall  be  deemed  guilty  of  a  misdemeanor,  and, 

upon  conviction,  shall  be  [punished  as  prescribed  in  Section  4245 

of  this  Code.]  (a)     On  such  trials  the  wife  shall  be  a  competent 

witness.* 

§  4489.  Any  person  who  shall,  by  cursing  or  using  profane  or 

Interfering  obsccue  language,  or  by  being  intoxicated  or  otherwise  indecently 

i^u8    ^Vov-  acting,  interrupt  or  in  any  manner  disturb  any  congregation  of 

*  *^'  persons  lawfully  assembled  for  divine  service,  shall  be  guilty  of  a 

misdemeanor,  and  on  conviction,  shall  be  [punished  as  prescribed 

in  Section  4245  of  this  Code.]  (a)  f 

§  4490.  Any  persQn  who  shall  sell,  or  cause  to  be  sold  for  him, 

(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1861,  p.  68. 

*  As  to  competency  of  witnesses,  see  Section  3798.    Does  not  that  Section 


repeal  the  last  sentence  of  this  ? 

f  As  to  the  protection  of  other  societies,  see  Acts  of  1855-6,  p.  272. 


Liii'o] 


MJl 


f 


PT.  4.— TIT.  1.— Penal  Code.  883 


Division  10, — OffeUvSes  Against  the  Public  Morality,  Health,  Police,  and  Decency. 


a,nY  spirituous  or  intoxicatinp;  liquors,  withia  one  mile  of  any  church  seiiiDgspir- 
or  meetinij-house,  or  other  place  set  apart  or  beins:  used  for  divme  raiie    of   a 

°  .  .  .church. 

worship,  during  the  time  appropriated  to  such  worship  (unless  the 
same  be  within  an  incorporated  city  or  town),  shall  be  guilty  of  a 
misdemeanor,  and,  on  conviction,  shall  be  [punished  as  prescribed 
in  Section  4245  of  this  Code.]  (a) 

§4491.   fit  shall  not  be  lawful  for  any  person  to  vend  or  expose       Vending 

.  ,  .     .  .  .  ^^^^      camp 

to  sale  during  the  period  of  divine  worship,  within  one  mile  of  the  grounds. 
place  of  worship,  in  any  camp  ground  in  this  State,  any  article,  'tf-^ 
commodity,  or  thing  whatever,  without  the  written  consent  of  a 
majority  of  the  trustees,  commissioners,  or  owners  of  such  camp 
.ground,  under    penalty    of   being  indicted,  and,   on    conviction, 
shall  be  punished  as  prescribed  in  Section  4245  of  this  Code.]  (b) 

^  4492.  If  any  freight  train  shall  be  run  on  any  railroad  in  this     .  Running 

^  «>  a  t/  freight  trams 

State  on  the  Sabbath  day  (known  as  Sunday),  the  superintendent  °JJ  sabbath 
of  transportation  of  such  railroad  company,  or  the  officer  having 
charge  of  that  department  of  the  business  of  the  railroad,  shall 
be  liable  to  indictment  for  a  misdemeanor  in  each  County  through 
which  such  train  shall  pass,  and,  on  conviction,  shall  be  for  each 
offense  [punished  as  prescribed  in  Section  4245  of  this  Code.]  (a) 
On  such  trial  it  shall  not  be  necessary  to  allege  or  prove  the 
names  of  any  of  the  employees  engaged  on  such  train,  but  the 
simple  fact  of  the  train  being  run.  The  defendant  may  justify 
himself  by  proof  that  such  employees  acted  in  direct  violation  of 
the  orders  and  rules  of  the  defendant. 

§  4493.  Any  tradesman,  artificer,  workm^an,  or  laborer,  or  other  violating 
person  whatever,  who  shall  pursue  their  business  or  work  of  their 
ordinary  callings  upon  the  Lord's  day  (works  of  necessity  or 
charity  only  excepted),  shall  be  guilty  of  a  misdemeanor,  and,  on  con- 
viction, shall  be  [punished  as  prescribed  in  Section  4245  of  this 
Code.]  (a) 

§  4494.  [Any  person  who  shall  bathe  in  any  stream  or  pond  of  indecent 
water  on  the  Sabbath  day,  in  view  of  any  road  or  passway,  leading 
to  or  from  any  house  of  religious  worship,  shall  be  considered  guilty 
of  a  misdemeanor,  and,  upon  conviction  thereof,  shall  be  fined  in  a 
sum  not  exceeding  five  hundred  dollars,  or  imprisonment  in  the  com- 
mon jail  of  the  County,  at  the  disci^etion  of  the  Court,  not  ex- 
ceeding six  months.]  (c) 

(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1863-4,  p.  64.    (c)  Acts  of  1866,  p.  154,        ^ 


884  PT.  4.— TIT.  1.— Penal  Code. 


Division  10. — Offenses  Against  the  Public  Morality,  Health,  Police,  and  Decency. 


§  4495.  All  moneys  arising  from  fines  imposed  for  offenses,  the 
Fines  for  gist  of  wliicli  consists  in  their  beino^  committed  on  the  Sabbath 

violation    of  ^  ^  ^  ^ 

the  Sabbath,  (iaj,  shall  be  paid  to  the  Ordinary  of  the  County,  to  be  by  him 

distributed  for  the  purpose  of  establishing  and  promoting  Sabbath 

schools  in  the  County. 

§  4496.  When  any  person  prosecuted  as  a  vagrant  shall  give 

Bond  in  boud  and  security  in  terms  of  this  Code,  and  shall  violate  the  con- 
cases  of  va-        ^  _        "^ 

grancy.  ditloRS  of  Said  bond,  and  that  fact  shall  be  made  to  appear  to  the 
Court  where  said  indictment  was  found,  by  the  affidavit  or  the 
prosecutor,  or  any  other  person,  it  shall  be  the  duty  of  the  Court 
to  cause  a  scire  facias  to  issue,  calling  upon  the  principal  in  said 
bond,  and  his  security,  to  show  cause  at  the  next  term  of  said 
Court,  why  said  bond  shall  not  be  forfeited,  which  shall  be  served 
as  in  cases  of  bail ;  on  which  an  issue  shall  be  made  up  if  desired 
by  the  defendant  and  tried  by  a  jury ;  and  if  it  shall  appear  that 
said  defendant  has  violated  the  conditions  in  said  bond,  judgment 
shall  be  awarded  on  said  scire  facias  against  said  principal  and 
his  securities  for  the  penalty  in  said  bond,  with  costs  of  suit. 
§  4497.  It  shall  be  the  duty  of  the  Attorney  and  Solicitors 
Solicitor's  General,  to  represent  the  State  in  all  suits  on  bonds  as  aforesaid : 

duty        and  '^      _  .  .  .  ' 

fees.  and  he  shall  receive  five  dollars  for  prosecuting  the  s^^zVg  facias,  to 

be  taxed  in  the  bill  of  costs,  and  also  five  per  cent,  of  the  amount 
recovered  on  said  bond. 

§4498.  [All  railroad  companies  in  this  State,  as  well  as  the 
Water  and  Wcstcm  and  Atlantic  Railroad,  shall  keep  in  each  passens^er  car, 

light  on  rail-  ^  '  i  i  o  7 

roads.  qj.  [^i  any  car  in  which  passengers  are  transported,  an  adequate 

supply  of  good,  pure  drinking  water  at  all  hours  during  the  day 
and  night,  and  lights  during  the  night  for  the  use^of  passengers  ; 
and  upon  failure  thereof,  shall  be  subject  to  pay  a  fine  of  one  hun- 
dred dollars  for  each  and  every  offense.  Any  conductor  or  agent 
of  said  roads  being  requested  by  any  passenger  to  furnish  a  suffi- 
cient supply  of  water  to  the  passengers  in  each  car,  in  the  day  or 
night,  and  light  at  night,  and  shall  pass  any  depot  or  station  with- 
out so  doing,  shall  be  liable  to  be  indicted  in  any  County  through 
which  said  railroad  runs,  of  which  he  is  agent  or  conductor,  and, 
upon  conviction,  shall  be  liable  to  the  punishment  prescribed  in 
Section  4245  of  this  Code.  It  shall  be  the  duty  of  the  Judges  of 
the  Superior  Courts  of  this  State  to  give  the  law  of  this  Section 
in  special  charge  to  the  Grand  Juries  of  their  respective  Courts.]  (a) 

(a)  Acts  of  1863-4,  p.  132. 


PT.  4,~TIT.  1.— Penal  Code. 


885 


Division  11. — Offenses  Committed  by  Cheats  and  Swindlers,  etc. 


ELEVENTH     DIVISION. 

OFFENSES  COMMITTED  BY  CHEATS  AND  SWINDLERS,  AND  OFFENSES 

AGAINST   PUBLIC   TRADE. 


Section. 

Section. 

M99.  Credit  by  framd. 

4507. 

Similar  oflfenses. 

4500.  Cheating  at  play. 

4508. 

Pei'sonating  -witness. 

4501.  Baker's  cheating. 

4509. 

Lying  to  obtain  security. 

4502.  False  weights. 

4510. 

Peddlers  without  license. 

4503.  Forc-^^talling,  etc. 

4511. 

Deceiving  as  to  lien. 

4504.  (Vvanterfeiting  brands. 

4512. 

Illegally  measuring  lumber. 

4505.  Dirt  in  cotton,  etc. 

4513. 

Overcharges  by  railroad  agents 

4506.  Personating  anotlaer. 

4514. 

Carrier's  receipt. 

credit. 


§  4499.  If  any  person  by  false  representation  of  Ms  own  re-  persons 
spectability,  wealth,  or  mercantile  correspondence  and  connections,  J^b"ainin| 
shall  obtain  a  credit  and  thereby  defraud  any  person  or  persons  of 
any  money,  goods,  chattels,  or  any  other  valuable  thing,  or  if  any 
person  shall  cause  or  procure  others  to  report  falsely  of  his  hon- 
esty, respectability,  wealth,  or  mercantile  character,  and  by  thus 
imposing  on  the  credulity  of  any  person  or  persons,  shall  obtain  a 
credit,  and  thereby  fraudulently  get  into  possession  of  goods, 
wares,  or  merchandise,  or  any  other  valuable  thing  or  things,  such 
person  so  offending  shall  be  deemed  a  cheat  and  swindler,  and,  on 
conviction,  shall  bo  punished  by  fine,  or  imprisonment  in  the  com- 
mon jail  of  the  County,  or  both,  at  the  discretion  of  the  Court ; 
and  such  person  shall,  moreover,  be  compelled  by  the  order  and 
sentence  of  the  Court  to  restore  to  the  party  injured  the  property 
so  fraudulently  obtained,  if  it  can  be  done.!^ 

§4500.  If  any  person  or  persons  shall  by  any  fraud,  or  shift, 
circumvention,  deceit,  or  unlawful  trick,  or  device,  or  ill-practice,  piay^ 
whatever,  in  playing  at  cards,  dice,  or  any  game  or  games,  or  in 
or  by  bearing  a  share  or  part  in  the  stakes,  wagers,  or  adventures, 
or  in  or  by  betting  on  the  sides  or  hands  of  such  as  do  or  shall 
play,  obtain,  or  acquire  to  him  or  themselves,  or  to  any  other  or 
others,  any  money,  or  other  valuable  thing  or  things,  whatever, 
such  person  or  persons  so  offending,  shall  be  indicted,  and,  on  con- 
viction, shall  be  deemed  a  cheat,  and  shall  be  [punished  as  pre- 
scribed in  Section  4245  of  this  Code.]  (a) 

§4501.  Any  baker  or  other  person  selling  bread,  under  the   Bakers  and 
assize  established  by  the  corporation  oi  any  city,  town,  or  village,  ing- 


lus) 


Persons 
cheating  at 


*  See  Section  4608.    (a)  Acts  of  1865-6,  p.  233. 


886  PT.  4.— TIT.  1.— Penal  Code. 

Division  11. — Offenses  Committed  by  Cheats  and  Swindlers,  etc. 

or  the  rules  laid  down  by  any  law,  shall  be  deemed  a  cheat,  and^ 
on  conviction,  shall  be  punished  [as  prescribed  in  Section  4245 
of  this  Code.]  (a) 

§  4502.  If  any  person   shall  knowingly  buy  or   sell   by  false 
Selling  by  wci^fhts,  or  mcasures,  he  or  she  shall  be  deemed  a  common  cheat, 

false  weights  .      .  .  . 

aiKi    meas-  and,  on  conviction,  shall  be  punished  [as  prescribed  in  Section 
•       4245  of  this  Code.]  (a) 

§  4503.  [Any  person   charged  with  the  offenses  known  to  the 
Forestall-  common  law  as  forestalling,  regrating,  or  engrossing,  mav  be  in- 

mg,  etc.  ■  o'        o  o'  o  &'  ./ 

dieted  in  any  Superior,  Corporation,  or  other  Court  having  juris- 
diction thereof,  and,  on  conviction,  shall  be  punished  as  prescribed 
in  Section  4245  of  this  Code.]  (b) 

§  4504.  If  any  person  shall  fraudulently  counterfeit,  or  be  con- 
Coiinterfeit- cerned  -  in  fraudulently  counterfeiting  any  brand  or  mark  directed 

ing  brands  or  ^  o  */ 

marks,  etc.  \^^  j^^y^  qj.  g];^all  fraudulently  cause  or  procure  the  same  to  be  done, 
or  shall  «use,  export,  sell,  exchange,  barter,  or  expose  to  sale,  any 
bale,  cask,  barrel,  hogshead,  or  vessel  of  any  kind,  or  any  other 
thing  upon  which  a  brand  or  mark  is  directed  by  law  to  be  made, 
with  such  counterfeit  brand  or  mark,  knowing  the  same  to  be  false 
and  counterfeit,  such  person  so  offending  shall,  on  conviction,  be 
deemed  a  cheat,  and  be  punished  [as  prescribed  in  Section  4245 
of  this  Code.]  (a) 

§  4505.  Any  person  who  shall  put,  or  cause  to  be  put  into  any 

Pattingdirt  bale  or  balcs  of  cotton,  hogshead  or  hogsheads,  barrel  or  barrels, 

or     rubbish  ,.  1  ^  ^      .  1   \       r  .1,  •    • 

into  cotton,  casK  or  casKS  01  sugar,  or  rice,  pork,  beet,  or  other  provisions, 
any  dirt,  rubbish,  or  other  thing,  for  the  purpose  of  adding  to  and 
increasing  the  weight  or  bulk  of  said  cotton,  sugar,  rice,  beef^ 
pork,  or  other  provisions  or  things,  shall  b-e  deemed  a  common 
cheat,  and,  on  conviction,  shall  be  punished  by  a  fine  equal  to  the 
value  of  the  thing  thus  fraudulently  packed  or  put  up,  and  impris- 
onment and  labor  in  the  penitentiary  for  any  time  not  less  than 
one  year  nor  more  than  five  years.*  The  bare  possession  or  own- 
ership of  such  commodities,  so  fraudulently  packed  or  put  up, 
shall  not,  of  itself,  authorize  a  conviction,  where  sufiicient  evidence 
of  knowledge  or  privity  on  the  part  of  the  owner,  or  the  person 
in  possession,  may  not  be  produced  before  the  Court  and  jury. 

§  4506.    If   any   person   shall  falsely    personate    another,   and 
thereby  fraudulently  obtain  any  money,  goods,  chattels,  or  other 

'   '      (a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1863-4,  p.  46.    *  See  Section  4608. 


PT.  4.— TIT.  1.— Penal  Codb.  887 


Division  11. — Offenses  Committed  by  Cheats  and  Swindlers,  etc. 
tbinff  or  things  of  value,  or  with  the  intention  of  thereby  fraudu-     obtaining 

n  o  ■>  •/  gjoods,      etc. 

lently  obtaining  any  money,  goods,  chattels,  or  other  valuable  ^y  person- 
thing,  such  person  so  offending  shall  be  deemed  a  cheat  and 
swindler,  and,  on  conviction,  shall  be  punished  by  imprisonment 
and  labor  in  the  penitentiary  for  any  time  not  less  than  one  year 
nor  longer  than  five  years;  or,  in  trivial  cases,  by  fine  and  impris- 
onment in  the  common  jail,  at  the  discretion  of  the  Court.* 

§  4507.  Any  person  using  any  deceitful  means  or  artful  prac-  gfg^^of ^^fj^e 
tice  (other  than  those  which  are  mentioned  and  provided  against  in  ^^"'^• 
this  Code),  by  which  individuals,  or  an  individual,  or  the  public,  are 
oris  defrauded  and  cheated,  such  person  so  offending  shall  be  deemed 
a  common  cheat  and  swindler,  and,  on  conviction,  shall  be  punished 
[as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4508.   If  any  person  shall  falsely  represent  or  personate  an-  Personating 

'^    ^  *'  ^  ^  another      as 

other,  and  in  such  assumed  character  answer  as  a  witness  to  inter-  witness    or 

'  otherwise  lu 

rogatories,  or  do  any  other  act  in  the  course  of  any  suit,  proceed-  ^^^^*^- 
ing,  or  prosecution,  or  in  any  other  way,  matter  or  thing,  whereby 
the  person  so  personated  or  represented,  or  any  other  person, 
might  suffer  damage,  loss,  or  injury,  such  person  so  offending  shall, 
on  conviction,  be  punished  by  confinement  and  labor  in  the  peni- 
tentiary for  any  time  not  less  than  one  year,  nor  more  than  five 
years. 

§4509.  If  any  person,  by  false  representation   of  his   or  her  Lyingtoob- 
solvency,  shall  induce  another  to  become  his  or  her  bail,  indorser,  ers  or  other 

*^/  ^  ^  ^  security, 

or  security,  upon  any  recognizance,  bond,  note,  bill  of  exchange, 
or  other  instrument  for  the  payment  of  money,  or  performance  of 
any  personal  duty,  knowing  at  the  time  that  he  or  she  is  insolvent, 
and  such  bail,  indorser,  or  security,  shall  suffer  loss  or  damage, 
in  consequence  of  such  undertaking  and  liability  on  his  part, 
such  person  so  offending  shall  be  guilty  of  a  misdemeanor,  and,  on 
conviction,  shall  be  punished  [as  prescribed  in  Section  4245  of  this 
Code.]  (a) 

§  4510.  If  any  peddler,  or  itinerant  trader,  shall  sell  or  vend     Dealers 

,  IT  without 

any  goods,  wares,  or  merchandise,  except  such  as  are  excepted  by     nceuse. 
law,  within  this  State,  without  a  license  from  the  proper  authority 
for  that  purpose,  such  peddler,  or  itinerant  trader,  shall  be  guilty 
of  a  misdemeanor,  and,  on  indictment  and  conviction  thereof,  shall 
be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

*See  Section  4608.    (a)  Acts  of  1865-6,  p.  233. 


888  PT.  4,— TIT.  I.—Pexal  Code. 

Division  11. — Offenses  Committed  by  Cheats  and  Swindlers,  etc. 

§  4511c  Any  person  who  shall,  in  the  sale  or  disposing  of  any 
^rSist^  Property,  either  real  or  personal,  defraud  another  by  falsely  rep- 
eoceof  lien,  resenting  that  such  property  is  not  subject  to  the  lien  of  any 
mortgage  or  judgment,  or  other  lien  against  such  person  or  pro- 
perty, knowing  the  same  to  be  subject  thereto,  [or  who  shall  fraud- 
ulently make  a  second  deed  of  conveyance  to  any  land  or  real  es- 
tate to  another,  shall  be  deemed  and  held  a  common  cheat  and 
swindler,  and,  on  conviction,  shall  be  punished  as  prescribed  in 
Section  4245  of  this  Code.]  (a) 

§  4512.  If  any  measurer  and  inspector  of  timber,  appointed  under 
Illegally   the  laws  of  this  State,  or  any  person  not  beino;  an  official  measurer 

measnring  ^  .  . 

lumber.  and  iuspcctor,  shall  measure  any  timber  otherwise  than  as  required 
by  the  laws  of  this  State,  he  shall  be  guilty  of  a  misdemeanor,  and, 
upon  conviction  thereof,  shall  be  punished  for  each  offense  [as 
prescribed  in  Section  4245  of  this  Code ;  ]  (b)  provided  that  this 
provision  shall  not  apply  to  any  case  when  the  measurement  is  not 
for  the  purpose  of  being  used  in  the  sale  of  the  timber,  or  to  any 
case  where  the  parties  buying  and  selling  contract  to  have  the 
timber  measured  other  than  according  to  the  laws  of  this  State. 
§4513.   [Any  officer,  agent,  or  other  employee  of  any  railroad 

Ra4iroadof-  companv  in  this  State,  w^ho  shall  charge  for  transportins;  freight 

fjcials    over-  r       J  ^  7  ^  &  i  o  o  ^ 

chargiDg.  or  passcngcrs  over  said  railroad  above  the  rates  allowed  by  their 
several  charters,  or  established  by  the   superintendent,  or   other 

raisdemean-  ^fficor  or  officors  of  Said  railroad,  shall  be  guilty  of  a  misdemeanor, 

"^-  and,  on  indictment  and   conviction  before  the  Superior  Court  in 

any  County  having  jurisdiction  thereof,  shall  be  punished  as  pre- 

Punishment  scribcd  in  Scction  4245  of  this  Code.]  (c) 

§4514.   [Whenever  any  person  shall  deliver  any  article,  thing, 

Railroad  and  commodity,  or  property  of  any  description,  to  any  railroad,  steam- 
other  trails-  *^  •        1  •      o(  o  ••in 

portation  boat,  or  cxprcss  company,  m  this  State,  lor  transportation,  it  shall 

companies  ^  i...' 

mustiurni&h  be  the  dutv  of  Said  company,  upon  demand,  to  furnish  the  party 

receipts.  ^^"^  ..  . 

SO  delivering  a  good  and  valid  receipt  for  the  same,  with  proper 

revenue  stamps  attached  thereto  ;  and  said  receipt  shall  specify  the 

Weight, etc.  weight  of  Said  article,  thing,  commodity,  or  property,  thus  deliv- 

tobespeci-  °        ,  ,  '  ^'  .-,,./  ^    •         ^^ 

lied— when.  ercQ,  whencver  the  value  can  be  estimated  by  weight ;  and  m  ail 
cases  where  the  value  can  not  be  thus  estimated,  the  receipt  shall  give 
a  general  description  of  said  article,  thing,  commodity,  or  pro- 
perty, and  shall  also  specify  as  near  as  practicable  the  quantity 

(a)  Acts  of  1865-6,  p.  235.    (b)  Acts  of  1865-6,  p.  233.   (c)  Acts  of  1865-6,  p.  237 


PT.  4.— TIT.  1._Penal  Code. 


889 


Division  12. — Fraudulent  or  Malicious  Mischief, 


Effect  of 


or  value  thereof,  and  also  the  place  of  destination ;  and  any  agent 
or  officer  of  any  railroad,  steamboat,  or  express  company,  viola-  violation.' 
ting  the  provisions  of  this  Section,  shall  be  deemed  and  consid- 
ered guilty  of  a  high  misdemeanor,  and,  upon  conviction  thereof, 
shall  be  punished  by  fine  or  imprisonment,  or  both,  in  the  dis- 
cretion of  the  Court — the  fine  not  to  be  less  than  one  hundred 
dollars  nor  more  than  two  thousand  dollars,  and  the  imprisonment 
not  to  exceed  sixty  days.]  (a) 


Section. 

Section 

4515. 

Destroying  books  or  papers. 

4525. 

4516. 

Altering  landmarks. 

4526. 

4517. 

Buoys,  beacons,  etc. 

4527. 

4518. 

Setting  lire  to  stacks. 

4528. 

4519. 

Setting  fire  to  woods. 

4529. 

4520. 

Setting  fire  to  fences. 

4530. 

4521. 

Breaking  bridges,  dams,  etc. 

4531. 

4522. 

Killing  or  maiming  cattle. 

4532. 

4523. 

Turnpikes,  fixtures,  etc. 

4533. 

4524. 

Firing  or  sinking  vessels. 

4534. 

TWELFTH    DIVISION 

FRAUDULENT     OR     MALICIOUS     MISCHIEF. 


Cutting  down  trees. 
Mile  or  guide-posts. 
Obstructing  highway. 
Destroying  growing  crop. 
Fixtures  of  coast  survey. 
Public  burying-grounds. 
Private  burying-grounds. 
Injuring  fish-ponds. 
Poisoning  fish. 
Other  similar  acts. 


§4515.  If  any  person  shall  fraudulently  or  maliciously  tear, 
burn,  or  in  any  other  way  destroy,  any  deed,  lease,  will,  bond,  or 
other  writing  sealed,  or  any  bank  bill  or  note,  check,  draft,  or 
other  security  for  the  payment  of  money  or  the  delivery  of  goods, 
or  any  certificate  or  other  public  security  of  this  State,  or  of  the 
United  States,  or  any  of  them,  for  the  payment  of  money,  or  any 
receipt,  acquittance,  release,  discharge  of  any  debt,  suit,  or  other 
demand,  or  any  transfer  or  assurance  of  money,  stock,  goods, 
chattels,  or  other  property,  or  any  letter  of  attorney,  or  other 
power,  or  any  day-book,  or  other  book  of  accounts,  or  any  agree- 
ment or  contract  whatever,  with  intent  to  defraud,  prejudice,  or 
injure  any  person,  or  body  politic  or  corporate,  such  person  so 
offending  shall,  on  conviction,  be  punished  by  imprisonment  and 
labor  in  the  penitentiary  for  any  time  nOt  less  than  one  year  nor 
longer  than  four  years ;  or,  in  trivial  cases,  by  imprisonment  in  the 
€ommon  jail,  or  by  fine,  or  both,  at  the  discretion  of  the  Court.* 

§  4516.  If  any  person  shall,  knowingly,  maliciously,  or  fraudu- 
lently, cut,  fell,  alter,  or  remove,  any  certain  boundary  tree,  or 
other  allowed  landmark,  to  the  wrong  or  injury  of  his  neighbor. 


Destroying 
books  or  pa- 
pers of  value 


Altering 
or  removing 
landmarks. 


(a)  Acts  of  1865-6,  pp.  236-7.    *  See  Section  4608. 


PT.  4.— TIT.  1.— Penal  Code. 


Division  12. — Fraudulent  or  Malicious  Mischief. 


or  anj  other  person,  such  person   so   offending   shall,  on   convic- 
tion, be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 
§  4517.  If  any  person  or  persons  shall,  maliciously  or  without 

Buoys,bea-  authority,  cut  down,  remove,  or  destroy,  any  beacon  or  beacons, 
buoy  or  buoys,  erected  by  any  commissioners  of  pilotage,  or  other 
person  or  persons  duly  authorized  for  that  purpose,  such  person  or 
persons  so  offending  shall,  on  conviction,  be  punished  by  confine- 
ment and  labor  in  the  penitentiary  for  any  time  not  less  than 
two  years  nor  longer  than  five  years. 

§  4518.  Any  person  or  persons  who  shall  willfully  and  mali- 

settingflre  ciouslv  sct  fire   to,  or  burn  any  stack  or  stacks  of  corn,  fodder, 

to  stacks.  _     "^  "^  ^      ^  ,  ^  ^   ' 

grain,  straw,  or  hay,  shall,  on  conviction,  be  punished  by  impris- 
onment and  labor  in  the  penitentiary  for  any  time  not  less  than 
one  year  nor  longer  than  three  years. 

§  4519.  If  any  person  shall  willfully  and  maliciously  set  on  fire, 
SettiDgfire  or  cause  to  be  set  on  fire,  any  woods,  lands,  or  marshes,  within 

to  woods.  .  .     . 

this  State,  so  as  thereby  to  occasion  loss,  damage,  or  injury,  to 
any  other  person,  such  person  so  offending  shall,  on  conviction, 
be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4520.  If  any  person  shall  willfully  and  maliciously  set  fire  to 
Fences,  any  fencc  or  fences,  or  other  inclosure,  or  cause  or  procure  the 
same  to  be  done,  or  shall  take  from  such  fence  or  inclosure  any 
rail  or  tails,  or  other  material  of  which  the  same  is  made  or  com- 
posed, for  the  purpose  of  using  the  same  as  fuel,  such  person  so 
offending  shall,  on  conviction,  be  punished  [as  prescribed  in  Sec- 
tion 4245  of  this  Code.]  (a) 

§  4521.  If  any  person  shall  unlawfully,  willfully,  and  malicious- 
Break-  ly  break  down,  cut  open,  through,  iniure,  or  destroy  any  brida:e, 

ing  bridges,    -  i  i         i         •         i  ii    i  i  -, 

dams,banke,  nvcr,  or  meauow  bank,  rice-dam,  mili-dam,  or  any  other  dam  or 
bank,  such  person  so  offending  shall,  on  conviction,  be  punished 
by  confinement  and  labor  in  the  penitentiary  not  less  than  one 
year,  nor  longer  than  three  years,  or  by  fine  and  imprisonment  in 
the  common  jail,  at  the  discretion  of  the  Court.* 

§  4522.  If  any  person  shall  maliciously  maim  or  kill  any  horse, 
Killing  mule,  bull,  steer,  ox,  cow,  calf,  heifer,  or  other  animal  fallincr  un- 

or   mainiing  '  /  >  .       ?  >        ^         >  o 

catue  or  (Jer  the  description  hereinbefore  given  of  horses  or  cattle,  or  shall 
maliciously  kill  a  hog  or  hogs,  such  person  so  offending  shall,  on 
conviction,  be  punished  [as  prescribed  in  Section  4245  of  this 
Code.]  (a) 

(a)  Acts  of  1865-6,  p.  233.    *  See  Section  4608. 


hogs. 


PT.  4.— TIT.  1.— Penal  Code.  891 

Division  12. — Fraudulent  or  Malicious  Mischief. 


§  4523.  If  any  person  shall  maliciously  injure  or  destroy  any  Turnpike 
turnpike  gate  or  gates,  or  any  post  or  posts,  rail  or  rails,  wall  or  tiun fixtures. 
walls,  or  any  chain,  bar,  or  other  fence  belonging  to  any  turnpike 
gate,  or  any  house  or  houses,  erected  or  to  be  erected,  for  the  use 
of  any  such  turnpik-e  gate  or  gates,  or  shall  willfully  and  mali- 
ciously injure  or  destroy  any  lock  or  locks,  or  other  works  erected 
to  protect  and  secure  the  navigation  of  any  river  or  canal  in  this 
State,  every  such  person  so  offending  shall,  on  conviction,  be  pun- 
ished by  imprisonment  and  labor  in  the  penitentiary  for  any  time 
not  less  than  one  year  nor  longer  than  four  years. 

5  4524.  If  any  person  shall  willfully  and  maliciously  burn,  or      Firing,' or 

■  y    -^^  *^  .^7  sinking  Yes- 

set  fire  to  any  ship,  boat,  or  other  vessel  above  the  value  of  two  seis. 

hundred  dollars,  along  side  of  any  wharf,  or  at  anchor  in  any 
river,  or  in  any  waters  in  this  State,  or  if  any  person  shall  will- 
fully and  maliciously  make,  or  assist  in  making  any  hole  in  the  bot- 
tom, side,  or  any  part  of  any  ship,  boat,  or  other  vessel,  above  the 
yalue  aforesaid,  or  do  any  other  act  tending  to-  the  loss  or  destruc- 
tion of  such  ship,  boat,  or  other  vessel,  within  the  waters  of  this 
State  as  aforesaid,  such  person  so  offending  shall,  on  conviction, 
be  punished  by  imprisonment  and  labor  in  the  penitentiary  for  .; 

any  time  not  less  than  three  years  nor  longer  than  seven  years  ;  t 

and  if  the  ship,  boat,  or  other  vessel  thus  injured  or  destroyed,  as  i 

aforesaid,  be  of  the  value  of  two  hundred  dollars,  or  under  that  \ 

value,  then  the  person  convicted   of  injuring  or  destroying  such  I 

ship,  boat,  or  other  vessel,  as  aforesaid,  [shall  be  punished  as  pre- 
scribed in  Section  4245  of  this  Code.]  (a) 

§  4525.  If  any  person  shall  willfully  and  maliciously  cut  down,        Cutting 

,  ,  ,  .         .  down  trees, 

injure  or  destroy  any  tree  or  trees  planted  or  growing  m  any  town, 
village,  or  city,  or  in  any  avenue,  yard,  garden,  orchard,  or  plan- 
tation, for  ornament,  shelter,   shade,   or  profit,   such  person   so 
offending,  on  conviction,  [shall  be  punished  as  prescribed  in  Sec-    • 
tion  4245  of  this  Code.]  (a) 

§  4526.  If  any  person  shall  willfully  or  maliciously  break,  de-      Miie  or 
face,  destroy,  or  remove  any  mile-stone  or  post,  or  any  guide-board,  ^^  ^  ^^^  ^* 
erected  upon  any  public  road  or  highway,  or  alter  any  mark  or 
inscription  upon  any  such  mile-stone  or  post,  or  guide-board,  such 
person  so  offending  shall  be  indicted  for  a  misdemeanor,  and,  on 

conviction,  [shall  be  punished  as  prescribed  in  Section  4245  of  this 
Code.]  (a) 

§  4527.  Any  person  who  shall  stop  up  or  obstruct  a  public  high- 

(a)  Acts  of  1865-6,  p.  233. 


892 


PT.  4.— TIT.  1.— Penal  Code. 


Division  12. — Fraudulent  or  Malicious  Mischief. 


Obstructing  waj,  with  a  malicious   intent,  or   shall   do   the  same  acts  without 

highway.  ,     .  t     n    •^  ^  •  n  i 

such  intent,  and  tail  to  remove  the  same  on  notice  irom  the  over- 
seer or  commissioner  of  the  road,  shall  be  guilty  of  malicious 
mischief,  and,  on  conviction,  [shpJl  be  punished  as  prescribed  in 
Section  4245  of  this  Code.]  (a) 

§4528.  If  any  person  shall  commit  any  trespass  by  willfully 
Severing  and  maliciouslv  severinsT  from  the  land  of  another  anv  produce 

produce  *^  °  .  ..  ". 

from      the  tlicreof,  such  Dorson  so  offendinsi;  shall  be  indicted   for  a  misde- 

realty.  '  .      . 

meaner,  and,  on  conviction,  [shall  be  punished  as  prescribed  in 
Section  4245  of  this  Code.]  (a) 

§  4529.  Any  person  who  shall  willfully  or  wantonly  injure,  de- 
injuries  to  face,  or  remove  any  signal,  monument,  building,  or  any  other  ap- 

coast  survey  I'l'i-oi'  r»  o 

fixtures.  pendage  thereto,  erected  withm  this  btate  by  virtue  oi  any  act  oi 
Congress  authorizing  a  coast  survey,  shall  be  guilty  of  a  misde- 
meanor, and,  on  conviction,  [shall  be  punished  as  prescribed  in 
Section  4245  of  this  Code.]  (a) 

§  4530.  Any  person  who  shall  willfully  or   wantonly  injure  or 

Injuries  to  dostroy  any  inclosure  around  or  within  any  public  grave-yard  or 

Rig-grounds!  burying-ground,  or  any  monument  or  tombstone,  or  other  fixture 

therein,  shall  be  guilty  of   a  misdemeanor,   and    on   conviction, 

[shall  be  punished  as  prescribed  in  Section  4245  of  this  Code.]  (a) 

§  4531.  Any  person  who,  by    himself,  his  agent  or  servants, 

Disturbing  shall  mutilate,  or  in  anywise  injure  or  destroy,  any  private  bury- 

buryi^g- ing-ground  which  has  been  reserved  in  any  private  or  public  sale 

''^""     ■       of  the  surrounding  land,  shall  be  guilty  of  a  misdemeanor,  and, 

on  conviction,  [shall  be  punished  as  prescribed  in  Section  4245  of 
this  Code.]  (a) 

§  4532.  Any  person  willfully  and  maliciously  breaking  the  dam 
or  destroying  the  fish,  or  fishing  therein,  or  otherwise  injuring  any 
artificial  fish-pond,  shall  be  guilty  of  a  misdemeanor,  and,  on  convic- 
tion, shall  be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 
§  4533.  [Any  person  who  shall  poison  any  lake,  river,  stream, 
Poisoning  ov  poud,  in  any  of  the  Counties  of  this  State,  or  either  of  them, 
with  a  YieY  of  poisoning  fish  therein,  shall  be  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  be  punished  as  prescribed 
in  Section  4245  of  this  Code.]  (b) 

§  4534.  All  other  acts  of  willful  and  malicious  mischief,  in  the 
All  other  injuring  or  destroying  any  other  public  or  private  property,  not 
ci'ous^^^is- herein  enumerated,  shall  be  punished  [as  prescribed  in  Section 
'''''^-         4245  of  this  Code.]  (a) 


Injuring 
j5sh-pond. 


fish.  \ 


'    J 


4aa.iA\ 


(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1862-3,  p.  46. 


PT.  4.— TIT.  1.— Penal  Code. 


893 


Division  13. — Of  Indictments,  Arraignments,  etc. 


THIRTEENTH    DIVISION. 

OF    INDICTMENTS,   ARRAIGNMENTS,   TRIAL,    VERDICT,   JUDGMENT,    AND 

EXECUTION. 


Section. 

4575.  Date  from  sentence. 

4576.  Offenses  on  County  lines. 

4577.  Death  in  another  County 

4578.  Or  on  soil  of  U.  S. 

4579.  Insane  offender. 

4580.  Act  not  attempt. 

4581.  Jury  may  find  attempt. 

4582.  Two  convictions — longest  time. 

4583.  Convicts  witnesses. 

4584.  Impanneling  jury. 

4585.  Talesmen. 

4586.  Putting  panel  on  prisoners. 

4587.  Challenge  to  the  array. 

4588.  Challenge  for  cause. 

4589.  Questions  on  voir  dire. 

4590.  Setting  aside  for  cause. 

4591.  Swearing  in  chief. 

4592.  No  investigation  before  triers. 

4593.  Change  of  venue. 

4594.  Pen'y  confinement  disqualification, 

4595.  Joint  defendants. 

4596.  Continuance  by  one. 

4597.  Opprobrious  words, 

4598.  Oath  on  inquests  of  insanity. 

4599.  Abstract  of  evidence, 

4600.  Form  of  sentence. 

4601.  Commutation  for  good  behavior. 

4602.  Collection  of  costs, 

4603.  Discharge  of  insolvents. 

4604.  Bail  taken  twice, 

4605.  Forfeiting  recognizance. 

4606.  Proceedings  against  bail. 

4607.  Surrender  by  bail. 

4608.  Punishment  in  minor  offenses. 

4609.  Settlement  of  minor  offenses. 

4610.  Of  all  others, 

4611.  J]xcessive  costs. 

4612.  Two  returns  of  "  No  bill." 

4613.  Insolvent  costs. 


Section, 

4535.  Form  of  indictment, 

4536.  Exceptions. 

4537.  Malicious  prosecution, 

4538.  Costs  paid  by  County. 

4539.  Prosecution  on  presentments. 

4540.  Arraignments  in  small  ofi^enses. 

4541.  Copy,  indictment,  and  Avitnesses, 

4542.  In  minor  offenses. 

4543.  Arraignments. 

4544.  Standing  mute. 

4545.  Demurrers  and  special  pleas. 

4546.  Record  of  issue, 

4547.  Entry  on  indictment. 

4548.  Arraignment  in  fetters. 

4549.  Challenges. 

4550.  In  minor  offenses. 

4551.  Order  of  argument. 

4552.  Jury  judges  of  law. 

4553.  Time  of  trial — continuance, 

4554.  Demand  for  trial. 

4555.  Nolle  prosequi. 

4556.  Juror's  oath. 

4557.  Witness's  oath. 

4558.  Before  Grand  Jury. 

4559.  Several  imprisonments. 

4560.  Fine  money, 

4561.  Paid  immediately. 

4562.  Discretionary  imprisonment  in  pen, 

4563.  Convicts  sent  to  penitentiary. 

4564.  Notice  to  keeper. 

4565.  Escapes  therefrom. 

4566.  Confinement  in  jail, 

4567.  No  benefit  of  clergy. 

4568.  Death  by  hanging — mode  of  exee'n. 

4569.  Judge's  report. 

4570.  Punished  under  existing  laws, 

4571.  Limitation  on  indictments. 

4572.  Insane  convicts. 

4573.  Pregnant  convicts, 

4574.  Subsequent  execution.         y 

§4535.  JEver J  indictment  or  accusation  of  the  Gfrand  Jury  shall  ^./z  ^^    /^  / 
be  deemed  sufficiently  technical  and  correct,  which  states  the  of-^^.     *  ' 

fense  in  the  terms  and  language  of  this  Code,  or  so  plainly  that  / 
the  nature  of  the  offense  charged  may  be  easily  understood  by  the  ;  ' 
The  form  of  every  indictment  or  accusation  shall  be  as  fol- 


II^CL 


mr    *f 


4/""^ 


<!) 


/a. 


.jury, 
lows : 


//  i' 


•'  Georgia, 
—  County. 


"iU^*  / 


t 


"The  Grand  Jurors  selected,  chosen,  and  sworn  for  the  County 


--^^Vtr 


6LtL. 


L^'Ci  ^Jt^A^-fv-^-'^'"^ 


H.. 


^A 


L. 


/  ^ 


894  PT.  4.~TIT.  1.— Penal  Code. 


Division  13. — Of  Indictments,  Arraignments,  etc. 


■> 


f  t 


,      Formoftheof ,  to  wit !  -,  in  the  name  and  behalf  of  the  citizens  of 

Georgia,  charge  and  accuse  A.  B.,  of  the  County  and  State  afore- 

(yiA-^-<-'  said,  with  the  offense  of  ,  for   that  the  said  A.  B.  (here  state 

/;  .      the  offense,  and  the  time  and  place  of  committing  the  same,  "with 

tJ    /'-^   ^     y^    sufficient  certainty),  contrary  to  the  laws  of  said  State,  the  good 
Lg     '^      ^  '  order,  peace,  and  dignity  thereof." 

If  there  should  be  more  than  one  count,  each,  additional  count 
Subsequent  shall  commeuce  with  the  following  form:   "And  the  jurors  afore- 

counts 

said,  in  the  name  and  behalf  of  the  citizens  of  Georgia,  further 
charge  and  accuse  the  said  A.  B.  with  having  committed  the  of- 
fense of  — —  (here  state  the  offense  as  before  directed),  for 
that,"  etc. 

§  4536.  All  exceptions  which  go  merely  to  the  form  of  an  in- 
Esceptions.  dictment  shall  be  made  before  trial ;    and  no  motion  in  arrest  of 
**)  V*^  iC/S  ^^        judgment  shall  be  sustained  for  any  matter  not  affecting  the  real 
/   *^  -^  j'"""      merits  of  the  offense  charged  in  such  indictment. 

§  4537.  Upon  every  indictment  the  prosecutor's  name  shall  be 
Costs  to  indorsed,  who,  upon  the  acquittal  or  discharge  of  the  person  ac- 
prosecutor.  cused,  shall  bc  compelled  to  pay  all  costs  which  have  accrued,  if 
the  Grand  Jury,  by  their  foreman,  upon  returning  "No  bill,"  ex- 
press it  as  their  opinion  that  the  prosecution  was  unfounded  or 
malicious  ;  or,  if  the  Petit  Jury,  upon  returning  a  verdict  of  "Not 
guilty,"  shall  express  a  similar  opinion. 

§  4538.  A  person  against  whom  a  bill  of  indictment  shall  be 
Persensac-  preferred  and  not  found  true  by  the  Grand  Jury,  or  who  shall  be 

quitted    and  ^  ''  .  . 

insolvents,  acquitted  by  the  Petit  Jury  of  the  offense  charged  against  him  or 
her,  shall  not  be  liable  to  the  payment  of  the  costs ;  and  in  all 
such  cases,  as  also  where  persons  liable  by  law  for  the  payment  of 
the  costs,  shall  be  unable  to  pay  the  same,  it  shall  and  may  be 
lawful  for  the  officers  severally  entitled  to  such  costs,  to  present 
an  account  therefor  to  the  Judge  of  the  Court  in  which  the  said 
prosecutions  were  depending,  which  account,  being  examined  and 
allowed  by  him,  it  shall  and  may  be  lawful  for  said  Judge,  by 
an  order  of  said  Court,  to  authorize  and  direct  the  Sheriff  or 
Clerk  to  retain  for  his  own  use,  and  to  pay  to  the  Attorney 
or  Solicitor  General,  and  other  officers  of  the  Court,  the  amount  of 
their  respective  accounts,  out  of  any  moneys  by  him  received  for 
fines  inflicted  by  the  said  Court,  or  collected  on  forfeited  recogni- 
zances. 

§  4539.  It  shall  be  the  duty  of  the  Attorney  or  Solicitor  Gene- 
ral to  prosecute  on  all  presentments  of  Grand  Juries,  where  such 


PT.  4.— TIT.  1.— Penal  Code.  895 

Division  13. — Of  Indictments,  Arraignments,  etc. 
presentment  or  presentments  is  or  are  for  offenses  indictable  by       solicitor 

•'••'■  ,        _  "^    General      to 

law:   and  the  indorsement  on  the  indictment  by  the  Attorney  or  pi'osecute 

^  .  upon       pre- 

Solicitor  General,  that  the  same  is  founded  on  the  presentment  of  sentments. 
a  Grand  Jurj,  shall  be  sufficient,  without  any  prosecutor's  name 
appearing  on  the  indictment. 

§  4540,  No  person  indicted,  unless  it   be  for  an  offense  which       Arraign- 

■,.^1.  Till  •  •  ,   ments       tor 

may,  on  conviction,  subject  nim  or  her  to  death,  or  imprisonment  smaii     of- 
in  the  penitentiary  for  the  term  of  three  years  or  more,  shall  be 
put  for  his  or  her  arraignment  in  the  bar- dock,  or  other  place  set 
apart  in  the  Court  room  for  the  arraignment  of  prisoners. 

§4541.   Every  person  charged  with  a   crime   or  offense  which    copyofin- 

,.,-,.  1  ...  i         1       ,1  •  •  ,   dictmentand 

may  subject  hira  or  her,  on  conviction,  to  death  or  imprisonment  list  of  wit- 

nossGS 

in  the  penitentiary  for  the  term  of  three  years  or  more,  shall  be 
furnished,  previous  to  his  or  her  arraignment,  with  a  copy  of  the 
indictment,  and  a  list  of  the  witnesses  who  gave  testimony  before 
the  Grand  Jury. 

§4542.  Every  person  charged  with  an  offense  shall,  at  his  or       insmaii 

.  .        cases  a  copy 

her  request,  or  the  request  of  his  or  her  counsel,  be  furnished  with  on  request. 
a  copy  of  the  indictment,  and  a  list  of  the  witnesses  who  gave 
evidence  before  the  Grand  Jury. 

§  4543.  Upon  the  arraignment  of  a  prisoner,  the  indictment  Form  of  ar- 
shall  be  read  to  him  or  her,  and  such  prisoner  shall  be  required  to 
answer  whether  he  or  she  is  guilty  or  not  guilty  of  the  offense 
charged  in  the  said  indictment,  which  answer  or  plea  shall  be 
made  orally  by  the  prisoner,  or  his  or  her  counsel.  And  if  he  or 
she  shall  plead  guilty,  such  plea  shall  be  immediately  recorded  on 
the  minutes  of  the  Court  by  the  Clerk,  together  with  the  arraign- 
ment ;  and  the  Court  shall  pronounce  upon  such  prisoner  the 
judgment  of  the  law,  in  the  same  manner  as  if  such  prisoner  had 
been  convicted  of  the  offense  by  the  verdict  of  a  jury:  but,  at  any 
time  before  judgment  is  pronounced,  such  prisoner  may  withdraw 
the  plea  of  ''  Guilty,"  and  plead  "Not  guilty  "  ;  and  such  former 
plea  shall  not  be  given  in  evidence  against  him  or  her  on  his  or 
her  trial. 

§  4544.  If  the  prisoner,  upon  being  arraigned,  shall  plead  "Not      standing 
guilty,"  or  shall  stand  mute,  the  Clerk  shall  immediately  record  pi^i^ding  not 
upon  the  minutes  of  the  Court  the  plea  of  "Not  guilty,"  together 
with  the  arraignment,  and  such  arraignment  and  plea  shall  consti- 
tute the  issue  between  the  prisoner  and  the  people  of  this  State. 

§  4545.  If  the  prisoner,  upon  being  arraigned,  shall  demur  to 


896  PT.  4.— TIT.  1.— Penal  Code. 

Division  13. — Of  Indictments,  Arraignments,  etc. 
Demurrers  the  indictment,  or  plead  to  the  jurisdiction  of  the   Court,   or  in 

or       special  •    i      i         •       i 

pleas  to  be  abatment,  or  any  special  plea  in  bar,  such  demurrer  or  plea  shall 
be  made  in  writing ;  and  if  such  demurrer  or  plea  shall  be  decided 
againt  such  prisoner,  then  such  prisoner  may,  nevertheless,  plead 
and  rely  on  the  general  issue  of  *'Not  gailty." 

§  4546.  If  the  Clerk  shall  fail  or  neglect  to  record  the  arraign- 
issue  may  mcut  and  plca  of  the  prisoner  at  the  time  the  same  is  made,  it  may 
afterward,     and  shall  be  done  at  any  time  afterward,  by  order  of  the  Court, 
and  this  shall  cure  the  error  or  omission  of  the  Clerk. 

§  4547.  The  arraignment  and  plea  or  answer  of  the  prisoner 
Tobe  enter- shall  be  entered  on  the  indictment  by  the  Attorney  or  Solicitor 

ed  on  tlie  in-   ™  ,  ,  .  .  o^  , 

dictment.  Ueneral,  or  other  person  acting  as  prosecuting  oiricer  on  the  part 
of  the  people  of  this  State. 

§  4548.  No  prisoner  shall  be  brought  into  Court,  for  arraign- 
Prisoners  incnt  or  trial,  tied,  bound,  or  fettered,  unless  the  Court  shall  deem 

not  to  be  ar-  .  ,       .  ,  .  ,  .  .    -,  i     •  r»     i 

raigned    in  it  nccessary,  during  his  or  her  arraignment  or  trial;   and  it  the 

tetters 

health  of  the  prisoner,  or  other  circumstances,  should  render  it 
more  convenient  to  the  prisoner  and  his  counsel  that  he  or  she 
should  not  be  placed  for  his  or  her  arraignment,  or  during  his  or 
her  trial,  within  the  bar-dock,  or  other  place  assigned  in  the  Court 
room  for  prisoners,  the  Court  may  grant  the  indulgence  of  remov- 
ing the  prisoner  to  any  other  place  in  the  Court  room,  or  contig- 
uous to  it,  requested  by  the  prisoner  or  his  or  her  counsel. 

§  4549.  Every  person  indicted  for  a  crime  or  offense  which  may 
Challenges,  subjcct  him  or  her,  on  conviction,  to  death,  or  four  years'  impris- 
onment or  longer  in  the  penitentiary,  may  peremptorily  challenge 
twenty  of  the  jurors  impanneled  to  try  him  or  her.     And  every 
person  indicted  for  an  offense  which  may  subject  him  or  her,  on 
conviction,  to  imprisonment  in  the  penitentiary  for  any  time  less 
than  four  years,  may  peremptorily  challenge  twelve  of  the  jurors 
impanneled  to  try  him  or  her;  and  the  State  shall  be  allowed  one- 
half  the  number  of  peremptory  challenges  allowed  the  prisoner. 
§4550.    In  all  other  cases,   the  Court  shall  have  a  panel  of 
In  minor  tweuty-four  lurors,  of  which  the  prisoner  shall  have  the  right  to 

offenses.  in  .i  -y      ^         o\  n  mi  •     • 

challenge  seven  peremptorily,  and  the  otate  five.  Ihe  remaining 
twelve  shall  constitute  the  jury. 

§4551.  [The  order  of  argument  of  counsel  in  criminal  cases 

orderof  ar-  shall  bc  the  Same  as  it  now  is  in  civil  cases ;  that  is  to  say,  after 

the  testimony  is  closed  on  both  sides,  the  State's  counsel  shall 

open  and  conclude  the  argument  to  the  jury,  except  in  those  cases 


PT.  4.— TIT.  1..~Penal  Code. 


897 


Division  13. — Of  Indictments,  Arraignments,  etc. 


in  which  the  defendant  shall  introduce  no  testimony— but,  in  that 
event,  the  defendant's  counsel  shall  open  and  conclude  the  argu- 
ment to  the  jury  after  the  testinaony  on  the  part  of  the  State  is 
closed.]  (a) 

§4552.  On  every  trial  of  a  crime  or  offense  contained  in  this 
Code,  or  for  any  crime  or  offense,  the  jury  shall  be  judges  of  the '^^  ^^^  ^^^'• 
law  and  the  fact,  and  shall,  in  every  case,  give  a  general  verdict^-  ^     ^^ 
of  "Guilty"  or  "Not  guilty;"  and  on  the  acquittal  of  the  defend-y  ^., 
ant  or  prisoner,  no  new  trial  shall,  on  any  account,  be  granted  by  %*^     ^^ 
the  Court.  •  bO     '' 


Jury   are 
judges        of 


4553. 


Every  person    against  whom  a  bill  of  indictment  is  '^^^^^ 


ctments 
iable  at  the 


found  shall  be  tried  at  the  term  of  the  Court  at  which  the  indict-  fj^^^  ^^''"^^^ 
ment  is  found,  unless  the   absence  of  a  material  witness  or  wit--?    "  r  -a 
nesses,  or  the  principles  of  justice,  should  require  a  postponement  *:'  /'    • 
of  the  trial,  and  then  the  Court  shall  allow  a  postponement  of  the 
trial  until  the  next  term  of  the  Court ;  and  the  Court  shall  have 
power  to  allow  the  continuance  of  criminal  causes  from  term  to 
term,  as  often  as  the  principles  of  justice  may  require,  upon  suffi- 
cient cause  shown  on  oath. 

§4554,  Any  person  asiainst  whom  a  true  bill  of  indictment  is  in  cases  not 

•^    ^  .  .  .  capital. 

found,  for  an  offense  not  affecting  his  or  her  life,  may  demand  a 

trial  at  the  term  when  the  indictment  is  found,  or  at  the  next  sue-*-"  ^ 

ceeding  term   thereafter,  or  at  any  subsequent  term,  by  special  7,^. 

permission  of  the  Court — -which  demand  shall  be  placed  upon  the^^^ 

minutes  of  the  Court ;  and  if  such  person  shall  not  be  tried  at  the  /7"'  / 

term  when  the  demand  is  made,  or  at  the  next  succeeding  term  ^     ,^    /% 

thereafter,  provided  that  at  both  terms  there  were  juries  impan-  ^- '    •  i  " 

neled  and  qualified  to  try  such  prisoner,  then  he  or  she  shall  be 

absolutely  discharged  and  acquitted  of  the  offense  charged  in  the 
indictment. 

§4555.  No  nolle  prosequi  shall  be  entered  on  any  bill  of  indict-  noiupros- 
ment  after  the  case  has  been  submitted  to  the  jury,  except  by  the 
consent  of  the  defendant. 

§  4556.  In  all  criminal  cases  the  following  oath  shall  be  admin-     petu  ja 
istered  to  the  Petit  Jury — to  wit  : 

"You  shall  well  and  truly  try  the  issue  formed  upon  this  bill  of 
indictment  between  the  State  of  Georgia  and  A.  B.,  who  is  charged 
(here  state  the  crime  or  offense),  and  a  true  verdict  give  according 
to  evidence.     So  help  you  God." 


.'>  "l 


2>-  Z-C 


rors'  oath. 


5T 


(a)  Acts  of  1851-2,  p.  243. 


898  PT.  4.— TIT.  1.— Penal  Code, 

Division  13. — Of  IndictmeDts,  Arraignments,  etc. 


§  4557.  The  following  oath  shall  be  administered  to  witnesses 
Witness-  in  Criminal  cases — viz  : 

es'  oath. 

"  The  evidence  you  shall  give  to  the  Court  and  jury  upon  the 
trial  of  this  issue  between  the  State  of  Georgia  and  A.  B.,  who 
is  cl'iarged  with  (here  state  the  crime  or  offense),  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth.     So  help  you  God." 

§4558.  And  the  following  oath  shall  be  administered  to  wit- 
Oathofwit-  nesses  intended  to  be  sent  before  the  Grand  Jury: 

nesses  before  *' 

Grandjury.  '^  The  cvidcnce  you  shall  give  the  Grand  Jury  on  this  bill  of  in- 
dictment (or  presentment,  as  the  case  may  be — here  state  the  case,) 
shall  je  the  truth,  the  whole  truth,  and  nothing  but  the  triith.  So 
help  you  God." 

In  every  case  in  this  Code,  the  person  whose  property  has  been 
stolen,  injured,  destroyed,  taken  away,  or  fraudulently  converted  or 
conveyed, or  whose  name  has  been  forged  to  any  instrument,  or  who 
has  received  a  personal  injury,  shall  be  a  competent  witness  on  the 
trial  of  the  offender  or  offenders. 

§  4559.  Where  a  person  shall  be  prosecuted  and  convicted  on 
Several im-  moro  than  onc  indictment,  and  the  sentences  are  imprisonment  in 

prisonments  .,  ini  n  ii 

to  be  in  sue- the  penitentiary,  sucu  sentences   shall  be  severally  executed,  the 

cession.  . 

one  after  the  expiration  of  the  other ;  and  the  Judge  shall  specify 
in  each  the  time  when  the  imprisonment  shall  commence  and  the 
length  of  its  duration. 

§  4560.  All  fines  imposed  by  this  Code,  not  otherwise  appropri- 

Fines— to  ated  by  this  Code,  shall  be  paid  over  by  the  Clerks  of  the  Supe- 

paid  and  for  rior  Court  to  the  Ordinary  of  the   County,  for  educational  pur- 

what  use.  ^        n\  c    f^\        \  ^  i 

poses  in  such  County,  except  the  County  of  Chatham,  where  the 
said  fines  shall  be  paid  over  to  the  corporation  of  the  city  of  Savan- 
nah ;  and  the  Clerks  of  the  Inferior  Courts  shall  keep  a  fair  ac- 
count of  the  fines  received,  and  the  time  when  received,  and  the 
names  of  the  persons  from  whom  the  said  fines  were  collected. 
§  4561.  Every  fine  imposed  by  the  Court  under  the  authority 
Paid  im- and  by  virtue  of  this  act  shall  be  immediately  paid,  or  within 

mediately.  *'  i  i        .  y       r\ 

such  reasonable  time  as  the  Court  may  grant. 

§  4562.  In  all  cases  where  the  term  of  punishment  in  the  peni- 
Pen5t«ntiary  tcntiarv  is  discrctionary,  the   Court   shall  determine  that  punish- 

at  discretion  i       •  i  •    i       i,        • 

—jury     re-  ment,  paying  due  respect  to  any  recommendation  which  tne  jury 

commend-  '^Jto  V  J  •>•' 

ation.  may  think  proper  to  make  in  that  regard. 

§  4563.  Every  person  convicted  in  any  County  of  this  State  of 
any  crime  or  offense  punishable  with  confinement  in  the  peniten- 


PT.  4.— TIT.  1.— Penal  Code.  899 

Division  13. — Of  Indictments,  Arraignments,  etc. 

tiarv,  shall,  as  soon  as  possible  after  conviction,  together  with  a  copy      convicts 
isf  the  record  of  his  or  her  conviction  and  sentence,  be  safely  re-  safely    sent 

^  to     peniten- 

moved  and  conveyed  to  the  said  penitentiary  by  a  guard  to  be  sent  "ary. 
therefrom   for   that  purpose,   and   therein   be   safely  kept  during 
the  term  specified  in  the  judgment  and  sentence  of  the  Court. 

§  4564,  In  all  cases  where  persons  are  convicted  and  sentenced       cierk  to 

1  •  •  •111111  n      ^       "'^tify       the 

to  imprisonment  m  the  penitentiary,  it  shall  be  the  duty  or  the  keeper. 
Clerks  of  the  Superior  Courts  of  the  respective  Counties  where 
such  persons  may  be  convicted  and  sentenced,  to  inform  the  prin- 
cipal keeper  of  the  penitentiary  immediately  thereafter  by  mail,  or 
by  private  conveyance  where  there  is  no  post-office  in  the  County, 
of  the  conviction  and  sentence  of  said  convict,  and  that  he  or  she 
is  detained  in  the  County  jail,  or  under  guard,  as  the  case  may 
be,  subject  to  the  order  of  the  keeper  aforesaid. 

§  4565.   The  trial  of  prisoners  escaping  from  the  penitentiary     Trials  for 
shall  be  had  for  such  escape  before  the  Superior  Court  of  Baldwin  penitenti- 

ary. 

County,  and  prisoners  so  escaping  shall  remain  in  the  penitentiary 
and  be  treated  as  other  convicts  after  their  apprehension,  until 
such  trial  shall  take  place ;  and  upon  such  trial,  the  copies  of  the 
records  transmitted  to  the  keeper  of  the  penitentiary  relative  to 
the  former  trials  of  such  prisoners  shall  be  produced  and  filed  of 
record  in  the  said  Superior  Court  of  Baldwin  County. 

§  4566.  When    any   person    may  be   convicted  of  any  offense      Convicts 

.  '^,  ^  confined     In 

which  may  subject  him  or  her  to  confinement  in  the  penitentiary,  J>ii  t'Ji  sent 

•^  'J  1  '^  '  for  by  peni- 

it  shall  be  the  duty  of  the  presiding  Judge,  by  his  sentence,  to  or-  ten  tiary 
der  the  convict  into  custody,  to  be  safely  kept  in  jail ;  or  if  there 
be  no  jail  in  the  County,  then  in  the  nearest  jail,  or  under  a  suit- 
able guard,  until  he  or  she  shall  be  demanded  by  a  guard  to  be 
s«nt  from  the  penitentiary  for  the  purpose  of  conveying  such  con- 
vict to  the  said  penitentiary. 

§  4567.  No  person  convicted  of  a  crime  in  this  State  shall  be    No  benefit 

niiir»f«i  ^^  clergy. 

allowed  the  benefit  of  clergy;  and  in  all  cases  where  the  penalty 
of  death  is  annexed  to  a  crime,  the  convict  shall  suffer  that  pun- 
ishment. 

§  4568.  The  sentence  of  death  shall  be  executed  by  hanging     Death  by 

hfinginff. 

the  offender  by  the  neck  until  he  is  dead.  The  execution  of  the 
sentence  shall  be  in  private  and  witnessed  only  by  the  executing 
officer,  a  sufficient  guard,  the  relatives  of  the  criminal,  and  such 
clergymen  and  friends  as  he  may  desire.  The  place  for  such  ex- 
ecution shall  be  provided  by  the  Inferior  Court  of  each  County. 


900  PT.  4.— TIT.  1.— Penal  Code. 


Division  13. — Of  Indictments,  Arraignments,  etc. 


The  Judge  passing  sentence  may  order  the  execution  to  be  in  pub- 
lic, if  he  sees  proper,  and  may  in  either  case  take  such  steps  as 
he  thinks  best  to  secure  the  execution  of  the  sentence  and  to  de- 
termine when  death  supervenes. 

§4569.  It  shall  be  the   duty  of  the  Judges  of  the  Superior 
Judges  to  Courts  to  make  a  special  report  annually  to  the  Governor  of  this 

report      the  ^  •*■  _*•  "^ 

defects     of  gtatc  provious  to  the  meeting  of  the  General  Assembly,  and  by 

him  to  be  submitted  to  the  Legislature  of  all  such  defects,  omissions, 

or  imperfections  in  this  Code  as  experience  on  their  several  Circuits 

^      may  suggest. 

^  4]     ^-    g  4570.  All  crimes  and  offenses  committed  shall  be  prosecuted 

Crim«sto  and  punished  under  the  laws  in  force  at  the  time  of  the  commis- 

imder  co-ex-  siou  of  such  crimc  or  offense,  notwithstanding  the  repeal  of  such 

laws  before  such  trial  takes  place. 

§  4571.  Indictments  for  murder  may  be  found  and  prosecuted  at 
Limita-  any  time  after  the  death  of  the  person  killed.     In  all  other  cases 

tions  of   in-   ,  -nxii  •!  •       t         i  t  •  • 

dictments.    (exccpt  murder)  where  the  punisnment  is  death  or  perpetual  impris- 
onment, indictments  shall  be  filed  and  found  in  the  proper  Court 

*  within  seven  years  next  after  the  commission  of  the  offense,  and 

at  no  time  thereafter.  In  all  other  felonies,  the  indictments  shall 
be  found  and  filed  in  the  proper  Court  within  four  years  next 
after  the  commission  of  the  offense,  and  at  no  time  thereafter. 
And  in  all  other  cases  where  the  punishment  by  law  is  fine  or  im- 
prisonment, or  fine  and  imprisonment  in  the  common  jail  of  the 
County,  indictments  shall  be  found  and  filed  in  the  proper  Court 
within  two  years  after  the  commission  of  the  offense,  and  at  no 
time  thereafter ;  provided^  nevertheless,  that  if  the  offender  shall 
abscond  from  this  State,  or  so  conceal  himself  that  he  can  not  be 
arrested,  such  time  during  which  such  offender  has  been  absent 
from  the  State,  or  concealed,  shall  not  be  computed  or  constitute 
any  part  of  the  said  several  limitations ;  pi'ovided,  also,  that  no 
limitation  shall  run  so  long  as  the  offender  or  offense  is  unknown  ; 
provided  further,  that  if  the  indictment  is  found  within  the  time 
limited,  and  for  any  informality  shall  be  quashed  or  nol.  pros' d,  a 
new  indictment  may  be  found  and  prosecuted  within  six  months 
from  the  time  the  first  is  quashed  or  nol.  pros'd. 

§  4572.  If,  after  any  convict  shall  have  been  sentenced  to  the 
Becoming  punishment  of  death,  he  shall  become  insane,  the  Sheriff  of  the 

insane  after  ^  .  r»     i        x    r»     •         /^ 

conviction.    Couuty,   With  concurrcncc  and  assistance  of  the  Inferior  Court 
thereof,  shall  summon  a  jury  of  twelve  men  to  inquire  into  such 


PT.  4.— TIT.  1.— Penal  Code. 


901 


Division  13. — Of  Indictments,  Arraignments,  etc. 


insanity;  and  if  it  be  found,  by  the  inquisition  of  such  jury,  that 
such  convict  is  insane,  the  Sheriff  shall  suspend  the  execution  of 
the  sentence  directing  the  death  of  such  convict,  and  make  report 
of  the  said  inquisition  and  suspension  of  execution  to  the  presid- 
ing Judge  of  the  District,  who  shall  cause  the  same  to  be  entered 
on  the  minutes  of  the  Superior  Court  of  the  County  where  the 
conviction  was  had.  And  at  any  time  thereafter,  when  it  shall 
appear  to  the  said  presiding  Judge,  either  by  inquisition  or  other- 
wise, thiit  the  said  convict  is  of  sound  mind,  the  said  Judge  shall 
ififcue  a  new  w^arrant  directing  the  SheriiF  to  do  execution  of  the 
said  sentence  on  the  said  convict,  at  such  time  and  place  as  the 
said  Judge  may  appoint  and  direct  in  the  said  warrant,  which  the 
Sheriff  shall  be  bound  to  do  accordingly.  And  the  said  Judge 
shall  cause  the  said  new  warrant  and  other  proceedings  in  the  case 
to  be  entered  on  the  minutes  of  the  said  Superior  Court. 

§  4573.  If  a  female  convict  sentenced  to  the  punishment  of 
death  shall  be  found  pregnant  with  child,  the  Sheriff,  with  the 
concurrence  and  assistance  of  the  Inferior  Court,  shall  select  one 
or  more  physician  or  physicians,  who  shall  make  inquisition,  and 
if,  upon  such  inquisition,  it  appear  that  such  female  convict  is 
quick  ^with  child,  the  Sheriff  shall  suspend  the  execution  of  the 
sentence  directing  the  death  of  such  female,  and  make  report  of 
the  said  inquisition  and  suspension  of  execution  to  the  presiding 
Judge  of  the  District,  who  shall  cause  the  same  to  be  entered  on 
the  minutes  of  the  Superior  Court  of  the  County  where  the  con- 
viction was  had.  And  at  any  time  thereafter,  when  it  shall  appear 
to  the  said  presiding  Judge  that  the  said  female  convict  is  no 
longer  quick  with  child,  he  shall  issue  a  new  warrant  directing  the 
Sheriff  to  do  execution  of  the  said  sentence,  at  such  time  and 
place  as  the  said  Judge  may  appoint  and  direct  in  the  said  warrant, 
which  the  Sheriff  shall  be  bound  to  do  accordingly.  And  the 
said  Judge  shall  cause  the  said  new  warrant  and  other  proceedings 
in  the  ease  to  be  entered  on  the  minutes  of  said  Superior  Court. 

§4574.  Whenever,  for  any  reason,  any  convict  sentenced  to  the 
punishment  of  death  shall  not  have  been  executed  pursuant  to 
such  sentence,  and  the  same  shall  stand  in  full  force,  the  presiding 
Judge  of  the  Superior  Court  where  the  conviction  was  had,  on  the 
application  of  the  Attorney  or  Solicitor  General  of  the  District, 
or  other  person  prosecuting  for  the  State,  shall  issue  a  habeas 
eorjpus  to  bring  such  convict  before  him ;  or  if  such  convict  be  at 
large,  said  Judge,  or  any  judicial  officer  of  this  State,  may  issue 


Female  con- 
victs preg- 
nant. 


Ifexeeution 
is  not  done 
at  appointed 
time. 


902  PT.  4.~TIT.  1.~Penal  Code. 


Division  13. — Of  Indictments,  Arraignments,  etc. 


a  warrant  for  his  apprehension ;  and  upon  the  said  convict  being 
brought  before  the  said  Judge,  either  bj  habeas  eorpus  or  under 
such  warrant,  he  shall  proceed  to  inquire  into  the  facts  and  cir- 
cumstances of  the  case,  and  if  no  legal  reason  exists  against  the 
execution  of  such  sentence,  such  Judge  shall  sign  and  issue  a 
warrant  to  the  Sheriff  of  the  proper  Coontj,  commanding  him  to 
do  execution  of  such  sentence  at  such  time  and  place  as  shall  be 
appointed  therein,  which  the  said  Sheriff  shall  do  accordingly. 
And  the  Judge  shall  cause  the  proceedings  in  such  case  to  be  en- 
tered on  the  minutes  of  the  Superior  Court  of  the  County. 

§  4575.  Whenever  any  convict  shall  be  sentenced  to  the  punish- 
Execution—  mcDt  of  death,  the  Court  shall  specify  the  time  and  place  of  exe- 

■within  what  ..  ,.-,.  in  ii  i 

time    from  cutiou  lu  such  sontcnce,  which  time  shall  not  be  less  than  twenty 

^PTi  tcncs 

days  nor  more  than  sixty  days  from  the  time  of  the  sentence, 
except  in  the  case  of  a  female  convict  who  is  quick  with  child  at 
the  time,  in  which  case  the  Court  may  and  shall  appoint  some  day 
that  will  arrive  after  she  shall  have  been  delivered  of  such  child. 
§  4576.  When  an  offense  shall  be  committed  on  the  boundary 
Offenses  line  of  two  Countics,  it  shall  be  considered  and  adjudged  to  have 

on    bounda-  •i.-ir^  i  -t  n  i 

ry  lines.  Dccn  Committed  m  either  County,  and  an  indictment  lor  such 
offense  may  be  found  and  tried  in,  and  conviction  thereon  may  be 
had  in  either  of  said  Counties. 

§  4577.  When  any  mortal  wound  shall  be  given,  or  any  poison 

Deathfrom  shall  be  administered,   or  any  other  means  shall  be  employed  in 

in  '  another  ouc  Couuty  by  which  a  human  being  shall  be  killed,  who  shall  die 

thereof  in  another  County,  the  indictment  shall  be  found  and  the 

offender  shall  be  tried  in  the  County  where  the  act  was  performed 

or  done  from  which  the  death  ensued. 

§  4578.  If  such  wound  be  given  or  poison  administered  upon 
Or  on  soil  soil  the  jurisdiction  over  which  has  been  ceded   to  the   United 
s.  '  States,   within  the  geographical  limits   of   this   State,   or  within 

the  territory  of  an  adjoining  State,  and  death  shall  ensue  there- 
from in  any  County  in  this  State,  the  indictment  shall  be  found 
and  the  cause  tried  in  the  County  where  the  death  occurs. 

§  4579.  No  lunatic,  or  person  afflicted  with  insanity,  shall  be 
Lunacy  and  tried,  or  put  upou  his  trial,  for  any  offense,  during  the  time  he  is 
afflicted  with  such  lunacy  or  insanity,  which  shall  be  tried  in  the 
manner  hereinbefore  pointed  out,  where  the  plea  of  insanity  at 
the  time  of  offense  is  filed,  and,  on  being  found  true,  the  prisoner 
shall  be  disposed  of  in  like  manner. 

§  4580.  No  person  shall  be  convicted  of  an  assault  with  intent 


PT.  4.— TIT.  1.— Penal  Code. 


903 


Division  13. — Of  Indictments,  Arraignments,  etc. 


to  commit  a  crime,  or  of  any  other  attempt  to  commit  any  of-  Theattempt 

never  to  bo 

fense,  when  it  shall  appear  that  the  crime  intended,  or  the  offense  indicted. 
attempted,  was  actually  perpetrated  by  such  person  at  the  time  of 
such  assault,  or  in  pursuance  of  such  attempt. 

§  4581.  Upon  the   trial   of  an  indictment  for   any  offense,  the     ^"^^y  "?^y 

'^  i-  ./  '  always    find 

jury  may  find   the  accused  not  guilty  of  the  offense   charged  in  ^^^  attempt. 

the  indictment,  but  guilty  of  an  attempt  to  commit  such  offense, 

without   any  special  count  in   said   indictment  for  such  attempt ; 

provided  the  evidence  before  them  will  warrant  such  finding. 

§4582.  If  any  person,  who  has  been  convicted  of  an  offense  and  Twoconvic- 
•^  ■*•  ,  ,        ^  tions,  long- 

sentenced  to  confinement  and  labor  in  the  penitentiary,  shall  after-  est  time. 

wards  commit  a  crime  punishable  by  confinement  and  labor  in  the 

penitentiary,  and  be  thereof  lawfully  convicted,  such  convict  shall 

be  sentenced  to  undergo  and  suffer  the  longest  period  of  time  and 

labor  prescribed  for  the  punishment  of  such  offense  of  which  he 

stands  convicted. 

^  4583.   On  the  trial  of  any  convict  in  the  penitentiary  for  the      O"  trials 

•^  -^  "^  for     escapes 

crimes  of  escape  and  mutiny,  or   either  of  them,  any  other  pris- ^'^^"^"^^i^y- 

oner  or  convict,  not   included  in  the  same  indictment,  shall  be  a 

competent   witness,  and   the   infamy  of  his   character  and  of  the 

crime  of  which  he  has  been  convicted  shall  be  exceptions  to  his 

credit  only. 

§  4584.  When  any  person  stands  indicted  for  an  offense  which,     impannei- 

.  .  .  i^c  i^^^y- 

upon  conviction,  may  subject  him  to  the  punishment  of  death  or 

imprisonment  in  the  penitentiary,  it  shall  be  the  duty  of  the  Court 
to  have  impanneled  forty-eight  jurors  from  which  to  select  a  jury 
for  the  trial  of  such  offender,  and  to  continue  to  furnish  [panels, 
consisting  of  such  number  of  jurors,  as  the  Court,  in  its  discre- 
tion, may  think  proper,  until  a  jury  is  obtained.]  (a) 

§  4585.   Said  panel  shall  contain  the  Petit  Jurors  already  sworn  Talesmen. 
and  in  attendance,  and  talesmen  summoned  by  order  of  the  Court, 
indiscriminately  and  impartially  from  the  citizens  of  the  County. 

§4586.  The  Clerk  shall  make  out  three  lists  of  each  panel,  and  Putting  pa- 

/»         •    -I  1*  •  11  1  -    -        nel  on  pris- 

lurnish  one  to  the  prosecuting  counsel,  and  one  to  the  counsel  tor  oner. 
the  defense.     The  Clerk  shall  then  call  over  the  panel,  and  it  shall 
be  immediately  put  upon  the  accused. 

§  4587.   The  accused  may,  in   writing,  challenge  the  array  for     Challenge 

...  f   '    -I  t       •  t<^  t'l®  array. 

any  cause  going  to  show  that  it  was  not  lairly  or  properly  impan- 


(a)  Acts  of  1865-6,  p.  235. 


904  PT.  4.— TIT.  1.— Penal  Code. 

Division  13. — Of  Indictments,  Arraignments,  etc. 

neled,  or  ought  not  to  be  put  upon  him,  the  sufficiency  of  which 
challenge  the  Court  shall  determine  at  once.  If  sustained,  a  new 
panel  shall  be  ordered ;  if  not  sustained,  the  selection  of  jurors 
shall  proceed. 

§  4588.   On  calling  each  juror,  he  shall  be  presented  to  the  ac- 
Challenges  cuscd  in  such  a  manner  that  he  can  distinctly  see  him,  and  it  shall 

for  cause.  J  ' 

be  then  lawful  for  the  State,  or  the  accused,  to  make  either  of  the 
following  objections — viz  : 

1.  That  he  is  not  a  free  white  citizen,  resident  in  the  County. 

2.  That  he  is  over  sixty  or  under  twenty  years  of  age. 

3.  That  he  is  an  idiot,  or  lunatic,  or  intoxicated. 

4.  That  he  is  so  near  of  kindred  to  the  prosecutor,  or  the  ac- 
cused, or  the  deceased,  as  to  disqualify  him  by  law  from  serving 
on  the  jury. 

It  shall  be  the  duty  of  the  Court  to  hear  immediately  such  evi- 
dence as  may  be  submitted  (the  juror  being  a  competent  witness) 
in  relation  to  the  truth  of  these  objections  ;  and  if  he  shall  be  sat- 
isfied of  the  truth  of  either,  the  juror  shall  be  set  aside  for  cause, 
Time  when  if  either  ouc  of  tliesc  obiections  be  true  in  fact;  but  if  the  fact  is 

to  be  made.  ^  ^  '  ^ 

unknown  to  either  party,  or  the  counsel  of  such  party,  at  the  time 
the  juror  is  under  investigation,  and  is  subsequently  discovered, 
such  objection  may  be  made,  and  the  proof  heard  at  any  time  be- 
fore the  prosecuting  counsel  submits  to  the  jury  any  of  his  evi- 
dence in  the  case;  but  if  known  to  the  party  or  his  counsel,  the 
objection  must  be  made  before  the  juror  is  sworn  in  the  case. 
§  4589.  On  all  trials  for  crimes  or  offenses,  on  the  criminal 
Questions  on  side  of  the  Court,  where   the  punishment  is  death  or  imprison- 

voir  aire,  •*•  , 

ment  and  labor  in  the  penitentiary,  any  juror  may  be  put  upon 
his  voir  dire^  and  the  following  questions  shall  be  propounded  to 
him — viz:  ''Have  you,  from  having  seen  the  crime  committed, 
or  having  heard  any  of  the  testimony  delivered  on  oath,  formed  and 
expressed  any  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar?  "  If  the  juror  shall  answer  in  the  negative, 
then  the  following  question  shall  be  propounded  to  him:  "  Have 
you  any  prejudice  or  bias  resting  on  your  mind  either  for  or  against 
the  prisoner  at  the  bar?"  And  if  the  juror  shall  answer  these 
questions  in  the  negative,  the  following  question  shall  be  pro- 
pounded:  "Is  your  mind  perfectly  impartial  between  the  State 
and  the  accused?  "  And  if  he  shall  answer  this  question  in  the 
affirmative,  he  shall  be  adjudged  and  held  a  competent  juror,  in  all 


PT.  4.— TIT.  1.— Penal  Code.  905 

Division  13. — Of  Indictments,  Arraignments,  etc. 

cases  where  the  offense  does  not  involve  the  life  of  the  accused ; 
but  when  it  does  involve  the  life  of  the  accused,  the  following  ad- 
ditional question  shall  be  put  to  him:  ''Are  you  conscientiously 
opposed  to  capital  punishment?"  If  he  shall  answer  this  ques- 
tion in  the  negative,  he  shall  be  held  a  competent  juror  :  provided,  Proviso. 
nevertheless,  that  either  the  State  or  the  defendant  shall  have  the 
right  to  introduce  evidence  before  the  Judge  to  show  that  the  an- 
swers, or  any  of  them,  of  the  jurors  are  untrue  ;  and  it  shall  be 
the  duty  of  the  Judge  to  determine  upon  the  truth  of  such  an- 
swers as  may  be  thus  questioned  before  the  Court. 

§  4590.  If  a  juror  shall  answer  any  of  these  questions  so  as  to  settingaside 

lor  CtixisG. 

render  him  incompetent,  or  he  shall  be  so  found  by  the  Judge,  he 
shall  be  set  aside  for  cause. 

§4591.  If  found  competent  and  not  challenged  peremptorily  by  .    Swoaring 
the  State,  he  shall  be  put  upon  the  prisoner,  and  unless  challenged 
peremptorily  by  him,  shall  be  sworn  to  try  the  cause, 

§4592.  When  a  iuror  has  been  found  competent  as  aforesaid,    Noinvesti- 

'^  ^  ,        -^  ,  gation  before 

no  other  or  further  investigation  before  triers,  or  otherwise,  shall  triers, 
be  had,  unless  upon  newly  discovered  evidence  to  disprove  his  an- 
swer, or  to  show  him  incompetent  as  aforesaid,  which  may  be 
heard  by  the  Judge  at  any  time  before  any  of  the  evidence  on  the 
main  issue  is  submitted ;  and  if  the  juror  is  proved  incompetent, 
the  Judge  may  order  him  withdrawn  from  the  jury  and  cause 
another  selected  in  the  same  manner  as  is  above  pointed  out. 

§  4593.  [In  all  criminal  cases,  when  a  jury  can  not  be  obtained      Criminal 
in  the  Uounty  where  the  crnne  was  committed,  it  shall  be  lawiui  be  transfer- 

red — when. 

for  said  cases  to  be  transferred  to  any  County  that  may  be  agreed 
upon  by  the  Solicitor  General  and  the  defendants  or  their  coun- 
sel, and  be  tried  in  the  County  agreed  upon ;  and  in  the  event  the 
Solicitor  General  and  the  defendants  or  their  counsel  fail  or  refuse 
to  agree  upon  any  County  in  which  to  try  said  cases  then  pending, 
the  Judge  is  hereby  authorized  to  select  the  County  in  which  the 
same  shall  be  tried,  and  have  the  cases  transferred  accordingly.]  (a) 

§  4594.  Any  person  sentenced  to  confinement  and  labor  in  the     Penitenti- 

^    ^  ary  impns- 

penitentiary,  is  and  shall  be  thereby  rendered  incapable  of  holdinsr  ^P'"^^,^^  ^^ 

*  _  "^  '  "^  i  a    disqualifica- 

or  exercising  any  public  or  private  office,  trust,  power,  or  authority,  ^'^°- 
and  any  such  held  by  him  shall  become  and  be  vacant,  by  virtue 
of  such  sentence. 

§  4595.  When  two  or  more  defendants  shall  be  jointly  indicted 

(a)  Acts  of  1852-3,  p.  162. 


906  PT.  4.— TIT.  1.— Penal  Code. 

Division  13, — Of  Indictments,  Arraignments,  etc. 
Joint defen-  for  anv  offense,  any  one  defendant  may  be  tried  separately,  and  if 

dants      may  ,  ,.. 

be  tried  sep- the  offense  be  such  as  requires  the  joint  action  and  concurrence  of 

arately.  . 

two  or  more  persons,  the  acquittal  or  conviction  of  one  shall  not 
operate  as  an  acquittal  or  conviction  of  any  of  the  others  not  tried, 
but  they  shall  be  subject  to  be  tried  in  the  same  manner. 

§  4596.   The  continuance  of  a  case  by  one  of  several  defendants 
continu-  indicted  jointly  shall  in  no  case  operate  as  a  continuance  as  to  the 

ancebyone.  .         . 

^  ,      other  defendants  objecting  thereto. 

?  ^■■'    '■  §  4597.   On  the  trial  of  any  indictment  for  an  assault,  or  an  as- 

Opprobrions  sault  and  battery,  the  defendant  may  give  in  evidence  to  the  jury, 

words     may  .  .  o       ^  i 

^e    po^ed  any  opprobrious  words,  or  abusive  language  used  by  the  prosecutor 

^^  /  or  person  assaulted  or  beaten  ;   and  such  words  and  language  may 

or  may  not  amount  to  a  justification,  according  to  the  nature  and 

extent  of  the  battery,  all  of  which  shall  be  determined  by  the  jury. 

§  4598.   On  the  trial  of  the  question  of  insanity,  arising  after 

Oath  of  in-  the  persou  shall  have  been  condemned  to  die,  provided  for  by  Sec- 
quest  of  1X1-     ^       -^  ^  ^  ■••  "^ 

sanity.  tion  4572  of  this  Code,  the  following  oath  shall  be  administered 
to  the  jury — to  wit :  "  You,  and  each  of  you,  do  solemnly  swear 
(or  affirm)  that  you  will  well  and  truly  try  this  issue  of  insanity 
between  the  State  and  A.  B.,  now  condemned  to  die,  and  a  true 
verdict  give  according  to  evidence.     So  help  you  God." 

§4599.    On  the  trial  of    all  cases  where  the  party,  if   found 
In  capital  pruilty,  would  be  subject  to  confinement  in  the  penitentiary,  or  any 

or     peniten-  o         t^  y  ^  o  ^  r  .-  7  ^ 

tiary  cases,  greater  punishmeut,  it  shall  be  the  duty  of  the  presiding  Judge  to 
have  the  testimony  given  in  said  case  taken  down ;  and  in  the 
event  of  the  jury  returning  a  verdict  of  guilty,  the  testimony  shall 
be  entered  on  the  minutes  of  the  Court,  or  a  book  to  be  kept  for 
that  purpose. 

§  4600.  In  sentencing  a  person  couA^icted  of  an  ofi'ense  subject- 
Torm  cf  injy  l^jni  to  penitentiary  imprisonment,  the  Judoje  shall  frame  such 

sentence.  ^  r  ./  r  '  o 

sentence  so  as  to  authorize  his  confinement  and  labor  in  the  peni- 
tentiary of  this  State,  or  at  such  other  place  or  places  as  the 
Governor  of  the  State  may  direct. 

§  4601.  The  Superintendent  or  principal  keeper  of  the  peniten- 
Commuta-  tiary  shall  keep  a  book  in  which  shall  be  entered  the  names  of  the 

tion  for  good    •        ^  a 

behavior.  convicts  Sentenced  for  a  term  of  two  or  more  years ;  opposite  to 
each  name  shall  be  placed  by  the  book-keeper  a  mark  of  approba- 
tion or  disapprobation,  according  to  the  conduct  of  each ;  and 
should  it  appear  from  this  book  that  the  conduct  of  any  one  is 
unexceptionable,  then  such  convict's  time  of  confinement  (except 


PT.  4.— TIT.  1.— Penal  Code. 


90T 


Division  13. — Of  Indictments,  Arraignments,  etc. 


e* 


confinement  for  life)  shall  be  shortened  two  days  in  each  and  eve- 
ry month  for  the  time  they  shall  have  so  served. 

§  4602.   The  costs  of  any  prosecution  shall  not  be  demanded  of  ,  Collection 

'^  ./    r  Gi  costs. 

any  defendant  (except  the  fees  of  his  own  witnesses)  until  after 

conviction  or  escape ;  in  either  of  which  cases  judgment  may  be  ^ 

entered  up  for  all  costs  accruing  in  the  committing  or  Superior -^^^O^A^ 

Courts,  and  by  any  ofiicer  pending  the  prosecution— on  which  judg-  ■' 

ment  the  Clerk  shall  issue  execution  against  all  the  property  of 

the  defendant — and  such  judgment  shall  have  a  lien  upon  such    /^   y^  C/O  ? 

property   from  the  date  of  the  arrest  of  the  defendant.     In  cases 

of  conviction,  the  Court  may  nevertheless  direct  the  defendant  to  judgmeut. 

be  imprisoned  until  all  costs  are  paid. 

§  4603.  If  any  prisoner  in  the  common  jail,  after  the  time  of    Discharge 

....  .  ,..,.,  ,  .-,  ofinsolvents 

his  imprisonment  expires,  or  otherwise,  is  detained  merely  until  by   inferior 
costs,  [or  until  fine  and  costs  are  paid,  and  the  Justices  of  the  In- 
ferior Court  are  satisfied  that  he  is  unable  to  pay  the  costs  and 
fine,  or  either  of  them,  said  Justices  (the  whole  Court  therin  con- 
curring) may  discharge  such  prisoner  from  further  confinement.]  (a)  onhftlvf^;!'^' 

§  4604.  No  person  shall  give  bail  more  than  twice  after  indict- 
ment or  presentment  found  for  the  same  offense. 

§  4605.   Upon  the  failure  to  appear  of  any  principal  in  any  bond  Proceedings 
or  recognizance  given  by  a  person  charged  with  a  penal  offense,  or 
by  a  prosecutor  to  prosecute,  or  by  a  witness  to  appear  and  testify, 
the  prosecuting  attorney  shall  proceed  to  forfeit  such  bond  or  re- 
cognizance in  the  manner  heretofore  practiced  in  this  State. 

§  4606.  The  Clerk  shall  issue  a  scire  facias  on  all  forfeited 
bonds,  recognizances,  or  other  obligations,  against  the  principal 
and  his  sureties,  which  shall  be  served  by  the  Sheriff  or  his  depu- 
ty, or  by  publication,  as  provided  in  Sections  3364  and  3366,  re- 
turnable to  the  next  term  of  such  Court.  And  if,  at  such  term, 
no  sufiicient  cause  be  shown  to  the  contrary,  judgment,  on  motion, 
shall  be  entered  against  such  principal  and  sureties,  or  such  of 
them  as  have  been  served. 

§  4607.  Bail  can  surrender  their  principal  to  the  Sheriff  in  va- 
cation as  well  as  in  open  Court. 

§4608.  [All  crimes  designated  in  the  Penal  Code  of  this  State,  Punishment 

'    ^      1  ^        ^  n  !•  •  ■    i  \      it     ^  •!  for  minor  of- 

punishable  by  fine  and  imprisonment,  or  either,  shall  be  punisha-  fenses. 
ble  in  the  manner  hereinafter  set  forth — that  is  to  say,  the  punish- 


cogmzancea. 


Judgment 
against  bail. 


Surrender 
of  bail. 


(a)  Acts  of  18G1,  p.  57. 


908  PT.  4.— TIT.  1.— Penal  Code. 

Division  13. — Of  Indictments,  Arraignments,  etc. 

ment  for  any  of  the  aforesaid  crimes  hereafter  committed,  shall  be 
a  fine  not  to  exceed  one  thousand  dollars,  imprisonment  not  to  ex- 
ceed six  months,  whipping  not  to  exceed  thirty-nine  lashes,  to 
work  in  a  chain-gang  on  the  public  works,  not  to  exceed  twelve 
months,  and  any  one  or  more  of  these  punishments  may  be  or- 
dered, in  the  discretion  of  the  Judge.]  (a) 

§  4609.  All  offenses  against  the  person  or  property  of  a  citizen, 
Settlement  not  punisliablo  by  fine  and  imprisonment,  or  a  more  severe  penaltv, 

of  minor  of-  ^  "^  ,  i  ^  > 

f«nses.         may  be  settled  by  the  prosecutor  and  offender  at  any  time  before 
verdict,  the  costs  up  to  the  time  of  settlement  being  first  paid. 
§4610.  All  other  offenses  must  be  settled  by  the  prosecutor, 
Of  all  others,  with  the  conseut  of  the  Court,  entered  by  order  on  its  minutes, 
and  not  otherwise. 

§  4611.   Any   ofiicer   of  Court  knowingly   demanding   as   costs 
Excessive  from  a  defendant,  fees  to  vv^hich  he  is  not  entitled,  fand  any  Attor- 

costs  misde-  .A  • 

meaner.       ney  or  Solicitor  General  who  shall  demand  or  receive  any  fee,  or 

.  costs,  on  any  criminal  case  which  has  not  been  tried  by  a  Petit 

Jury,  or  otherwise  finally  disposed  of,  shall  be  guilty  of  a  misde- 

soiieitornot  meanor,  and,  on  conviction,  shall   be   punished   as   prescribed   in 

to       receive  '  -^  ■'•  ■•■ 

«««ts-^^^«"  Section  4245  of  this  Code.]  (b) 

§4612.  Two  returns  of  "No    bill"  by   Grand  Juries,   on  the 
Two  returns  Same  char2;e  or  accusation,  shall  be  a  bar  to  any  future  prosecu- 

of  "No  bill"    .p,  ^  .,  -,,  1 

a  bar.  tiou  lor  the  Same  onense,  either  under  the  same  or  another  name, 

unless  such  returns  have  been  procured  by  the  fraudulent  conduct 
of  the  person  charged,  on  proof  of  which,  or  of  newly  discovered 
evidence,  the  Judge  may  allow  a  third  bill  to  be  presented,  found 
and  prosecuted. 

§  4613.  When  costs  are  not  recovered  from  the  defendant,  the 

Insolvent  samo  shall  be  paid  to  the  respective  officers  out  of  money  received 

for  fines,  upon  orders  regularly  presented  and  allowed  and  entered 

Order  for  Qu   the  miuutcs  of  the  Court.     Such  orders  (except  those  of  the 

distribution.  ,  ... 

prosecuting  attorneys),  shall  be  paid  in  the  order  of  their  date, 
and  all  moneys  arising  from  fines  shall  be  distributed  under  an 
order  of  the  Court,  to  be  entered  on  the  minutes  at  each  term. 
Upon  application  of  the  Ordinary,  the  Grand  Jury  may,  at  any 
Gr^Tjur*^^  *®^'"^'  require  an  exhibit  from  the  Solicitor  General  and  Clerk, 
showing  the  disposition  of  all  money  arising  from  fines,  and  the 
present  state  of  their  accounts.     The  cases  on  the  criminal  docket 

(a)  Acts  of  1865-6,  p.  233.    (b)  Acts  of  1861,  p.  69. 


PT.  4.— TIT.  I.^Pekal  Cods.  909 

Division  14. — Of  Contempts  of  Court,  and  Attempts  to  Commit  Crime. 


^ 


I'^t-i 


shall  be  called  in  the  order  in  which  they  stand  on  the  docket,  un-  'VO'^    .  ''^^''^ 

less. the  defendant  be  in  jail,  [or  otherwise  in  the  sound  discretion 

of  the  Court,]  (a)  and  the  State  shall  be  required  in  every  case  to 

announce  ready  or  not  ready  for  trial,  [except  in  those  cases  where 

the  defendant  is  entitled  by  law  to  demand  a  trial,]  (b)  before  the 

defendant  shall  be  called  on  to  make  such  announcement ;  and  in 

all  cases  in  which  the  defendant  can  not  according  to  law  demand 

a  trial,  a  continuance  shall  not  be  granted  to  the   State,  except 

upon  a  reasonable  showing  therefor. 


FOURTEENTH  DIYISIOK 

OE  CONTEMPTS  OF  COURT,  AND  ATTEMPTS  TO  COMMIT  CRIMES. 


Section. 

4614,  Contempts  of  Court 


Section. 

4615.  Penalty  for  attempts. 


^•*^ 


§  4614.  The  power  of  the  several  Courts  of  Law  and  Equity  in         Power 

^  '      c^  •  •  1     •     n-  .    i  «f        Courts 

this  btate,  to  issue  attachments  and  inflict  summary  punishments  in  punishing 

T       contempts. 

for  contempts  of  Court,  shall  not  extend  to  any  cases  except  the  . 
misbehavior  of  any  person  or  persons  in  the  presence  of  the  said  *^^,^  /  , 
Courts,  or  so  near  thereto  as  to  obstruct  the  administration  of  jus- 
tice, the  misbehavior  of  any  of  the  officers  of  said  Courts  in  their 
official  transactions,  and  the  disobedience  or  resistance  by  any 
officer  of  said  Courts,  party,  juror,  witness,  or  other  person  or  per- 
sons, to  any  lawM  writ,  process,  order,  rule,  decree,  or  command, 
of  the  said  Courts. 

§  4615.  If  any  person  shall  attempt  to  commit  an  offense  pro-      Attempts 

,.,,,,  ,    .  1     n     1  11*"      commit 

mbited  by  law,  and  m  such  attempt  shall  do  any  act  toward  the  crimes  — 

.  ^  "^  .         how  punish- 

commission  of  such    offense,   but   shall  fail  in  the  perpetration  ed. 
thereof,  or  shall  be  prevented  or  intercepted  from  executing  the      ■   '  '    , 
same,  such  person   so   offending  shall  be  indicted  for  a  misde- 
meanor, and,  on  conviction  thereof,  shall,  in  cases  where  no  pro- 
vision is  otherwise  made  in  this  Code,  or  by  law,  for  the  punish- 
ment of  such  attempt,  be  punished  as  follows : 

First.    If  the  offense  attempted  to  be  committed  be  such  as  is  iftheinten- 
punishable  by  law  with  death,  the  person  convicted  of  such  at-  wouM  have 
tempt  shall  be  punished  by  imprisonment  and  labor  in  the  peni- 
tentiary for  any  time  not  less  than  two  years  nor  more  than  seven 
years. 

(a)  Acts  of  1862-3,  p.  140.    (b)  Acts  of  1862-3,  p.  138. 


910  PT.  4.—TIT.  1.-^Pexal  Code. 

Division  14. — Of  Contempts  of  Court,  and  Attempts  to  Commit  Crime. 


Second.   If  the  offense  attempted  to  be  committed  be  punisha- 
ifpeniten-  "ble  bv  law  bv  Imprisonment  and  labor  in  the  penitentiary  for  a 

tiary       four     ^  ^  >/  i  r  ^ 

years.  time  not  less  than  four  years,  the  person  convicted  of  such  attempt 

shall  be  punished  by  imprisonment  and  labor  in  the  penitentiary 

•  for  any  time  not  less  than  one  year  nor  more  than  four  years. 

Third.    If  the  offense  attempted  to  be  committed  be  such  as 

If  peniten-  ig  punishable  by  law  by  imprisonment  and  labor  in  the  peniten- 
tiary      two    .  . 
years.          tiary  for  a  time  not  less  than  two  years,  the  person  convicted  of 

such  attempt  shall  be  imprisoned  in  the  penitentiary  at  labor  for 

the  term  of  one  year. 

Fourth.   If  the  offense  attempted  to  be  committed  be  punisha- 

if  peniten-  blc  by  law  by  imprisonment  and  labor  in  the  penitentiary  for  a 

tiary         one     .  "^  *^        .   -^  .       -^  "^ 

year.  time  not  exceeding  one  year,  the  person  convicted  of  such  attempt 

shall  be  punished  [as  prescribed  in  Secti^4245  of  this  Code.]  (a) 

Fifth.   If  the  offense  attempted  to  be  Mnmitted  be  punishable 

If  fine  150  by  law  by  fine  not  exceeding  five  hundred  dolh^rs,  or  imprisonment 

or  imprison-  .  ..,,,,  '  -i       n  ^ 

mentin  jail,  in  the  common  lail,  or  both,  the  person  convicted  oi  such  attempt 

or  both.  .  .  ,      ^         .  %  \ 

shall  be  punished  [as  prescribed  in  Section  4245  of  this  Code.]  (a) 


FIFTEENTH   DIVISION. 
PROCEEDINGS     IK    PRELIMINARY    COURTS. 


Article  1. — Proceedings  Prior  to  Arrest.    \ 

Article  2. — Of  Arrest  and  its  Oorisequenees. 

Article  3. — Of  Courts  of  Inquiry^  Commitment  and  Bail. 

Article  4. — ^Of  Warrants  for  Crood  Behavior,  etc. 

Article  5. — -Of  Search   Warrants. 

Article  6. — Of  Proceedings  in  Cases  of  Bastardy. 


ARTICLE   I.  .. 

proceedings    PRIOR    TO    ARREST. 


Skctiok. 

4616.  Who  may  issue  warrants. 

4617.  Contents  of  affidavit  ami  warrant. 

4618.  Form  of  affidavit. 

4619.  Form  of  warrant. 

4620.  Sp«cial  warrant  prohibited. 


Section. 

4621.  Of  selection  of  Judge  to  try  cause. 

4622.  Officer  may  require  bond. 

4623.  Warrants  may  issue  in  any  County. 

4624.  Officer  may  follow  sebused. 


(a)  Acts  of  1865-6,  p.  233. 


PT.  4.— TIT.  1.— DIV.  15.-— Penal  Code.  911 

Article  1. — Proceedings  Prior  to  Arrest. 


§4616.  Any  Judge  of  a  Superior  or  City  Court,  any  Judo-e  of  whomayis- 

o  ./  o  I  J  7  .y  o   ^         sue  warrants 

the  County  Court,  or  Justice  of  the  Peace,  or  any  corporation 
officer  clothed  by  law  with  the  powers  of  a  Justice  of  the  Peace, 
may  issue  his  warrant  for  the  arrest  of  any  offender  against  the 
penal  laws  of  this  State,  based  either  on  his  own  knowledge  or  the 
information  of  others  given  to  him  under  oath. 

§  4617.   [Any  affidavit  made,  or  warrant  issued  for  the  arrest  of  whatafiada- 

*^  L         ^  -'  vit  and  war- 

any  offender  against  the  penal  laws  of  this  State,  shall  state  as  "^^^^    ™"^*^ 

nearly  as  practicable  the  following  facts — to  wit:  The  offense,  the      s;.  '*)^'f^./Q^/ 

County  in  which  the  same  was  committed,  and  the  time  when  com-         /  *' 

mitted ;  and  when  the  offense  charged  is  larceny,  the  ownership  of  ;  \  y'/ pL  Q  v // 

the  property  alleged  to  have  been  stolen,  or  the  person  from  whose 

possession  it  was  taken,  shall,  as  far  as  practicable,  be  stated  in 

the  affidavit  and  warrant.]  (a) 

§  4618.   [An  affidavit  substantially  complying  with  the  following     Form  of 

form  shall  in  all  cases  be  deemed  sufficient : 

Georgia, 
County. 

Personally  came  A.  B.,  who,  on  oath,  saith  that,  to   the  best 

of   his  knowledge    and    belief,    C.    D.   did,    on   the —  day    of 

■ — ,  in  the  year ,  in  the   County  aforesaid,  commit  the 

offense  of  — ;  and  this  deponent  makes  this  affidavit  that  a 

"warrant  may  issue  for  his  arrest.  A.  B. 

Sworn   to  and    subscribed    before  me,    this  the   • day  of 

,  18-.  . ,  J.  P.]  (a) 

§  4619.  [The  following  form  may  be  used  for  a  warrant,  a  sub-      Form  of 
stantial  compliance  with  which  shall  be  deemed  sufficient : 

Georgia,  1     To  any  Sheriff,  Deputy  Sheriff,  Coroner,  Constable,  or 
County.    J         Marshal  of  said  State— Greeting : 


A.  B.  makes  oath  before  me  that  on  the day  of  — — — , 

n  the  year ,  in  the  County  aforesaid,  C.  D.  did  commit  the 

offense  of  .     You  are  therefore  commanded  to  arrest  the 

body  of  the  said  C.  D.,  and  bring  him  before  me,  or  some  other 
judsfeial  officer  of  this  State,  to  be  dealt  with  as  the  law  directs. 
You  will^  also  levy  on  a  sufficiency  of  the  property  of  said  C.  D. 
to  pay  the  costs  in  the  event  of  his  final  conviction.  Herein  fail 
not.  ,  J.  P.]  (a) 

§  4620.  No  judicial  officer,   except  a  Judge  of   the   Superior 

(a)  Acts  of  1865-6,  p.  235. 


•!/' 


912  PT.  4.— TIT.  1.— DIV.  15.— Penal  Code. 


Article  1. — Proceedino-s  Prior  to  Arrest. 


Special    Court,  shall  issue  a  special  warrant  returnable  only  before  him- 

warrant,  . 

self;  nor  shall  any  Judge  issue  such  warrant  out  of  his  own 
Judicial  Circuit.  In  such  cases  the  warrant,  though  special,  shall 
be  treated  as  a  general  warrant. 

§  4621.  The  arresting  officer  shall  carry  the  prisoner  before  the 
Of  seiec- ixiost  Convenient  and  accessible  judicial  officer  authorized  to  hear 

tion  of  Judge  _  •^  _ 

to  try  the  the  causc,  unloss  the  prisoner  shall  desire  otherwise ;  in  which  case, 
if  there  be  no  suspicion  of  improper  motive,  the  arresting  officer 
shall  carry  him  before  some  other  judicial  officer.  But  in  no  case 
has  a  prisoner  the  right  to  select  the  Justice  before  whom  he  shall 
be  tried, 

§  4622.    The    officer    issuing  a   warrant    upon    any    sufficient 

Officer  may  grounds  of  suspicioD,  may  require  the  applicant  first  to  file  a 

require  bond  °  l  7  ,j  i.  i  j. 

to  prosecute,  bond  with  Sufficient  sureties  to  prosecute  the  suit  in  the  event  of 
a  committal. 

§  4623.  A  warrant  may  be  issued  in  any  County,  though  the 
Backing  crime  was  committed  in  another  ;  and  a  warrant  once  issued  may 

warrants    in  ^  _  •' 

counV^^^^®  executed  in  any  County,  [without  being  backed  or  indorsed  by 
any  judicial  officer  upon  its  being  carried  from  one  County  to  an- 
other.] (a) 

§  4624.  [It  shall  be  lawful  for  any  Sheriff,  Constable,  or  other 

*  Sheriff,  etc.  arresting  officer  of  this  State,  to  arrest  any  person  charged  with 

may      make  ®  .  '  ... 

arrestinany  crime  uudcr  a  Warrant  issued  by  any  judicial  officer  of  the  State, 
in  any  County  of  the  State,  without  regard  to  the  residence  of 
be^^*^ca?r1ed  ^^^^  arresting  officer ;    and  it  is  hereby  made  the  duty  of  such 
wher?*'^^"©!^  arresting   officer  to  carry  said  accused,  with  the  warrant   under 
committed?^  which  he  was   arrested,  to   the   County  in    which  the  offense  is 
alleged  to  have  been  committed,  for  examination  before  any  ju- 
dicial officer  of  said  County.]  (a) 


ARTICLE   II. 

OF  ARREST  AND  ITS  CONSEQUENCES. 


Sbotiok. 

4625.  Arrest— posse  to  assist. 

4626.  Arrest—without  warrant. 

4627.  Arrest — by  private  person. 

4628.  Duty  of  person  arresting. 


.«* 


Skctiox. 

4629.  Of  officer  arresting. 

4630.  Bench  warrant. 

4631.  What  constitues  an  arrest. 

4632.  Breaking  open  doors. 


§  4625.  Every  officer  is  bound  to  execute  the  penal  warrants 
(a)  Acts  of  1865-6,  pp.  88-9. 


PT.  4.— TIT.  1.— DIV.  15.--PENAL  Code.  913 


Article  2. — Of  Arrest  and  its  Consequences. 


placed  in  his  hands,  and  to  that  end  he  may  summon  to  his  assis-     ^"^'^*  '^"^ 
tance,  either  in  writing  or  verbally,  any  of  the  citizens  of  the 
neio-hborhood  or  County.     As  the  posse  of  such  officer,  their  acts 
shall   be    subject  to  the  same  protection    and    consequences   as 
official  acts. 

^4626.  An  arrest  may  be  made  for  a  crime  bv  an  officer,  either  ^"'^.f^.^Y^^ 
under  a  warrant  or  without  a  warrant,  if  the  offense  is  committed  .^  J^      -^  < 
in  his  presence,  or  the  offender  is  endeavoring  to  escape,  or  for    '     /'^  j^ 
other  cause  there  is  likely  to  be  a  failure  of  justice  for  want  of  an  / 

officer  to  issue  a  warrant. 

S  4627.  A  private  person  may  arrest  an  offender,  if  the  offense    cy  private 

....  .  persou. 

is  committed  in  his  presence  or  within  his  immediate  knowledge  ;    ^_     ^/^ 
and  if  the  offense  is   a  felony,  and  the  offender  is  escaping,  or    ^:>^  /H^ 
attempting  to  escape,  a  private  person  may  arrest  him  upon  rea- 
sonable and  probable  grounds  of  suspicion. 

§  4628.  In  every  case  of  an  arrest   without  warrant,  the  per-        Duty  of 

''  person      ar- 

son  arresting  shall,  without  delay,  convey  the  offender  before  the  resting. 

most  convenient  officer  authorized  to  receive  an  affidavit  and  issue      ,       *  Q_ 

a  warrant.     And  no  such  imprisonment  shall  be  legal  beyond  a 

reasonable  time  allowed  for  this  purpose. 

^  4629.  Every  officer  arresting;  under  a  warrant  shall  exercise      Of  officer 

•^  «'  •=•  arresting, 

reasonable  diligence  in  bringing  the  person  arrested  before   the   ^    /^^       .  .r^  . 
person  authorized  to  examine,  commit,  or  receive  bail,  ,'    /  C^*-"'t   -    /   *' 

§4630.  A  bench  warrant  is  one  issued  by  a  Judj^efor  the  arrest   Beach  war- 
of  one  accused  of  a  crime  by  a  Grand  Jury.     Every  officer  is  ^  ,^ 

bound  to  execute  it  within  his  bailiwick,  and  every  person  so  ar-       '  "^^^z^    /(J 
rested  must  be  committed  to  jail  until  bail  is  tendered;  in  which 
case,  any  judicial  officer,  or  the  Sheriff  of  the  County  where  the 
accusation  was  found,  may  receive  the  bail,  and,  to  this  end,  may 
fix  the  amount  of  the  bond  and  approve  the  sureties. 

§4631.  An  actual  touchinsj  with  the  hand  is  not  essential  to    whatcon- 

o  stitntes     an 

constitute  a  valid  arrest.     If  the  defendant  voluntarily  submits  to  ^"'^^*^- 
be  considered  under  arrest,  or  yields  on  condition  of  being  allowed 
his  freedom  of  locomotion  under  the  discretion  of  the  officer,  the 
arrest  is  complete. 

§  4632.  In  order  to  arrest  under  a  warrant  charsrinff  a  crime,      Breaking 

°     °  'open  doors. 

the  officer  may  break  open  the  door  of  any  house  where  the  of- 
fender is  concealed. 
58 


v^ 


914 


PT.  4.— TIT.  1.— DIV.  15.— Penal  Code. 

Article  3. — Courts  of  Inquiry. 


ARTICLE   III. 

OF     COURTS     OF     INQUIRY. 


Section. 

4633.  Who  may  hold. 

4634.  Other  associates. 

4635.  Time  granted  parties. 
4638,  Evidence. 

4637.  Abstract  of  evidence. 

4638.  Witnesses  may  be  recognized. 

4639.  Binding  over  witnesses. 

4640.  Rule  of  decision. 

4641.  Commitment. 


Section. 

4642.  Prisoner  sent  to  adjoining  County. 

4643.  Payment  of  jail  fees. 

4644.  Bail. 

4645.  Waiving  trial. 

4646.  Maybe  committed  for  diff'nt  offense 

4647.  Disposition  of  papers. 

4648.  Bail  surrendering  principal. 

4649.  Bail  allowed— how  often. 

4650.  Informality  no  ground  of  discharge. 


§4633.  Any  Judge  of  the  Superior  or  County  Court,  or  Justice 
ijoid^^^  ™'^^  ^^  ^^^^  Peace,  or  city  or  town  ofScer,  who  may  be  ex  officio  Justice 
of  the  Peace,  may  hold  a  Court  of  Inquiry  to  examine  into  any 
accusation  against  any  person  legally  arrested  and  brought  be- 
fore him.  The  time  and  place  of  such  inquiry  shall  be  deter- 
mined by  him. 

§4634.  The  officer  before  whom  the  accused  is  brought  may  as- 
other  as- sociate  with  him,  in  the  investigation,  one  or  more  Justices;  in 
which  event,  a  majority  shall  decide  all  questions.     If  there  are 
only  two  presiding,  the  original  Justice  shall  determine   all  ques- 
tions where  the  Court  is  not  agreed. 

§  4635.  A  reasonable  time  shall  be  given  to  the  defendant  or 
Timegrant-  prosccutor  for  the  preparation  of  his  case,  and  in  no  event  shall 
^  ^  ^  *  the  defendant  be  forced  to  trial  without  the  aid  of  counsel,  if  there 
be  a  reasonable  probability  of  his  securing  counsel  without  too 
great  delay.  [And  where  the  cause  is  postponed  to  a  future  day 
at  the  instance  of  either  party,  or  by  tlie  Court,  it  shall  not  be 
necessary  to  commit  the  defendant  to  jail  pending  the  hearing; 
but  he  shall  have  the  right  to  give  bail  for  appearance  at  the  hear- 
ing before  said  Court  of  Inquiry ;  provided  the  offense  is  bailable 
under  the  authority  of  said  Court.]  (a) 

§4636.  The  Court  shall  hear  all  legal  evidence  submitted  by 

Evidence,    either  party,  and  shalP  always   permit  the  defendant  to  make  his 

own  statement  of  the  transaction  (not  under  oath),  if  he  desires 

Defendant's  to  do  SO.     The  Weight  to  be  given  to  such  statement  shall  be  en- 

statcment.        ^  ^  *-'  '^  ^ 

tirely  in  the  discretion  and  sound  judgment  of  the  Court.     When- 
ever such  statement  is  made,  it  shall  be  the  duty  of  the  Court  to 


(a)  Acts  of  1865-6,  p.  236. 


PT.  4.— TIT.  1.— Diy.  15.— Pex\al  Code.  915 

Article  3. — Courts  of  Inquiry. 

reduce  it  to  writing,  and  return  it  with  the  other  papers  to  the 
proper  Court,  in  the  event  of  a  commitment. 

§4637.  If  the  charge  be  of  a  felony,  the  Court  shall  cause  an     .}^^'^-  of 

'^  ■  .  evidence. 

«ibstract  of  all  the  evidence  to  be  made  and  returned  as  above. 

§4638.  In  the  event  of  a  commitment,  the  Court,  in  its  discre-       Binding 

over       -wit- 

tion,  may  require  the  witnesses  in  behalf  of  the  State  or  others  to  nesses. 
give  suitable  bonds  for  their  appearance  at  Court,  with  or  without 
sureties,  as  the  circumstances  seem  to  demand. 

S  4639.  A  Court  of  Inquiry  shall  have  power  to  compel  the  at-  attendance 

'^  a        ./  r  c  oiwitnesses. 

tendance  of  all  witnesses  resident  within  the  County,  after  notice 
of  twenty-four  hours,  and  to  this  end  may  order  their  arrest. 

§4640.  The  duty  of  the  Court  of  Inquiry  is  simply  to  deter-    Euieof de- 
mine  whether  there  is  sufficient  reason  to  suspect  the  guilt  of  the  ^^°"' 
accused,  to  require  him  to  appear  and  answer  before  the  Court  /    f^-  ^- 
competent  to  try  him,  and,  whenever  such  probable  cause  exists,  ^      f  n,  / 

it  is  the  duty  of  the  Court  to  commit. 

§  4641.  The  following  form,  or  one  in  substance  the  same,  shall    Commit- 
be  deemed  a  sufficient  commitment : 

GrEOEGIA, 

— County. 


A.  B.  havincr  been  arrested  on  a  warrant  for  the  offense  of 


o 


and  brought  before  me,  after  hearing  evidence,  it  is  ordered 

that  he  be  committed  for  trial  for  the  offense  of .     And  the 

Jailor  of  said  County  (or  any  other  County,  if  necessary)  is  re- 
quired to  receive  and  safely  keep  him  until  discharged  by   due 

process   of  law.     AVitness   my  hand  and  seal,  this day  of 

,  18—.  ,  J.  P.  [seal.] 

§4642.  [When  there  is  no  secure  lail  in  any  County  in  this        County 

■-  .  .  sending  pris- 

State,  any  person  committing  an  offense  in  said  County,  shall  be  ?»erj;o  jaii 

'»'•'•  o  •^  -^  in  adjoining 

sent  to  jail  in  the  nearest  County  having  a  secure  jail ;  the  Coun-  ^i^f^^fJl^' 
ty  where  the  offense  is  committed  shall  be  primarily  liable  for  jail 
fees  and  costs,  and  the  County  so  primarily  liable  shall  pay  said 
jail  fees  and  costs  monthly  in  advance,  and  for  the  purpose  of 
raising  funds  to  pay  the  same,  the  Inferior  Court  may^  levy  and 
collect  an  additional  tax.]  (a) 

§4643.  [No  Jailor  shall  be  bound  to  receive  a  prisoner  from  "^^^^no^: 
another  County,  until  the  jail  fees  and  costs  are  provided  for  as  e^— when*'^" 
set  forth  in  the  preceding  Section.]  (a) 

(a)  Acts  of  1865-6,  p.  40. 


916  PT.  4.— TIT.  1.— DIV.  15.— Pexal  Code. 


Ai'ticle  3. — Courts  of  Inquiry. 


trial, 


§4644.  If  bail  is  tendered  and  accepted,  no  regular  commit- 
Bail.  ment  need  be  entered,  but  a  simple  memorandum  of  the  fact  of 
bail  being  taken.  A  reasonable  opportunity  shall  be  allowed  the 
accused  to  give  bail,  and  even  after  commitment  and  imprisonment, 
the  committing  Court  may  order  the  prisoner  brought  before  him 
or  them,  to  receive  bail. 

§  4645.   If  the  party  waives  a  hearing  and  tenders  bail,  a  mem- 

Waivins    oraudum  of  these  facts  shall  be  entered  on  the  warrant ;   and  this 

may  be  done  by  the  party  charged  before  arrest,  and  when  donci, 

shall  operate  as  a  supersefleas. 

Committing      §4646.  A  Court  of  Inquiry  may  commit  for  a  different  offense 

offense.^'^^"  than  that  stated  in  the  warrant,  if  the  evidence  requires  it. 

§4647.  The  commitment  shall  be  delivered  to  the  officer  in 
Disposition  whoso  charge  the  prisoner  is  placed,  to  be  delivered  with  the  pris- 
P'^P^^  *  oner  to  the  Jailor,  and  a  memorandum  of  the  fact  entered  on  the 
warrant.  The  warrant  and  all  the  other  papers  shall  be  for- 
warded to  the  Clerk  of  the  Superior  Court,  or  other  Court  having 
jurfsdiction  of  the  crime,  to  be  delivered  to  the  Solicitor  or  At- 
torney General. 

§4648.  Bail  may  surrender  their  principal  in  vacation  to  the 
Baiisurren-  Sheriff,  or  in  open  Court,  in  discharge  of  themselves  from  liability 
ci^""''  ^^^^  and  such  privilege  shall  continue  to  the  day  of  the  term,  without 
liability  for  costs  for  a  forfeiture  of  the  bond.  After  forfeiture^ 
and  before  final  judgment,  the  bail  may,  at  any  time,  surrender 
their  principal,  upon  payment  of  all  costs  accruing  up  to  that  time. 
The  death  of  the  principal  at  any  time  before  final  judgment,  shall 
be  equivalent  to  a  surrender. 

§4649.  No  person  shall  give  bail  but  once  before  indictment 

Bail  but    found,   nor  more  than  twice   afterwards,   before  trial.      Capital 

offenses  are  bailable  only  before  a  Judge  of  the  Superior  or  County 

1^  Court,  and  is,  in  every  dase,  a  matter  of  sound  discretion.     All 

other  cases  are  bailable  by  the  committing  Court.     Excessive  bail 

shall  never  be  demanded. 

§  4650.  No  prisoner  shall  be  discharged  on  a  writ  of  habeas- 
Informality  covpus  bcc^usc  of  informality  in  the  commitment,  or  of  the  pro- 
disdiarg". "  cecdiugs  prior  thereto,  provided  the  foregoing  provisions  of  this- 
Division  have  been  substantially  complied  with. 


once. 


PT.  4.— TIT.  1.— DIV.  15.— Penal  Code. 


917 


Article  4. — Warrants  for  Good  Behavior,  ancl  to  Keep  the  Peace. 


ARTICLE    IV. 


OF   WARRANTS   FOR   GOOD   BEHAVIOR,  AND    TO   KEEP    THE   PEACE. 


Section. 

4651.  Bond  for  good  behavior. 

4652.  Suit  for  breach. 

4G53.  Extended  from  term  to  te»m. 
4654.  Bond  to  keep  the  peace. 


Section. 

4655.  Breach  of  the  bond. 

4656.  When  revoked. 

4657.  Extending  the  bond. 

4658.  Wife  may  require  it. 


§4651.  Any  of  the  ludicial  officers  before  named  may,  upon      Bomifor 

,         .     r-  .p,  ,  ,  ,.  .  .  p:ood     beha- 

the  miormation  ot  others  under  oath,  or  on  his  own  motion,  issue  vior. 
his  warrant  against  any  person  in  the  County,  whose  conduct  is 
such  as  to  justify  the  belief  that  the  safety  of  any  one  or  more 
of  the  citizens  of  the  County,  or  the  peace  or  the  property  of  the 
same  is  in  danger  of  being  injured  or  disturbed  thereby  ;  and  upon  . 
the  return  of  such  warrant,  the  Court,  in  its  discretion,  may  re- 
quire from  such  person  a  bond  with  sureties  for  his  good  behavior, 
until  the  next  term  of  the  Superior  Court  of  the  County. 

§4^52.  For  a  violation  of  such  bond,  suit  may  be  brought  at     suit  for 
the  instance  of  any  citizen  of  the  County,  and  one-half  the  re- 
covery shall  be  paid  to  the  informer,  and  the  other  half  be  added 
to  the  Educational  Fund  of  the  County. 

§4653*.  Such  bond  for  good  behavior  may  be  extended  from     Extended 

■t  1       en  '         /n  •      '        T  •  1  •         from  term  to 

term  to  term,  by  the  feuperior  Court  m  its  discretion  ;  the  sureties,  term, 
like  other  bail,  having  the  privilege  of  surrendering  their  princi- 
pal.    If  not  extended,  it  expires  with  the  session  of  such  Court. 

§4654.  Upon  the  information  of  any  person  under  oath,  that  Bond  to 
he  is  in  fear  of  bodily  harm  to  himself  or  his  family,  from  another,  p'^^'^'^^- 
or  of  violent  injury  to  his  property,  any  of  the  judicial  officers 
before  named,  may  issue  his  warrant  against  such  other  per- 
son, requiring  his  arrest ;  and  if,  upon  the  return  thereof,  the 
Court  is  satisfied,  upon  hearing  the  evidence  of  both  parties,  that 
probable  cause  for  such  fear  exists,  he  may  require  the  accused  to 
give  bond,  with  good  security,  to  keep  the  peace,  as  against  the 
person,  family,  and  property  of  the  affiant;  and,  on  failure  to  give 
the  bond,  shall  commit  him  to  jail. 

§  4655.  Actual  violence,  or  a  menace  of  violence,  or  any  othei? 
act  intended  and  calculated  to  excite  alarm,  or  to  provoke  a  breach 
of  the  peace,  shall  be  a  violation  of  such  bond ;  and  for  every 
such  a>ct,  the  party  at  whose  instance  it  shall  be  required  shall 
have  a  right  of  action. 


Breach  of 
the  bond. 


918  PT.  4.— TIT.  1.— DIV.  15.— Penal  Code. 

Article  5. — Search  Warrants. 

§  4656.  If  the  party  requiring  the  bond,  by  his  own  conduct, 
Whenpro-  provokcs  a  violation  by  the  other,  no  recovery  shall  be  had. 

§  4657.  The  Superior  Court  may,  at  any  time,  discharge  the 
Extending  bond,  unlcss  there  be  a  motion  to   extend  it,  accompanied  by  evi- 

the  bond.  -n-iz-i  pi  '  n  i  •      " 

dence  to  satisfy  the  Court  of  the  necessity  of  such  extension. 
§  4658.  A  wife  may  require  a  bond  to  keep  the  peace,  or  for 

Wife  may  .  .     "  j.  x  ^ 

require  it.     good  bchavior,  agaiust  her  husband.*     <• 


AKTICLE   V. 

OF     SEARCH     WARRANTS. 


Sectiox. 

4659.  When  issued. 

4660.  How  executed. 

4661.  Goods,  if  found. 


Section, 

4662.  Forcible  taking  of  goods. 

4663.  Binding  over  offender. 


§  4659.  A  warrant  to  search  the  person  or  property  of  another 
Whenissued  must  issuc  Only  upon  probable -cause,  supported  by  oath,  and  par- 
ticularly describing  the  place  to  be  ^searched,  and  the  person  or 
thing  to  be  seized. 

§  4660.  The  officer  executing  such  a  warrant  may  break  the 
How  exe-  door  of  the  house  or  room  specified  in  the  warrant.     The  warrant 

cuted.  ..... 

is  his  justification.  If  it  was  taken  without  probable  cause,  the 
breaking  and  search  is  a  trespass  on  the  part  of  the  applicant 
therefor. 

§  4661.  If  the  goods  are  found,  the  officer  shall  seize  and  bring 
Goods  if  th3m  before  the  Court,  who  may  hear  evidence  as  to  ownership 
and  possession,  and  grant  possession  to  the  owner  from  whom  the 
same  have  been  feloniously  taken. 

§  4662.  The  forcible  taking  of  goods,  if  not  done  with  criminal 

Forcible  tak-  •:,,',  -i     ^  ^  n  i  , 

ing  of  goods,  mtcut,  IS  not  probable  cause  lor  a  search  warrant. 

§  4663.  Upon  the  hearing,  the  Court  may  require  the  person  in 
Binding  wliosc  posscssion  the  goods  are  found  to  give  bond  for  his  appear- 
er.  ance,  to   answer  either   charge  for  larceny,  or  receiving  stolen 

goods,  as  the  facts  may  be. 

*  See  Section  3798. 


\ 


PT.  4.— TIT.  1.— DIV.  15.— Penal  Code. 


919 


Ariicle  6. — Proceedings  in  Cases  of  Bastardy. 


ARTICLE    VI. 


OP    PROCEEDINGS    IN     CASES     OF     BASTARDY. 


Sectiok. 

4664.  Proceedings  against  parents. 

4665.  Commitment  of  mother. 


Section. 

4666.  Suit  on  bond. 

4667.  Deposit  of  bond. 


'?      / 


It 


I 


§  4664.  Any  Justice  of  the  Peace,  in  any  County  within  this  Proceedings 

''     ^  .  .  .  against     the 

State,  who  of  his  own  knowledge,  or  on  information  to  him  on  mother. 
oath,  made  of  any  free  white  woman  having  a  bastard  child,  or*^.^ 
being  pregnant  w^itli  one,  which  it  is  probable  will  become  charge-  / 
able  to  the  County,  he  may  thereupon  cause  a  warrant,  under  his"*^^  () 
hand  and  seal,  directed  to  the  Sheriff  or  any  Constable  of  said 
County  where  the  case  may  arise,  and  oblige  the  offender  to  be 
brought  before  him,  to  give  security  to  the  Inferior  Court  of  the 
County,  in  the  sum  of  seven  hundred  and  fifty  dollars,  for  the 
support  and  education  of  such  child  till  the  age  of  fourteen  years, 
or  to  discover  on  oath  the  father  of  such  bastard  child ;  which 
beinsr  done,  the  said  Justice  shall  issue  his  warrant,  in  like  man- ^^f^^i^st  the 

^  ,  ,  ,  father. 

ner,  to  bring  before  him  the  person  sworn  to  be  the  father  of  such   ,  t-  U  ^  i^m 

child  so  born,  or  to  be  born,  who,  on  refusing  to  give  security  for  ^**'  a   "^^  ^ 

the  maintenance  and  education  of  such  child  until  it  arrives  at  the  ^'  *''.**     ''-   -■  '  • 

age  of  fourteen  years,  and  also  the  expense  of  l\'ing-in  with  such  "  ' 

child  or  children,  boarding,  nursing,  and  maintenance,  while  the 

mother  of  such  child  is  confined  by  reason  thereof;  that  then  it. 

may  and  shall  be  lawful  for  the  said  Justice  to  bind  over  su, 

delinquent  in  a  sufficient  recognizance  to  be  and  appear  before  the 

next  Superior  or  County  Court  which  may  be  held  in  said  County;    '^ 

and  it  shall  be  the.  duty  of  the  Attorney  or  Solicitor  General  to 

prefer  a  bill  of  indictment,  to  be  laid  before  the  Grand  Jury,  to 

answer  to  such  complaint  as  may  be  then  and  there  alleged  against 

him  touching  the  premises. 

§4665.  In  case  the  woman,  who  shall  have  been  delivered,  or     women  to 
is  likely  to  be  delivered,  when  brought  before  a  Justice,  refuses  to  ted  who°fai'i 
discover  on  oath  the  father  of  such  child  so  born,  or  to  be  born,  with  tails  act. 
or  give  such  security  to  appear  before  the  next  Superior  or  County 
Court  to  be  held  in  and  for  the  said  County,  and  to  give  such  se- 
curity as  may  be  then  and  there  required  of  her  by  the  said  Court, 
for  the  maintenance  and  education,  as  aforesaid,  of  the  said  child, 
that  then  it  shall  be  lawful  for  the  Justice  to  commit  her,  in  man- 


'•■i\. 


t.f  ''"^  at- 


■^     *^'    2m, 


VI 


920  PT.  4.— TIT.  1.— DIY.  15.— Penal  Code. 


Article  6. — Proceedings  in  Cases  of  Bastardy. 


ner  and  form  aforesaid,  as  pointed  out  by  this  act ;  and  in  case  of 
her  refusing  to  make  known  to  the  said  Court  the  father  of  such 
child,  or  give  security  as  aforesaid,  that  then  it  may  and  shall  be 
lawful  for  the  said  Court  to  imprison  her  not  exceeding  three 
But  they  months  I    pj^ovidcd,  nevertheless,    that    nothinoj    herein    contained 

may  offer  ex-  ^     j.  '  o 

culpatory  shall  bc   SO  construed   as   to  bar   either  party,  when  charged  as 

evidence.  i         j  7  o 

aforesaid,  from  offering  [an  exculpatory  affidavit  or  testimony — 
either  or  both]  (a)  to  the  Magistrate  in  the  first  instance  of  the 
charge  exhibited,  who  may  exercise  his  discretionary  power,  after 
due  inquiry  being  had,  either  to  discharge  or  recognize  both  or 
either  of  the  parties  charged  as  aforesaid,  in  conformity  to  the  in- 
tent and  meaning  of  this  act,  any  thing  to  the  contrary  notwith- 
standing. 

§  4666.  It  shall  be  the  duty  of  the  Inferior  Courts  in  the  several 
Bonds  for  Countics  of  this  State,  when  any  child  has  or  shall  become  charge- 

themainten-  i/-n  t  ti-i  ^  •        i      r 

a.ice  of  has-  able  to  the  County  where  a   bond  is  taken,  as   above  recited,  tor 

tard      child-  .  ^  .  .  . 

i-en.  the   maintenance  of  a   bastard  child,  to   institute  an  action  on  all 

bonds  so  taken ;  and  it  shall  be  lawful  for  them  to  recover  the  full 
amount  of  said  bond  or  bonds,  which  judgment  or  judgments 
shall  remain  open,  and  be  subject  to  be  appropriated  by  the  Courts 
aforesaid,  from  time  to  time,  as  the  situation  and  exigencies  of  the 
said  bastard  child  may  require. 

§  4667.  It  shall  be   the  duty  of  the   Justice  or  Justices  of  the 


How  and  Pcacc,  bcforc  whom  the  bond  shall  be  taken,  to  return  such  bond 
are  to  be  re-  to  the  Clcrk  of  the   Inferior  Court  of  the  County  in  which  such 
female  shall  reside,  within  thirty  days  after  the  same  is  taken. 


(a)  Acts  of  1866,  p.l52. 


PT.  4.— TIT.  2.— Penitentiary. 


921 


Chapter  1. — The  Penitentiary. 


TITLE    11. 

OF     THE      PENITENTIARY 


CHAPTER   I. 


THE       PENITENTIARY. 


Skction. 

Section. 

46G8. 

Officers  appointed  by  Grovernor. 

4692. 

Morals. 

4G69. 

Officers  appointed  by  Prin'l  Keeper. 

4693. 

By-Laws. 

4670. 

Salaries, 

4694. 

Accounts  of  the  State. 

4G71. 

Prisoners'  clothes. 

4695. 

Conveyance  of  convicts. 

4672. 

Description  of  prisoners. 

4696. 

General  supervision  of  P 

4673. 

Search  of  convicts. 

4697. 

Confinement  on  Sabbath. 

4674. 

Law  to  be  read  to  convicts. 

4698. 

Book-keeper— duties. 

4675. 

Clothing  of  convicts. 

4699. 

Drafts  and  salaries. 

4676. 

Clothing  on  discharge. 

4700. 

Contingencies. 

4677. 

Labor  of  convicts. 

4701. 

Suits — by  whom  brought. 

4678. 

Hours  of  labor. 

4702. 

Assistant  Keeper. 

4679. 

Garden  cultivated. 

4703. 

Bonds. 

4680. 

Cleanliness  observed. 

4704. 

Oath. 

4681. 

Hospital. 

4705. 

Marked  price  of  goods. 

4682. 

Punishment  by  officers. 

4706. 

Successor,?. 

4683. 

Letters  to  be  examined. 

4707. 

Officers  exempt. 

4684. 

Visitors — permission  to. 

4708. 

Loaning  materials,  etc. 

4685. 

Spirituous  liquors. 

4709. 

Commissioners. 

4686. 

Lights. 

4710. 

Amount  of  materials. 

4687. 

Cells. 

4711. 

Physician. 

4688. 

Inspector's  jluty. 

4712. 

Chaplain. 

4689. 

United  States  convicts. 

4713. 

Bible,  etc. 

4690, 

Bosses. 

4714. 

Costs  on  escapes. 

4691. 

Duty  of  Principal  Keeper. 

4715. 

Legislative  Committee. 

Keeper. 


§4668.  The  officers  for  the  management  of  the  Penitentiary 
shall  be  one  Inspector,  one  Principal  Keeper,  a  Book-keeper,  a 
Physician,  and  a  Chaplain,  all  of  whom  shall  be  appointed  for 
one  year  by  the  Governor,  who  may  remove  at  his  pleasure  and 
fill  the  vacancies. 

§4669.  There  shall  be  one  Assistant  Keeper,  and  as  many 
overseers,  not  exceeding  four,  as  the  Principal  Keeper  may  deem 
necessary,  all  of  whom  shall  be  appointed  by  the  Principal 
Keep-er  for  one  year,  but  removable  at  his  pleasure,  and  the  va- 
cancies filled  by  him. 

§4670.  For  the  salaries  to  be  paid  to  the  several  officers  of  the 
Penitentiary,  see  Section  1636. 

§4671.  The  Principal  Keeper  shall  cause  the  clothes  of  each 
prisoner,  when  received,  to  be  cleansed  and  carefully  kept,  to  be 
returned  to  him  on  his  discharge ;  or  at  the  request  of  the  pris- 
oner, he  may  sell  them  and  deposit  the  proceeds  with  the  Clerk, 


Officers  ap- 
pointed by 
the     Gover- 


Officers  ap- 
pointed by 
the  Principal 
Keeper. 


Salsfries. 


Prisoners' 

clothes. 


J 


922  PT.  4.— TIT.  2.— Penitentiary. 

Chapter  1. — The  Penitentiary. 

to  be  paid  to  the  prisoner  on  his  discharge,  or,  in  case  of  his  death 
before  that  time,  to  his  legal  representatives. 

§  4672.  The  Principal  Keeper,  on  the  reception  of  each  convict. 
Description  shall  enter,  in  a  book  kept  for  that  purpose,  an  accurate  descrip- 

of  prisoners.  '  ^  x        x  >-  xr 

tion  of  such  convict,  giving  his  name,  age,  height,  color  of  eyes 

and  hair,  complexion,  place  of  nativity,  time  of  conviction.  County 

where  convicted,  nature  of  crime,  and  period  of  confinement. 

§  4673.  He  shall  also  cause  such  convict  to  be  searched  and  de- 

search  of  privcd  of  any  article  by  which  an  escape  might  be  effected,  and 

conyicts.         ^  .  '^  .1*.  .  .. 

also  of  all  moneys  in  his  possession,  to  be  returned  on  his  dis- 
charge, or  to  his  legal  representatives  in  case  of  his  death. 

§  4674.  He  shall   also  read  to  such  convict  such  parts  of  the 
Laws  read  laws  of  this  State  as  impose  penalties  for  escape,  and  the  rules 

to  convicts.  ^  ^    •*•  ■*■ 

relating  to  the  conduct  of  prisoners. 

§  4675.  The  following  clothing  shall  be  annually  furnished  to 
Clothing  to  prisoners — viz:   One  iacke.t,  one  vest,  and  one  pair  of  trowsers  of 

befaraislied.  ■•■  . 

kerseys,  two  pair  of  shoes,  two  pair  of  coarse  yarn  socks,  four 
shirts,  and  two  pair  of  trowsers  of  cotton  cloth,  with  one  jacket 
of  the  same  ;  the  material  of  the  jackets  and  trowsers  to  be  parti- 
colored. An  additional  suit  of  clothes  shall  be  given  to  convicts 
laboring  as  blacksmiths ;  also,  to  each  convict  a  cheap  mattress, 
and  as  many  blankets  as  are  necessary. 

§  4676.  When  discharged,  each  prisoner  shall  receive  a  suit  of 
Clothing  on  clotlics  uot  excoedins^  ten  dollars  in  value,  and  money  not  exceed- 

aiscuarge.  °  . 

ing  the  same  amount ;  the  Principal  Keeper  to  discriminate  in  both 
according  to  the  conduct  of  the  prisoner  during  his  confinement. 

§  4677.  Except  on  Sunday  and  when  confined  in  their  cells,  the 
Labor,  prisouers  shall  be  kept  at  hard  labor  as  far  as  may  be  consistent 
with  their  age,  health,  and  ability,  and  they  shall  be  so  arranged 
Supervision  ^^  labor  as  to  be  under  the  constant  supervision  of  the  Assistant, 
or  one  of  the  overseers,  as  far  as  practicable;  and  no  intercourse 
between  convicts  shall  be  allowed,  except  such  as  is  necessary  for 
the  work  on  which  tbey  are  engnged. 

§4678.  The  hours  of  labor  shall  be  regulated  by  the  length  of 

Hours  of      ^  .  ,  n  .  r»  1 

labor.  the  day,  allowing  not  more  than  forty  minutes  for  meals. 

§4679.  A  garden  shall   be   attached   to   the   penitentiary   and 
Garden,     worked  by  the  convicts,  the  vegetables  to  be  for  their  use. 

§  4680.  The  walls  of  the  cells  and  other  apartments  of  the  prison 

Cleanliness,  buildiugs  sliall  be  washed  with  lime  at  least  once  a  year;  the  floors 

shall  be  kept  neat  and  clean,  and  the  building  fumigated  and  purified 

with  chloride  of  lime  as  often  as  the  Physician  shall  deem  necessary. 


PT.  4.— TIT.  2.— Penitentiary. 


923 


Chapter  1. — The  Penitentiary. 


§  4681.  A  hospital  shall  be  provided  for  the  sick,  and  a  convict 
seriously  ill  at  the  expiration  of  his  term,  shall  have  the  privilege 
of  remaining  until  his  recovery. 

§  4682.  For  violation  of  rales  or  by-laws,  the  prisoner  shall  be 
punished  at  the  discretion  of  the  Principal  Keeper,  the  concurring 
assent  of  the  Inspector  being  necessary  for  the  infliction  of  cor- 
poral punishment. 

§  4683.  All  letters  or  other  things  to  or  from  the  convicts  shall 
pass  through  the  hands  of  the  Principal  Keeper,  and  may  be  in- 
spected and  withheld  by  him  in  his  discretion. 

§4684.  Visitors  must  have  the  permission  of  the  Principal 
Keeper,  and  must  be  attended  while  in  the  penitentiary  by  a 
keeper  or  guard.  A  wife  of  a  convict  may  be  allowed  to  visit  him 
under  such  rules  as  the  Principal  Keeper  may  adopt. 

§  4685.  Spirituous  liquors  shall  be  allowed  to  a  convict  only  by 
prescription  of  the  Physician. 

§  4686.  No  light  shall  be  allowed  in  cells  after  they  are  locked 
for  the  night. 

§  4687.  Prisoners  shall  be  kept  in  separate  cells,  and  prisoners 
of  different  sexes  shall  at  all  times  be  kept  separate  and  apart. 
The  cells  shall  'be  numbered  and  divided  into  wards,  over  each  of 
which  shall  be  an  overseer.  The  overseer  shall  search  the  cell  and 
prisoner  every  night  to  prevent  escape. 

§  4688.  The  Inspector  shall  purchase  all  materials  which  shall 
be  needed  by  the  Principal  Keeper  for  the  use  of  the  Penitentiary, 
and  when  delivered,  shall  take  his  receipt  for  the  same.  At  stated 
times  he  shall  advertise  in  two  of  the  gazettes  at  the  capital  for 
sealed  proposals  to  furnish  wood,  stock,  and  coal.  He  shall  pur- 
chase provisions  and  stores  for  the  prisoners  and  guard,  when  re- 
quired in  writing  by  the  Principal  Keeper,  and  at  no  other  time. 
With  the  assistance  of  the  Principal  Keeper,  he  shall  price  all 
articles  made  in  the  Penitentiary.  He  shall  make  an  annual 
return  to  the  Governor  on  the  first  day  of  October  of  each  year, 
showing  all  of  his  acts  connected  with  his  office. 

§  4689.  The  Inspector  shall  have  power  to  regulate  the  terms  on 
which  convicts  sentenced  by  the  Courts  of  the  United  States  for 
the  Circuit  and  District  of  Georgia  shall  be  admitted  in  the  Peni- 
tentiary. 

§  4690.  The  Inspector  may  employ  suitable  persons  to  give 
necessary  instructions  in  such  branches  of  work  as  require  such 
skill  and  knowledge  as  no  convict  possesses. 


Hospital. 


Punishment 
by  officers. 


Letters,  etc. 


Visitors. 


Spirituous 
liquors. 


Liffhts. 


Cells. 


Inspector's 
duty. 


IT.  S.  con- 
victs. 


Bosses. 


924  PT.  4.— TIT.  2.— Penitentiary. 

Chapter  1. — The  Penitentiary. 


§  4691.  The  Principal  Keeper  shall  deliver  all  manufactured 
Principal  articlcs   to   thc  Book-keeper,  taking   duplicate   receipts   therefor, 

Keeper's  _^  .  oi  i  ^ 

<iLity.  specifying  the  prices  assessed  by  the  Inspector.     He  shall  also 

make  an  annual  return  to  the  Governor  on  the  first  day  of  Octo- 
ber, showing  the  amounts  of  materials,  etc.,  received,  and  of  manu- 
factured articles  delivered  to  the  Book-keeper,  and  also  the  amount 
of  materials  and  unfinished  work  on  hand. 

§  4692.  He  shall  carefully  note  the  moral  conduct  of  the  pris- 
Morais.     oncrs,  and  furnish  them  with  such  moral  and  religious  books  as  he 
thinks  proper. 

§  4693.  Together  w^ith  the  Inspector,  the  Principal  Keeper  may 
By-uws.    make  all  necessary  by-laws    and  regulations  for   the   successful 
working  and  government  of  the  institution. 

§  4694.   The  order  of  the  Governor  shall  be  sufficient  voucher 
Accour.is  for  any  article,  work,  or  labor  needed  by  the  State,  and  the  Book- 

of  the  state.  ^      ^^     ^  n      i 

keeper  shall  keep  a  regular  account  of  the  same. 

§  4695.   The  Principal  Keeper  shall  make  all  necessary  arrange- 
Convoyance  mcuts  for  the  couvcyance  of  convicts  to  the  Penitentiary,  and  may 
draw  on  the  Book-keeper  for  the  funds  necessary  to  defray  all  such 
expenses. 

§  4696.  The  Principal  Keeper  shall  have  a  general  superintend- 

Generaisu- ina;;    powcr    ovcr    the    institution,   and    shall    be    responsible  for 

Principal  the  conduct  of  all  officers  under  his  command.     He  may  enlist  his 

Keeper.  ^  _  " 

own  guard,  not  exceeding  three  officers,  with  as  many  men  as 
necessary,  and  at  such  wages  as  may  be  agreed  on,  and  may  dis- 
miss them  again  at  his  pleasure. 

§  4697.  The  Principal  Keeper  may  exercise  his  discretion  as  to 
on  sabbuu^  the  time  the  convicts  shall  be  confined  on  the  Sabbath  day. 

§4698.  The  Book-keeper  shall  sell  all  manufactured  articles  at 
E''6.k-keep-  the  prices  assessed  as  aforesaid,  and  collect  all  debts  due  to  the 
institution,  and  shall  make   a  quarterly  return  to  the  Governor, 
showing  the  exact  condition  of  his  department. 

§  4699.  The  debts  contracted  by  the  Inspector,  as   aforesaid, 
Drafts,     shall  be  paid  upon  the  drafts  of  the  Principal  Keeper  or  the  Book- 
keeper.    The  salaries  of  the  several  officers,  overseers,  and  guard 
shalt  fee  pwiid  quarterly  by  the  Book-keeper,  in  accordance  with  the 
pay-roil  made  out  and  certified  by  the  Principal  Keeper. 

§  4700.   The  Book-keeper  shall  also  pay  incidental  and  contin- 
Contingcn-  gcut  expcnscs  of  the  institution  upon  the  presentation  of  the  ac 
counts  audited  and  certified  by  the  Principal  Keeper. 

§  4701.  The  Book-keeper  is  authorized  to  commence  suit  in  his 


cies, 


PT.  4.— TIT.  2.— Penitentiary.         -  925 

Chapter  1. — The  Penitentiary. 


own  name,  officiallj,  for  any  debt  or  cause  of  action  accruing  to      Suits, 
the  Penitentiary. 

5  4702.  The  Assistant  Keeper  and   overseers  shall  alternately  _  Assistant 

o  L  »'    Keeper    aud 

remain  within  the  Penitentiary  during  the  night,  to  superintend-c>versoer. 
the  guard  in  such  manner  as  the  Principal  Keeper  shall  direct. 
During  the  day  they  shall  remain  in  their  respective  departments, 
superintend  the  labor  of  the  convicts,  and  discharge  all  such  du- 
ties required  of  them  by  the  Principal  Keeper  as  shall  tend  to  the 
safe-keeping  of  the  prisoners,  the  preservation  of  the  buildings 
and  other  property  of  the  institution,  and  the  successful  operation 
of  the  same. 

§  4703.  The  Inspector,   Principal  and  Assistant  Keeper,   and     Bonds. 
Book-keeper,  before  they  enter  upon  the  discharge  of  their  respect- 
ive duties,  shall  give  bond  and  good  security  to  the  Governor  and 
his  successors,  in  such  sums  as  may  be  designated  by  him,  for  the  ^• 

faithful  performance  of  their  respective  duties. 

§  4704.  The  said  officers  shall  also  take  and  subscribe  the  foi-     oatb.  'I 

lowing  oath  :    "I, ,  do  solemnly  swear  that  I  will  diligently  i 

execute  all  the  duties  lawfully  required  of  me,  as  an  officer  of  the  ' 

penitentiary,  and  will  carry  into  execution  the  laws  and  regula- 
tions for  the  government  of  the  same,  to  the  best  of  my  knowl-  i 
edge  and  ability  ;  and  I  will,  on  no  occasion,  ill-treat  or  abuse  any                                   |> 
prisoner  under  my  care,  beyond  the  punishment  accorded  by  law^,                                   " 
or  the  rules  and  regulations  of  the  Penitentiary.     So  help  me  God." 

§  4705.  The  Principal  Keeper  and  Inspector  may  at  any  time     Eefincins 
reduce  the  marked  price  of  any  article  offered  for  sale,  if  satisfied  prices. 
from  any  cause  the  mark  is  above  its  market  value,  and  notify  the 
Book-keeper  of  such  change. 

§  4706.  The  Principal  Keeper  and  Book-keeper  shall  deliver  to  successors. 
their  successors  all  the  property  of  the  institution  of  every  kind 
in  their  charge,  taking  receipts  therefor. 

§  4707.  The  officers  of  the  Penitentiary  shall  be  exempt  from   Exemi-tion 
militia  duty  in  time  of  peace,  and  from  jury,  patrol,  road,  and  ^  ^ 
corporation  duty,  at  all  times. 

§4708.  No  officer  of  the  Penitentiary  shall  sell  or  loan  any  of   Loanin^or 
the  tools,  materials,  or  products  of  the  garden.     The  Principal  teriS 
Keeper  may  sell  old  and  useless  materials,  accounting  for  the  same 
to  the  Book-keeper. 

§  4709.  The  Governor  shall  appoint  three  commissioners  annu-    Annual ap- 
ally,  who  shall  take  an  inventory  of  the  stock  of  the  Penitentiary, 
with  an  appraisement  of  its  present  value. 


^1 


926  PT.  4.— TIT.  2.— Penitentiary. 

Chapter  1. — The  Penitentiary. 


§  4710.  The  Assistant  Keeper  shall  keep  a  set  of  books  on  the 
Amonntof  sygtem  of  doiible  entry,  in  which  shall  be  kept  a  full  and  correct 

raw   materi-     *'  ''  '  '■ 

ais.  account  of  all  purchases   made,  a  proper   record  of  all  the  raw 

material  consumed  in  the  various  workshops,  as  well  as  of  all  the 
manufactured  articles,  cash,  and  job  work  turned  over  to  the  Book- 
keeper for  sale.  He  shall  also  take  charge  of  the  storehouse  con- 
taining the  materials,  and  issue  the  same  to  the  different  overseers 
of  the  workshops,  charging  every  item  used  to  the  appropriate  shop. 
§  4711.  The  Physician  to  the  Penitentiary,  appointed  by  the 
Physicians.  Govcrnor,  sliall  visit  all  the  sick  of  the  prisoners  and  guard  at 
least  once  every  day,  and  before  10  o'clock,  A.  m.,  and  oftener  if 
necessary  or  desired  by  the  Principal  Keeper.  He  shall  also,  at 
least  once  every  week,  inspect  the  institution  generally  in  what- 
ever may  affect  its  healthfulness. 

§4712.  The  Chaplain  appointed  by  the  Governor  shall  preach 

diapiains.  to  the  convicts  at  least  once  every  Sabbath  day,  and  give  them 

such  other  religious  instruction  as  their  condition  may  require. 

§4713.  The  Governor  shall  cause  to  be  furnished  to  each  con- 

Bibie,  etc.   yict  a  Bible  and  hymn-book,  to  remain  in  his  cell,  and,  upon  his 

discharge,  he  shall  be  permitted  to  carry  the  sam-e  away  with  him. 

§  4714.  The  expenses  of  all  trials  for  escapes  from  the  Peniten- 

esca^pes.  ^^   tiary,  or  attempts  to  escape,  shall  be  paid  by  the  State. 

§4715.  A  joint  committee  of  both  branches  of  the  Legislature 
Legislative  shall  be  appointed  at  each  session,  to  investigate  closely  into  the 

committee.  .  .  ' 

affairs  of  the  Penitentiary,  and  report  thereon ;  and  all  the  officers 
of  the  said  institution  shall  furnish  said  committee  all  the  assist- 
ance and  information  within  their  power. 


TITLE     III. 

OF        CONVICTS. 


CHAPTER   I. 

CONVICTS. 


Section. 

4716.  Convicts— how  disposed  of. 

4717.  How  kept  and  employed. 

4718.  Discretion  of  Governor. 

4719.  Employment  of  convicts  by  Gov'r. 


Sectiox. 

4720.  Provision  for  keeping. 

4721.  Superintendent. 

4722.  Convicts  may  be  put  in  jail. 

4723.  Insurrection  by  convicts. 


PT.  4.~-TIT.  3.— Convicts. 


927 


Chapter  1. — Convicts. 


§  4716.  [In  all  cases  where  persons  are  sentenced  by  any  Judge 
of  this  State  to  labor  on  the  public  works,  or  on  the  public  roads, 
it  shall  be  the  duty  of  the  Judge  pronouncing  the  sentence  to 
cause  said  convicts  to  be  turned  over  to  the  Justices  of  the  Infe- 
rior Court  of  the  County  where  the  conviction  is  had ;  and  it  shall 
be  the  duty  of  such  Justices  to  receive  said  convicts,  place  them 
in  proper  custody,  and  keep  them  diligently  employed  upon  such 
public  works  in  the  County,  in  chain-gangs  or  otherwise,  and  un- 
der such  guards  as  they,  in  their  judgment,  may  deem  best.]  (a) 

§4717.  [The  said  Justices  shall  have  power,  and  are  required, 
to  provide  suitable  places  for  the  safe-keeping  of  such  convicts, 
to  make  provision  for  their  support  by  the  County,  to  employ  such 
overseers,  or  guards,  or  both,  as  may  be  necessary  for  their  safe- 
keeping, and  for  their  constant  and  diligent  employment  upon  the 
public  works ;  and  shall  also  have  power  to  hire  out,  or  bind  out, 
such  convicts  to  contractors  on  the  public  works,  or  to  individu- 
als, upon  such  bonds  and  restrictions  as  shall  subserve  the  ends  of 
justice.  And  for  the  purposes  specified  in  this  Section,  any  two 
or  more  Counties,  by  said  Justices,  may  combine,  keep,  and  work 
together,  such  convicts,  on  such  terms,  and  upon  such  public  works 
anywhere  in  the  State,  as  they  may  agree  upon.]  (b) 

§  4718.  [When  convicts  can  not  be  kept  and  employed  as  pro- 
vided in  the  preceding  Section,  the  said  Justices  may  turn  them 
over  to  the  Governor  of  the  State,  to  be  employed  by  him  upon 
such  public  works  in  the  State  as  he  may  deem  best.  And  upon 
notice  being  given  to  the  Governor  by  such  Justices,  of  their  de- 
sire to  turn  over  such  convicts,  he  may,  if  he  deems  it  advisable, 
refuse  to  receive  them,  but  should  he  deem  it  advisable  to  receive 
them,  he  shall  immediately  send  a  guard  for  such  convicts.]  (b) 

§  4719.  [All  convicts  sentenced  to  labor  on  the  public  works,  and 
turned  over  to  the  Governor,  shall  be  diligently  employed  by  him 
at  labor  upon  the  Western  and  Atlantic  Railroad,  or  upon  such 
other  public  works  or  improvements  as  he  may  judge  to  be  the 
best  interest  of  the  State,  and  as  shall  best  subserve  the  ends  of 
justice.]  (c) 

§4720.  [The  Governor  shall  have  power  to  employ  such  guards 
and  provide  such  places  for  the  safe-keeping  of  such  convicts,  as 
he  may  deem  proper.]  (c) 


Convicts  to 
be  turned 
over  to  Jne- 
tices  of  the 
Inferior 
Court — 
when. 


Howworted 

and  guarded 


Provision 

for      s  a  f  e  - 
keeping,  etc. 


May  be 
bound  out. 


Employed 
by  Governor 
— when. 


How  to  be 

employed. 


Provision 
for  8  a  f  e  - 
keeping. 


(a)  Acts  of  1865-6,  p.  37. 
(c)  Acts  of  1865-6,  p.  38. 


(b)  Acts  of  1865-6,  p.  87,  and  Acts  of  1866,  p.  26. 


928  PT.  4.— TIT.  3.— Convicts. 

Chapter  1. — Convicts. 

§  4721.   [The  Governor  shall  also  have  power  to  appoint  a  Gen- 
Superintcn-  Qy^l  Superintendent  of  such  convicts,  at  a  salary  of  one  thousand 

d  e  n  t  —  by  ^  '  ♦^ 

whom  ap-  dollars,  removable  at  the  pleasure  of  the  Governor,  and  said  Su- 
perintendent,  under  the  advice  and  direction  of  the  Governor, 
shall  have  entire  control  and  management  of  all  convicts  thus 
sentenced  to  labor  on  public  works,  and  shall  have  power  to  make 

and  powers!^  all  ncedful  rulcs  and  regulations  touching  their  employment,  gov- 
ernment, and  safe-keeping.]  (a) 

§  4722.  [Convicts  in  charge  of  the  Justices  of  the  Inferior  Courts, 

Confinement  or  of  otlicrs  deriving  their  authority  over  such  convicts  from  such 

of  oonvicts.  .  fill  •1--1P1  1 

Justices,  may  be  connned  and  kept  m  the  jails  ot  the  several 
Counties  at  night,  on  Sundays,  and  other  times,  as  such  Justices 
may  direct,  and  only  such  fees  or  compensation  shall  be  paid  the 
Jailors  for  receiving  or  discharging  such  convicts,  or  turning  the 
key  for  such  purposes,  as  may  be  determined  by  such  Justices  to  be 
reasonable  and  just ;  i^rovided^  that  where  such  convicts  have  been 
hired  out,  the  party  hiring  shall  be  responsible  for  such  costs.]  (b) 
§4723.  [Whenever  any  convict  or  convicts  now  confined,  or 
Insurrection  hereafter  to  be  confined  in  the  penitentiary  of  this  State,  or  mem- 
ber or  members  of  the  chain-gang  now  confined,  or  hereafter  to 
be  confined  in  the  penitentiary  of  this  State,  or  wherever  else  em- 
ployed as  such,  shall  be  guilty  of  insurrection,  or  attempt  at  in- 
surrection, such  convict  or  convicts,  or  member  or  members  of  the 
chain-gang,  shall,  upo.n  trial  and  conviction  in  the  Superior  Court 
of  the  County  in  which  the  crime  is  committed,  be  deemed  guilty 
of  a  capital  offense,  and  punished  with  death  or  such  other  pun- 
ishment as  the  Judge  in  his  discretion  may  inflict.]  (c) 

(a)  Acts  of  1865-6,  p.  38.    (b)  Acts  of  1866,  p.  26.    (c)  Acts  of  1866,  p.  15S. 


APPENDIX. 


LAWS  HAYING  REFERENCE  TO  THE  CITY  OF   SAVANNAH, 


Article 

1.- 

Article 

2.- 

Article 

3.- 

Article 

4.- 

Article 

5.- 

Article 

6.- 

Article 

7.- 

Article 

8. 

Article 

9. 

Article 

10. 

Article 

11. 

-The  City  of  Savannah. 

-Oorporation  and  Jurisdictional  Limits, 

-Poivers  and  Rights  of  the  Corporation. 

-Special  Powers  of  the  Mayor  and  City  Council. 

-Police  Court  of  Savannah. 

-Organization  of  City  0-overnment. 

-Fire  Department  of  Savannah. 

-Collection  of  Pents,  Recovery  of  Possession,  etc. 

-Party  Walls  and  Fences. 

-Cemeteries  in  and  near  Savannah. 

-City  Court  of  Savannah, 


ARTICLE  I. 


THE      city      of      savanna 


Section. 

4724.  The  city  as  a  corporation. 

4725.  Mayor  and  Aldermen. 

4726.  Election  of  Mayor  and  Aldermen. 

4727.  In  case  of  a  tie. 

4728.  Organization  after  new  election. 

4729.  Chairman  shall  be  elected. 

4730.  Rules  and  regulations. 

4731.  Compensation  of  Mayor. 

4732.  Mayor  and  Aldermen — eligibility. 

4733.  Qualification  of  voters. 


Section. 

4734.  Election  and  hours  of  voting. 

4735.  Registry  of  voters. 

4736.  Manner  of  registering  names. 

4737.  Clerk's  duty. 

4738.  List  of  votes  to  be  furnished. 

4739.  Oath  to  be  administered  to  voters. 

4740.  Voting  illegally. 

4741.  Creating  riot,  etc. 

4742.  Posse  may  be  called  out. 


§4724.  The  city  of  Savannah,  as  a  corporation,  shall  eontinme  style  of  the 
to  exist  under  the  name  and  style  of  the  Mayor  and  Aldermen  of  pofatior*''^' 
the  city  of  Savannah,  and  by  its  corporate  name  may  sue  and 
defend  in  any  case  where  a  natural  person  might. 

§  4725.  The  board  of  Mayor  and  Aldermen  of  said  city  shall 

consist  of  a  Mayor  and  twelve  Aldermen,  to  be  chosen  by  ballot, 
59  ^  J  ^ 


930    APPENDIX. — Laws  in  Reference  to  the  City  of  Sayannah. 

Article  1. — The  City  of  Savannah, 

Mayor  and  OH  the  SGCond  Mondaj  in  October,  annually  by  votes  of  those  en- 

eiecS^a^  titled  to  vote  at  such  elections ;  and  the   board  of  Mayor  and  Al- 

termofoffice  jg^^gj^   shall  hold   their    offices  until  their   successors   are   duly 

elected    and  qualified.     A   quorum  for  business  shall  consist  of 

A  quorum.  ait  iiii/r  -  t  t      • 

seven  Aldermen  and  the  Mayor,  or  presiding  chairman,  except  m 
the  months  of  July,  August,  September,  and  October,  when  a 
majority  of  the  Aldermen  in  the  city  shall  suffice. 

§  4726.   The  Mayor  and  the  Aldermen   shall  be  separately  de- 
Mayor  and  signated  on  the  ticket;  and  the  candidate  for  Mayor  receiving  a 
how^Sed!  i^ajority  of  the  votes  for  that   office   shall  be  declared  elected; 
and  the  twelve  who  shall  receive  the  highest  number  of  votes  for 
Aldermen  shall  constitute  the  board  of  Aldermen  ;  provided  that, 
should  there  be  a  failure  to  elect  twelve  Aldermen  by  reason  of 
In  case  of  several  candidates  receiving  the  same  number  of  votes,  then  those 
^^^®-  elected  shall  proceed  at  their  first  meeting,  and  after  their  quali- 

fication, to  elect  the  number  necessary  to  constitute  twelve  out  of 
such  number  as  shall  have  received  the  equal  number  of  votes  as 
aforesaid. 

§  4727.  In  case  of  a  tie  in  the  vote  for  Mayor,  or  if  there  be 
In  ease  of  a  more  than  two  candidates  for  Mayor,  and  no  candidate  shall  re- 
tion^for^Ai-  coive  a  majority  of  all  the  votes  for  that  office,  the  board  of  Al- 
dermen.       dcrmcn,  after  having  completed  its  own  organization,  shall  elect 
the  Mayor  from  among  those  who  were  candidates  before  the  peo- 
ple for  the  office  of  Mayor ;  and  in  case  of  a  vacancy  in  the  office 
of  Mayor,  by  death,  resignation,  or  otherwise,  the  board  of  Alder- 
men shall  elect  from  their  own  body  a  Mayor  for  the  residue  of 
how*mie(f'~  *^®  term ;    and  in  case   of  a  vacancy  in  the   office  of  Alderman, 
from  any  cause,  it  shall  be"  lawful  for  the  board  to  fill  the  vacancy, 
the  person  chosen  having  a  majority  of  the  votes  of  Aldermen 
present. 

§  4728.  The  newly  elected  Mayor  and  Aldermen  shall  meet  on 
Newiyeiect-  the  first  Mondav  after  their   election  for  org-anization,  and   each 

ed       Mayor  •'  o  ' 

and   Alder-  Alderman  shall  take  the  following  oath  : 

™Si7a^on      ^'I  do  Solemnly  swear  (or  affirm)  that  I  will  ftiithfully  execute 
and  oath.      |.]^g  dutics  of  an  Alderman  of  the  city  of  Savannah,  according  to 
the  laws  of  the   State  and  the  ordinances  of  the  city,  to  the  best 
of  my  ability  and  understanding." 

The  same  oath  shall  be  taken  by  the  Mayor,  substituting  the 
word  "Mayor"  for  *'an  Alderman." 

§  4729.  When  organized  according  to  law,  the  board  shall  elect 
Achairttian  a  chairman,  who  shall,  in  case  of  the  absence,  death,  or  resiojna- 
ted.  tion  of  the  Mayor,  be  vested  with  all  his  power  and  authority, 

and  execute  all  the  duties  pertaining  to  the  office ;  and,  in  the  ab- 
sence of  both,  a  chairman  pro  tempore^  chosen  by  the  board,  shall 
have  the  like  power  and  authority. 

§4730.  The  Mayor  and  Aldermen  shall  have  power,  from  time 
Eaiesandto  time,  to  adopt  all  rules  and  regulations  for  their  own  govern- 
reguiations.  j^g^^  and  the  orderly  dispatch  of  business. 


APPENDIX. — Laws  in  Refekence  to  the  City  of  Savannah.    931 

Article  1. — The  City  of  Savannah. 
§  4731.   The  Mayor  shall  receive  such  salary  or  compensation    Compensa- 

tioQ  ot*  M^^V" 

for  his  services,  payable  out  of  the  City  Treasury,  as  the   City  or. 
Council  may  determine. 

§4732.  No  person  shall  be  eligible  to  the  office  of  Mayor  or    Eligibility 
Alderman  of  Savannah  who  is  not,  at  the  time  of  election,  a  citi-  and   Aider- 
zen  of  the  United  States,  and  shall  not  have  resided  in  the  State  ™®°* 
of  Georgia  for  one  year  immediately  preceding  the  election,  and 
continued  to  do  so  up  to  the  time  of  election,  and  within  the  cor- 
porate limits  of  Savannah  at  least  six  months  immediately  pre- 
ceding the  election ;  and  who  shall  not  have  paid  all  city  taxes, 
or  have,  in  his  own  right,  sufficient  real  estate  to  satisfy  all  such 
taxes. 

§  4733.  All  persons  shall  be  qualified  to  vote  at  elections  for  Qnaiification 
Mayor  and  Aldermen  of  the  city  of  Savannah  who  are  citizens  of 
the  United  States,  have  resided  in  this  State  for  one  year  imme- 
diately preceding  the  election,  and  continued  to  do  so  up  to  the 
time  of  election,  and  within  the  corporate  limits  of  Savannah  for 
one  month  immediately  preceding  their  registration,  and  four 
months  before  the  election ;  who  have  attained  the  age  of  twentj- 
one  years,  and  have  paid  all  city  taxes,  or  have,  in  their  own 
right,  sufficient  real  estate  to  satisfy  any  tax  executions  which 
may  be  issued  against  them  ;  who  shall  have  made  all  returns  re- 
quired by  the  ordinances  of  the  city,  and  have  been  registered  ac- 
cording to  law. 

§4734.  Elections  for  Mayor  and  Aldermen  of  Savannah  shall  Elections- 
be  held  at  the  Court  House  in  said  city,  between  the  hours  of  seven 
in  the  morning  and  six  in  the  afternoon,  under  the  superintendence 
of  the  Justices  of  the  Inferior  Court  of  Chatham  County,  and  the 
Justices  of  the  Peace  in  said  city,  or  any  three  or  more  of  them  ; 
but  no  person  holding  an  office  of  profit  or  emolument  under  the 
corporation  of  Savannah  shall  be  competent  to  preside ;  and  it 
shall  be  the  duty  of  the  presiding  Magistrates  to  certify  the  result  \ 

of  all  such  elections  on  tally  sheets  for  that  purpose  to  be  made  ,i 

out,  which  tally  sheets  shall  be  delivered  to  the  Mayor,  or  Clerk 
of  Council,  three  days  before  the  first  meeting  of  the  board  elect.  f 

§4735.  The  Clerk  of  the  Common  Council  of  the  city  of  Sa-  .  Eegistryof  I 

vannah,  and,  in  case  of  his  sickness  or  absence,  any  officer  duly  ^^^*^^'^-  } 

elected  and  appointed  by  the  Mayor  and  Aldermen,  or  a  majority  | 

of  them,  for  that  purpose,  shall  open  a  list  for  the  registration  of  ; 

voters  on  the  first  Monday  in  January  of  each  and  every  year,  \ 

w4iich  list  shall  be  kept  open  until  two  o'clock  in  the  afternoon  of  j 

the  first  Monday  in  September  ensuing,  when  it  shall  be  finally 
and  absolutely  closed. 

§  4736.  It  shall  be  the  duty  of  such  clerk  or  officer,  upon  the        Maancr 
application  in  person,  and  not  by  proxy,  of  any  person  entitled  to  iV/afd  de"- 
vote  as  aforesaid  within  the  time  prescribed  for  the  list  to  be  kept  perV^iJ^^  °^ 
open,   to  register  the  name  of  such  person,  expressing  in  such 
registry  his  name,  age,  occupation,  or  business,  and  the  place  of 


! 


932    APPENDIX. — Laws  in  Reference  to  the  City  op  Savannah. 

Article  1. — The  City  of  Savannah. 

his  residence  in  the  city  of  Savannah,  which  shall  be  entered  hy 
the  clerk  or  officer  on  said  list,  opposite  the  name  of  each  appli- 
cant— the  applicant  first  paying  to  the  Clerk  of  the  Council,  or 
other  officer  as  aforesaid  for  the  City  Treasury,  the  sum  of  one 
dollar,  which  shall  be  in  lieu  of  the  poll  tax  now  paid ;  but  no 
person  shall  be  entitled  to  registry  when  his  continued  residence 
within  the  State  can  not  be  one  year,  and  within  the  corporate 
limits  four  months,  immediately  preceding  the  election.  The 
m  a"y^^^^^b"e  ^Icrk  may,  in  any  case,  administer  an  oath  to  the  applicant  touch- 
sworn,         ing  his  right  to  be  registered. 

§  4737.  It  shall  be  the  duty  of  said  clerk,  or  other  officer,  to 
Duty  of  arrange  and  publish  a  list  of  the  names  so  registered  in  alphabet- 
ical order  in  one  of  the  gazettes  in  the  city  of  Savannah  at  least 
once  a  month  from  the  first  Monday  in  January  to  the  Tuesday 
after  the  first  Monday  in  October  in  every  year,  and  to  affix  and 
keep  an  alphabetical  printed  list  of  the  names  of  all  registered 
voters  at  the  door  of  the  Court  House  and  the  Exchange  in  Sa- 
vannah, for  one  week  from  the  Tuesday  after  the  first  Monday  in 
October  of  every  year ;  but,  in  said  list,  it  shall  not  be  necessary 
for  said  clerk  to  publish  the  age,  business,  or  place  of  residence 
of  such  voter. 

§  4738.  It  shall  be  the  duty  of  the  Clerk  of  Council  to  furnish 
A  list  of  to  the  Magistrates  presiding  at  the  election  of  Mayor  and  Al- 
registered  to  dcrmcn  of  Savannah,  at  the  opening  of  the  polls  on  the  day  of 
manag^em^^  Said  clcction,  a  complete  list  of  all  the  names,  arranged  in  alpha- 
betical order,  which  shall  have  been  registered  according  to  the 
foregoing  provisions,  together  with  the  age,  occupation,  or  busi- 
ness, and  place  of  residence  in  Savannah,  of  every  person  whose 
name  is  so  registered  at  the  time  of  such  registration,  certified  un- 
der the  hand  of  said  clerk,  and  the  corporate  seal  of  Savannah  ; 
which  list  shall  be  kept  before  the  presiding  Magistrates  during 
such  election,  and,  when  said  election  is  over,  it  shall  be  deposit- 
ed in  the  office  of  said  Clerk  of  Council  to  be  safely  kept  by  him. 
§  4739.  The  presiding  Magistrates  shall  be  authorized  to  admin- 
oatiiof  ister  the  following  oath  to  any  person  attempting  to  vote  :  "  You 
do  solemnly  swear  that  you  are  a  citizen  of  the  United  States  ; 
that  you  have  resided  in  the  State  of  Georgia  for  one  year  imme- 
diately preceding  this  election,  and  within  the  corporate  limits  of 
the  city  of  Savannah  for  the  last  four  months  ;  that  you  are 
twenty-one  years  of  age;  that  you  have  paid  all  taxes  due  the 
city  of  Savannah,  or  have,  in  your  own  right,  sufficient  real  estate 
to  satisfy  any  executions  against  you ;  that  you  have  made  all  re- 
turns required  by  the  ordinances  of  the  city ;  that  you  have  been 
duly  registered  within  the  time  prescribed  by  law,  and  that  you 
have  not  yet  voted  this  day.  So  help  you  God."  Any  person 
conscientiously  opposed  to  taking  an  oath  may  affirm  to  the  same 
i;enor. 

§  4740.  Any  person  voting  or  attempting  to  vote  at  such  elec- 


APPENDIX.— Laws  in  Reference  to  the  City  op  Savannah.    933 

Article  1. — The  City  of  Savannali. 


Illogal 
voting 


to 


tion,  not  qualified  to  vote,  shall  be  guilty  of  a  misdemeanor,  and, 
on  conviction  before  the  Superior  Court  of  Chatham  County,  shall 
be  punished  by  fine  or  imprisonment,  or  both,  at  the  discretion  of 
the  Court. 

§4741.   The  presiding  Magistrates,  or  any  one  of  them,  shall  Maybe  com 
be  authorized  to  commit,  instanter,  to  the  common  jail,  any  un-  jaii. 
qualified  person  offering  or  attempting  to  vote  as  aforesaid,  and 
any  person  attempting  to  commit,  or  actually  committing,  an  act 
of  violence,  at  or  about  the  polls  or  place  of  election,  and  any 
person  attempting  to  create,  or  actually  creating,  a  riot  or  disturb-    creating  a 
ance  at  or  about  the  polls  or  place  of  election,  by  verbal  order  JemptJ'ng 'u>' 
issued  to  any  officer  of  the  County  or  city,  or  by  warrant  under  ^'^  ^^• 
his  or  their  hand,  addressed  to  all  lawful  officers  of  the  County 
and  city,  or  to  -any  private  person  specially  named  therein  ;  ^ro- 
vided,  that  any  person  so  committed  shall  be  entitled  to  be  dis- 
charged or  admitted  to  bail  upon  examination  according  to  law,  at 
any  time  after  ten  o'clock  on  Tuesday  after  the  second  Monday  in 
October ;  and  provided  further^  that  no  person  committed  upon 
verbal   order,  as   aforesaid,  shall   be  detained  in  jail  more  than 
twenty-four  hours,  unless  a  written  detainer  be  lodged  against  him. 

§  4742.  Any  officer,  upon  the  receipt  of  the  verbal   order,  as    Arrest— by 
aforesaid,  or  any  officer  or  private  person  specially  named,  npon  wiiommade. 
the  receipt  of  the  warrant,   as   aforesaid,  shall  be  authorized  to 
require  the  assistance  of  a  posse;  and  any  officer  of  the  city  or     officer  re- 
County  refusing  or  neglecting  to  obey  such  verbal  order  or  written  "^"'^ 
warrant,   shall   be  guilty  of   a  misdemeanor,   and,  on  conviction 
before  the  Superior  Court  of  Chatham  County,  shall  be  punished 
by  fine  or  imprisonment,  or  both,  at  the  discretion  of  the  Court ; 
and  it  shall  be  the  duty  of  the  Magistrate  or  Magistrates,  giving 
siich  order  or  issuing  such  warrant,  to  present  the  offending  officer 
to  the  Grand  Jury  of  the  Superior  Court  at  its  ensuing  term. 


ARTICLE  11. 


corporate  and  jurisdictional  limits. 


Section. 

4743.  Corporate  limits  of  Savannah. 

4744.  Citizenship. 

4745.  Jurisdiction. 


Sectiox. 

4746.  Subjects  of  jurisdiction — appeal. 

4747.  Stores,  shops,  and  bar-rooms. 


§  4743.  The  corporate  limits  of  the  city  of  Savannah  shall  con-     Corporate 
tinue  to  be,  and  the  same  are  hereby  defined,  as  follows — to  wit :  vSi^naii.^  ^^' 
Beginning  at  a  point  on  the  western  side  of  the  mouth  of  Bilbo's 
canal,  and  running  thence,  in  a  direct  line,  to  a  granite  stone  near 
the  culvert  on  Thunderbolt  road,  and  which  stone  marks  the  line 
of  the  present  city  limits;   thence  along  the  north  side  of  Thun- 


/l 


934    APPENDIX. — Laws  in  Eefeeence  to  the  City  of  Satannah, 

Article  2. — Corporate  and  Jurisdictional  Limits. 

derbolt  road,  the  west  side  of  Water's  road,  the  north  side  of 
Lover's  lane,  and  its  line  prolonged  to  the  line  of  Springfield 
plantation ;  thence  along  the  boundary  line  of  said  plantation  to 
the  bifurcation  of  the  Augusta  and  Louisville  roads ;  and  thence 
to  a  point  on  the  river  bank,  ten  chains  west  of  William  B.  Giles 
k  Co.'s  mill;  thence  along  the  line  prolonged  to  Hutchinson's 
Island;  thence  along  the  shore  of  Hutchinson's  Island  to  the  east- 
ern end  of  it ;  thence  to  the  point  of  beginning. 

§  4744.  All  persons  residing  within  said  defined  limits  shall  be 
Citizenship,  entitled  to  the  privileges  of  citizenship,  under  the  same  conditions 
and  restrictions  as  the  residents  of  the  wards  already  laid  out; 
and  all  persons  and  property  within  the  said  defined  limits,  shall 
be  subject  to  and  bound  by  all  the  ordinances  and  regulations  of 
the  Mayor  and  Aldermen  of  said  city,  now  of  force  and  hereafter 
Proviso,  to  be  ordained  and  established ;  with  this  proviso,  nevertheless y 
that  the  said  corporate  authorities  shall  have  no  power  to  tax  any 
of  the  lands,  or  other  property  vathin  said  defined  limits,  not  now 
liable  to  taxation,  except  where  the  plan  of  the  city  is  now,  or 
shall  hereafter  be,  regularly  and  bona  fide  extended  over  suck 
limits. 

§  4745.   The  said  Mayor  and  Aldermen  shall  have  jurisdiction 
Jurisdiction  over  vcsscls  and  rafts  lying  in  the  river  Savannah,  between  said 
city  and  Tybee,  and  their  respective  crews ;    and  all  porters  work- 
ing on  board  such  vessels  shall  be  subject  to  the  ordinaDces  of  said 
city  in  regard  to  badges,  and  to  porters  and  laborers. 

§  4746.   The  jurisdictional  limits  of  Savannah  shall  extend  one 
jurisdic-  mile  boyond  the  above  defined  corporate  limits,  so  as  to  enable  the 
o/theciTy!^  Mayor  and  Aldermen,  by  ordinance,  to  prohibit  the  cultivation  of 
rice  within  said  extended  limits ;  and  any  person  aggrieved  by  the 
Appeal,     action  of  Council  in  this  respect  may  appeal  from  any  such  pro- 
ceeding to  the  Superior  Court  of  Chatham  County — the  appeal  to 
be  tried  by  a  special  jury ;   and  the  only  point  in  issue  on  such 
trial  shall  be :  Is  the  cultivation  of  rice  in  the  place  prohibited 
.    injurious  to  the  health  of  any  portion  of  the  citizens  or  inhabitants 
of  Savannah  ?     And  if  such  issue  shall  be  determined  in  the  nesra- 
tive,  then  the  prohibition  shall  be  null  and  void,  and  not  other- 
wise. 

§  4747.  The  jurisdictional  limits  of  said  city  shall  extend  two 
Jurisdiction  milos  boyoud  the  above  defined  corporate  limits,  so  as  to  give  to 
shGp\^  ^ud  said  Mayor  and  Aldermen  the  control  and  regulation  of  all  shops, 
bar-rooms.    g|;Qj.gs^  g^j^^j  bar-rooms,  and  the  sole  regulation  and  power  of  gov- 
erning and  directing  taverns,  and  granting  licenses   for  retailing 
liquors  within  such  limits,  and  of  preserving  peace  and  good  order 
therein  on  the  Sabbath,  under  such  rules  and  regulations  as  from 
time  to  time  may  be  deemed  advisable. 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    935 

Article  3. — Powers  and  Rights  of  the  Corporation. 


ARTICLE  IIL 


POWERS  AND  RIGHTS  OF  THE  CORPORATION. 


Sectiok. 

4748.  By-laws. 

4749.  Taxation. 

4750.  "Debts  due  the  city — dignity  of. 

4751.  Streets,  wharves,  lanes,  etc. 

4752.  Street  railways. 

4753.  Privilege  may  be  farmed, 

4754.  Transportation  of  freight. 

4755.  Rates  of  fare  and  freight. 

4756.  System  of  drapage. 

4757.  Public  market. 

4758.  May  borrow  money. 

4759.  May  hold  real  and  personal  estate. 

4760.  Police  officers — app'ntm't  and  pay. 

4761.  Shops,  taverns,  barrrooms,  etc. 


Section. 

4762.  Pains  and  penalties. 

4763.  Fines— how  collected. 

4764.  Mayor  and  Aldermen — powers. 

4765.  Pavements  and  sidewalks. 

4766.  Exemptions  of  persons  and  prop'ty 

4767.  Persons  convicted — how  punished. 

4768.  Exemptions  from  militia  duty. 

4769.  Jail  of  Chatham  County. 

4770.  Rules  and  regulations  of  the  jail. 

4771.  Erection  of  jail. 

4772.  Jail  fees. 

4773.  Ordinances  continued. 

4774.  How  evidenced. 


§4748.  The  Major  and  Aldermen  of  said  city  shall  have  power 
and  authority,  from  time  to  time,  to  make,  ordain,  and  establish 
such  by-laws,  ordinances,  rules,  and  regulations  as  shall  appear  to 
them  requisite  and  necessary  for  the  security,  welfare,  and  conve- 
nience of  the  said  city  and  its  inhabitants,  and  for  preserving 
health,  peace,  and  good  government  within  the  limits  of  the  same. 

§  4749.  They  are  also  hereby  vested  with  full  power  and  author- 
ity to  make  such  assessments  and  lay  such  taxes  on  the  inhabi- 
tants of  said  city,  and  those  w^ho  hold  taxable  property  within  the 
same,  and  those  who  transact  or  offer  to  transact  business  therein, 
as  said  corporate  authorities  may  deem  expedient  for  the  safety, 
benefit,  convenience,  and  advantage  of  said  city,  and  may  enforce 
the  payment  of  such  assessments  and  taxes  in  such  manner  as 
said  Mayor  and  Aldermen  may  prescribe.  Besides  real  and  per- 
sonal property,  the  said  Mayor  and  Aldermen  may  tax  capital  in- 
vested in  said  city,  stocks  in  money  corporations,  choses  in  action, 
income  and  commissions  derived  from  the  pursuit  of  any  profes- 
sion, faculty,  trade,  or  calling,  dividends,  bank,  insurance,  express, 
and  other  agencies,  and  all  other  property  or  sources  of  profit  not 
expressly  prohibited  or  exempt  by  State  law  or  competent  author- 
ity of  the  United  States. 

§  4750.  Taxes  and  assessments  due  to  said  city  shall  rank  as 
debts  due  to  the  public,  whether  in  the  administration  of  the  as- 
sets of  a  decedent,  or  otherwise,  and  tax  executions  in  favor  of 
the  city  shall  have  the  same  lien  on  property  thoughout  the  State, 
as  judgments  have  by  law. 

§4751.  They  shall  also  have  power  and  authority  to  widen, 
extend,  or  straighten  any  street,  lane,  way,  or  square  in  said  city, 
and  to  open,  lay  out,  and  establish  any  new  street,  lane,  way,  or 
square  within  the  limits  of  said  city ;  to  remove  all  nuisances,  and 
all  encroachments  by  wharves,  erections,  or  obstructions  of  any 


May  estab- 
lish by-laws. 


Taxation, 


Eankoftax 
and  debts 
due  the  city. 


Powers 
over  streets, 
lanes,  whar- 
ves, etc. 


936    APPENDIX. — Laws  m  Refekence  to  the  City  of  Savaxxah. 

Article  3. — Powers  and  Rights  of  the  Corporation. 

kind  along  the  line  of  the  river,  or  along  or  upon  any  street,  lane, 
way,  or  place ;  but  whenever  said  Mayor  and  Aldermen  shall  ex- 
ercise the  power  to  widen,  extend,  or  straighten  a  street,  lane, 
way  or  square,  or  to  open  lay  out,  and  establish  any  new  street, 
lane,  way,  or  square,  to  the  injury  of  private  right,  they  shall  ap- 
point five  freeholders,  who  shall  assess  the  damages  sustained  or 
the  benefits  or  advantages  derived  by  the  owner  or  owners  of  the 
lot  or  lots  fronting  on  said  streets,  lanes,  ways,  or  squares  so  wi- 
dened, extended,  straightened,  opened,  laid  out,  or  established, 
with  power  and  authority  to  said  Mayor  and  Aldermen  to  enforce 
the  award  or  decision ;  but  the  owner  or  owners  of  land  affected 
by  such  decision  shall  have  the  right  to  appeal  therefrom  to  a 
special  jury  in  the  Superior  Court  of  Chatham  County,  whose 
yerdict  in  the  premises  shall  be  conclusive. 

§  4T52.  [The  said  Mayor  and  Aldermen,  in  council  assembled, 
street  rail-  and  as  a  Corporation,  are  authorized  and  empowered,  to  lay  down, 
ccTnSructed  build,  and  construct  in  any  of  the  streets  of  said  city  of  Savannah 
and  used,  (^gxcept  as  hereafter  excepted),  and  to  run,  operate  and  work  the 
same,  carriage  railways  for  the  convenience  of  persons  traveling 
in  and  visiting  said  city;  the  cars  and  carriages  on  such  railways 
to  be  moved  and  propelled  by  animal  power  and  not  by  steam,  to- 
gether with  the  necessary  turn-outs  and  switches ;  provided  ahvat/s, 
that  in  any  case  where  the  grading  for  any  such  railway  shall 
render  a  bridge  or  bridges  necessary  for  the  convenience  of  crossing 
a  street  by  other  vehicles,  or  by  persons  on  foot,  or  on  horseback, 
such  bridges  shall  be  built  and  kept  in  proper  repair ;  also,  that 
no  such  railway  shall,  when  it  can  possibly  be  avoided,  interfere 
with  the  usual  or  natural  grade  of  any  street ;  and  further,  that 
the  rate  of  speed  on  any  such  railway  shall  not  be  greater  than 
that  allowed  by  present  or  future  ordinances  of  said  city  for  other 
vehicles;  and  provided  further,  that  such  railways  shall,  in  all  re- 
spects, be  so  constructed,  laid,  built,  and  used,  as  that  other  ve- 
hicles and  horsemen  and  footmen  may  pass  freely  in  and  across 
the  street  or  streets,  used  by  said  railway,  except  at  the  instant  of 
the  passing  of  a  car,  carriage,  or  train ;  and  further,  that  no  such 
railway  shall  ever  be  buit  or  laid  in  or  on  any  street  which  runs 
through  a  square  or  park  in  said  city,  or  in  or  on  any  street  less 
than  forty  five  feet  in  width.]  (a) 

§  4753.  [The  said  corporation  of  Savannah  may  either  build, 
City  may  coustruct  and  usc  such  railways  on  its  own  account,  or  let  or  farm 

use  or  larin  .  .,..,,*'  .  ,',  ,.. 

raiiwaypriv-  the  privilege  to  mdividuals  or  companies,  under  the  conaitions 
^  ^^^^*  and  restrictions  herein  contained,  and  at  such  rates  of  fare  and 
other  charges  as  the  City  Council  of  said  City  may  by  ordinance 
determine  ;  provided  however,  that  the  said  corporation  in  letting 
or  farming  the  privileges  as  aforesaid,  shall  not  sell  the  privilege 
for  any  money  consideration   other  than   an  agreed  proportion  of 

(a)  Acts  of  1866,  pp.  133-4. 


I 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    937 

Article  3. — Powers  and  Eights  of  the  Corporation. 

the  net  annual  earnings  of  sucli  railway  or  railways ;  and  that  the 
rates  of  fare  and  other  charges  must  beforehand  be  fixed  by  ordi- 
nance and  published  for  general  information ;  and  Council  may 
also,  by  contract,  fix  the  time  at  which  the  city  proportion  of  earn- 
ings shall  be  made  payable,  and  either  by  ordinance  or  contract 
requiring  indemnity  for  the  payment  of  its  said  proportion.]  (a) 

§  4754.  [It  shall  be  the  right  of  said  City  Council  to  determine      Question 
what  transportation,  in  addition  to   passengers  and  baggage,  may  f/eigS-To"! 
be  made  on  such  railways  ;  provided^  that  permission   to  carry  deteimined. 
freight  on  such  railways  by  any  company  or  contracting  party,  or 
by  the  city  corporation,  shall  not  be  granted  until  the  question  of 
carrying  freight,  shall  have  been   submitted  to   the  ballot   of  the 
legal  voters  of  said  city  and  the  County  of  Chatham,   and  by  a 
majority  of  such  voters  been  approved.]  (a) 

§  4755.  [After  the  rates  of  fare  shall  have  been  fixed  by  said  Eatesoffare 
City  Council,  for  and  upon  such  railway  or  railways,  such  rates  — how  fiild. 
shall  never  be  increased,  except  by  authority  from  said  City  Coun- 
cil ;  and  in  case  the  privilege  of  carrying  freight  be  allowed  by 
ballot  of  the  people  as  aforesaid,  the  City  Council  shall  always  have 
the  right  to  fix,  limit,  and  change  the  rates  of  such  freight;  and  said 
City  Council  shall  never  depute,  delegate,  or  assign  the  right  to 
construct,  operate,  and  use  such  railways  for  a  longer  period  than 
ten  years ;  after  which,  the  City  Council  may,  from  time  to  time, 
renew  the  lease,  grant  or  permission  to  the  same  party  or  parties,  or 
grant  the  permission  to  other  and  different  persons,  and  the  City 
Council  may  always,  in  advance,  fix  the  terms  (other  than  those 
hereinbefore  prescribed)  on  which  such  railways  may  be  built  and 
used  and  managed.]  (a) 

§  4756.  The  said  Mayor  and  Aldermen  shall  also  have  power  to  system  of 
establish  a  complete  system  of  drainage  in  and  around  said  city,  ^^^""^^' 
for  the  health  and  comfort  of  its  inhabitants ;  but  in  cases  where 
private  property  may  be  taken,  or  private  right  be  injured  for 
such  purpose,  the  same  proceedings  for  assessing  and  paying  the 
damage  incurred  shall  be  had  as  are  pointed  out  in  Section 
4751. 

§  4757.  They  shall  also  have  the  complete  control  and  manage-       Pnbiic 
ment  of  the  present  public  market,  and  any  other  that  may  be    ^^^  ^ ' 
established  in  said  city,  and  the  regulation  of  the  same,  and  of 
sales  and  purchases  therein. 

§  4758.  The  said  Mayor  and  Aldermen  shall  have  power  to  bor-  May  borrow 
row  money  and  contract  loans  for  the  public  good,  and  to  sub-  money. 
scribe  for  works  of  internal  improvement,  which,  in  their  judg- 
ment, may  be  to  the  interest  of  said  city,  and  to  issue  bonds  and 
pledge  the  property,  faith,  and  credit  of  the  city  for  the  payment 
of  such  subscriptions  ;  provided  no  subscription  or  outlay  of  money    Proviso, 
shall  be  made  for  any  such  work  out  of  the  city,  except  upon  the 


(a)  Acts  of  1866,  pp.  133-4. 


V 


938    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 

Article  3. — Powers  and  Rights  of  the  Corporation. 

recommendation  of  a  public  meeting  of  the  citizens  of  Savannah, 
called  for  the  purpose ;  and  all  bonds  heretofore  issued  by  said 
Aldermen  and  still  outstanding,  are  hereby  declared  legal  and  valid. 
§  4759.   The  said  city,  in  its  corporate  capacity,  may  hold  real 
May  hold  and  personal  property,  and  may  sell  and  dispose  of  all  or  any  part 
sonarpn^p-  of  the  domain,  property,  land,  lots,  or  any  personal  property  to  it 
®'*^*  belonging,  from  time  to  time,  on  such  terms  as  to  said  corporation 

shall  seem  expedient ;  but  no  street,  lane,  or  thoroughfare,  after 
having  been  dedicated  to  public  uses  (including  all  present  dedi- 
cations), shall  be  aliened  by  said  corporation,  except  by  authority 
of  the  General  Assembly.  All  rights  of  property  existing  in  said 
corporation  at  the  adoption  of  this  Code,  are  hereby  expressly 
reserved  to  it. 

§  4760.  The  said  Mayor  and  Aldermen  shall  have  power  to  ap- 
Poiice  of-  point  all  such  officers  under  them  as  they  may  deem  proper  for  the 
pointment  police  and  good  government  of  said  city,  and  to  make  all  such 
aadpay.  rulos  and  regulations  for  the  government  and  compensation  of 
such  officers  as  said  Mayor  and  Aldermen  may  deem  proper.  Be- 
sides commissioners  of  pilotage,  they  may  also  appoint  the  harbor 
master,  vendue  master,  port  wardens,  health  officers,  inspectors  of 
every  sort,  gangers,  and  measurers,  and  fix  their  duties  and  com- 
pensation ;  but  all  appointments  to  office  under  said  Mayor  and 
Aldermen,  existing  at  the  adoption  of  this  Code,  shall  continue 
until  the  incumbents  of  said  offices  respectively  shall  be  super- 
seded by  expiration  of  the  term  of  the  same  respectively,  or  by 
resignation,  or  by  authority  of  law,  or  by  ordinance  of  said  city, 
for  incapacity  or  improper  conduct,  when  said  Mayor  and  Alder- 
men are  not,  by  this  Code  or  by  other  statutory  enactments,  or 
by  the  Constitution  of  this  State,  prevented  from  declaring  a  va- 
cancy. 

§  4761.  The  said  Mayor  and  Aldermen  shall  have  the  control 
Shops, tav-  and  reo-ulation  of  all  shops,  taverns,  stores,  and  bar-rooms,  within 

crns,   stores,     ,  "-'  -,     .       .     -..^    .  ,,.      .  p.,.  -,•, 

and     bar-  the  Corporate  and  jurisdictional   limits  oi  said  city,  and  tne  regu- 
rooms.        lation  of  tavern  license,  and  licenses  to  retail  liquors  within  the 
same ;    and  also  the  power  to  regulate   the  conduct  of  peddlers 
and  itinerant  traders  within  the  same  limits,  by  taxation  or  other- 
wise.    They  shall- also  have  the  power  to  pass   all  ordinances, 
Pgj.gQjjg  Qf  rules,  or  regulations,  proper  or  necessary  for  the  government  of 
color.  persons  of  color  within  the  city  and  its  jurisdictional  limits. 

§  4762.   They  shall  have  power  and  authority  to  impose  and  in- 
Painaand  flict  such  paius,  penalties,  and  forfeitures,  for  violations  of  the  by- 
pena  les.      \.^yfQ  qj.  ordinances  of  the  city,  as  shall,  in  their  judgment,  be  con- 
ducive to  the  good  order  and  government  of  said  city ;   provided, 
that  no  fine  or  forfeiture,  for   one  individual   offense,  shall  exceed 
one  hundred  dollars,  and  no  imprisonment  shall  be  for  more  than 
thirty  days  ;  although  the  said  Mayor  and  Aldermen  may  impose 
and  inflict  several   and   distinct   fines   and  imprisonments,  at  the 
}  same  meeting  of  Council,  for  several  and  distinct  offenses. 

I 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    939 


Article  3. — Powers  and  Rights  of  the  Corporation. 


§4763.  Fines,  penalties,  and  forfeitures,  shall  be  levied  by 
■warrant  or  execution  of  distress,  and  sale  of  the  offender's  goods 
and  chattels,  if  any  to  be  found  ;  otherwise,  of  lands  and  tene- 
ments ;  and  in  case  of  no  such  property,  then  the  defendant  may 
be  imprisoned  in  the  common  jail,  or  made  to  do  public  work,  as 
hereinafter  provided. 

§  4764.  The  Mayor,  or  any  one  Alderman,  shall  be  vested  with 
the  power  of  a  Justice  of  the  Peace,  so  as  to  enable  him,  within 
the  corporate  and  jurisdictional  limits  of  the  city,  to  suppress 
riots  or  breaches  of  the  peace,  arrest,  confine,  or  bind  over,  oifend- 
ers  against  the  laws  of  the  State,  to  answer  for  such  offenses  be- 
fore the  proper  tribunal. 

§  4765.  Said  Mayor  and  Aldermen  shall  have  power  to  order 
such  pavements  and  sidewalks,  and  repairs  of  the  same,  as  they 
may  deem  proper ;  and  upon  the  failure  of  any  person  to  comply 
with  such  order  within  the  time  prescribed,  the  said  Mayor  and 
Aldermen  may  have  the  same  done,  and  levy  and  collect  the  ex- 
penses thereof  by  execution  against  the  lands  and  goods  and  chat- 
tels of  the  owner  of  the  lot,  whether  holding  the  same  under  lease- 
hold title  from  the  city  or  by  title  otherwise  derived. 

§  4766.  The  Mayor  and  Aldermen,  during  their  continuance  in 
office,  shall  be  exempt  from  jury  duty  ;  and  the  Springfield  planta- 
tion, and  all  other  property  of  the  city  now  exempt  from  taxation 
by  the  State,  shall  continue  to  be  so  exempt. 

§4767.  They  shall  have  power  to  establish  work-houses  and 
treadmills,  and  to  cause  labor  and  confinement  therein,  and  also 
on  the  public  streets,  squares,  or  lanes,  by  persons,  whether  white 
or  colored,  convicted  of  offenses  against  the  ordinances  of  the  city 
or  laws  of  the  State  in  relation  to  said  city. 

§  4768.  The  officers  and  privates  of  the  Police,  or  City  Watch 
of  Savannah,  shall  be  exempt  from  the  performance  of  militia 
duty  under  the  peace  establishment  of  this  State ;  and  they,  and 
the  Engineer  and  Assistant  Engineer  of  the  Savannah  Water 
Works,  shall  be  exempt  from  jury  duty. 

§  4769.  The  jail  of  Chatham  County  shall  continue,  as  hereto- 
fore, under  the  direction,  control,  and  management  of  the  Mayor 
and  Aldermen  of  Savannah,  with  all  the  rights  and  duties  of  com- 
missioners of  the  same,  and  with  power  to  them  to  appoint  a 
Jailor,  and  other  necessary  officers,  for  a  term  not  exceeding  three 
years;  which  said  Jailor  and  other  officers  shall  respectively  give 
such  bond,  and  be  allowed  such  compensation,  as  the  Mayor  and 
Aldermen  shall,  by  ordinance,  prescribe ;  and  which  said  Jailor 
and  other  officers  shall  be  removable  from  ofiice  by  said  Mayor 
and  Aldermen,  for  any  misconduct  which  shall,  in  their  opinion, 
furnish  sufficient  cause. 

§  4770.  And  said  Mayor  and  Aldermen  shall  have  power  to  pass 
all  ordinances,  resolutions,  rules,  and  regulations,  for  the  regula- 
tion of  the  jail  and  the  government  of  the  Jailor  and  other  offi- 


Fines  and 
penalties  — 
how  collect- 
ed. 


Mayor  and 
Aldermen 
vested  with 
the  powers 
of  Justice  of 
the  Peace. 


Pavements 
and  side- 
walks. 


Mayor,"  etc. 
exempt  from 
jury  duty. 


Persons  con- 
victed of  of- 
fenses— how 
punished. 


Persons  ex- 
empt from 
m.ilitia  duty. 


The  jail 
of  Chatham 
County. 


\ 


Rules  and 
regulations 
respecting 
the  jail. 


940    APPENDIX.— Laws  in  Reference  to  the  Citz  of  Savannah. 

Article  3. — Powers  and  Rights  of  the  Corporation. 


cers,  and  all  persons  confined  within  said  jail,  as  said  Mayor  and 
Aldermen  shall,  from  time  to  time,  deem  proper,  and  as  shall  not 
be  repugnant  to  law ;  and  the  Jailor  shall  be  answerable  for  all 
escapes  from  such  jail,  to  the  same  extent  and  in  the  same  manner 
as  the  Sheriff  or  other  keeper  of  a  jail  may,  by  the  general  law,  be. 
§4771.  All  laws  of  force,  for  the  erection  of  any  new  jail  by 
Laws  for  the  the  Justices  of  the  Inferior  Court  of  Chatham  County,  are  hereby 
newjaii.  coutinued  in  force  ;  but  such  new  jail,  when  erected,  shall  be- 
come the  jail  of  said  County,  under  the  direction,  control,  and 
management  of  said  Mayor  and  Aldermen,  as  in  the  preceding 
Section  mentioned ;  but  the  said  jail  shall  be  subject  at  all  times 
to  the  visits  and  inspection  of  said  Justices,  and  of  the  Grand  In- 
quests of  said  County  and  city,  who  may  report  to  the  City  Coun- 
cil of  said  city  any  misconduct  of  the  officers  thereof,  or  evils 
existing  therein,  and  recommend  to  said  City  Council  any  mode  of 
redress  or  remedy  therefor. 

§4772.  Persons  committed  to  said  jail  on  other  than  civil  pro- 
jaiifees,  coss,  or  procoss  from  the  corporate  authorities  of  Savannah,  shall 
be  a  charge  on  the  County  from  which  the  prisoner  may  be  sent ; 
and  said  city  authorities  may  demand  periodical  settlements  from 
such  County  for  the  fees  accruing  for  such  prisoner,  and  in  case 
-  the  Inferior  Court  of  any  such  County  shall  refuse  to  make  peri- 
odical settlements  or  payments,  it  shall  be  lawful  for  the  Superior 
Court  of  such  County,  by  mandamus  or  other  process,  on  the  ap- 
plication of  the  said  Corporation  of  Savannah,  or  the  Jailor,  to 
compel  such  settlement  and  payment. 

§  4773.  All  ordinances  of  said  city  existing  at  the  time  of  the 
Ordinances  adoptiou  of  tliis  Codc,  and  not  repugnant  thereto,  shall  be  of  full 
force.  force  and  effect  until  the  same  be  altered,  modified,  or  repealed  by 

the  Mayor  and  Aldermen  of  said  city. 

§  4774.  All  ordinances,  by-laws,  rules,  and  regulations  of  said 
Ordinances  citv,  published  bv  authority  of  said  Mayor  and  Aldermen,  and 

of  the  citv »/  '    i-  «/  ,        "  ,  .  . 

how  evi-  promulged  as  such  by  said  authority,  shall  be  evidence  in  all  the 
Courts  of  this  State  to  the  same  extent  that  laws  of  the  State,  as 
published  by  authority,  shall  be  evidence  of  such  laws  ;  and  when, 
in  any  case,  an  exemplification  of  any  such  ordinance,  by-law, 
rule,  or  regulation,  minute  of  Council,  or  any  paper  of  file  in  any 
of  the  departments  of  the  government  of  said  city  may  be  re- 
quired, the  same  may  be  authenticated  under  the  official  signature 
of  the  Mayor,  or  acting  Mayor,  and  the  seal  of  said  city. 


denoed. 


ARTICLE    IV. 

SPECIAL    POWERS    OF    THE    MAYOR    AND    CITY    COUNCIL. 


Seotiok. 

4775.  Special  powers  of  Mayor. 

4776.  Ordinances  and  p  dice  regulations. 


Section. 

4777.  Nuisances— how  abated. 

4778.  Paupers. 


\ 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    941 

Article  4. — Special  Powers  of  the  Mayor  and  City  Council. 

§4775.  The  Mayor  of  the  city  of  Savannah,  for  the  time  being,  Special  pow- 
and,  during  his  absence  or  inability  to  discharge  his  official  duties,  ^^^^  ^^"^' 
the  Chairman  of  Council,  or  such  other  officer  as  may  by  law,  or 
ordinance,  or  vote,  or  rule  of  Council,  of  the  said  city,  be  at  such 
times  his  substitute,  shall  have  full  power  and  authority  to  issue 
warrants  for  the  arrest  of  all  persons  charged,  upon  affidavit  be- 
fore such  officer  or  other  lawful  magistrate,  with  having  commit- 
ted, within  the  limits  of  the  city  of  Savannah,  offenses  against 
any  penal  law  of  this  State,  and  to  take  the  examination  of  such 
persons,  and  the  same  to  discharge  or  commit  to  prison,  or  let  to 
bail,  according  to  law,  to  answer  such  charge  before  the  proper 
Court  having  jurisdiction  of  the  same,  in  the  same  manner  as 
Justices  of  the  Peace  of  the  several  Counties  of  the  State  now  or 
hereafter  may  have  by  law,  and  to  issue  such  warrant  according 
to  law,  to  be  executed  within  the  jurisdictional  limits  of  Savan- 
nah— all  which  warrants  may  be  executed  by  the  Marshal  or  Depu- 
ty Marshal,  or  any  Constable  of  said  city,  and  be  returned  before 
said  Mayor,  or  his  temporary  official  substitute,  as  aforesaid. 
And  the  said  Mayor  or  substitute  as  aforesaid,  may,  by  warrant  is- 
sued as  aforesaid,  cause  suspected  places  to  be  entered,  in  as  full  and 
ample  a  manner  as  any  other  Magistrate  of  this  State  may,  with 
a  view  to  the  detection  and  prevention,  or  punishment  of  offenses, 
within  said  jurisdictional  limits,  against  the  laws  of  this  State,  or 
the. ordinances  of  said  city. 

§  4776c  The  Mayor  and  Aldermen  of  said  city  shall  have  full  ordinances 
power  and  authorty  to  pass  all  such  ordinances  and  establish  such  regulations^ 
police  regulations,  not  repugnant  to  the  Constitution  and  laws  of 
this  State,  as  in  their  judgment  and  discretion  may  be  deemed 
best  calculated  to  suppress,  within  the  jurisdictional  limits  of  said 
city,  the  practice  of  illicit  trading  with  persons  of  color,  and  re- 
ceiving stolen  goods  from  them,  and  of  affixing  and  enforcing  such 
penalti^  for  the  violation  of  such  ordinances  and  police  regula- 
tions as  said  Mayor  and  Aldermen  shall  deem  proper,  and  as  shall 
not  be  inconsistent  with  such  Constitution. 

§  4777.  The  said  Mayor  and  Aldermen  shall  have  power,  by  Nuisances— 

X  /        t/     now  clD&tGQ 

ordinance,  resolution,  or  order  of  Council,  to  cause  to  be  abated 
within  the  jurisdictional  limits  of  said  city,  any  nuisance  which 
may  tend  to  the  immediate  annoyance  of  the  citizens  in  general, 
may  be  manifestly  injurious  to  the  public  health  or  safety,  or  tend 
greatly  to  corrupt  the  manners  and  morals  of  the  people,  or  any 
considerable  part  thereof,  whether  the  nuisance  be  such  at  com- 
mon law  or  by  statute  of  this  State,  or  by  ordinance  of  said  city 
passed  in  conformity  with  law,  and  to  enforce  the  order  for  abate- 
ment and  removal  of  such  nuisance  by  the  Marshal  and  other 
civil  force  of  said  city.  And  said  Mayor  and  Aldermen  shall  Quarantine 
have  full  power  and  authority  to  establish  such  system  of  quaran-  and  sanitary 
tme  and  make  such  sanitary  regulations  anywhere  on  the  Savan- 
nah river,  or  elsewhere  in  Chatham  County,  as  may  in  their  judg- 


942    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 

Article  5. — Police  Court  of  Savannah. 

ment  be  proper  to  prevent  the  spread  of  contagious  or  infectious 
disease  in  said  city. 

§  4778.  Said  Major  and  Aldermen  shall  have  full  power  and 
Paupers,    authority  to  pass  all  ordinances  and  make  all  such  rules  and  regula- 
tions as  may,  in  their  judgment,  be  proper  to  prevent  the  influx  or 
immigration  of  paupers  into  said  city ;  and  nothing  in  the  general 
laws  of  the  State  shall  ever  be  considered  in  derogation  of  the 
powers  hereby  conferred  upon  said  city  authorities  on  said  sub- 
Existing  jects ;  and  any  and  every  ordinance  of  said  city  now  existing  in 
continued!  relation  to  the  influx  of  paupers  therein  shall  be  considered  as 
hereby  confirmed. 


ARTICLE  Y. 

POLICE     COURT     OF    SAVANNAH. 

Section.  I  Section. 

4779.  Sessions  and  jurisdiction.  |        4780.  Ofl&cera  may  collect  cost. 

§  4779.  The  Police  Court  of  said  city  is  hereby  continued  a 
sf^CouS^^of  ^^^^^  of  Record,  and  the  Mayor  or  acting  Mayor  is  hereby  au- 
record.        thorizcd  to  preside  in  said  Court,  and  to  hold  sessions  thereof  as 
often   as  to  him  may  appear  to  be  necessary.      Said  Court  shall 
furiBdiciion.*^  havo  cognizaucc  of   all  ofi'enses   against  the  ordinances   of  said 
city,  and  the  laws  of  this  State  touching  said  city,  with  power  to 
inflict  the  proper  punishment  by  fine  and  imprisonment,  or  other 
0    (  ^  O^''  penalty  prescribed  by  such  laws  and  ordinances  from  time  to  time, 
'^^■''  ""*  and  to  enforce  the  same  by  mittimus,  directed  to  the  Marshal  of 

said  city  or  any  lawful  Constable  thereof,  and  to  the  jailor  of 
Chatham  County  when  necessary ;  and  said  Court  shall  have  power 
to  commit  to  jail  any  and  all  person  and  persons  who  may  disturb 
said  Court  during  its  sittings,  or  who  may  in  any  manner  be  in 
be^rftered"'^  contcmpt  of  its  lawful  authority  ;  but  an  appeal  may  be  entered  or 
taken  from  any  judgment  or  decision  of  said  Court  (except  a  com- 
mitment for  contempt),  to  the  Mayor  and  Aldermen  of  said  city, 
in  Council  assembled,  all  costs  being  first  paid  and  bond  given  to 
abide  the  decision  of  said  Council,  and  no  certiorari  shall  ever  be 
allowed  or  granted  until  such  is  entered  and  the  same  is  heard  and 
Certiorari  determined  by  Council ;  and  on  the  confirmation  by  Council  of  the 

granted —  ,  .  •'  "  ,  .  ,  •'  . 

When.       decision  or  judgment  of  said  Police  Court,  in  whole  or  in  part,  no 

certiorari  shall  be  allowed  until  the  fine  inflicted  or  confirmed  by 

Council,  and  all  costs  shall  be  paid  into  the  Treasury  of  said  city. 

§4780.  The  Clerk  of  Council,  the  Marshal  of    said  city,  and 

Officers  of  i\iq  officers  and  members  of  the  Police  of  said  city,  who  are  hereby 

Police  Court  ^  m     •      r^  ^  t  c  '  t       •  ini  rr»  f 

may  collect  declared  to  be  ex  officio  Constables  of  said  city,  shall  be  officers  of 

^^  ^'  said  Police  Court ;  and  they  are  hereby  authorized  to  demand  and 

receive  for  services  rendered  or  duties  performed  in  said  Court,  such 

fees  and  costs  for  themselves,  to  be  collected  out  of  the  defendants, 

as  may  be  established  by  ordinance  of  said  city. 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    943 


Article  7. — Fire  Department  of  Savannah. 


ARTICLE  VL 

ORGANIZATION    OF    CITY    GOVERNMENT. 

Section  4781,  Organization  of  City  Government. 

§  4781.  The  organization  of  the  City  Government  of  Savannah,  organization 
as  existing  at  the  time  of  the  adoption  of  this  Code,  shall  continue  government. 
until  superseded  or  modified  in  conformity  with  the  provisions  of 
said  Code. 


ARTICLE   YIL 

FIRE    DEPARTMENT    OF    SAVANNAH. 

Section.  I  Section. 

4782.  Savannah  Fire  Company.  4784.  Election  and  duty  of  officers. 

4783.  May  purchase  and  hold  property,      j        4785.  Other  companies  may  be  estab'd. 

§4782.  The  corporation  known  as  the  "  Savannah  Fire  Com-     Fire  com- 
pany," and  their   successors,  shall  continue  to  exist   under  said  fhSr  succes- 
corporate  name,  and  under  that  name  to  sue  and  be  sued,  plead  ®'*^^- 
and  be  impleaded,  ansv/er  and  be  answered  to,  in  any  and  ail  the 
Courts  of  this  State,  and  to  have,  exercise  and  enjoy  all  the  pow- 
ers granted  to  them  not  repugnant  to  the   Constitution   of  the 
United  States  and  of  this  State. 

§4783.   Said  corporation  shall  continue  invested  with  power  to      May  pur- 
hold  all  funds  and  property  now  belonging  to  it,  and  such  addi-  ^Tf  preop- 
tions to  said  funds  or  property  as  may  hereafter  be  made,  and  to  ^^^^' 
purchase  and   hold  real  and  personal  estate  ;  and  also  to  receive 
all  donations,  legacies  and  bequests  which  may  be  made  to  it,  to  be 
held,  used  and  enjoyed  for  the  purposes  following,  that  is  to  say, 
that  the  rents,  interests  and  profits  of  all  such  property  which  said 
corporation  may  purchase  or  be  interested  in,  and  the  interests  of  iiow'^*'a^* r~ 
all  loans  which  it  has  made  or  shall  make,  shall  be  used  and  ap-  priated. 
plied  to  the  purpose  of  relieving  the  distresses  of  its  members,  and 
to  and  for  no  other  use  or  purpose  whatsoever. 

§4784.  Said  corporation  shall  elect  their  officers  in  the  manner     May  elect 
pointed  out  in  the  ordinances  of  the  City  Council  of  Savannah,  ^ 
and  nothing  herein  contained  shall  be  so  construed  as  to  make     uotinde- 
said  Fire  Company  independent  of  said  City  Council ;  but  that  it  giJ^^c"onncn 
shall  continue  to  be  subject  to  the  same  control  of  the  City  Coun- 
cil as  that  body  has  heretofore  exercised  over  it.     Said  Fire  Com- 
pany shall,  on  the  first  Monday  in  January,  annually,  report  to  shaii  report 
the  City  Council  of  Savannah  what  property  they  have  purchased  f^^^j^nuar^ 
or  become  interested  in,  what  loans  they  have  made,  the  state  of  annaaiiy. 
their  funds,  what  disbursements  they  have  made,  and  for  what  be- 
nevolent purposes. 


944    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 

Article  8. — Collection  of  Rents,  Recovery  of  Possession,  etc. 


§  4785.  The  Major  and  Aldermen  shall  have  power  to  appoint 

Mayor  and  such  officers  and  agents,  and  make  such  rules  and  regulations  for 

may  ^e™ab^  such  appointments,  and  for  the  keeping  up  of  an  efficient  force 

lish     other  foj.  preventing  and  extinguishing  fires  in  said  citv,  as  the  said 

fire    compa-  '-  .^  o  o  J  7 

nies.  Mayor  and  Aldermen  shall  deem  expedient ;  but  nothing  herein 

contained  shall  be  construed  to  repeal  the  charter  of  any  fire  com- 
pany now  existing  by  law. 


ARTICLE    VIII. 

COLLECTION   OP  RENTS,  RECOVEPtY   OF   POSSESSION,  ETC. 


Section. 

4786.  Distress  for  rent. 

4787.  Claim  to  property  distrained. 

4788.  Lien  of  distress  warrants. 


Sectiox. 

4789.  Dispossessing  tenant. 

4790.  Warrant,  how  obtained — defenses. 

4791.  Contracts  for  rent  bear  interest. 


§  4786.  Rent  due  by  any  person  or  persons,  for  lands  or  tene- 
trSfon^^^^  ments  lying  within  the  city  of  Savannah,  or  the  precincts  thereof, 
may  be  recovered  by  distress  warrant,  issuing  on  the  affidavit  of 
Warrant—  the  porson  claiming  the  same,  his  agent,  or  attorney  at  law,  or  in 
sued  Tnd  to  fact,  for  the  sum  claimed  to  be  due.     If  such  sum,  exclusive  of 
7ecSd.    ^^'  interest,  do  not  exceed  fifty  dollars,  such  affidavit  must  be  made 
before  a  Justice  of  the  Peace,  and  the  warrant  be  issued  bv  such 
Justice,  and  be  directed  to  and  executed  by  any  lawful  Constable 
Advertise-  of  the  Couuty  and  levied  on  any  property  of  the  defendant ;  and 
saS*     ^^^  ^^-^^  advertisement  and  sale  shall   be   as  in   other  cases   of  sale 
under  execution.     If  the  rent  shall  exceed  fifty  dollars,  besides 
If  rent  ex- interest,  the  affidavit  must  be  made  before  the  Judge  of  the  Supe- 
cee  s$o  .    ^.^^  Court  or  Judge  of  the  City  Court  of  Savannah,  or  any  of  the 
Justices  of  the  Inferior  Court  of  Chatham  County,  who  shall  issue 
a  warrant  authorizing  the  SheriiF  of  the  City  Court  of  Savan- 
nah, or  any  lawful  Constable  of  said  'city,  to  distrain  on  any  prop- 
erty belonging  to  the  defendant,  and  to  advertise  and  sell  the 
same  as  in  cases  of  execution  on  judgment ;  but  in  every  case  of 
Eepievy—  l^vy  uudcr  this  Section  a  replevy  shall  be  allowed,  when  the  de- 
how  made,    fendaut  or  his  agent  shall  make  oath  that  the  rent  claimed,  or  some 
part  thereof,  is  not  due,  and  shall  give  security  for  the  eventual 
condemnation  money;  and  in  that  case,  the  levying  officer  shall 
return  the  papers  to  the  Court  having  jurisdiction,  and  the  issue 
trilT^^'^°^  thus  tendered  shall  be  there  tried  and  determined  by  a  jury,  as  in 
cases  of  claim ;  and  in  case  of  verdict  for  the  plaintiff,  judgment 
shall  be  entered  up  s^nd  execution  issued  against  principal  and  secu- 
rity, as  in  cases  of  n^peal. 

§  4787.  When  property  distrained  shall  be  claimed  by  a  third 
Claim  to  persou,  tlio  claim  shall  be  on  oath  of  such  person,  or  his  agent, 
property,    and  shall  be  put  in,  returned,  and  determined,  as  in  other  cases  of 
claim. 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    945 

Article  8. — Collection  of  Rents,  Recovery  of  Possession,  etc. 
§4788.  No  preference  shall  be  2;iven  to  persons  distraining  for   Lienofdis- 

'^-  ,^.  .     ^  ,-i;i  r^  tress       war- 

rent,  where  there  is  a  judgment  against  the  person  or  property  so  rant. 

distrained;  but  the  lien  of  such  distress  warrant  shall  be  the  same 

as  the  lien  of  a  judgment  on  the  property  of  the  defendant.     And  iJ^^to^  pay 

where  any  person  leasins;  or  rentins;  any  lot  or  lots,  tenement  or  and  deiwer 

•  ,1  '       ji  -r         f    CI  1         1      n    f    -1     ,  ,1  i   possession 

tenements,  withm  the  city  oi  bavannah,  shall  tail  to  pay  the  rent  may  be  dis- 
when  the  same  shall  become  due,  [or]  (a)  shall  refuse  to  deliver  p^^^^"*^*^*^- 
possession  to  the  lessor,  at  the  expiration  of  his  lease  or  contract 
for  rent,  the  Judge  of  the  Superior  Court,  or  any  one  of  the  Jus- 
tices of  the  Inferior  Court  of  Chatham  County,  or  the  Judge  of 
the  City  Court  of  Savannah,  may  issue  a  writ  of  possession,  di- 
rected to  the  Sheriff  of  the  City  Court  of  Savannah,  or  any  law- 
ful Constable  of  said  city,  commanding  said  Sheriff  or  Constable 
to  deliver  possession  of  the  premises  to  the  lessor — which  writ 
shall  be  by  such  officer  immediately  executed  and  returned. 

§  4789.  The  application  to  a  Judge  or  Justice,  under  the  pre-  muft^^make 
ceding  Section  must  be  on  the  affidavit  of  the  party  applying,  or  o^^^i^- 
his  attorney,  or  agent;  but  when  the  tenant  shall  declare,  on  oath 
in  writing,  that  his  lease,  whether  oral  or  WTitten,  is  not  expired, 
or  that  he  does  not  hold  the  premises  either  by  lease  or  rent  from 
such  person  making  such  application,  or  by  any  one  holding  under 
him  by  rent  or  otherwise,  [or  where  the  landlord  shall  seek  to 
remove  the  tenant,  on  the  ground  that  the  rent  is  due  and  remains 
unpaid,  if  the  tenant  will  make  affidavit  that  the  rent  claimed  is 
not  due,]  (a)  he  shall  not  be  removed  from  the  possession  of  said 
premises,  but  the  Sheriff  or  Constable  shall  return  the  proceed- 
ings to  the  next  [City  Court  of  Savannah,  unless  the  same  shall 
be  held  within  ten  days ;  in  that  case,  they  shall  return  the  pro- 
ceedings to  the  next  term  thereafter,]  (b)  and  the  fact  shall  be 
there  tried ;  but  if  determined  against  the  tenant,  he  shall  pay  double 
the  rent  reserved  or  to  be  due,  and  the  party  entitled  to  posses- 
sion shall  immediately  be  put  in  possession  by  order  of  said  Court; 
but  the  tenant  making  oath  in-order  to  retain  possession  shall  not 
■be  entitled  to  retain  possession,  except  on  giving  bond  and  good 
security,  to  be  approved  of  by  the  Sheriff  or  Constable,  condi- 
tioned for  paying  double  the  rent  reserved,  or  to  be  due,  if  the 
proceedings  in  the  City  Court  shall  be  determined  against  such 
tenant — and  said  bond,  when  so  taken,  shall  be  returned  into 
Court  with  the  other  proceedings ;  [and  when  the  jury  shall  find 
against  the  tenant,  and  assess  the  amount  of  double  rent,  the 
plaintiff  may  enter  up  judgment  at  once  against  the  tenant  and 
his  security  on  the  bond,  in  the  same  manner  that  judgment  may 
now  be  entered  up  against  the  principal  and  his  security  upon  ap- 
peal.] (a) 

§  4790.   Contracts  for  rent,  whether  oral  or  written,  shall  bear     Contracts 
interest  from  the  time  the  rent  becomes  due ;   and  all  actions  for  interest.  ^'^^ 

(a)  Acts  of  1865-6,  p.  35.    (b)  Acts  of  1866,  p.  57. 

60 


946    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 

Article  9. — Party  Walls  and  Fences. 

recovery  of  rent  in  arrear,  before  any  Court  within  the  city  of 
Savannah,  shall  be  triable  at  the  first  term  of  the  Court  to  which 
the  action  is  returnable. 


ARTICLE    IX. 


PARTY      WALLS     AND      FENCES. 


Section. 

4791.  Agreements  to  build  party  walls. 

4792.  Building  by  one  party  alone. 


Section. 

4793.  Repairing  by  one  alone. 

4794.  City  Council  may  further  regulate. 


§4791.  [Whenever  owners  of  adjoining  lots,  or  parts  of  lots  of 
Contractsto  land,  in  the  citv  of  Savannah,  shall,  in   writino-   a^ree  to  build  a 

build  "Dd  re-  "^  .  O'      o 

pair  '  party  party  wall  or  fence  on  the   line  of  the  respective  owners,  and  to 
Snces.   ^"^^  keep  the  same  in  repair,  said  owners  may  record  such  agreement 
in  the  Clerk's  ofiice  of  the   Superior   Court  of  Chatham  County, 
within  the  time  and   on  the  terms  for  recording  conveyances  of 
real  estate;  and  such  agreement,  so  recorded,  shall  operate  as  a 
covenant  with  the  land,  and  shall  be  binding  on  said  respective  own- 
ers and  their  heirs  and  assigns ;  and  the  same  effect  shall  be  given 
to  a  similar  agreement  for  the   repairing   only  of  a  party  wall  or 
fence,  such  agreement  being  properly  recorded  as  aforesaid.]  (a) 
§4792.  [Whenever  the  owner  of  a  lot,  or  part  lot  of  land,  in 
One  may  g^id  citv,  shall  dcsirc  to  put  up  a  wall  or  fence  on  the  line  of  such 

build   alone,  i  ,..,.       ^.      p-*^  t«-  i 

on  notice  to  lot,  or  part  lot,  dividing  it  irom  an  adjoining  lot,  or  part  lot,  on 
erown  .  ^^^  contiguous  line  of  which  there  may  be  no  wall  or  fence,  such 
owner  so  desiring  to  build  may  give  twenty  days'  notice  to  the 
adjoining  owner,  or  his  agent,  of  such  desire  to  build,  and  if  such 
adjoining  owner  shall  neglect  or  refuse  to  join  in  the  expense  of 
building  and  keeping  in  repair  such  wall  or  fence,  then  the  party 
giving  such  notice  shall  be  entitled,  and  is  hereby  authorized,  to 
put  up  and  build  such  wall  or  fence,  of  the  usual  thickness  and 
with  the  proper  foundation,  partly  upon  his  own  ground  and  partly 
upon  the  adjoining  ground,  on  application  to,  and  permission 
granted  by,  the  City  Council  of  said  city  of  Savannah ;  and  in 
this  case,  when  the  other  owner  is  desirous  of  building  or  using 
such  wall  or  fence,  he  may  use  so  much  thereof  as  may  be  neces- 
sary by  paying  to  the  builder,  or  his  heirs  or  assigns,  one-half  of 
its  value,  and  then  the  two  owners  shall  become  joint  owners  of 
said  party  wall  or  fence,  and  be  equally  .bound  for  all  necessary 

Builder  may  repairs.     Such  half  value   mav  be  recovered  bv  the  builder,  his 

recover  half.    \  .  «^  p-i-i-j 

value  of  wall  neirs,  or  assigns,  irom  the  party  so  as  aioresaid  using  the  said 
wall  or  fence,  after  it  shall  have  been  built  as  aforesaid,  by  action 
in  any  Court  of  competent  jurisdiction;  and  such  cause  of  action 
shall  be  a  lien  on  such  adjoining  lot,  or  part  lot,  until  payment  of 
said  half  value;  provided,  always,  that  nothing  herein  contained 
shall  be  so  construed  as  to  authorize  any  person  to  put  up,  build, 

(a)  Acts  of  1866,  pp.  194-5. 


— when. 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    947 

Article  10. — Cemeteries  iu  and  near  Savannah. 

or  erect,  any  wall,  fence,  or  other  structure,  in  said  city,  contrary 
to  a  fire  or  other  lawful  ordinance  of  Savannah.]  (a) 

§4793.   [In  any  case  where  there  shall  be  a  dividing  fence  be-     One  party 
tween  two  lots,  or  part  lots,  in  said  city,  which  may  require  repair,  XL  '^^and 
the  party  refusing  to  pay  his  just  proportion  of  expenditure  ^^^  l^ther'^lo  mj 
any  necessary  repair  made   by  the  other   party  for  the  benefit  of  jpst  propor- 
both,  may  be  compelled  to  pay  such  proportion  at  the  suit  and  on 
the  recovery  of  such   other  party  before  any  Court  of  competent 
jurisdiction;    provided^  it  be  shown  on  the  trial  that  the  said  re- 
fusing party  was  duly  notified  of  the  necessity  of  such  repair,  and 
by  himself,  or  his  agent,  declined  to  pay  said  proportion.]  (a) 

§4794.  The  Cit}^  Council  of  Savannah  is  authorized  to  make,  cityCoun- 
by  ordinance,  such  further  rules  and  regulations  concerning  di-  further  niies 
viding  walls  and  fences  as  are  not  in  conflict  with  this  Article,  or  ?no- wauZ^*^' 
with  the  Constitution  and  1-aws  of  this   State.]  (a) 


ARTICLE   X, 

CEMETERIES     IN     AND      NEAE      SAVANNAH 


Section. 

4795.  Owners  and  keepers  of  cemeteries. 

4796.  Interments  to  be  reported. 

4797.  Owners,  etc.,  failing  in  diity. 


Section. 

4798.  Exemptions  from  jury  duty. 

4799.  Acts  continued  in  force. 


§4795.  It  shall  be  the  duty  of  each  and  every  owner  or  keeper  ownersand 
of  a  cemetery  (other  than  a  private  cemetery  or  burial  place),  cemS-ies.^^ 
within  five  miles  of  the  extended  limits  of  the  city  of  Savannah, 
to  keep  a  correct  record,  or  registry,  in  a  well  bound  book,  of  all 
interments  made  by  him,  or  his  assistant  or  assistants,  of  the  re- 
mains of  any  deceased  person,  showing  his  or  her  name,  nativity, 
age,  place  of  residence,  and  death,  day  of  burial,  disease  or  acci- 
dent occasioning  the  death  of  the  deceased,  and  the  name  of  the 
attending  physician,  if  any. 

§  4796.  Each  and  every  such  person  owning  or  keeping  a  ceme-   interments 
tery,  as  aforesaid,  shall  make  out  and  hand  to  the  Clerk  of  Coun-  S  SonXiy." 
cii  of  Savannah  a  regular  monthly  report  of  all  interments  made 
by  him,  or  by  his  assistant  or  assistants,  of  all  deceased  persons 
dying  within   the  city  of  Savannah,  or   elsewhere,  and  buried   as 
aforesaid,  and   make  out  and  furnish  a  weekly  report  of  such  in- 
terments to   the   Secretary  of  the  Board  of  Health  of  said  city,     Weekly 
whenever   said  board   shall  meet  weekly,  and   monthly  when  its  ^-po^*^- 
meetings  shall  be  monthly. 

§4797.  Any  person  offending  against  any  of  the  provisions  of  penaityfor 
the  two  immediately  preceding  Sections  shall,  on  conviction  before  ^'Jj^^f  J{^^ 
the  Police  Court  of  Savannah  (which  is   hereby  invested  with  ju-  thetwopre- 
risdiction  in  all  such  cases),  be  fined  in  the  sum  of  thirty  dollars  uoes.' 
for  each  and  every  offense — one-half  of  the  fine  to  the  informer, 
and  the   other   half  to  the  corporation  of  Savannah;  but  the  de- 


(a)  Acts  of  1866,  pp.  19-1-5. 


948    APPENDIX. — Laws  in  Refeeexce  to  the  City  of  Savaxxah. 


Article  11. — City  Court  of  Sayannah. 


fendant  may  appeal  from  the  decision  of  said  Police  Court  to  the 
Major  and  Aldermen  in  council  assembled,  under  such  rules  and 
regulations  as  are  prescribed  by  law. 

§4798.  Trie  keepers  of  public  cemeteries  in  and  near  Savannah 
em^T^from  ^hall  bc   exempt  from   jury  duty  in   the   Superior   and   Inferior 
inrydiity.     Courts  of  Chatham  County,  and   in  the  City  Court  of  Savannah. 
§4799.  The  Act  of   27th  December,   1847,  incorporating  the 
Actsof  1847  Evergreen   Cemetery  Company  of  Bonaventure,  and  so   much  of 
continued^^  the  Act  of  IBch  February,  1854,  as  refers  to  the  cemetery  for  the 
deceased  members  of  the  Roman  Catholic  congregation  worship- 
ping in  the  city  of  Savannah,  are  continued  in  full  force. 


ARTICLE   XL 


CITY      COURT      OF      SAVAITNAH. 


Section. 

4800.  A  court  of  record. 

4801.  Jurisdiction, 

4802.  Judges — election  and  term  of  office. 

4803.  Election— when  held. 

4804.  Vacancies — how  filled. 

4805.  Failure  to  elect. 

4806.  Judge's  salary. 

4807.  His  oath. 

4808.  Solicitor  General — his  fees. 

4809.  Clerk  and  Sheriff. 

4810.  Confession  of  judgment. 

4811.  Habeas  corpus. 

4812.  Claims  and  mortgages. 

4813.  Session  of  Court — trial  first  term. 

4814.  Suits — how  commenced. 

4815.  Lien  of  judgments. 

4816.  Adjournments  of  Court, 

4817.  Production  of  papers. 

4818.  E;ules  of  practice. 

4819.  Jurisdiction  and  power. 

4820.  Parties  may  select  Judge— when. 

4821.  Answer — when  and  how  filed. 

4822.  Verdicts,  confessions,  and  appeals. 

4823.  Sales  under  execution. 

4824.  Judgments— Avhen  entered, 

4825.  Stay  of  execution. 

4826.  Claims  to  real  property. 
.  Bail — how  sued  out  and  served. 
.  Attachments. 

4829.  By  whom  issued. 

4830,  Judgment — to  whom  directed, 

4831.  By  whom  levied. 

4832.  Declaration— when  filed. 

4833,  Garnishments, 

4834.  How  sued  out  and  served. 

4835,  Notice — how  served. 

4836,  Parties — how  made. 

4837,  Scire  facias — how  served, 

4838,  Witnesses,  interrogatories. 

4839.  Testimony  de  bene  esse. 

4840.  Judge  may  attest  deed,  etc. 


Section. 

4841.  Judge,  Clerk,  and  Sheriff's  duties, 

4842.  Oath  of  Clerk  and  Sheriff, 

4843.  May  sue  and  be  sued — process. 

4844.  Attorney's  fees. 

4845.  Attachment  by  Clerk. 

4846.  Records  and  minutes, 

4847.  Jurors — how  selected,  etc. 

4848.  How  drawn, 

4849.  Persons  subject  to  serve, 

4850.  Jury  boxes  and  keys. 

4851.  Defaulting  jurors. 

4852.  Not  to  serve  longer  than  one  week, 

4853.  Perishable  propertj'  levied  on. 

4854.  Certiorari  proceedings. 

4855.  Sheriff  may  appoint  deputy. 

4856.  Judge  may  appoint  Bailiffs. 

4857.  Constable's  duty  and  fees. 

4858.  Fees  of  Sheriff,  etc. 

4859.  Summary  proceedings. 

4860.  Notice  of  hearing. 

4861.  Powers  of  Court  in  such  cases. 

4862.  Persons  subject  to  such  process. 

4863.  Clerk,  Sheriff,  and  Bailiff's  duty. 

4864.  Vexatious  arrests. 

4865.  Arrests  under  civil  process. 

4866.  Hearing  and  return. 

4867.  Witnesses  and  examination. 

4868.  Appeal  not  allowed, 

4869.  Salary  of  Solicitor  General, 

4870.  Money  arising  from  fines  etc, 

4871.  Justices  of  the  Peace. 

4872.  Peace  warrant  and  bond. 

4873.  Jury  fees— attorney's  liability. 

4874.  Clerk  and  Sheriff's  fees. 

4875.  Insolvent  debtors, 

4876.  Balance  du.e  defendant. 

4877.  Rules  of  practice. 

4878.  Continuances. 

4879.  Jailor's  duty. 

4880.  Sheriff's  statement  to  Judge. 

4881.  Sentence  and  punishment. 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    949 

Article  11. — City  Court  of  Savannah. 

§4800.   The  City  Court  of  Savannah,  by  that  name,  and  as  a     Name  and 
€ourt  of  Record  in  the  city  of  Savannah,  shall  continue  to  exist,  court  of  Ee^ 
and  shall  have  cognizance  of  civil  cases,  not  involving  title  to  real  ^'^'^'^' 
estate,   where   the  damages  or  cause  of  action   shall  not  exceed 
the  sum  of  [one  thousand]  (a)  dollars,-  exclusive  of  interest,  and 
shall  be  above  the  jurisdiction  of  a  Justices'  Court ;  and  cases  of 
tort,  where  the  damage  claimed  shall  not  exceed  [one  thousand]  (a) 
dollars  ;  and  the  said  Court  shall  have  criminal  jurisdiction  of  all 
minor  offenses  committed  within  the  jurisdictional  limits  of  the 
city  of  Savannah,  and  which  do  not  subject  offenders  to  confine- 
ment in  the  penitentiary,  and  of  such  other  cases  as  may  be  here- 
inafter provided  for. 

§4801.   The  ordinary  civil  jurisdictional  limits  of  said   Court      Ordinary 
shall   embrace  the  corporate  limits  of  the  city  of  Savannah,  now  SltioJ""^' 
and  hereafter  established,   and  its  criminal  jurisdictional   limits 
shall  embrace  the  entire  jurisdictional  limits  of  said  city  as  now 
fixed  and  hereafter  to  be  fixed  by  law. 

§4802-   The  Mayor  and  Aldermen  of  the  city  of  Savanaah  shall  ,    Judge— 
have  the  election,  by  ballot,  of  the  Judge  of  said  Court,  who  shall  term  of  of- 
hold  his  office  for  three  years,  and  until  his  successor  is  elected  ^^®" 
and  qualified,  unless  sooner  removed  by  the  Governor,  on  the  ad- 
dress of  two-thirds  of  both  branches  of  the  G-eneral  Assembly  for 
that  purpose.     He  shall   be  commissioned   by  the  Governor,  on 
proof  of  his  election,  under  the  hand  of  the  Clerk  of  Council,  and 
seal  of  the  city  of  Savannah. 

§  4803.  The  next  regular  election  of  Judge  of  said  Court  shall    Eiection- 
be  at  the  first  regular  meeting  of  the  City  Council  of  Savannah, 
in  January,  in  the  year  eighteen  hundred  and  sixty-three,  and 
regular  elections  for  Judge  of  said  Court  shall  be  every  three 
years  thereafter,  but  the  present  organization  of  said  Court  shall 
continue  until  the  Judge  or  other  officers  thereof  shall  be  displaced 
or  superseded  by  law,  and  the  City  Council  of  Savannah  shall  vacancies— 
have  power  to  fill  all  vacancies  in  such  ofiices  occurring  from  death,  ^^^     ^  " 
resignation,  or  otherwise. 

§  4804.  Should  a  vacancy  in  the  office  of  Judge  of  said  Court,     vacancies 

,-,,  .  .  '^    ^  .  -i      n  1  '  ^      n  occurring  be- 

oy  death,  resignation,   or  otherwise,   occur   betore  the   said  nrst  fore  the  first 
meeting  in  January,  eighteen  hundred  and  sixty-three,  the  said  ises  —  S^ow 
Mayor  and  Aldermen  shall,  at  their  first  regular  meeting  after  ^^^^' 
such  vacancy  shall  have  occurred,  proceed  to  elect  a  Judge  to  fill 
such  vacancy;  and  whenever  a  vacancy  shall  occur  thereafter,  from 
any  cause,  the  said  Mayor  and  Aldermen  shall,  at  their  first  meet- 
ing, elect  a  Judge  to  supply  such  vacancy. 

§4805.  Should  the  said  Mayor  and  Aldermen  fail  to  elect  a  Failure  to 
Judge  at  the  time  appointed  for  a  regular  election,  it  shall  be  law-  ^^^  ^  ^^^^ 
ful  for  them  to  elect  at  their  next  regular  meeting. 

§4806.   The  Judge  of  said   City  Court  shall   have   an  annual       Judge's 
salary  [of  two  thousand  dollars]  (a)  that  shall  not  be  increased  or  ^^^^''^' 

(a)  Acts  of  1866,  p.  57. 


950    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 

Article  11. — City  Court  of  Savannah. 


diminished  during  his  continuance  in  office,  which  salary  shall 
be  paid  in  monthly  installments,  out  of  the  City  Treasury  of  Sa- 
vannah. 

§  4807.  He  shall,  before  entering  on  the  duties  of  his  office. 
His  oath,  take  and  subscribe  an  oath  faithfully  and  impartially  to  discharge 
such  duties  to  the  best  of  his  abilities  and  understandinsr,  and 
agreeably  to  the  Constitution  of  this  State  and  the  Constitution 
of  the  United  States,  and  to  support  said  Constitutions,  and  said 
oath  shall  immediately  thereafter  be  forwarded  to  the  Governor, 
and  filed  in  the  Executive  Department. 

§  4808.  The  Solicitor  General  of  the  Eastern  District  shall  pros- 
soiicitor  ecute  for  all  offenses  cognizable  before  said  Court,  but  in  his  ab- 

Gr  e  n  e  r  a  1 -  ^  ,  .    . 

who  shall  be.  scncc,  the  Judge  shall  have  power  to  appoint  a  Solicitor  General, 
mo  temipore^  who  Kshall  receive  the  same  fees  as  are  allowed  by  law 
His  fees.    ^^  ^|-^g  Solicitor  General  in  all  cases  conducted  by  him. 

§  4809.  The  Clerk  and  Sheriff  of  said  Court  shall  be  elected  bv 
Clerk  and  Said  Mayor  and  Aldermen  for  such  term  respectively,  and  under 
eiection!^^^^  such  qualification  and  other  rules  and  regulations  as  they  shall 
prescribe,  [and  the  Sheriff  of  said  Court  may  appoint  one  or  more 
deputies,  at  his  discretion,  and  he  shall  have  the  same  authority 
to  execute  criminal  warrants  as  is  now  vested  in  the  Sheriff  of 
the  County  of  Chatham.]  (a) 

§4810.  No  confession  of  judgment  shall  be  entered  up  in  said 

Confession  Court,  unlcss  the  defendant  resides  in  the  corporate  limits  of  Sa- 

o  ju  gmen .  ^j^^^j^^]^^  ^^^  unlcss  the  causc  shall  have  been  regularly  sued  out 

and  docketed,  nor  until  such  cause  is  called  in  order  by  the  Court 

for  trial. 

§  4811.  The  Judge  of  said  Court  shall  have  power  to  issue  writs 

EabmBcor-  of  Jiaheas  coTj^us^  and  to  hear  and  dispose  of  the  same,  in  all  cases 

of^the  Court  arisino"  or  occurring  within  the  iurisdictional  limits  of  Savannah, 

mreiationto  ^j^  the  Same  Way  and  with  the  same  powers  as  the  Judge  of  the 

Superior  Court,  and  to  discharge,  admit  to  bail,  or  remand  to  jail 

any  prisoner,  according  to  his  discretion  and  the  law  of  the  land, 

but  nothing  herein  contained  shall  be  construed  to  lessen  or  take 

away  the  powers  of  the  Judge  of  the  Superior  Court,  or  Judge 

of  the  County  Court  of  Chatham  County. 

§  4812.   The  said  City  Court  shall  have  jurisdiction  of  all  claim 
Jurisdiction  cases  whcre  personal  propertv  is  levied  on  under  execution,   or 

in  claim         ,  J-„  •  \      A  t        ^^  '         t 

cases.  other  process  from  said   Court ;   and  all  mortgages  upon  personal 

property,  for  an  amount  within  the  jurisdiction  of  said  Court, 
may  be  foreclosed  by  the  Judge  of  the  same,  in  the  same  way  or 
manner  as  in  the  Superior  Court,  and  all  subsequent  proceedings 
Mortgages,  thcrcon  shall  be  in  said  City  Court,  and  such  as  are  conformable 
to  the  general  law  of  the  State. 

§  4813.  The  sessions  of  said  Court  shall  be  held  on  the  first 

Sessions.    Monday  in  February,  May,  July,  and  November  of  every  year, 

term!    ^     and  all  causes,  except  attachments,  shall  be  triable  at  the  first 

(a)  Acts  of  1866,  p.  57. 


APPENDIX. — Laws  in  Refekence  to  the  City  of  Savannah.    951 

Article  11. — City  Court  of  Savannah. 

term.  [The  Judge  of  said  Court  may,  in  his  discretion,  hold 
monthly  sessions,  for  the  trial  of  criminal  cases,  and  to  draw  Grand 
and  Petit  Jurors  for  said  monthly  sessions,  either  in  term  time  or 
vacation.]  (a) 

S4814.  AH  suits  in  said  Court  (except  attachment  cases)  shall   Suits-how 

T  1  1      p  1  1-1      commenced 

be  commenced  at  least  lourteen  days  beiore  the  term  to  which  and  proae- 
they  are  returnable,  and  the  process  shall  be  served  on  the  defen- 
dant at  least  ten  days  before  the  session  of  the  Court.  Suits  shall 
in  other  respects  be  conformable  to  the  mode  of  proceeding  in  the 
Superior  Courts,  but  the  process  shall  be  annexed  by  the  Clerk  of 
said  City  Court,  be  tested  in  the  name  of  the  Judge  thereof,  and 
be  directed  to  and  served  by  the  Sheriif  thereof. 

§4815.  All  judgments  obtained  in  said  Court  shall  be  a  lien  Lien  of  judg- 
on  all  property  belonging  to  the  defendants  throughout  the  State, 
but  property  exempt  from  levy  and  sale  under  the  general  law  of 
the  State  shall  be  exempt  from  levy  and  sale  under  process  from  Exemptions. 
said  Court ;  and  all  executions  shall  be  tested  in  the  name  of  the 
Judge,  issued  and  signed  by  the  Clerk,  directed  to  the  Sheriif  of 
the  City  Court  of  Savannah,  and  all  and  singular  the  Sheriffs  of 
the  State  of  Georgia,  and  may  be  levied  on  all  property  of  the  de-   Executions 
fendants  throughout  the  State  ;  but  the  Sheriff  of  said  City  Court  —tow     is- 
may  levy  all  such  executions  on  property  within  any  part  of  the 
County  of  Chatham. 

§  4816.  In  the  absence  of  the  Judo;e  of  said  Court  from  indis-      Adjourn- 
position  or  otherwise,  it  shall  be  the  duty  of  the  Clerk  or  Sheriff  court, 
of  the  same  to  open  and  adjourn  said  Court  to  such  day  as  the 
Judge  may,  in  writing,  direct. 

§  4817.  The  said  Court  is  empowered  to  compel  the  production  Maycompei 
of  books,  papers,  and  w^ritings,  in  the  possession  of  any  party  to  tio^no^booS 
a  suit  in  said  Court,  containing  evidence  pertinent  to  the  cause  in  Papers,  etc. 
question,   under  the  rules   and  regulations  provided  by  law  for 
other  Courts  of  Record. 

§4818.  The  mode  of  conducting  proceedings  in  said  Court,  and    Euiesof 
carrying  to  trial  suits  therein,  shall  be  the  same  as  in  the   Supe-  ^^^^  ^^^' 
rior  Court,  except  as  may  be  otherwise  herein  provided. 

§  4819.  The  Judge  of  said  City  Court  shall  have  power  and  au-  jurisdiction 
thority  to   hear   and  determine  all  civil  causes  of  which  the  said  ^^^^^  '^^^^' 
Court  has  jurisdiction,  and  to  give  judgment  and  award  execution 
thereon  ;   provided,  always,  that  either  party  in  any  cause  shall 
be  entitled  to  a  trial  by  jury,  upon  entering  a  demand  therefor,  in    Triaiby 
writing,  on  or  before  the  call  of  the  docket  of  said  Court  at  the  ^^^^' 
term  to  which  the  cause  is  returnable. 

§4820.    [Whenever,   in    any   case   now  pending  or  hereafter        Parties 
brought  to  said  Court,  the  Judge  thereof  shall,  from  any  cause,  ™torBey*'for' 
be  disqualified  from  presiding,  the  parties  litigant,  or  the  respect-  '^'^^^s^- 
ive  counsel,  may  select  any  attorney  practicing  in   said  Court  to 

(a)  Acts  of  1866,  p.  57. 


952    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 

Article  11. — City  Court  of  Savannah. 

preside  in  such  case,  and  the  Judge  shall  have  such  consent  en- 
tered on  the  minutes ;  and  the  attorney  so  selected  shall  exercise 
all  the  functions  of  Judge  in  such  case.]  (a) 

§  4821.   The  defendant  shall  file  his   answer  in  writing,  on  or 

Answer—  bcforc  the   Opening  of  the  Court,  at  the   return  term  of  the  suit, 

howfiied!"    and  the  pleadings  shall  conform  to  the   general  law  of  the  State. 

In  case  of  default,  the  same  shall  be  noted  on  the  docket ;  and 

Defauitand  [^   such   casc,  the  plaintiff  shall  be  entitled  to  proceed  ex  parte. 

thereon.  °  and  cstablish  his  demand,  upon  the  proof  thereof,  at  such  return 

term.  V 

§  4822.  In  every  case  where  a  verdict  may  be  rendered  by  a 
Verdict  and  ]|;j  J.  Y   or  whcrc  a  lurv  trial   may  have   been  demanded,  and  either 

confession  of  ^^  in  c  •      ^  •  i  •     ^ 

judgment,     party  shall  confess  judgment,  reserving  the   right   to  appeal,  an 
appeal  may  be  entered  by  either  party  to  a  special  jury  in  said 
Appeal  and  ^^^J  Court,  as  in  cascs  of  appeal  in  the   Superior  Court;  and  the 
trial  thereof,  game  shall  be  there  tried,  under  the  rules  and  regulations  applica- 
ble to  the  Superior  Courts. 

§  482E.  All  sales  of  property,  taken  under  execution  by  the 
Saiesofpro-  Sheriff  of  said  Court,  or  any  Sheriff  of  a  County,  shall  be  con- 
execution,    forinable  to  the  laws  of  the  State  regulating  Sheriff's  sales. 

§  4824.  The  party  in  whose  favor  a  verdict  shall  be  rendered, 
^Judgments  in  said  Court,  shall  be  allowed  to  enter  and  sign  judgment  thereon, 
where  enter-  at  any  time  within  four  days  after  the  adjournment  of  the  Court, 
^*^'  at  the  Clerk's  office,  for  the  amount  of  such  verdict  and  all  legal 

costs;  and  no  execution  shall  issue  on  such  verdict  until  such  judg- 
ment shall  be  entered  by  the  party  or  his  attorney. 

§  4825.  Stay  of  execution,  for  sixty  days,  may  be  had  in  the 
stayofexe-  Same  manner,  and  on  the  same  terms,  as  are  or  may  be  allowed  in 

cution  sixty  ,  i        n  •         r^  , 

days.  the  feuperior  Court. 

§  4826.  Claims  to  real  property,  levied  on  under  execution  issu- 
ciaimtoreai  lug  from  Said  Court,  shall  be  returned  to  and  tried  in  the  Superior 
property.  (Jourt  of  the  Couuty  where  such  real  property  may  be  situated ; 
and  such  claims  shall  be  put  in,  and  tried,  and  determined,  as  in 
other  cases  of  claim  in  such  Superior  Court.  Claims  to  personal 
property,  levied  on  under  execution  or  attachment  from  said  City 
Court,  shall  be  returned  and  tried  there  in  the  same  manner  as 
claims  to  personal  property  in  the  Superior  Court. 

§4827.  Bail  may  be  required  in  cases  originating  in  said  Court, 
Bail— how  in  the  same  manner  and  on  the  same  terms  as  in  cases  of  bail  in 

sued  out  and     ^        c\  •         r^  i  'ii*  •  ^  •  i 

served.  the  bupcrior  Court;  but  with  this  proviso,  that  in  any  case  about 
to  be  instituted  in  said  Court,  it  shall  be  lawful  and  sufficient  to 
serve  the  defendant  with  a  process  and  copy  of  the  affidavit,  as  in 
cases  of  bail  pending  the  action;  and  whenever  such  process,  with 
a  copy  of  the  affidavit  annexed,  and  a  copy  or  copies  of  such  pro- 
cess and  affidavit,  shall  be  placed  in  the  hands  of  the  Sheriff'  of 
said  Court,  he  shall  arrest  the  defendant  or  defendants,  and  serve 

(a)  Acts  of  1865-6,  p.  73. 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    953 

Article  11. — City  Court  of  Savannah. 

him  or  them  with  a  copy  or  copies  of  said  affidavit  and  process, 
and  deal  with  him  or  them  in  the  manner  prescribed  bj  the  laws 
of  the  State  in  regard  to  bail ;  and  the  subsequent  proceedings 
shall  be  as  in  other  cases.  In  every  bail  case  issued  under  the 
foregoing  proviso,  the  plaintiff  must  file  his  declaration  eight  days 
before  the  return  term  of  the  process,  or  lose  a  term ;  and  on  fail- 
ure to  do  so  during  such  return  term,  the  Court  shall,  on  motion, 
order  a  non-suit. 

§  4828.  All  acts  or  parts  of  acts,  already  or  hereafter  passed,     Attacii- 
upon  the  subject  of  attachment  and  garnishment,  or  legislating  as 
to  any  matter  whatever  in  the  Superior  Courts  of  this  State,  shall 
apply  to  said  City  Court,  as  if  named  with  the  Superior  Courts, 
so  far  as  the  nature  of  that  tribunal  will  admit. 

§  4829.  The  Judge  of  said  Court,  or  any  Alderm.an  of  said  city,  .  By  whom 
or  any  Justice  of  the  Peace,  or  I^otary  Public,  may  issue  attach- 
ments returnable  to  said  Court,  and  within  the  jurisdictional  amount 
of  the  same ;  but  such  attachments  must  be  issued  at  least  ten 
days  before  they  are  returnable,  and  levied  at  least  nine  days  be- 
fore such  return  term ;  and  no  judgment  shall  be  rendered  in  at-  thJeon™^"* 
tachment  until  the  term  after  the  return  term. 

§4830.  Such  attachments  shall  be  directed  to  the  Sheriff  of  the  Towhom 
City  Court  of  Savannah,  and  all  and  singular  the  Sheriffs  and 
Constables  of  this  State;  and  all  prior  and  subsequent  proceed- 
ings relative  to  such  attachments,  not  herein  expressly  mentioned 
or  specified,  shall  be  governed  by  the  laws  of  the  State  in  rela- 
tion to  attachments,  due  regard  being  had  to  the  nature  of  the 
different  tribunals. 

§4831.  The  Sheriff  of  the  City  Court  of  Savannah  may  levy    By  whom 
attachments  returnable  to  said   Court  in  any  part  of  Chatham 
County. 

§  4832.  The  declaration  in  attachment  may  be  filed  at  any  time  .    Deciara-  |: 

during  the  return  term   of  the  attachment ;  but,  on  failure  so  to  sied.   ^^  ^^  | 

file  it,  the  Court  shall,  on  motion,  dismiss  the  attachment.  | 

§  4833.   Said  Courts  shall  have  jurisdiction  in  all  cases  in  gar-      Garnish^  I 

nishment,  as  well  as  when  the  debt  of  the  garnishee  to  the  defend- SicWn  ^n  f 

ant  shall  exceed  as  when  it  shall  fall  short  of  the  jurisdictionaP^^*-'^"^'^**'* 
amount  of  said  Court ;  and  in  all  cases  of  suit  on  bail  or  attach- 
ment, claim,  or  other  obligations  or  bonds,  given  by  parties  to  any 
proceedings  issued  from  or  had  in  said  Court,  although  the  penal- 
ties of  said  bonds  may  exceed  the  jurisdiction  of  said  Court  by 
being  in  double  the  sum  sworn  to,  attached,  or  of  the  executions 
issued,  or  property  levied  on  ;  'provided^  the  original  cause  of  action 
upon  which  such  bonds  or  obligations  were  had  or  taken  did  not 
exceed  the  jurisdiction  of  said  Court. 

§  4834.  Garnishment  proceedings  in  said  Court  shall  be  con-  Gamish- 
formable  to  the  law  of  the  State  on  that  subject ;  but  the  sum- sued^^~~out! 
mons  must  be  served  on  the  garnishee,  personally,  ten  days  before  Jetumed.^"^ 
the  Court  to  which  the  garnishee  is  directed  to  appear ;  'provided, 


;t 


954    APPENDIX. — Laws  in  Eeference  to  the  City  of  Savannah. 

Article  11. — City  Court  of  Savannah. 


such  garnishee  shall  reside  in  the  County  of  Chatham,  or  not 
elsewhere  in  the  State ;  but  "where  the  garnighce  shall  reside  in 
any  other  County,  then  he  shall  be  summoned  and  served,  and 
shall  make  his  return,  and  all  other  proceedings  shall  be  had  in 
the  manner  pointed  out  in  the  general  law  of  the  State  for  non- 
resident garnishees ;  with  this  proviso,  however,  that  the  summons 
must  be  returnable  to  the  Superior  Court  of  the  County  of  the 
residence  of  such  garnishee,  and  further  proceedings  be  had  in  ^ 
said  Superior  Court.  " 

§  4835.  Any  notice  which  may  be  required  to  be  given  in  any 
Notice—  attachment  case  in  said  Court,  in  order  to  make  the  judgment  a 
served.^  ^™  lien  on  all  the  property  of  the  defendant,  or  otherwise,  may  be 
served  by  the  Sheriff  of  said  Court,  or  any  Constable  of  the  city 
Witnesses  of  Savannah ;  and  plaintiffs  in  attachment  may  examine  witnesses 
ofihl"Soun-  residing  out  of  said  city,  in  the  same  manner  or  under  the  same 
ty-  rules  and  regulations  prescribed  by  the  general  law  of  the  State. 

§  4836.  In  attachment  cases  in  said  Court,  ten  days'  notice  by 
hoyvm&Sr  scire  facias,  to  make  parties,  shall  be  sufficient. 

§  4837.  iScire  facias  to  make  parties  in  any  cause  in  said  Court 

Scirefacias  shall  be  had  as  in  the  Superior  Court ;  but  such  scire  facias  shall 

tie™^  *^^^  run  throughout   the   State,   and  may  be   served   by   any   Sheriff 

thereof;  and  service  ten  days  before  the  return  term  thereof  shall 

be  valid  and  sufficient. 

§  4838.   The  general  law  of  the  State  in  regard  to  witnesses 
Witnesses  and   their   attendance,   interrogatories,   sets-off,   affidavits   of  ille- 
tendance^.^ "  g^Hty,  arbitration,  and  the  examination  of  parties  to  suits  by  in- 
terrogatories, or  under  subpoena,  and  all  other  matters  of  a  judi- 
cial nature,  within  the  jurisdiction  conferred  on  said  City  Court, 
shall  be  applicable  to  said   City   Court,  respect  being  had  to  the 
nature  of  the  different  tribunals ;  but  subpoenas  shall  be  served  by 
the  Sheriff  of  said  Court,  or  a  Constable  of  said  city,  or  a  private 
Commission  persoti ;  and   a   commission   to   examine   witnesses  mav  issue  on 

to  take  tes-  ^,  ,  ,  .  ,  .  ,  .  '^ 

timony.        three  days   notice  to  the  opposite  party,  or  his  attorney. 

§  4839.  The  Judge  of  said  Court  shall  have  power  to  cause  tes- 
D6  bene    timony  to  be  taken  de  bene  esse,  in  all  cases  pending  in  the  same, 
^**^'  according  to  the  general  law  of  the   State,  due  regard  being  had 

to  the  nature  of  the  tribunals ;  and  the  said  Judge  and  other  offi- 
cers of  said  Court  shall  have,  respectively,  power  to  administer 
all  oaths  pertaining  to  their  respective  offices,  as  fully  as  the  Judge 
and  other  officers  of  the  Superior  Court  may  in  like  cases  do. 
§  4840.  [The  said  Judge  shall  also  have  power  to  attest  deeds 
Judge  may  and  otlior  papers,  and  administer  affidavits  in  all  cases  in  which,  by 

ttest  deeds         ..■'■•"■  .  .     . 

tc.  '  existing  laws,  such  papers  may  be  attested,  and  affidavits  adminis- 

tered by  the  Justices  of  the  Peace  of  the  County  of  Chatham.]  (a) 
§  4841.  All  the  duties  and  liabilities  attached  to  the  Superior 
and  Inferior  Courts,  and  to  the  Sheriffs  of  the  Counties,  shall  be 

(a)  Acts  of  1865-6,  p.  73. 


attest 
etc 


APPENDIX. — Laws  in  Keference  to  the  City  of  Savannah.    955 

Article  11. — City  Court  of  Savannah. 

attached  to  the  Clerk  and  Sheriff  of  said  City  Court ;    and  the  Judj^e,ciGrk 
Judge  of  said  Court  is  empowered  to  exercise  the  same  authority  reVpecUvT 
over  the  Clerk  and  Sheriff,  and  other  officers  of  said  Court  as  is  ^^*^^^s^^- 
legally  exercised  by  the  Judges  of  the  Superior  Court  over  the 
Clerks  of  the  Superior  Court  and  Sheriffs  of  the   Counties,  and 
other  officers  amenable  to  them. 

§  4842.   Said  Clerk  and  Sheriff  of  said  City  Court  shall,  respect-  (.{^^4^  ^^ ^J^^ 
ively,  take  an  oath  similar  to  that  prescribed  for  Clerks  of  the  Su-  sheriff. 
perior  and  Inferior  Courts,  and  for  the  Sheriffs  of  the  Counties ; 
and  said  oaths  may  be  administered  by  the  Judge  of  said  City 
Court,  or  the  Mayor  or  Clerk  of  the  City  Council  of  Savannah. 

§  4843.  Said  Sheriff  and  Clerk  of  said  City  Court  may  sue  and  Thecierk 
be  sued  in  said  Court;  but  when  the  Clerk  may  be  defendant  in  ^5, g^^e^J[,f(5 
any  action,  the  process  shall  be  signed  by  the  Judaic,  and  said  be  sued  in 

J  T  i-       ^  o        ^        i/  o    '  said  Court 

Clerk  shall,  if  required,  copy  the  petition  and  annex  the  process  ^ 

thereto ;  and  the  Clerk  shall  also  make  out  final  process  in  any 

case  in  which  he  may  be  interested,  as  in  other  cases,  which  shall 

be  signed  by  the  Judge  and  executed  as  in  other  cases ;  and  in  all 

cases  before  said  Court,  in  which  the  Sheriff  shall  be  plaintiff  or  gi^fj-TSow 

defendant,  process  shall  be  directed  to  the  Marshal,  and   all  and  directed  and 

singular   the    Constables   of  the  city   of  Savannah,   and  may   be 

served  by  any  one  of  them ;  and  the  proceedings  thereon  shall  be 

as  in  other  cases. 

§  4844.  The  attorney's  fee  in  each  cause  brought  in  said  Court    Attorney's 
and  in  all  attachment  cases  returnable  to  said  Court,  and  actually 
put  into  the  hands  of  an  officer  for  service,)  shall  be  five  dollars, 
such  fee  to  be  taxed  in  the  bill  of  costs.     But,  where  the  defend- 
ant shall  prevail,  the  defendant's  attorney  shall  be  allowed  a  fee  of 
two  dollars,  and  three  dollars  shall,  in  every  case,  become  immedi- 
ately due  to  the  city  of  Savannah,  to  be  paid  to  the  Clerk,  and  by 
him  accounted  for,  and  paid  over  in  quarterly  returns  to  the  City 
Treasurer  of  Savannah-     Every  officer  receiving  an  attachment, 
for  service,  shall  immediately  report  the  same  to  the  said  Clerk,  ^^^^^^^\ 
who  shall  immediately  collect  the  city  fee  from  the  attaching  party,  eases. 
or  his  attorney  ;  and  if  said   Clerk  shall  fail  to  make  any  quar- 
terly return  and  payment  as  aforesaid,  he  shall  pay,  for  the  use 
of  said  city,  the  penalty  of  five  hundred  dollars,  to  be  enforced  in 
said  Court,  by  attachment  against  the  Clerk  for  a  contempt. 

§  4845.  In  any  case  where  it  may  be  necessary  to  attach  the  Attaciimer.t 
Clerk  of  said  Court,  it  shall  be  lawful  for  the  Judge  thereof  to  cieS'^   *^^ 
call  in  the  services  of  the  Clerk  of  the  City  Council   of  Savan- 
nah ;  and  the  Marshal  of  said  city  shall  be  competent  to  enforce 
any  attachment  by  said  Judge  against  the  Sheriff  thereof. 

§  4846.  The  Clerk  of  said  Court  shall  copy  into  a  book  of  re-     Eecord  of 
cord,  to  be  provided   by  the  Mayor  and  Aldermen  of  Savannah,  £!by^^^vho?a 
all  the  proceedings  in  all  the  civil  cases  in  said  Court ;   which  ^^p*- 
entry  of  record  shallHtre" made  within  twenty  days  after  the  deter- 
mination of  any  cause ;  and  the  Clerks  shall  be  allowed  the  same 


956   APPENDIX. — Lafs  in  Reference  to  the  City  of  Savannah. 


Article  11. — City  Court  of  Savannah. 


fees  for  that  service,  to  be  taxed  in  tlie  bill  of  costs,  as  are  allow- 
ed in  the  Superior  Courts  for  similar  service  ;  and  the  said  Clerk 
Minutes  of  shall  keep,  from  day  to  day,  regular  minutes  of  the  proceedings 
of  said  Court,  which  shall  be  examined  and  signed  by  the  Judge. 
§  4847.  All  persons  residing  within  the  corporate  limits  of  Sa- 
Jurors—  vannah  and  liable  to  serve  as    iurors  in   the  Superior  Court  of 

now    select-  .  «  ,         -c^ 

ed,  etc.  Chatham  County  shall  be  liable  to  serve  as  jurors  in  said  City 
Court ;  and  the  Judge  of  said  Court  shall  conform  to  the  laws  of 
this  State  pointing  out  the  mode  of  selecting,  drawing,  and  sum- 
moning jurors  for  the  Superior  Court,  except  as  may  be  herein- 
after mentioned  ;  and  the  fines  and  other  proceedings  relative  to 
non-attendance  of  jurors,  or  contempts  by  them  committed,  shall 
be  in  conformity  with  the  general  law  ;  and  the  oaths  to  be  admin- 
oathaofiu-  istcrcd  to  jurics  and  witnesses  in  said  City  Court,  upon  the   trial 

rorsandwit-  of  civil  causcs,  shall  bo  the  same  as  are  by  law  to  be  administered 
to  juries  and  witnesses  in  the  Superior  Courts. 

§  4848.  The  Judge  of  said  City  Court   shall,  previously  to  the 

Howdrawn.  adjournment  of  any  regular  or  adjourned  term  thereof,  draw,  con- 
formably to  the  laws  of  the  State,  twenty-three  persons  to  serve 
on  an  inquest  or  Grand  Jury  for  the  said  Court  and  city,  and 
twenty-four  persons  for  the  trial  of  all  civil  and  criminal  cases  of 
which  said  Court  has  jurisdiction ;  but  no  inquest  or  Grand  Jury 
Grand  Jury  sliall  cousist  of  Icss  than  eighteen  persons,  though  twelve  persons 

dg-hteen*^  at  of  any  Grand   Jury  may  find  a  bill  or  make  a  presentment ;   and 

least.  ^]^Q  mode  of   proceeding  and  trial  in  all  criminal  cases  in  said 

Court  shall  be  the  same  as  in  the  Superior  Courts  of  the  State ; 
and  the  oaths  to  be  administered  to  jurors  and  witnesses  in  said 
City  Court  shall  be  the  same  as  those  administered  to  jurors  and 
witnesses  in  criminal  cases  in  the  Superior  Courts. 

§  4849.  It  shall  be  the  duty  of  the  Clerk  of  said  City  Court, 

Persons  snb- under  the   direction  of  the  Judge  thereof,  at  least  once  in  every 

dntj.'^  ^"^^  three  years,  beginning  within  six  months  after  the  promulgation 
of  this  Code,  to  make  out  a  complete  list,  from  the  best  sources  to 
be  determined  by  said  Judge,  of  all  persons  liable  to  do  jury  duty 
in  said  Court ;  from  which  list  the  Judge  shall  select  those  most 
competent  to  do  Grand  and  Special  Jury  duty,  whose  names  shall 
be  then  placed  by  said  Clerk  on  convenient  slips  of  paper  in  the 
Grand  Jury  box  ;  and  the  remaining  persons  shall  do  Petit  Jury 
duty,  and  their  names  shall,  in  like  manner,  be  deposited  in  the 
Petit  Jury  box. 
Jury  boxes      §  4850.  The  jury  boxes  shall  be  kept  by  the  Clerk,  and  the  keys 

r^    whom  ^y   ^^^  Sheriff;  and  no  jury  box   shall,  under   any  pretence,   be 

kept.    ■       opened  but  by  the  authority  of  the  Judge. 


4851.  The  Judge  of  said  Court  shall,  in  all  cases,  determine 
Defaulting  ou  the  Validity  of  the  excuses  of  jurors  ;  and  he  may,  in  any  case, 
^cn&os^/^'^^  term  time  or  vacation,  relieve  a  juror  from  payment  of  a  fine, 
at  any  time  before  the  same  is  paid  over,  if,  in  the  discretion   of 
said  Judge,  circumstances  shall  seem  to  warrant  such  remission. 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    957 

Article  11. — City  Court  of  Bavaunah. 
§  4852.  The  Grand  and  Petit  Jurors,  in  said  Court,  shall  not  be      dotcom- 

pellod        t  o 

compelled  to  serve  longer  than  one  week,  except  when  actuall-y  serve  longer 
engaged  in  the  trial  of  a  case  at  the  expiration  of  such  week ;  but  ^eek.  *^ "  ^ 
the  Judge  is  authorized,  hereby,  to  have  summoned,  instanter 
either  by  drawing  from  the  jury  boxes,  or  otherwise,  any  addition- 
al number  of  Grand  and  Petit  Jurors  that  in  his  discretion  he  may 
deem  necessary  to  perform  the  service  demanded  by  the  business 
before  the  Court. 

§  4853.  In  all  cases  where,  under  execution  or  attachment  pro-      Expenses 
cess,  returnable  to  said  Court,  horses,  mules,  or  other  live  stock,  kyiJd  mu  ^ 
may  be  levied  upon,  the  Sheriff  or  other  levying  officer  shall  be 
allowed  the  amount  of  stabling  or  keeping  necessary,  according 
to  the  current  rates  actually  expended  by  him ;  and,  in  all  cases 
of  levy,  under  process  as  aforesaid,  horses,  mules,  hogs,  or  other 
live  stock,  or  dry  goods,  groceries,  or  other  property  of  a  perish-    property  of 
nature,  may  be  sold  by  order  of  the   Judge  of  said  Court,  upon  ^aturT^Siy 
application  ta  him,  on  oath,  at  such  time  and  place  as  to  him  may  ^e  sold  by 
seem  most  advantageous  ;  provided,  that  not  less  than  ten  days' 
notice  be  given  in  a  public  gazette,  and  at  the  Court  House  in  said 
city,  of  the  time  and  place  of  sale ;  except  in  cases  of  fruit   or 
other  articles  that  would  be  greatly  deteriorated  by  a  delay  of  ten 
days. 

§  4854.  "When  either  party  to  a  cause  in  said  Court  shall  take     certiorari 
exceptions  to  any  proceedings  in  a  suit,  affecting   the  real  merits  out,      and 
of  the  same,  it  shall  be  the  duty  of  the  Judge  to  cause  to  be  made  thereon.'""^ 
and  filed  of  record  in  said  Court,  a  just  and  true  statement  of  the 
facts  relating  thereto,  and  of  all  legal  points  arising  therein ;  aind 
the  said  party,  after  a  full  compliance  with  the  law  of  the  State 
regulating  the  granting  of  certiorari^  may  apply  to   the  Judge  of 
the  Eastern  District  for  a  writ  of  certiorari^  who  shall  grant  the 
same,  if  he  shall  deem  the  exceptions  taken  to  be  sufficient ;  but 
no  writ  of  certiorari  shall  issue  after  three  months  from  the  ad- 
journment of  the  terra  at  which  the  exceptions  are  taken. 

§4855.  In  any  case  where  it  may  be  necessary  to  have  proper-  sheriff  may 
ty  levied  on  by  the  Sheriff  of  said  Court  guarded,  said  Sheriff  Jj^f^'p^Jt^^ 
may  appoint  and  have  sworn  in,  a  special  deputy  for  that  purpose,  ^^'^^"• 
and  the  Judge  may  allow  a  reasonable  compensation  in  such  case, 
and  in  any  other  case  where  the  Sheriff  may  require  assistance, 
and  if  any  person  shall  oppose,  resist,  assault,  or  beat  any  special 
Sheriff  in  the  discharge  of  his  duty,  such  person  shall,  on  convic- 
tion, be  fined  or  imprisoned  at  the  discretion  of  the  Court. 

§  4856.  [The  Judge  of  said  Court  is  authorized  to  appoint  three  Judge  may 
bailiffs  as  officers  of  his  Court,  and,  in  cases  of  necessity,  to  ap- f^g^'^^"^^''^^' 
point  additional  bailiffs,  in  his  discretion.]  (a) 

§4857.  The  Constables,  and  ex  officio  Constables,  of  the  city 
of  Savannah,  from  time  to  time,  shall  be  Constables  of  said  Court, 

(a)  Acts  of  1866,  p.  57. 


958    APPENDIX. — LAVfs  m  Reference  to  the  City  of  Savaxxah. 

Article  11. — City  Court  of  Sayaunali. 

Constables  SO  far  as  to  authorize  them  to  serve  all  process  and  orders  of  said 
—duties  and  Court  to  them  directed,  but  the  Judge  of  said  Court  is  hereby 
paytherefor.  empowered  to  select,  in  conjunction  with  the  Mayor  of  said  city, 
five  members  of  the  mounted  or  foot  police  of  Savannah,  as  spe- 
cial bailiffs  of  said  Court,  who  shall  remain  bailiffs,  as  aforesaid, 
for  one  year,  unless  removed  as  bailiffs  by  the  Judge,  or  in  case  of 
dismissal  or  resignation  from  said  police.  It  shall  be  the  duty  of 
-'  three  of  said  bailiffs  to  attend  all  sittings  of  said  Court,  subject 
to  the  orders  of  the  Judge  thereof,  and  they  shall  receive  one  dol- 
lar a  day,  wdiilst  so  attending,  to  be  paid  from  the  fines  and  for- 
feitures in  said  Court ;  said  bailiffs  being  empowered  to  serve  any 
criminal  warrant  within  the  jurisdictional  limits  of  said  Court 
(provided  the  warrant  does  not  issue  for  an  offense  above  the  grade 
of  misdemeanor),  and,  for  purposes  thereof,  shall  be  considered 
lawful  Constables  of  the  State  of  Georgia,  and  receive  the  same 
fees  as  may  be  allow^ed  by  law  to  the  Constables  of  this  State; 
'provided^  nothing  herein  contained  shall  be  construed  to  relieve 
such  bailiffs  from  any  other  duties  imposed  by  law,  which  shall  not 
interfere  with  the  duties  above  imposed. 

§  4858.  [The  Sheriff  of  said  Court  shall  receive  the  sum  of  three 
FeesofSher-  dollars   Dor  day   for   his  attendance  durina;  each  session  of  said 

Iff     Density  i  j  _  _  o 

andBaiiiffs.'  Court,  and  the  deputy  Sheriff  and  the  bailiffs  appointed  under  the 
provisions  of  Sections  4809  and  4856  of  this  Code,  shall  receive 
two  dollars  per  day  for  their  attendance  during  each  session  of 
said  Court.]  (a) 

§4859.  Upon    the   petition    of    any    ship-master,    supercargo, 
Summary  owncr,  or  consignco  of  any  vessel,  or  of  any  articled  seaman,  or 
blfore^saTd  any  mariner  or  apprentice  attached  to  a  ship  or  vessel,  who  shall 
Sef'speci-  havo  any  dispute  or  difference  with  any  person,  touching  any  con- 
^^^'  tract,  agreement,  sale,  promise,  debt,  or  demand  whatsoever,  with- 

in the  jurisdiction  of  said  City  Court,  or  who  shall  be  charged 
with  any  assault,  or  assault  and  battery,  trespass  to  the  person, 
or  other  offense  within  the  jurisdiction  of  said  Court,  committed 
anyw^here  within  the  County  of  Chatham,  or  where  such  ship- 
master, supercargo,  owner,  or  consignee,  or  articled  seaman,  or 
mariner,  or  apprentice,  may  prosecute  for  assault,  or  assault  and 
battery,  or  trespass  to  the  person,  or  other  offense  within  the  ju- 
risdiction of  said  Court,  committed  anywhere  in  said  County,  or 
may  be  plaintiff  in  any  such  dispute  or  difference,  touching  any 
contract,  agreement,  sale,  promise,  debt,  or  demand  whatsoever, 
wdthin  the  jurisdiction  of  said  Court,  setting  forth  under  oath,  in 
such  petition,  the  nature  of  his  case,  and  that  he  can  not,  without 
great  inconvenience  and  damage  to  him,  await  the  determination 
of  such  matter  in  difference,  or  the  trial  of  such  charge,  by  the 
ordinary  and  usual  mode  of  proceedings  in  the  Courts  in  this  State, 
shall  be  lawful  for  the  Judge  of  said  Court,  and  he  is  hereby 

(a)  Acts  of  1866,  p.  57. 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    959 

Article  11. — City  Court  of  Savannah. 

required  and  directed  to  order  and  appoint  a  special  or  extraordi-       special 
nary  Court,  to  be  held  within  forty-eight  hours  after  the  grant  of 
such  order,  for  the  trial  of  any  such  cause,  matter  in  difference, 
charge,  or  offense;   and  the  said  Judge  shall,  immediately,  or  with- 
in twenty-four  hours  after  the  granting  of  such  order,  draw  the 
necessary  jury  or  juries  for  the  investigation  and  trial  of  such  whom^^ud 
matter  of  dispute,  civil  or  criminal,  and  such  jury  or  juries  shall  whendrawa. 
be  forthwith  summoned  to  appear  at  the  time  and  place  appointed, 
and  further  proceedings  shall  be  had,  in  a  summary  way,  as  may 
be  agreeable  to  law,  and  as  though  said  Court  were  in  session  at  a 
regular  term. 

§4860.  At  the  time  and  place  which  the  said  Judge  shall  ap-        Twelve 
point,  the  parties  being  duly  notified  by  twelve  hours'   previous  ofThe  time 
notice   of  such   time   and   place,  shall   attend   personally  in   any  hearFng?^  ^^ 
criminal  case,   and  personally  or  by  attorney  in  any  civil  case, 
before  the  said  Judge,  who  shall  then  hear  the  parties,  and  shall 
in  a  summary  way  proceed  to  judge  and  determine  such  cause,      Trial, 
and  shall,  forthwith,  by  the  usual  process  of  said  Court,  execute 
the  judgment  of  said   Court  in  such  cause,  unless  exceptions  to 
such  judgment  shall  be  taken  by  either  party  in  a  civil  case  on 
the  pronouncing  of  such  judgment,  and  if  either  party  shall  so  Exceptions, 
except,  or,  in  a  criminal  case,  the  defendant  shall   so  except,  it 
shall  be  his  duty  forthwith  to  apply  to  the  Judge  of  the  Superior 
Court  of  the  Eastern  District  for  a  certiorari^  founded  on  such  certiorari, 
exceptions,  which,  if  allowed  by  the  Judge  of  the  said  District, 
within  twenty-four  hours  after  the  rendition  of  such  judgment, 
shall  be  a  supersedeas  thereof;  and  in  case  of  the  absence  of  the 
Judge  of  said  district,  then  reasonable  time  shall  be  allowed  to 
the  party  making  such  exception   to  make  such  application,  the 
said  party  giving  good  bond  and  security  to  the  other  party,  to      Bond  of 
be  approved  of  by  the  Judge  of  said  City  Court,  conditioned  to 
abide  the  final  decision  of  the  cause.  11 

§  4861.  At  such  special  or  extraordinary  Courts,  the  said  Judge  Jnrisdiction 
shall  have  full  power  to  try  each  cause  in  which  any  captain  or  of  the  judge 
commander  of  a  vessel,  or  articled  seaman,  or  mariner  or  appren-  court^^^^^ 
tice  attached  to  a  ship  or  vessel,  may  be  a  party,  in  the  most  sum- 
mary and  speedy  manner,  and  to  compel  the  attendance  of  wit-     witnesses 
nesses  by  the  most  summary  process  that  can  be  devised,  and  no  aitS  ^ 
more  delay  shall  occur  in  the  trial  of  such  causes  than  such  as  is 
indispensable  to  the  due  administration  of  justice ;   and  the  said 
Judge  shall  have  power  to   enforce,   by  order  and  process,   the  . 

bringing  before  him  of  any  and  all  papers  appertaining  to  such  of  papers, 
cause,  wherever  such  papers  may  be,  whether  actually  returned  to 
another  Court  within  the  city  of  Savannah,  or  not  so  returned. 

§4862.  The  foregoing  provisions  in  regard  to  special  or  extra-  To  what 
ordinary  Courts,  and  writs  of  certiorari  thereto,  shall  apply  to  all  ITr^egomg 
cases  where  any  person  or  persons  shall  be  charged  and  prose-  app^.^^'°^^ 
cuted  for  the  offense  of  abducting,  entertaining,  secreting,  lodg- 


960    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 

Article  11. — City  Court  of  Savannah. 


ing,  or  concealing  any  articled  seaman,  or  mariner,  or  apprentice, 
or  suffering  the  same  to  be  done,  or  aiding  or  assisting  any  arti- 
cled seaman,  or  mariner,  or  apprentice,  to  desert  his  ship  or  ves- 
sel, or  secretly  carrying  off  any  articled  seaman,  or  mariner,  or 
apprentice,  from  any  such  ship  or  vessel,  or  harboring,  with  intent 
to  inveigle,  entice,  carry  away,  abduct,  or  secretly  carry  off,  any 
articled  seaman,  or  mariner,  or  apprentice,  from  a  ship  or  vessel, 
or  affording  any  conveyance  or  facility  to  such  seaman,  or  mari- 
ner, or  apprentice,  to  desert  such  ship  or  vessel,  as  defined  in  this 
Code,  or  in  any  law  of  this  State,  present  or  future,  and  not  sub- 
jecting the  offender  to  imprisonment  in  the  penitentiary,  whether 
such  offense  be  committed  in  the  jurisdictional  limits  of  the  city 
of  Savannah,  or  within  any  part  of  the  County  of  Chatham,  upon 
the  application  to  said  Judge  by  the  prosecutor  in  such  case,  or 
other  person  in  interest,  by  petition,  on  oath,  stating  that  he,  or 
the  witnesses,  or  some  of  them,  necessary  in  carrying  on  said 
prosecution,  can  not,  without  great  inconvenience  and  damage  to 
him  or  them,  await  the  trial  of  such  charge  or  prosecution  by  the 
usual  and  ordinary  course  of  proceedings  in  the  Courts  of  the 
State. 

§4863.    The   Sheriff  and  Clerk  of   said   City  Court,    and   all 

The  Clerk,  bailiffs  thercof,  shall  attend  such  special  or  extraordinary  Courts, 

Blmk'  shall  and  shall  be  entitled  to  the  fees   allowed   by  law  for   services 

attend.        therein;    and  in  civil  cases  therein,  the  fee  of  three  dollars,  for 

use  of  the  city,  shall  be  paid  by  the  plaintiff  in  each  case,  to  be 

taxed  in  the  bill  of  costs  against  the  losing  party. 

§  4864.  For  preventing  vexatious  arrests  and  fraudulent  deten- 
Vexatious  tiou  of  articled  seamen,  or  mariners,  or  apprentices,  attached  to  a 
ship  or  vessel,  it  shall  not  be  lawful  for  any  keeper  of  a  tavern  or 
tippling  house,  or  any  other  person,  when  an  articled  seaman,  or 
mariner,  or  apprentice,  as  aforesaid,  shall  have  been  committed  to 
jail  by  his  captain,  or  the  owner  or  consignee  of  his  vessel,  to 
lodge  a  detainer  under  the  pretence  of  civil  process  founded  on 
debt  or  civil  contract ;  but  in  any  such  case,  when  any  articled 
seaman,  or  mariner,  or  apprentice,  as  aforesaid,  shall  have  been 
so  committed  to  jail,  it  shall  be  the  duty  of  the  Jailor  to  surren- 
der such  seaman,  or  mariner,  or  apprentice,  as  aforesaid,  upon  the 
requisition  of  the  owner,  captain,  or  consignee,  committing  him. 
notwithstanding  any  detainer  which  may  be  or  have  been  lodged 
against  such  seaman,  or  mariner,  or  apprentice,  founded  on  civil 
process;  and  upon  failure  of  such  Jailor,  within  the  limits  of  Sa- 
vannah, to  make  such  surrender,  the  same  may  be  enforced  by 
summary  order  of  the  Judge  of  said  City  Court,  directed  to  the 
Sheriff  and  Constables  of  said  Court. 

§  4865.  It  shall  not  be  lawful  for  any  Sheriff,  Constable,  or  other 

Arrest  of  officer,  to  arrest  any  articled   seaman,  or  mariner,  or  apprentice. 

der''^°civn  attached  to  any  ship  or  vessel,  on  civil  process,  within  tw^enty-four 

process.       j^Qurs  Hcxt  immediately  before  the  time  which  shall  have  been  de- 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    96t 


Article  11. — City  Court  of  Savannah. 


signated  by  advertisement  for  the  sailing  of  sucli  vessel,  or  after 
the  lapse  of  such  time,  if  such  vessel  shall  have  been  detained  be- 
yond that  time  by  adverse  wind  or  other  cause  ;  and  in  case  of 
any  such  arrest  within  such  time,  anywhere  within  the  limits  of 
Chatham  County,  the  Judge  of  said  City  Court  shall  have  power 
and  authority  to  discharge  such  seaman,  or  mariner,  or  appren- 
tice, instantly,  on  the  application  of  the  captain,  owner,  or  con- 
signee, showing  that  such  arrest  was  made  within  the  time  pro- 
hibited; and  the  officer  making  such  arrest  shall  be  punishable  by 
indictment  in  said  Court,  and,  on  conviction,  shall  be  fined  in  a 
sum  not  exceeding  one  hundred  dollars. 


§4866.  If  any  articled  seaman,  mariner,  or  apprentice,  as  afore- 
said, shall  be  arrested  under  civil  or  criminal  process  issued  by 
any  Justice  of  the  Peace  or  Justice  of  the  Inferior  Court,  for  any 
matter,  cause,  or  thing,  within  the  jurisdiction  of  the  said  City 
Court,  or  offense  committed  anywhere  in  the  County  of  Chatham, 
whether  hereinbefore  specified  or  not,  the  captain,  owner,  or  con- 
signee, of  the  vessel  to  which  such  seaman  shall  be  under  articles 
at  the  time  of  such  arrest,  or  to  which  such  mariner  or  apprentice 
may  belong,  shall  be  entitled  to  apply  to  said  Judge  for  a  sum- 
mary hearing,  as  hereinbefore  provided  for  other  summary  hear- 
ings before  said  Court ;  and  the  said  Judge  shall  have  full  power 
and  authority  to  take  jurisdiction  and  cognizance  of  such  cause, 
and  finally  decide  the  same,  as  in  the  said  other  cases  of  summary 
hearing ;  and  it  shall  be  the  duty  of  the  officer  making  such  ar- 
rest, and  of  the  Justice  from  whom  the  process  emanated,  on  the 
requisition  of  the  said  Judge,  to  transmit  to  the  said  Judge  all 
documents  and  papers  in  relation  thereto ;  and  the  same  proceed- 
ings in  regard  to  certiorari  shall  be  had  as  are  applicable  to  other 
trials  before  such  special  or  extraordinary  Courts. 

§4867.  Whenever,  after  any  order  shall  have  been  granted  by 
said  Judge,  appointing  a  special  or  extraordinary  term  of  said 
Court,  for  the  trial  of  any  criminal  offense  therein  cognizable,  and 
application  may  be  made  to  the  said  Judge  by  the  prosecuting 
officer  of  the  said  Court,  or  by  the  defendant  or  defendants,  or 
parties  charged  with  such  offense,  or  his  or  their  counsel  (such  ap- 
plication, if  made  by  the  parties  themselves,  to  be  verified  by  affi- 
davit), setting  forth  that  a  material  witness  or  witnesses  for  the 
applicant  is  or  are  about  to  leave  the  city  of  Savannah,  and 
on  that  account,  or  from  imminent  sickness,  or  other  cause,  will 
not,  in  reasonable  probability,  be  able  to  be  present  at  the  trial 
of  the  cause  in  which  his  or  their  testimony  is  needed,  it  shall  be 
the  duty  of  the  said  Judge  forthwith  to  order  process  of  subpoena 
to  issue,  requiring  said  witness  or  witnesses  to  appear  in  person 
before  him,  at  a  certain  place  and  time  (of  which  time  and  place 
the  said  prosecuting  officer,  and  the  said  defendant  or  defendants, 
or  parties  charged,  shall  have  at  least  twelve  hours'  notice),  to  give 
testimony  in  the  said  cause;  at  which  time  and  place  the  said 
61 


Defendant 
may  have 
a    summary 

liearing. 


Arresting 
officer  and 
magistrate 
shall  turn 
over  papers. 


Witnesses 
may  be  ex- 
amined bo- 
fore  the  triaj 
— wbon. 


982    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 

Article  11. — City  Court  of  Savannah. 


Judge  shall  take  down  in  writing  the  answers  of  the  said  witness 
or  witnesses,  given  under  oath,  to  the  question  or  questions  to  be 
propounded  to  him  or  them,  touching  the  said  cause,  on  examina- 
tion and   cross-examination,  by  the   parties  respectively,  or  their 
counsel;  such  examination  to  be  made  and  testimony  to  berecived 
in   accordance  with   the  usual   practice  in  Courts  of  Justice   and 
with  the  rules  of  evidence  ;  which  said  answers,  when  so  taken  and 
committed  to  writing,  shall  be  sealed   up,  appropriately  indorsed 
and  certified  under  the  hand  of  said  Judge,  and  shall  remain  in 
mti/h&u!^d.  *^®  office  of  (he  Clerk  of  said  Court  for  the  benefit  of  both  parties, 
by      other  and  may  be  read  as  evidence  upon  the  trial  of  the  cause  in  or  with 
reference  to  which   the  said   testimony  may  have   been   taken,  as 
aforesaid ;  provided,  the  said  witness   or   witnesses  shall  not  be 
personally  present  to  testify  in  such  cause  at  said  trial,  and  not 
otherwivse. 
Appeal  not      §4868.  No  appeal   to  a  special  jury  shall  be  allowable  in  any 
allowed.       casc  bofero  any  special  or  extraordinary  session  of  said  Court. 

§  4869.  In  consideration  of  the  additional  labor  imposed  upon 
Salary  of  So- the  Solicitor  General  of  the  Eastern  District,  in  appearing  and 
^icitor  ene-  pj.Qgg(jm^jjjg  criminal  causes  at  the  regular  and  special  terms  of 
said  Court,  he  shall  have  and  receive,  in  addition  to  the  fees  al- 
lowed by  law,  the  sum  of  five  hundred  dollars  per  annum,  pay- 
able in  quarterly  installments  from  the  fines  and  forfeitures  in  said 
Court ;  but,  in  case  of  the  absence  of  the  Solicitor  General,  such 
fees  shall  be  paid  to  the  Solicitor  General  pro  tempore  ;  and  the 
fees  of  the  Solicitor  General  shall  in  all  cases  be  the  same  as  are 
allowed  by  law  in  the  Superior  Courts. 

§  4870.   Moneys  arising  from  jury  fines,  and  fines  imposed  for 
Money  aris- yioiation  of  the  Dcual  laws,  and  collected  from  forfeited  recosrni- 

iug      from  .  ^  ,  ~ 

fines.  zances  in  said  Court,  shall  be  subject  to  the  payment  of  the  fees 

of  the  Solicitor  General,  and  the   Clerk,  and  Sherifi",  and  other 

officers  of  said  Court  in  criminal  cases  ;  and   the  Solicitor   Gen- 

Officers  ei-ai    Clerk,  and  Sheriff,  and  other  officers  brin^inff  the  money  into 

bringing'  '  '  ,  oo  j 

money  into  Court,  shall  bc  entitled  to  have  their  insolvent  bills  paid  first,  and 

Court.  .  .    •  . 

then  the  bills  of  former  Solicitors,  Clerks,  and  Sheriffs,  and  other 
officers  shall  be  paid  according  to  priority ;  but  no  bill  remaining 
unpaid  for  a  longer  time  than  four  years  shall  take  any  part  of 
said  fund. 

§  4871.  It  shall  be  the  duty  of  the  Justices  of  the  Peace,  and 
Justice  of  other  persons  exercising  the  powers  of  Magistrates  within  the  city 
[his  power,  of  Savannah,  to  commit  or  place  under  bonds  all  persons  charged 
with  misdemeanors  committed  within  the  jurisdictional  limits  of 
the  city  of  Savannah,  or  elsewhere,  and  within  the  special  juris- 
diction of  said  City  Court,  for  trial  before  the  City  Court  of  Sa- 
vannah, instead  of  the  Superior  Court ;  and  if  any  such  case  be 
returned  to  the  Superior  Court,  the  Judge  thereof  is  hereby  em- 
powered to  order  said  case  transferred  for  trial  to  said  City  Court ; 
and  all  bonds  and  other  papers  forming  said  record  shall  be  deemed 


APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah.    963 

Article  11. — City  Court  of  Savannah. 


and  considered  as  valid  and  binding  as  if  returned  in  the  first  in- 
stance to  said  City  Court;  and  it  shall  be  the  duty  of  the  Solici- 
tor Greneral  to  prosecute  all  such  cases  in  the  said  City  Court ;  and 
in  all  such  cases  of  misdemeanor,  returned  to  the  Superior  instead 
of  said  City  Court,  the  Magistrate  so  returning  the  same  shall 
forfeit  all  costs  and  charges  in  the  same;  and  such  Magistrate,  so 
acting,  may  besides  be  attached  and  punished  as  for  contempt  in 
said  Sujperior  or  City  Court. 

§4872.  All  peace  warrants  and   bonds  to  keep  the  peace  taken    Peace  war- 

«  ....  rants       ftnd 

in  Chatham  County  shall  be  returned  imme(liat<  ly  to  the  Solicitor  bonds. 
General  of  the  Eastern  District,  or,  in  his  absence  from  said 
County,  to  the  Clerk's  office  of  the  said  City  Court  of  Savannah, 
and  also  all  warrants  and  bonds  for  offenses  conizable  by  said  City 
Court ;  and  said  Solicitor  General  shall,  at  every  term  of  said 
City  Court,  lay  such  warrants  and  bonds  before  the  Judge  thereof, 
who  may  then  examine  into  any  such  case ;  and  if  it  shall  appear 
to  him  in  any  case,  from  the  papers  or  other  evidence  to  be  pre- 
sented by  the  prosecution,  that  there  is  no  real  ground  for  such 
warrant  or  bond,  or  commitment  under  such  warrant,  or  that  the 
security  required  is  too  large  or  too  small,  then  he  may  annul  such 
warrants,  cancel  such  bond,  relieve  from  such  commitment,  order 
less  or  more  security,  and  compel  the  prosecutor  to  pay  all  costs 
and  expenses,  as  in  his  discretion  may  seem  proper ;  and  such 
Judge  may,  in  any  such  case,  and  other  cases  of  prosecution  be- 
fore said  Court,  where  it  shall  appear  to  him  that  corruption  or 
gross  oppression  has  been  practiced  by  any  Justice  of  the  Peace 
in  said  County,  compel  such  Justice  to  pay  all  the  costs,  and  jail 
fees,  and  other  expenses  in  such  case ;  and  he  shall  cause  such 
Justice  to  be  bound  over  to  the  Superior  Court,  to  answer  for  such 
malpractice. 

§4873.  For  every  verdict  rendered  in  a  civil  cause  in  said  Court,    juryfees. 
the  jury  fees  shall  be  one  dollar,  to  be  paid  by   the   party   taking 
such  verdict.     And  in  every  case  where  the  plaintiff  may  be  liable 
for  costs,  and  resides  beyond  the  civil  jurisdictional  limits  of  said  Attomeyii- 
Court,  judgment  for  such  costs   may  be  entered  up  against  the  —when, 
plaintiff's  attorney  of  record. 

§  4874.  Except  where  otherwise  expressly  provided  in  this  Code,  cierkand 
the  costs  to  be  allowed  the  Clerk  and  Sheriff,  and  other  officers  of 
said  Court,  shall  be  the  same  as  those  allowed  for  similar  services 
in  the  Superior  Court  of  Chatham  County ;  and  the  provisions  of 
this  section  shall  apply  as  well  to  special  as  to  regular  terms  of 
said  Court. 

§  4875.  The  laws  of  the  State  in  relation  to  insolvent  debtors     insolvent 
and  their  discharge  shall  apply  to  said  Court,  where  any  person  t^gj'r'""*  5?*1 
may  be  arrested  by  process  issuing  out  of  it ;  but  all  suggestions  charge. 
of  fraud  in  said  Court  must  be  tried  by  a  jury. 

§4876.  Where  the  balance  due  a  defendant  shall  exceed  the  Balance dua 
jurisdiction  of  the  Court,  defendant  may  have  judgement  to  the 


964    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 


Article  11. — City  Court  of  Savannah. 


practice. 


extent  of  the  jurisdiction,  and  may  afterward  sue  for  the  account 
of  excess  beyond  the  sum  so  by  him  recovered. 

§4877.  The  Judge  of  said  Court  may  make  rules  of  practice 
Kuiesof  for  the  same,  not  in  conflict  with  tho  general  laws  of  the  State: 
and,  in  all  cases  of  fees  to  officers  where  such  general  laws  do  not 
strictly  apply,  he  may,  by  rule  or  order  of  Court,  fix  such  fees  by 
analogy  to  the  general  law. 

§4878.   Continuances  in  said  Court  shall  be  regulated  by  the 
ances.        '  general  law  applicable  to  other  Courts  of  Record  of  the  State. 

§4879.  The  keeper  of  the  common  jail  in  Chatham  County 
Jailor— his  shall,  at  overy  regular  term  of  said  City  Court,  return  to  the  Judge 
^u^iesspeci-  ^.j^gj^^^f  ^  jg^jj  calendar,  containing  the  name  of  every  white  pris- 
oner therein,  the  time  and  cause  of  commitment,  the  name  of 
the  committing  Magistrate  or  Magistrates,  and  the  place  where 
the  alleged  offense,  or  other  cause  of  detention,  may  have  occurred; 
and  if,  in  any  case,  it  shall  appear  to  him  that  there  is  no  good 
cause  for  the  imprisonment,  he  may  discharge  such  prisoner  on 
such  terms  as  such  Judge  may  order;  but  such  Judge  shall  have 
no  power  to  discharge  any  person  committed  for  contempt  of  a 
Court  of  Record,  or  by  authority  of  the  United  States,  or  any 
person  regularly  committed  on  charge  of  a  capital  off'ense. 

§4880.  The  Sheriff  of  said  City  Court  shall,  at  the  opening  of 
Sheriff's  everv  regular  term,  hand  to  the  Judge  a  iust  and  true  statement 
Judge.  of  all  moneys  received  by  said  Sheriff  from  fines  and  forfeited 
recognizances,  the  amount  paid  out  by  him,  and  the  account  on 
which  the  same  was  paid,  together  with  a  statement  of  the  bal- 
ance on  hand ;  and  the  Judge  may  order  any  balance  paid  into 
the  registry  of  Court,  or  deposited  in  some  safe  place  of  keeping, 
subject  to  the  future  order  of  the  Court. 

§4881.  Whenever,  in  any  case,  the  said  Court  shall  be  author- 
sentanceand  {^^ed  to  Sentence  a  person  to  imprisonment,  such  imprisonment  may, 
as  part  of  the  sentence  of  the  Court,  be  in  any  work-house  estab- 
lished by  the  city  authorities  of  Savannah  ;  and  the  Judge  may 
sentence  such  prisoner  to  work  in  such  place,  or  to  work  on  the 
streets  of  Savannah,  under  the  direction  of  the  city  authorities. 


ARTICLE   XII. 

JUSTICES     OF     THE     PEACE     AND     JUSTICES'     COURTS, 


Section. 

4882.  Civil  jurisdiction. 

4883.  Judgment  first  term. 

4884.  Plaintiff  and  dcfend't  may  be  sworn. 

4885.  Prosecutions  vs.  persons  of  color. 


Sbotiox. 

4886.  Bail. 

4887.  Special  jurisdiction. 
488S.  Costs — by  whom  paid. 
4889.  Prorisious  as  to  repeal. 


„.  ...   .        §4882.  The  civil    iurisdiction   of  each  of  the  Justices  of  the 

vivu  juris-         "  »7 

diction.        Peacc,  for  the  first,  second,  third,  and  fourth  districts,  shall  extend 


APPENDIX.— Laws  in  Refekence  to  the  City  of  Savannai]^.    965 

Article  12. — Justices  of  the  Peace  and  Justices'  Courts. 

over  the  whole  of  said  districts,  and  two  miles  from  the  corporate 
limits  of  the  city  of  Savannah,  as  established  by  law ;  and  each 
of  the  Justices  for  the  aforesaid  districts  may  take  cognizance  of, 
award  judgment,  and  issue  process  of  execution,  in  all  cases  of 
debt  or  contract  not  exceeding  the  amount  of  a  Justice's  jurisdic* 
tion,  where  the  defendant  may  reside  in  any  of  said  districts,  in 
the  same  manner  as  if  the  defendant  resided  in  the  district  of  the 
Justice  issuing  such  process ;  [and  it  shall  be  lawful  for  such  Jus- 
tices to  hold  their  offices  and  Courts  in  any  part  of  said  city.]  (a) 

§  4883.  In  every  suit  brought  in  any  of  the  Justices'  Courts  in     Judgment 
said  districts,  judgment  shall  be  rendered  at  the  first  term,  unless    '^^    ""*' 
the  defendant  shall  enter  an  appearance  and  file  a  plea  in  writing ; 
and  whenever  the  defendant  shall  enter  such  appearance  and  file     ^,^ 
such  plea  at  the  first  term,  the   case  shall  be  placed  on  the  jury  if  a  piea  be 
docket,  and  tried  by  a  jury  at  the  succeeding  term,  unless  good 
cause  be  shown  for  a  continuance. 

§4884.  In  every  case  before  any  of   the  Justices'  Courts   for  Plain tw  and 
said  districts,  in  which  the  plaintifi*  shall  be  admitted  to  prove  his  may^^botu 
own  account  by  his  own  oath,  it  shall  be  lawful  for  the  defendant  ^hen.^*'^*^"* 
to  be  sworn  and  give  his  testimony  in  defense,  upon  making  afii- 
davit  that  he  has  no  other  testimony  which  it  is  in  his  power  to 
procure  to  disprove  the  justice  of  the  account ;  and  the  defendant 
may  always  prove  his  set-off  by  his  own  oath  in  every  case  where 
the  plaintiff  might  prove  a  similar  demand  by  his  oath. 

§  4885.  Whenever  a  prosecution  shall  be  entered  against  a  per-  Prosecutioo 
8on  of    color,  for   an   ofiense  not  punishable  with   death,  within  pSsons   \l 
the  limits  of  any  of  the  aforesaid  districts,  it  shall  be  the  duty  of  ^^^^'^^ 
the  Magistrate  before  whom  such  prosecution  is  instituted,  within 
forty-eight  hours  after  the  filing  of  the  affidavit,  to  draw  from  the 
jury  box  of  his  district  the  names  of  seven  persons,  any  ^ve  of 
whom  shall  constitute  a  jury  to  try  said  person  of    color ;  and 
if  the  jury  shall  return  a  verdict  of  not  guilty,  then  the  person 
of  color  shall  be  discharged;  and  if  the  jury  shall  find  a  verdict 
of  guilty,  then,  and  in  that  case,  the  Magistrate  shall  proceed  to 
pronounce  the  sentence,  having  regard  in  his  sentence  to  any  re- 
commendation which  the  jury  may  make  as  to  the  mode  or  extent 
of  punishment. 

§  4886.  In  every  such  case  of  prosecution,  the  person  of  color  Bail, 
shall  be  admitted  to  bail  by  the  Magistrate,  at  any  timiO  before 
conviction,  or  after  conviction,  where  a  certiorari  is  applied  for, 
upon  good  security  in  a  reasonable  sum  being  tendered  to  the 
Magistrate,  for  the  appearance  of  such  person  of  color  to  abide 
the  final  decision  of  the  cause.* 

§  4887.  All  civil  plaints,  or  suits,  or  matters  in  dispute  or  differ-  .special  ju- 
ence,  which,  by  the  provisions  of  this  Code  applicable  to  the  City  justSe?"  ** 

(a)  Acts  of  1863-4,  p.  91. 

*  Is  not  this  repealed  by  Act  of  1866,  Acts  of  1865-6,  p.  239  ? 


966    APPENDIX. — Laws  in  Reference  to  the  City  of  Savannah. 
Article  13. — Justices  of  the  Peace  and  Justices'  Courts. 


Court  of  Savannah,  would  (if  the  amoant  in  dispute  or  difference 
were  within  the  jurisdiction  of  said  Court)  authorize  the  Judge  of 
said  City  Court  to  hold  special  or  extraordinary  Coui'ts  for  the 
trial  thereof,  the  amount  whereof  shall  not,  in  any  one  casf*,  ex- 
ceed the  jurisdiction  of  a  Justice  of  the  Peace,  may  he  tried  hy 
any  Justice  of  the  Peace  for  that  part  of  the  County  of  Chatham 
embraced  within  the  corporate  limits  of  the  city  of  Savannah,  or 
within  the  said  first,  Second,  third,  and  fourth  districts,  under  the 
same  restrictions  as  to  petition,  notice,  affidavit,  and  other  modes 
of  procedure,  set  forth  in  said  provisions,  as  far  as  such  modes  of 
procedure  may  be  made  to  conform  to  the  proceedings  in  Justices* 
Courts,  and  all  and  every  process  issued  by  any  Justice  of  the 
Peace,  by  authority  hereof,  shall  be  served  by  any  lawful  Consta- 
ble of  any  of  said  districts,  and  every  such  case  shall  be  deter- 
mined by  a  jury  of  five,  to  be  drawn  instanter  from  the  jury-box 
of  said  Magistrate,  which  jury  shall  be  summoned  to  appear  for 
the  trial  of  said  action,  or  matter  in  dispute,  or  difference,  within 
forty-eight  hours  from  the  time  of  issuing  the  process,  and  the 
costs  shall  be  the  same  as  in  other  trials  in  Magistrates'  Courts^ 
§4888.  No  person  who  may  be  discharged  by  a  Magistrate  or 
Co8t8-by  Magistrates  of  any  of  said  districts,  for  want  of  sufficient  cause 
w  om  pai  .  ^^  commitment,  shall  ever  be  compelled  to  pay  any  part  of  the 
costs  of  prosecution  or  examination. 

§  4889.  No  Code  or  system  of  laws  which  may  be  passed  by  the 

How  this  General  Assembly  at  its  present  or  any  adjourned  session,  shall 

▼annah^sifau  bc  construcd  to  repeal  or  modify   any   of  the  provisions  of  this 

be  repealed,  j^q^^  uulcss  such  provisious  shall  be  specially  named   or  referred 

to ;  and  all  banking,   commercial,   religious,  charitable,   literary, 

military,  and  other  charters  and  incorporations,  and  privileges, 

and  exemptions,  good  and  valid  in  law,  and  existing  or  operative 

in  the  city  of  Savannah  and   County  of  Chatham  at  the  time  of 

passing  any  such  Code  or  system,  and  not  expressly  superseded 

thereby,  are  hereby  expressly  saved  and  confirmed,  and  the  terms 

and  provisions  of  this  Act,  shall  be  construed  as  though  they  were 

part  and  parcel  of  such  Code  or  system  of  laws,  in  case  such  Code 

or  system  shall  be  passed  as  aforesaid. 


APPENDIX. — Constitution  of  the  State  of  Georgia.        967 

Article  1. — Declaration  of  Riorhts. 


CONSTITUTION  OF  THE  STATE  OP  GEORGIA, 

AS   AMENDED    BY    THE    STATE    COKVENTION    AT    MILLEDGE- 
VILLE,  ON  THE  7th  DAY  OF  NOVEMBER,  1865. 


PREAMBLE. 


We,  the  people  of  the  State  of  Georgia,  in  order  to  form  a  per-  Preamble, 
manent  Government,  estiiblish  justice,  in.^ure  domestic  tranquil- 
lity, and  secure  the  blessings  of  liberty  to  ourselves  and  our 
posterity,  acknowledging  and  invoking  the  guidance  of  Almighty 
God,  the  author  of  all  good  government,  do  ordain  and  establish 
this  Constitution  for  the  State  of  Georgia. 


Article  1. — Declaration  of  Rights. 
Article  2. — Legislative  Department. 
AitTlCLE  3. — Executive  Department. 
Article  4. — Judicial  Department. 
Article  5. — Miscellaneous  Provisions. 


ARTICLE    L 


declaration   of   rights. 


SECTION. 

4890.  Duty  of  Government. 

4891.  Life,  liberty,  and  property. 

4892.  Habeas  corpus. 

4893.  Arms — right  to  keep. 

4894.  No  religious  test. 

4895.  Freedom  of  speech. 

4896.  Appeal  and  petition. 

4897.  Persons  charged  with  crime. 

4898.  Life  or  liberty— jeopardized. 

4899.  Corruption  of  blood. 

4900.  Excessive  bail. 


Skction. 

4901.  Power  of  the  Courts. 

4902.  Legislative  Acts. 

4903.  Ex  post  facto  laws. 

4904.  Laws  should  be  general. 

4905.  Power  of  taxation. 

4906.  Private  ways. 

4907.  Unreasonable  searches. 

4908.  Persons  not  to  be  imprisoned. 

4909.  Slavery  prohibited. 

4910.  Enumeration  of  rights. 


§  4890.     1.  Protection  to  person  and  property  is  the  duty  of  Protectioa. 
government. 

§4891.     2.  No  person  shall  be  deprived  of  life,  liberty,   or  Life,iiberty 
property,  except  by  due  process  of  law.  and  property 

§4892.     3.  The  writ  of  habeas  corpus  shall  not  be  suspended,  Habeasoor- 
unless,  in  case  of  rebellion  or  invasion,  the  public  safety  may  re-  ^''^* 
quire  it. 


968        APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  1. — Declaration  of  Rights. 

§4893.     4.  A  well  regulated  militia,  being  necessary  to  the 
Arms,      security  of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed. 

§  4894.     5.  Perfect  freedom  of  religious  sentiment,  be  and  the 

Keiigious  samo  is  hereby  secured,  and  no  inhabitant  of  said  State  shall  ever 

be  molested  in  person  or  property,  nor   prohibited   from   holding 

any  public  office  or  trust  on  account  of  his  religious  opinions. 

§  4895.     6.  Freedom  of  speech,  and  freedom  of  the  press,  are 

Freedom  of  inherent  elements  of  political  liberty.     But  while  every  citizen 

tK^ess.*^^  may  freely  speak  or  write,  or  print  on  any  subject,  he  shall  be 

responsible  for  the  abuse  of  the  liberty. 

§  4896.     7.  The  right  of  the  people  to  appeal  to  the  Courts,  to 
Eight  of  petition  government  on  all  matters  of  legitimate  cognizance,  and 
epeope.    pgj^ggg^^jjy  ^q  asscmblc  for  the  consideration  of  any  matter  of  pub- 
lic concern,  shall  never  be  impaired. 

§  4897.  8.  Every  person  charged  with  an  offense  against  the 
Benefit  of  laws  of  the  State,  shall  have  the  privilege  and  benefit  of  counsel; 
coHBsei.  gbaii  be  furnished,  on  demand,  with  a  copy  of  the  accusation,  and 
a  list  of  the  witnesses  on  whose  testimony  the  charge  against  him 
is  founded ;  shall  have  compulsory  process  to  obtain  the  attend- 
ance of  his  own  witnesses ;  shall  be  confronted  with  the  witnesses 
testifying  against  him,  and  shall  have  a  public  and  speedy  trial 
by  an  impartial  jury,  as  heretofore  practiced  in  Georgia. 

§4898.     9.  No  person  shall  be  put  in  jeopardy  of  life  or  liber- 
jeopardy  of  ty  more  than  once  for  the  same  offense,  save  on  his  or  her  own 
motion  for  a  new  trial  after  conviction,  or  in  case  of  mistrial. 
§4899.     10.  No  conviction  shall  work  corruption  of  blood  or 

Corruption  ^    n      r   '  c 

©f  blood,      general  forfeiture  oi  estate. 

§4900.     11.  Excessive  bail  shall  not  be  required,  nor  excessive 
Bail.       fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 

§4901.     12.  The  power  of  the  Courts  to  punish  for  contempts 
shall  be  limited  by  legislative  acts, 
r    ,\  .,         §4902.     13.  Legislative  acts  in  violation  of  the  Constitution 

Legislative         "^        .,  ,,  a.  in  -i      •,  ^ 

acts.  are  void,  and  the  Judiciary  shall  so  declare  them. 

^"*  §4903.     14.  Ex  post  facto  laws,  laws  impairing  the  obligation 
Bxpogtfac/of  contracts,  and  retroactive  laws  injuriously  affecting  any  right 
4of  the  citizen,  are  prohibited. 

^    §  4904.     15.  Laws   should  have  a  general  operation,   and   no 

Kiwsshaii  general  law  affecting  private  rights  shall  be  varied  in  a  particular 

e genera.    ^^^^  |^^  Special  legislation,  except  with  the  free  consent,  in  wri-     / 

ting,  of  all  persons  to  be  affected  thereby  ;   and  no  person  being     ' 

under  a  legal  disability  to  contract,  is  capable  of  such  free  consent. 

§4905.     16.   The  power  of  taxation  over  the  whole  State  shall 

Powerof  be  exercised  by  the  General  Assembly  only  to  raise  revenue  for 

the  support  of  government,  to  pay  the  public  debt,  to  provide  for 

the  common  defense,  and  for  such  other  purposes  as   the  General 

Assembly  may  be  specially  required  or-empowered  to  accomplish 

by  this  Constitution.     But  the  General  Assembly  may,  by  statute, 


APPENDIX. — Constitution  op  the  State  oe  Georgia.        969 

Article  1. — Declaration  of  Rights. 

grant  t^e  power  of  taxation  for  designated  purposes,  with  such 
limitations  as  they  may  deem  expedient,  to  County  authorities  and 
municipal  corporations,  to  be  exercised  within  their  several  terri- 
torial limits. 

§  4906.  17.  In  cases  of  necessity,  private  ways  may  be  granted  Pnvate 
upon  just  compensation  being  first  paid;  and,  with  this  exception, 
private  property  shall  not  be  taken,  save  for  public  use,  and  then 
only  on  just  compensation  to  be  first  provided  and  paid,  unless 
there  be  a  pressing,  unforeseen  necessity ;  in  which  event  the  Gen- 
eral Assembly  shall  make  early  provision  for  such  compensation. 

§  4907.     18.  The  right  of  the  people  to  be  secure  in  their  per-     unreason- 
sons,  houses,  papers,  and  effects,  against  unreasonable  searches  and  ^^^*^ s®*^^^^®" 
seizures,  shall  not  be  violated ;    and  no  warrant  shall  issue  but 
upon  probable  cause,  supported  by  oath  or  affirmation,  and  par- 
ticularly describing  the  place  or  places  to  be  searched,  and  the 
persons  and  things  to  be  seized. 

§4908.     19.  The  person  of  a  debtor  shall  not  be  detained  in    Person  of 
prison,  after  delivery,  for  the  benefit  of  his  creditors,  of  all  his  * 
estate  not  expressly  exempted  by  law  from  levy  and  sale. 

§  4909.  20.  The  Government  of  the  United  States  having,  as  skvery 
a  war  measure,  proclaimed  all  slaves  held  or  owned  in  this  State,  °^^^^  " 
emancipated  from  slavery,  and  having  carried  that  proclamation 
into  full  practical  effect,  there  shall  henceforth  be,  within  the  State 
of  Georgia,  neither  slavery  nor  involuntary  servitude,  save  as  a 
punishment  for  crime,  after  legal  conviction  thereof;  provided, 
this  acquiescence  in  the  action  of  the  Government  of  the  United 
States  is  not  intended  to  operate  as  a  relinquishment,  waiver,  or 
estoppel  of  such  claim  for  compensation  of  loss  sustained  by  reason 
of  the  emancipation  of  his  slaves,  as  any  citizen  of  Georgia  may 
hereafter  make  upon  the  justice  and  magnanimity  of  that  Govern- 
ment. 

§  4910.     21.  The  enumeration  of  rights  herein  contained  is  a     Enumera- 
part  of  this  Constitution,  but  shall  not  be  construed  to  deny  to  the     ^^  "^ 
people  any  inherent  rights  which  they  have  hitherto  enjoyed. 


ARTICLE  11. 

legislative   department. 


SECTION  I. 


BECTioy. 

4911.  Departments  of  Government. 

4912.  Legislative  power, 

4913.  Meeting  of  General  Assembly. 


Section. 

4914.  Disqualification  of  members. 

4915.  Persons  convicted  of  felony. 

4916.  Persons  holding  public  money. 


§4911.     1.  The  Legislative,  Executive,  and  Judicial   Depart-       Depart- 
ments shall  be  distinct,  and  each  department  shall  be  confided  to  "ernme'^it?"' 


V  A 


970        APPENDIX. — Constitution  of  the  State  of  Georgia. 


Article  2. — Legislative  Department. 


a  separate  body  of  raagistracy.  No  person,  or  cojlection  of  per- 
sons, being  of  one  department,  shall  exercise  any  power  properly 
attached  to  either  of  the  others,  except  in  cases  herein  expressly 
provided. 

§  4912.     2.   The  Legislative  power  shall  be  vested  in  a  General 
Legislative  Assembly,  which  shall  consist  of  a  Senate  and  House  of  Repre- 
^^^^^*        .sentarives,  the  members  whereof  shall  be  elected,  and  returns  of 
the  election  made,  in  the  manner  now  prescribed  by  law  (until 
•changed  by  the  General  Assembly),  on  the  15th  day  of  Novem- 
ber, in  the  present  year,  and  biennially  thereafter,  on  the  first 
Wednesday  of  October,  to  serve  until   their  successors  shall  be 
elected  ;  but  the  General  Assembly  may,  by  law,  change  the  day 
'  of  election. 

§  4913.  3.  The  first  meeting  of  the  General  Assembly,  under 
""Meeting  of  this  Constitution,  shall  be  on  the  first  Monday  in  December  next, 
ture.  ^°^^^^'  after  which  it  shall  meet  annually  on  the  first  Thursday  in  Novem- 
ber, or  on  such  other  day  as  the  General  Assembly  may  prescribe. 
A  majority  of  each  House  shall  constitute  a  quorum  to  transact 
business,  but  a  smaller  number  may  adjourn  from  day  to  day  and 
compel  the  attendance  of  its  absent  members,  as  each  House  may 
provide.  No  session  of  the  General  Assembly,  after  the  first 
above  mentioned,  shall  continue  longer  than  forty  days,  unless 
prolonged  by  a  vote  of  two-thirds  of  each  branch  thereof. 

§  4914.  4.  No  person  holding  any  military  commission,  or  other 
Disquaiifl- appointment,  having  any  emolument  or  compensation  annexed 
members,  thereto,  undcr  this  State,  or  the  United  States,  or  either  of  them 
(except  Justices  of  the  Inferior  Court,  Justices  of  the  Peace,  and 
officers  of  the  militia),  nor  any  defaulter  for  public  money,  or  for 
any  legal  taxes  required  of  him,  shall  have  a  seat  in  either  branch 
of  the  General  Assembly;  nor  shall  any  Senator  or  Representa- 
tive, after  his  qualification  as  such,  be  elected  by  the  General 
Assembly,  or  appointed  by  the  Governor,  with  the  advice  and 
consent  of  two-thirds  of  the  Senate,  to  any  office  or  appointment, 
having  any  emolument  or  compensation  annexed  thereto,  during 
the  time  for  which  he  shall  have  been  elected. 

§  4915.     5.  No  person  convicted  of  any  felony  before  any  Court 
Unpardon- of  this  State,  or  of  the  United   States,  shall  be  eligible  to  any 
eligible.     '  officc,  or  appointment  of  honor,  profit,  or  trust,  within  this  State, 
until  he  shall  have  been  pardoned. 

§  4916.     6.  No  person  who  is  a  collector  or  holder  of  public 
Holders  of  money,  shall  be  eligible  to  any  office  in  this  State,  until  the  same 

public     nio-  .  . 

ney.  is  accouuted  for  and  paid  into  the  treasury. 


SECTION  II. 


Section. 

4917.  Senatorial  Districts. 

4918.  Qualifications  of  Senators. 


Sectiox. 

4919.  The  President. 

4920.  Sole  power  of  impeachment. 


APPENDIX. — Constitution  of  the  State,  of  Georgia.        971 


Articl(F2. — Legislative  Department. 


§  4917.     1.  There  shall  be  forty-four  Senatorial  Districts  in  the    senatorial 
State  of  Georgia,  each  composed  of  three  contiguous  Counties, 
from  each  of  which  Districts  one  Senator  shall  be  chosen,  until 
otherwise  arranged,  as  hereinafter  provided. 

The  said  Districts  shall  be  constituted  of  Counties  as  follows : 

The  First  District  of  Chatham,  Bryan,  and  Effingham. 

Tiie  Second  District  of  Liberty,  Tatnall,  and  Mcintosh.  • 

The  Third  District  of  Wayne,  Pierce,  and  Appling. 

The  Fourth  District  of  Glynn,  Camden,  and  Charlton. 

The  Fifth  District  of  Coffee,  Ware,  and  Clinch. 

The  Sixth  District  of  Echols,  Lowndes,  and  Berrien. 

The  Seventh  District  of  Brooks,  Thomas,  and  Colquitt. 

The  Eighth  District  of  Decatur,  Mitchell,  and  Miller. 

The  Ninth  District  of  Early,  Calhoun,  and  Baker.  , 

The  Tenth  District  of  Douglierty,  Lee,  and  Worth. 

The  Eleventh  District  of  Clay,  Randolph,  and  Terrell. 

The  Twelfth  District  of  Stewart,  Webster,  and  Quitman.  * 

The  Thirteenth  District  of  Sumter,  Schley,  and  Macon, 

The  Fourteenth  District  of  Dooly,  Wilcox,  and  Pulaski. 

The  Fifteenth  District  of  Montgomery,  Telfair,  and  Irwin. 

The  Sixteenth  District  of  Laurens,  Johnson,  and  Emanuel. 

The  Seventeenth  District  of  Bullock,  Scriven,  and  Burke. 

The  Eighteenth  District  of  Richmond,  Glasscock,  and  Jefferson. 

The  Nineteenth  District  of  Taliaferro,  Warren,  and  Greene. 

The  Twentieth  District  of  Baldwin,  Hancock,  and  Washington. 

The  Twenty-First  District  of  Twiggs,  Wilkinson,  and  Jones. 

The  Twenty-Second  District  of  Bibb,  Monroe,  and  Pike. 

The  Twenty-Third  District  of  Houston,  Crawford,  and  Taylor. 

The  Twenty-Fourth  District  of  Marion,  Chattahoochee,  and  Muscogee. 

The  Twenty -Fifth  District  of  Harris,  Upson,  and  Talbot. 

The  Twenty-Sixth  District  of  Spalding,  Butts,  and  Fayette. 

The  Twenty-Seventh  District  of  Newton,  Walton,  and  Clark. 

The  Twenty-Eighth  District  of  Jasper,  Putnam,  and  Morgan. 

The  Twenty  Ninth  District  of  Wilkes,  Lincoln,  and  Columbia. 

The  Thirtieth  District  of  Oglethorpe,  Madison,  and  Elbert. 

The  Thirty-First  District  of  Hart,  Franklin,  and  Habersham. 

The  Thirty- Second  District  of  White,  Lumpkin,  and  Dawson. 

The  Thirty-Third  District  of  Hall,  Banks,  and  Jackson. 

The  Thirty-Fourth  District  of  Gwinnett,  DeKalb,  and  Henry. 

The  Thirty-Fifth  District  of  Clayton,  Fulton,  and  Cobb. 

The  Thirty-Sixth  District  of  Meriwether,  Coweta,  and  Campbell. 

The  Thirty-Seventh  District  of  Troup,  Heard,  and  Carroll. 

The  Thirty-Eighth  District  of  Haralson,  Polk,  and  Paulding. 

The  Thirty-Ninth  District  of  Cherokee,  Milton,  and  Forsyth. 

The  Fortieth  District  of  Union,  Towns,  and  Rabun. 

The  Forty-First  District  of  Fannin,  Gilmer,  and  Pickens. 

The  Forty-Second  District  of  Bartow,  Floyd,  and  Chattooga. 

The  Forty-Third  District  of  Murray,  Whitfield,  and  Gordon. 

The  Forty-Fourth  District  of  Walker,  Dade,  and  Catoosa. 

If  a  new  County  be  established,  it  shall  be  added  to  a  District       if  new 
which  it  adjoins.     The  Senatorial  Districts  may  be  changed  bj  created!^    * 
the  General  Assembly,  but  only  at  the  first  session  after  the  taking 
of  each  new  census  by  the  United  States  Government,  and  their 
number  shall  never  be  increased. 

§  4918.     2.  No  person  shall  be  a  Senator  who  shall  not  have     Quaiifica- 
attained  to  the  age  of  twenty-five  years  and  be  a  citizen  of  the 
United  States,  and  have  been  for  three  years  an  inhabitant  of  this 
State,  and  for  one  year  a  resident  of  the  District  from  which  he  is 
chosen. 


tion  of  Sen- 
ators. 


972       APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  2. — Legislative  DepaTtment. 

§  4919.     3.  The  presiding  officer  shall  be  styled  the  President 
President,   of  the  Senate,  and  shall  be  elected  viva  voce  from  their  own  body. 
§  4920.     4.   The  Senate  shall  have  the  sole  power  to  try  all  im- 
Triaiofim-  peachmcnts.    When  sitting  for  that  purpose,  they  shall  be  on  oath 
j>eacimen  s.  ^^  affirmation,  and  no  person  shall  be  convicted  without  the  con- 
currence of  two-thirds  of  the  members  present.     Judgment,  in 
cases  of  impeachment,  shall  not  extend  further  than  removal  from 
office,  and  disqualification  to  hold  and  enjoy  any  office  of  honor, 
profit,  or  trust,  within  this  State;  but  the  party  convicted  shall, 
nevertheless,  be  liable  and  subject  to  indictment,  trial,  judgment, 
and  punishment,  according  to  law. 


SECTION  III. 


Section. 

4921.  House  of  Kepresentatives. 

4922.  Qualification  of  members. 

4923.  Speaker  of  the  House. 


Section. 

4924.  Power  of  impeachment. 

4925.  Bills  for  raising  revenue. 


bers. 


§  4921.     1,  The  House  of  Representatives  shall  be  composed     J 
House  of  as  follows:  The  thirty-seven  Counties  having  the  largest  represent-     1 
^^epresenta-  ^^^^^  population  shall  havc  two  Representatives  each ;  every  other     1 
county  shall  have  one  Representative.     The  designation  of  the 
Counties  having  two  Representatives  shall  be  made  by  the  Gene- 
ral Assembly  immediately  after  the  taking  of  each  census. 

§4922.     2.  No  person  shall  be  a  Representative  who  shall  not 

Qaaiifica-  havc  attained  to  the  age  of  twenty-one  years,  and  be  a  citizen  of 

^Ts.**^"^*^"^'  the  United  States,  and  have  been  for  three  years  an  inhabitant  of 

this  State,  and  for  one  year  a  resident  of  the  County  which  he 

represents. 

§  4923.     3.  The  presiding  officer  of  the  House  of  Representa- 
Speakerof  tives  shall  bc  stylcd  the  Speaker,  and  shall  be  elected  viva  voce 
from  their  own  body. 

§  4924.  4.  They  shall  have  the  sole  powder  to  impeach  all  per- 
sons who  have  been  or  may  be  in  office. 

§  4925.  5.  All  bills  for  raising  revenue  or  appropriating  money, 
shall  originate  in  the  House  of  Representatives,  but  the  Senate 
may  propose  or  concur  in  amendments,  as  in  other  bills. 


tlie  House. 


Impeach 

Biient. 


Revenue. 


SECTION    IV. 


Section. 

4926.  Election  and  return  of  members. 

4927.  May  punish  for  contempts. 

4928.  Members  free  from  arrest. 

4929.  Journal  of  each  House. 

4930.  Passing  bills. 


Section. 

4931.  Acts  shall  be  signed. 

4932.  Adjournments. 

4933.  Oath  of  members. 

4934.  Yeas  and  nays. 


§4926.     1.  Each  House  shall  be  the  judge  of  the  election  re- 


APPENDIX. — Constitution  of  the  State  of  Georgia.        973 

• — ■  ■  ■ — - — ■ — — "" — ' 1 

Article  2. — Legislative  Department. 

turns  and  qualifications  of  its  own  members,  and  shall  have  power      Election 
to  punish  them  for  disorderly  behavior  or  misconduct,  by  censure, 
fine,  imprisonment,  or  expulsion,  but  no  member  shall  be  expelled 
except  by  a  vote  of  two-thirds  of  the  House  from  which  he  is  ex- 
pelled. 

M927.     2.  Each  House  may  punish,  by  imprisonment  not  ex-  Each  House 

m  IV    n  ti  n ^  so 

tending  beyond  the  session,  'any  person  not  a  member,  who  shall  offenders." 
be  guilty  of  a  contempt  by  any  disorderly  behavior  in  its  pres- 
ence ;  or  who,  during  the  session,  shall  threaten  injury  to  the  per- 
son or  estate  of  any  member,  for  any  thing  said  or  done  in  either 
House  ;  or  who  shall  assault  any  member  therefor ;  or  who  shall 
assault  or  arrest  any  witness  going  to  or  returning  therefrom ;  or 
who  shall  rescue,  or  attempt  to  rescue,  any  person  arrested  by  or- 
der of  either  House. 

§4928.     3.  The  members  of  both  Houses   shall  be  free,  from       Exei-D],t 
arrest  during  their  attendance  on  the  General  Assembly,  and  in  ^^^  ^"^^^' 
going  .to  and  returning  therefrom,  except  for  treason,  felony,  or 
breach  of  the  peace.     And  no  member  shall  be  liable  to  answer  in 
any  other  place,  for  any  thing  spoken  in  debate  in  either  House. 

§4929.  4.  Each  House  shall  keep  a  journal  of  its  proceed-  EaciiHouse 
ings,  and  publish  them  immediately  after  its  adjournment.  The  Journai?^^  ^ 
yeas  and  nays  of  the  members  on  any  question,  shall,  at  the  de- 
sire of  one-fifth  of  the  members  present,  be  entered  on  the  jour- 
nals. The  original  journals  shall  be  preserved  (after  publication) 
in  the  ofiSce  of  the  Secretary  of  State,  but  there  shall  be  no  other 
record  thereof. 

§4930.  5.  Every  bill,  before  it  shall  pass,  shall  be  read  three  .  Passing 
times,  and  on  three  separate  and  distinct  days,  in  each  House,  unless 
in  cases  of  actual  invasion  or  insurrection.  Nor  shall  any  law  or 
ordinance  pass  which  refers  to  more  than  one  subject-matter,  or 
contains  matter  diiferent  from  what  is  expressed  in  the  title 
thereof. 

§  4931.     6.  All  acts  shall  be  signed  by  the  President  of  the      Acts-by 
Senate  and  the  Speaker  of  the  House  of  Representatives,  and  no  Jl^^  ^^""" 
bill,  ordinance,  or  resolution,  intended  to  have  the  eifect  of  law, 
which  shall  have  been  rejected  by  either  House,  shall  be  again 
proposed  under  the  same  or  any  other  title,  without  the  consent  of 
two-thirds  of  the  House  by  which  the  same  was  rejected. 

§  4932.     7.  Neither  House  shall  adjourn  for  more  than  three      Adjourn- 
days,  nor  to  any  other  place,  without  the  consent  of  the  other,  ™^°^^' 
and  in  case  of  disagreement  between  the  two  Houses,  on  a  ques- 
tion of  adjournment,  the  Governor  may  adjourn  them. 

§4933.     8.  Every  Senator  and  Representative,  before  taking  oathofsen- 
his  seat,  shall  take  an  oath  or  affirmation  to  support  the  Constitu-  RepresenSf 
tion  of  the  United  States  and  of  this  State,  and  also  that  he  hath  t^^^^- 
not  practiced  any  unlawful  means,  either  directly  or  indirectly,  to 
procure  his  election.     And  every  person  convicted  of  having  given 


974       APPENDIX. — Constitution  of  the  State  of  Georgia. 


Article  2. — Legislative  Department. 


nays. 


or  offered  a  bribe,  sball  be  disqualified  from  serving  as  a  member 
of  either  House  for  the  term  for  which  he  was  elected. 

§4934.     9.  Whenever  this  Constitution  requires  an  act  to  be 
Teas  and  passed  bj  two-thirds  of  both   Houses,  the   yeas  and  nays  on  the 
passage  thereof,  shall  be  entered  on  the  journals  of  each. 


SECTION    V. 


Section. 

4935.  Powers  of  the  General  Assembly. 

4936.  New  Counties— changing  lines. 

4937.  Promotion  of  learning. 


Section. 

4938.  Grant  pardons. 

4939.  Free  persons  of  color. 


§  4935.     1.  The  General  Assembly  shall  have  power  to  make 

Powers  of  all  laws  and  ordinances  consistent   with  this  Constitution,  and  not 

As^semSyr^  repugnant  to   the  Constitution  of  the  United   States,  which  they 

shall  d^em  necessary  and  proper  for  the  welfare  of  the  State. 

§4936.     2.  They  mny   alter   the   boundaries  of  Counties,  and 

Change  of  lay  off  and  establish  new  Counties,  but   every  bill   to  establish  a 

and^^^i^e  w  n^w  Couuty  shall  be  passed  by  at  least  two-thirds  of  the  members 

Counties,      present,  in  each  branch  of  the  General  Assembly. 

§4937.     3.  The  General  Assembly  shall  have  power  to  appro- 
May  appro- priate  money  for  the  promotion  of  learning  and  science,  and  to 
priatemoney  pyQyj(jg  f^j.  i\^q  educatiou  of  the  people,  and  shall  provide  for  the 
early  resumption  of  the  regular  exercises  of  the   University  of 
Georgia,  by  the  adequate  endowment  of  the  same. 

§4938.     4.  The  General  Assembly  shall  have  power,  by  a  vote 
Pardons,     of  two-thirds  of  each  branch,  to  grant  pardons  in  cases  of  final 
conviction  for  treason,  and  to  pardon  or  commute  after  final  con- 
viction in  capital  cases. 

§4939.  5.  It  shall  be  the  duty  of  the  General  Assembly  at 
Free  per-  its  ncxt  scssion,  and  thereafter  as  the  public  welfare  may  require, 
to  provide  by  law  for  the  government  of  free  persons  of  color, 
for  the  protection  and  security  of  their  persons  and  property, 
guarding  them  and  the  State  against  any  evil  that  may  arise  from 
their  sudden  emancipation,  and  prescribing  in  what  cases  their 
testimony  shall  be  admitted  in  the  Courts ;  for  the  regulation  of 
their  transactions  with  citizens ;  for  the  legalizing  of  their  exist- 
ing, and  the  contracting  and  solemnization  of  their  future  marital 
relations,  and  connected  therewith  their  rights  of  inheritance  and 
testamentary  capacity;  and  for  the  regulation  or  prohibition  of 
their  immigration  into  this  State  from  other  States  of  the  Union, 
or  elsewhere.  And  further,  it  shall  be  the  duty  of  the  General 
Assembly  to  confer  jurisdiction  upon  Courts  now  existing,  or  to 
create  County  Courts  with  jurisdiction  in  criminal  cases  excepted 
from  the  exclusive  jurisdiction  of  the  Superior  Court,  and  in  civil 
cases  whereto  free  persons  of  color  may  be  parties. 


sons  of  color. 


APPENDIX.— Constitution  of  the  State  of  Georgia.        975 


Article  2. — Legislative  Department. 


SECTION  VI. 


Section. 

4940.  Restriction  of  powers. 

4941.  Money — how  drawn. 


Section. 

4942.  Donations — how  made. 

4943.  Stockholders. 


§  4940.    1.  The  General  Assembly  shall  have  no  power  to  grant      oorpora- 
corporate  powers  and' privileges  to  private  companies,  except  to  an(i^7whIt 
banking,  insurance,  railroad,  canal,  plank  road,  navigation,  mining,  ^^^^^  grant- 
express,  lumber,  manufacturing,  and  telegraph  companies ;  nor  to 
make  or  change  election  precincts ;  nor  to  establish  bridges  and 
ferries;  nor  to  change  names,  or  legitimate  children;  but  shall, 
by  law,  prescribe  the  manner  in  which  such  power  shall  be  exer- 
cised by  the  Courts.     But  no  bank  charter  shall  be  granted  or 
extended,  and  no  act  passed,  authorizing  the  suspension  of  specie 
payment  by  any  chartered  bank,  except  by  a  vote  of  two-thirds  of 
each  branch  of  the  General  Assembly. 

§  4941.     2.  No  money  shall  be  drawn  from  the  Treasury  of  this      Money- 
State,  except  by  appropriation  made  by  law ;  and  a  regular  state-  from    The 
ment  and  account  of  the  receipt  and  expenditure  of  all  public  Treasury. 
money  shall  be  published  from  time  to  time. 

§  4942.     3.  No  vote,  resolution,  law,  or  order,  shall  pass,  grant-  Donations, 
ing  a  donation  or  gratuity  in  favor  of  any  person,  except  by  the 
concurrence  of  two-thirds  of  the  General  Assembly. 

§  4943.     4.  No  law  shall  be  passed  by  which  a  citizen  shall  be       Citizens 
compelled,  directly  or  indirectly,  to  become  a  stockholder  in,  or  "d  To^con- 
contribute  to  a  railroad,  or  other  work  of  internal  improvement,  SSdcom^ 
"without  his  consent,  except  the  inhabitants  of  a  corporate  town  or  panies,etc. 
city.     This  provision  shall  not  be  construed  to  deny  the  power  of 
taxation  for  the  purpose  of  making  levees  or  dams  to  prevent  the 
overflow  of  rivers. 


ARTICLE  III. 

executive   department. 


SECTION  I. 


Skctiok. 

4944.  Executive  powers. 

4945.  Governor— how  elected. 

4946.  Qualification  of  Governor. 


Section. 

4947.  Death,  resignation,  or  disability. 

4948.  Oath  of  Governor. 


§  4944.    1.  The  Executive  power  shall  be  vested  in  a  Governor,     Executive 
the  first  of  whom,  under  this  Constitution,  shall  hold  the  office  p'^^^®^' 
from  the  time  of  his  inauguration,  as  by  law  provided,  until  the 
election  and  qualification  of  his  successor.     Each  Governor  subse- 
quently elected  shall  hold  the  office  for  two  years,  and  until  his 
successor  shall  be  elected  and  qualified,  and  shall  not  be  eligible 


976       APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  3. — Executive  Department 

to  re-election,  after  the  expiratian  of  a  second  term,  for  the  period 
of  four  years.  He  shall  have  a  competent  salary,  which  shall  not 
be  increased  nor  diminished  during  the  time  for  which  he  shall 
have  been  elected ;  neither  shall  he  receive,  within  that  time,  any 
other  emolument  from  the  United  States,  or  either  of  them,  nor 
from  any  foreign  power. 

§  4945.     2.  The  Governor  shall  be  elected  by  the  persons  qual- 
^ Governor—  ified  to  votc  for  members  of  the  General  Assembly,  on  the  fifteenth 

MOW  Glcctcd  '  *J  ' 

'  da}^  of  November,  in  the  year  eighteen  hundred  and  sixty-five, 
and  biennially  thereafter,  on  the  first  Wednesday  of  October,  until 
such  time  be  altered  by  law^,  which  election  shall  be  held  at  the 
places  of  holding  general  elections  in  the  several  Counties  of  this 
State,  in  the  manner  prescribed  for  the  election  of  members  of  the 
^  General  Assembly.  The  returns  for  every  election  of  Governor 
shall  be  sealed  up  by  the  managers,  separately  from  other  returns, 
and  directed  to  the  President  of  the  Senate  and  Speaker  of  the 
House  of  Representatives,  and  transmitted  to  the  Governor,  or  the 
person  exercising  the  duties  of  Governor  for  the  time  being,  who 
shall,  without  opening  the  said  returns,  cause  the  same  to  be  laid 
before  the  Senate  on  the  day  after  the  two  houses  shall  have  been 
organized;  and  they  shall  be  transmitted  by  the  Senate  to  the 
House  of  Representatives.  The  members  of  each  branch  of  the 
General  Assembly  shall  convene  in  the  Representative  Chamber, 
and  the  President  of  the  Senate  and  the  Speaker  of  the  House  of 
Representatives  shall  open  and  publish  the  returns  in  presence  of 
the  General  Assembly  ;  and  the  person  having  the  majority  of  the 
whole  number  of  votes  given  in  shall  be  declared  duly  elected 
Governor  of  this  State;  but  if  no  person  have  such  majority,  then 
from  the  two  persons  having  the  highest  number  of  votes,  who 
shall  be  in  life,  and  shall  not  decline  an  election  at  the  time  ap- 
pointed for  the  Legislature  to  elect,  the  General  Assembly  shall 
immediately  elect  a  Governor  viva  voce;  and  in  all  cases  of  elec- 
tion of  a  Governor  by  the  General  Assembly,  a  majority  of  the 
votes  of  the  members  present  shall  be  necessary  for  a  choice. 
Contested  elections  shall  be  determined  by  both  houses  of  the  Gen- 
eral Assembly,  in  such  manner  as  shall  be  prescribed  by  law\ 
§  4946.  3.  No  person  shall  be  eligible  to  the  office  of  Governor 
Quaiiflca-  who  shall  not  have  been  a  citizen  of  the  United  States  twelve 

«raoi-.^^^^^  years,  and  an  inhabitant  of  this  State  six  years,  and  who  hath  not 
attained  the  age  of  thirty  years. 

§  4947.     4.  In  case  of  the  death,  resignation,  or  disability  of 
in  case  of  the  Govcmor,  the  President  of  the  Senate  shall  exercise  the  Execu- 

LbUity?^^^^  tive  powers  of  the  government  until  such  disability  be  removed,  or 
a  successor  is  elected  and  qualified.  And  in  case  of  the  death, 
resignation,  or  disability  of  the  President  of  the  Senate,  the 
Speaker  of  the  House  of  Representatives  shall  exercise  the  Execu- 
tive power  of  the  government  until  the  removal  of  the  disability 
or  the  election  and  qualification  of  a  Governor. 


APPENDIX. — Constitution  of  the  State  of  Georgia.        977 


Article  3. — Executive  Department. 


S  4948.     5.  The  Governor  shall,  before  he  enters  on  the  duties  ^    Oath  of 


of  his  office,  take  the  following  oath  or  affirmation  :  "I  do  solemn- 
iy  swear,  (or  affirm,  as  the  case  may  be,)  that  I  will  faithfully  exe- 
cute the  office  of  Governor  of  the  State  of  Georgia,  and  will,  to 
the  best  of  my  abilities,  preserve,  protect,  and  defend  the  Consti- 
tution thereof,  and  [of j  the  Constitution  of  the  United  States  of 
America,"  i 


Governor. 


SECTION    II. 


Section. 

4949.  Commander-in-Chief. 

4950.  Pardons  and  reprieves. 

4951.  Vacancies  and  writs  of  election. 

4952.  May  appoint  officers. 

4953.  Persons  once  rejected. 


Skction. 

4954.  Governor  has  revision  of  bills. 

4955.  Resolutions  and  orders. 

4956.  State  Hoase  officers. 

4957.  Great  Seal  of  State. 

4958.  May  appoint  secretaries. 


§  4949.  1.  The  Governor  shall  be  Commander-in-Chief  of^the 
army  and  navy  of  this  State,  and  of  the  militia  thereof. 

§  4950.  2.  He  shall  have  power  to  grant  reprieves  for  offenses 
against  the  State,  except  in  cases  of  impeachment,  and  to  grant 
pardons,  or  to  remit  any  part  of  a  sentence,  in  all  cases  after 
conviction,  except  for  treason,  murder,  or  other  capital  offenses, 
in  which  cases  he  may  respite  the  execution,  and  make  report 
thereof  to  the  next  General  Assembly. 

§  4951.  3.  He  shall  issue  writs  of  election  to  fill  vacancies  that 
happen  in  the  Senate  or  House  of  Representatives,  and  shall  have 
power  to  convene  the  General  Assembly  on  extraordinary  occa- 
sions, and  shall  give  them,  from  time  to  time,  information  of  the 
state  of  the  republic,  and  recommend  to  their  consideration  such 
measures  as  he  may  deem  necessary  and  expedient. 

§4952.  4.  When  any  office  shall  become  vacant  by  death, 
resignation,  or  otherwise,  the  Governor  shall  have  power  to  fill 
such  vacancy,  unless  otherwise  provided  for  by  law,  and  persons  so 
appointed  shall  continue  in  office  until  a  successor  is  appointed 
agreeably  to  the  mode  pointed  out  by  this  Constitution,  or  by  law 
in  pursuance  thereof. 

§  4953.  5.  A  person  once  rejected  by  the  Senate  shall  not  be 
re- appointed  by  the  Governor  to  the  same  office  during  the  same 
session  or  the  recess  thereafter. 

§  4954.  6.  The  Governor  shall  have  the  revision  of  all  bills 
passed  by  both  Houses,  before  the  same  shall  become  laws,  but 
two-thirds  of  each  House  may  pass  a  law  notwithstanding  his  dis- 
sent ;  and  if  any  bill  should  r.ot  be  returned  by  the  Governor  with- 
in five  days  (Sundays  excepted)  after  it  has  been  presented  to  him, 
the  same  shall  be  a  law,  unless  the  General  Assembly,  by  their 
adjournment,  shall  prevent  its  return.  He  may  approve  any  ap- 
propriation and  disapprove  any  other  appropriation  in  the  same 


Command- 
er-in-Chief. 

Pardons. 


Writs  of 
election. 


Vacancies. 


Persons 
rejected. 


Revision 
of  bills. 


978        APPENDIX. — Constitution  of  the  State  of  Georgia. 


Article  3. — Executive  Department. 


Two-third 
TOte 


Ee  solutions, 
orders,  etc. 


Secretary  of 
State,  Comp- 
troller, Trea- 
snrer,  and 
Survey  or- 
©eneral. 


Great  Seal 
of  the  State. 


May  appoint 
Secretaries. 


bill,  and  the  latter  shall  not  be  effectual  unless  passed  bj  two" 
thirds  of  each  Hous-e. 

§4955.  7.  Every  vote,  resolution,  or  order,  to  which  the  con- 
currence of  both  Houses  may  be  necessary,  except  on  a  question 
of  election  or  adjournment,  shall  be  presented  to  the  Governor, 
and  before  it  shall  take  eff'ect,  be  approved  by  him,  or  being  dis- 
approved, shall  be  repassed  by  two-thirds  of  each  House,  accord- 
ing to  the  rules  and  limitations  prescribed  in  case  of  a  bill. 

§4956.  8.  There  shall  be  a  Secretary  of  State,  a  Comptroller 
General,  a  Treasurer,  and  Surveyor- General,  elected  by  the  Gen- 
eral Assembly,  and  they  shall  hold  their  offices  for  the  like  period 
as  the  Governor,  and  shall  have  a  competent  salary,  which  shall 
not  be  increased  or  diminished  during  the  period  for  which  they 
shall  have  been  elected.  The  General  Assembly  may  at  any  time 
consolidate  any  two  of  these  offices,  and  require  all  the  duties  to 
be  discharged  by  one  officer. 

§  4957.  9.  The  Great  Seal  of  the  State  shall  be  deposited  in 
the  office  of  the  Secretary  of  State,  and  shall  not  be  affixed  to  any 
instrument  of  writing,  but  by  order  of  the  Governor  or  General 
Assembly,  and  that  used  previously  to  the  year  1861,  shall  be  the 
Great  Seal  of  the  State. 

§  4958.  10.  The  Governor  shall  have  powder  to  appoint  his  own 
Secretaries,  not  exceeding  two  in  number. 


ARTICLE   IV. 

JUDICIAL     DEPARTMENT. 


SECTION    I. 


Judicial 
power. 


Supreme 
Court. 


Section. 

4959.  Judicial  department. 

4960.  Supreme  Court. 


Section. 

4961.  Jurisdiction  not  original. 

4962.  Disposition  of  cases. 


§4959.  1.  The  Judicial  powers  of  this  State  shall  be  vested 
in  a  Supreme  Court  for  the  correction  of  errors,  a  Superior,  Infe- 
rior, Ordinary,  and  Justices'  Courts,  and  in  such  other  Courts  as 
have  been,  or  may  be,  established  by  law. 

§4960.  2.  The  Supreme  Court  shall  consist  of  three  Judges, 
who  shall  be  elected  by  the  General  Assembly,  for  such  term  of 
years — not  less  than  six — as  shall  be  prescribed  by  law,  and  shall 
continue  in  office  until  their  successors  shall  be  elected  and  quali- 
fied, removable  by  the  Governor  on  the  address  of  two-thirds  of 
each  branch  of  the  General  Assembly,  or  by  impeachment  and 
conviction  thereon. 

§4961.  3.  The  said  Court  shall  have  no  original  jurisdiction, 
Jurifldiction.  but  shall  be  a  Court  alone  for  the  trial  and  correction  of  errors  in 


APPENDIX.—CONSTITUTION  OF    THE  StATE  OF  GEORGIA.  979 


Article  4. — Judicial  Department. 


law  and  equity  from  the  Superior  Courts  of  the  several  Circuits, 
and  from  the  City  Courts  of  the  cities  of  Savannah  and  Augusta, 
and  such  other  like  Courts  as  may  hereafter  be  established  in  other 
cities,  and  shall  sit  "at  the  Seal  of  Governnient "  at  such  time  or 
times  in  each  year,  as  the  General  Assembly  shall  prescribe,  for 
the  trial  and  determination  of  writs  of  error  from  said  Courts. 

§  4962.  4.  The  said  Court  shall  dispose  of  and  finally  deter-  Cases— iiow 
mine  every  case  on  the  docket  of  such  Court,  at  the  first  or  second 
term  after  such  writ  of  error  brought ;  and  in  case  th^  plaintiff  in 
error  shall  not  be  prepared  at  the  first  term  of  such  Court,  after 
error  brought,  to  prosecute  the  case,  unless  precluded  by  some 
providential  cause  from  such  prosecution,  it  shall  be  stricken  from 
the  docket  and  the  judgment  below  affirmed.  And  in  any  case 
that  may  occur,  the  Court  may,  in  its  discretion,  wlthold  its  judg- 
ment until  the  term  next  after  the  argument  thereon. 


SECTION     II. 


Section. 

4963.  Judges  of  the  Superior  Court. 
49G4.  Jurisdiction  of  Superior  Court, 

4965.  Exclusive  jurisdiction. 

4966.  Venue  and  change  of. 

4967.  Titles  to  land. 

4968.  Appellate  jurisdiction. 


Section. 

4969.  Certiorari  and  new  trials. 

4970.  Mandamus,  prohibition,  etc. 

4971.  Jurisdiction  in  other  cases. 

4972.  Joint  obligors. 

4973.  Maker  and  indorser. 

4974.  Sits  in  each  County, 


Vacancies. 


§4963.     1.   The  Judges  of  the  Superior  Courts  shall  be  elected     judges  of 
on  the   first  Wednesday  in  January,  until  the  Legislature  shall  STurts!^^'^^*' 
otherwise  direct,  immediately  before   the  expiration  of   the  term 
for  which   they  or  either  of  them  may  have  been  appointed  or 
elected,  from  the  Circuits  in  which  they  are  to  serve,  by  a  major- How  elected 
ity  vote  of  the  people  of  the  Circuit  qualified  to  vote  for  members 
of  the  General  Assembly,  for  the  term  of  four  years — vacancies 
to  be  filled  as  is  provided   by  the  laws  of  force  prior  to  January 
1st  1861 — and  shall  continue  in  office  until  their   successors  shall 
be  elected  and   qualified  ;  removable  by  the  Governor  on  the  ad- 
dress of  two-thirds  of  each  branch  of   the  General  Assembly,  or 
by  impeachment  and  conviction  thereon. 

§  4964.     2.   The  Superior  Court  shall  have  exclusive  jurisdic-      jurisdic- 
tion in   all  cases  of  divorce,  both  total  and  partial;  but  no  total"       " 
divorce  shall  be  granted  except  on  the  concurrent  verdicts  of  two 
special  juries.     In  each  divorce  case,  the  Court  shall  regulate  the 
rights  and  disabilities  of  the  parties. 

§4965.     3.  The  Superior  Courts  shall  also  have  exclusive  juris- 
diction in  all  criminal  cases,  except  as  relates  to  fines  for  neglect  ^°"^^'^*'*^* 
of  duty,  contempts  of  Court,  violation  of  road   laws,  obstructions 
of  water  courses,  and  in  all  other  minor  offenses  which  do  not  sub- 
ject the  offender  or  offenders  to  loss  of  life,  limb,  or  member,  or 


tion  of. 


Exdusiye 


980        APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  4. — Judicial  Department. 

to  confinement  in  the  penitentiary  ;  jurisdiction  of  all  such  cases 
shall  be  vested  in  such  County  or  Corporation  Courts,  or  such  other 
Courts,  judicatures,  or  tribunals  as  now  exist,  or  may  hereafter  be 
constituted,  under  such  rules  and  regulations  as  the  Legislature 
may  have  directed,  or  may  hereafter  by  law  direct. 

§  4966.  4.  All  criminal  cases  shall  be  tried  in  the  County  where 
c8ses"w"hCTe  ^^^  Crime  was  committed,  except  in  cases  where  a  jury  can  not 
tried  be  obtained. 

§  4967.     5.  The  Superior  Court  shall  have  exclusive  jurisdic- 
Casesre-  tion  in  all   cases  respecting  titles  to  land,  which  shall  be  tried  in 
Kto'^iand'  the  County  where  the  land  lies ;    and  also  in  all  equity  causes 
which  shall  be  tried  in  the  County  where   one  or  more  of  the  de- 
fendants reside,  against  whom  substantial  relief  is  prayed. 

§  4968.     6.  It  shall  have  appellate  jurisdiction  in  all  such  cases 

Appellate        *^  .  ^     ^  ^  ^  '^ 

jurisdTOticB.  as  may  be  provided  by  law. 

§  4969.     7.  It  shall  have  power  to  correct  errors   in   inferior 
To  correct  iudicatorics   by  writ  of  certiorari,  and   to  erant  new  trials  in  the 

errors       I)  v 

©ertiorari.     Superior  Court  on  proper  and  legal  grounds. 

§4970.     8.   It  shall  have  power   to  issue  writs   of  mandamus. 
Issue  writs  prohibition,  scire  facias,  and   all   other  writs  which  may  be  neces- 
US,  etc.        sary  for  carrying  its  powers  fully  into  efi'ect. 

§  4971.     9.   The  Superior  Court  shall  have  jurisdiction   in    all 

jnrisdiction  other  civil  cascs,  and  in  them  the  General  Assembly  may  give 

c^ses.^     ^^  concurrent  jurisdiction  to  the  Inferior  Court,  or  such  other  County 

Court  as  they  may  hereafter  create,  which  cases  shall  be  tried  in 

the  County  w^here  the  defendant  resides. 

§  4972.     10.  In  case  of  joint  obligors,  or  joint  promissors  or 
jumt  ©b-  copartners,  or  joint  trespassers  residing  in  different  Counties,  the 
igoM.         g^-^  ^g^^  l^g  brought  in  either  County. 

§4973.     11.  In  case  of  a  maker  and  indorser   or  indorsers  of 
Maker  aad  promissory  notcs  residing  in  different  Counties  in  this  State,  the 
mdorser.       ^^.xnQ  may  be  sued  in  the  County  where  the  maker  resides. 

§  4974.     12.  The  Superior  Court  shall  sit  in  each  County  not 

SeBsions  of  less  than  twice  in  every  year,  at  such  stated  times  as  have  been  or 

may  be  appointed  by  the  General  Assembly,  and  the  Inferior  and 

County  Courts  at  such  times  as  the  General  Assembly  may  direct. 


I 


SECTION    III. 

IBection.  .  I  Section. 


4075.  Salaries  of  Judges. 

4976.  Attorney  and  Solicitors  General. 

4977.  Justices  and  Judge— ColTrts,  etc. 


4978.  Justices  of  the  Peace. 

4979.  Court  of  Ordinary. 


§  4975.     1.  The  Judges  shall  have  salaries   adequate  to  their 

Salary  «f  serviccs  fixcd  by  law,  which  shall  not  be  diminished  nor  increased 

"  °^^'        during  their  continuance  in  office,  but  shall   not  receive  any  other 

perquisites  or  emoluments  whatever,   from  parties  or  others,  on 

account  of  any  duty  required  of  them. 


APPENDIX. — Constitution  op  tiis  State  of  Gsor.GiA.        981 

Article  4. — Judicial  Department. 


4976. 


2. 


There  shall  be  a  State's  Attorney  and   Solicitors,    state's At- 
elected  in  the  same  manner  as  the  Judges  of  the  Superior  Court,  sViTcitor 
and  commissioned  by  the  Governor,  who  shall  hold   their  offices  ^^"®^'^^- 
for  the  term  of  four  years,  or  until  their  successors  shall  be  ap- 
pointed and  qualified,  unless  removed  by  sentence  on  impeachment, 
or  by  the  Governor,  on  the  address  of  two-thirds  of  each  branch  of 
the  General  Assembly.     They  shall  have  salaries  adequate  to  their  Salaries  of. 
services  fixed  by  law,  which  shall  not  be  increased  or  diminished 
during  their  continuance  in  office. 

§  4977.     3.  The  Justice  or  Justices  of  the  Inferior  Court,  and  tj^^^f^^^/ 
the  Judges  of  such  other  County  Courts  as  may  by  law  be  created.  Court. 
shall  be   elected  in  each  County  by  the  persons  entitled   to  vote 
for  members  of  the  General  Assembly. 

§  4978.  4.  The  Justices  of  the  Peace  shall  be  elected  in  each 
district  by  the  persons  entitled  to  vote  for  members  of  the  General 
Assembly. 

§  4979.  5.  The  powers  of  a  Court  of  Ordinary  and  Probate, 
shall  be  vested  in  an  Ordinary  for  each  County,  from  whose  de-  judsdiction 
<3ision  there  may  be  an  appeal  to  the  Superior  Court,  under  regu- 
lations prescribed  by  law.  The  Ordinary  shall  be,  ex  officio^  Clerk 
of  said  Court,  and  may  appoint  a  deputy  Clerk.  The  Ordinary, 
as  Clerk,  or  his  deputy,  may  issue  citations,  and  grant  temporary 
letters  of  administration,  to  hold  until  permanent  letters  are 
granted,  and  said  Ordinary,  as  Clerk,  or  his  deputy,  may  grant 
marriage  licenses.  The  Ordinaries  in  and  for  the  respective  Coun-  Election  aad 
ties  shall  be  elected,  as  other  County  officers  are,  on  the  first 
Wednesday  in  January,  1868,  and  every  fourth  year  thereafter, 
and  shall  be  commissioned  by  the  Governor  for  the  term  of  four 
years.  In  case  of  any  vacancy  of  said  office  of  Ordinary,  from  vacancies. 
any  cause,  the  same  shall  be  filled  by  election,  as  is  provided  in 
relation  to  other  County  officers,  and  until  the  same  is  filled,  the 
Clerk  of  the  Superior  Court  for  the  time  being,  shall  act  as  Clerk 
of  said  Court  of  Ordinary. 


Justices  of 

tlie  Peace, 


The  (ordi- 
nary and  Ms 


ARTICLE    V. 

MISCELLANEOUS     PROVIsfONS, 


SECTION    I. 


Section. 

4980.  Qualification  of  voters. 

4981.  Elections  by  General  Assemlbly. 

4982.  Elections  by  the  people, 

4983.  Civil  officers  continue. 

4984.  Graduation  of  laws. 

4985.  Local  and  private  statutes. 


Section. 

4986.  Judgments,  decrees,  and  orders, 

4987.  Plights  secured. 

4988.  Marriage  between  white  and  black. 

4989.  Militia  and  County  officers. 

4990.  Amendments  of  Constitution. 


y     §  4980.     1.  The  electors  of  members  of  the  General  Assemb  ly 
fihall  be  free  white  male  citizens  of  this  State,  and  shall  have  at- 


r 


^■■•<^i 


^... 


•.r'€*t. 


^...e."*-*K,..*-^_ 


"> 


982        APPENDIX. — Constitution  of  the  State  of  Georgia. 


.  Article  5. — Miscellaneous  Provisions. 


Quaiifica-  tained  the  age  of  twentj-one  years,  and  have  paid  all  taxes  ivhich 

ters.  may  have  beei)  required   of  thera,  and  which  they  have  had  an 

opportunity   of  paying  agreeably   to  law,  for  the  year  preceding 

the   election,  sh  til  be   citizens   of  the   United   States,    and   shall 

have  resided  six  months  either  in  the  district  or  County,  and  two 

years  within   this  State,  and  no  person  not   qualified  to  vote  for 

members  of  the  General  Assembly,  shall  hold  any  office  in  this  State. 

§4981.     2.   All  elections  by   the  General   Assembly   shall  be 

t^^Geir ?^i  ^^'^'^  voce,  and  the  vote  shall  always  appear  on  the  Journal  of  the 

Assembly.    House  of  Representatives,  and   where  the  Senate   and   House  of 

Representatives  unite  for  the  purpose  of  electing,  they  shall  meet 

in  the  Representative  chamber,  and  the  President  of  the   Senate 

shall,  in  such  cases,  preside  and  declare  the  person  or  persons 

elected. 

^,    .    ^        §  4982.     3.  In  all  elections  by  the  people,  the  electoi^  shall 

Election  by  ,  in  •^       ^         r^  i     a  it  in         i  •  t 

the  people,    vote  by  baiiot  until  the  General  Assembly  shall  otherwise  direct. 

§  4983.     4.  All   civil   officers   heretofore  commissioned  by  the 

Civil  offi-  Governor,  or  who  have  been  duly  appointed,  or  elected,  since  the 

CGrs    liorcto-  %/         i  l  / 

fore  elected  first  day  of  January  last,  but  who  have  not  received  their  commis- 
or  appointed  gj^^g^  j^j^(-|  ^^^^q  havo  not  resigned,  nor  been  removed  from  office,  and 
whose  terms  of  office  shall  not  have  expired,  shall  continue  in  the 
exercise  of  the  duties  of  their  respective  offices  during  the  periods 
for  which  they  were  duly  appointed  or  duly  elected  as  aforesaid, 
and  commissioned,  and  until  their  successors  shall  be  appointed 
under  the  provisions  of  this  Constitution,  unless  removed  from 
office  as  herein  provided. 

§  4984.  5.  The  laws  of  general  operation  now  of  force  in  this 
Graduation  State,  are — -Ist,  as  the  supreme  law,  the  Constitution  of  the  United 
aws.  States,  the  laws  of  the  United  States  in  pursuance  thereof,  and 
all  treaties  made  under  the  authority  of  the  United  States ;  2d, 
as  next  in  authority  thereto,  this  Constitution ;  3d,  in  subordina- 
tion to  the  foregoing,  all  laws  declared  of  force  by  an  act  of  the 
General  Assembly  of  this  State,  assented  to  December  19th,  A.I>. 
eighteen  hundred  and  sixty,  entitled  "An  act  to  approve,  adopt, 
and  make  of  force  in  the  State  of  Georgia,  a  revised  code  of  laws, 
prepared  under  the  direction  and  by  authority  of  the  General  As- 
sembly thereof,  and  for  other  purposes  therewith  connected,"  an 
act  of  the  General  Assembly  aforesaid,  assented  to  December  IGth^ 
A.D.  eighteen  hundred  and  sixty-one,  amendatory  of  the  forego- 
ing, and  an  act  of  the  General  Assembly  aforesaid,  assented  to 
December  13th,  A.D.  eighteen  hundred  and  sixty-two,  entitled 
"An  act  to  settle  the  conflicts  between  the  Code  and  the  legisla- 
tion of  this  General  Assembly;"  also,  all  acts  of  the  General 
Assembly  aforesaid,  passed  since  the  date  last  written,  altering, 
amending,  repealing,  or  adding  to  any  portion  of  law  hereinbefore 
mentioned  (the  latter  enactments  having  preference  in  case  of 
conflict) ;  and  also,  so  much  of  the  common  and  statute  law  of  Eng- 
land, and  of  the  statute  law  of  this  State,  of  force  in  Georgia  in 
the  year  eighteen  hundred  and  sixty,  as  is  not  expressly  superse- 


APPENDIX. — Constitution  of  the  State  of  Georgia.        983 

Article  5. — Miscellaneous  Provisions. 

ded  by,  nor  inconsistent  with  said  Code,  though  not  embodied 
therein,  except  so  much  of  the  law  aforesaid  as  may  violate  the 
supreme  law,  herein  recognized,  or  may  conflict  with  this  Consti- 
tution, and  except  so  much  thereof  as  refers  to  persons  held  in 
slavery,  which  excepted  laws  shall  henceforth  be  inoperative  and 
void,  and  any  future  General  Assembly  of  this  State  shall  be 
competent  to  alter,  amend,  or  repeal  any  portion  of  the  law  de- 
clared to  be  of  force  in  this  third  Specification  of  the  fifth  Clause 
of  this  fifth  Article.  If  in  any  statute  law  herein  declared  of 
force,  the  word  "Confederate"  occurs  before  the  word  States, 
such  law  i^  hereby  amended  by  substituting  the  word  "United" 
for  the  word   "Confederate." 

§4985.     6.  Local  and  private  statutes  heretofore  passed,  in-     Locaiand 

1     -,    f>,  ■,        t  r-  f    Ai  •  •    '  •  ^  ^"^^    private 

tended  tor  the  benefit  oi  Counties,  cities,  towns,  corporations,  and  statutes. 
private  persons,  not  inconsistent  with  the  supreme  law,  nor  with  this 
Constitution,  and  which  have  neither  expired  by  their  own  limita- 
tions nor  have  been  repealed,  shall  have  the  force  of  Statute  law  sub- 
ject to  judicial  decision,  as  to  their  validity  when  enacted,  and  to 
any  limitations  imposed  by  their  own  terms. 

§  4986.  7.  All  iudsments,  decrees,  orders,  and  other  proceed-  J^<^fments 
ings  of  the  several  Courts  of  this  State  heretofore  made,  within 
the  limits  of  their  several  jurisdictions,  are  hereby  ratified  and 
afiirmed,  subject  only  to  past  or  future  reversal  by  motion  for  new 
trial,  appeal,  bill  of  review,  or  other  proceeding,  in  conformity 
with  the  law  of  force  when  they  were  made. 

§  4987.     8.  All  ricrhts,  privileges  and  immunities  which  may     Privileges 

1  .-,.  1  •      ^  '       \  vested  since 

nave  vested  m,  or  accrued  to  any  person  or  persons,  m  his,  her,  or  ist  January 
their  own  right,  or  in  any  fiduciary  capacity,  under  and  in  virtue  ^^  ^* 
of  any  act  of  the  General  Assembly,  or  any  judgment,  decree,  or 
order,  or  other  proceeding  of  any  Court  of  competent  jurisdiction 
in  this  State,  since  the  first  day  of  January,  A.D.  eighteen  hun- 
dred and  sixty-one,  shall  be  held  inviolate  hj  all  Courts  before 
which  they  may  be  brought  in  question,  unless  attacked  for  fraud. 

§  4988.     9.  The  marriage  relation  between  white  persons  and  ^M^^"*^^*": 
persons  of  African  descent,  is   forever  prohibited,  and  such  mar-  black    per- 
riage  shall  be  null  and  void ;  and  it  shall  be  the  duty  of  the  Gen-  ^°''^' 
eral  Assembly  to  enact  laws  for  the  punishment  of  any  ojQficer  who 
shall  knowingly  issue  a  license  for  the  celebration  of  such  mar- 
riage, and   any  ofiicer   or  minister  of  the  gospel  who  shall  marry 
such  persons  together. 

§  4989.     10.  All  militia  and  County  officers  shall  be  elected  by    Miutiaandi 
the  people,  under  such  regulations  as  have  been  or  may  be  pre-  cers"*^^  ^^ 
scribed  by  law. 

§4990.  11.  This  Constitution  shall  be  altered  or  amended  only  Howaiter- 
by  a  convention  of  the  people,  called  for  that  purpose  by  act  of  ed.^"*™^^  ' 
the  General  Assembly. 

Signed  Nov.  1th,  1865. 

HEPvSCHEL  V.  JOHNSON,  President. 

Attest:   J.  D.  Waddell,  Secretary. 


984 


APPENDIX. — Constitution  of  the  United  States. 


Article  1. — Legislative  Department. 


CONSTITUTION  OF  THE  UNITED  STATES, 

AS  ADOPTED  IN  CONVENTION,  BY  THE  UNANIMOUS  CONSENT  OE  THE 
states  present,  on  THE  17th  DAY  OF  SEPTEMBER,  IN  THE  YEAR  OF 
OUR  LORD  1787.  AND  OF  THE  INDEPENDENCE  OF  THE  UNITED  STATES 
OF  AMERICA,  THE  TWELFTH  ;  WITH  THE  AMENDMENTS  SUBSEQUENTLY 
MADE  TO  THE  SAME. 


PREAMBLE. 


We,  the  people  of  the  United  States,  in  order  to  form  a  more  perfect  union,, 
establish  justice,  insure  domestic  tranquillity,  provide  for  the  common  defense,, 
promote  the  general  welfare,  and  secure  the  Blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish  this  Constitution  for  the  United  States  of 
America. 


Article  1. — Legislative  I>epartment. 
Article  2. — Executive  Department. 
Article  3. — Judicial  Department. 
Article  4. — Relative  Rights  of  States. 
Article  5. — Amendments — Jio^v  made. 
Article  6. — 3IisceUaneous  Provisions. 
Article  7. — Ratifications. 
8. — Amendments. 


ARTICLE    I. 

legislative    department. 


Section. 

4991.  Legislative  Department. 

4992.  House  of  Reps. — members  chosen. 

4993.  Qualification. 

4994.  Apportionment  of. 

4995.  Vacancies— how  filled. 

4996.  Officers — power  of  impeachment. 

4997.  Senate — how  chosen. 

4998.  Classed— vacancies. 

4999.  Qualification. 

5000.  Vice-President. 

5001.  Other  officers. 

5002.  Trial  of  impeachment. 

5003.  Judgments  on. 
6004.  Elections- how  held. 

5005.  Meetings  of  Congress. 

5006.  Elections — how  judged. 

5007.  Rules. 

5008.  Journals— yeas  and  nays. 

5009.  Adjournments. 

5010.  Compensation— privileges. 

5011.  Disqualification. 

5012.  Revenue  bills. 

5013.  Passing  bills— veto. 

5014.  Passing  resolutions. 

5015.  Powers  of  Congress. 


Section. 

5016. 

Loans. 

5017. 

Commerce. 

5018. 

Naturalization — bankruptcy. 

5019. 

Coin — weights  and  measures. 

5020. 

Counterfeiting. 

5021. 

Post-offices  and  roads. 

5022. 

Science  and  arts. 

5023. 

Courts — certain  ci'imes. 

5024. 

Declare  war. 

6025. 

Raise  armies. 

5026. 

Maintain  a  navy. 

5027. 

Military  law. 

5028. 

Call  out  militia. 

5029. 

And  organize. 

6030. 

Jurisdiction  over  district. 

5031. 

Laws  necessary  and  proper. 

5032. 

Importation  of  slaves. 

5033. 

Habeas  corpus. 

5034. 

Attainder — ex  post  facto,  c*c. 

5035. 

Direct  tax. 

5036. 

Exportation  duty. 

5037. 

Appropriations. 

5038. 

Titles  of  nobility. 

5039. 

Limitations  upon. 

5040. 

Individual  States. 

APPENDIX. — Constitution  of  the  United  States.  985 


Article  1. — Legislative  Department. 


SECTION  I. 
§4991.    1.  All  Legislative  power  herein  granted  shall  be  vested  in  Legislative. 
a  Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives. 

SECTION  II. 

§  4992.    1.  The  House  of  Representatives  shall  be  composed  of     Members 
members  chosen  every  second  year  by  the  people  of  the  several  pi-Ts^^ntt- 
States;  and  the  electors  in  each  State  shall  have  the  qualifications  chos^eT.^^^ 
requisite  for  electors  of  the  most  numerous  branch  of  the  State 
Legislature. 

§4993.    2.  No  person  shall  be  a  Representative  who  shall  not  have     Quaimca- 
attained  to  the  age  of  twenty-five  years,  and  been  seven  years  a  bei°^  HmSe 
citizen  of  the  United  States ;  and  who  shall  not,  when  elected,  be  tUvK.^^^" 
an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

§  4994.  3.  Representatives  and  direct  taxes  shall  be  apportioned  Apportion- 
among  the  several  States  which  may  be  included  within  this  Union,  S^seutatiVS' 
according  to  their  respective  numbers,  which  shall  be  determined 
by  adding  to  the  whole  number  of  free  persons,  including  those 
bound  to  service  for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three-fifths  of  all  other  persons.  The  actual  enumeration 
shall  be  made  within  three  years  after  the  first  meeting  of  the 
Congress  of  the  United  States,  and  within  every  subsequent  term 
of  ten  years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  Representatives  shall  not  exceed  one  for  every  thirty 
thousand,  but  each  State  shall  have  at  least  one  Representative ; 
and  until  such  enumeration  shall  be  made,  the  State  of  New 
Hampshire  shall  be  entitled  to  choose  three  ;  Massachusetts  eight; 
Rhode  Island  and  Providence  Plantations,  one  ;  Connecticut,  five  ; 
New  York,  six  ;  New  Jersey,  four  ;  Pennsylvania,  eight ;  Dela- 
ware, one ;  Maryland,  six  ;  Virginia,  ten ;  North  Carolina,  five ; 
South  Carolina,  five ;  and  Georgia,  three. 

§  4995.     4.  When  vacancies  happen  in  the  representation  from  Vacancies— 
any  State,  the  Executive  authority  thereof  shall  issue  writs   of  ^^ 
election  to  fill  such  vacancies. 

§4996.  5.  The  House  of  Representatives  shall  choose  their  House  of 
Speaker  and  other  officers,  and  shall  have  the  sole  power  of  im-  tives— pow- 
peachment.  ®''*' 

SECTION  III. 

§4997.     1.  The  Senate  of  the  United  States  shall  be  composed      Senate- 
of  two  Senators  from  each  State,  chosen  by  the  Legislature  there- 
of, for  six  years,  and  each  Senator  shall  have  one  vote. 

§  4998.     2.  Immediately  after  they  shall  be  assembled  in  conse-       senators 
quence  of  the  first  election,  they  shall  be  divided,  as  equally  as    ^'^^^®^- 
may  be,  into  three  classes.     The  seats  of  the  Senators  of  the  first 
class  shall  be  vacated  at  the  expiration  of  the  second  year;  of  the 

ond  class  at  the  expiration  of  the  fourth  year;  and  of  the  third 


986  APPENDIX. — Constitution  of  the  United  States. 


Article  1. — Legislative  Department. 


class  at  the  expiration  of  the  sixth  year;  so  that  one-third  maybe 
Vacancies—  chosen  every  second  year  ;  and  if  vacancies  happen,  by  resigna- 
how  filled,  tion  or  otherwise,  during  the  recess  of  the  Legislature  of  any 
State,  the  Executive  thereof  may  make  temporary  appointments 
until  the  next  meeting  of  the  Legislature  which  shall  then  fill  such 
vacancies. 

§  4999.     3.  No  person  shall  be  a  Senator  who  shall  not  have  at- 
Setiators  "tained  to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of 
quai  caion  ^|^^  United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  for  which  he  shall  be  chosen. 

§  5000.     4o   The  Vice-President  of  the  United  States   shall  be 
Vice-Pres-  President  of  the  Senate,  but  shall  have  no  vote  unless  they  be 
equally  divided. 

§  5001.     5.   The  Senate  shall  chose  their  other  officers,  and  also 
Senate  to  a  President  pro  tempore  in  the  absence   of  the    Vice-President,  or 
cers.  when   he    shall   exercise    the   office  of  President  of  the  United 

States. 

§  5002.     6.  The  Senate  shall  have  the  sole  power  to  try  all  im- 

peachmenS.' peachments;  when  sitting  for  that  purpose  they  shall  be  on  oath 

or  affirmation.     When  the  President  of  the  United  States  is  tried, 

the  Chief  Justice  shall  preside;  and  no  person  shall  be  convicted 

without  the  concurrence  of  two-thirds  of  the  members  present. 

§5003.     7.  Judgment  in  cases  of  impeachment  shall  not  extend 

Judgment  further  than  to  removal  from  office,  and  disqualification   to  hold 

ment^^''^    and  enjoy  any  office  of  honor,  trust  or  profit,  under  the  United 

States ;  but  the  party  convicted  shall,  nevertheless,  be  liable  and 

subject  to  indictment,  trial,  judgment,  and  punishment,  according 

to  law. 

SECTION  lY. 

§  5004.     1.   The  times,  places,  and  manner  of  holding  elections 

Elections— for  Scnators  and  Representatives  shall  be  prescribed  in  each  State 

by  the  Legislature  thereof;  but  the  Congress  may,  at  any  time,  by 

law,  make  or  alter  such  regulations,  except  as  to  the  places  of 

choosing  Senators. 

§5005.     2.  The  Congress  shall  assemble  at  least  once  in  every 
Congress  year,  and  such  meetinoj  shall  be  on  the  first  Monday  in  December, 

assemble  an- -^  '  i     n     i        i  •  -i-n^  i 

nuaiiy.        unlcss  they  shall,  by  law,  appoint  a  dmerent  day. 

SECTION  V. 

§5006.  1.  Each  House  shall  be  the  judge  of  the  elections,  re- 
Eiections—  tums,  and  qualifications  of  its  own  members  ;  and  a  majority  of 
how  judged,  q^^-)^  shall  constitute  a  quorum  to  do  business;  but  a  smaller  num- 
sSr^and  ^®^'  may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel 
HouseofRe-  the  attendance  of  absent  members,  in  such  manner  and  under  such 
tives.*^     *  penalties  as  each  House  may  provide. 

§  5007.     2.   Each  House  may  determine  the  rules  of  its  proceed- 
Euies.     ings,  punish  its  members  for  disorderly  behavior,  and,  with  the 
concurrence  of  two-thirds,  expel  a  member. 


APPENDIX. — Constitution  of  the  United  States.  98T 


Article  1 — Legislative  Department. 


^  5008.     3.  Each  House  shall  keep  a  iournal  of  its  proceedings,    Journaisof 
and  from  time  to  time  publish  the  same,  excepting  such  parts  as 
may  in  their  judgment,  require  secrecy;  and  the   yeas  and   nays     Teasand 
of  the  members   of  either  House,  on  any  question,  shall,  at  the  ^^y^- 
desire  of  one-fifth  of  those  present,  be  entered  on  the  journal. 

S  5009.     4.  Neither    House,  duriijo;   the   session  of   Concrress,     Adjourn- 
shall  without  the  consent  of  the  other,  adjourn  for  more  than  three 
days,  nor  to  any  other  place  than   that  in  which  the  two  Houses 
shall  be  sitting. 

SECTION  YI. 

§  5010.     1.  The  Senators  and  Representatives  shall  receive   a    compensa- 
compensation  for  their  services,  to  be  ascertained  by  law,  and  paid  ^^°°' 
out  of   the  treasury  of   the  United    States.     They    shall   in    all 
cases,  except  treason,  felony,  and  breach  of  the  peace,   be   privi-  Privileges, 
leged  from  arrest  during  their  attendance  at  the  session  of  their 
respective  Houses,  and  in  going  to  and  returning  from  the  same ; 
and  for  any  speech  or  debate  in  either  House  they  shall  not  be 
questioned  in  any  other  place. 

§5011.  2.  No  Senator  or  Representative  shall,  during  the  time  Members 
for  which  he  was  elected,  be  appointed  to  any  civil  office  under  the  toofficef  '^ 
authority  of  the  United  States,  which  shall  have  been  created,  or 
the  emoluments  whereof  shall  have  been  increased,  during  such 
time ;  and  no  person  holding  any  office  under  the  United  States 
shall  be  a  member  of  either  House  during  his  continuance  in 
office. 

SECTION  VII. 

§  5012.     1.  All  bills  for  raising  revenue  shall  originate  in  the    Eevenue 
House  of  Representatives ;  but  the  Senate  may  propose  or  concur 
with  amendments,  as  on  other  bills. 

§5013.  2.  Every  bill  which  shall  have  passed  the  House  of  Passing ^iiis. 
Representatives  and  the  Senate  shall,  before  it  become  a  law,  be 
presented  to  the  President  of  the  United  States.  If  he  approve, 
he  shall  sign  it ;  but  if  not,  he  shall  return  it,  with  his  objections, 
to  that  House  in  which  it  shall  have  originated,  who  shall  enter  the 
objections  at  large  on  their  journal,  and  proceed  to  reconsider  it.  If 
after  such  reconsideration  two-thirds  of  that  House  shall  agree  to 
pass  the  bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  House,  by  which  it  shall  likewise  be  reconsidered  ;  and  if  ap- 
proved by  two-thirds  of  that  House,  it  shall  become  a  law.  But,  in 
all  such  cases,  the  votes  of  both  Houses  shall  be  determined  by  yeas 
and  nays;  and  the  names  of  the  persons  voting  for  and  against  the 
bill  shall  be  entered  on  the  Journal  of  each  House  respectively.  If 
any  bill  shall  not  be  returned  by  the  President  within  ten  days  (Sun- 
days excepted)  after  it  shall  have  been  presented  to  him,  the  same 
shall  be  a  lavf,  in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress,  by  their  adjournment,  prevent  its  return,  in  which  case 
it  shall  not  be  a  law. 


Yeto. 


988  APPENDIX. — Constitution  op  the  United  States. 

Article  1. — Legislative  Department. 

§  5014.  3.  Every  order,  resolution,  or  vote,  to  which  the  con- 
Resoiutions,  curreiice  of  the  Senate  and  House  of  Representatives  may  be 
pa^gg^^^  ^  ^^  necessary  (except  on  a  question  of  adjournment),  shall  be  pre- 
sented to  the  President  of  the  United  States ;  and,  before  the 
same  shall  take  eifect,  shall  be  approved  by  him,  or,  being  disap- 
proved by  him,  shall  be  repassed  by  two-thirds  of  the  Senate  and 
House  of  Representatives,  according  to  the  rules  and  limitations 
prescribed  in  the  case  of  a  bill. 

SECTION   VIII. 

Powers  of      §5015.     The  Con^irress  shall  have  power — 

I.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises ;  to 
Taxes,     pay  the  debts  and  provide  for  the  common  defense  and  general 

welfare  of  the  United  States ;  but  all  duties,  imposts,  and  excises, 
shall  be  uniform  throughout  the  United  States : 
Loans.         2.  To  borrow  money  on  the  credit  of  the  United  States  : 

3.  To  regulate  commerce  with  foreign  nations,  and  among  the 
Commerce,  scvcral  States,  and  with  the  Indian  tribes  : 

j^,  4.  To  establish  an  uniform  rule  of  naturalization,  and  uniform 

tion,  etc.  laws  on  the  subject  of  bankruptcies,  throughout  the  United  States  : 
Coin,weights  5.  To  coiu  monoy,  regulate  the  value  thereof,  and  of  foreign 
nres.   ^^^^'  coiu,  and  fix  the  standard  of  weights  and  measures  : 

Punish        5.  To  provide  for  the  punishment  of  counterfeiting:  the  securities 

counterfeit-  .  ^  •  f      i        tt    •       i    ci 

ing.  and  current  com  oi  the  United  btates : 

etc*^*^"^^^^^      7.  To  establish  post-offices  and  post-roads  : 

8.  To  promote  the  progress  of  science  and  useful  arts,  by  secu- 
Sciences  ring,  for  limited  times,  to  authors  and  inventors,  the  exclusive 
arts.      j-ig'^t  to  their  respective  writings  and  discoveries  :  ,  ,^^a 

9.  To    constitute    tribunals   inferior   to    the    Sup^Jior    Court ; 
Courts,      to  define  and  punish  piracies  and  felonies  committed  on  the  high 

racie^etc?^^'  scas,  and  ofiensos  against  the  law  of  nations  : 

10.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
Declare  war.  make  rulcs  conccming  captures  on  land  and  water  : 

II.  To   raise   and   support   armies ;    (but   no   appropriation   of 
Eaise armies  moucy  to  that  use  shall  be  for  a  longer  term  than  two  years  :) 

Navy.  12.   To  provide  and  maintain  a  navy  : 

13.  To  make  rules  for  the  government  and  regulation  of  the 
Military  law.  land  and  naval  forces  : 
/.  „    ..^       14.  To  provide  for  calling  forth  the  militia  to  execute  the  laws 

Call  out  the     p     ,       -ry    r  .         ®  .  ,  ,   . 

militia.        01  the  Union,  suppress  insurrections,  and  repel  invasions: 

15.  To  provide  for  organizing,  arming,  and  disciplining  the 
Organize  militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States;  reserving  to  the  States  re- 
spectively the  appointment  of  the  officers,  and  the  authority  of 
training  the  militia,  according  to  the  discipline  prescribed  by  Con- 
gress : 
^   ,  16.  To  exercise  exclusive  legislation,  in  all  cases  whatsoever, 

Exclnsive  it-/  t  m  \  i 

Jurisdiction,  ovcr  sucu  distiict  (not  exceeding  ten  miles  square)  as  may,  by 


APPENDIX. — Constitution  of  the  United  States.  989 

Article  1. — Legislative  Department. 

cession  of  particular  States,  and  the  acceptance  of  Congress,  be- 
come the  seat  of  government  of  the  United  States,  and  to  exer- 
cise like  authority  over  all  places  purchased  by  the  consent  of  the 
Legislature  of  the  State  in  which  the  same  shall  be,  for  the  erec- 
tion of  forts,  magazines,  arsenals,  dock-yards,  and  other  needful 
buildings :  And, 

17.  To  make  all  laws  which  shall  be  necessary  and  proper  for     Make  aii 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers  Ba7y,  etc.^^* 
vested  by  this  Constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof. 

SECTION    IX. 
§  5016.     1.  The  migration  or  importation  of  such  persons  as  impf^rtation 

r>ioi  ••  iiiT'i  !•  in°^  siiivos  ai- 

any  or  the  btates  now  existing  shall  thmK  proper  to  admit,  snail  terisos. 
not  be  prohibited  by  the  Congress  prior  to  the  year  eigk-^^n  hundred 
and  eight ;  but  a  tax  or  duty  may  be  imposed  on  such  importation, 
not  exceeding  ten  dollars  for  each  person. 

§5017.     2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  Habeaseor- 
be  suspended,  unless  when,  in  cases  of  rebellion  or  invasion,  the  ^'^^* 
public  safety  may  require  it. 

§  5018.     3.  No  bill  of  attainder,  or  ex  post  facto  law,  shall  be   Attainder. 
passed. 

§  5019.     4.  ISTo  capitation  or  other  direct  tax  shall  be  laid,  un-      Tax. 
less  in  proportion  to  the  census  or  enumeration  hereiiibefore  di- 
rected to  be  taken. 

§5020.     5.  No  tax  or  duty  shall  be  laid  on  articles  exported  Noexporta- 
from  any  State.     No  preference  shall  be  given  by  any  regulation  ^^^  ^^" 
of  commerce  or  revenue  to  the  ports  of  one  State  over  those  of 
another ;  nor  shall  vessels  bound  to  or  from  one  State,  be  obliged 
to  enter,  clear,  or  pay  duties  in  another. 

§  5021.     6.  No  money  shall  be  drawn  from  the  Treasury  but  in  ,    Money— 
consequence  of  appropriations  made  by  law ;  and  a  regular  state- 
ment and  account  of  the  receipts  and  expenditures  of  all  public 
money  shall  be  published  from  time  to  time. 

§  5022.     7.  No  title  of  nobility  shall  be  granted  by  the  United  ^^^j^'^'j^^J 
States ;  and  no  person  holding  any  office  of  profit  or  trust  under  allowed. 
them,  shall,  without  the  consent  of  the  Congress,  accept  of  any 
present,  emolument,  office,  or  title  of  any  kind  whatever,  from  any 
king,  prince,  or  foreign  State. 

SECTION    X. 

§  5023.     1.  No  State  shall  enter  into  any  treaty,  alliance,  or  Limitations 
confederation  ;  grant  letters  of  marque  and  reprisal ;  coin  money;  ers  oAheTi- 
emit  bills  of  credit;  make  any  thing  but  gold  and  silver  coin  a  stat^ee.^"*^ 
tender  in  payment  of  debts ;  pass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts ;  or  grant 
any  title  of  nobility. 

§  5024.     2.  No  State  shall,  without  the  consent  of  the  Congress, 


990 


APPENDIX. — Constitution  of  the  United  States. 


Article  2. — Executive  Department. 


lay  anj  imposts  or  duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws  ;  and  the 
net  produce  of  all  duties  and  im;)o.sts  laid  by  any  Stale  on  im- 
ports or  exports  shall  be  for  the  use  of  the  Treasury  of  the  United 
States  ;  and  all  such  laws  shall  be  subject  to  the  revision  and  con- 
trol of  the  Congress.  No  State  shall,  without  the  consent  of 
Congress,  lay  any  duty  of  tonnage,  keep  troops  or  ships  of  war 
in  time  of  peace,  enter  into  any  agreement  or  compact  with 
another  State,  or  with  a  foreign  power,  or  engage  in  a  war  unless 
actually  invaded,  or  in  such  imminent  danger  as  will  not  admit 
of  delay. 


ARTICLE    11. 


EXECUTIVE     DEPARTMENT. 


Section. 

6025.  President. 

5026.  Mode  of  election. 

5027.  Time  of  election. 

5028.  Qualification. 

5029.  Vice-President — when  to  act. 

5030.  President's  compensation. 


Section. 

5031.  His  oath. 

5032.  His  powers. 

5033.  Treaties — nomination. 

5034.  Filling  vacancies. 

5035.  His  duties, 

5036.  Impeachment. 


Executive 

power. 


Manner  of 
electing 
President 
and  Vice- 
President. 


Time  of 
election. 


Who  may- 
be elected 
President. 


In  what 
ca»es  the 
Vice  -  Presi- 
dent to  act 
as  President. 


SECTION    I. 

§  5025.  1.  The  executive  power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shull  hold  hh  office  during 
the  term  of  four  years,  and,  together  with  the  Vice-President, 
chosen  for  the  same  term,  be  elected  as  follows  : 

§  5026.  2.  Each  State  shall  appoint,  in  such  manner  as  the 
Legislature  thereof  may  direct,  a  number  of  electors,  equal  to  the 
whole  number  of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress;  but  no  Senator  or  llepresenta- 
tive,  or  person  holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector. 

§  5027.  3.  The  Congress  may  determine  the  time  of  choosing 
the  electors,  and  the  day  on  which  they  shall  give  their  votes  ; 
which  day  shall  be  the  same  throughout  the  United  States. 

§  5028.  4.  No  person,  except  a  natural  born  citizen,  or  a  citi- 
zen of  the  United  States  at  the  time  of  the  adoption  of  this  Con- 
stitution, shall  be  eligible  to  the  office  of  President ;  neither  shall 
any  person  be  eligible  to  that  office  who  shall  not  have  attained  to 
the  age  of  thirty-five  years,  and  been  fourteen  years  a  resident 
within  the  United  States. 

§  5029.  5.  In  case  of  the  removal  of  the  President  from  office, 
or  of  his  death,  resignation,  or  inability  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  on  the  Vice- 
President  ;  and  the  Congress  m;iy,  by  law,  provide  for  the  case 
of  removal,  death,  resignation,  or  inability,  both  of  the  President 
and  Vice-President,  declaring  what  officer  shall  then  act  as  Presi- 


APPENDIX.— Constitution  op  the  United  States.  991 

Article  2. — Executive  Department, 


dent,  and  such  officer  shall   act  accordingly  until  the  disability  be 
removed,  or  a  President  shall  be  elected. 

§  5030.     6.  The  President  shrill,  at  stated  times,  receive  for  his    Presidenra 
services  a  compensation,  which  shall  neither  be  increased   nor  di-  tion!^^"^*' 
minished  during  the  period  for  which  he  shall  have  been  elected  ; 
and   he  shall  not  receive  within  that  period   any  other  emolument 
from  the  United  States,  or  any  of  them. 

§  5031.     7.  Before  he  enters  on  the  execution  of  his  office,  he    His  oath. 
shall  take  the  following  oath  or  affirmation  : 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States,  and  will,  to  the  best 
of  my  ability,  preserve,  protect,  and  defend  the  Constitution  of 
the  United  States." 

SECTION    11. 

§  5032.  1.  The  President  shall  be  Commander  in-Chief  of  the  President's 
Army  and  Navy  of  the  United  States,  and  of  the  militia  of  the  p'^'^®"^' 
several  States,  when  called  into  the  actual  service  of  the  United 
States.  He  may  require  the  opinion,  in  writing,  of  the  principal 
officer  in  each  of  the  executive  departments,  upon  any  subject  re- 
lating to  the  duties  of  their  respective  offices ;  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offenses  against  the 
United  States,  except  in  cases  of  impeachment. 

§5033.  2.  He  shall  have  power,  by  and  with  the  advice  and  Maketrea= 
consent  of  the  Senate,  to  make  treaties,  provided  two-thirds  of 
the  Senators  present  concur  ;  and  he  shall  nominate,  and,  by  and 
wdth  the  advice  and  consent  of  the  Senate,  shall  appoint  Ambas-  officers'"' 
sadors,  other  public  Ministers  and  CodsuIs,  Judges  of  the  Su- 
preme Court,  and  all  other  officers  of  the  United  States  whose  ap- 
pointments are  not  herein  otherwise  provided  for,  and  which  shall 
be  established  by  law.  But  the  Congress  may,  by  law,  vest  the 
appointment  of  such  inferior  officers  as  they  think  proper  in  the 
President  alone,  in  the  Courts  of  Law,  or  in  the  heads  of  depart- 
ments. 

§  5034.     3.  The  President  shall  have  power  to  fill  up  all  vacan-  Yaeancica. 
cies  that  may  happen  during  the  recess  of  the  Senate,  by  granting 
commissions  which  shall  expire  at' the  end  of  their  next  session. 

SECTION  III. 

§  5035.  1.  He  shall  from  time  to  time  give  to  the  Congress  President's 
information  of  the  State  of  the  Union,  and  recommend  to  their  ^"'^^^^' 
consideration  such  measures  as  he  shall  judge  necessary  and  expe- 
dient. He  may,  on  extraordinary  occasions,  convene  both  houses, 
or  either  of  them;  and  in  case  of  disagreement  between  them  with 
respect  to  the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  shall  think  proper.  He  shall  receive  Ambassadors  and 
other  public  Ministers.  He  shall  take  care  that  the  laws  be  faith- 
fully executed,  and  shall  commission  all  the  officers  of  the  United 
States. 


992  APPENDIX. — Constitution  of  the  United  States. 

Article  3. — Judicial  Department. 

SECTIOK  IV. 

§  5036.     1.  The  President,  Yice-President,  and  all  civil  officers 
Officers  re-  of  the  United  States,  shall  be  removed  from  office  on  impeachment 
Trnp^each^for  and  conviction  of  treason,  bribery,  or  other  high  crimes  and 
ment.  misdemcanors. 


ARTICLE   III. 

JUDICIAL     DEPART  3kIE  NT. 


Section. 

5037.  Courts  and  Judges. 

5038.  Jurisdiction. 

5039.  Of  Supreme  Court. 


Section. 

5040.  Trial  by  jury. 

5041.  Treason. 

5042.  Attainder. 


SECTION    I. 

§  5037.     1.  The  Judicial  power  of  the  United  States  shall  be 

Judicial  vcstcd  in  one  Supreme  Court,  and  such  inferior  Courts  as  the  Con- 

?e*i^re*  ^"ol"  g^^^^s  may,  from  time  to  time,  ordain  and  establish.     The  Judges, 

Judges.       both  of  the  Supreme  and  inferior  Courts  shall  hold  their  offices 

during  good  behavior,  and  shall,  at  stated  times,  receive  for  their 

services  a  compensation,  which  shall  not  be  diminished  during  their 

continuance  in  office. 

SECTION  II. 

§  5038.  1.  The  Judicial  power  shall  extend  to  all  cases  in  Law 
Jurisdiction  and  Equity  arising  under  this  Constitution,  the  laws  of  the  LTnited 
States,  and  treaties  made,  or  which  shall  be  made,  under  their 
authority ;  to  all  cases  affecting  Ambassadors,  other  public  Minis- 
ters, and  Consuls ;  to  all  cases  of  admiralty  and  maritime  juris- 
diction; to  controversies  to  which  the  United  States  shall  be  a 
party ;  to  controversies  between  two  or  more  States,  between  a 
State  and  citizens  of  another  State,  between  citizens  of  different 
States,  between  citizens  of  the  same  State  claiminoj  lands  under 
grants  of  different  States,  and  between  a  State  or  the  citizens 
thereof  and  foreign  states,  citizens,  or  subjects. 

§  5039.     2.  In  all  cases  affecting  Ambassadors,  or  other  public 
Whether  Ministers,  and  Consuls,  and  those  in  which  a  State  shall  be  a 
appdiate.  "^^  party,  the  Supreme  Court  shall  have  original  jurisdiction.     In  all 
the  other  cases  before  mentioned,  the  Supreme  Court  shall  have 
appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  excep- 
tions and  under  such  regulations  as  the  Congress  shall  make. 
§  5040.     3.  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
Triaisby   mcnt,  shall  be  by  jury:  and  such  trial  shall  be  held  in  the  State 
^^"^'  where  the  said  crime  shall  have  been  committed ;  but  w^hen  not 

committed  within  any  State,  the  trial  shall  be  at  such  place  or 
places  as  the  Congress  may  by  law  have  directed. 

SECTION  III. 
TreasoB.        §  5041.     1.    Trcason  against  the  United  States  shall  consist 


1 
I 


APPENDIX. — Constitution  of  the  United  States. 


993 


Article  4. — Relative  Rights  of  States. 


onlj  in  levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  Court. 

§  5042.     2.  The  Congress  shall  have  power  to  declare  the  pun-   Attainder. 
ishment  of  treason ;  but  no  attainder  of  treason  shall  work  corrup- 
tion of  blood,  or  forfeiture,  except  during  the  life  of  the  person 
attainted. 


ARTICLE  ly. 

kelative  rights  of  states. 


Section. 

60^3.  Acts  and  records  of  States. 
,     50-14.  Citizens  of  different  States. 

5045.  Fugitives  from  justice. 

5046.  Fugitives  from  service. 


Section. 

5047.  New  States  admitted. 

5048.  Territories  of  United  States. 

5049.  Republican  Government. 


SECTION   I. 


§  5043.     1.  Full  faith  and  credit  shall  be  given  in  each  State  to  Acts  ami  re- 
the  public  acts,  records,  and  judicial  proceedings  of  every  other  states. 
State ;    and  the   Congress  may,  by  general   laws,  prescribe  the 
manner  in  which  such  acts,  records,   and  proceedings   shall  be 
proved,  and  the  effect  thereof. 

SECTION   II. 

§  5044.     1.  The  citizens  of  each  State  shall  be  entitled  to  all  '   citizens' 
privileges  and  immunities  of  citizens  in  the  several  States.  pnviiege&. 

§  5045.     2.  A  person  charged  in  any  State  with  treason,  felony,      Fngitives 

.  .  from  iustice. 

or  other  crime,  who  shall  flee  from  justice  and  be  found  in  another 
State,  shall,  on  demand  of  the  Executive  authority  of  the  State 
from  which  he  fled,  be  delivered  up,  to  be  removed  to  the  State 
having  jurisdiction  of  the  crime. 

§  5046.  3.  No  person  held  to  service  or  labor  in  one  State,  un- 
der the  laws  thereof,  escaping  into  another,  shall,  in  consequence  of 
any  law  or  regulation  therein,  be  discharged  from  such  service  or 
labor,  but  shall  be  delivered  up  on  claim  of  the  party  to  whom 
such  service  or  labor  may  be  due. 

SECTION  III. 

§  5047.     1.  New  States  may  be  admitted  by  the  Congress  into  New  states 
this  Unioti ;  but  no  new  State  shall  be  formed  or  erected  within  ^^™^^^^^- 
the  jurisdiction  of  any  other  State ;  nor  any  State  be  formed  by 
the  junction  of  two  or  more  States,  or  parts  of  States,  without 
the  consent  of  the  Legislature  of  the  States  concerned,  as  well  as 
of  the  Congress. 

§5048.     2.  The  Congress  shall  have  power  to  dispose  of,  and  Power  over 
make  all  needful  rules  and  regulations  respecting  the  territory  or  '^^"^^'^''*^^'* 


From  ser- 
vice. 


994  APPENDIX. — Constitution  of  the  United  States. 

Article  5. — Amendments — how  made. 

other  property  belonging  to  the  United  States ;  and  nothing  in 
this  Constitution  shall  be  so  construed  as  to  prejudice  any  claims 
of  the  United  States,  or  of  any  particular  State. 

SECTION   IV. 

Republican      §  5049.     1.  The  United  States  shall  guarantee  to  every  State 
form.  in  this  Union  a  republican  form  of  government,  and  shall  protect 

each  of  them  against  invasion ;  and  on  application  of  the  Legis- 
lature, or  of  the  Executive  (when  the  Legislature  can  not  be  con- 
vened), against  domestic  violence. 


ARTICLE  V. 

amendments-how    made. 

Section  5050.  Amendments — how  made. 

§  5050.     1.  The  Congress,  "whenever  two-thirds  of  both  Houses 
Amend-  shall  dccm  it  necessary,  shall  propose  amendments  to  this  Consti- 
Stained.  ^^  tution,  or  on  the  application  of  the  Legislatures  of  two-thirds  of 
the  several  States,  shall  call  a  convention  for  proposing  amend- 
ments, which  in  either  case,  shall  be  valid  to  all  intents  and  pur- 
poses as  part  of  this  Constitution  when  ratified  by  the  Legisla- 
tures of  three-fourths  of  the  several  States,  or  by  conventions  in 
.     three-fourths  thereof,  as  the  one  or  the  other  mode  of  ratification 
may  be  proposed  by  the  Congress ;  provided^  that  no  amendment 
which  may  be  made  prior  to  the  year  1808,  shall  in  any  manner 
aflfect  the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article ;  and  that  no  State,  without  its  consent,  shall  be  deprived 
of  its  equal  suffrage  in  the  Senate. 


ARTICLE  VL 

MISCELLANEOUS    PROVISIONS. 


Section. 

5051.  Prior  debts. 

5052.  Supreme  law. 


Section. 

5053.  Oath  of  officers. 


§  5051.     1.  All  debts  contracted  and  engagements  entered  into 
Prior  debts  before  the  adoption  of  this  Constitution,  shall  be  as  valid  against 
ment^^""  the  United  States  under  this  Constitution  as  under  the  confedera- 
tion. 

5052.  2.  This  Constitution,  and  the  laws  of  the  United  States 
Constitution  which  shall  bc  made  in  pursuance  thereof,  and  all  treaties  made, 
are  thT  fn-  OY  which  shall  be  made  under  the  authority  of  the  United  States, 
premeiaw.    ^-^siW  bc  the  suprcmc  law  of  the  land /and  the  Judges  in  every 


APPENDIX. — Constitution  of  the  United  States. 


995 


Article  7. — Ratifications. 


State  shall  be  bound  thereby ;   any  thing  in  the  Constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding. 

§  5053.  3.  The  Senators  and  Representatives  before  mentioned,   oat^.*o t^-® 

IT  7  r>i  iriT'i  in  XI  Constitution 

and  the  members  oi  the  several  btate  Legislatures,  and  all  Jbjxec- 

utive  and  Judicial  officers,  both  of  the  United  States  and  of  the 

several  States,  shall  be  bound  by  oath  or  affirmation  to  support 

this  Constitution  ;  but  no  religious  test  shall  ever  be  required  as  ^^g*J^®^^s^°"' 

a  qualification  to  any  office  or  public  trust  under   the  United 

States. 


ARTICLE  VII. 

ratifications. 

Section  5054.  Ratifications. 

§  5054.     1.  The  ratification  of  the  conventions  of  nine  States  Ratification. 
shall  be  sufficient  for  the  establishment  of  this  Constitution  between 
the  States  so  ratifying  the  same. 


ARTICLE  VIII. 


AMENDMENTS. 


Section. 

5055.  Religion,  press,  assembling. 

5056.  Right  to  bear  arms. 

5057.  Quartering  troops. 

5058.  Searches  and  seizures. 

5059.  Trial  for  crimes — private  prop.,  etc. 

5060.  Speedy  trial — witnesses,  etc. 

5061.  Trial  in  civil  cases. 

5062.  Bail  and  punishments. 


Section. 

5063.  Rights  reserved. 

5064.  Powers  not  delegated. 

5065.  Cases— State  a  party. 

5066.  Election  of  President  and  V.  P. 

5067.  Election  of  V.  President  by  Senate. 

5068.  Qualification. 

5069.  Abolishment  of  slavery. 

5070.  How  enforced. 


§  5055.     Art.  I.  Congress  shall  make  no  law  respecting  an  es-     Rights  of 
tablishment  of  religion,  or  prohibiting  the  free  exercise  thereof;  freedom  of 
or  abridging  the  freedom  of  speech,  or  of  the  press,  or  the  right  etc.  ^^^^^' 
of  the  people  peaceably  to  assemble,  and  to  petition  the  govern- 
ment for  a  redress  of  grievances. 

§5056.  Art.  II.  A  well  regulated  militia  being  necessary  to  or  the  right 
the  security  of  a  free  State,  the  right  of  the  people  to  keep  and  °  ®*'^^™«* 
bear  arms  shall  not  be  infringed. 

§  5057.     Art.  III.  No  soldier  shall,  in  time  of  peace,  be  quar- .  of  qnarte*- 
tered  in  any  house,  without  the  consent  of  the  owner,  nor  in  time  ^°^  ^^°'*^^' 
of  war,  but  in  a  manner  to  be  prescribed  by  law. 

§5058.     Art.  IY.  The  risht  of  the  people  to  be  secure  in  their  of  searches, 

1  1  ^/v.      .  .       .^  ■,  t  1         seizures  and 

persons,  nouses,  papers,  and  enects,  against  unreasonable  searches  general  war- 
and  seizures,  shall  not  be  violated,  and  no  warrants  shall  issue  but  ^°'^^^' 
upon  probable  cause  supported  by  oath  or  affirmation,  and  partic- 


996  APPENDIX. — Constitution  of.  the  United  States. 

8. — Amendments. 

ularlj  describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

§  5059.     Art.  Y.  No  person  shall  be  held  to  answer  for  a  cap- 

of  indict-  ital  or  otherwise  infamous  crime,  unless  on  a  presentment  or  in- 

i"hments"etc  dictmcnt  of  a  Grand  Jury,  except  in  cases  arising  in  the  land  or 

naval  forces,  or  in  the  militia,  when  in  actual  service,  in  time  of 

war  or  public  danger;  nor  shall  any  person  be  subject,  for  the 

same  offense,  to  be  twice  put  in  jeopardy  of  life  or  limb,  nor  shall 

»       be  compelled  in  any  criminal  case  to  be  a  witness  against  himself, 

nor  be  deprived  of  life,  liberty,  or  property,  without  due  process 

of  law,  nor  shall  private  property  be  taken  for  public  use  without 

just  compensation. 

§  5060.     Aet.  VI.  In  all  criminal  prosecutions,  the  accused 
Of  trial  in  shall  cujoy  the  right  to  a  speedy  and  public  trial,  by  an  impartial 
s"s™and  the  jury,  of  the  State  and  district  wherein  the  crime  shall  have  been 
difendant.  ^  Committed,  which  district  shall  have  been  previously  ascertained 
by  law,  and  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion ;  to  be  confronted  with  the  witnesses  against  him ;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor,  and  to 

...     have  the  assistance  of  counsel  for  his  defense. 

^/  §  5061.     Art.  VII.  In  suits  at  Common  Law,  where  the  value 

/     Of  trial  in  in  controvcrsy   shall  exceed  twenty  dollars,  the  right  of  trial  by 
civi  cases,    j^^y  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall  be  other- 
wise re-examined  in  any  Court  of  the  United  States^-^teiT'ac^trrd- 
"—----- Jng  to  the  rules  of  the  Common  Law. 

§  5062.     Art.  VIII.  Excessive  bail  shall  not  be  required,  nor 
Of  bail  and  exccssivc  fiucs  imposcd,  nor  cruel  and  unusual  punishments  in- 
flicted. 

§  5063.     Art.  IX.  The   enumeration   in   the    Constitution   of 
Of  rights  certain  rights,  shall  not  be  construed  to  deny  or  disparage  others 

reserved.  ,     •        -x  -i        .  i  i 

retained  by  the  people. 

§5064.  Art.  X.  The  powers  not  delegated  to  the  United 
Powers  not  Statcs  by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
eegate  .     j-^ggj-yg^j  ^^  ^j^g  States  respectively,  or  to  the  people. 

§  5065.     Art.  XL  The  Judicial  power  of  the  United  States 

ofthejndi-  shall  not  bo  construed  to  extend  to  any  suit  in  Law  or  Equity, 

ciai  power,    commenced  or  prosecuted  against  one  of  the  United  States  by 

citizens  of  another  State,  or  by  citizens  or  subjects  of  any  foreign 

State. 

§  5066.     Art.  XII.  The  electors  shall  meet  in  their  respective 
Manner  of  Statos,  and  voto  by  ballot  for  President  and  Vice  President,  one 
PresTdent  of  whom,  at  Icast,  shall  not  be  an  inhabitant  of  the  same  State 
President.*'^  with  thcmsclves.     They  shall  name  in  their  ballots  the  person 
voted  for  as  President,  and  in  distinct  ballots  the  person  voted  for 
as  Vice-President,  and  they  shall  make  distinct  lists  of  all  persons 
voted  for  as  President,  and  of  all  persons  voted  for  as  Vice  Presi- 
dent, and  of  the  number  of  votes  for  each,  which  lists  they  shall 
sign  and  certify,  and  transmit,  sealed,  to  the  seat  of  the  govern- 


APPENDIX.— Constitution  of  the  United  States.  997 

8. — Amendments. 

ment  of  the  United  States,  directed  to  the  President  of  the  Senate. 
The  President  of  the  Senate  shall,  in  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted ;  the  person  having  the  greatest  number  of 
votes  for  President  shall  be  the  President,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed ;  and  if  no 
person  have  such  majority,  then,  from  the  persons  having  the 
highest  numbers,  not  exceeding  three,  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  shall  choose  imme- 
diately, by  ballot,  the  President.  But,  in  choosing  the  President, 
the  votes  shall  be  taken  by  States,  the  representation  from  each 
State  having  one  vote ;  a  quorum  for  this  purpose  shall  consist  of 
a  member  or  members  from  two-thirds  of  the  States,  and  a  major- 
ity of  all  the  States  shall  be  necessary  to  a  choice.  And  if  the 
House  of  Representatives  shall  not  choose  a  President,  whenever 
the  right  of  choice  shall  devolve  upon  them,  before  the  fourth  day 
of  March  next  following,  then  the  Vice-President  shall  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional  disa- 
bility of  the  President. 

§5067.     The  person  having  the  greatest  number  of  votes  as  on  failure  to 

"  .  ■'•  ^  ^  .  elect     Vice- 

Vice-President  shall  be  the  Vice-President,  if  such  number  be  a  ma-  President, 
jority  of  the  whole  number  of  electors  appointed ;  and  if  no  per-  efe^t^  ^^*^^ 
son  have  a  majority,  then,  from  the  two  highest  numbers  on  the 
list,  the  Senate  shall  choose  the  Vice  President ;  a  quorum  for  the 
purpose  shall  consist  of  two-thirds  of  the  whole  number  of  Sena- 
tors, and  a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice. 

§  5068.     But  no  person  constitutionally  ineligible  to  the  office  Qualification 
of  President,  shall  be  eligible  to  that  of  Vice  President  of  the 
United  States. 

§  5069.     Art.  XIII.  Neither   slavery  nor   involuntary  servi-  slavery  abo- 
tude,  except  as  a  punishment  for  crime,  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United  States,  or 
any  place  subject  to  their  jurisdiction. 

§  5070.     Congress  shall  have  power  to  enforce  this  Article  by     How  en- 
appropriate  legislation.  ^°^"°^^* 


INDEX. 


This  Code  is  indexed  by  sections.    The  notes  under  each  title  in  the  Index  are  numbered  1,  2,  3,  &c. 


Abandonments. 

1  Of  children — punishment  for .  4307 

Abatement  of  Actions. 

1  Actions  do  not  abate — in  what 
cases 3390  to  3396 

2  Actions  for  tort  do  not  abate — when  2916 

3  Vacancy  in  receivership  does  not 
abate  suit 1498,  3388 

Abatement  of  Nuisances. 

1  Law  regulating .4023  to  4029 

Abducting  Seamen. 

1  Punishment  for 1556 

Abducting  or  Harboring  Wife. 

1  Husband's  right  of  action  for 2956 

Abusive  Language. 

1  Punishment  for  using. . » 4306 

Academies. 

1  Trustees  of— how  appointed 1265 

2  Vacancies  in  board — how  filled . . .  1266 

3  Authority  and  power  of  trustees . .  1267 

4  Liability  of  those  holding  funds  of  1268 

5  Exempt  from  taxation 796 

Academy  for  the  Blind. 

1  Where  located,  and  how  controlled  1241 

2  Trustees  of  are  a  body  corporate. .  1242 

3  Power  of  the  trustees 1243 

4  Beneficiaries  of 1244 

5  Apportionment  of  applicants 1245 

6  Number  of  pupils 1246 

7  Pay  pupils 1247 

8  Treasurer  shall  give  bond 1248 

9  Annual  report  of  trustees 1249 

10  Board  of  visitors 1250 

11  Powers  and  duties  of  visitors 1251 

12  Vacancies  and  ineligibilities 1252 

13  Statistics  of  blind — how  obtained.  1253 

14  Indigent  blind— list  of 1254 

15  Former  laws  still  of  force 1255 

16  Pupils  pass  over  W.  &  A.  R.  R.  free  1013 

17  Trustees  of  appointed  by  Governor      68 
Academy  for  the  Deaf  and  Dumb. 

1  Location  and  management  of. ... .  1256 

2  Residence  of  officers 1257 

3  Election  and  responsibility  of  prin- 
cipal    1258 

4  Authority  of  principal 1259, 1260 

5  Board  of  visitors — rights  and  du- 
ties of 1261 

6  Contracts    with    trustees  —  when 
valid 1262 

7  Vacancies — how  filled 1263 


8  Other  provisions  relative  to 1264 

9  Trustees  of  appointed  by  Governor      68 
10  Pupils  pass  over  W.  &  A.  R.  R. 

free 1013 

Acceptor. 

1  Of  draft  against  cotton — indictable 
when 1591 

2  May  accept,  to  pay  out  of  special 
fund 2737 

3  Lien  of  in  such  case 2737 

Accessories. 

1  Definition  and  punishment  of 

4242  to  4245 

2  Harborers  of  criminals  are 4422 

Accident  and  Mistake. 

1  What  is  accident 3057 

2  Lost  bonds  and  notes— how  paid .  3058 

3  Reformation  of  deeds 3050 

4  Conditions — how  construed 3060 

5  Rehef  of  volunteers 3061 

6  What  is  mistake 3062 

7  Mistake— how  proved 3063 

8  Who  may  be  relieved 3064 

9  Ignorance  of  law  no  ground  of  re- 
lief... . 3066 

10  Mistakes  are  of  fact  or  law 3065 

11  Mistake    of    law— when    relieva- 

ble 3067,  3068 

12  Reformation  of  contracts 3069 

13  Mistake  of  fact— relieved  when. . .  3070 

14  Negligence  and  ignorance 3071 

15  Mutual  ignorance,  etc 3072 

16  In  execution  of  power,  relievable.  3073 

17  Judgments,    when    set    aside    in 
equity 3074 

Accord  and  Satisfaction. 

1  What  is 2827 

2  Efi'ect  of. .2827,  2828 

3  Mu&t  benefit  creditor 2829 

4  Compromises  are 2831 

5  Promise  to  take  less  than  debt 2830 

6  In  cases  of  tort 2999,  3000 

7  Satisfaction  of  executions. .  3607 to 3610 

Account. 

1  Equity  jurisdiction  in  matters  of.  3075 

2  Mingling  goods— effect  of. 3076 

3  Contribution 3077 

4  Discharging  incumbrances 3078 

5  Apportionment 3079 

6  Surcharging  and  falsifying 3080 


1000 


INDEX. 


7  Complaiuant  need  not  tender  bal- 
ance   3081 

8  Appointment  of  Auditor 3082 

9  Auditor's  report,  and  effect  of 3083 

10  Sets-off  in  equity 3084 

Accounts. 

1  Bear  interest — when 2031 

2  Limitation  of  actions  on 2867 

3  Form  of  action  on 3316 

4  Books  of,  how  admitted  in  evi- 
dence   3724 

5  Proof  of  in  Justice's  Courts 4089 

6  Judgments  on,  without  proof 3405 

Accused. 

1  Constitutional  rights  of 4897 

Actions. 

1  At  law  defined 2217,  3186 

2  Remedy  for  every  right 3185 

3  Court  may  frame  remedies 3185 

4  Distinctions  of  abolished 3187 

5  May  be  against  person  or  property  3187 

6  Actions  bind  what 3187 

7  Civil  action,  on  what  founded  . . .  3188 

8  Penal  actions — who  may  bring...  3189 

9  Demand — when  necessary 3190 

10  Misjoinder  of 3191 

11  By  and  against  whom  brought,  3192, 3193 

12  Tenant  in  common  may  sue  alone  3194 

13  Separate  claims  cannot  be  joined  3197 

14  What  claims  may  be  joined 3196 

15  By  infant  — are  not  void 3198 

16  Venue  of  actions. 3325  !o  3340 

17  How  commenced 3256 

18  Against  several  in  different  coun- 
ties   3271 

19  Against  surviving  joint  debtors. . .  3272 

20  Representatives  may  be  joined 3272 

21  Against  partners 3273 

22  W  here  part  only  are  served 3274 

23  Judgment  in  such  case 3275 

24  Parties  may  be  made 3274 

25  Plea  of  infancy  by  one,  effect  of. .  3276 

26  Against  maker  and  indorser 3277 

27  On  attachment  bonds 3278 

28  By  tenant  in  common  against  co- 
tenant 2277 

29  Two  for  same  cause  forbidden 2843 

30  Attachments  without  the  rule 2844 

31  By  informers,  tlie  first  preferred. .  2845 

32  To  recover  losses  by  gaming 2711 

33  For  breaches  of  contract. 2888 

34  For  torts  or  injuries 2900  to  2916 

35  For  physical  injuries 2917  to  2922 

36  For  libel  and  slander 2923  to  2930 

37  For  malicious  prosecution. 2931  to  2938 

38  For  llilse  imprisonment 2939  to  2941 

39  Nuisances  and  injuries  to  health 

2946  to  2954 

40  For  negligence  of  trustees 2955 

41  For  abducting  or  harboring  wife. .  2956 

42  For  criminal  conversation 2957 

43  For  seduction 2958 

44  For  selling  liquor  to  minor 2959 

45  For  gaming  with  minors 2960 

46  Against  procurers  of  injuries       ...   2961 

47  For  injuries  to  real  estate.  .2962  to  2971 


48  Right  of,  in  cases  of  bailment. . . .  2976 

49  By  remaindermen,  etc 2977 

50  Against  R.  R.  Cos.,  and  W.  &  A. 

R.  R 2978  to  2995 

51  Of  ejectment 3279  to  3290 

52  Against  members  of  corporations, 

etc 3291 

53  Corporations  how  served 3293 

54  Mode  of  service  specified 3293 

55  Service  by  publication 3294 

56  Notice  to  stockholders,  effect  of. . .  3295 

57  Judgment  and  execution 3296 

58  Stockholders,  how  ascertained. . . .  3297 

59  Execution  against  president 3297 

60  Who  may  defend  in  such  case 3298 

61  Illegality  to ./?./».  allowed 3299 

62  Such  remedy — cumulative 3300 

63  Actions    against    trust  —  estates. 

3301  to  3306 
B4  Against  executors,  etc 3307  to  3312 

65  Forms  prescribed. 3313  to  3324 

66  Limitatious  of  ex  contractu  .2862  to  2882 

67  New  promise  and  effect  of.  .2883  to  2887 

68  Limitations  of— ex  delicto.  .3003  to  3006 

69  Administrators  exempt  for  a  year.   2507 

70  On  lost  papers,  allowed  when 3919 

71  Against  guardians  and  their  sure- 
ties   1810 

72  By  and  against  persons  of  color. .  1662 

73  Will  not  lie  for  liquor— when 1436 

74  Against  the  W.  &  A.  R.  R.,  by  what 

law  regulated 970 

75  How  and  when  brought  against 
W.&  A.R.  R -. 978 

76  Demand  before  such  action 979 

77  Against  R.  R.  companies,  where 
brought 746 

78  Against  counties — how  brought. . .     526 

79  On  official  bonds — damages  in. , . .     157 

80  Against    purchasers    at    Sheriff's 
sales 3605,  3606 

81  Bail  at  commencement  of. .  3341  to  3356 

82  Bail  pendente  lite 3357  to  3362 

83  Proceedings  against  bail.  ..3363  to  3369 

84  Bail  in  actions  for  personalty  .... 

3370  to  3372 

85  Abatement  of  actions 3390  to  3396 

86  Retraxit  of  actions 3397,  3398 

87  Dismissal  of  actions 3399 

Adjournments. 

1  Of  Superior  Courts 3175  to  3177 

2  Of  Inferior  Courts 3179,  3180 

3  Of  Court  of  Ordinary 4042,  4051 

4  Of  Supreme  Court 3171,  3172 

5  Of  Arbitrators 4174 

6  Of  General  Assembly 4932 

Administration  of  Assets. 

1  Legal  and  equitable  assets 3085 

2  How  distributed  in  equity. .  .3085,  3086 

3  Interference  with  administration. .  3087 

4  Bills  for  direction  lie — ;when 3088 

5  Bills  to  marshal  assets 3089 

6  Election  of  parties  in  such  cases. .  3090 

7  Creditors'  bills 3001 

8  Appointment  and  duty  of  receiver  3092 

9  Receivers  accountability 3003 


INDEX. 


1001 


2537 

2542 
2547 

2556 

2564 


10  Misapplication  of  trust  assets 8094 

11  Assets  may  be  traced 3095 

12  Creditors  may  reach  equitable  as- 
sets   3096 

13  Joint  and  individual  assets 3097 

ADMINISTRATIOlSr   OF   ESTATES. 

1  Granted  by  Ordinary — in  what  ca- 
ses       368 

2  In  what  county  granted 369 

3  Temporary — when  granted..  .2451  2458 

4  Rules  for  granting  letters  of. 2458 

5  Vested  in  Clerk — when 2459 

6  Unnecessary — in  what  cases 2459 

7  Granted  to  person  citing,  or  others  2461 

8  Application  for — when  made 2468 

9  Citation  by  Ordinary 2464 

10  Support  of  deceased's  family.. .-.. . . 
2459,  2530  to 

11  Advancements — law  concerning. . 
2538  to 

12  Division  of  estates  in  kind. 2548  to 

13  Commissions,  etc.,  of  Administra- 
tor  2548  to 

14  Settlements  and  final  receipts. .... 
2557  to 

15  Refunding    bonds    demandable — 
when 2564 

16  Revenue  stamps  taxed  as  cost 2462 

17  Letters  dismissory — how  obtained. 
2565  to  2567 

18  Removal  of  adm.inistration.2570  to  2572 
Administrators. 

1  Title  to  personalty  vests  in 2447 

2  Right  of,  to  the  whole  estate 2449 

8  May  sue  heirs — when 2450 

4  Temporary 2451 

5  Bond  of  temporary 2452 

6  Pendente  lite 2453 

7  De  bonis  non 2454 

8  With  the  will  annexed 2455 

9  Who  may  be  appointed 2456  2458 

10  I^on-residents  may  be — when 2459 

11  Rules  for  appointing 2458 

12  Clerks  appointed— when 2459 

13  Survivorship  amongst 2460 

14  Need  not  be  person  citing 2461 

15  Application— where  made 2463 

16  Citation  by  the  Ordinary 2464 

17  Oath  of  Administrators 2465 

Bond  of 2466 

Bond  of,  filed  and  recorded 2467 

Bond — how  sued  on 2468 

Execution— how  issued  and  levied  2469 

22  New  security  required — when 2470 

23  Obligations  of  joint  bond 2471 

24  Proceedings  against  for  default. . .  2472 

25  Sureties  of  removed  administrator  2473 
Revoking  letters — no  abatement  of 

suits. 2474 

Removing  one,  vests  trust  in  the 

other 2475 

Heirs  may  sue  removed 2476 

Warrant  of  appraisement 2477 

30  Inventory  and  appraisement 2478 

31  Appraisement— when  to  be  made.  2479 

32  Inventory  to  include  what 2480 

64 


18 
19 
20 
21 


26 

27 

28 
29 


33  Joint  inventory— efi'ect  of 2481 

34  Appraisement — how  returned 2483 

35  Appraisers  must  be  sworn 2482 

36  Default  ground  for  removing 2484 

87  Accountablefor  true  value  of  estate  2485 

38  Annual  returns  of 2486 

39  Vouchers  to  accompany  leturns. .  2487 

40  Duty  of  Ordinary  as  to  returns. . .  2488 

41  Returns  ofnon-resident  or  deceased  2489 

42  Docket  and  citation  of  defaulters.  2490 

43  Notice  to  creditors 2491 

44  Effect  of  failure  to  file  claim 2491 

45  Heirs  sued  for  debts — when 2492 

46  Debts  should  be  paid — when 2493 

47  Rank  and  priority  of  debts 2 194 

48  Estate- how  bound  for  debts 2495 

49  Duty  of,  as  to  collections 2496 

50  Heirs  or  creditors  may  collect. . . .  2497 

51  Power  of,  as  to  debts,  etc 2498 

52  May  join  in  assignments  2499 

58  Compromises  by — how  made 2500 

54  May  revive  debts — when. 2501 

65  May  provide  counsel  for  estate . . .  2502 

56  Investments  by 2503 

57  May  continue  deceased's  business.  2504 

58  May  contract  for  labor 2505 

59  Duty  of  as  to  deceased's  contracts.  2506 

60  Exempt  from  suit  for  a  j^ear 2507 

61  Exception 2507 

62  Application  for  titles  to  land 2508 

63  Notice  of  application 2509 

64  Objections  and  trial 2509 

65  Appeal 2509 

66  Application  for  title  by  heirs 2510 

67  Notice  to  vendor 2510 

68  Where  both  are  dead 2511 

69  Costsof  proceeding,  by  whom  paid  2512 

70  May  sell  perishable  property 2513 

71  Mode  of  conducting  sale 2514 

72  Terms  of  sale — diligence 2515 

73  Sale  of  wild  lands  by 2516 

74  Sale  of  choses  in  action 2517 

75  Sale  of  land — when  allowed 2518 

76  Land — how  advertised  and  sold. .  2519 

77  Recital  in  deeds,  effect  of. 2520 

78  Land  in  two  counties — where  sold.  2521 

79  Warranty  by-effect  of 2522 

80  Can  not  sell  over  adverse  possession  2523 

81  Claims — where  tried. 2524 

82  Private  sales  by,  condemned 2525 

83  Sales  under  wills 2526 

84  Terms  of  sale  shall  be  advertised.-  2527 

85  Returns  of  sales  by 2528 

86  Support  of  deceased's  family 

2459,2580  to  2537 

Division  of  estates  in  kind. 2548  to  2547 
Advancements — law  concerning.. 

2538  to  2542 

Commissions  of 2548 

Commissions  on  interest  raised . . .  2549 
Commission,  how  divided  amongst  2550 
Allowed  on  same  fund  but  once. ,  2554 
Commissions — how  forfeited .  2555 

94  Disallowed— when 2550  2551 

95  Traveling  and  other  expenses  of. .  2552 

96  Expenses  of  agents 2553 


87 


90 
91 
92 
93 


1002 


INDEX. 


97  Settlements  of,  before  Ordinary. .  2557 

98  How  made  and  enforced 2558 

99  Settlements  in  Equity 2559 

100  Basis  of  settlements 2560  2561 

101  Interest — how  charged  against. . . 
2560  2562 

102  Final  receipts— proof  of. 2563 

103  May  demand  refunding  bonds. . . .  2564 

104  How  discharged 2565 

105  Ordinary's  duty 2566 

103  Minors  not  bound  by  discharge. . .  2566 

107  Discharge  by  fraud — is  void 2567 

108  Disposition  of  unclaimed  funds.. .  2568 

109  Resignation  of— how  effected 2569 

110  Minors  not  bound  by  resignation.  2569 

111  Jurisdiction  of  trust — how  remov- 
ed  .'  2570 

112  Liability  of  sureties  in  such  case.  2572 

113  Suits  by  foreign  administrators...  2573 

114  Proof  of  authority  to  be  filed. . . .  2574 

115  Rights  of  heir  or  creditor  in  such 
case 2575 

116  Other  rights  of  foreign  adminis- 
trators   2576 

117  Administrators  may  arbitrate.2498  2833 

118  Limitation  of  actions  against. , , .  2871 

119  Attachments  against 3210 

120  Suits  on  bonds  of.  3307,  3308,  3310  3311 

121  Service  of  one — suflicient  when..  3312 

122  Pleas  peculiar  to 3423  3424 

123  Garnishments  against 3497  3498 

124  Judgments — how  entered  against 
3515  3516 

125  Appeals  by 3566 

126  May  convey  by  attorDe3Mn  fact. . .  2154 

127  Make    returns  in  new  County — 
when 36 

Administkator's  Sales. 

1  Law  regulating 2513  to  2528 

Admissions. 

1  Refer  to  civil  cases 3730 

2  Of  parties  to  the  record. 3731 

3  Of  real  party  though  not  oh  record  3732 

4  Of  strangers — received  when 3733 

5  Of  agents  and  attorneys. 3734 

6  Of  privies 3735 

7  Improperly  obtained — rejected. . .  3736 

8  Effect  of  silence  or  acquiescence..  3787 

9  The  whole  of,  must  be  received.. .  3788 

10  Received  with  caution 3739 

11  Of  executor  and  legatee 2402 

12  Confidential  communications 

3744  to  3746 

Adoption. 

1  Of  children 1779 

2  Of  adults 1781 

Adulterated  Drugs  or  Liquors. 

1  Sale  of  gives  action  to  injured  par- 
ty   2953 

2  Punishment  for  selling 4473 

Adultery. 

1  Husband  may  sue  for,  with  wife. .  2957 

2  Proof  of  marriage  in  such  case. . .  2957 

3  Competency  of  witnesses  in  cases 

of 3799 

4  With  negro — how  punished 4487 


5  Punishment  for 4460 

Adults, 

1  Adoption  of 1781 

2  Changing  names  of 1781 

Advanceicents. 

1  How  proved  and  accounted  for. . .     • 

2538  to  2542 

Adverse  Possession. 

1  Law  governing 2636  to  2647 

2  What  is,  by  tenant  in  common. . . .  2277 

3  Administrator  can  not  sell  over. . .  2523 
Affidavits. 

1  Of  illegality — law  regulating 

3614  to  3621 

2  Of  illegality  amendable — when . . .  3450 

3  To  appeal,  may  be  amended. .....  3455 

4  To  obtain  capias,  ad  satisfaciendum  3578 

5  What  are  not  amendable 3453 

Affirmation. 

1  Of  Witnesses 3806 

2  May  be  framed  by  Court 3806 

Affrays. 

1  Definition  and  punishment 4442 

Agents. 

1  Who  may  be    2155 

2  What  acts  may  be  done  by..  ..2153  2181 

3  Of  foreign  bank  or  banker — tax  on    816 

4  Auctioneers  are,  of  both  parties. . .  2588 

5  Of  firms— their  duty 1900 

6  Liability  of  partners  for  torts  of. ..  1906 
'7  Law  relating  to,  with  principals.. . 

2152  to  3167 

8  Liability  of  principals  for  acts  of . 
: 2168  to  2180 

9  Rights  and  liability  of,  as  to  others 
2181  to  2188 

10  Payments  to — Avhen  good 2813 

11  Must  have  license — when 2799 

12  Seizures  by  pretended  government  4354 
Agency. 

1  How  created 2156 

2  How  and  when  revoked 2157 

3  By  ratification 2152  2166 

Agreements. 

1  That  must  be  in  writing 1940 

Agricultural  Products. 

1  Ownership  unchanged  till  paid  for  1589 

2  Penalty  for  failing  to  pay  for. ... .  1590 

3  Weighers  of—how  sworn 1595  1596 

4  Tare  allowed  on 1598 

Aliens. 

1  Who  are 1655 

2  Rights  and  privileges  of. 1656  1657 

3  May  take  and  enfui'ce  liens 1658 

4  May  be  admitted  to  the  bar 425 

5  Subject  to  militia  duty— when 1660 

6  Privileges  of  certain  Frenchmen..  1659 
Alimony. 

1  Temporary  or  permanent 1731 

2  Temporarv,  when  and  how  allow- 
ed   ^ 1732 

3  Discretion  of  Judge  as  to 1733 

4  Order  for,  may  be  revised 1734 

5  Merits  of  case^  not  in  issue 1735 

6  Enforcement  of  order  for 1734 

7  Permanent,  granted  when 1736 


INDEX. 


1003 


8  May  be  granted  by  deed 1737 

9  Decree  for,  in  equity 1738 

10  Wife's  support  until  granted 1739 

11  Effect  of  granting 1740 

12  Effect  of  cohabitation  after 1741 

13  Wife's  interest  in  liusband's  estate, 
after 1742 

14  May  be  granted  in  divorce  cases. .  1719 
Alteration. 

1  Of  written  contracts,  effect  of . . . ,  2801 

2  Proof  of .'  .2803  3782 

3  By  whom  tried 2802 

4  Of  records  and  papers.. . . ; 4404 

Altering  Marks  and  Brands. 

1.  Punishment  for 4337 

Altering  Public  Roads. 

1  Penalty  for 689 

Amalgamation. 

1  Prohibited  in  Georgia 1707  4988 

2  Punishment  of  party  officiating. .  4483 
Ambrotypists. 

1  Tax  on 806 

Amendments, 

1  Of  pleadings,  when  allowed...  3429  4064 

2  When  not  allowed 3430 

3  To  include  issue,  born  pendente  lite.  3431 

4  Court  may  impose  terms  of. 3432 

5  Of  misnomers. .....'. 3433 

6  Of  names  of  partners 3434 

7  Of  parties  names, .3435  3436 

8  Of  representative  character 3437 

9  Of  omission  of  jurisdiction 3438 

10  Of  scire  facias 3439 

11  Of  waiver  of  process 34^10 

12  Of  verdicts 3441  to  3443 

13  Of  judgments 3444 

14  Of  executions,  effect  of 3445 

15  Of  official  returns 3446  3447 

16  Of  records 3448  3449 

17  Of  affldivats  of  illegality 3450 

18  Of  insolvent's  schedule 3451 

19  Of  rules  for  new  trial 3452 

20  Affidavits  not  amendable  when . . .  3453 

21  Of  appeal  bonds,  etc 3454 

22  Of  affidavits  to  appeal 3455 

23  Of  clerical  mistakes 3456 

24  In  Equity 4118  4122 

25  In  Inferior  Court 4064 

26  Of  bills  of  exception 4223 

27  In  cases  of  attachment 3240 

28  Continuances  because  of. 3469  3470 

Ancient  Documents. 

1  Admissible  in  evidence — when . . .  3726 
Answers, 

1  General  provisions  as  to 3400  to  3407 

2  Particular  pleas 3408  to  3428 

Answers  in  Equity. 

1  Are  evidence — how  far    3050 

2  How  rebutted 3050 

3  What  is  responsive  in 3051 

4  Of  co-defendants 3052 

5  Exceptions  to 4135 

6  Where  discovery  is  sought 4138 

7  To  amendments  of  bill 4137 

8  Amendment  of,  and  its  effect 4136 


9  May  be  used  on  motions  to  dissolve, 

etc 4136 

Appeals, 

1  Right  of 3552 

2  From  Courts  of  Ordinary,  361, 3553  497£ 

3  Do  not  lie  on  collateral  issues 3554 

4  Kor  in  issue  on  dilatory  pleas 3555 

5  When  to  be  entered 3556  3557 

6  By  whom  entered 3558  to  3561 

7  Payment  of  cost,  giving  security .   3559 

8  One  or  more  may  effect 3562 

9  All  bound  by  final  judgment 3563 

10  Obligation  of  surety  on 3564 

11  Recourse  of  surety 3564 

12  By  executors,  etc 3565 

13  In  forma  pauperis 3566 

14  Costs  in  Court  of  Ordinary 3567 

15  Application  for — to  whom  made..  3569 

16  Transmission  of , 3568  3570 

17  Make  new  investigation 3571 

18  Effect  of  Appeals 3511  3572 

19  How  withdrawn , . .  3573 

20  How  and  when  tried 3574 

21  Frivilous  appeals — damages  for. . .  3575 

22  From  County  Court 296  3570 

23  From  judgments  against  railroad 
companies 2991 

24  How  entered,  and  where  tried  in 
such  cases 2991 

25  From  confessions  of  judgment. . .  3543 

26  Judgment  on — how  entered  up...  3513 

27  In  Justices'  Courts,  trial  of. .  .4098  4099 

28  Appeal  bonds  amendable 3454 

29  Affidavits  to  appeal  amendable. . .  3455 

30  JSTot  allowed  in  Equity  cases 4152 

Apothecaries. 

I  Law  concerning 1429  to  1431 

Apportionment. 

1  Of  contracts,  etc.,  in  equity 3079 

Apprentices, 

1  Law  concerning 1862  to  1864 

2  Associations  to  disturb,  punished. .  4426 

3  Witnesses  in  such  cases 4427 

Appropriation  of  Payments. 

1  How  made 2818 

Appropriations  of  Money. 

1  Book  of  to  be  kept        72 

2  Paid  to  objects  specified 86 

3  Not  paid  after  six  months 86 

Arabic  ISTumerals. 

1  May  be  used  in  pleadings 3195 

Arbitrament  and  Award. 

1  Between  disagreeing  parties  2832 

2  Fiducial  agents  may  submit  to.'. . .  2833 

3  Submission  and  award   verbal — 
when 2834 

4  Submission  must  control 2835 

5  Award  under  general  submission. .  2836 

6  What  award  must  be 2837  2838 

T  Umpire — award  by 2839 

8  Pending  suits  may  be  referred  ....  2840 

9  Award— what  vitiates 2841  2842 

10  In  cases  of  tort 3007 

II  Award  set  aside  for  fraud 3121 

12  Who  may  submit  4166 

13  Submission  must  be  written 4167 


1004 


INDEX. 


14  Contents  of  submission 4167 

15  Number  of  arbitrators 4168 

16  Arbitrators— bow  cliosen 4168  4169 

17  Time  and  place  of  hearing 4170 

18  List  of  witnesses 4171 

19  Vacancies — bow  filled 4172 

20  Arbitrators  to  be  sworn 4173 

21  Postponement  of  trial 4174 

22  Adjournments 4175 

23  Testimony  by  commission 4176 

24  Competency  of  witnesses 4177 

25  Rules  of  evidence 4178 

26  Examination  of  witnesses 4178 

27  Attendance  of  witnesses 4179 

28  Production  of  books  and  papers, .  4180 

29  Administration  of  oaths 4181 

30  Two  may  make  award 4182 

31  Rendition  and  effect  of  award 4183 

32  Award — how  attacked 4184 

38  Verdict  and  order  of  Court 4185 

34  Clerk's  fee 4186 

35  Costs— how  taxed. ..... .'. . ......  4187 

36  Compensation  of  arbitrators 4188 

37  Submission  at  common  law 4189 

38  When  suit  is  pending , . .  4190 

Argument. 

1  Order  of,  in  criminal  cases 4551 

2  By  brief  in  Supreme  Court.4213  to  4215 
Arms. 

1  Right  to  bear  not  to  be  infringed. ,  4893 

2  Keeper  of  public — how  appointed.      68 

3  Secretary  of  Slate  controls  public.  1128 

4  Laws  concerning  public  arms  1185 

to 1196 

5  Punishment  for  carrying  concealed  4454 
Arraignments. 

1  Out  of  bar  dock  in  small  cases 4540 

2  Form  of 4543 

3  And  plea  make  the  issue 4544 

4  Entry  of  on  indictment 4547 

5  Shall  not  be  in  fetters 4548 

Arrest. 

1  Right  of  action  for  malicious 2942 

2  Of  exempted  person,  evidence  of 
malice 2945 

3  Malice  implied— when 2943  2944 

4  Of  persons  under  final  process. . . .  3589 

5  Exemption  of  witnesses 3794 

6  Exemption  of  militia 1175 

7  Exemption  of  voters 1320 

8  Exemption  of  Legislators. .  .^     . .  4928 

9  Of  offenders  by  officer 4625 

10  Without  warrant 4626 

11  By  private  persons 4627 

12  Duty  of  person  making 4628 

13  Duty  of  officer  making —  4629 

14  What  constitutes 4631 

15  Breaking  doors  to  make 4632 

Arrest  of  Judgment. 

1  Law  concerning. 3529  to  3532  3534 

Arsenals. 

1  Keeper  of— how  appointed 68 

2  Secretary  of  State  controls 1128 

3  Law  concerning 1185  to  1196 

Arson. 

1  Kinds  of,  and  punishment  4309  to  4319 


Assault. 

1  Definition  and  punishment.  .4291  4292 

2  Opprobious  words  may  justify 4597 

3  With  intent  to  injure  clothes 4296 

4  With  intent  to  rob 4294  4295 

5  With  intent  to  rape  4285 

6  With  intent  to  murder 4293 

7  Under  color  of  office 4409 

Assemblies. 

1  Unlawful — how  punished 4440 

2  Of  the  people  shall  not  be  prohib- 
ited  4896 

Assets. 

1  Administration  of  in  Equity  3085  to  3097 

2  Bills  to  marshal — how  served 4129 

Assignment  of  Dower. 

1  Law  regulating 3969  to  3976 

Assignments. 

1  To  evade  taxes,  void 810 

2  What  void  as  to  creditors 1942 

3  Banks  may  make — when 1499 

4  By  banks — how  set  aside 1500 

5  Do  not  fail  for  lack  of  assignee . . .  1501 

6  By  partnerships,  void — when.. 1929  1930 

7  Of  choses  in  action — efiect  of 2218 

8  Of  judgments 3539  3540 

Asylums. 

1  For  the  blind 1241  to  1255 

2  For  the  deaf  and  dumb.. .  .1256  to  1264 

3  For  lunatics 1366  to  1395 

Attachments. 

1  On  what  grounds  issued 3199 

2  Affidavit  for — how  made 3200 

3  Bond  of  plaintifi" 3201 

4  Who  may  give  the  bond 3201 

5  In  favor  of  firms  and  joint  credi- 
tors    3202 

6  Who  may  issue 311,  491  3203 

7  How  levied  in  another  county 3204 

8  How  returnable 3205 

9  tlow  directed 3206 

10  Issued   and   levied   on   Sunday — 
when 3207 

11  For  debts  not  due 3208 

12  Against  partner  or  joint  debtor. . .  3209 

13  How  levied  in  such  case 3209 

14  Lie  against  executors,  etc. — when .  3210 

15  Lie  for  any  money  demand ...  3210 

16  In  favor  of  sureties  and  indorsers .  3211 

17  Money — how  paid  in  such  cases. . .  3211 

18  Pendente  lite 3212 

19  Against  foreign  corporations 3213 

20  Against  bail 3214 

21  Substantial  compliance 3215 

22  Form  of  affidavit,  bond,  and  writ.  3216 

23  Duty  of  levying  officer 3217 

24  Return  of  officer 3218 

25  In  what  order  levied 3219 

26  Levy— how  entered 3219 

27  On  what  levied 3220 

28  May  be  served  by  garnishment .    ..  3221 

29  May  be  levied  on  stocks 3222 

30  Transfer  after  levy,  void 3223 

31  Certificate  to  purchaser 3224 

32  Of  land  for  purchase  money 3225 

33  Levy— filing  deed— lien 3225 


INDEX. 


1005 


34  Garnishments — how  obtained 3226 

35  Against  garnishee  out  of  county. .  3227 

36  Judgment  against  garnishee 3228 

37  Disposition  of  effects 3229 

38  Traverse  of  garnishee's  answer. . .  3230 

39  Proceedings  thereon 3230,  3231 

40  Declaration  on — when  filed 3232 

41  ISTotice  to  defendant 3233 

42  Effect  of  the  notice 3233 

43  Case  stands  as  at  common  law 3233 

44  Appearance — defense — appeal. . . .  3234 

45  Set-off  of  debts  not  due 3235 

46  Traverse  of  plaintiff's  affidavit . . .  3286 

47  Trial  of  issue— appeal 3236 

48  No  delay  allowed 3237 

49  Parties— how  made 3238  3239 

50  Amendments 3240 

51  Creditors  may  attack  judgments..  3241 

52  Interrogatories — how  taken 3242 

53  Replevy  of  property 3243  3244 

54  Sale  of  perishable  property 3245 

55  Claims — how  interposed 3246 

56  Claims — where  returned 3246 

57  Trial  of  claims 3247 

58  Replevy  by  claimant 3248 

59  Suit  on  replevy  bond 3249 

60  Claimant  pays  hire — when 3250 

61  Claims — when  to  be  made 3251 

62  Judgments  in — when  general 3252 

63  When  in  rem  only 3252 

M  Executions — levy — sale 8253 

65  Money  raised  by — how  applied.. .  3254 

66  Lien  of  attachments 3255 

67  In  County  Courts 284,  293    311 

Attempts  to"  Commit  Crime. 

1  Punishment  for — prescribed 4615 

3  Not  indictable  when  the  act   is 
done 4580 

3  Jury  may  find  accused  guilty  of. .  4581 
Attendance  of  Witnesses. 

1  Law  regulating 3788  to  3795 

Attorneys  at  Law. 

1  Who  may  practice  law 422 

2  In  what  Courts  admitted 423 

3  Qualifications  of  applicant 424 

4  Aliens  may  be  admitted 425 

5  Application  for  admission 426 

6  Facts  of  application — how  veri- 
fied     427 

7  On  what  laws  examined 428 

8  Mode  of  examination 429 

9  Examination  must  be  satisfactory,    430 

10  Order  of  admission 431 

11  Oath  of 432 

12  Graduates  ofLumpkin  Law  School    433 

13  From  other  States 434  to    437 

14  How  admitted  in  Supreme  Court.    438 

15  Fees  not  collectable — when 439 

16  Forfeitures  by , 440 

17  Rule  for  fixing  fees  of 441 

18  Liable  to  rule 442 

19  Proceedings  against 3872  to  3880 

20  Power  of,  to  bind  clients 443 

21  Payments  to — in  what  made 444 

22  Advice  of— does  not  relieve  client    445 

23  Unauthorized  appearance  of.  .446    447 


24  Authority  of,  demandable 448 

25  Leading  counsel  preferred 449 

26  Leading  counsel  defined 450 

27  If  two  be  relied  on,  the  first  leads. .     451 

28  Continuances  for   illness  or    ab- 
sence of 3474 

29  Duties  of,  specified 452 

30  Causes  for  removing 453,  469  3882 

31  Proceedings  to  remove 456  to    469 

32  At  whose  instance  removable. 455    469 
38  How  restored  to  the  bar 454 

34  Tax  on 806 

35  Fees  when  acting  Solicitor  Gener- 
al      420 

36  For  plaintiff  in  error  liable  for 
cost 212  4225 

37  Subject  to  garnishment 3494 

38  Transfer  of  judgment  by 3540 

89  May  enter  appeals 3558 

40  Liable  for  costs— when 3626  3627 

41  Cost  fi.fas.  against 3636  3637 

42  Not  compelled  to  testify — when. .  3798 

43  May  argue  by  brief  in  Supreme 
Court, 4212  4213 

44  Shall  send  costs  with  brief— when  4214 
Attorney  General. 

1  Who  is 402 

2  Shall  give  bond 403 

3  His  duties  specified 404 

4  Is  subject  to  Governor's  call 405 

5  Comptroller  may  have  services  of.     406 

6  Salary  of  Attorney  General 1640 

7  Fees  of 1640  to  1644 

Attorneys  in  fact. 

1  Fiducial  agents  may  convey  by. . . 
2154  2498 

2  May  enter  appeals 3558 

Auction. 

1  Sales  by — memorandum  of 2588 

Auctioneers. 

1  Tax  on 806 

2  Privileges  of— how  obtained 1488 

3  Sale  by  of  stolen  horse  or  mule . . .  1439 

4  May  sue  for  goods  sold  by  them. .  2183 

5  Sales  by — memorandum  of 2588 

6  Are  agents  of  buyer  and  seller 2588 

Auditors. 

1  When,  and  how  appointed...  .3082  4143 

2  Reports  of  and  their  effect 3042 

3083  4144 

3  Exceptions  to  reports,  and  trial. . .  4144 

4  Fees  of— how  determined. 4145 

Backing  Executions. 

1  From  Justices'  Courts 4106 

Baooage. 

1  Liability  of  carriers  for 2045 

2  Value  of— may  be  limited 2055 

3  Lien  of  carrier  on 2053 

4  Railroads  bound  to  check 2046 

"R  A  TT  P'  TT  ^ 

1  Diligence  required  of 2034  to  2037 

2  Property  of,  in  thing  bailed 2083 

3  Burden  of  proof  on — when 2038 

Bail  in  Civil  Cases. 

1  Affidavit,  before  whom  taken.3341  3342 
3  Where  debt  is  not  due 3343 


1006 


INDEX. 


3  Judgment — when    taken  in  such 
cases 8343 

4  Affidavit  need  not  describe  debt. .  3344 

5  Sum  sworn  to — how  endorsed 3341 

6  Surety  or  indorser  may  require. . .  3345 

7  In  actions  ex  delicto 237,  3346  3347 

8  Execution  and  return  of  process. .  3348 

9  Officer  is  special  bail  when 3349 

10  Commitment  of  defendant 3350 

11  Itinerants — how  served 3351 

12  Payment  of  jail  fees 3352  3353 

13  New  bail  taken — when 3354 

14  Service  on  Sabbath 3355 

15  Exemption  of  widows  and /^me  sofe  3356 

16  Pendente  lite 3357  to  3362 

17  Special  bail 3363 

18  Ga.  sa.  and  its  return 3364  3368 

19  Scire  facias  against  bail 3364  3367 

20  How  directed  and  served 3364  3366 

21  Surrender  of  principal 3365 

22  Judgment  on  scire  facias 3369 

23  In  suits  for  personalty 3370 

24  Affidavit  and  proceedings.. .  .3370  3371 

25  Pendente  lite  for  personalty 3372 

26  Replevy  of  property 3371  3372 

27  Bail  in  County  Court , 311 

28  Bail  in  Justice's  Court 4083 

Bail  in  Criminal  Cases. 

1  Allowed— how  often 4804  4649 

2  How  allowed  in  capital  cases 4649 

3  Excessive  bail  forbidden.     4900 

4  County  Judge  may  grant 311 

5  Forfeiture  of  recognizance 4605 

6  Scire  facias  and  judgment  theveon  4606 

7  Bail  may  surrender  principal.4607  4648 
Bailiffs. 

1  County  Judge  may  appoint 329 

2  Special  Bailiffs 329,  330    332 

3  Bond  and  oath  of 331 

4  Temporary  Bailiffs 333 

5  Fees  of 334 

C  Oath  of  Bailiff  to  Grand  Jury.. . .  3848 
7  Oath  of  to  other  juries : .  3857 

Bailments. 

1  Definition  of 2032 

2  Property  in  bailee 2033 

3  Diligence  of  bailee 2034 

4  Ordinary  diligence 2035 

6  Extraordinary  diligence 2036 

6  Gross  neglect. 2037 

7  Burden  of  proof  on  bailee — when  2038 

8  Right  of  action  in  cases  of. 2976 

9  Carriers 2039  to  2058 

10  Hiring— law  as  to 2059  to  2076 

11  Deposits. 2077  to  2097 

12  Loans 2098  to  2109 

13  Pledges  and  pawns 2110  to  2119 

Banks  and  Banking. 

1  Bank  charters — how  granted 4940 

2  Penalty  for  failing  to  pay  specie. .  1487 

3  Proceedings  in  such  case . .  1488 

4  Penalty  for  rejecting  own  bills. . .  1489 

5  Term  "  Bank  "  defined 1490 

6  Liability  of  bank  for  officers 1490 

7  Charters — how  forfeited 1491 

8  Proceedings  to  forfeit  charter. . . .  1492 


9  Receiver — appointment  of 1492 

10  Duties  of  receiver 1493 

11  Debts — in  what  order  paid 1495 

12  Bills  of  insolvent  bank — how  re- 
ceived   1496 

13  Stockholders — when  suable 1497 

14  Vacant  receivership  does  not  abate 
suits 1408 

15  Assignments  by  banks 1499  1501 

16  Sale  of  stock  relieves  liability — 
when 1502 

17  Violations  of   charter  punished. 
4359  to  4365 

18  Obligation  of  banks 1486 

19  Penalty  for  overissue  of  bills 1485 

20  Tax  on  banks 812 

21  Tax  return ->  of  banks 822    828 

22  Bank  returiii — how  made 1472 

23  What  returns  shall  embrace 1473 

24  Returns — how  verified 1474 

25  Publication  of  returns 1475 

26  Expense  of  publication 1475 

27  Penalty  for  not  making  returns. . ,   1476 

28  False  oath  to  return  perjury 1477 

29  Prohibitions  on  banks 1478 

30  Qualifications  of  prohibitions. . . .  1479 

31  Certain  contracts  of  banks  void . .  1480 

32  Penalty  for  illegal  sale  of  exchange  1481 

33  For  illegal  issue  of  paper 1482  1484 

34  Officer  shall  appear  with  books  of  1483 

35  Banks-wheresuedfor  acts  of  agent  3336 

36  Service  of  process  in  such  case . . .  3337 

37  Proceedings  and  judgment 3338 

38  Unauthorized  banking  punished . . 
4389  to  4392 

Bank  Bills. 

1  Title  of  bona  fide  purchaser  of . . . .  2597 

2  Warranty  of  payer  in 2816 

Bank  Directoiis. 

1  Election  of  on  part  of  State 1364 

Bankers. 

1  Tax  on 814    816 

Bank  Officers. 

1  Offenses  by 4359  to  4365 

Bank  Stock. 

1  May  be  attached 3222  to  3224 

2  Levy  and  sale  of. 2584 

Bans. 

1  Return  of  marriage  by 1703 

Barratry. 

1  Definition  and  punishment..  .4429  4430 
Barter  and  Exchange. 

1  Law  governing 2614 

Bastards. 

1  Definition  of 1788 

2  Support  of 1789 

3  Custodyof 1790 

4  Inheritance  by  bastards 1791  1792 

5  Proceedings  in  cases  of  bastardv. 
4664  to  4667 

6  Concealing  death  of— punishment.  4272 

7  Legitimation  of 1778 

Bastardy. 

1  Proceedinc:s  against  the  mother..  4664 

2  Against  the  father 4664 

3  Commitment  of  the  mother 4665 


INDEX. 


1007 


4  Exculpatory  evidence 4665 

5  Bastardy  bonds — return  of 4667 

6  Suits  on  sucli  bonds 4666 

7  Indictment  of  the  father 4480 

Battery, 

1  Defined  and  punished 4297 

2  Of  wife  by  husband 4488 

3  Opprobrious  words  may  justify.. .  4597 
Bestiality. 

1  Definition  and  punishment..  .4288  4289 

2  Attempt  to  commit 4290 

Benefit  of  Clergy. 

1  ISTot  allowed  in  Georgia 4567 

Bigamy  and  Polygamy. 

1  Defined  and  punished 4456  to  4458 

2  Absence  of  husband  or  wife  ex- 
cuse— when 4457 

3  Issue  legitimate 4457 

Bills  in  Equity. 

1  Divisions  and  definitions 4122 

2  Proper  parties  to 4119  to  4121 

3  Bills  of  revivor — abolished 4122 

4  Amendment  of 4118 

5  For  discovery — requisites  of.  .4117  4123 

6  To  perpetuate  testimony 4123 

7  Of  interpleader — w^hen  brought. .   3168 

8  Collateral  interpleading 3169 

9  Of  peace — when  entertained 3166 

10  Perpetual    injunction   in  bills  of 
peace 3167 

11  Of  review— limitation  in.... 2868  4161 

12  Sanction  of  bills 4125  4127 

13  Where  and  when  filed 4124  4125 

14  Service  of  bills 4126,  4128  4129 

15  Modes  of  defense  to 4132 

16  Demurrers  to 4133  4141 

17  Pleas  to 4134  4141 

18  Answers  to 4135  to  4138 

19  Replications — abolished 4140 

Bills  of  Exception. 

1  When  and  for  what  taken 4191  4192 

2  Must  specify  errors 4192 

3  How  tendered  and  certified 4193 

4  Pendente  lite 4191  4194 

5  Form  of  certificate 4193 

6  Where  Judge  is  Inaccessible 4195 

7  Where  parties  die 4196 

8  Errors  in — how  rectified 4197 

9  Mandamus  against  Judge 4198 

10  Bills— how  served 4199,  4200  4201 

11  Filing  with  clerk 4202 

12  Transcript  of  record 4202 

13  Operate  as  supersedeas — when ....  4203 

14  Mandamus  against  Clerk  or  Sher- 
iff  4204 

15  Time  of  filing  in  Supreme  Court.  4205 

16  From  City  Courts 4206  4207 

17  Amendment  of. 4223 

Bills  of  Exchange. 

1  Definition  of 2731 

2  What  is  foreign  bill 2731 

3  Acceptance  may  be  conditioned. . .  2737 

4  Payable  out  of  particular  fund.. . .  2737 

5  Lien  of  acceptor  in  such  case. . . .  2737 

6  I  ndorser  of— his  undertaking 2738 


7  Payable  in  bank  —  notice  to  in- 
dorser 2739 

8  Indorser  suable  with  maker 2740 

9  Holidays  and  days  of  grace.  .2741  2742 

10  Warranty  of  transferrer  2736 

11  Indorser  mav  limit  liability 2735 

12  Rights  of  bona  fide  holder 2743 

13  Overdue,  is  notice  of  dishonor. . . .  2744 

14  Presumption  of  holder's  good  faith.  2745 

15  Holder  of  collaterals. 2746 

16  What  is  notice 2748 

17  Bills  are  due,  v^hen 2749 

18  Damages  on  foreign  bills 2750  2751 

19  Form  of  action  on 3315 

20  Acceptorindictable,  when.  .1591  to  1594 
Bills  of  Sale. 

1  Registration  of,  is  no  notice 2668 

2  Reduced  to  mortgage,  when 3756 

Births. 

1  May  be  proved  by  hearsay 3719 

2  Revoke  wills,  when 2441  v 

Blind. 

1  Blind  paupers,  how  dealt  with, .  .X-.-7^5 

2  W.  &  A.  R.  R.  free  to,  when.. v.-. .  1013 

3  May  make  will,  how 2377 

4  Academy  for,  law  regulating.. ,1241 

to 1255 

Boats  and  Crews. 

1  Bills  of  lading— inspection  of.. . . .  1621 

2  Penalty  for  not  showing  bill 1622 

3  Traffic  with  hands  prohibited 1623 

4  Shipping  by  hands 1624 

Bonds. 

1  Of  officers,  where  kept 13 

2  Who  may  sue  thereon 12 

3  Taken  by  officers,  where  kept 13 

4  Who  may  sue  thereon 13 

5  Official  bonds,  law  as  to. . .  .138  to    160 

6  Forthcoming  bonds 3622  to  3624 

7  Of  vagrants— scz-r<3  facias  on 4496 

8  Solicitor's  fee  and  duty  in  such  case  4497 

9  To  keep  the  peace 4654  to  4658 

10  For  good  behavior 4651  to  4653 

Bonds  for  Title. 

1  How  executed  when  parties  die 
2508  to  2512 

2  Damages  for  breach  of 2898 

3  Sale  of  land  held  under,  3225-3520  3604 

4  Judgment  liens  on  property  held 
under 3520 

Bonds  to  Prosecute. 

1  May  be  required 4622 

Books  and  Papers. 

1  Production  of,  how  required 

3457  to  3467 

2  Transcripts,  when  used 3466 

3  Examined  by  commission,  when..  3467 
Boundary  of  the  State. 

1  Defined 15  to      19 

Brands. 
1  Regulations  concerning. . . .  1451  to  1455 

Bribery. 

1  Definition  and  punishment,.4402  to  4403 

2  Disqualifies  legislator 4933 


1008 


INDEX. 


Bridges,  Fereies,  Turnpikes,  and  Cause- 
ways. 

1  What  are  declared  public 707 

2  How  classified 708 

3  Legislature  can  not  establish 4940 

4  Establishment  of 709 

5  Authority  of  Inferior  Court 346  710 

6  Bond  of  builders 711 

7  Approval  and  filing  of  bond . .  712 

8  Additional  bond  from  contractor. .  713 

9  How  repaired 714  to  716 

10  Builders  can  not  be  road  commis- 
sioners    717 

11  On  County  lines— how  built..718  to  720 

12  Distance  of  private,  from  public  fer- 
ries   721 

13  Distance — how  computed 722 

14  Kates  of  toll  to  be  posted 723 

15  Penalty  for  neglect 728 

16  Land  owners  may  build 724 

17  Excessive  toll  prohibited 725 

18  Annual  examination  of  rates 726 

19  Penalty  for  illegal  toll 727 

20  Punishment  for  obstructing  fords, 

etc 728 

21  How  discontinued 729 

22  Liability  of  proprietors 730 

23  Liability  of  contractors 731 

24  Forfeiture  for  detention  at 732 

25  Punishment  of  defaulting  owner . .  733 

26  Owners  of  private,  liability  of . . . .  734 

27  Toll  shall  not  be  evaded 735 

28  Damages  for  right  of  way 736 

29  Value  of  land — how  determined . .  739 

30  Grant  of  land  does  not  give  fran- 
chise   737 

31  One  franchise  does  not  give  the 
other 738 

32  Right  to  construct  or  establish  . . .  2207 

33  Bridges  on  public  roads,  how  made  640 
Brokers. 

1  Tax  on 814  816 

Buildings. 

1  Owned  by  the  State 964 

2  In  which  State  has  interest 965 

Buoys  and  Beacons. 

1  Punishment  for  injuring 4517 

Burden  of  Proof. 

1  Upon  whom  it  rests 3705 

2  In  claim  cases 3686 

3  Cast  on  bailee  on  proof  of  loss 2038 

Burglary. 

1  Definition,  and  punishment. .. 4402  4403 
Burying  Grounds. 

1  Punishment  for  injuring 4530  4531 

Camp  Grounds. 

1  Intruders  on — how  ejected 4004 

2  Punishment  for  vending  near 4491 

Canals. 

1  Injuring  fixtures  of,  punished 4523 

Canons. 

1  Of  inheritance 2448 

Capias  ad  Satisfaciendum. 

1  Affidavit  to  obtain 3578 

2  Amendment  of,  and  its  eflfect 3445 


3  How   executed,  and    proceedings 

on 3585  to  3589 

4  Issue  and  return  of,  in  bail  cases 
3364  3368 

Carpenters'  Lien. 

1  Law  regulating 1959  to  1965 

Carriers. 

1  Definition,  and  liability  of 2039 

2  Law  of  common  carriers.  .2040  to  2057 

3  Gratuitous  carriers — liability  of. . .  2080 
Carrying  Concealed  Weapons. 

1  How  punished 4454 

Castration, 

1  Punished  with  death 4280 

2  Wounding  in  less  degree 4281 

Cattle. 

1  Stealing  cattle 4381  to  4333 

2  Altering  marks  or  brands  of 4337 

3  Skinning  cattle 4338 

Causeways. 

1  Over  public  roads — how  made 640 

2  Law  concerning 709  to    739 

Cavalry  Corps. 

1  Law  regulating 1103  to  1107 

Caveats. 

1  To  wills— limitation  of 2390 

2  Grounds  of  must  be  set  forth 4045 

3  May  be  amended 4045 

4  To  laud  warrant 2339 

Certiorari. 

1  Shall  be  taken  in  three  months.2869  3985 

2  Lies  in  what  cases 3977 

3  In  cases  of  possessor}^  warrants.3962  3963 

4  In  cases  in  Inferior  Court 3978 

5  In  cases  in  Court  of  Ordinary 3978 

6  In  cases  in  County  Court 297    298 

7  Judge  of  Superior  Court  may  grant    237 

8  What  Judge  may  grant.  • 3979 

9  In  cases  in  other  judicatories 3980 

10  Affidavit  to  petition 3981 

11  Payment  of  cost,  and  giving  secu- 
rity   3982 

12  Sureties  made  to  justify 3983 

13  In  forma  pauperis 3984 

14  How  made  returnable 3985 

15  When,  and  by  whom  served 3986 

16  JN^otice  of  the  hearing 3987 

17  Operates  as  a  supersedeas 3988 

18  Answer  to — when  filed 3989 

19  Exceptions  to  answer — effect  of. . .  3990 

20  By  w^liom  Avritten — when  sworn  to  3991 

21  Stands  for  trial— when 3992 

22  Heard  on  grounds  set  forth 3993 

23  Traverse  of  answ^er — trial 3994 

24  Judgment  on 3995-3998  3999 

25  When  Justice  dies  before  answer..  3996 

26  Damages  awarded — when 3997 

Chain-Gang. 

1  How  governed  and  employed .  4716 

to 4722 

2  Insurrection  by — how  punished. . .  4723 
Challenge  of  Jurors. 

1  To  the  array  in  criminal  cases 4587 

2  For  cause 4588 

3  Peremptory  challenges 4549  4550 


INDEX. 


1009 


Challenge  to  Fight. 

1  Giving  or  accepting  is  crime 4443 

2  Carrying  or  delivering 4444 

3  Denouncing  one  for  rejecting 4447 

Chancery. 

1  Jurisdiction  and  principles .  3025  to  3045 

2  Pleadings  and  proceedings. 4116  to  4165 
Change  Bills. 

1  Offenses  relative  to 4389  4390 

2  Forfeiture  by  banks  for  issuing. . .  1484 
'Charities. 

1  Jurisdiction  of  equity  as  to 3098 

2  Mode  of  executing 3099 

3  Gy  pres 2432  3099 

4  Proper  matters  of  charity 3100 

5  Equity  will  supervise 3101 

6  What  deemed  irreligious 3102 

7  Extraneous  evidence 3103 

8  Restraints  on  charitable  devises. . .  2384 
Charters. 

1  How  granted.  1674  4940 

2  Laws  relative  to 1680  1688 

3  Bank  charters — how  forfeited. .1491  1492 

4  Violations  of  by  bank  officers 

4359  to  4365 

Cheats  and  Swindlers. 

1  Obtaining  credit  by  falsehood 4499 

2  Cheating  at  play 4500 

3  Selling  under  assize 4501 

4  By  false  weights  and  measures 4502 

5  Forestalling,  regrating,  engrossing  4503 

6  Counterfeiting  marks  and  brands..  4504 

7  False  packing 4505 

8  Obtaining  goods  by  personating . .  4506 

9  Other  deceitful  means 4507 

10  Personating  witness 4508 

11  Lying  to  obtain  security 4509 

12  Deceit  as  to  liens 4511 

13  Illegal  measurement  of  timber. . . .  4512 

14  Making  second  deed  to  land 4511 

Children. 

1  Who  are  legitimate. 1777 

2  Legitimation  by  marriage 1777 

3  Legitimation  by  Courts 1778 

4  Adoption  and  changing  names  of.  1779 

5  Control  by  parents  until  majority.  1784 

6  Age  of  majority  twenty-one  years.  1782 

7  Custody  of,  on  death  of  father. . , .  1785 

8  Protection  of,  against  cruelty 1786 

9  May  defend  parents 1787 

10  Rights  of  illegitimates 1788  to  1792 

11  Punishment  for  inveigling 4302 

12  Abandonment  of,  punished 4307 

13  Disposition  of,  in  divorce  cases. . .  .1728 

14  Bound  to  support  pauper  parents 
786    787 

15  May  sue  for  homicide  of  father. . .  2920 

16  Incompetent  witnesses,  when 3800 

17  Legislature  can  not  legitimate 4940 

Choses  in  Action. 

1  Definition  of : 2213  2217 

2  Are  assignable 2218 

3  Judgments  have  no  lien  on 3524 

Churches. 

1  Exempt  from  taxation 796 

2  Bathing  near  road  to,  on  Sunday. .  4494 

65 


3  Selling  liquor  near,  punished 4490 

Circuits. 

1  State  divided  into  sixteen 44 

2  To  what  circuit  new  County  belongs      45 
Cities. 

1  May  establish  hospitals 1390 

2  May  prescribe  quarantine 1397 

Citizens. 

1  Who  are  citizens  of  this  State.  .46  1647 

2  Persons  of  color  are  not 47 

3  Who  can  not  become 48 

4  Rights  of  citizens 1648 

5  Exercise  of  rights 1649 

6  Disability  of  minors 1651 

7  Disqualification  for  crime 1652 

8  Disability  of  insane  persons,  etc. . .  1653 

9  Of  other  States— their  rights  here .  1654 
Citizenship. 

1  How  renounced 49 

2  Ceases,  when 50 

3  How  acquired  again 51 

4  Claim  to,  how  disputed. . 3964 

5  Parties  pending  action 3965 

6  Trial  and  verdicts 3966 

7  Evidence  on  the  trial 3967 

8  Damages  for  malicious  prosecution  3968 
City  Courts. 

1  Supreme  Court  may  review  deci- 
sions of 4206 

2  Judges  of  exempt  from  militia  duty  1064 

City  of  Savannah. 

1  Laws  in  reference  to 4724  to  4889 

2  City  Council  may  protect  harbor. .  1546 
Claims. 

1  Made  on  oath 3675 

2  Who  may  interpose 3675 

3  Bond  of  claimant 3676 

4  Postponesale  of  the  property. 3677  3693 

5  Forthcoming  bond  of  claimant. . .  3678 

6  Bonds — to  whom  payable 3679 

7  Property  left  with  claimant,  when  3680 

8  By  partners  and  joint  owners .  3681 

9  Against  tax  fi.  fas 898  3682 

10  Where  returned 3683 

11  Tried  by  Petit  Jury 3684 

12  Oath  of  jury 3685 

13  Damages  for  frivolous 3685 

14  Burden  of  proof 3686 

15  W^ithdrav/al  of  claims. 3687 

16  Damages — how  assessed 3688 

17  Appeals 3689 

18  In  County  Court 284    292 

19  At  sales  by  Executors,  etc 3690 

20  Where  tried  in  such  cases.2524, 3691  3692 

21  To  property  distrained — how^  tried  4013 

22  In  Justice's  Court 4100  4101 

Clergymen. 

1  Exempt  from  military  duty 1064 

2  Exempt  from  jury  duty  at  their  op- 
tion.   3865 

Clerk  of  County  Court. 

1  How  appointed  and  paid . . .  321  to  323 

2  Oath  and  powers  of 324 

3  Shall  keep  minutes  of  Court 325 

4  Shall  keep  dockets  of  County  Court  326 


1010 


INDEX. 


15 

16 

17 


Clerk  of  House  of  Representatives. 

1  How  elected — term  of  office 182 

Assistants  and  subordinates 186 

Oath  of  Clerk  and  subordinates.. .  ,  183 

Who  administers  oath 184 

'ay  of  Clerk  and  subordinates .  185  1639 

His  duties 176, 188  to  190  1034 

Qualifications  of  nnder-clerks 187 

Clerks  of  Inferior  Court. 

1  Election  and  official  term  of 348 

2  Vacancy— how  filled 349 

3  Oath  and  bond  of 350 

4  Bond — when  to  be  perfected 143 

5  How  approved,  filed,  and  certified 
150    151 

6  Deputy — how  appointed 351 

7  Duties  of  specified 352 

8  Fees  of  Clerk 3645 

9  Compensation,  where  none  is  fixed    353 

10  Extra  compensation — how  allowed  3645 

11  Shall  register  audited  claims 540 

12  Shall  give  orders  therefor 540 

13  Shall  publish  assessments  of  tax. .     551 

14  Duty  as  to  violations  of  license  law 

...571     572 

Proceedings  against  for  detaining 

County  funds 577 

Shall  give  Treasurer  list  of  orders    595 
Shall  be  fined  for  failure 601 

18  Must  notify  road  commissioners . .     696 

19  Finable  for  neglect 696 

20  Shall  give  notice  of  standard  of 
weights  and  measures 1588 

21  Summary  proceedings  against 

3872  to  3880 

22  Embezzlements  by 4368 

23  Presumptions  against 4368 

24  Exempt  from  militia  duty 1064 

Clerk  of  Ordinary. 

1  Ordinary  may  appoint 374 

2  Powers  of. 375 

3  Bond  of 376 

4  Duties  specified 377 

Clerk  of  Superior  Court. 

1  His  term  of  office. 243 

2  Vacancies— how  filled 249  to    252 

3  Oath  of  Clerk 253 

4  Shall  give  bond 254 

5  Bond  of— when  to  be  executed. ...     143 

6  How  approved,  filed,  and  certified 

150    151 

May  appoint  deputy 255 

Duties  of,  specified 256 

Authority  of 257 

Shall  not  practice  law 244 

Penalties  against  for  failures 258 

12  Subject  to  rule,  <?^c..259, 260,  3872  to  3880 

13  May  be  removed 261 

14  Office,  subject  to  inspection 262 

15  Fees  of 3644 

16  Compensation,  wdiere  none  is  fixed    263 

17  Extra  compensation — how  allowed  3644 

18  Mandamus  in  favor  of , 264 

19  Office,  where  kept 256 

20  Liability  for  money  received 259 

21  May  administer  oaths 257 


7 

8 

9 

10 

11 


22  May  attest  deeds 2664 

23  Exempt  from  military  duty 1064 

Clerk  of  Supreme  Court. 

1  Appointment — term  of  office — oath    208 

2  May  appoint  deputies 209 

3  Duties  specified 210 

4  Shall  tax  costs— how 211  4226 

5  Fees  of 3638  3639 

6  Sliall  publish  number  of  cases. . . .  4209 

7  Duty  of,  as  to  briefs  of  counsel. . .  4214 

8  Shall  make  out  remitter 4220 

9  Shall  file  transcript  of  records 4224 

Coast  Survey. 

1  Law  relating  to 23  to      27 

Code. 

1  Takes  effect  when 2 

2  Corporate  Courts — how  affected  by    514 

3  Does  not  repeal  local  laws.  .■ 11 

Codicil. 

1  What  it  is,  and  how  executed 2369 

2  Is  republication  of  will,  when. . . .  2442 
Coin. 

1  Punishment  for  counterfeiting. .. .  4376 
Collateral  Issues. 

1  Ko  appeal  on  in  Superior  Court. . .  3554 

2  County  Judge  may  permit  appeal 

on 3554 

3  New  trials  of  may  be  granted. . . .  3554 
Colleges. 

1  Exempt  from  taxation 796 

Comity  of  States. 

1  When  and  how  far  enforced 9 

Commencement  of  Action. 

1  Mode  and  time  of 3256  3257 

Commissioners  of  Deeds. 

1  Appointment  and  authority  of 62 

Commissioners  op  Pilotage. 

1  Appointment,  duties,  and  powers 
1510  to  1548 

Commissioners  of  Roads. 

1  Number  of,  to  each  district 692 

2  How  and  when  appointed 693 

3  Compelled  to  serve 694 

4  Notice  of  appointment 695 

5  Fine  of  Clerk  for  not  notifying. ...  696 

6  Exemptions  of 697 

7  Duties  of  specified 698 

8  Shall  appoint  overseers 698 

9  And  apportion  road  hands 698 

10  Shall  try  defaulters :    698 

11  May  pay  overseers  half  the  fines. .  700 

12  Proceedings  against  for  neslect. . . . 
:.701  to  703 

13  Inferior  Court  shall  furnish  books.  705 

14  Certificate  of  service 706 

15  Duty  as  to  roads  on  district  line. .  704 

16  Bridge  contractors  and  sureties  can 

not  be 717 

17  May  parcel  roads 661 

18  Notice,  of  trial  of  defaulters 665 

19  Shall  issue  process  against  deftuilt- 

ers ^^^^^ 

20  Duty  as  to  railroad  crossings.747  to    749 

Commissioners  of  the  Poor. 
1  May  be  appointed — liability. .  .782    783 


INDEX. 


1011 


Commissions. 

1  Granted  to  officers  by  Governor. .       63 

2  Book  of,  to  be  kept 72 

3  Under  the  Great  Seal  124 

4  Under  Executive  seal 125 

Commitment. 

1  Form  of. 4641 

2  May  be  for  any  offense  proved. . . .  4646 

3  Informality  no  ground  of  discharge 
3947  4650 

Common  Cariiiers. 

1  Defined 2040 

2  Extraordinary  diligence ...  2040 

3  What  excuse  relieves 2040 

4  Carriers  of  passengers — liability. .  2041 

5  Notice  will  not  limit  liability 2042 

6  May  make  express  contracts 2042 

7  Shall  receive  goods  and  passengers  2043 

8  Exception  to  this  rule 2056 

9  Duration  of  responsibility 2044 

10  Kesponsibility  for  baggage. .  .2045  2055 

11  Railroads  shall  check  baggage. . . .  2046 

12  Responsibility  for  delay 2047 

13  Effect  of  stojopage  in  transitu 2048 

14  Right  of  stoppage  exists  when...  2049 

15  Can  not  dispute  bailor's  title 2050 

16  Lien  of  carriers 2051  2053 

17  Fi'eight  bills — how  made  out 2052 

18  Disclosures  as  to  goods 2054 

19  Fraud,  releases  carrier 2054 

20  May  limit  value  of  baggage. .....  2055 

21  Railroad  companies  are 2057 

22  Liability  to  employees 2057 

23  Liability  of  connecting  railroads. .  2058 

24  Shall  give  special  receipts  4514 

25  Indictable  for  failure 4514 

Common  Schools  and  Education. 

1  School  fund  of  State — how  made 

up 1269  to  1274 

2  How  paid  out  by  the  State..l275  to  1279 

3  Fund  of  counties — how  made  up. . 
1280  to  1284 

4  Management  of  fund 1285  to  1299 

5  Beneficiaries — how  ascertained . . . 
1300  to  1302 

6  How  and  when  established 1293 

7  Board  of  Education 1284 

8  Ordinary  is  member  of  Board. . . .     378 

9  Duties  of  the  Board 1286 

Commutation  Tax. 

1  Payment  of,  exempts  from  militia 
duty 1064 

2  Amount  of,  and  liow  disposed  of. .  1074 

3  Tax  Collector's  receipt  for 2075 

Compensation  of  Administrators. 

1  Law  regulating 2548  to  2556 

Competency  of  Witnesses. 

1  Law  defining 3796  to  3805 

Compiler  of  Laws. 

1  How  appointed 1045  1048 

2  Duties  of,  specified 1046 

3  Forfeiture  for  failure 1047 

4  Compensation  of 1049 

Compounding. 

1  Crimes,  forbidden 2999  3000 

2  Felonies — how  punished 4423 


3  Penalties — punishment  for. 
Compromises. 

1  Bind  all  the  parties 

2  Fiducial  agents  may  make., 
Comptroller-General. 


1  When  elected 

2  Bond  of 

3  Office  and  residence  at  Capital. . , . 

4  Duties  specified 

5  Annual  report — contents  of . . .  .95 

6  Authority  of. 

7  Shall  suggest  improvement  in  tax 
laws 

8  Book  of  appropriations  and  war- 
rants kept  by 

9  Book  of  tax  officers'  bonds 

10  Shall  give  copies  of  papers 

11  Must  settle  with  successor 

12  Shall  not  speculate  in  wild  lands. . 

13  May    demand  Attorney-General's 
aid 

14  May  make  rules  for  tax  officers . . . 
940  to 

15  May  have  Clerk — salary  of  Clerk 
105 

16  Exempt  from  military  duty 

17  Has  no  perquisites 

18  Salary  of 

19  Extra  compensation  of 99 

Computation  of  Time. 

1  Meaning  of  "  month  "  and  "  year  " 

2  In  life  insurance 

3  Sundays  and  holidays  allowed.2741 

Concealed  Weapons. 

1  Punishment  for  carrying 

Concealing  Death  of  Child. 

1  Punishment  for 

2  Is  not  evidence  of  murder 

Concealment. 

1  Amounts  to  fraud — when 

2  Avoids  insurance — when 

Conditions. 

1  Dependent  and  independent 

2  Precedent  and  subsequent 

3  Impossible,  immoral,  and  illegal. . 
2619 

4  In  legacies — when  void 

5  How  construed  in  Equity 

6  When  void  in  contracts 

7  When  void  in  gifts 

Confession  of  Judgment. 

1  Where  and  in  what  cases  entered . 

2  By  Judge  or  Justice  in  his  own 
Court 

3  May  be  appealed  from 

Confessions. 

1  Refer  to  criminal  cases 

2  Will  not  convict  unless  supported. 

3  Must  be  voluntary 

4  Under  promise  of  secresy,  etc 

5  Facts  discovered  by,  received 

6  Of  joint  offenders — effect  of. 

7  Confidential  communications 

3744  to 

8  Effect  of,  in  divorce  cases 


4424 

2831 
2500 

13G4 
92 
93 
94 
103 
96 

97 

98 

99 

100 

101 

104 

406 

945 

1634 

1064 

93 

1634 

102 

5 
2781 
3557 

4454 

4272 
4271 

2593 

2762 

2679 
2680 

2681 
2430 
3060 
2681 
2619 

3541 

S542 
3543 

3730 
3739 
3740 
3741 
3742 
3743 

3746 
1715 


1012 


INDEX. 


Confidential  Communications, 

1  Inadmissible  in  evidence. . .  3744  to  3746 
Confusion  of  Goods, 

1  Effect  of 3076 

2  Loss  of  agent  by. 2167 

Congress. 

1  Election  for  members  of. .  ,1326  to  1331 

2  Election  of  Senators  to Ii363 

3  Acts  of,  as  to  proof  of  records.  3777  3778 
Congressional  Districts. 

1  Number  of,  and  how  constituted. .       42 

2  New  County — where  attached 43 

Consideration. 

1  Of  contracts 2678,  2697  to  2706 

2  Essential  to  valid  sale 2604 

3  Inadequacy  of,    may    amount    to 
fraud 3122 

4  Want  or  failure  of,  may  be  pleaded  2806 

5  Plea  of  failure,  and  when  allowed.  3421 
Conspiracy. 

1  Definition  and- punishment 4425 

2  To  disturb  apprentices — penalty. .  4426 

3  Witnesses  protected  in  such  case , .  4427 

1  When  and  how  elected.  .497, 1357  1356 

2  May  be  removed 498 

3  Appointment  of 499  to  502 

4  Who  are  eligible 503 

5  Who  can  not  be 504 

6  Oath  of 505 

7  Oath — before  whom  taken 505  506 

8  Bond  of — where  recorded 507 

9  Certificate  of  oath  and  bond 508 

10  Additional  bond 509 

11  Liability  of 510  3872 

12  Rules  against — where  taken. .  .511  4109 

13  Duties  of,  specified 512 

14  Can  not  act  after  removal 513 

15  Shall  collect  fines  from  road  hands    666 

16  May  be  ruled  in  such  case 668 

17  Election  of— how  contested 1361 

18  Two  in  each  district 497 

19  Can  not  sell  land 3597 

20  Shall  pay  twenty  per  cent. — when. .  3874 

21  May  be  ruled  though  out  of  office.  3876 

22  May  be  ruled  in  vacation 3877 

23  Answer  and  after  proceedings. . . .  3878 

24  Ruled  without  notice,  when 3879 

25  May  be  ruled  in  Superior  Court. . .  3885 

26  Summary  proceedings  against 4108 

27  Sales  by 4112 

28  Levies  on  land  by 4113 

29  Levy  on  stocks  by 4114 

30  Compensation  of 4115 

31  Punishable  for  rejecting  prisoner..  4418 

32  Fees  of  Constables 3649 

Constables'  Sales. 

1  Law  regulating 4112  to  4115 

Constitution  of  Georgia. 

1  In  full 4890  to 

2  Declaration  of  rights'. 4890  to 

3  Legislative  Department 4911  to 

4  Executive  Department 4944  to 

5  Judicial  Department 4959  to 


6  Miscellaneous  provisions.,  ,4980  to 


4990 
4910 
4943 
4958 
4979 
4990 


7  Laws  in  violation  of,  void 4902 


8  How  altered  or  amended 499& 

Constitution  of  United  States. 

1  Given  in  full 4991  to  5070 

2  Is  supreme  law 1  4984 

Construction, 

1  Of  contracts— rules  of 2712  to  2715 

2  Of  court  contracts 2724 

3  Of  legacies 2420 

4  Of  conditions,  by  Courts  of  Equity  3060 

5  Of  statutes 4 

6  Of  deeds 2655 

Consuls  and  Vice-Consuls. 

1  Attestation  of  deeds  by 2664 

Contempts  of  Court. 

1  What,  are  punishable 4614 

2  Power  to  punish,  to  be  limited. , . ,  4901 
Contested  Elections. 

1  Law  concerning 1357  to  1362 

Continuances, 

1  But  one  at  common  law 3468 

2  In  cases  of  amendments 3469  3470^ 

3  For  absence  of  witnesses 3471 

4  Refused,  if  facts  are  admitted 3472 

5  For  illness  or  absence  of  counsel,   3474 

6  For  absence  of  party 3473 

7  When  case  is  not  reached 3475 

8  In  reversed  cases 3476 

9  For  non-return  of  interrogatories ,  3478 

10  Diligence  required 3477 

11  Are  in  discretion  of  Court 3480 

12  On  the  appeal 3479 

13  In  cases  to  establish  lost  papers. . .  3907 

14  In  possessory  warrant  cases 3958 

15  In  Justice's  Court 4096  4102 

16  Before  arbitrators 4174 

17  Showing  for,  by  the  State 4613 

18  By  one  joint  offender 4596 

19  In  County  Court 290    302 

Contracts. 

1  Defined 2672 

2  Executed  and  executory 2673 

3  Of  record. 2674 

4  Specialty  defined 2675 

5  Simple  contracts 2676  2677 

6  Essentials  of  valid  contract 2678 

7  Are  absolute  or  conditional 2679 

8  Distinction  between 2679 

9  Intention  classifies 2679  . 

10  Conditions  precedent  and  subse- 
quent    2680 

11  Distinction  between  them 2680 

12  Void  conditions "'. 2681 

13  Novation  and  its  efiect 2682 

14  Are  entire  or  severable 2683 

15  Difference  between  them 2683 

16  Apportionment  of  contracts 2684 

17  Assent  of  parties 2685 

18  Assent  by  letter 2686 

19  Election  of  alternative  propositions  2686 

20  Disabilities  to  contract 2087 

21  Of  married  women,  void 2688 

22  Of  infants,  when  binding 2689  2691 

23  Ratification  by  infixnts 2689 

24  Exemption  of  infimts,  personal . . .  2690 

25  Marriage  contracts  of  infiints 2692 

26  Of  insane  persons 2693 


INDEX. 


1013 


27  Incapacity,  how  pleaded 2694 

28  Of  drunkards,  invalid 2695 

29  Capacity,  by  what  law  fixed 2696 

30  Consideration  essential  to 2697 

31  Nudum  pactum 2697 

32  Consideration  presumed,  when 2697 

33  Consideration,  when  valid 2698 

34  Good  consideration 2699 

35  Valuable  consideration 2699 

36  Inadequate  consideration 2700 

37  Mistake,  and  its  effect 2701 

38  Mutual  promises  binding 2702 

39  Mixed  consideration 2703 

40  Impossible  and  improbable  consid- 
erations   2704 

41  Illegal  considerations 2703 

42  Consideration  moving  from  third 
persons 2705 

43  Failure  of  consideration 2706 

44  Void  contracts 2707 

45  Against  policy  of  law 2708 

"^46  Fraud  voids 2709 

47  Proof  of  fraud 2709 

48  Duress  voids 2710 

49  Gaming  contracts,  void 2711 

50  Losses  by  gaming,  how  recovered.  2711 

51  By  whom  construed 2712 

52  Intention  should  be  enforced 2713 

53  Different  intentions — rule 2714 

54  Rules  for  construing 2715 

55  Contradiction  of  written 2715 

56  Bes  gestae  admissible 2715 

57  Court  contracts 2716  to  2730 

58  Execution  of,  how  denied 2800 

59  Alterations,  effect  of 2801 

60  Laws  impairing — void 4903 

61  That  mtisi^  be  in  writing. 527, 1940  2883 

62  For  rent,  bear  interest 2262 

63  Of  sale— law  of. 2587  to  2613 

64  Of  barter  and  exchange 2614 

65  For  excessive  labor  void 1875 

66  Marriage  contracts . . .  .1765  to  1776 

67  Colored  persons  may  make 1662 

68  In  behalf  of  Counties 527 

69  Remedy  for  violation  of 2217 

70  Alteration  of— by  whom  tried. . . .  2802 

71  Proof  of  alteration 2803  3782 

72  Obligation  of— may  be  denied 2805 

73  Recission  is  release — when. .  .2808  2809 

74  Performance  defined 2819 

75  Performance  excused — when 2820 

76  Part  performance 2821 

77  Fault  of  party  excuses 2822 

78  Accord  and  satisfaction. .  .2827  to  2831 

79  Breach  of,  and  suits  therefor 2888 

80  Damages  for  breach 2889  to  2899 

81  Limitations  of  actions  on.  .2862  to  2874 

82  Reformation  of 3059,  3068  3069 

83  Specific  performance  of. 3130 

Contribution. 

1  By  partners 1892 

2  Amongst  sureties 2143,  2146  to  2148 

3  Amongst  insurers 2784 

4  Amongst  trespassers 3021 

^  5  Equity  will  compel — when 3077 

Conveyance  and  Registry. 
1  For  benefit  of  Counties,  vests  title    528 


2  Law  of  conveyances 2648  to  2650 

3  Registration— law  of 2663  to  2671 

4  Set  aside  for  fraud 3121 

Convicts. 

1  How  kept  and  employed..  .4716  to  4722 

2  Insurrection  by — how  punished. .  4723 
Co-obligors  and  Promissors. 

1.  Suits  against— law  of.  3271  to  3278  4972 

2  JSfe  exeat  in  favor  of 3159 

Cord. 

1  Of  wood — size  of. 1569 

2  Penalty  for  selling  less.. 1569 

Corn. 

1  Title  to  does  not  pass  until  paid  for  1589 

2  Penalty  for  not  paying  for 1590 

3  Inspection  of , 1568 

Corn  Meal. 

1  Inspection  of 1568 

Coroners. 

1  Election  and  term  of  office. . .  .623  1347 

2  May  be  appointed — when 624 

3  Oath  of. 625 

4  Bond  of 626 

5  Bond — when  executed 143 

6  How  approved  and  certified. . .  150    151 

7  Additional  bond  as  Sheriff 627 

8  Liability  of 626 

9  Are  Jailors — when 628 

10  Shall  execute  process — when 629 

11  Duties  as  to  inquests 630 

12  May  disinter  bodies \  pi 

13  Mode  of  holding  inquests. . 4030  to  4039 

14  Penalty  for  illegal  disinterment. . .     632 

15  Costs  of  inquests — how  paid.  .635    636 

16  Justice  of  Peace  may  act — when.     637 

17  Punished  for  rejecting  prisoner. . .  4418 

18  Summary  proceedings  against... 
3872  to  3881 

19  Fees  of 3650 

Corporations. 

1  Definition— kinds  of 1670  to  1673 

2  By  whom  created 1674 

3  Foreign  corporations — rights  of. .  1675 

4  Private — how  created 1676 

5  Duration  of 1677 

6  Rights  and  powers  of 1678 

7  Responsibility  for  officers 1679 

8  Dissolution— how  effected.  1680  to  1686 

9  Disposition  of  assets 1687 

10  Liability  of  officers  and  members.  1688 

11  May  create  agent — ^how 2156; 

12  Sale  of  stock,  and  how  liability  of 
stockholders  may  be  avoided 1502 

13  Volunteer  companies  are 1099 

14  Counties  are. 525 

15  Legislative  power  as  to 4940 

16  Tax  on 813 

17  Suits  against 3291  to  3300 

Corporate  Courts. 

1  How  effected  by  the  Code 514 

Corruption  of  Blood. 

1  Is  not  worked  by  conviction 4899 

Costs  in  Civil  Cares. 

1  Failing  party  liable  for 3625 

2  Attorney  liable  for— when. .  .3626  3627 

3  When  verdict  is  under  $50 3628 

4  In  actions  of  slander 3630 


1014 


INDEX. 


5  In  personal  actions •.  3631 

6  Of  adverse  witnesses 3632 

7  Revenue  stamps  taxed  as 3633 

8  Due  and  payable — when 3634 

9  Jury  fees  taxed  in  bill  of 4062 

10  Included  in  judgment 3635 

11  Of  assigning  dower — how  paid.. .  3976 

12  Of  perpetuating  testimony 3056 

13  When  allowed  on  tax  fi.  fas 890 

14  Of  inquests— how  paid. 635    636 

15  In  County  Court 313 

16  Garnishments  for 335 

17  In  Supreme  Court — howtaxed.211  4226 

18  Who  liable  for  in  Supreme  Court 
211  4225 

19  Fi.  fas.  for  against  plaintiffs 3636 

20  Against  attorneys 3636  3637 

21  Demandable  in  advance — when..  3629 

22  In  Equity  cases 4151 

23  Of  proceedings  in  Court  of  Ordi- 
nary for  titles  to  land 2512 

24  Judgment  shall  include  witness' 

fees 3635 

25  Mode  of  collecting  witness'  fees. .  3789 
Costs  in  Criminal  Cases. 

1  Judgment  for — lien 4602 

2  How  collected , 4602 

3  In  cases  of  acquittal  and  insolven- 
cy  ■ 4538  4613 

4  Accounts — how  allowed  and  paid 
4538  4613 

5  Prosecutor  liable  for — when . . .  640  4537 

6  Of  State's  witness  out  of  County. .  3792 

7  No  fees  due  prosecutor  as  witness.  3795 
Cotton. 

1  Title  does  not  pass  till  paid  for 1589 

2  Penalty  for  not  paying  for 1590 

3  Acceptor  of  drafts  against  indicta- 
ble—when  1591  to  1594 

4  Weighers  of,  to  be  sworn 1595 

5  Oath  of  weigher  recorded 1596 

6  Penalty  for  weighing  without  oath  1596 

7  Rule  for  weighing 1599 

8  Who  may  regulate  weighing 1600 

Counties. 

1  Names  and  limits  of 28 

2  Are  bodies  corporate 525 

3  Transfer  of  cases  to  new  County. .       29 

4  Jurisdiction  of  Counties 37  to      39 

5  Those  having  two  representatives.      40 

6  Control  of  County  property . . .  346    529 

7  Suits  against — how  brought 526 

8  Competency  of  jurors 525 

9  Contracts  with,  must  be  in  writing    527 

10  When  liable  for  paupers  sent  away    790 

11  Deeds  for  benefit  of,  vest  title 528 

12  Erection  and  repairs  of  buildings.     530 

13  Tax  for  court  house  and  jail 536 

14  Claims  against — how  audited 540 

15  Presentation  of  claims 541 

16  Judgments  against — how  paid. . . .     542 

17  Payment  of  debts  by 549 

18  Money  holders — how  made  to  ac- 
count  556  to    560 

19  Executions  against  money  holders 
558    561 


10 


20  Illegality — where  tried 

21  Revenue  outside  of  taxation..  .563 

22  Laid  off  into  road  districts 

23  Liable  for  escapes — when 

24  Embezzlement  of  County  funds. . . 

25  New  Counties 29  to  36,  41,  43 

Counterfeiting  and  Forgery. 

1  Kinds  and  punishment. . .  .4375  to 

2  Marks  and  brands 

County  Acada]viies. 

1  Law  concerning 1265  to 

2  Exempt  from  taxation 

County  Buildings. 

1  Erection  and  repair  of. 530  to 

2  Injuries  to  indictable 

3  Grand  Jury  shall  inspect 

4  Exempt  from  taxation 

County  Court. 

1  Organization  and  name 

2  Sessions  of 271 

3  Where  held 

4  Justice  of  Inferior  Court  holds — 
when 

5  Jurisdiction  of,  generally 

6  At  semi-annual  sessions 

7  At  quarter  sessions 

8  At  extra  sessions 

As  to  court  contracts 2716  to 

In  criminal  cases 

11  Is  a  Court  of  Inquiry — when 

12  Is  a  Court  of  Record 

13  Power  of 191  to  197 

14  Rules  of  proceeding  in 

15  Summons  in  certain  cases 

Service  of  summons 

Attachments  in 

Claims  in 

Garnishments  in 

Jury  box  for 

21  Grand  Jury  for 

22  Other  juries  in 

23  Oaths  of  juries 

24  Amendments 

Defenses 

Trial — time  of 

Mode  of  trial 

Continuances 

Claims — how  tried 

Attachments — trial  of 

Witnesses — attendance  of 294 

32  Verdicts  and  judgments 

33  May  be  moulded 

34  Appeals  from 

35  Certiorari  from 297 

36  Sales  under  process  from 

Proceedings  in  criminal  cases 

301,  302 

Accused  shall  have  counsel 

Seal  to  be  provided 

Costs  in 

Clerk  and  his  duties 321  to 

Dockets  of. 

Sheriff  and  Bailiffs 327  to 

44  Garnishments  for  cost 

45  Clerk  exempt  from  militia  dutv-  •  • 

46  Judge  of. 304  to 


16 
17 
18 
19 
20 


25 
26 
27 
28 
29 
30 
31 


37 

38 
39 
40 
41 

42 
43 


559 

564 

641 

3591 

4368 
4936 

4388 
4504 

1268 
796 

538 
534 
538 
796 

270 

277 
272 

273 

274 
275 

276 

277 
2730 
278 
279 
280 
281 
282 
283 
283 
284 
284 
284 
285 
285 
286 
287 
288 
289 
290 
291 
290 
292 
293 
303 
295 
295 
296 
298 
300 

311 
303 
310 
313 
326 
326 
335 
335 
1064 
313 


INDEX. 


1015 


47  Solicitor  of 314  to  320 

County  Funds, 

1  Panishment  for  embezzling. , 4368 

2  Holders  of — liovv  made  to  account. 
556  to  560 

3  Clerk  of  Inferior  Court — how  made 

to  account 577 

County  Judge. 

1  Title — olSce,  where  kept 304 

2  Election  and  official  term  of. 305 

3  Vacancy— how  fiHed 306 

4  Commission  and  oath..   307 

5  May  hold  other  offices 308 

6  May  practice  law .....  309 

7  Duties  specified , 310 

8  Shall  provide  seal ». .  310 

9  Authority  and  jurisdiction 311 

10  Fees  and  costs  of 312  313 

11  May  appoint  bailiffs. 329 

12  Jurisdiction  as  to  apprentices 

1862  to  1874 

County  Officers. 

1  Elections  for 1345  to  1350 

County  Poor. 

1  Inferior  Court  shall  supervise 776 

2  Houses  and  provisions  for. ...... .  777 

3  Farms  for 787 

4  Tax  for  houses  and  farm 779 

5  Regulations  for  farm 780 

6  Shops,  schools,  and  churches 781 

7  Commissioner  for  the  poor 782 

8  Liability  of  holders  of  pauper  fund  783 

9  Apj)licatiou  of  pauper,  how  made  784 

10  Beneficiaries,  who  are 785 

11  Mutual  support  of  parent  and  child 
786  787 

12  Burial  of  paupers 788 

13  Removing  paupers,  liability  for. 789  790 

14  Abandonment  of  paupers . . .  791  to  794 

15  Insane  paupers,  how  dealt  with . . .  795 

16  Deaf  and  dumb,  and  blind  paupers  795 
County  Property. 

1  Under  control  of  Inferior  Court. . .  346 

2  Erection  and  repair  of  buildings. .  530 

3  Exempt  from  taxation 796 

County  Records. 

1  Preservation  of 531 

County  Revenue. 

1  From  taxation 543  to  562 

2  From  other  sources 563  to  577 

County  Solicitor. 

1  Title — election — commission.  ..314  315 

2  Qualifications  of 316 

3  Oath — may  be  removed 317 

4  Pro  tern. — vacancy 318 

5  Fees  of 319 

6  Collecting  officer  of  County  Court  320 
County  Surveyor. 

1  Election  and  commission 607 

2  Term  of  office 607 

3  Appointed,  when 608 

4  Appointees  need  no  commission . .  609 

5  Oath  and  bond  of 610 

6  Subject  to  removal 611 

7  May  have  assistants 612 

8  Oath  of  assistants 613 


9  Office,  where  kept 614 

10  Duties  specified 615 

11  Fees— how  paid,  how  collected — 
616  to    618 

12  Surveys,  when  evidence 619 

13  Penalty  for  illegal  survey 622 

14  When  elected 1347 

15  Fees  for  processioning 2356 

16  Who  acts  in  case  of  vacancy.  .620    621 

17  Bond  to  be  filed,  when 143 

18  How  approved  and  certified. .  .150    151 
County  Tax. 

1  Levied  by  Inferior  Court 346 

2  On  recommendation  of  Grand  Jury    543 

3  Without  recommendation,  when. . 
545    546 

4  Rights  of  tax-payers  and  County 
creditors 537    547 

5  For  what  purposes  assessed...  .536    548 

6  Assessment  must  be  specific 550 

7  Subjects  of  assessment 550 

8  Publication  of  assessment 551 

9  Shall  not  be  diverted 552 

10  How  and  by  whom  collected 553 

11  Collector's  commissions  on 554 

12  Mode  of  allowing  commissions. . .     555 

13  Collector's  liability  for. 554 

14  Remedies  against  Collector 556 

15  Relief  from  improper  tax 562 

County  Treasurers. 

1  Who  eligible  to  the  office 584 

2  Election  and  official  term.578  to  582^  1348 

3  Vacancies,  how  filled 583 

4  Oath  of 586 

5  Bond  of 587 

6  How  approved  and  certified. .  .150    151 

7  When  Clerk  of  Inferior  Court  is 
elected , 685 

8  Bond  of  appointee  to  fill  vacancy.     588 

9  Shall  manage  County  funds 589 

10  Office,  where  kept 590 

11  Duties  specified 591 

12  Books  of,  how  paid  for 592 

13  Deposit  of  books  when  full 593 

14  Order  of  payment  by 594 

1 5  Age  of  order  before  payment 595 

16  Presentment  of  orders  to 596 

17  Schedule  of  oiders 597    602 

18  Shall  not  buy  orders  at  discount. .     599 

19  Penalty  for  illegal  payment  or  pur- 
chase of  orders 600 

20  Executions  against 604 

21  Fiscal  report  to  Grand  Jury 544 

22  Books — how  kept  where  Treasurer 
and  Clerk  are  one 603 

23  Embezzlement  by — how  punished  4368 

24  Presumption  of  guilt 4368 

25  Fees  of 3652 

26  Final  accounts  of 605    606 

Court  Contracts. 

1  What  agreements  may  be 2716 

2  Where  to  be  filed 2716 

3  Force  and  effect  of 2717 

4  Issues  of  fact,  how  tried 2718 

5  Performance,  how  enforced 2719 

6  Orders,  how  carried  out 2720 


1016 


INDEX. 


7  Damages,  how  awarded 2721 

8  Recission  of 2722 

9  Rules  of  decision 2728 

10  Time  is  essence  of 2724 

11  Expiration  of 2725 

12  Power  of  Court  continues 2726 

13  May  be  sued  on 2727 

14  How  set  aside 2728 

15  When  valid 2729 

16  Summary  remedy  cumulative 2730 

17  County  Judge  shall  keep  index  of.     310 
CiouRT  Houses. 

1  Erection  and  repair  of    531 

2  Rooms  of,  how  assigned 532 

3  In  keeping  of  Sheriffs 533 

4  Tax  to  build  or  repair 536 

5  Exempt  from  taxation 796 

Courts. 

1  Judicial  power  vested  in 191 

2  What  rules  bind 192 

3  Judicial  officers  incompetent,  when    193 

4  Powers  incident  to  194 

5  Minutes  to  be  read  and  signed 196 

6  Acts  valid,  without  Clerk 197 

7  Power  to  punish  contempts  limited  4901 

8  What  contempts  punishable 4614 

9  Right  of  appeal  to  secured 4896 

10  Removal  of  records  and  papers. . .     195 

Courts  Martial. 

1  Laws  regulating 1135  to  1146 

Courts  of  Inquiry. 

1  Who  may  hold 4633 

2  Time  and  place 4633 

8  Associates 4634 

4  Time  for  preparation  given 4635 

5  Bond  of  defendant  in  such  case.. .  4635 

6  Evidence— statement  of  accused. .  4636 

7  Abstract  of  evidence 4637 

8  Recognition  of  witnesses 4638 

9  Attendance  of  witnesses  compelled  4639 

10  Rule  of  decision 4640 

11  Commitment 4641 

12  Imprisonment  of  accused  out  of 
County 4642 

13  Jail  fees  and  obligations  of  Jailor 
4642  4643 

14  Taking  bail 4644 

15  Waiver  of  hearing 4645 

16  May  commit  for  any  offense  prov- 
ed  4646 

17  Papers — how  disposed  of. 4647 

18  Rights  and  powers  of  bail 4648 

19  Bail  allowed — how  often 4649 

20  Informality  no  cause  of  discharge.  4650 

21  County  Court  one  of   Inquiry — 
when 279 

Courts  of  Ordinary. 

1  Name  and  style  of 354 

2  When  held 4040 

3  Exclusive   jurisdiction  of 366 

4  May  attach  for  contempt 367 

5  May  be  adjourned  4042 

6  Who  may  adjourn 4051 

7  Applications  to  be  in  writing 4043 

8  Notice  of  proceedings 4043 

9  Orders  of— contents  of  orders 4044 


10  Objections  and  caveats-how  made  4045 

11  Record  of  proceedings. . ; 4046 

12  Minutes 4047 

13  Docket  of  applications 4048 

14  Docket  of  returns 4049 

15  Orders — how  enforced 4050 

Covenants. 

1  What  inure  to  purchaser 2581  2660 

2  Warranty  of  title  includes  what. .  2661 

3  Offer  to  rescind  unnecessary 2662 

4  Of  warranty — how  construed 2611 

Coverture. 

1  Plea  of 2427 

Creditors. 

1  Law  concerning 1934  to  1943 

2  May  attack  judgments — when....  3538 

3  Of  estates  may  follow  assets 3095 

4  Compulsory  election  by 1939 

5  Acts  of  that  release  sureties 2126 

Crime. 

1  Definition  of 4227 

2  Intention — how  manifested 4228 

3  Persons  capable  of  committing. . . 
4227  4228 

4  Felony  defined 4239 

5  By    accident    or    misfortune,  ex- 
cused  4237 

6  Principals  and  accessories .  4240  to  4245 
Criminal  Conversation. 

1  Husband's  right  to  sue  for 2957 

2  Proof  of  marriage  in  such  case. . .  2957 
Criminal  Law. 

1  Crime  defined 4227 

2  Felony  defined 4228 

3  Who  can  commit  crime. .  .4228  to  4238 

4  Principals  and  accessories .  4240  to  4245 

5  Treason  and  insurrection.  .4246  to  4252 

6  Crimes  against  the  person. 4253  to  4307 

7  Arson  and  burglary 4308  to  4322 

8  Crimes  relative  to  property  4323  to  4374 

9  Forgery,  counterfeiting,  etc 

4375  to  4392 

10  Crimes  against  public  justice. . . . 
4393  to  4489 

11  Offenses  against  public  peace. . . , 
4440  to  4455 

12  Offenses  against  morality,  etc 

4456  to  4498 

13  Cheating  and  swindling. .  .4499  to  4514 

14  Malicious  mischief 4515  to  4584 

15  Indictment,  arraignment,  and  plea 
4535  to  4548 

16  Challenge  of  jurors 4549  4550 

17  Order  of  argument 4551 

18  Powers  of  jury — verdict 4552 

19  Cases  stand  for  trial — when. 4553 

20  Demand  for  trial 4554 

21  Nolle  prosequi  not  allowed — when.  4555 

22  Oath  of  juries 4556 

23  Oath  of  witnesses 4557  4558 

24  Successive  imprisonments 4559 

25  Fines — how  paid  and  disposed  of.  4560 

26  Fines  to  be  paid  at  once, 4561 

27  Recommendation  of  jury 4562 

28  Penitentiary  convicts — when  sent.  4563 

29  Notice  to  Keeper 4564 


INDEX. 


1017 


30  Escapes  from  Penitentiary — venue  4565 

31  Confinement  of  convicts  until  sent 

for 4566 

32  Benefit  of  clergy  denied 4567 

33  Sentence  of  death — how  executed.  4568 

34  Report  of  defects  in  Penal  Code . .  4569 

35  Crimes  punished  under  co-existing 

law 4570 

36  Limitation  of  indictments 4571 

37  Insanity  after  conviction 4572 

38  Pregnant  convicts 4573 

39  Failure  to  execute— effect  of. 4574 

40  Execution — time  of  after  sentence.  4575 

41  Offense  on  boundary  line — venue .  4576 

42  Place  of  trial  in  certain  cases .  4577  4578 

43  Lunatic  shall  not  be  tried 4579 

44  Attempt  not  indictable — when 4580 

45  Jury  may  find  attempt 4581 

46  Second  conviction  for  felony 4582 

47  Convicts  may  testify— when 4583 

43  Jury— how  impannelled. .  .4584  to  4592 

49  Change  of  venue 4593 

50  Felons  can  hold  no  oflSce 4594 

51  Severance  on  trial 4595 

52  Effect  of  continuance  by  one 4596 

53  Opprobrious  words  justify — when  4597 

54  Oath  of  inquest  of  insanity 4598 

55  Evidence  recorded — when 4599 

56  Form  of  sentence  to  Penitentiary.  4600 

57  Costs  and  how  collected 4602 

58  Discharge  of  insolvents 4603 

59  Bail— allowed  how  often 4604 

60  Forfeiture  of  recognizance 4605 

61  Judgment  against  bail. 4606 

62  Surrender  of  principal.. 4607 

63  Punishment  for  minor  offenses, . . .  4608 

64  Settlement  of  cases 4609  4610 

65  Demanding  fees  not  due  is  crime.  4611 

66  Two  returns  of  "  no  bill"  a  bar.. .  4612 

67  Insolvent  costs — how  paid 4613 

68  Criminal  docket — ^how  called 4613 

69  Announcements  for  trial 4613 

70  State  shall  make  showing  for  con- 
tinuance— when 4613 

71  Contempts  of  Court 4614 

72  Attempts  to  commit  crimes 4615 

73  Warrants — how  issued  and  execu- 
ted  4616  to  4624 

74  Arrest  of  offenders 4624  to  4632 

75  Courts  of  Inquiry. 4633  to  4650 

76  Warrantsforgoodbehavior.4651  to  4653 

77  Warrants  to  keep  the  peace.4654  to  4658 

78  Search  warrants 4659  to  4663 

79  Proceedings  for  bastardy.  .4664  to  4667 

80  Insurrection  by  convicts 4723 

81  Constitutional  rights  of  accused. 
4897  4898 

Crops. 

1  Landlord's  lien  on  for  provisions, 

etc 2261 

2  Lien  of  factors  and  merchants  on.  1977 

3  Growing  crops  exempt  from  sale. .  3594 

4  Exception 3594 

5  Poisoning — presumption 1460 

Cross  Bills. 

1  Need  not  be  filed 4122 


2  Answers  may  be  used  as 4122 

Crossings. 

1  Law  relating  to 740  to    752 

Cruelty. 

1  Of  Jailors — how  punished 4405 

2  Children — how  protected  against .  1786 
Currency. 

1  Unauthorized  issue  of. . . .  .4389  to  4392 
Customs. 

1  When  binding 1 

Daguerrean  Artists. 

1  Tax  on 806 

Damages. 

1  For  what  given 2889 

2  Liquidated  damages, , . .' 2889 

3  Penalties  are  not  liquidated  dam- 
ages   2890 

4  Expenses  of  litigation 2891 

5  Exemplary  not  allowed,  when 2892 

6  Remote  damages 2893 

7  Interest  may  increase 2894 

8  Nominal  damages — tender 2895 

9  Are  in  jury's  discretion 2896 

10  For  breach  of  warranty  of  title. . .  2897 

11  For  breach  of  bonds  for  title 2898 

12  Necessary  expenses  included.. 2899  3013 

13  Against  railroad  companies  for  way  2978 

14  For  torts — general  rule 3010 

15  Aggravated 3011 

16  Vindictive,  when  allowed 3012 

17  General  and  special 3014  3015 

18  Direct  and  consequential. 3016 

19  Rule  for  ascertaining 3018  3019 

20  Against  joint  trespassers 3021 

21  Contribution  amongst  trespassers.  3021 

22  In  actions  for  personalty 3022 

23  Where  the  property  is  destroyed. .  3023 

24  Where  specific  performance  is  im- 
possible  3136 

25  In  second  action  of  ejectment 3287 

26  For  frivolous  appeals. .   ! 3575 

27  For  frivolous  claims 3685  3688 

28  For  frivolous  certiorari 3997 

29  In  Supreme  Court  for 4221 

30  In  trials  of  citizenship 3968 

31  Measure  of,  for  escapes 3590 

32  On  foreign  bills  of  exchange.  .2750  2751 

33  Against  auctioneers 1439 

34  Offer  to  rescind,  effect  of 2662 

35  In  suits  of  officers'  bonds. 157 

36  For  public  roads,  how  assessed . . . 
676  to    687 

37  For  bridges,  etc 738    739 

38  For  private  ways 758, 759    770 

39  Liability  of  W.  &  A.  R.  R.  for. ...     970 

40  For  breach  of  printer's  bond 1025 

41  For  breach  of  distributor''s  bond. .  1058 
Dams. 

1  Regulations  coneeroing 1601  to  1611 

Days. 

1  How  counted 4 

Dates  and  Amounts. 

1  May  be  set  out  in  figures .    3195 

Days  of  Grace. 

1  Not  allowed  on  sight  paper 2742 


1018 


INDEX. 


Dead  Bodies. 

1  May  be  disinterred  for  inquest 

2  Penalty  for  illegal  disinterments . . 

3  Panishmentfor  disintering  or  buy- 
ing  

Deadly  Weapons. 

1  Punishment  for  carrying  concealed 
Deaf  and  Dumb. 

1  Academy  for 1256  to 

2  Pass  over  W.  &  A.  K.  R.  free,  when 

3  Guardians  for,  law  regulating. . . . 
1845  to 

4  Paupers — how  dealt  with 

5  May  make  wills,  how 

Death. 

1  Provable  by  hearsay 

2  Caused  by  perjury,  how  punished . 

3  Sentence  of,  and  its  execution. 45G8 

4  Sentence  of  in  force  until  executed 
De  Bene  Esse.^ 

1  Testimony  used — when 3055 

Debtor  and  Creditor. 


1  Relation  of 

2  Creditors  favored 

3  Equitable  assets  reached 1936 

4  Creditors  may  attack  j  udgments . . 
1937 

5  Creditors  confined  to  one  remedy. 

6  Compulsory  election  by  creditors . 

7  Obligations  that  must  be  in  writing 
537 

8  Excepted  cases 

9  Acts  void  against  creditors 

10  Debtor  may  prefer  creditor 

11  Insolvent  debtors — law  concerning 
1985  to 

12  Debtor  may  have  jail  bounds 

13  Debtor's    property    exempt    from 
sale 2013  to 

14  Obligation  of  debtors  to  W.  &  A. 
R.  R 

15  Creditor  may  follow  assets 

16  Creditor's  bills 

17  Debtors  not  to  be  imprisoned,  when 

18  Appropriation  of  payments 

Deceit. 

1  Definition  of,  and  action  for.  .2907 

2  As  to  liens,  indictable 

Decrees. 

1  Definition  of 

2  Enforcement  of 3044,  4156 

3  Set  aside  for  fraud 

4  Of  partition  pass  title 

5  Of  partition,  how  moulded 

G  Interlocutory 

7  For  specific  performance  pass  title 

8  Dormant  decrees — revival  of 

9  Transfer  of 

10  Lien  of 

11  As  to  wills,  in  vacation 

12  Moulding  decrees  

13  Rendition  of  decrees 4142 

Defenses  to  Contracts. 

1  lion  est  factum — how  pleaded. . . . 

2  Alterations — effect  of 

3  Alterations — how  tried 


631 
632 

4479 

4454 

1264 
1013 

1855 

795 

2377 

3719 
4401 

4575 
4574 

3839 

1934 
1935 
3096 

3241 
1938 
1939 

1940 
1941 

1942 
1943 

2006 
2009 

2022 


3095 
3091 
4908 
2818 

2908 
4511 

4158 
4159 
3121 
3128 
3129 
4142 
4150 
4160 
4158 
4158 
4155 
4154 
4147 

2800 
2801 

•2803 


4  Alterations — proof  of 2803 

5  Denial  a,nd  proof  of  indorsements  2804 

6  Obligation  of  contracts  may  be  de- 
nied   2805 

7  Conditions — non  performance  of. .  2806 

8  Want  or  failure  of  consideration. .  2806 

9  Payment 2813  to  2818 

10  Performance  and  tender. .  .2819  to  2826 

11  Accord  and  satisfliction 2827  to  2831 

12  Arbitrament  and  award. .  .2832  to  2842 

13  Pendency  of  another  suit.  .2843  to  2845 

14  Former  recovery 2846  to  2847 

15  Set-off 2848  to  2857 

16  Recoupment 2858  to  2861 

Deeds. 

1  Requisites  of,  to  land 2648 

2  Consideration  subject  to  inquiry. .  2648 

3  May  convey  future  interests 2649 

4  Form  of,  immaterial 2650 

5  Escrow 2651 

6  Delivery — presumption 2648  2651 

7  Not  void  by  adverse  possession . . .  2653 

8  Of  infants,  voidable. . : 2652 

9  To  personalty — need  no  witness. .  2654 

10  Construction  of 2655 

11  Estoppels  by 2656  2657 

12  Ancient  deeds  prove  themselves. . .  2658 

13  Copies  of,  may  be  established 2659 

14  Covenants  of  inure  to  feofee 2660 

15  General  warrant}--,  includes  what. .  2661 

16  Offer  to  rescind,  effect  of 2662 

17  Yf  hen  and  where  recorded 2663 

18  Record  not  in  time,  effect  of 2663 

19  Who  may  attest  for  record 2664 

20  Probate  of,  for  record 2665  2686  . 

21  Record  ofj^. /a.,  with  Sheriff's  deed  2667 
23  To  personalty,  may  be  recorded. .  2668 

23  Effect  of  such  record 2668 

24  Former  laws  as  to,  still  of  force.. .  2669 

25  Repelled  on  affidavit  of  forgery. . .  2670 

26  Trial  of  the  issue  of  forgery 2670 

27  Copy  of  from'  record,  when  evi- 
dence   2671 

28  Election  under  deeds 3108 

29  Shown  to  be  mortgages,  when 3756 

30  How  proved  when  lost 3767 

31  Registration  of,  how  proved 8766 

32  Maldng  second  deed,  indictable. . .  4511 
88  Of  administrators— recitals  in 2520 

Default. 

1  Entry  of  and  proceedings 3405 

2  Verdicts  on  accounts  in  cases  of.  3405 

T^TTT  TV  K"R V^ 

1  In  cases  of  gift 2618  2626 

2  Of  things  sold 2603 

3  Of  deed^s 2648  2651 

4  To  innkeepers 2092 

Demand. 

1  Before  suit — when  necessar}" 3190 

2  Before  suit  against  W.  &  A.  R.  R.    979 

Demand  for  Trial. 

1  In  criminal  cases 4554 

Demurrers. 

1  When  to  be  filed 4132 

3  Grounds  of 3143 


I 


INDEX. 


1019 


Dentists. 

1  Tax  on •. . .     806 

Departments. 

1  Of  government  shall  be  distinct. .  4911 
Deposits. 

1  Definition  of    2077 

2  Voluntary  and  involuntary 2078 

3  Naked  depositary— liability  of 2078 

4  In  bank ". 2079 

5  Gratuitous  carriers 2080 

6  leaked  depositary  may  end  bail- 
ment  2081 

7  Use  of,  by  naked  depositary 2082 

8  Reimbursement — lien  for 2083 

9  Depositaries  for  hire — liability  and 
lien 2084 

10  Factor's  lien  and  liability 2085 

11  Warehouseman's  liability 2086 

12  Wharfinger's  liability 2087 

13  Term  "  inn  "  includes  what 2088 

14  Innkeeper's  liability 2089  2091 

15  Who  are  guests 2090 

16  Delivery  to  innkeepers 2092 

17  Il^otice  of  place  for  keeping  valu- 
ables   2093 

18  Innkeeper's    liability  not  limited 

by  notice 2094 

19  Inkeeper's  duty 2095 

20  Lien  of  innkeeper 2096 

21  Livery-stable  keeper's  liability  and 

lien 2097 

Depositions. 

1  When  and  how  taken 3821  to  3835 

Deputies. 

1  Oath  of  and  where  filed 135 

2  Penalty  for  acting  without  oath. .     136 

3  Acts  valid  without  oath — when. .       137 

4  Official  bonds  of. 152 

1  Rules  of. 1791, 1792  2448 

2  Realty  descends  to  heirs 2220  2447 

Devises  and  Legacies. 

1  Assent  of  executor 2415 

2  How  given  and  effect  of. 2416 

3  Assent  of  one  executor 2417 

4  No  form  of  words  necessary  to. . .  2418 

5  Gifts  of  income — how  construed. .  2419 

6  Construction  of 2420 

7  Ambiguities — explanation  of 2421 

8  General  and  specific  legacies 2423 

9  Income  of  specific  legacies 2423 

10  Bear  interest,  when 2424 

11  After  acquisitions  pass,  when 2425 

12  Shall  not  lapse,  when 2426 

13  Adeem  in  what  cases 2427 

14  Substitution 2428 

15  Election  by  legatee. .  .2429,3105  to  3107 

16  Conditions  void,  when 2430 

17  Abatement  of  for  debts 2431 

18  Charitable  bequests. 2432 

19  (7y  pres  or  approximation 2432 

20  Executor}^  devises 2433 

Dilatory  Pleas. 

1  Sworn  to  and  filed  at  first  term. . .  3404 
Diligence. 

1  Required  of  bailees 2034  to  2037 


Directors  op  State  Bank. 

1  When  elected 1364 

Disclaimer. 

1  By  defendant  in  ejectment  3285 

2  Of  discovery  in  Equity 3046 

Discovery. 

1  Compelled  by  Courts  of  Equity. . .  3046 

2  Privileges  of  the  party 3047 

3  Must  be  full 3048 

4  Shall  be  under  oath 3049 

5  Answer,  how  far  €ividence 3050 

6  Answer,  ho'w  rebutted . . . , 3050 

7  Responsiveness  of  answer 3051 

8  Answer  of  co-defendants 3052 

9  Waiver  or  disclaimer  of 3046 

10  At  law,  how  obtained. . .  .3757  to  3761 

11  Bill  for,  when  sustained 4123 

12  Requisites  of  bill  for 4117 

Disinterment  op  Dead  Bodies. 

1  By  Coroners 631 

2  Penalty  for  illegal  632  4479 

Dismissal  op  Actions. 

1  By  plaintiff" 3399 

2  When  by  leave  of  Court 2856 

3  Not  allowed,  when 1718 

4  Complainant   shall    not    dismiss, 
when 4131 

Dismissory  Letters. 

1  When  granted  to  guardians 1840 

2  To  administrators 2565  to  2567 

3  To  executors 2413 

Disorderly  Houses. 

1  Punishment  for  keeping 4463 

Distress  Warrants. 

1  Law  relating  to 4010  to  4012 

2  County  Judge  may  issue 311 

Distribution  op  Estates. 

1  Rules  of  inheritance 2448  2529 

2  Support  of  deceased's  family 

2530  to  2537 

3  Advancements — law  of 2538  to  2542 

4  In  kind— mode  of 2543  to  2547 

5  Settlements  and  final  receipts. . . . 
-..2557  to  2564 

6  Refunding  bonds 2564 

Distribution  op  Laws  and  Journals. 

1  Laws  regulating 1050  to  1062 

Districts  and  Circuits. 

1  Division  of  State  into 44 

2  New  County  belongs  to  what  cir- 
cuit       45 

Divine  Service. 

1  Punishment  for  disturbing 4489 

2  For  selling  liquor  near  to  place  of.  4490 
Divorce. 

1  Jurisdiction  in  cases  of 1710  4964 

2  Total  and  partial 1710 

3  Two  verdicts  in  total  divorces.1710  4964 

4  Form  of  such  verdicts 3507 

5  Juries — how  impanneled 1710 

6  Grounds  for  total  divorce 1711 

7  Discretionary  grounds 1712 

8  One  verdict  may  give  partial 1718 

9  Form  of  such  verdict 3508 

10  No  divorce  shall  be  granted,  when .   1714 

11  Recrimination — jury's  discretion..  1714 


1020 


INDEX. 


12  Confessions,  how  received 1715 

13  Proceedings  to  obtain 1716 

14  Defendant  may  ask  for , 1717 

15  Plaintiff  can  not  dismiss,  "when. . .  1718 

16  Schedule  of  property 1719 

17  Transfer  pendente  lite 1720 

18  Verdict  must  specify  kind  of. 1721 

19  New  trial  may  be  granted 1722 

20  Competency  of  jurors 1724 

21  Disposition  of  property 1723 

22  Effect  of  total  divorce 1725 

23  Rights  and  disabilities  of  parties. . 
1726  4964 

24  Effect  of  partial  divorce 1727 

25  Custody  of  children 1728 

26  Reconciliation  after  partial  divorce  1729 

27  Duty  of  Judge  in  cases  ex  parte. .  1730 

28  Temporary  alimony 1732 

Dockets. 

1  Of  Superior  Court 256 

2  Of  County  Court 326 

3  Of  Justices  of  the  Peace 491 

4  Of  Courts  of  Ordinary 4048  4049 

5  Of  Inferior  Court  for  County  pur- 
poses  4059 

6  Of  criminal  cases,  how  called 4613 

7  Of  Supreme  Court,  how  made  up .  4209 

8  Publication  of  cases  thereon 4209 

Documentary  Evidence. 

1  What  laws  are  recognized  without 
proof 3762  3771 

2  Copies  of  records  and  papers .  3763  3764 

3  Proof  of  lost  records 3765 

4  Proof  of  registry 3766 

5  Copies  from  the  registry 3767 

6  Where  registry  is  destroyed 3768 

7  Presumption  of  probate 3769 

8  Former  laws  still  in  force 3770 

9  Foreign  laws — how  proved 3772 

10  Effect  of  judgments  as  evidence. . 

3773  3774 

11  Judgment  not  evidence  for  witness  3775 

12  Judgments,  how  attacked 3776 

13  Notarial  acts,  how  proved 3777 

14  Acts  of  Congress,  as  to  evidence . . 

3777  3778 

Dogs. 
1  Liability  of  owners  for  damage  by  2914 

DOMICIL. 

1  Defined 1689 

3  Election  between  two 1690 

3  Of  transient  persons 1690 

4  Of  married  women 1691 

5  Of  minors 1692 

6  Of  lunatics,  etc 1693 

7  Change  of 1694  1695 

8  Effect  of  change  in  certain  cases. .  1695 
Donations. 

1  How  made  by  the  Legislature 4942 

Door-Keepers. 

1  Of  Legislature — election  and  pay 

of 173 

Dormant  Judgments. 

1  How  revived 3544  to  3551 

Dower. 

1  Definition  of 1753 


2  How  barred 1754 

3  Election  between  bequest  and  dow- 
er     1755 

4  Election  in  ignorance  is  no  bar. . .  1756 

5  In  lands  in  different  Counties 1757 

6  Not  barred  by  liens 1759 

7  Dwelling  house  and  furniture 1758 

8  Money  in  lieu  of  dower 1760  1761 

9  Application  for,  when  made 3970 

10  Notice  of  application 3971 

11  Commissioners  to  assign 3969 

12  Duty  of  commissioners 3969 

13  Oath  of  commissioners 3972 

14  Aid  of  Surveyor 3973 

15  Return  of  commissioners 3973 

16  Traverse  of  return — trial 3974 

17  Finding  of  jury,  effect  of 3975 

18  Judgment — writ  of  possession — 
costs 3976 

Drat^ts 

1  Law  concerning 2731,  2735  to  2751 

2  Against  cotton — acceptor  of  indict- 
able, when 1591  to  1594 

Driftwood. 

1  Penalty  for  buying  or  selling.  1570  1571 
Druggists. 

1  Regulations  concerning.. .  .1429  to  1431 

2  Mistakes  of— right  of  action  for. . .  2954 

3  Sale  of  adulterated  drugs  by. 2953 

Drugs. 

1  Sale  of  adulterated 2953 

Drunkards. 

1  Admission  of  to  Lunatic  Asylum .  1387 

2  Penalty  for  selling  liquor  to 1436 

3  Incompetent  witnesses,  when 3801 

4  Contracts  of,  when  invalid. .......  2695 

5  Appointment  of  guardians  for 

1843  to  1855 

6  Excused  for  crime,  when 4236 

Drunkenness. 

1  An  excuse  for  crime,  when 4236 

2  Ground  for  divorce 1712 

3  Disqualifies  a  witness,  when 3801 

4  Voids  contracts,  when 2695 

Duelling. 

1  Punishment  for 4443 

2  Seconds  punished 4444 

3  Death  by,  is  murder 4445 

4  Peace  officers  shall  prevent 4446 

5  Denouncing  one  as  coward 4447 

Duress. 

1  Voids  sales 2591 

2  Definition  of 2595 

3  Invalidates  contracts 2710 

4  Crimes  under — excused 4238 

5  By  jailors,  how  punished. 4405 

Dying  Declarations. 

1  Admissible  in  evidence,  when...  3728 
Education. 

1  Legislature  may  provide  for 4937 

2  Academy  for  the  blind 1241  to  1255 

3  Academy  for  deaf  and  dumb 

1256  to  1264 

4  Common  schools  and  education. . . 
1269  to  1302 

5  Georgia  Military  Institute.  1217  to  1240 


INDEX. 


1021 


6  University  of  Georgia 1197  to  1216 

Educational  Fund. 

1  Book  of  kept  by  Grovernor 72 

2  Of  iState,  how  made  np..  .1269  to  1274 

3  How  paid  out  by  tlie  State.1275  to  1279 

4  Of  Counties,  how  made  up 

1280  to  1284 

5  How  managed  and  disbursed 

1285  to  1299 

6  Beneficiaries  and  how  ascertained 
1300  to  1302 

Ejectment. 

1  For  land  on  County  line 3279 

2  Mesne  pr(y?i!s,  how  recovered. .  3280  3281 

3  By  tenants  in  common , . .  3282 

4  Misjoinder  in  actions  of. 3283 

5  True  claimant,  how  made  party . .  3284 

6  Disclaimer  by  defendant 3285 

7  Judgments  in,  when  conclusive. .  3286 

8  Damages  in  second  action  of 3287 

9  Who  may  be  co-defendant  in 3288 

10  Consent  rule — fictions  form 3289 

11  Recovery  on  prior  possession 3290 

12  Form  of  action 3313 

13  Abstract  of  title  with  form 3324 

14  Executions  on  judgments  in. 3582  3583 

15  Venue  of  the  action 3326  4967 

Election. 

1  When  compelled  in  Equity 3090 

2  Cases  of  arise,  when 3104 

3  By  legatees 3105 

4  By  the  Court  for  legatee 3106 

5  Compensation  to  legatee 3107 

6  Under  deeds 3108 

7  Bj  widows 1755  to  1757 

8  Between  two  domicils 1690 

Elections. 

1  By  the  people,  to  be  by  ballot 4982 

3  Qualifications  and  oath  of  voters 
1303  to  1307  4980 

3  Where  Counties  are  changed 1308 

4  For  legislators — who  may  hold . . . 
1309  1314 

5  Superintendents,  how  sworn.. 1310  1311 

6  Places  of  holding 1312 

7  Time  of  holding  for  legislators . . .  1313 

8  How  conducted 1315 

9  Default  of  superintendent 1316 

10  Examination  of  lists  and  ballots. .  1317 

11  Duty  of  Grand  Jury  as  to  lists 1317 

12  Blank  forms,  how  supplied 1318 

13  Penalty  for  false  returns 1319 

14  Penalty  for  influencing  voter 1319 

15  Voters  free  from  arrest 1320 

16  Vacancies— elections  to  fill... 1321  1322 

17  Provisions  of  general  application .  1323 

18  For  Governor— return  of. 1324  1325 

19  For  Congressmen 1326 

20  For  an  extra  session , 1327 

21  Eligibility  of  candidates 1328 

22  Proclamation  of  result 1329 

23  New  election  in  case  of  tie 1330 

24  Must  apply  for  commission 1331 

25  For  Presidential  electors 1332 

26  Electors  to  be  notified 1333 

27  Vacancies,  how  filled 1334  1335 


28  Officers  of  electoral  college 1336 

29  Messenger  from  the  college 1337 

30  Pay  of  electors  and  secretary 1338 

31  For  Judges  of  Superior  Court. 225  1339 

32  Proclamation  of  result 1340 

33  Qualification  and  commission.1340  1341 

34  Office  of  Judge  vacant,  when 1342 

35  For  Solicitors'  General.. 1343 

36  Proclamation  of  result 1344 

37  For  Justices  of  Inferior  Court.1345  1346 

38  For  Ordinaries 1346 

39  For  County  officers 1347, 1349  1350 

40  For  County  Treasurer,  when 1348 

41  For  Justices  of  the  Peace.. 1351  to  1354 

42  For  Constables 1355  1356 

43  Contesting  elections 1357  to  1362 

44  In  case  of  legislators 1358 

45  Examination  of  suspected  ballots.  1359 

46  Illegal  votes  may  be  set  off" 1360 

47  Not  defeated  by  informality 1362 

48  Election  of  U.  S.  Senators 1363 

49  For  Judges  of  Supreme  Court 1364 

50  For  Bank  Director 1364 

51  For  State  Printer 1364 

52  For  State  House  officers 1364 

53  By  Legislature,  how  conducted . . . 
172  4981 

54  For  militia  officers 1118  to  1122 

55  Second  highest  candidate  elected, 
when 121 

56  Persons  elect,  when  ineligible 122 

Election  Precincts. 

1  Establishment  and  change  of 

346,  1312  4940 

Electors  and  Electoral  College. 

1  Law  concerning 1332  to  1338 

Embezzlement. 

1  Of  County  funds,  how  punished. .  4368 

2  Of  records  and  papers 4404 

Embracery. 

1  Definition  and  punishment 4431 

Eminent  Domain. 

1  Defined 2196 

2  When  and  how  exercised .  .2197  to  2199 

Enclosures  and  Fences, 
1  Regulations  concerning — 1456  to  1461 

Endorsement. 

1  Contract  of. 2738 

2  May  be  limited 2735 

3  Need  not  be  under  seal 2734 

4  Must  be  denied  on  oath,  when 2804 

5  Proof  of 2804 

6  In  blank,  may  be  explained 3755 

Endorsers. 

1  For  accommodation,  are  sureties . .  2123 

2  May  attack  principal 2133 

3  May  sue  principal  for  money  paid . 
2134  2135 

4  May  recover  usury  paid,  when 2136 

5  Foreclosure  of  mortgages  by 2137 

6  May  control  fi.  fas 2140 

7  Of  negotiable  papers— liability  of 
2738  to  2742 

Engrossing. 
1  Punishment  for 4503 


1022 


INDEX. 


Entails, 

1  Prohibited  and  abolished. 

2  Kule  in  case  of 

Equity. 


,3025 


be 


Jurisdiction,  where  vested 

Grounds  of  relief 

Choice  of  forum 

Follows  the  law 

Complainant  must  do  equity.. . 

6  Will  do  complete  justice 

7  Deems  that  done  that  should 
done 

8  Equal  and  unequal  equities 

9  Of  volunteers  is  inferior 

10  Of  misled  party  is  superior 

11  Equality  is  equity,  when 

12  Effect  of  notice 

13  Will  not  disturb  bona  fide  purcha- 
sers  

14  Rule  as  to  fault  of  parties 

15  Effect  of  ladies 

16  Rule  as  to  jurisdiction 3040 

17  Masters  and  auditors 

18  Effect  of  their  report 

19  Receivers,  when  appointed 

20  Orders  and  decrees,  how  enforced. 

21  Extent  of  jurisdiction 

22  Discovery 3046  to 

23  Perpetuation  of  testimony .  3053  to 

24  Accident  and  mistake .....  3057  to 

Account  and  set-off 3075  to 

Administration  of  assets..  .3085  to 

Charities 3098  to 

Election 3104  to 

Execution  of  powers 3109  to 

Fraud 3115  to 

Partition 3127  to 

Specific  performance 3130  to 

Trusts  and  trustees 3137  to 

Mandamus 3142  to 

Quo  warranto 

Prohibition 

37  These  writs  granted  in  vacation. . 
88  ISTeither  of  them  lie  against  G-ov'or 

39  Injunctions 3149  to 

40  Ne  exeat  and  quia  timet 3159  to 

41  Bills  of  peace  and  interpleader. . . 
3166  to 

42  Bills,  subpoenas,  and  service.4116  to 

43  Demurrers,  pleas,  and  answers 

4132  to 

44  Interlocutory  decrees 

45  Masters  and  auditors 4143  to 

46  Trial  and  incidents 4146  to 

Decrees  and  their  enforcement. . . . 

4153  to 

Other  proceedings 4162  to 

Limitation  of  suits  in 

Equity  Pleading  and  Practice. 

1  Proceedings  in  Equity  by  bill, . . . 

2  Requisites  of  bills  for  discovery. . . 

3  Amendments 

4  Who  may  complain 

5  Persons  under  disability 

6  Parties  to  bills 

7  Divisions  and  definitions 


25 

26 

27 


30 
31 
32 
33 
34 
35 
36 


47 

48 
49 


2224 
2224 

4967 
3026 
3027 
3028 
3029 
3030 

3031 
3032 
3033 
3034 
3035 
3036 

3037 
3038 
3039 
3041 
3042 
3042 
3043 
3044 
3045 
3052 
3056 
3074 
3084 
3097 
3103 
3108 
3114 
3126 
3129 
3136 
3141 
3144 
3147 
3148 
3146 
3147 
3158 
3165 

3169 
4131 

4141 
4142 
4145 
4152 

4161 
4165 

2873 

4116 
4117 
4118 
4119 
4120 
4121 
4122 


8  Cross  bills  unnecessary 4122 

9  Supplemental  bills  unnecessary. . .  4122 

10  Bills  of  revivor  abolished 4122 

11  Bills  for  discovery,  Avhen  upheld .  4123 

12  Bills  to  perpetuate  testimony 4123 

13  Bills  when  filed 4124  4967 

14  When  to  be  sanctioned 4125 

15  When  filed  and  served 4125 

16  SubpcEna  and  service 4126 

17  Sanction  of  bills 4127 

18  Granting  and  dissolving  writs. . . .  4127 

19  Service  of  extraordinary  writs. . . .  4128 

20  Service  of  bills  to  marshal  assets .  4129 

21  Adding  parties  to  such  bills 4130 

22  Dismissal  of  bills 4131 

23  Rights  of  defendant  in  such  case. .  4131 

24  Modes  of  defense  and  when  setup  4132 

25  Demurrers 4133 

26  Pleas 4134 

27  Answers  and  exceptions  thereto . .  4135 

28  Disclaiming  discovery 4136 

29  Answer,  verification,  amendment.  4136 

30  Effect  of  amendment  to  bill 4137 

31  Answer  to  amendment 4137 

32  How  defendant  must  answer 4138 

33  On  information  and  belief 4138 

34  Verification  by  non-residents 4139 

35  Replication  abolished 4140 

36  Notice  of  pleas  and  demurrers. . . .  4141 

37  Interlocutory  decrees 4142 

38  Masters  and  Auditors 4143 

39  Their  report  and  exception 4144 

40  Fees  of  Masters  and  Auditors ....  4145 

41  Trial  term  of  bills. 4146 

42  Mode  of  trial 4142  4147 

43  Rules  of  evidence  and  practice. . .  4148 

44  Judgments  jj?'(?  confesso 4149 

45  Decrees  for  specific  performance. .  4150 

46  Special  verdicts  and  costs 4151 

47  New  trials,  but  no  appeals 4152 

48  Decrees  defined 4153 

49  Moulding  and  enforcing  decrees. .  4154 

50  Decrees  as  to  wills  in  vacation. . . .  4155 

51  Money  decrees,  how  enforced 4156 

52  Enforcement  of   decrees  general- 
ly   4157 

53  Transfer  and  lien  of  decrees 4158 

54  Enforcement  of  injunctions 4159 

55  Dormant  decrees 4160 

56  Bills  of  review — limitation  of. 4161 

57  Proceedings  by  petition 4162 

58  What  may  be  done  at  Chambers..  4163 
59-  Notice  to  parties  4164 

60  Guardians  ad  litem 4165 

61  Limitation  of  suits  in  Equity 2873 

Error. 

1  Writs  of,  when  and  how  taken . . 

4191  to  4207 

Escapes. 

1  Irregular  process  will  not  excuse.  8428 

2  Measure  of  damages  for 3590 

3  County  liable  for,  w^hen 3591 

4  Punishment  for  aiding 4414  to  4416 

5  From  Peuitentiary,  how  punished  4416 

6  Where  tried 4565 

7  Voluntary  escapes — punishment..  4417 


1 


INDEX. 


1023 


Escheats. 

1  Delinitinn  of 2627 

2  Eights  of  incapable  heirs 2628 

3  Escheator— his  rights  and  duty. . .  2629 

4  Ordinary's    duty — publication    of 
notice 2630 

§  Proceeds  of  escheated  property . . .  2631 

6  Solicitor  is  counsel  of  escheator. . .  2632 

7  May  sue  in  six  years 2633 

Establishment  of  Lost  Papers. 

1  In  Superior  Courts 3904  to  3912 

2  In  Justice's  Courts.  ...... .3913  to  3916 

3  In  summary  manner 3917  to  3919 

Estates. 

1  Detined — in  what  created 2219 

2  Absolute  or  fee  simple  estates —  .  2220 

3  Descent  of. 2220 

4  To  commence  in  future 2221 

5  Fee  may  be  limited  on  fee 2221 

6  Absolute  estates,  how  created 2222 

7  Technical  words,  how  construed.  2223 

8  Estates  tail  prohibited — rule  in . . . 
2224  2225 

9  Limitations  over — how  construed 
2224  2225 

Estates  for  Life. 

1  Defined .2226  2228 

2  How  created 2227 

3  Eights  and  duties  of  tenant 2229 

4  How  forfeited 2229 

5  Increase 2230 

6  Emblements 2231 

7  Eights  of  renter  from  tenant 2232 

8  No  tenancy  by  courtesy  in  Georgia  2233 

9  Effect  of  sale  of  entire  estate 2234 

10  Eemoval  of  personalty 2235 

11  Bond  of  purchaser  at  sale 2236 

12  Estates  during  widowhood ... 2246 

13  Limitation  over  on  marriage 2246 

Estates  fok  Years. 

1  Definition  of ....... . 2247 

2  Differ  from  renting  and  hiring 2248 

3  Eights  and  duties  of  tenant 2249 

4  Emblements 2250 

5  Tenant  bound  for  repairs 2251 

6  Are  leases — v^^hen — construction . .  2252 
Estates  in  Eemainder  and  Eeversion. 

1  Definition  of  each 2237 

2  Ko  other  estate  required  to  sustain  2238 

3  Vested  and  contingent  remainders  2239 

4  Eights  of  remainderman's  heirs. . .  2240 

5  Perpetuities  forbidden 2241 

6  Limitations,  how  construed 2241 

7  Words  of  survivorship 2243 

8  Eemainders,  how  and  for  whom 
created 2242 

9  Assent  of  executor 2244 

10  Merger  of  estates 2245 

Estates  on  Condition. 

1  Defined 2268 

2  Conditions  precedent  and  subse- 
quent   2269 

3  Void  conditions 2270 

4  Excuse  for  non-compliance  with 
conditions 2271 

5  Dependent  and  independent  condi- 
tions   2272 


6  Breach  of  conditions— effect  of. . . .  2273 
Estoppels. 

1  Examples  of 3700 

2  By  deed 2657 

ESTRAYS. 

1  Where  and  by  whom  taken  up 1440 

2  Duty  of  taker-up 1441 

3  Description  and  appraisement. . .  1442 

4  Advertisement  of 1442 

5  Sale  of 1443  1444 

6  Disposition  of  proceeds 1445 

7  Eeclamation  by  owner 1446 

8  Trial  of  conflicting  claims 1447 

9  Compensation  of  taker-up 1448 

10  Default  of  taker-up — penalty. ....  1449 

11  Stone  horses,  how  gelded 1450 

Evidence. 

1  Object  of  evidence 3694 

2  Definition  of 3695 

3  Moral  certainty , . .  3696 

4  Mental  conviction 3696 

5  Eules  of,  uniform  in  all  Courts. . . .  3697 

6  Matters  judicially  recognized..  . . . 
3698,3762  3771 

7  Presumptions  of  law  and  fact 3699 

8  Estoppels    3700 

9  Disputable  presumptions 3701 

10  Number  of  witnesses 3702 

11  Must  be  relevant 3703 

12  Character  and  conduct  of  parties .  3704 

13  Burden  of  proof 3705 

14  Onus  in  claim  cases 3686 

15  Cast  on  bailee,  when 2038 

16  Change  of  onus. 3706 

17  Best  evidence  must  be  produced. .  3707 

18  Primary  and  secondary 3708 

19  Written  better  than  oral 3709 

20  Copy  records  and  wills.. 2397,  2398  3710 

21  Ofiicer  de  facto,  proof  of 3711 

22  Mural  and  other  inscriptions 3712 

23  Other  exceptions 3713 

24  Secondary,  when  received 3714 

25  Degrees  in  secondary  evidence. . . .  3715 

26  Copies  received,  when 3465  3716 

27  Hearsay  defined 3717 

28  Hearsay,  sometimes  original 3718 

29  Pedigree,  how  proved . . .'. 3719 

30  Be&  gestm 3720 

31  Declarations  of  persons  in  posses- 
sion   3721 

32  Of  conspirators 3722 

33  Of  deceased  persons 3723 

34  Books  of  accounts 3724 

35  Matters  of  public  interest 3725 

36  Ancient  documents 3726 

37  Boundaries  and  landmarks 3727 

38  Dying  declarations 3728 

39  Testimony  of  dead  witnesses 3729 

40  Admissions  and  confessions.3730  to  3746 

41  Disclosures  of  grand  juries 3746 

42  Parol,  to  affect  written 3747 

43  Ambiguities 3748 

44  Contemporaneous  writings 3748 

45  Parol,  to  show  writing  void 3749 

46  Where  contract  is  not  all  written .  3750 

47  Collateral  undertakings 3750 

48  Surrounding  circumstances 3751 


1024 


INDEX. 


49  Usage  and  custom 3752 

50  Parol  for  other  purposes 3753 

51  Receipts  may  be  explained 3754 

52  Blank  indorsements  explainable. .   3755 

53  Deeds   shown    to    be  mortgages, 
when 3756 

54  Copy  deed  from  record,  when 2671 

55  Copy  of  recorded  fi.  fa 2667 

56  On  question  of  former  judgment..  2847 

57  Presumption  of  gift 2621  to  2623 

58  Admissions  of  executor  or  legatee.  2402 

59  Mistake  in  name  of  grantee 3330 

60  Presumption  where  crop  is  pois- 
oned    1460 

61  Books  of  Medical  Boards 1420 

62  Books  of  W.  &  A.  R.  R 980 

63  Of  tax  payers'  oath : 834 

64  Recitals  in  administrator's  deed. . .  2520 

65  Plats  of  County  Surveyors 619 

66  Discovery  at  law 3757 

67  Proceedings  for  discovery 3758 

68  Execution  and  return  of  interroga- 
tories       . .  3759 

69  Effect  of  default  in  party! '. ".  ..\. . .  3760 

70  Matters  of  privilege . . .'. 3761 

71  Laws,  resolutions,  and  journals. . .  3762 

72  Exemplifications 3763 

73  Records  and  public  documents 

3763  to  3777 

74  Acts  of  Congress  as  to  exemplifi- 
cations   3777 

75  Final  receipts  of  guardians 1837 

76  Of  administrators 2563 

77  Original  writing  to  be  produced. . .  3778 

78  Lost  writing,  how  proved 3779 

79  Production  of  books,  etc. .  .3457  to  3467 

80  Kotice  unnecessary,  when 3781 

81  Proof  of  paper    dispensed   with, 
when 3783 

82  Explanation  of  alterations 3782 

83  Proof  of  paper  by  attesting  witness  3784 

84  Proof  by  others,  when 3784 

85  Proof  in  other  cases 3785 

86  Handwriting,  proof  of 3786  3787 

87  Oral  testimony 3788  to  3820 

88  Attendance  and  fees  of  witnesses . 
3788  to  3795 

89  Competency  of  witnesses . .  3796  to  3805 

90  Examination  of  witnesses.. 3806  to  3820 

91  By  interrogatories  and  depositions 
3821  to  3835 

92  Perpetuation  of,  at  law 3836  to  3840 

93  In  Equity 3053  to  3056 

94  Rules  of,  in  Equity  cases. 4148 

95  Rules  of,  before  arbitrators 4178 

Examination  of  Witnesses. 

1  Law  regulating 3806  to  3820 

Exchange. 

1  Premium  on  prescribed  to  banks . .  1478 

2  Contract  of,   by  what  law   gov- 
erned   2614 

Executive  Department. 

1  Of  the  State 4944  to  4958 

2  Seal  of 73 

3  Messenger  of,  and  his  duties 116 


4  Officers  of,  exempt  from  militia  du- 
ty   1064 

5  Books  of 72 

Executive  Office. 

1  Where  to  be  kept 74 

Execution  of  Powers. 

1  Equity  jurisdiction  over  powers. .  3109 

2  Discretionary  powers 3110 

3  Defective  execution 3110 

4  Collusive  execution 3111 

5  Illusory  appointments 3112 

6  Consent  to  marriage  compelled. . .  3113 

7  Abuse  of  discretion 3114 

Executions. 

1  Against  holders  of  County  funds. .     558 

2  Against  defaulting  road  hands 666 

3  Are  garnishments,  when 668 

4  For  repair  of  bridges,  etc 715 

5  Form  of,  against  trust  estates 3306 

6  Amendment  of 3445 

7  Effect  of  amending 3445 

8  How  issued  and  levied 3576 

9  How  directed  where  Sheriff  is  a 
party 3577 

10  Affidavit  for  ca.  sa 3578 

11  Suspended  by  appeal 3579 

12  When  returnable 3580 

13  Must  follow  judgments 3581 

14  In  cases  of  ejectment 3582 

15  Against  whom  writs  of  possession 
go.... 3583 

16  May  be  framed  by  Judge 3584 

17  Levy  must  describe  property 3592 

18  What  property  taken  first 3593 

19  Defendant  may  point  out 3593 

20  Growing  crops  exempt 3594 

21  Exception 3594 

22  Notice  of  levy  on  land 3595  3596 

23  Land,  w^here  sold 3596 

24  Constables  C£in  not  sell  land 3597 

25  But  shall  return  levy  to  Sheriff. . . .  3597 

26  Dismissal  of  levy  satisfies,  when . .  3607 

27  Releasing  property,  effect  of 3608 

28  Allowing  junior  to  take  fund 3609 

29  Agreement  never  to  enforce 3610 

30  Stay  of  in  Superior  Court 3611  3612 

31  Rights  of  surety,  paying  off. 3613 

32  Stay  of,  in  Justice's  Court 4106 

33  Backing,  from  Justice's  Court. . . .  4106 

34  When  lost,  alias  may  issue 3912 

35  Forthcoming  bonds 3622  to  3624 

36  Illegality  of 3614  to  3621 

37  Sales  under 3598  to  3606 

Executors. 

1  Who  may  be,  and  how  appointed.  2404 

2  Non-resident  may  be,  when 2399 

3  Remuneration  of 2401 

4  Power  of,  before  probate  of  will . .  2403 

5  Oath  of 2407 

6  Marriage  of  female  abates  trust. . .  2408 

7  Husband  may  assume  the  trust. . .  2408 

8  Interest  of,  in  estate 2410 

9  Are  trustees  of  residuum 2410 

10  Required  to  give  bond,  when 2411 

11  Powers,  duties  and  liabilities 2412 

12  Rights  of,  where  there  are  several.  2413 


INDEX. 


1025 


13  ISTeed  make  no  inventory  or  returns, 
when 2385 

14  Admissions  of,  inadmissible 2402 

15  May  convey  by  attorney  in  fact. . .  2154 

16  Make  retm-ns  in  new  County,  when      36 

17  Rights  of  foreign  executors 2414 

18  Assent  of,  to  legacies 2415  to  2417 

19  May  compromise 2498  2500 

20  May  submit  to  arbitration.. .  .2498  2833 

21  May  appoint  attorney  in  fact 2498 

22  May  release  debtor 2498 

23  May  join  in  assignment 2499 

24  Limitation  of  suits  against 2871 

25  Attachments  against 3210 

26  Suits  on  bonds  of.  3307,  3308,  3310  3311 

27  Service  of  one,  when  sufficient. .  3312 

28  Pleas  peculiar  to 3423  3424 

29  Garnishments  against . . , 3497  3498 

30  Judgments,  how  entered  against. . 
3515  3516 

31  Appeals  by 3565 

32  Be  son  tort 2400 

33  Their  liability." 2406  2409 

34  Marriage  of  executrix  de  son  tort. .  2409 

35  Effect  of  such  marriage 2409 

36  Sales  by  executors 2412 

37  Law  of  administrators  apply  to. . .  2412 
Executory  Devises. 

1  Deiinition  and  law  of 2433 

Exemplary  Damages. 

1  Not  given  in  cases  ex  contractu. . .  2892 
Exemplifications. 

1  Of  records  and  office  papers.. 3763  3764 

2  Acts  of  Congress  relating  to 3777 

Expatriation. 

1  Right  of 49 

Ex  Post  Facto  Laws. 

1  Prohibited 4903 

Express  Companies. 

1  Tax  on 818 

2  Tax  returns  of,  how  made 823    828 

3  Where  to  be  sued 3333 

4  How  served  with  process 3334 

5  Chief  officer's  name,  how  posted.  3335 

6  Shall  give  special  receipts 4514 

7  Indictment  for  refusal 4514 

Extortion. 

1  Defined  and  punished 4434  4435 

Factories. 

1  Hours  of  labor  in 1875 

2  Contracts  for  excessive  labor  void.  1875 
Factors. 

1  Liability  and  lien  of 2085 

2  May  sue  on  contracts  for  principal  2183 
Failure  of  Consideration. 

1  May  be  pleaded 2706 

2  Effect  of,  when  partial 2706 

3  Plea  of 3421 

Falsification  of  Records. 

1  Punishment  for 4404 

False  Imprisonment. 

1  Definition  of 2939  4298 

2  By  several,  how  sued  for 2941 

3  Under  warrant— presumption. . , .  2940 

4  Indictment  and  punishment  for. . . 
4298  to  4300 

67 


False  Swearing. 

1  Definition  and  punishment.4393  to  4396 

2  Subornation  of 4397  4398 

3  Disqualifies  convict 4399 

Fear. 

1  Crimes  done  under,  excused 4238 

2  Excuses  homicide,  when 4265 

Fees 

1  Of  witnesses— collection  of.3789  to  3795 

2  Of  juries,  and  how  taxed 4063 

3  Of  masters  and  auditors 4145 

4  For  taking  interrogatories 3827 

5  For  perpetuating  testimony 3840 

6  For  abating  nuisances 4028  4029 

7  Of  processioners 2356 

8  For  medical  licenses 1427 

9  Of  health  officer 1409  1410 

Fees  of  Officers. 

1  Of  Comptroller  in  certain    cases 
99    102 

2  Of  Sheriff  in  Supreme  Court... 221  3640 

3  Of  County  Judge 312    313 

4  Of  County  Solicitor 319 

5  Of  Legislative  Officers 1639 

6  Of  Clerk  of  Supreme  Court... 3638  3639 

7  Of  Ordinaries 3643 

8  Of  Clerks  of  Superior  Court 3644 

9  Of  Clerks  of  Inferior  Court 3645 

10  Of  Sheriffs 3646 

11  Of  Sheriffs  in  County  Court 328 

12  Of  Jailors 3647 

13  Of  Justices  of  the  Peace 3648 

14  Of  Constables 3649 

15  Of  Coroners ,    3650 

16  Of  Coroners,  how  paid 635    636 

17  Of  County  Surveyors 2356  3651 

18  Of  County  Surveyors — how    paid 
616  to    618 

19  Of  County  Treasurers 3652 

20  Of  Notaries  Public 3653 

21  Of  Notaries,  how  paid 3653 

22  Statement  of,  and  receipt  for 3655 

23  Forfeiture  for  excessive 3656 

24  Table  of,  to  be  posted 3657 

25  Treble  costs  due,  when 3658 

26  Officer  dismissed  for  illegal  charge 

of , 3659 

27  Demanding  fees  not  due,  indictable  4611 

28  Of  Attorney  General. 1642 

29  Of  Solicitor  General.. .  .1640, 1641  1644 

30  Of  Solicitors,  how  paid 1643 

31  Of  Tax  Collector  and  Receiver. . .     939 

32  Of  Bailiffs  in  County  Court 334 

33  State  not  chargeable  with 3654 

Felons. 

1  Rewards  for  arrest  of 61 

2  Can  hold  no  office 4595  4915 

Felony. 

1  Definition  of. 4239 

2  Compounding,  forbidden 3000 

3  Must  be  prosecuted,  as  well  as  sued 

for 2919 

Females. 

1  Rights,  disabilities,  exemptions. . .  1650 

2  Domicil  of  married  women 1691 


1026 


INDEX. 


3  Punisment  for  using  obscene  and 
vulgar  language  in  presence  of. . .  4306 
Feme  Covekt. 

1  Domicil  of 1691 

3  Testamentary  power  of. 2375 

3  Contracts  of,  generally  void.  .2687  2688 

4  Crimes  by,  how  punished 4235 

5  Subject  to  husband 1743 

6  Rights  of. . .  .1744  to  1752,  1762  to  1764 

7  Under  marriage  settlements 

1765  to  1776 

8  Loans  to — liability  of  husband. . .  2107 
Fences  and  Enclosures. 

1  Requisites  of 1456  1457 

3  Stock  owner's  liability 1458  1459 

3  Liability  of  fence  owner 1458 

4  Poisoning  crops — presumption...  1460 

5  Water  courses  are,  when 1461 

6  Punishment  for  setting  fire  to 4530 

Ferries. 

1  Jurisdiction  over 346    710 

3  What  are  public  ferries 707 

3  Classification  of  public  ferries 708 

4  Right  to  establish 3207 

5  Legislature  can  not  establish 4940 

6  Militia  pass,  free  of  charge 1174 

7  Law  concerning 709  to    739 

Fieri  Facias. 

1  How  issued  and  returned.  .3576  to  3584 
3  Sales  under 3598  to  3606 

3  Satisfaction  of 3607  to  3610 

4  Stay  of 3611  to  3613 

.     5  Illegality  of 3614  to  3621 

6  Amendment  and  effect  of 3445 

Fines. 

1  In  County  Court,  how  disposed  of.     310 

2  For  neglect  of  road  duty 667 

3  For  violating  Sabbath,  disposition 

of 4495 

4  When  paid  and  how  disposed  of. . 
4560  4561 

5  Excessive  fines  prohibited 4900 

6  Limitation  of  suits  for 2874 

Firing  the  Woods. 

1  When  and  by  whom  done 1462 

2  Notice  of,  shall  be  given 1463 

3  Penalty  for  default 1464  1465 

Fire  Insurance. 

1  Law  regulating 2752  to  2775 

Fish  and  Fishing. 
1  Regulations  concerning. .  .1618  to  1620 
3  Inspection  of  fish 1569 

3  Punishment  for  poisoning  fish 4533 

4  Penalty  for  injuring  fish-ponds. . .  4533 
Fish-Ponds. 

1  Penalty  for  injuring 4533 

Fixtures. 

1  Defined 3193 

3  Detached,  become  personalty 3194 

3  Larceny  of. 4341 

Flour. 
1  Packing  and  inspection  of.  1561  to  1564 
3  Penalty  for  sale  of,  without  inspec- 
tion   1566 

Forcible  Entry  and  Detainer. 
1  Definition  and  punishment.4451  to  4453 


2  Summary  trial  by  jury 4014 

3  Jury  how  obtained 4014  4015 

4  Possession  and   force,  only  ques- 
tions.. . 4016 

5  Oath  of  jury 4017 

6  Restitution  of  possession 4018 

7  Service  of  non-residents 4020 

8  Bond  of  non-residents 4021 

9  Time  given  for  certiorari 4019 

10  Trial  no  bar  to  indictment 4022 

Foreclosure  of  Mortgages. 

1  On  real  estate 3886  to  3894 

2  On  personalty 3895  to  3903 

3  By  sureties  and  endorsers 2137 

Foreigners. 

1  Not  allowed  to  peddle 1631  1632 

2  Laws  relating  to 1655  to  1660 

Foreign  Bills  of  Exchange. 

1  Defined 3731 

2  Damages  on,  when  protested.2750  2751 
Foreign  Administrators. 

1  Privileges  of,  in  this  State.. 2573  to  2576 
Foreign  Corporations. 

1  Attachments  lie  against 3213 

2  Recognized  by  comity  only 1675 

Foreign  Executors. 

1  Privileges  of,  in  Graorgia. .  .2573  to  2576 
Foreign  Guardians. 

1  Privileges  extended  to 1856  to  1860 

FoREiGisr  Insurance  Companies. 

1  Agents  of  must  be  licensed 2799 

Forestalling. 

1  Punishment  for 4503 

Forfeitures. 

1  Convictions  do  not  work  general .  4899 

2  For  violating  license  law. .  .566  to    568 

3  For  crime  abolished 2634 

4  How  worked,  in  Gi-eorgia 2635 

5  Limitation  of  suits  for 2874 

6  Of  recognizances 4605 

Forgery  and  Counterfeiting. 

1  Kinds  of— punishment 4375  to  4388 

Former  Recovery. 

1  Upon  same  matter,  conclusive.2846  3426 

2  Parol  evidence  admissible 2847 

3  In  cases  of  tort 3008 

Forms, 

1  Of  afladavit,  bond,  and  attachment  3216 

2  Of  Habeas  Corpus 3937 

3  Of  pleading 3313  to  3319 

4  Of  affidavit  and  warrant 4618  4619 

5  Of  commitment 46il 

6  Of  divorce  verdicts 3507  3508 

t  Of  writ  of  error 4193 

8  Of  indictments 4535 

Fornication. 

1  Punishment  for 4460 

3  Absolved  by  marriage 4460 

3  With  negro — punishment 4487 

Forthcoming  Bonds. 

1  Made  valid 3623 

3  Shall  not  prejudice  plaintiff 3634 

3  In  cases  of  illegality 3632 

4  In  cases  of  claims 3678 

Franchises. 

1  Are  exclusive,  when 2208 


INDEX. 


102T 


2  In  or  over  lands,  are  personalty...  2211 

3  Grantee  takes  nothing  by  implica- 
tion   2331 

4  Bridge  and  ferry 2207 

Fkaud. 

1  Definition  of 2592  3116 

2  Actual  and  constructive 3116 

3  Concealment  amounts  to,  when. . .  2593 

4  Misrepresentation  is  fraud,  when . .  3117 

5  Suppression  of  truth  is 3118 

6  How  committed 2915  3119 

7  Confidential  relations 3120 

8  With  damage,  gives  action 2906 

9  Equity  jurisdiction  in  cases  of. . .  3115 

10  Inadequacy  of  consideration 3122 

11  Surprise  and  its  effects 3123 

12  Deceptive  use  of  trade  marks 3124 

13  Contracts  to  trammel  or  force  mar- 
riage   3125 

14  Secret  marriage  settlements 3126 

15  Voids  sales 2591 

16  Voids  contracts 2709 

17  Title  obtained  by,  good  to  one  with- 
out notice  of  the  fraud 2598 

18  Vitiates  awards,  deeds  and  judg- 
ments  2842  3121 

Fraudulent  Assignments. 

1  To  evade  taxes,  void 810 

2  What  void  as  to  creditors 1942 

3  Transfer  of  stocks  after  levy  void .  3223 
Fradulent  Levies. 

1  Punishment  for 4369 

Fraudulent  Seizures. 

1  By  pretended  government  agents .  4354 
Freedom  of  Speech. 

1  An  element  of  Liberty 4894 

Freedom  op  T"he  Press. 

1  Constitutional  right  of 4894 

Freight. 

1  Carriers  bound  to  receive 2043 

2  Special  receipt  for 4514 

3  Penalty  for  not  giving  receipt. . . .  4514 

4  Lists  and  bills  of,  how  made  out. .  2052 

5  Over  charges  of,  indictable 4513 

Freed  People. 

1  Law  concerning 1661  to  1669 

Fugitives  from  Justice. 

1  Shall  be  delivered  on  demand..  .56      57 

2  Delivery  suspended,  when 58 

3  How  dealt  with  before  demand. . .       59 

4  Execution  of  warrants  against.. . .       60 

5  Fees  of  arresting  officers,  and  how 
paid 3646 

Furnishing  Liquor  to  Minor  Son. 

1  Parents  right  of  action  for 2959 

G- AMBLERS. 

1  By  profession,  deemed  vagrants.. .  4476 
Gaming. 

1  Punishment  for 4466 

2  With  minors — punishment 4467 

3  With  bank  agents,  clerks,  etc 4468 

4  Players  competent  witnesses 4469 

5  Losses  by,  hov/  recovered 2712 

6  Parent  may  sue  for,  with  minors . .  2960 

7  Laws  against,  specially  charged. .  4470 


Gaming  Contracts. 

1  Are  void 2711 

Gaming  Houses. 

1  Punishment  for  keeping 4464 

2  Houses  may  be  broken  open 4471 

Gaming  Tables. 

1  Punishment  for  keeping. . . , 4465 

2  Allowing  minors  to  bet  at 4467 

Garnishments. 

1  In  County  Court 284 

2  For  costs  in  County  Court 335 

3  Against  employers  of  road  hands.  668 

4  For  unpaid  taxes 885,  3499  3500 

5  Partner's  interest  subject  to 1909 

6  In  cases  of  attachment 3226  to  3231 

7  Attachments  may  be  served  by. . ;  3221 

8  At  common  law 3481 

9  Affidavit  and  bond  of  plaintiff 3482 

10  Affidavit  of  agent  or  attorney 3483 

11  By  partners  and  joint  creditors. . .  3484 

12  How  and  by  whom  issued 3485 

13  Service  and  return  of 3485 

14  Against  persons  out  of  County. . . .  3486 

15  Proceedings  in  such  case 3486 

16  How  served  and  returned 3487 

17  How  dissolved 3488 

18  Money  raised  by, how  paid  over. .  3489 

19  Garnishee  liable  for  interest,  when .  3490 

20  Judgment  against  garnishee 3491 

21  Mode  of  answering 3492 

22  Collaterals  not  subject  to 3493 

23  Attorneys  at  law  subject  to 3494 

24  Receivers  exempt  from 3495 

25  Wages  not  subject  to 3496 

26  Against  executors  and  administra- 
tors  3497  3498 

General  Assembly. 

1  Legislative  power  vested  in 4912 

2  Who  may  not  be  members 4914 

3  Election  of  members,  how  judged 

of 4926 

4  May  punish  offenders 4927 

5  Exemption  of  members 4928 

6  Journals  of. 4929 

7  Bills,  how  passed 4930 

8  Acts,  how  signed 4931 

9  Adjournments 4933 

10  Oath  of  members 4933 

11  Votes  by  yeas  and  nays. 4934 

12  Bribery  disqualifies  members 4933 

13  Powers  of,  generally.. 4935 

14  New  counties  and  change  of  lines .  4936 

15  Pardons  by. 4938 

16  Shall  legislate  as  to  persons  of  color  4939 

17  Duty  of,  as  to  courts  and  jurisdic- 
tions    4939 

18  Restraints  on  power  of . . .  .4940  to  4943 

19  Election  for  members 1309  to  1322 

20  Who  may  vote  for 1303  4980 

21  Election  of   members,  how  con- 
tested   1358 

22  Time  and  place  of  meeting 167  4913 

23  Length  of  session 168  4913 

24  How  organized 169 

25  Oath  of  members,  how  taken 170 

26  Presiding  officers,  election  of 171 


1028 


INDEX. 


27  Doorkeepers  and  messengers 173 

28  May  appoint  special  agents 174 

29  Subordinate  officers 182    190 

30  Elections  by,  how  conducted 

172,  1363  to  1365  4981 

31  JDuty  of  Finance  Committee  of. . .     175 

32  Pay  of  members 178    179 

33  Pay  of  deceased  members 180 

34  Accounts  of  members,  how  audited    181 
General  Issue. 

1  Defined — what  amounts  to  plea  of  3406 
Geohgia. 

1  Boundary  of 15  to      19 

2  Jurisdiction  as  to  places 20 

3  Jurisdiction  over  persons 21 

4  Jurisdiction  of  cases  on  boundary 
line 39 

5  Who  are  citizens  of 46 

6  Who  can  not  become  citizens 48 

7  Suits  against,  how  defended 22 

Georgia  Military  Institute. 

1  Superintendent,  how  appointed .. .  1217 

2  His  rank  and  commission 1218 

3  His  salary,  and  how  paid 1239  1638 

4  Who  takes  his  place  in  his  absence  1219 

5  He  is  military  storekeeper 1220 

6  His  pay  as  such 1221 

7  Furnishing  Institute  with  arms 1222 

8  Board  of  Inspectors 1223 

9  Their  appointment  and  duty 1223 

10  Visitors,  appointment  and  dut}^  of.  1224 

11  Ineligibility  of  expelled  cadets 1225 

12  State  cadets 1226  to  1229 

13  Inspectors — quorum  —  meetings — 
vacancies 1230 

14  Expenses  of  boards , 1231 

15  Secretary  and  Treasurer 1232 

16  His  bond  and  duties 1232  1233 

17  Annual  report  of  Inspectors 1234 

18  Ineligibility  of  officers 1235 

19  Rules  of  the  Board 1236 

20  Appropriation  for  State  cadets. . . .  1238 

21  Resignation  of  officers 1240 

22  Suits  for  or  against,  how  brought.  1237 
Gifts. 

1  Essentials  of  valid  gift 2615 

2  Acceptance  of 2616 

3  Deeds  of  gift,  effect  of 2617 

4  Delivery  in  cases  of 2618 

5  Yoid  conditions  do  not  affect 2619 

6  When  void  as  to  creditors. . .  .1942  2620 

7  Void  as  to  purchasers,  when 2620 

8  Presumption  of,  to  children 2621 

9  Possession  of  land,  evidence  of, 
when 2622 

10  Loans  to  married  daughters 2623 

11  By  late  minors,  etc 2624 

12  For  illegal  purposes,  how  held 2625 

13  In  contemplation  of  death 2626 

14  To  evade  taxes,  are  void 810 

Good  Behavior. 

1  Warrant  and  bond  for 4651  to  4653 

Government. 

1  Departments  distinct 4911 

2  Protection  to  person  and  property 

the  duty  of 4890 


Governor. 

1  Qualifications  of 4946 

2  Election  of,  and  how  returned. . . . 
1324,1325  4945 

3  Inauguration 52 

4  Oath  before  General  Assembly.. 53  4948 

5  Office  and  residence 74      75 

6  Executive  power  vested  in 4944 

7  Shall  keep  official  seal 73 

8  Shall  supervise  public  property ...       65 

9  Shall  assign  rooms  of  Capitol. ...       65 

10  Shall  issue  grants  to  lands 64 

11  Shall  keep  certain  office  books ... .       72 

12  Shall  appoint  three  Aids 1134 

13  Shall  commission  officers 63 

14  Duty  as  to  vacancies 4951  4952 

15  Power  to  appoint  andremove.66  to      68 

16  May  appoint  two  Secretaries 4958 

17  May  appoint  Messenger 115 

18  Messenger's  duties 116 

19  May  employ  special  Messenger. . .     117 

20  May  employ  special  agents 69 

21  May  employ  Capitol  guards. .  .118    119 

22  May    appoint    commissioners    of 
deeds 62 

23  May  suspend  collection  of  taxes . .       70 

24  May  withhold  approval  of  accounts      71 

25  His  power  over  Treasurer's  office.       87 

26  His  power  as  to  contagions 1405 

27  His  duties  as  to  weights  and  meas- 
ures   1587 

28  Rewards  for  arrest  of  felons 61 

29  Shall  deliver  fugitive 56      57 

30  May  suspend  such  delivery,  when .       58 

31  His  power  to  reprieve  and  pardon  4950 

32  His  power  to  respite . .   4950 

33  Shall  see  to  execution  of  laws. ...      54 

34  Is  Commander-in-Chief 4949 

35  Use  of  military  by  him 55  1167 

36  Power  to  revise  and  veto  bills.4954  4955 

37  Shall  not  re-appoint  rejected  per- 
son   4953 

38  Shall  defend  suits  against  State ...      22 

39  Exempt  from  mandamus,  etc 3146 

40  Resignation,  how  made  known. . .     127 

41  Who  acts  in  cases  of  vacancy. . . .  4947 

42  Salary  of  Governor 1634 

Governor's  Messenger. 

1  Appointment  of 67    115 

2  His  duties 116 

3  His  salary 1634 

4  Special  Messenger 117 

Governor's  Secretaries. 

1  Their  appointment 67  4958 

2  Their  salaries 1634 

Grain. 

1  Inspection  of 1568 

Grand  Juries. 

1  Qualifications  of. 3841  3842 

2  Lists  of,  how  made  up 3842 

3  Jury  box  for 3842 

4  How  drawn — number  drawn 3843 

5  Number  impaneled 3844 

6  Precept  for  summoning 3845 

7  How  summoned— form  of  summons  3846 

8  Oath  of 3847 


INDEX. 


1029 


9  Oath  of  Bailiff  attending 

10  Duty  as  to  presenting  offenders . . . 

11  Foreman  may  swear  witnesses 

12  Duty  as  to  ballots  and  lists  of  vo- 
ters*  1317 

13  May  recommend  correction  of  tax 
digest 

14  Duty  as  to  County  records 

15  Duty  as  to  County  buildings 

16  Special  juries  taken  from 

17  Two  returns  of  "  no  bill "  by,  a  bar 

18  Other  law  as  to 3861  to 

19  For  County  Court 

20  Oath  of  in  County  Court 

Gkants. 

1  To  land,  issued  by  Governor 

2  Form  of 

3  Errors  in,  how  corrected.    . .  .2321 

4  Objections  to  correction 

5  Issue,  how  formed  and  tried 

6  Questions  of  law,  how  decided. . . 

7  Preservation  of  the  papers 

8  When  original  is  lost 

9  Corrected  grants  take  effect,  when 

10  Bona  fide  purchasers  protected. . . 

11  How  and  for  what  set  aside 

12  How  and  for  what  impeached 

13  Mistake  in  grantee's  name 

14  Presumptions  in  favor  of 

15  Grantee  takes  nought  by  implica- 
tion   

16  When  presumed 

17  Under  law  of  head  rights.  .2333  to 

18  To  land,  gives  no  ferry  franchise. 

19  Of  bridge  or  ferry  franchise  do  not 
include  each  other 


3848 
3849 
3850 

3853 

3851 

3852 

538 

3854 

4612 

3871 

285 

287 

64 
2320 

2322 
2323 
2324 
2325 
2326 
2327 
2328 
2328 
2329 
2330 
2330 
2331 

2331 
2332 

2346 

737 

738 
Gkeat  Seal  of  the  State. 

1  Where  kept  and  how  used 4957 

2  Description  of 81 

3  Official  commissions  under 124 

4  Forging  or  counterfeiting 4385 

Growing  Chops. 

1  Exempt  from  levy  and  sale 3598 

2  Exceptions 3598 

Guano. 
1  Inspection  of . .  1569 

GUARDIA^N    AND   WaRD. 

1  Kinds  of  guardians 1793 

2  ]S"atural  guardians 1794 

3  Testamentary  guardians 1795 

4  Widows  may  appoint 1796 

5  General  guardian,  how  appointed.  1797 

6  Of  non-resident  minors 1798 

7  Who  is  entitled  to  guardianship. .  1799 

8  Vested  in  Clerk  or  stranger 1800 

9  Guardians  of  bastards 1801 

.  10  Notice  of  application 1802 

11  Oath  and  bond  of  guardian 1803 

12  May  be  taken  and  given  in  vaca- 
tion  ■ 1803 

13  Additional  bond  required,  when. .  1805 

14  Other  sureties  given,  wUen 1806 

15  Proceeding     against     defaulting 
guardians 1807 

16  Complaints  by  sureties 1808 


17  Proceedings  in  such  case 1808 

18  Revocation    of  letters,  effect    on 
suits 1809 

19  Suit  on  guardian's  bond.  1810, 3309  3311 

20  Effect  of  the  judgment 1810 

21  Removal     of     trust     to    another 
County 1811 

22  Liability  of  sureties 1811 

23  Guardians  ad  litem 1812 

24  Power  of  guardian  over  ward 1813 

25  Duty  of  guardian 1813 

26  Annual  returns 1814 

27  Expenditures  allowed 1815 

28  Ward  bound  out,  when 1816 

29  Rebound  if  ill-used 1817 

30  Forfeiture  for  not  making  returns ,   1818 

31  Sales  by  guardians 1819 

32  Lands  of  wards,  how  rented 1820 

33  Guardian  may  contract  for  labor. .   1821 

34  Or  work  hands  together 1822 

35  Guardian  may  buy  plantation 1823 

36  Investments  by  guardians 1824 

37  Compensation  of  guardians 1825 

38  Double  commissions  prohibited . . .  1826 

39  Sureties  liable  though  appointment 
void 1827 

40  Contracts  of  guardian,  when  valid  1828 

41  Guardian  may  act  by  attorney. . . . 
1829,  2154  2498 

42  Settlements  with  guardians 1850 

43  Before  Ordinary 1830  1831 

44  Examination  and  hearing 1832 

45  Continuances 1833 

46  Other  proceedings 1834 

47  Powers  of  Ordinary 1835 

48  Decision,  how  enforced 1836 

49  Final  receipts 1837 

50  Settlement  reopened,  when....  1838  1839 

51  Resignation  of  guardians 1839 

52  Letters  dismissory  granted  when. .  1840 

53  Disposition  of  money  on  hand. . . .  1841 

54  Guardian  is  administrator  of  ward  1842 

55  Guardians  of  lunatics  et  al 1843 

56  Law  concerning  such  guardians..  1844 

57  Preference  to  wife 1845 

58  Commission,  how  obtained 1846 

59  Verdict  and  appointment 1847 

60  Appeal  from  the  finding 1848 

61  Second  application 1849 

62  Attendance  of  witnesses 1850 

63  Commission,  how  ended 1851 

64  Issue  how  made  and  tried 1852 

65  Law  applicable 1853 

66  Confinement  of  ward 1854 

67  At  instance  of  third  persons 1855 

68  Guardians  make  returns  in  new 
county  when  cut  off 36 

69  Rights  of  foreign  guardians.  1856  to  1860 

70  Removal  of  guardian  and  ward . . .  1861 

71  Guardians  may  compromise... 2498  2500 

72  May  join  in  assignments 2499 

73  May  arbitrate 2498  2833 

74  May  release  debtor 2498 

75  May  sue  for  torts  to  ward 2909 

76  Limitation  of  suits  against  guar- 
dian   2871 


1030 


INDEX. 


GUAKANTOR. 

1  Obligation  of,  differs  from  surety. .  2120 

2  May  give  notice  to  sue 2128 

3  May  hold  principal  to  bail 2129 

4  May  take  mortgage  for  indemnity  1953 

GUNPOAVDER. 

1  How  kept  in  cities 1192 

2  Keeping  of,  how  regulated 1471 

3  How  marked  for  transportation . . .  1469 

4  Seized  and  sold,  when 1470 

Habeas  Corpus. 

1  Suspended,  when 3933  4892 

2  Penalty  for  refusing 3955 

3  Who  may  grant 237    311 

4  Right  to,  exists  in  what  cases 3933 

5  Application  for,  what  it  must  state.  3934 

6  How  verified  and  presented 3935 

7  Must  be  granted,  when 3936 

8  Form  of  the  writ 3937 

9  Return  day 3938 

10  Service  of  writ 3939 

11  Arrest  of  detained  party 3940 

12  Return,  when  to  be  made 3941 

13  Process  to  be  returned,  when 3943 

14  Return  must  be  under  oath 3942 

15  And  show  transfer  of  custody 3944 

16  Traverse  of  return 3945 

17  Penalty  for  disobeying 3946 

18  Discharge  refused,  when* . . .  .3947  4650 

19  Wife  or  child,  how  disposed  of. . . .  3948 

20  When  proceedings  are  defective, .  3949 

21  Power  and  discretion  of  Court. . .  3950 

22  Costs — discretion  as  to 3952 

23  Record  of  proceedings 3953 

24  Notice  of  hearing 3954 

25  For  imprisoned  witnesses 3793  3951 

Half  Blood. 

1  Rule  of  inheritance  by 2448 

Handwriting. 

1  How  proved 3786  3787 

Harboring. 

1  Felons — punishment 4422 

2  Wife — husband  may  sue  for 2956 

3  Seamen — penalty  for 1558 

Head  Rights. 

1  Land  subject  to 2333 

3  Past  grants  valid 2334 

3  Laws  continued 2335 

4  Land  Court 2336 

5  Application  for  warrant 2337 

6  Who  has  preference 2338 

7  Caveat  and  trial 2339 

8  Warrant — surveyor's  duty 2340 

9  Certificate,  and  issue  thereon 2341 

10  Penalty  for  false  return 2342 

11  Record  of  plats 2343 

12  Grants,  when  to  issue 2344 

13  Applicant's  interest  exempt  from 
sale 2345 

14  Land  again  vacant,  when 2346 

Health,  Hospitals,  Infection,  and  Quar- 
antine. 

1  Hospitals,  how  established 1396 

2  Quarantine 1397  1400 

3  Quarantine  grounds 1398 

4  Sending  vessels  thither 1399 


5  Escaping  quarantine 1400 

6  Shipmaster  to  show  bills  of  health  1401 

7  Penalty  for  failure 1401 

8  Quarantine  of  inland  travelers. ...   1402 

9  Duty  of  pilots  entering  vessels ....   1403 

10  Quarantine  of  those  aboard 1404 

11  Proclamations  as  to  contagions. . .  1405 

12  Violating  quarantine,  indictable. . .  1406 

13  Concealing  small-pox 1407 

14  Fines  and  forfeitures 1408 

15  Certificate  of  performance  of  quar- 
antine    1409 

16  Fees  of  health  ofBcer 1409  1410 

17  Small-pox  hospitals 1411 

18  Quarantine  regulations 1412 

19  Expenses,  and  how  paid 1413  1414 

20  Distribution  of  vaccine  matter. . . .  1415 

21  Action  for  injuries  to  health 

2946  to  2954 

Hearsay. 

1  Law  as  to 3717  to  3729 

PIbirs  at  Law. 

1  Rules  for  determining  who  are. . . .  2448 

2  Realty  descends  to 2220  2447 

3  May  recover  realty,  when 2220  2449 

4  May  be  sued  by  administrator. . . .  2450 

5  May  sue  removed  administrator. . .  2476 

6  Of  bastards 1791  1792 

Hiring. 

1  Contract  of .2059  2076 

2  Title  and  right  of  hirer 2060 

3  Rule  of  duty  as  to  delivery 2061 

4  Obligation  of  bailor 2062 

5  Engagement  of  hirer 2063 

6  Yiolation  of  contract,  effect  of. . . .  2064 

7  Who  may  sue  for  torts 2065 

8  Loss  or  destruction  of  thing  hired 
2066  2075 

9  Hirer  can  not  remove  or  misapply  2067 

10  Reletting,  effect  of 2068 

11  Tiling  bird  exempt  from  sale 2069 

12  Hire  of  labor 2070 

13  Rule  of  duty  in  such  case ....  2071 

14  Title  to  thing  worked  on 2072 

15  Title  to  materials  for  work 2073 

16  Bailee  to  have  possession,  lien 2074 

Hog  Stealing. 

1  Punishment  for 4334  4335 

Holders  .of  JSTegotiable  Paper. 

1  Rights  of 2743  to  2749 

Holidays. 

1  Not  counted,  when 2747  3557 

Homicide. 

1  Definition — three  kinds  of 4253 

2  Justifiable  homicide 4264 

3  Fear  justifies,  when 4265 

4  In  defense  of  habitation  or  property  4266 

5  In  self-defense 4267 

6  Other  cases  of  justifiable  homicide  4268 

7  When  justifiable,  accused  acquit- 
ted  4269 

8  Of  husband  or  father— suit  for. . . .  2920 
Horse  Stealiisip. 

1  Punishment  for 4328  4830 

Hospitals. 
1  How  established 1397  1411 


INDEX. 


1031 


House  of  Rephesentatives. 

1  Hov/  composed 4921 

2  Qualification  of  members 4922 

3  Speaker  of,  how  elected 171  4923 

4  Clerk  of— his  duties 176 

5  Revenue  bills  originate  in 4925 

6  Has  sole  power  to  impeach 4924 

7  Door-keeper,  how  elected 173 

8  Messenger,  how  elected 173 

Hunting, 

1  Punishment  for  illegal 4374 

Husband  and  Wife. 

1  Husband  is  head  of  family 1743 

2  Wife  is  subject  to  husband 1743 

3  Wife's  property  remains  hers 1744 

4  Husband  may  sue  for  torts  to  wife 
1745  2909 

5  Wife  may  sue  therefor,  when 1745 

6  Acquisitions  of  wife  are  her  own 
1744  1746 

7  Husband  bound  for  wife's  support  1747 

8  Agency  of  wife  presumed,  when. .  1747 

9  Husband  bound  for  necessaries  fur- 
nished wife,  when 1748 

10  Wife  may  be  agent  for  husband. . .  1749 

11  Wife,  how  made  free  trader 1750 

12  Husband  sole  heir  of  wife 1751  2448 

13  Wife  sole  heir  to  husband,  when. . 
1752  2448 

14  Wife  may  control  her  earnings. . .  1762 

15  Wife's  paraphernalia  protected...  1763 

16  Litigation  between 1764 

17  Marriage  contracts  and  settlements 
1765  to  1776 

18  When  wife  may  sue  and  be  sued. .  1774 

19  Liability  of  husband  for  torts  of 
wife 2910 

20  Wife  may  sue  for  homicide  of  hus- 
band  2920  2954 

21  Husband   may   sue  for   adultery 
•with  wife 2957 

22  Suit  for  abducting  or  harboring 
wife 2956 

23  Witnesses  for  and   against  each 
other 3798 

24  Exception  as  to  criminal  cases 3798 

25  Absence  excuses  bigamy,  when . . .  4457 

26  Punishment  for  whipping  wife 4488 

27  Wife  may  bind  husband  to  keep 
peace 4658 

28  Relation  of  amongst  persons  of  col- 
or   1665 

29  Colored  ministers  may  marry  col- 
ored persons 1666 

Idiots. 

1  Incapable  of  crime 4232 

2  Instigators  of,  punishable. 4233 

3  Incompetent  witnesses 3800 

4  Paupers  found  to  be,  how  dealt 
with 795 

5  Guardians  for — law  concerning . . . 
:..1843to  1855 

Ignorance. 

1  Of  law,  does  not  excuse 7 

2  No  ground  of  relief  in  Equity.3066  3072 


Illegal  Hunting. 

1  Punishment  for 4374 

Illegality  op  Executions. 

1  How  taken 3614 

2  When  taken 3615 

3  Return  and  trial  of 559  3616 

4  Damages  for  delay 3617 

5  Does  not  lie  against  tax  fi,  fa. . . .  3618 

6  Property,  how  sold  pending 3619 

7  Who  may  file 3620 

8  May  go  behind  judgment,  when. .  3621 

9  Affidavit  of,  amendable 3450 

10  Forthcoming  bonds  in  cases  of. . .  3622 

Illegal  Marriages. 

1  Punishment  for  celebrating 4482 

2  Penalty  for  joining  whites    and 
colored 4483 

Illegal  Voting. 

1  Punishment  for 4484  4486 

2  Duty  of  Grand  Jury  as  to 1317 

Illegitimate  Children. 

1  Laws  concerning 1788  to  1792 

Impeachment. 

1  Of  witnesses— law  as  to. .  .3813  to  3820 

2  Of  officers 4920  4924 

3  Of  grants 2830 

Imprisonment. 

1  What  is  false  imprisonment.  .2939  4298 

2  Under  warrant — presumption 2940 

3  False  imprisonment  by  several 2941 

4  Punishment  for  false  imprisonment  4299 
Imprisonment  for  Debt. 

1  Of  insolvents,  prohibited 4908 

2  Insolvent  debtors,  law  as  to.l985  to  2006 
Incest. 

1  Definition  and  punishment 4499 

Incumbrances. 

1  Liens,  law  of. 1959  to  1984 

2  Mortgages 1944  to  1958 

Indentures  op  Apprenticeship. 

1  How  executed  and  recorded 

1867  to  1869 

Indictment, 

1  When  sufficient — form  of 4535 

2  Exceptions  to  form,  when  taken. .  4536 

3  Accused  shall  have  copy  of. .  .4541  4542 

4  Prosecutor's  name  indorsed  on . . .  4537 

5  Demurrers  and  special  pleas  to. . .  4545 

6  Arraignment  and  plea  entered  on  4547 

7  Limitations  of  Indictments 4571 

8  Venue  of... 4576  to  4578 

9  Change  of  venue — when  allowed .  4593 

10  Barred  by  two  returns  of  "  no  bill "  4612 

11  Nolle  prosequi — when  allowed 4555 

12  In  County  Court 301 

13  Time  of  trial  in  County  Court. . . .     302 
Indorsement.- 

1  Contract  of. 2738 

2  May  be  limited 2735 

3  Need  not  be  under  seal 2734 

4  Must  be  denied  on  oath 2804 

5  Proof  of. 2804 

6  In  blank,  may  be  explained 3755 

Indorsers. 

1  May  limit  liability 2735 

3  Implied  warranty  of 2736 


1032 


INDEX. 


3  Undertaking  of 2738 

4  May  be  sued  with  maker..2740, 3277  3328 

5  Shall  have  notice,  when 2739 

6  Holidays  and  days  of  grace... 2741  2742 

7  Of  judgments — when  liable 2735 

8  Attachments  in  favor  of 3211 

9  Shall  control  judgments  paid  by 
them 2144 

10  Ne  exeat  in  favor  of. 2133 

11  May  give  notice  to  sue 2128 

12  May  hold  maker  to  bail 2129 

13  Judgments,  how  entered  against. .  3514 
Infancy. 

1  Plea  of,  personal  to  infant. 2690 

2  No  defense  in  cases  of  tort 3009 

Infanticide. 

1  Counsellors  of,  how  punished 4270 

2  Concealing  death,  not  proof  of. . .  4271 

3  Punishment  for  concealing  death.  4272 
Infants. 

1  Under  fourteen  years  can't  make 
will 2371 

2  May  be  appointed  executor 2404 

3  Bound  by  contracts,  when...  2698  2691 

4  Exemption  of  is  personal 2690 

5  May  make  marriage  contracts. . . .  2692 

6  Deeds  of,  voidable 2652 

7  Actions  by,  not  void 3198 

8  Kesponsible  for  crime,  when.. 4229  4230 

9  Instigators  of,  punishable 4233 

10  Concealing  death    of,   how    pun- 
ished   4272 

Infections. 
1  Laws  to  prevent 1396  to  1415 

iNFEmoR  Courts. 

1  Consist  of  five  Justices 336 

2  Rule  of  decision 341    342 

3  Suits  where  three  Justices  are  dis- 
qualified       344 

4  Maj^  punish  contempts 345 

5  Power  as  to  improper  tax 562 

6  Have  oversight  of  the  poor 776 

7  May  discharge  insolvent  criminals  4603 

8  For  County  purposes.. 346,  4052  to  4064 

9  Adjournments  of. 3179  3180 

iNPEmOE.  GOURTS  FOR   CoUNTY  PURPOSES. 

1  Exclusive  jurisdiction 346 

2  Care  of  the  poor 776 

3  Yf  hen  and  where  to  meet 4052 

4  May  adjourn  over 4053 

5  Special  meeting,  how  called 4054 

6  Sheriff  shall  attend 4055 

7  Clerk  of 4056 

8  General  jurisdiction 4057 

9  Applications  to,  how  made 4058 

10  Docket  of 4059 

11  Notice  to  parties 4060 

12  Minutes  of  proceedings 4061 

13  May  punish  contempt 4063 

14  Amendments 4064 

Informers. 

1  Limitations  of  suits  by 2874 

2  First  suing,  have  preference 2845 

Inherent  Rights. 

1  Not  denied,  though^not  enumerated  4910 


Inheritance. 

1  Rules  of 2448 

2  By  bastards 1791  1792 

3  By  legitimate  children 1778 

4  By  adopted  children 1779 

Initials. 

1  When  allowed  in  pleadings 3195 

Injunctions. 

1  By  whom  granted 237 

2  For  what  purpose  granted 3149 

3  Granted  in  vacation 3150 

4  How  granted. 3150 

5  Dissolution  of  at  chambers 3151 

6  Against  proceedings  at  law 3152 

7  To  restrain  trespass ; . . . .  3153 

8  Answer  used  on  motion  to  dissolve  3154 

9  Not  dissolved  by  verdict,  when. . .  3155 

10  Second  injunction 3156 

11  Restrain,  do  not  compel 3157 

12  When  made  perpetual 3158  3167 

13  Enforced  by  attachment 3169  4159 

Injuries. 

1  General  Principles 2900  to  2916 

2  Physical  injuries 2917  to  2932 

3  Libel  and  slander 2923  to  2930 

4  Malicious  prosecution 2931  to  2938 

5  False  imprisonment 2939  to  2941 

6  Malicious  arrest 2942  to  2945 

7  Nuisances  and  injuries  to  health 
2946  to  2954 

8  To  real  estate 2963  to  2971 

9  To  personalty 2972  to  2977 

10  By  railroad  companies 2978  to  2995 

Inn  Keepers. 

1  Law  relating  to .2088  to  2096 

Inquests. 

1  In  what  cases  taken 630 

2  Dead  bodies  may  be  disinterred. . .     631 

3  Unnecessary  in  what  cases 633    634 

4  Costs  of,  by  whom  paid 635    636 

5  Justice   of  the  Peace   may  take, 
when 637 

6  Dead  body  may  be  removed  for.. .  4039 

7  Precept  for  jury,  how  executed. . .  4030 

8  Fining  defaulting  jurors 4031 

9  Number  of  jury 4032 

10  Oath  of  jury 4033 

11  Coroner's  charge — powers  of  jury.  4034 

12  Witnesses,  how    summoned    and 
sworn 4035 

.  13  Recognition  of  witnesses 4036 

14  Return  of  inquisition 4037 

15  Examination  for  poison 4038 

Inquiry. 

1  Courts  of,  how  regulated ..  4633  to  4650 
Insane  Persons. 

1  Disabilities  of 1653 

2  May  make  will,  when 2372 

3  Incapable  of  contracting 2687  2693 

4  When  responsible  for  crime 4231 

5  Instigators  of  punished 4233 

6  Not  to  be  tried  for  crime 4579 

7  Guardians  for 1843  to  1845 

8  Commission  and  guardianship... 

1846  to  1853 

9  Confinement  of 1854  1855 


INDEX. 


1033 


Insaistity. 

1  Plea  of,  how  tried. 4234 

2  Party,  how  disposed  of  if  plea  sus- 
tained   4234 

3  Effect  of  after  sentence  of  death . .  4572 
Insolvent  Criminals. 

1  Inferior  Court  may  discharge 4608 

Insolvent  Debtpes. 

1  How  discharged 1985 

2  May  give  bond 1986 

3  Proceedings  on  failure  to  appear. .  1986 

4  Kotice  to  creditors 1987 

5  Schedule  of  estate 1988 

6  Objections  to  discharge 1989 

7  Trial  of  issue 1990 

8  Verdict  and  its  effect 1991 

9  Oath  of  debtor 1992 

10  Discharge  and  its  effect 1993 

11  Oath  is  perjury  if  false 1994 

12  Shall  deliver  scheduled  estate 1995 

13  Disposition  thereof 1996 

14  Summary  discharge  of 1997 

15  Who  may  administer  oath 1998 

16  Issue  of  fraud,  how  tendered 1999 

17  Verification  of  issue 2000 

18  Trial  of  issue  at  once 2001 

19  Continuance 2002 

20  Oath  of  plaintiff  to  continue 2003 

21  Bond  of  defendant 2004 

22  Verdict  on  issue,  effect  of 2005 

23  Judgment  on  bond 2006 

24  Schedule  amendable 3451 

25  Detention  of,  forbidden 4908 

Inspection  and  Inspectoss. 

1  Inspectors,  how  appointed 

1560,1569  1576 

2  Flour  merchantable,  when 1561 

3  Size  and  contents  of  barrel 1562 

4  Flour,  how  inspected  and  marked.  1563 

5  Fees  of  inspector 1563 

6' Penalty  for  fraudulent  packing...  1584 

7  How  far  inspector  may  buy . .'. 1565 

8  Selling  without  inspection 1566 

9  Oath  of  inspector 1567  1577 

10  Provisions  of  law  as  to 1569 

11  Power  of  municipal  corporations.   1575 

12  Inspection  of  liquors 1576  to  1583 

13  Drugged  liquors,  disposition  of. . .  1577 

14  Penalty  for  selling  drugged  liquors  1578 

15  Evading  inspection— penalty 1579 

16  Fees  of  inspector  of  liquors 1580 

17  Penalty  for  making  drugged  liquors  1581 

18  Monthly  inspection  of  liquors 1582 

19  Selling  without  inspection 1583 

20  Inspector    of     timber   indictable, 
when 4512 

Insurance. 

1  Fire  insurance,  contract  of 2752 

2  Subjects  of  insurance 2753 

3  By  one,  for  another 2754 

4  Of  property  changing 2755 

5  Construction  of  contract 2756 

6  Loss  defined 2757 

7  Losses  unknown  to  the  parties 2758 

8  Diligence  of  the  assured 2759 

9  Good  faith  of  the  application  for. .  2760 

68 


10  Misrepresentation    avoids    policy, 
when 2761  2764 

11  Concealment  avoids  policy,  when.  2762 

12  Increase  of  risk,  effect  on  policy. .  2768 

13  Alienation  of  the  property 2765 

14  Policy  to  several,  assignable  to  one  2766 

15  Sale    of  property  avoids    polic^^, 
when 2767  to  2769 

16  Second  insurance 2770 

17  Insurer  may  prescribe  regulations.  2771 

18  Amount  of  recovery  in  case  of  loss  2772 

19  Value  of  property,  how  estimated.  2773 

20  Privilege  to  rebuild 2774 

21  Insurer  may  recover  money  paid, 
when 2775 

22  Life  insurance,  contract  of 2776 

23  By  whom  life  insurance  may  be  ta- 
ken   2777 

24  Assured  may  direct  payment 2778 

25  Principles  applicable  to  life  insur- 
ance   2779 

26  Self-caused  death  releases  insurer.  2780 

27  Time  how  counted 2781 

28  Marine  insurance,  contract  of. .....  2782 

29  Unlawful  commerce 2783 

30  Double  insurances 2784 

31  Warranty  of  assured 2785 

32  Illegal  voyage  avoids  policy. ......  2780 

33  Deviations  avoid  policy,  when... .  2787 

34  "  Perils  of  sea  "  defined 2788 

35  Continuance  of  risk 2789 

36  Increase  of  risk,  effect  of. 2790 

37  Open  policies  defined 2791 

38  Value,  the  subject  of  proof 2792 

39  Rules  applicable  to  marine  insur- 
ance   2793 

40  Muttml  insurance,,  contract  of. . . .  2794 

41  By-laws 2795 

42  Reduction  of  funds— liability  for..   2797 

43  Officers  are  agents  of  all 2796 

44  Good  faith  required 2797 

45  Agents  of  foreign  companies  to  be 
licensed 2798 

Insurance  Companies. 

1  Where  to  be  sued 3331 

2  Tax  returns  of,  how  made 823    828 

3  Process  against,  how  served 8332 

4  Tax  on  foreign  companies 817 

5  Agents  of  foreign,  to  be  licensed. .  2798 

Insurrectionary  Publications. 

1  Punishment  for  circulating 4252 

Insurrection. 

1  Definition  and  punishment.4249  to  4251 

2  By  convicts  and  chain-gangs 4723 

3  Circulating  papers  to  excite 4252 

4  Use  of  military  to  suppress.  ..1167  1170 

5  Effect  of  on  reading  bills 4930 

Intention. 

1  To  commit  crime,  how  manifested  4228 

2  Looked  to  in  construing  laws 4 

3  Cardinal  rule  in  construing  con- 
tracts  2713  2714 

4  Of  testators  in  wills  .  .".2360,  2420  2438 
Interest  and  Usury. 

1  Lawful  interest. 2073 


1034 


INDEX. 


2  Rate    of    interest    prescribed    to 

banks 1478 

8  Usury  defined 2024 

4  Effect  of  usury 2025 

5  Interest  from  date  is  not  usury. . .  2026 

6  What  law  governs  as  to  interest. .  2027 

7  Judgments  bear  interest 2028 

8  Application  of  payments  to  inter- 
est   2029 

9  Liquidated  demands  bear  interest.  2030 

10  Interest  allowed  on  accounts,  when  2031 

11  Contracts  for  rents  bear  interest. . .  2262 

12  Interest,  how  charged  against  ad- 
ministrators   2560  to  2562 

13  Damages  may  be  increased  by  in- 
terest   2894 

14  Plea  of  usury  must  set  forth  what  3419 

15  Testimony  ofparties  as  to  the  usury  3420 

Interference  with  Railroads. 

1  Punishment  for. 4370  4371 

Interference  with  Telegraph  Compa- 
nies. 

1  Punisliment  for 

Interlocutory  Decrees. 

1  How  rendered  in  Equity  cases 

Internal  Improvement. 

1  Legislature  can  not  compel  contri- 
bution to 

Interpleader.  ^ 

1  In  what  cases  compelled. . .  .3168 
Interrogatories  and  Depositions. 

1  On  what  state  of  facts  allow^ed . . . 

2  Can  not  be  used,  if  grounds  cease. 

3  Commission,  how  obtained 

4  When  taken  without  service 

5  Service  of  several  parties. .... 

6  Selection  of  commissioners 

7  Their  qualifications  and  fees. .... 
■  8  Must  be  fairly  taken ...   

9  Where  to  be  executed 

10  Rules  for  executing 

11  Witness,  how  compelled  to  ausv/er 

12  Writing  answers,  memoranda .... 

13  How^  received  and  opened 

14  Must  be  returned  if  executed. . 

15  Failure  to  return  is  a  contem,pt. . . 

16  Exceptions  to,  when  taken". 

17  Perpetuating  testimony  at  law. . . . 

18  Application  for  order. ........... 

19  Depositions  to  be  filed . . 

20  Record  of  application  and  order. . 

21  Effect  of  the  testimony , . . . 

22  Fees  of  Clerk  and  Commissioner. 

23  In  Justices'  Court 

24  Before  Arbitrators 


Intruders  on  Camp-Grounds. 
1  Proceedings  to  eject 

Intruders  on  Land. 

1  How  ejected 

2  Affidavit  of  land  owner 

3  Affidavit  of  tenant 

4  Sheriff  may  administer  oath 

5  Return  of  aflidavits,  and   trial  of 
issue 

G  Verdict  and  writ  of  possession. . . 


4372 

4142 

4943 

3169 

3821 
3822 
3823 
3824 
3825 
3826 
3827 
3828 
3830 
3832 
3829 
3831 
3833 
3834 
3834 
3835 
3836 
383  ti 
3837 
3838 
3839 
3840 
4094 
4176 

4004 

4000 
4000 
4000 
4001 

4002 
4003 


7  Intruders  on  camp-grounds,  how 

ejected 4004 

Invasion. 

1  Use  of  military  to  repel  . : 1167 

2  Effect  of  on  the  reading  of  bills.. .  4930 
Inveigling. 

1  Children,  punishment. ...........  4302 

2  Seamen,  penalty , 1556 

Issue  and  Increase. 

1  Follow  condition  of  mother,. 2216 

2  Belong  to  owner  of  mother 2216 

3  Increase  of  animals  on  land, 2215 

4  Increase  of  annuals  on  land. 2215 

5  Increase  in  estates  for  life 2230 

6  Peiidente  lite,  recoverable, 3431 

Issues. 

1  Collateral,  how  tried 3554  3555 

2  No  appeal  in  such  issues 8554 

3  New  trials  of  collateral  issues  . . .  3554 
Itinerant  Persons. 

1  May  be  followed  with  bail  process  3351 

2  Chai'ged  with  crime,  may  be  fol- 
lowed   4624 

3  Where  to  be  sued 3339 

4  Domicil  of 1690 

Jails. 

1  How  erected  and  repaired 531 

2  Are  in  Sheriff's  keeping ..........     533 

3  Size,  strength,  and  apartments  of .     535 

4  Tax  to  build  and  repair 536 

5  Exempt  from  taxation.      ... .....     796 

6  Prison  bounds,  how  laid  off 2007 

7  Aiding  escapes  from  punished. . . .  4414 
Jail  Bounds. 

1  Law  concerning. . . . . . 2007  to  2012 

Jail  Fees. 

1  Table  of 3647 

2  County  Judge  shall  revise 310- 

3  Of  one  in  jail  bounds,  how  paid. .  2012 

4  In  civil  cases,  pa3^ment  of. . .  .3352  3353 

5  Where   prisoner    is    sent    out    of 
county 4642  46-43 

Jailors. 

1  Sheriffs  are,  but  may  appoint^ 392 

2  Bond  and  oath  of 393 

3  Record  of  bond  and  oath 394 

4  Sheriffs  liable  for  misconduct  of... .     398 

5  Duty  of  as  to  U.  S.  prisoners. ....     395 

6  Fees  of  jailors 3647 

7  Fees  of  one  in  jail  bounds,  how  paid  2012 

8  Punishable  for  rejecting  prisoners.  4418 

9  Cruelty  of,  how  punished 4405 

Joint  Obligors  and  Promisors. 

1  Suits  against 3271  to  3278  4972 

2  Ne  exeat  in  favor  oi.  .\ 3159 

3  Where  to  be  sued 3327 

Joint  Offenders. 

1  May  sever  on  trial 4595 

2  Effect  of  continuance  by  c^ie 4596 

3  Confessions  of,  effect  of   .  .    3743 

Joint  Stock  Companies. 

1  Suits  against,  ho vvregulated.3291  to  3300 
Joint  Tenancies. 

1  Are  abolished  in  Georgia 2274 

Judge  of  County  Court. 

1  Law  relating  to 304  to    313 


INDEX. 


1035 


3  Election  of... 805  4977 

3  May  confess  judgment  in  his  Court  3543 
Judges  of  SurERiOR  Courts. 

1  Election  and  official  term. 333,  336  4063 
3  Oath  of 333 

3  Vacancies,  how  filled 334. 

4  Special  election,  when  held 335 

'5  No  special  election,  wken 337 

6  Who  are  eligible 338 

7  Shall  not  practice  law 339 

8  Not  ousted  by  change  of  circuit. . .     330 

9  When  and  where  to  hold  Court. . .     331 

10  Jurisdiction  co-extensive  with  the 
State 333 

11  Duties  of,  generally 333 

13  Shall  Avrite  charges,  when 334 

13  Written  charge  to  be  filed 335 

14  Authority  of, 337 

15  Functions  in  other  circuits 238 

16  Powers  out  of  term., . . 339 

17  When  disqualified,  who  presides. .     340 

18  Parties  may  select  Judge,  when.. .     340 

19  Special  cause  for  impeaching 341 

20  Have  no  power  out  of  the  State. .     343 
31  May  administer  oaths. ...........     337 

23  May  appoint  receivers 265 

23  May  order  investment  of  funds. . .     266 

24  In  what  cases  disqualified. 193 

35  How  qualified  and  commissioned 
1340  1341 

36  Failure  to  qualify  makes  vacancy.   1343 
27  May  confess   judgments  in  their 

Courts 3542 

38  Exempt  from  military  duty 1064 

29  Shall  report  defects  in  Peiial  Code.  4569 

30  May  establish  rules  of  practice... .  3181 

-31  All  other  rules  void 3183 

•33  Giving  opinion  on  facts,  error. . . .  3183 

33  Special  charge  of  laws.  .3184,4470  4498 

34  May  frame  executions 3584 

35  Salary  of  Judges 1640 

36  Shall  sign  bills  of  exception.  .4193  4194 

37  Proceedings,  if  bill  is  not  true 4197 

38  How  dealt  with  for  refusing  to  cer- 
tify proper  bills  of  exception 4198 

Judges  of  Supreme  Court. 

1  Who  are  eligible 301 

3  Elected  at  what  time 1364 

3  Number  and  term  of  office 198 

4  Oath  of 199 

5  Chief  Justice — who  is 300 

6  Two  may  hold  Court 300 

7  V^acancies,  how  filled 303 

8  Wiien  Incompetent,  who  holds  Co't    303 

9  Unanimous  djcision,  how  changed    204 

10  Ruleof  decision,  where  two  preside    206 

11  Exempt  from  military  duty 1064 

12  Salaries  of 1640 

Judgments. 

1  When  and  by  whom  entered  up. .  3510 

2  Suspended  by  appeal 3511  3512 

3  Principal  and  interest  distinct 3512 

4  How  entered  on  appeals 3513 

5  Against  sureties  and  indorsers 3514 

6  Against  executors  and  administra- 
tors  3515  3516 


7  On  bonds 8517 

8  In  favor  of  and  against  firms.  1889  3518 

9  Are  conclusive,  when. .  .3846,  3519  3773 

10  At  same  term  are  equal 3520 

11  Rank  of  affirmed  judgments 3531 

13  Dignity  and  binding  force  of 3533 

13  At  common  law,  prevents  aliena- 
tion   3523 

14  Do  not  bind  choses  in  action 3524 

15  Lien  of  on  transferred  property. . .  3535 

16  On  property  removed  ami  returned  3536 

17  Lien  of,  in  trespass 3537 

18  Lien  of,  on  land  partly  paid  for. . .  3538 

19  Arrest  of  judgments — motion 3539 

30  Nature  of  motion  to  arrest 3580 

31  For  defect  in  pleadings 3531  3533 

33  Obtained  by  perjury,  how  set  aside  3533 

33  Motion  to  arrest,  where  made 3534 

34  How  attacked 3535,  3538  3776 

35  Of   Courts,   without    jurisdiction, 
void 3536 

36  Confession  of  judgment. .  .3541  to  3543 

37  By  default,  and  their  effect 3405 

38  On  open  accounts,  without  proof, 
w^hen 3405 

39  In  ejectment,  when  conclusive....  3366 

30  Lien  of,  in  trover 3034  3537 

31  Lien  of  on  future  interest  in  per- 
sonalty  3583 

33  Confessed    by    partnership    void, 

when 1939  1930 

33  In  attachment,  when  general 3353 

34  When  m  rem  only 3352 

35  In  attachment,  how  set  aside 3341 

36  When  set  aside  in  equity.3074, 3131  3537 

37  Against  Connties,  how  paid 543 

38  Bear  interest 2028 

39  May  be  amended 3444 

40  Transfer  of 2735,  3539  3540 

41  Need  not  be  renewed  on  Court  roll  3544 
43  Dormant  judgments,  renewal  of. .  3545 

43  Debt  on,  where  brought 3546 

44  A^cit'6  facias  to  revive,  where  taken 
3547  3548 

45  How  served  on  non-residents 3549 

46  Scire  facias  in  name  of  assignee. ,  3561 

47  When  revived  at  first  term 3550 

48  Limitations  of  actions  on 3863  2863 

49  When  admissible  in  evidence 

3773  to  3775 

50  In  County  Court  may  be  moulded.     395 

51  In  Justice's  Courts 4097 

53  For  rent,  may  be  taken   at  first 

term 2363 

Judicial  Department. 

1  Of  the  State 4959  to  4979 

Judicial  Districts  and  Circuits. 

1  Number  of 44 

Judicial  Power. 

1  Where  vested 191,  4959  to  4979 

3  Provisions  in  regard  to. . . .  .191  to  197 
Judicial  Sales. 

1  Eff'ect  of,  in  passing  title 2577 

2  Title  by  is  original 2578 

3  Memorandum  of,  unnecessary. . . .  2579 

4  Caveat  emptor  applies  to 3580 


1036 


INDEX. 


5  Sale  officer  liable  for  fraud 2580 

6  Warranty  and  its  effect 2580 

7  Purchaser  may  enforce  covenants.  2581 

8  Purchaser  to  have  possession  of 
land 2582,  3601  3602 

9  Seizure  of  personalty  before  sale. .  2583 

10  Future  interests  in  personalty  not 
subject 2583 

11  Of  stocks,  how  effected 2584 

12  Effect  of  irregularities 2586 

13  Under  execution 3598  to  3606 

14  Title  by  sale  officer's  successor. . .  2585 
Juries  and  Juroks. 

1  Qualifications  of  Grand  Jurors . . . 
3841 


2  How  drawn  and  summoned.  .3843 

3  Oaths  of  Grand  Jury  and  their 
Bailiff, 3847 

4  Power  and  duty  of  Grand  Juries . 
.,.3849  to 

5  Special  juries,    how     made    and 
sworn 3854 

6  Qualifications  of  Petit  Jurors. .... 

7  How  selected,  drawn,  and  sum- 
moned  

8  Oath  of  Petit  Jurors 

9  Oath  of  Bailiff  to  Petit  Juries 

10  Juries  how  drawn  out  of  term.. . . 

11  Tales  Jurors 

12  Juries  stand   over  on  failure    of 
Court 

13  Lists  of,  when  made  out 

14  Fined  for  contempt 

15  May  have  refreshments 

16  Competency  where  County  is  party 

17  Who  is  incompetent  to  try  divorces 

18  Defaulting  jurors, how  dealt  with. 

19  Oath  of  in  claim  cases 

20  Provisions  for  pa5nng 

21  Who  exempt  from  jury  duty 

22  Plow  made  up  when  box  is  lost. . . 

23  Jury  fees 

24  In  cases  of  nuisances 

25  In  cases  of  inquests 4030  to 

26  In  Justice's  Courts 

27  For  new  County 

28  For  County  Court 285 

29  Oath  of  in  County  Court 

30  How  made  up  in  criminal  cases. . 
4584  to 

31  Challenges  of  jurors 

4549,  4550,  4587 

32  Oath  of,  in  criminal  cases 

33  Judges  of  law  and  fact,  in  criminal 
cases 

JumSDICTION. 

1  Of  the  State,  as  to  places  and  per- 
sons  20 

When  streams  bound  Counties.. 37 

In  cases  on  boundary  lines 

Of  Supreme  Court 

Of  Superior  Courts  

6  Of  Judges  of  Superior  Courts.. 232 

7  Of  County  Courts 274  to 

8  Of  Courts  of  Ordinary 366 

9  Of  Inferior  Courts 345 


3842 
3846 

3848 

3853 

3855 
3858 

3859 
3860 
3857 
3861 
3862 

3868 

3869 

3870 

3871 

525 

1724 

3863 

3867 

3866 

3865 

3864 

4062 

4026 

4034 

4099 

33 

286 

287 

4592 

4588 
4556 

4552 


21 
38 
39 

205 
236 

237 

278 

1794 

34G 


Law  relating  to .3841  to 


10  Of  Justice's  Courts 

480  to  490,  4067  to 

11  Of  Justices  of  the  Peace.  ...479  to 

12  Of  Courts  of  Equity 

3025,3040,3041 

13  In  cases  of  divorce 

14  Over  private  ways 754  to 

15  As  to  County  poor 776  to 

16  As  to  masters  and  apprentices. . . . 
, 1862  to 

17  In  cases  of  crime 4576  to 

18  Can  not  be  given  by  consent 

19  Defendant  may  waive 3408 

20  Mode  of  pleading  to 3410  to 

21  Judgments  void  for  want  of 

Jury  Boxes. 

1  For  new  Counties,  how  made  up. . 

2  For  County  Courts 

3  For  Superior  Courts 3842 

4  For  Justices  Courts 

Jury  Fees. 

1  For  verdict  and  confessions. , . 

Jury — Grand. 

1 
Justice's  Courts. 

1  Time  and  place  of  holding. .  .4065 

2  Time  and  place  unchanged  by  Code 

3  Place  of  holding,  how  changed. . . 
492  to 

4  Shall  try  no  case  of  damages — ex- 
ception   

5  Jurisdiction  of 481,  4068 

6  Ten  days'  residence  gives  jurisdic- 
tion   

7  Co-obligors  in  different  districts.489 

8  Makers  and  indorsers,  how  sued.. 
489 

9  Suits  against  those  in  no  district. . 

10  Suits  where  Justice  is  a  party  or 
disqualified 484  to  488, 4072 

11  Transfer  of  cases 486 

12  Summons,  how  issued  and  signed. 

13  Shall  specify  time  and  place  of  Co't 

14  Service  of  summons 4077  to 

15  Filing  summons 

16  Proceedings  to  be  uniform 

17  Appearance  term 

18  Bail  in 

19  Settlement  of  cases 

20  Disposition  of  money  raised 

21  Receipts  for  claims 

22  Defences  in 

23  Dilatory  pleas,  when  filed 

24  Pleas  sworn  to  in  what  cases 

25  Best  evidence  requirai. 

26  Proof  of  open  accounts 

27  Plea  of  usury — discovery 

28  Defendant  may  testify,  when 

29  Cross  examination  of  parties 

30  Witnesses,  how  summoned 

31  Interrogatories 

32  Trial  term 

33  Continuances 4096 

34  Judgments 

35  Appeals — entering  and  trial  of. . . 
4098 


4074 
482 

3045 
1710 

771 
782 

1874 
4578 
3408 
3409 
3412 
3536 

33 

285 
3859 
4099 

4062 

3853 

4066 
495 

494 

4067 
4069 

4070 
4071 

4074 
490 

4073 
487 
4075 
4076 
4079 
4080 
4081 
4082 
4083 
4084 
4085 
4085 
4086 
4087 
4087 
4088 
4089 
4090 
4091 
4092 
4093 
4094 
4095 
4102 
4097 

4099 


INDEX. 


1037 


36  Jury,  how  drawn  and  sworn 4099 

37  Claims,  how  interposed 4100 

38  Trial  of  claims 4101 

39  Dignity  and  lien  of  judgments., . .  4103 

40  Judgments  against  sureties 4104 

41  For  balance  of  set-off 4105 

42  Stay  of  excution 4106 

43  Backing  executions 4106 

44  Execution    against   plaintiffs    for 
costs 4107 

45  Summary  dealing  with  Constables  4108 

46  May  rule  Constables 4109 

47  Defaulting  jurors  and  witnesses. . 
4110  4111 

Justices  of  Inpekior  Courts. 

,   1  Election — oath — official  term.  .336 

2  Vacancies,  how  filled 

3  1^0  special  election,  when 

4  Term  of  one  elected  to  fill  vacan- 


cy 


5  Who  are  eligible 

6  Can  not  plead  law  in  their  Court . 

7  Ruks  of  decision  by 341 

S  Disabilities  and  exceptions 343 

9  When  majority  is  interested 

10  Authority  of 

11  Disqualified,  when 

12  Control  County  property 

13  Shall  erect  County  buildings ..  530 

14  Shall  assign  rooms  of  Court  House 

15  May  levy  tax  for  Court  House  and 
Jail 

16  Mandamus  for  failure 

17  Shall  audit  claims  against  County 

18  May  correct  improper  taxes 

19  Shall  regulate  rates  of  toll 

30  Duty  as  to  the  poor . .  776  to 

21  May  grant  private  ways 

22  When  to  be  elected 

23  Must  procure  seal  for  weights  and 
measures 

24  May  discharge  insolvent  criminals 

25  Indictable  for  malpractice 

Justices  of  the  Peace. 

1  Two  in  each  militia  district 

2  Election  of 470,  1351  to  1354 

3  Who  are  eligible 

4  How  removed  from  office 

5  Vacancies,  how  filled 472  to 

6  Appointed,  when 

7  Oath  of  and  how  taken 477 

8  Civil  jurisdiction  of, 480 

9  Criminal  jurisdiction 479 

10  Suable  before  each  other 

11  Disqualified  in  what  cases 

12  Proceedings  where  they  are  par- 
ties or  disqualified. 484  to  488,4072 

13  Authority  and  duty  of 

14  Judgment  of,  void  when 

15  May  hold  inquests,  when 

16  Exempt  from  military  duty 

17  Malpractice  of — punishment 

18  Fees  of.... ' 

19  May  attest  deeds 

20  May  administer  oaths 


4977 
337 
338 

339 
840 
341 
342 
1064 
344 
347 
193 
529 
531 
532 

536 

537 
540 
562 
726 
795 
754 
1346 

1584 
4603 
4432 

470 

4978 
475 
471 
474 
476 
478 
481 
482 
483 
484 

4073 

491 

496 

637 

1064 

4432 

3648 

2664 

491 


Justification. 

1  In  cases  of  libel  and  slander 2928 

2  In  cases  of  other  torts 2996 

3  Extenuation 2997 

4  Consent  of  party 2998 

5  Plea  of  and  its  effect 2996 

Kidnapping. 

1  Definition  and  punishment 4301 

Labor. 

1  Hours  of,  in  factories. 1875 

2  Contracts  for  excessive,  void 1875 

Laborers  in  Factories. 

1  Hours  of  labor  prescribed 1875 

2  Contracts  for  excessive  labor  void.  1875 

3  Corporal  punishment  of  forbidden.  1876 
Land. 

1  Realty,  law  relating  thereto.2192  to  2210 

2  Grants  to,  issued  by  Governor. ...       64 

3  Sale  of,  must  be  by  writing 1940 

4  Land  book  to  be  kept 72 

5  Reserved  to  State 966 

6  Reverted  land 2348 

7  How  returned  for  taxation.. 869  to    878 

8  Sold  for  taxes,  how  redeemed ....     900 

9  Sale  of  for  purchase  money..  .3225  3604 

10  Sale  of,  when  partly  paid  for 3528 

11  Charges  on 2210 

12  How  granted   under  head  rights 
.2333  to  2346 

13  Possession    for   20  years  implies 
grant 2331 

14  Grantee  has  nothing  by  implication  2331 

15  Rights  of  purchaser,  losing  land. ,  2601 

16  Possession  of  deemed  a  gift,  when  2622 

17  Slander  of  title  to,  gives  action. . . .  2971 

18  Suits  respecting    titles  to,  venue 
3325  4967 

19  Constables  can  not  sell 3597 

20  Partition  of. 3920  to  3931 

21  Intruders  on,  how  ejected. 4000  to  4003 

22  Right  of  possession,  gives  right  to 

sue  for 2963 

23  Bare  possession,  gives  action 2964 

24  Bare  title  gives  action  for  trespass  2965 

25  When  two  in  possession,  which  is 
rightful 2966 

26  Title    to,  by    adverse    possession 
2637  to  2641 

27  Dedication  to  public  use 2642 

28  Proceedingsagainst  tenant. 4005  to  4013 

29  Forcible    entry    and    detainer  of 
4014  to  4022 

Landlord  and  Tenant. 

1  Relation  exists  when 2253 

2  How  created 2254 

3  Rights  of  tenant 2255 

4  Tenant  must  deliver  possession. . .  2256 

5  Estoppel  of  tenant 2257 

6  Repairs  and  improvements. 2258 

7  Distress  for  rent,  reentry 2259 

8  Landlord's  lien  for  rent 2260 

p'9  Lien  for  provisions,  stock,  etc 2261 

10  Contracts  for  rent  bear  interest. . .  2262 

11  Rent  in  kind  exempt  from  sale. . .  2263 

12  Donation  of  tenancy 2264 

13  Tenancy  at  will,  how  terminated .  2265 


1038 


INDEX. 


14  Emblements 

15  Kent  unabated  by  casualties 

16  Removal  of  tenant  holding  over. . 

17  Tenant  in  arrears,  bow  dealt  with 

18  Affidavit  of  landlord 

19  Warrant  against  tenant 

20  Affidavit  and  bond  of  tenant . 

21  Issued  where  and  how  tried 

22  Double  rent  and  writ  of  possession 

23  Distress  warrants 

24  Levy  and  sale  thereunder 4010 

25  Replevy  of  property  and  trial 

26  Claim  of  distrained  property 

27  Trial  of  the  claim 

Land  Lotteries. 

1  Law  relating  to,  still  in  force 

Landmarks. 

1  Altering  or  removing,  punishment 
Lapsed  Legacies. 

1  Legacy  shall  not  lapse,  when 

Larceny. 

1  Kinds  of 

2  Simple     larcenies,     punishments 
4327  to  4336 

8  Of  deeds,  etc.^  punishment .... 

4  Of  bonds,  notes,  etc 

5  Of  fixtures 

6  From  the  person 4344  to 

7  From  the  house,  kinds  of.  .4347  to 

8  From  wrecked  or  distressed  vessels 

9  After  trust  delegated 4355  to 

10  Of  records  and^public  documents. 

Laws. 


2266 

2267 
4005 
4005 
4005 
4006 
4007 
4008 
4009 
4010 
4011 
4012 
4013 
4013 

2347 

4516 

2426 

4326 

4343 
4339 
4340 
4341 
4346 
4353 
4342 
4358 
4404 


1  How  graduated 1 

2  English  laws  of  force. 

3  Publication  of 

4  Rules  for  construing 

5  Meaning  of  certain  words  in 

6  Operate  only  in  future 

7  Ignorance  of,  no  excuse 

8  Of  other  iStates,  how  far  of  force. . 

9  Waiver  of  law 

10  Local  laws,  how  affected  by  Code. 

11  Local  laws  under  Constitution 

12  Distribution 

13  When  to  take  effect 

14  Lex  loci — Lex  fori. 8 

15  In  violation  of  Constitution,  void. 

16  Impairing  contracts,  void 

17  Ex  post  facto ^  forbidden 

18  Retroactive  laws  prohibited 

19  Shall  be  general 

20  Compiler  of,law  concerning.  1045  to 

21  Of  Congress,  number  to  county. . . 

22  What  judicially  recognized 

Laws  and  Journals. 

1  Distribution  of 109 

2  Engrossed  copies  preserved 

3  To  be  kept  by  Clerks 

4  How  printed 1932 

5  Delivery  to  printer 

6  Number  printed 1035 

7  By  whom  distributed 

8  Number  to  each  county 1051 

9  Two  copies  of  journal,  bound 

10  Copies  reserved  by  Librarian 


1 
3 
4 
5 
6 
7 
9 

10 

11 

4985 

109 

3 

2696 

4902 

4903 

4903 

4903 

4904 

1049 

1055 

3762 

111 
177 
256 
1033 
3034 
1036 
1050 
1052 
1053 
1054 


11  Advertisement  for  distribution  of. 

12  Bond  of  distributor 

13  Damages  for  breach  of  such  bond 

14  Filing  and  record  of  bond. ... 

15  xippointmeut  of  distributor 

16  Preference  to  applicants 

17  Advanced  distribution 

Lawyers. 

1  Law  relating  to 422  to 

Learning  and  Science. 

1  Power  of  Legislature  to  promote. 
Leases. 

1  Definition  and  nature  of 

Legacies. 

1  Devises  and  legacies,  law  of. 2415  to 
Legal  Process. 

1  Punishment  for  obstructing 

Legatee. 

1  Admissions  of,  inadmissible  when. 

2  May  compel  assent  to  legacy 

3  Election  by  legatees 

4  Devise  and  legacy 3415  to 

Legislature. 

1  Law  concerning  the 167  to 

2  Subordinate  officers  of 182  to 

3  Constitutional  provisions- as  to. . . . 
4926  to 

4  Powers  and  duties  of 4935  to 

5  Restrictions  on  powers  of.  .4940  to 

6  Election  for  members  of. .  .1309  to 

7  Elections  by  Legislature 

1363  to  1305 

Letters. 

1  Threatening  letters — punishment. 
Letters  Dismissory. 

1  When  and  how  granted  to  guar- 
dians  

2  How  obtained  by  administrators. . 
2565  to 

3  To  executors 

Letters  of  Administration. 

1  Law  as  to  granting 2451  to 

Letters  of  Guardianship. 

1  By  whom,   to    whom,   and    how 

granted 1797  to 

Levies. 

1  Of  attachments 

3217,  3219,  3220,  3222 

2  Of  executions 3592  to 

3  Of  distress  warrants 4010 

4  Notice  of 3528,  3595 

5  Property  exempt  from 2013  to 

Lewd  Houses. 

1  Punishment  for  keeping 

Lewdness. 

1  How  punished 

Lex  Fori  and  Lex  Locl 

1  Which  governs  as  to  contracts..  .8 

2  As  to  wills  of  personalt}'- 

3  As  to  interest 

Libel. 

1  Definition  of,  and  action  for.. 2923 

2  Malice  how  shown  in  cases  of . . . . 

3  Publication 

4  Truth  justifies 2928 

5  Privileged  communications 


ia56 
1057 
1058 
1059 
1060 
1061 
1062 

469 

4937 

2252 

2433 

4408 

2402 
2416 
2429 
2433 

181 
190 

4934 
4939 
4943 
1322 

4981 

4433 


1840 


2412 
2464 


1802 


3225 

3597 
4011 
3596 
2022 

4462 

4461 

2696 

8 

2027 

4448 
2924 
2925 
4450 
2929 


y 


INDEX. 


1039 


6  Malicious  use  of  privilege 2930 

7  PLinishment  of 4448 

8  Printers  and  publishers   are  "wit- 
nesses  4449 

9  Effect  of  their  refusal  to  testify. . .  4449 
Lbbel  and  Slander 

1  Law  concerning 2923  to  2930 

2  Slander  of  title 2971 

8  Costs  in  slander  cases 3630 

4  Form  of  action  for  slander 3319 

Liberty. 

1  Taken  away  only  by  due  process  of 
law 4891 

2  Jeoparded  but  once  for  same  of- 
fense      4898 

Librarian. 

1  Appointed  b}^  Governor 67 

2  Bond  of. 106 

3  His  duty 107 

4  Sliall  keep  State  Library 108 

5  Shall  distribute  books 1C9 

6  Shall  keep  catalogue  of  books 110 

7  Shall  take  receipts  for  books Ill 

8  Exchange  of  books  by 112 

9  Office  supervised  by  Governor  . . .     113 

10  Duty  as  to  distribution  of  laws. . . 

1050  to  1062 

11  Salary  of 1634 

12  Shall  account  with  successor    ....     114 
Library. 

1  Of  State,  open  to  citizens 108 

2  Catalogue  to  be  kept 109 

Licenses. 

1  To  retail  liquors — charge  for, 564 

2  How  obtained 1432 

3  Forfeiture  for  retailing  without...     566 

4  To  sell  liquor  by  gallon 564 

5  To  peddle — charge  for 564 

6  How  obtained 569,  1625  1630 

7  To  exhibit  shows,  pictures,  «i(c.    ..     564 

8  Tax  payer  may  demand 570 

9  Duty  of  officers,  when  law  is  vio- 
lated     571  to    574 

10  Forfeitures  do  not  absolve  crime. .     575 

11  Disposition  of  forfeitures 576 

12  Taxes  do  not  interfere  with 808 

13  To  practice  medicine 1416  to  1428 

14  To  vend  drugs 1429  to  1431 

15  To  auctioneers  and  vendue  masters  1438 

16  To  marry,  how  granted.  1702, 1704  1706 

17  To   agents    of   foreign    insurance 
companies 2799 

Liens. 

1  Mechanics  lien 1959 

2  Notice  to  mechanic  of  other  liens .  1960 

3  Of  mechanics  attach  to  proceeds 

of  sale 1961 

4  Disputes  as  to,  how  tried 1962 

5  Essentials  of  mechanics'  liens 1963 

6  Claim,  how  sued  on 1964 

7  Not  affected  by  giving  possession.   1965 

8  Of  machinists 1966 

9  Of  mechanic  on  personalty 1967 

10  On  steamboats 1968 

11  Mode  of  enforcing 1969 

12  Issue,  how  made  and  tried 1970 


1971 

1972 

1973 

1974 
1975 

1976 

2085 

1980 
1978 
1981 
1982 
1983 
4511 
2053 
2096 
2097 
2260 
2261 
2737 
3528 
3024 
3255 


13  Replevy  of  boat 

14  Sum  admitted  due,  to  be  paid 

15  Of  mill-wrights  and  gold  machin- 
ists  

16  Of  stone  cutters  and  marble  com- 
panies  

17  On  personalty,  how  enforced 

18  Of  attorneys,  factors,  innkeepers, 

19  Of  factors.' .' .' .' ." .' .' .' .'  .* .' ." .' '. .' .' .' . ."  1977 

20  Of  attorneys — extent  and  effect  of 
1979 

21  Of  vendors  of  land,  abolished 

22  By  bj^-laws  of  corjwrations 

23  Oldest  lien  preferred 

24  Under  charters 

25  Deceit  as  to,  is  indictable. 

26  Of  carriers 2051 

27  Of  innkeepers 

28  Of  livery  stable  keepers. 

29  Of  landlords  for  rent 

30  For  provisions,  stock,  etc 

31  Of  conditional  acceptors 

32  Of  judgments  generally  . .  .3519  to 

33  Of  judgments  in  trover 

34  Of  attachments 

35  Of  rules  absolute  against  ofScers. . 
1984 

36  Of  moue}'-  decrees 

37  Of  judgment  of  road  commission- 
ers  

38  For  taxes — paramount 

39  By  partnerships  void,  when.  .1929 

Life. 

1  Presumption  of,  for  seven  j^ears. . . 

2  Taken  only  by  due  process  of  law 

3  Jeoparded  only  once  for  same  of- 
fense ...   

Life  Estates. 

1  Law  concerning ,  .  .2226  to 

Life  Insurance. 

1  Law  governing 2776  to 

Lights  and  Water. 

1  Shall  be  kept  on  railroad  trains. . . 

2  Punishment  for  failure 

3  Special  charge  as  to 

Lime. 

1  Transportation  of  on  W.&  A.  R.R. 
Limitation  of  Actions, 

1  On  foreign  judgments 

2  On  domestic  judgments 2863 

3  On  specialties 2864 

4  On  statutory  rights 2865 

5  On  promissory  notes,  etc 2866 

6  On  open  accounts 2867 

7  Of  bills  of  review  and  for  new  trial  2868 

8  Of  certiorari 2869 

9  Of  writs  of  error 2870 

10  Against  executors,  administrators, 

etc , 2871 

11  In  other  cases 2872 

12  For  fines,  forfeitures,  and  penalties  2874 

13  Apply  to  Courts  of  Equity 2873 

14  Persons  excepted 2875 

15  Suspended  by  disability 2876 


3^ 
4158 

669 

809 

1930 

3701 

4891 


2230 

2781 

4498 
4498 
4498 

1015 


1040 


INDEX. 


16  Suspeaded  as  to  unrepresented  es- 
tates   2877 

17  Fraud,  effect  of  on 2880 

18  Absence  suspends 2878 

19  Disability  of  one  of  several 2879 

20  In  case  of  non-suit  or  dismissal. . .  2881 

21  On  sets-off  where  plaintiff  dismisses  2882 

22  New  promise  and  its  effect. 2883  to  2887 

23  For  injuries  to  realty  3003 

24  For  injuries  to  personalty 3004 

25  For  injuries  to  the  person 3005 

26  For  injuries  to  reputation 3005 

27  Exceptions  and  disabilities 3006 

28  As  to  subsisting  trusts 3140 

Limitations  of  Indictments. 

1  Law  determining 4571 

Limited  Pahtnerships. 

1  Purposes  of 1910 

2  How  constituted 1911 

3  Business,  how  transacted, 1912 

4  Certificate — specification 1913 

5  Attestation  of  certificate 1194 

6  Filing  and  record  of  certificate. . .  1915 

7  Certificate,  how  verified.     ,. 1916 

8  Informal  partnerships 1917 

9  Liability  of  such 1917 

10  Terms  of,  how  published 1918 

11  Evidence  of  publication 1919 

12  Renewal  of,  how  made 1920 

13  Alteration  dissolves 1921 

14  Firm  name 1922 

15  Suits  by  and  against 1923 

16  Stock  shall  not  be  withdrawn.1924  1925 

17  Rights  and  disabilities  of  special 
partner 1926 

18  Liability  of  general  partners 1927 

19  Liability  for  fraud 1928 

20  Fraudulent  assignments  and  liens 

.     1929  1930 

21  Liability  ofspecial  partner  for  fraud  1931 

22  Special  partner  postponed,  when. .   1932 

23  Dissolution,  how  effected 1933 

Liquidated  Damages. 

1  Definition 2889 

2  Penalties  in  bonds  are  not 2890 

Liquors. 

1  Inspection  of 1576  1583 

2  Sale  of  adulterated,  gives  action. .  2953 

3  Sale  of,  to  minors — parent  may  sue 

for 2959 

4  Sale  of,  near  place  of  worship- 
penalty  4490 

5  Penalty  for  selling  adulterated...  4473 

6  License  to  retail 564,  566  1432 

7  Retailing  without  license 4481 

Livery  Stable  Keepers. 

1  Liability  and  lien  of 2097 

Loans. 

1  For  consumption  and  use 2098  2099 

2  For  whose  benefit 2100 

3  Diligence  of  borrower 2101 

4  Interest  of  borrower 2102 

5  Not  transferable 2103 

6  Can  not  be  levied  on  as  borrower's  2103 

7  When  revocable 2104 

8  Expenses,  how  paid 2105 


9  Increase  belongs  to  whom 2106 

10  To  married  women,  liability  of  hus- 
band   2107 

11  How  to  be  used 2108 

12  How  affected  by  death  of  parties .  2109 

13  To  married  daughters  deemed  gifts, 
when 2623 

L0CA.L  Laws. 

1  How  affected  by  the  Code 11 

Lost  Papers. 

1  Office  papers  established  on  motion  3904 

2  Paper  sued  on  is  office  paper,  when 
3905  3919 

3  Proceedings  to  establish 3906 

4  Continuances 3907 

5  Rule  absolute,  when  granted 3908 

6  Established  copy  certified. 3909 

7  Suits  on,  when  allowed 3910 

8  Oyer  not  demandable 3911 

9  Alias  executions  for  lost  ones. 3912  3915 

10  How  established  in  Justice^s  Court 
..,.3913  3914 

11  Who  may  resist  establishment  of..  3916 

12  Summary  establishment  of 3917 

13  Summary  mode  abandoned,  when  3918 

Lotteries. 

1  Tax  on  managers  of 819    821 

Lumber. 

1  How  measured  and  inspected 1569 

2  Penalt}^  for  buying  or  selling  drift- 
ed  ,. 1570  1571 

LuiiPKiN  Law  School. 

1  Graduates  of,  admitted  to  the  Bar.    433^ 
Lunatics,  Idiots,  and  Insane  Persons. 

1  Commissions  of  lunacy,  how  ob- 
tained.  1846  to  1850- 

2  Appointment  of  guardians  for. . . . 

1843  to  1855 

3  Responsible  for  crime,  when 4231 

4  Shall  not  be  tried  for  crime 4579 

5  Instigators  of,  punishable 423S 

6  Incompetent  as  witnesses 3800 

7  Paupers  found  to  be,  bow  dealt  with    795 

8  Asylum  for 1367  to  1395 

Lunatic  Asylum. 

1  Trustees  of,  their  appointment . .  68  1367 

2  Managed  by  the  trustees 1366 

3  Authority  of  trustees 1368 

4  Other  officers,  how  appointed 1369 

5  Treasurer  of,  shall  give  bond 1370 

6  Annual  report  of  trustees 1371 

7  Superintendent. 1372 

8  Superintendent's  duty , 1373 

9  Inmates,  who  may  be 1374 

10  Classification  of  inmates 1375 

11  Apartments  of,  how  arranged 1376 

12  Georgians  preferred 1377 

13  Resident  pay  patients,  how  admit- 
ted   1378 

14  Non-resident  pay  patients 1379 

15  Classification  of  pay  patients 1380 

16  Pauper  patients,  how  certified. . . .  1381 

17  Support  of  pauper  patients 1382 

18  Paupers  becoming  able  shall  pay. .  1383 

19  Paupers  not  discharged  destitute. .  1384 


INDEX. 


1041 


20  Trial  of  lunacy  may  be  demanded 
1385  1386 

21  Inebriates,  how  admitted  and  kept 
1387  1388 

22  Negroes,  how  admitted 1389 

23  Convicts- admission  of 1390  to  1392 

24  Uncertified    patients,    liow    dealt 
with 1393 

25  Recommitment  of  patients 1395 

26  Insane  criminals 1395 

27  Salary  of  trustees 1636 

28  Salary  of  superintendent 1638 

29  Salary  of  assistant  physician 1638 

Lying  to  Obtain  Security. 

1  Punishment  for 4509 

Macadamized  Roads. 

1  Law  concerDing 752 

2  Shall  not  appropriate  highways,  etc 
753 

Machinists. 

1  Lien  of 1966  1973 

Magnetic  Telegraphs. 

1  Punisliment  for  injuring 4372 

Maker  and  Indorser. 

1  Actions  against. .  .3277,  3328,  4074  4973 
Malice. 

1  In  cases  of  murder 4255  4256 

2  How  shown  in  libel  and  slander. .  2924 

3  How  shown  in  malicious  prosecu- 
tions   2926 

4  Consists  in  what 2943 

5  Implied  by  want  of  probable  cause  2944 

6  Arrest  of  one  exempt,  evidence  of.  2945 
Malicious  Arrest. 

1  Right  of  action  for 2942 

2  Malice  may  consist  of  what 2943 

3  Want  of  probable  cause 2944 

4  Arrest  of  one  exempt  is 2945 

Malicious  Mischief. 

1  Various  kinds — punishment 

4515  to  4534 

Malicious  Prosecution. 

1  Gives  right  of  action 2931 

2  Want  of  probable  cause,  how  as- 
certained    2932 

3  Evidence  of  prosecutor 2933 

4  Grand  juror  not  liable  for 2934 

5  Instigator  of  presentment  liable. . .  2934 

6  Measure  of  damages  for 2935 

7  Malice,  how  shown 2936 

8  What  is  a  prosecution 2936 

9  Prosecution  must  end  before  action  2938 
Malpractice. 

1  Definition  and  punishment 4432 

2  Accused  heard  before  Grand  Jury.  4432 
Mandamus. 

1  By  whom  granted 237 

2  Infavorof  Clerk  of  Superior  Court    264 

3  As  to  County  tax 537    547 

4  Lies  to  enforce  official  duty 3142 

5  Is  not  a  private  remedy 3143 

6  Not  granted,  in  what  cases 3144 

7  May  be  granted  in  vacation 3145 

8  Governor  exempt  from 3146 

9  Against  Judge  for  not  signing  ex- 
ceptions   4198 

69 


10  Enforced  by  attachment 3169 

Manslaughter. 

1  Definition  of 4258 

2  Voluntary — punishment 4259  4260 

3  Involuntary 4261 

4  Punishment. .4263  4264 

Manufacturing  Companies. 

1  How  incorporated 1676 

Manufacturing  Establishments. 

1  Hours  of  labor  in,  prescribed 1875 

2  Contracts  for  excessive  labor,  void  1875 
Marble  Companies. 

1  Lien  of 1974 

Marine  Insurance. 

1  Law  governing 2782  to  2793 

Marks  and  Brands. 

1  Recorded,  when  and  how 1451 

2  Preference  to  those  recorded 1452 

3  Older  record  preferred 1453 

4  How  to  be  made 1454 

5  How  changed 1455 

G  Of  stock  killed  on  railroad— report  2984 

7  Liability  for  failure  to  report .  2985  2986 

8  Altering,  punishment  for ■ 4337 

9  Counterfeiting — penalty  for 4504 

10  Book  of,  kept  by  Clerk  of  Inferior 

Court 352 

Marriage. 

1  Restraints  on  are  void.. 1696 

2  Essentials  of  a  valid  marriage 1697 

3  W^ho  is  able  to  contract 1698 

4  Prohibited  degrees 1699  4459 

5  Incestuous  marriages 4449 

6  Must  be  voluntary  and  free 1700 

7  Void  marriages— effect  on  issue.. .  1701 

8  Ratification,  effect  of 1701 

9  License,  how  granted 1702 

10  Bans  of,  how  returned 1703 

11  Consent  of  parents  to 1704 

12  Neglect  of  Ordinary — penalty 1704 

13  Solemnizing  without  license — pen- 
alty  1705 

14  Jewish  marriages 17G6 

15  Between  whites  and  blacks  pro- 
hibited  -..1707  4988 

16  Want  of  authority  does  not  void. .  1708 

17  In  other  States  valid  here 1709 

18  Evading  law  of  marriage 1709 

19  Who  may  solemnize 1702 

20  Does  not  change  title  to  property.  1744 

21  Marriage  contracts  and  settlements 
1765  to  1776 

22  Contracts  in  consideration  of,  must 

be  written 1940 

23  Releases  debts,  when 2812 

24  Proof  of,  in  suits  for  crim.  con 2957 

25  Consent  to,  when  compelled 3113 

26  Contracts  to  trammel  or  force,  void  3125 

27  Punishment  for  illegal  solemniza- 
tion.....  4482  4483 

28  Is  a  valuable  consideration 1772 

29  Husband  and  wife,  law  concerning 
1743  to  1764 

Marriage  Contracts  and  Settlements. 

1  How  enforced 1765 

2  By  husband  during  coverture 1766 


1042 


INDEX. 


3  How  attested  and  constraed 1767 

4  When  and  where  recorded 1768 

5  "Wife  may  compel  record  of. 1769 

6  Appointment  and  change  of  trus- 
tees   1770 

7  In  whose  favor  executed 1771 

8  Execution  in  favor  of  volunteers, .  1771 

9  Marriage  is  a  valuable  considera- 
tion   1772 

10  Wife's  power  over  her  separate  es- 
tate.  1773 

11  She  may  sue  and  be  sued,  when. .  1774 
13  By  minors 1775 

13  Sale  to  husband  or  trustee,  wl^en 
good 1776 

14  Secretly  made  by  wife,  are  void. . .  3126 
Married  Women. 

1  Domicil  of 1691 

2  Subject  to  their  husbands 1743 

3  Eights  of 1744  to  1752,  1762  to  1764 

4  Rights  of  under  marriage  settle- 
ments  1765  to  1776 

5  Contracts  of,  generally  void.  .2687  2688 

6  Loans  to — liability  of  husband 2107 

7  Power  to  make  wills 2375 

8  Crimes  by,  how  punished 4235 

Marshaling  Assets. 

1  Bills  in  Equity  for  3089 

2  Service  of  such  bills 4129 

3  Addition  of  defendants 4130 

Masons'  Liens. 

1  Law  defining  and  regulating 

..1959  to  1965 

Master  and  Apprentice. 

1  Jurisdiction  as  to 366  1871 

2  Parents  may  bind  minors 1865 

3  Minors  bound  out  by  Ordinary  or 
County  Judge,  in  what  cases 1866 

4  Indentures,  how  executed 1867 

5  Duplicates,  where  recorded 1868 

6  Apprentice  need  not  sign  indenture  1869 

7  Duties  of  master 1870 

8  Jurisdiction  of  disputes  between . .  1871 

9  Dissolution  or  change  of  relation.  1872 

10  Rights  of  apprentice 1873 

11  Employing  apprentice — action  for.  1874 
Master  and  Servant. 

1  Indenture  of  service 1862 

2  Rights  of  master 1863 

3  Rights  of  servant 1864 

4  Master  may  sue  for  torts  to  servant  2909 

5  Master  liable  for  torts  of  servant, 
when 2910 

6  Enticing  or  employing  servants  in- 
dictable    4428 

Master  in  Equity. 

1  Appointment  and  powers  of 4143 

2  Report  of,  and  its  effect 3042  4144 

3  Exceptions  to  report,  and  trial  of. .  4144 

4  Fees  of,  how  determined 4145 

Mayhem, 

1  Definition  of. 4273 

2  Specified  mayhems  4274 

3  Punishment  for  each. 4275  to  4282 

Meal. 

1  Inspection  of 1568 


Measure  of  Damages. 

1  In  suits  on  oflScial  bonds 1!57 

2  For  breach  of  warranty  of  laud 
titles 2897 

3  For  breach  of  bond  for  titles 28&8 

4  In  cases  of  malicious  prosecution .  2935 

5  For  escapes 3590 

6  Law  as  to,  generally 2888  to  2S99 

Mechanics. 

1  Lien  of 1959  to  1965  1967 

2  Accounts  of,  bear  interest,  when. .  2031 
Members  of  Congress, 

1  Election  of,  how  regulated.  1326  to  1331 
Merchants. 

1  Accounts  of,  bear  interest,  when . .  2031 

2  Books  of  account,  how  admitted 

in  evidence 3724 

Merger. 

1  Of  estates 2245 

2  In  cases  of  express  trusts. 2288 

Mesne  Profits. 

1  Count  for,  in  ejectment 3280 

2  No  separate  suit  shall  be  brought 

for 3281 

3  Clause  for,  in  writ  of  possession . .   3582 
Messengers. 

1  Of  Legislature — election  and  pay 

of 173 

2  Of    executive — appointment    and 
duty  of 67,115    116 

3  Salary  of  Governor's  Messenger. .  1634 

4  From  electoral  college — election  of  1337 
Mile  and  Guide  Posts. 

1  Shall  be  set  up  on  public  roads .  671    672 

2  Forfeiture  by  overseer  for  neglect..     673 

3  Penalty  for  defacing  or  destroying  4526 
Military  Courts. 

1  Law  regulating 1135  to  1146 

Military  Law. 

1  Who  are  subject  to  military  dut}^  1063 

2  Persons  exempt  from  military  duty 
1064  to  1067 

3  Militia  officers  exempt,  when 1065 

4  Military  statistics  by  Tax  Receiver 
1068  1069 

5  Exemption,  how  verified 1069 

6  Service  in  lieu  of  tax — certificate .  1070 

7  Enrollment,  notice,  certificate 1071 

8  Tax  in  lieu  of  service 

,1064, 1068,  1071  1074 

9  Company  drills,  thui' per  annum. .  1072 

10  Volunteers  and  ofiicers  exempt. . .  1073 

11  Transient  persons  liable  to  duty. .  1076 

12  Colored  men,  liability  and  pay  of.   1077 

13  Military  force  of  the  State 1078 

14  Engineer  corps  of  the  State 1079 

15  Volunteer  force,  how  organized.. .   1080 

16  Battalions  and  regiments 1081 

17  Their  rights  and  duties        1082 

18  Volunteer  corps,  formation  of 1083 

19  Enrollment,  election  of  officers,  etc  1084 

20  Volunteers,  how  armed 1085 

21  Discipline,  exercise,  and  arms. . . .  1086 

22  Returns  of  independent  corps 1087 

23  Disbandment  of  independent  corps  1088 

24  Resignation  of  captains , .  1089 


INDEX. 


1043 


25  Eeturns  of  regimental  companies .   1090 

26  Companies  may  adopt  by-laws. . .  1091 

27  Uniform,  how  prescribed 1091 

28  Fines,  bow  imposed  and  collected.  1092 

29  Elections,  bow  ordered 1093  1094 

30  Commissions  expire,  when 1095 

31  Suits  on  bonds  of  officers 1096 

32  Voluntary  disbandments 1097 

33  Premiums  to  artillery  companies.  1098 

34  Volunteer  companies  incorporated  1099 

35  Military  Courts,  bow  constituted.   1100 

36  Volunteers  exempt  from  road  duty  1101 

37  Cumulative  provisions 1102 

38  Squadron  of  cavalry  defined 1103 

39  May  be  formed  of'  two  or  more 
troops 1104 

40  Number  of  a  troop  and  their  arms  1105 

41  Parades  and  exercises 1106 

42  Pines  for  delinquencies 1107 

43  Militia  of  the  State 1108 

44  Militia,  liow  organized 1109 

45  Companies  from  two  districts 1110 

46  Grades  of  militia  ofiicers 1111 

47  Divisions,  etc.,  how  created 1112 

48  Regiments, how  formed. 1113 

49  Companies,  how  divided 1114 

50  Company  returns,  bow  made. ...  1115 

51  Warnings  for  parade  and  drill 1116 

52  Rosters  and  returns 1117 

53  Election  of  militia  ofiicers 1118 

54  Notice  of  elections 1119 

55  Failure  of  election,  how  remedied.  1120 

56  Plurality  elects — acceptance.  .1121  1177 

57  Elections,  how  ordered 1122 

58  Staff"  department  of  militia 1123 

59  Chief  of  staff  department 1124 

60  Military  duty  of  Secretary  of  State  1125 

61  Division,  brigade,  and  regimental 
staffs.: 1126 

62  Staff  of  separate  battalion 1127 

63  Arsenals,    magazines,   and    arms, 
how  kept. 1128 

64  Report  of  paymaster  general 1129 

65  Reports  of  chiefs  of  staff".. . .  .1130  1131 
68  Jurisdiction  and  command  of  chiefs  1132 

67  Secretary  of  State,  chief  of  staff*. .  1133 

68  Chiefs  of  staff,  how  appointed. . . .  1133 

69  Governor  shall  have  three  aids. . .  1134 

70  Courts  martial,  jurisdiction  of . . . .  1135 

71  Notice  to  accused 1135 

72  Courts  martial,  how  constituted. . 
1136  1137 

73  General  Court,  how  convened 1137 

74  Regimental  Court,  how  ordered...  1137 

75  Officers,  for  what  fined 1138 

76  Cases  proceed  ex  parte^  when 1139 

77  Pay  of  members  of  Court 1140 

78  Court  may  punish  contempts 1141 

79  Fines,  hov/  collected 1142 

80  Officers,  how  degraded 1143 

81  Cadets  of  Military  Institute,  how 
tried 1144 

82  FL  fas,  for  fines,  when  returnable  1145 

83  Officers  to  account  for  fines 1146 

84  Order  at  musters,  how  preserved. .  1147 

85  Insubordination,,  how  punished. . .  1148 


86  Penalty  for  disturbance 1149 

87  Sutlers 1150 

88  Drunken  persons,  how  dealt  with.  1151 

89  Military  organization  in  cities. . . .  1152 

90  Election  of  officers 1153 

91  Residence  of  ofiicers 1154 

92  Non-commissioned  officers 1155 

93  Designation  of  companies 1156 

94  Of  battalions  and  regiments 1157 

95  Augusta  volunteer  companies. . .  . 
1158  to  1160 

96  Macon  volunteer  companies 1161 

97  Savannah  volunteer  companies . . . 
1162  to  1165 

98  Honorary  members  of  volunteer 
corps 1166 

99  Insurrections — duty  of  Governor. .  1167 

100  Discipline  in  actual  service 1168 

101  Pay  and  rations 1169 

102  Duty  of  local  officers  as  to  inva- 
sions,   117C 

103  Detachments  for  U.  S.  service.1171  11^2 

104  Flags,  when  going  out  of  State, . .   1173 

105  Militia  exempt  from  tolls 1174 

106  Exempt  from  arrest 1175 

107  Arms,  etc.  exempt  from  levy 1176 

108  Exempt  from  civil  process,  when.  1176 

109  Elections,  where  and  how  held . . . 
1177  1178 

110  Commissions  of  officers 1179  1180 

111  Of^cers  to  report  themselves . .  1181 

112  Substitutes 1182 

113  Omitted  cases,  how  regulated 1183 

114  Incorporated  companies  not  affect- 
ed by  Code... 1184 

Military  Storekeepers, 

1  Appointment  and  duty  of.  .1193  to  1196 

2  Salaries  of 1636  1637 

3  Pay  of  Superintendent  of  Military 
Institute  as 1221 

Military  Volunteers. 

1  Law  relating  to 1080  to  1102 

2  Of  cities 1158  to  1166 

Militia. 

1  How    constituted    and   regulated 
1108  to  1117 

2  Elections  for  officers  of 1118  to  1122 

3  Staff  department  of 1123  to  1134 

4  Courts  martial 1135  to  1146 

5  Of  cities, how  organized. .  .1158  to  1166 
Militia  Districts. 

1  Counties  divided  into 515 

2  Must  contain  captain's  company, .     517 

3  Proceedings  to  lay  out  or  change 
518to    522 

4  Elections  in  new  district 522 

5  Change  of,  does  not  oust  officers, .     523 

6  Or  affect  pending  suits 524 

7  Unchanged  by  the  Code 516 

Militia  Laws. 

1  Military  Laws. 1063  to  1184 

2  Mihtia  proper 1108  to  1151 

Mills  and  Millers. 

1  Public  mills  defined 1468 

2  Toll  for  grinding 1466 

3  Grinding,  how  done 1466 


■y 


1044 


INDEX. 


4  Forfeiture  for  default 1467 

Mill  Dams. 

1  When  and  how  abated  as  nuisances  4026 
Millwrights. 

1  Lien  of. 1973 

Mining. 

1  Miners  shall  have  right  of  way. . .     772 

2  JS'ecessity  and  value  of  way,  how 
determined 772 

3  Award,  how  returned  and  disposed 

of 773 

4  Miners  may  divert  streams 774 

5  Damage  for  diversion,  how  assessed    774 

6  Appeal  from  award 775 

7  Tax  returns  of  mining  companies 
824    825 

8  Punishment  for  unlawful  mining 
4366  4367 

Mining  Companies. 

1  Right  of  way  for,  how  obtained 
.......' 772  to    775 

2  Tax  returns  of,  how  made 824    825 

Minors. 

1  Domicilof 1692 

2  May  be  bound  out,  when 1865  1866 

3  Action  for  selling  liquor  to 2959 

4  Action  for  gaming  with 2960 

5  Voting  by,  how  punished 4486 

6  Punishment  for  gaming  with 4467 

Minutes. 

1  Of  Courts,  to  be  read  and  signed. .     196 

2  Of  Superior  Court,  kept  by  Clerk.     256 

3  Of  County  Court,  how  kept 325 

4  Of  Inferior  Court  for  County  pur- 
poses    4061 

5  Of  Court  of  Ordinary.. ..........     377 

Misdemeanors. 

1  Definition  of ,  ..,,„. 4227 

2  Intention  to  commit,  how  shown. .  4228 

3  Who  are  capable  of  perpetrating 

4227  to  4238 

4  Punishment  for,  prescribed 4608 

Misjoinder. 

1  Of  actions 3191  3283 

2  Of  parties,  amendable 3434  to  3436 

Misnomers. 

1  Amendable  instanter 3432 

Mistake. 

1  In  name  of  grantee,  not  provable 

by  parol 2330 

2  Of  law  does  not  annul  sale 2594 

3  Of  fact,  avoids  sale  when 2594 

4  Relief  against,  in  equity. .  .3065  to  3074 
Mistrial. 

1  Declared,  when 3870 

Mittimus. 

1  Form  of 4641 

2  May  be  for  any  offense  proved. . . .  4641 

3  Informality  of,  no  ground  of  dis- 
charge  3947  4650 

Money. 

1  Title  of  bona  fide  buyer  of. 2597 

2  How  drawn  from  Treasury 4941 

3  Illegal  issue  of,  penalty 4389  to  4392 

Mortgages. 

1  Are  only  security  for  debts 1944 


2  What  may  be  embraced  in 1944 

3  Execution  and  form  of. 1945 

4  Record  of 1946 

5  Effect  of  failure  to  record 1947 

6  How  admitted  in  evidence 1948 

7  Defective  record,  effect  of 1949 

8  Record  of,  not  in  time. 1950 

9  Probate  for  record 1951 

10  Tacking  of,  prohibited 1952 

11  Sureties  may  take 1953 

12  Redemption  of  by  mortgagor 1954 

13  For  debts  due  at  different  times. . .  1955 

14  Several  mortgagees,  rights  of. 1956 

15  Sale  of  the  property  under  other 
process 1957 

16  Rights  of  mortgagee  in  such  case.  1957 

17  Purchaser  shall  give  bond,  when..  1958 

18  Deeds  shown  to  be,  when  and  how  3756 

19  Foreclosure  of  on  land 3886 

20  Foreclosure  by  representatives. . . .   3887 

21  Defenses  against  foreclosure 3888 

22  Strangers  can  not  defend 3889 

23  Foreclosure  against  representatives .  3890 

24  Issue,  how  tried 3891 

25  Judgment  and  sale  of  property. . . .   3892 

26  Proceeds  of  sale,  disposition  of. . . .  3893 

27  When  installments  are  not  due. . .  3894 

28  Contest  by  creditors  of  mortgagee.  3892 

29  Foreclosure  on  personalty,  mode. .  3895 

30  Levy  and  sale  of  property 3896 

31  Sales  by  consent 3898 

32  Mortgagees  may  claim  proceeds, 
when 3897  3898 

33  Illegality  to  mortgage Ji.  fa 3899 

34  Proceedings  thereon 3900 

35  Sale  and  disposition  of  proceeds. . .  3901 

36  Foreclosure,  and  defense  of  repre- 
sentatives    3902 

37  Contest  by  creditors  of  mortgagor .   3903 

38  Foreclosure  in  County  Court 311 

39  To  evade  taxes  are  void 810 

40  Sureties  and  indorsers  may  foreclose 
when 2137 

Motions. 

1  In  arrest  of  judgment.  3529  to  3532  3534 

2  For  new  trial,  law  of 3660  to  3674 

3  To  establish  lost  papers 3904 

Murder. 

1  Definition  of 4254 

2  Malice,  express  and  implied.  .4255  4256 

3  Punishment  of 4257 

4  Infanticide 4270 

5  Counsellors  of  infanticide,  punish- 
ment   4270 

6  Concealing  death  of  child,  effect  of  4271 

7  Assault  with  intent  to  murder 4293 

8  Death  by  dueling  is  murder 4445 

Mutiny. 

1  In  Penitentiary,  punishment 4437 

2  Instigators  of,  how^  punished 4438 

Mutual  Insurance. 

1  Law  governing 2794  to  2799 

Names. 

1  Legislature  can  not  change 4940 

2  Change  of,  by  Courf§ 1778  1779 

3  Amendments  as  to 3433  to  3437 


INDEX. 


1045 


Ke  Exeat. 

1  Who  may  grant 237 

2  Issues  in  what  cases 3159 

3  Showing  of  complainant  for 3160 

4  Dissolution  of,  by  bond 3161 

5  Property,  how  disposed  of 3162 

6  Bill  for,  must  be  sworn  to 3163 

7  Bond  of  complainant  3163 

8  May  issue  without  sanction,  when.  3164 

9  In  favor  of  sureties 2133  2149 

10  In  favor  of  indorsers 2133 

11  In  favor  of  remaindermen 2335 

12  Enforced  by  attachment 4159 

Negligence. 

1  Of  trustee,  action  for 2955 

2  Presumption  of,  against  R.  R.  Cos.  2979 

3  Presumption  of,  against  bailees . . .  2038 
Kegotiable  Papers. 

1  What  are,  in  this  State 598  2734 

2  Purchaser  of,  gets  title  to,  when. .  2597 

3  Warranty  of  transferer 2736 

4  Indorsement,  of  may  be  limited . .  2735 

5  Undertaking  of  indorser 2738 

6  Notice  to  indorser  of  bank  paper. .  2739 

7  Indorser  suable  with  maker 2740 

8  Holidays  and  days  of  grace..  .2741  2742 

9  Rights  of  holder  of 2743 

10  Overdue  is  notice 2746 

11  Presumption  of  holder's  good  faith  2745 

12  Holder  of  collaterals 2746 

13  Notice  to  purchaser  of,  what  is . . .  2747 

14  Blank  indorsements  explainable . .  3755 
Negroes. 

1  Meaning  of  the  term 5 

2  Law  concerning 1661  to  1669 

3  Receiving  stolen  goods  from,  pun- 
ishment  4439 

New  Counties. 

1  Legislature  may  establish 4936 

2  When  represented  in  Legislature. .      41 

3  To  what  Congressional  district  at- 
tached        43 

4  Officers  of,  who  may  qualify 35 

5  Who  acts  when  no  Clerk  or  Sher- 
iff in 32 

6  Officers  included  in,  continue 31 

7  Juries  in,  how  organized 33 

8  Taxes  for,  how  levied 34 

9  Transfer  of  suits  and  process  to.29      30 

10  Returns  of  fiducial  agents  in 36 

11  Belong  to  what  circuit 45 

New  Promise. 

1  Must  be  in  writing 2883 

3  Equivalent  of •  2884 

3  Effect  of 2885 

4  By  partner  or  joint  debtor. . .  .2886  2887 

5  By  administrators 2501 

Newspapers. 

1  Preservation  of,  by  County  officers 

256,377    397 

New  Trials. 

1  Grranted  by  Superior  Court  only 
3660  3661 

2  For  admitting  oprejecting  evidence  3663 

3  For  improper  Edicts 3662  3666 

4  For  giving  or  refusing  charges 3664 


5  For  new  evidence  discovered 3665 

6  Discretion  of  Judge  as  to. ...... .  3667 

7  Application  for,  when  made . .  3668  3670 

8  Who  may  decide  motion  for 3669 

9  When  to  be  tried 3671 

10  Tried  by  special  jury 3672 

11  Service  of  rule  ni  si  for 3673 

12  Rule  ni  si  is  supercedeas,yvh.en. . . .  3674 

13  Granted  in  equity  cases 4152" 

14  Not  allowed  the  State  in  criminal 
eases 1722 

15  Bills  for,  to  be  brought  in  three 
years • 2868 

16  Of  collateral  issues 3554  3555 

17  Rules  ni  si  for  amendable 3432 

Nolle  Prosequi. 

1  When  allowed 4555 

NoN  Compos  Mentis. 

1  Meaning  of  in  statutes 5 

2  Guardians  for  those  who  are  1843  to  1855 

3  Persons,  are  incompetent  witnesses  3800 

4  Disability  of  those  who  are 1653 

NoN  EST  Factum. 

1  Plea  of,  when  and  how  filed.  .2800  3422 
NoN  Joinder. 

1  Of  parties,  amendable 3434  3436 

NoN  Residents. 

1  Where  suable 3339 

2  How  served  with  sci7'6  facias 3549 

3  May  be  executors,  when 2399 

4  Tax  returns  of,  how  made 826    827 

NoN  Suit. 

1  Not  allowed,  when 3270 

Notaries  Public. 

1  By  whom  appointed 1503 

2  Oath  of. 1504 

3  Official  term  of. 1505 

4  Qualification  of 1506 

5  Office  of,  where  exercised 1507 

6  Removal  vacates  office 1507 

7  Authority  of 1508 

8  Shall  keep  seal  and  register 1509 

9  May  attest  deeds  without  seal. . . .  1509 

10  Acts  of,  how  proved 3777 

11  Fees  of 3653 

Notice. 

1  To    produce    books    and    papers 
3457  to  3462 

2  Unnecessary,  when. 3781 

3  To  indorsers  of  protested  paper.. .  2739 

4  What  is  notice  of  dishonored  paper 
2746  2747 

5  To  sue  by  sureties,  indorsers,  etc. . .  2128 
Notice  to  Quit. 

1  In  tenancies  at  will 2265 

Novation. 

1  Of  contracts 2682 

Nudum  Pactum. 

1  Definition  of. 2697 

2  Pleadable  as  a  defense. 2806 

Nuisances. 

1  Defined 2949 

2  Public  and  private 2946 

3  Right  of  action  for 2946  to  2948 

4  Alinee  of  property  may  sue  for. . .  2950 

5  Injunctions  against 2951 


INDEX. 


6  Unwholesome  provisions,  sale  of. .  2952 

7  Adulterated  drugs  or  liquors,sale  of  2953 

.  8  Mistakes  of  druggists  2954 

9  Abatement  of.. . . , 4023 

10  When  in  town  or  city 4024 

11  Notice  to  parties 4025 

12  If  mill,  etc,  how  abated 4026 

13  Who  may  move  against 4027 

14  Fees  of  Clerk,  witnesses  and  jury.  4028 

15  Fees  for  summoning  jury. ..,.-...  4029 

16  Punishment  for  erecting 4478 

2nul  Tiel  Recokd. 

1  When  pleaded 3435 

Numbers. 
1  Singular  and  plural  include  each 
other 4 

Nuncupative  Wills. 

1  Law  relating  to 2443  to  2446 

'Oath. 


9 
10 
11 


Includes  affirmation  5 

Witnesses  must  take 3806 

Court  may  frame 3806 

Of  executors 2407 

Of  administrators 2465 

Of  Grand  Jurors 3847 

Of  Bailiff  to  Grand  Jury 3848 

Of  special  jurors 3855 

Of  Bailiff  to  Petit  Jurors 3857 

Of  juries  in  criminal  cases 4556 

Of  witnesses  in  criminal  cases...  4557 

12  Of  witnesses  before  Grand  Jury. .  4558 

13  Of  Legislators 4933 

14  Of  attorneys  at  law 432 

15  Of  tax  payers  and  agents..  .831  to  833 

16  Of  voters 1303 

17  Of  retailers 1432 

18  Of  guardians 1803 

19  Of  Superintendent  ofW.&  A.  R.R  974 

20  Of  Treasurer  of  said  road 983 

21  Of  agents  of  said  road  997 

22  Of  Petit  Juries 3860 

-23  Of  jury  in  claim  case 3867 

24  Of  inspectors 1567 

25  Of  pilots 1512 

26  Of  weighers  of  produce 1595 

27  Of  inquest  of  insanity 1846 

Of  appraisers  of  estates 2482 

In  attachments 3216 

In  garnishments 3482 

Peddlers 1628 

Of  Secretary  of  Senate 183 

Of  Clerk  of  House  of  Representa- 
tives    183 

Of  their  assistants 183 

35  Who  may  administer 

237,  257,  311, 373,  491  1508 

Obligations. 

1  That  must  be  in  writing 1940 

Obscene  and  Vulgar  Language. 

1  Punishment  for  using,  in  presence 

of  females 4306 

Obstructing  Legal  Ppocess. 

1  Punishment  for 4408 

Obstructing  Public  Roads. 

1  Punishment  foi' 690  4527 


28 
29 
30 
31 


34 


1  Who  are  eligible  to..  120, 122,  4915  4916 

2  Taken  b}''  second  highest  candi- 
date, when 121 

3  How  vacated 126 

4  Delivery  of  books  and  papers  of. . 
161    166 

5  Assaults  under  color  of. 4409 

6  Sentence  to  Penitentiary  disquali- 
fies for 4594 

Officers. 

1  De  facto,  acts  of  valid 120 

2  Residence,  term  and  seal  of ...     123 

3  Commissions  of,  under  what  seal.. 
124    125 

4  Resignation  of,  how  made  known. 
127    128 

5  Additional  oath  of 129 

6  Form  of  oath,  to  go  with  dedimus.     130 

7  Acts  of,  when  valid  without  oath.     137 

8  Bonds  of,  and  sureties  of. .  .138  to    160 

9  Delivery  of  books  to  successors . . . 
161  to    166 

10  Returns  of,  amendable. . .  .3446  to  3447 
Office  Books. 

1  Subject  to  inspection 14 

2  Delivery  by  officers  to  successors . 
161  to    166 

3  Penalty  for  detaining 4406 

4  Of  Executive  Office 72 

5  Of  Secretary  of  State 82 

6  Of  State  Treasurer 86 

7  Of  Comptroller  General 98      99 

8  Of  Clerk  of  Supreme  Court 210 

9  Of  Clerks  of  Superior  Court 256 

10  Of  Clerk  of  County  Court.    .  .325    326 

11  Of  Clerks  of  Inferior  Court 352 

12  Of  the  Ordinaries 377 

13  Of  Sheriffs 397 

Office  Papers. 

1  What  are 3904,  3905  3913 

2  How  established  when  lost. .  3904  3913 
Officers  of  Court. 

1  General  liability  of 3872 

2  Liability  of  Sherifis 3873 

3  Shall  pay  twenty  per  cent,  inter- 
est, when 3874 

4  Demand  for  money,  how  proved. .  3875 

5  Subject  to  rule,  though  out  of  office  3876 

6  Rules  against,  in  vacation 3877 

7  Answers  of,  and  after  proceeding.  3878 

8  Ruled  without  notice,  when 3879 

9  Lien  of  rules  absolute  against 3880 

10  Liability  of  Sheriffs  and  Coroners.  3881 

11  Delinquent  attorneys,  stricken 3882 

12  Deputy  Sheriffs  subject  to  rule. . .  3883 

13  Service  of  rules  against 3884 

14  Justices  of  the  Peace  and  Consta- 
bles, where  ruled 3885 

Official  Bonds. 

1  Who  may  sue  on 12 

2  How  payable  and  conditioned 138 

3  Shall  go  witli  dedimus 139 

4  How  approved 140    141 

5  Executed  under  pcJWer  of  attorney    142 

6  Time  of  filing 143 


INDEX. 


104T 


7  Certificate  of  failure  to  file 144 

8  Penalty  for  acting  without  filing..     145 

9  Indorsement  of  time  of  filing 146 

10  Notice  of  failure  to  file 147 

11  Failure  to  mark  file  a  contempt. . .     148 

12  Obligation  of 149 

13  By  whom  approved,  and  when  filed    150 

14  Execution  of,  how  certified 151 

15  Of  deputies 152 

16  Of  deputies  may  be  sued  on 153 

17  ISTot  discharged  until  penalty  ex- 
hausted      154 

18  ISI  ot  void  for  want  of  form 156 

19  Measure  of  damages  in  suits  on, . .     157 

20  Of  future  officers 158 

21  Sureties  on,  how  relieved 159 

Official  Oaths. 

1  Form  of  to  accompany  dedimus. .     130 

2  Yiho  may  administer 131 

3  Where  to  be  filed 132     133 

4  Indorsement  of  filing 134 

5  Of  deputies,  and  where  filed 135 

6  Penalty  for  failure  to  take  and  file    136 

7  Acts  of  officers,  w^hen  valid  with- 
out      137 

8  Of  Governor,  where  taken 53 

9  Of  Judges  of  Supreme  Court 199 

10  Of  Clerk  of  Supreme  Court 208 

11  Of  reporter 213 

12  Of  Judges  of  Superior  Courts 223 

13  Of  Clerks  of  Superior  Court 253 

14  Of  County  Judge 223    307 

15  Of  County  Solicitor. 317 

16  Of  Clerk  of  Inferior  Court 350 

17  Of  Ordinary 856 

18  Of  Attorney  and  Solicitors  General    408 

19  Of  Justices  of  the  Peace 477 

20  Of  Constables 505 

21  Of  County  Treasurer 586 

22  Of  County  Surveyor  and  Assistant 
610    613 

23  Of  Tax  Receivers. 921 

24  Of  Tax  Collectors 932 

25  Of  Notaries  Public 1505 

26  Of  Coroners.. 625 

27  Of  Clerk  of  Countv  Court 324 

28  Of  Bailiffs  of  County  Court 331 

29  Of  Sheriff's 384 

Official  Returns. 

1  May  be  made  nunc  pro  tunc 3447 

2  Amendable 3446 

Oil. 

1  Inspection  of 1569 

Open  Accounts. 

1  Limitation  of  actions  on 2867 

2  Judgment  on  without  proof,  when.  3405 

3  Books  of,  how  admitted  in  evidence  3724 

4  Proof  in  Justices  Court. 4089 

5  Bear  interest,  when 2031 

Opprobrious  Words. 

1  Punishment  for  using 4336 

2  May  justify  battery .  4597 

Oral  Testmony. 

1  Attendance  and  fees  of  witnesses. 
3788  to  3795 

2  Competency  of  witnesses.  .3796  to  3805 


3  Examination  of  witnesses.. 3806  ^o  3820 
Ordinaries. 

1  Styleof. 354 

2  Election  and  official  term  of 

355,  1346  4979 

3  Bond  of,  and  w^hen  to  be  given. 143    357 

4  How  approved,  filed,  and  certified 
150    151 

5  Oath  of ^ 356 

6  Vacancies,  how  filled 358- 

7  Term  of  one  chosen  to  fill  vacancy    359 

8  Eligibilities  and  disabilities 362 

9  Shall  finish  business  of  predecessor    360 

10  Appeal,  when  they  are  disqualified    361 

11  His  trusts  abate  upon  qualification    363: 

12  Administration,    v/hen    they    are 
Clerks 364 

13  Office,  where  kept 365  4041 

14  Grant  administration,  when. .  .368    369' 

15  Shall  report  unrepresented  estates.    370' 

16  Ineligible  to  re(5lection,  when 371 

17  Shall  not  practice  law  in  his  Court    372 

18  May  administer  oaths 373 

19  Are  their  owm,  but  may  have  Clerk 
.374  4979' 

20  Powers  of  Clerks  of .375  4979 

21  Clerk's  bond 376 

22  Duties  of  Clerk  specified 377 

23  Are  School  Commissioners. .......     37& 

24  Members  and  Treasurer  of  School 
Fund 378 

25  Oath  and  bond  as  such 379 

26  Duties  as  such  specified 380 

27  In  what  cases  disqualified 193 

28  Exempt  from  military  duty 1064 

29  Jurisdiction  over  guardians. 1794  to  1811 

30  Over  master  and  apprentice. 1862  to  1874 

31  Proceedings  in  Courts  of  Ordinary 
...4040  to  4051 

32  Appeals  from  decisions  of 

^ ^553,  3567  3568 

33  Fees  of 373  3643 

Ordinary,  Courts  of. 

1  When  held 404O 

2  Adjournment  of 4042  4051 

3  Proceedings  in 4043  to  4050 

4  Exclusive  jurisdiction  of. 366 

Orphans. 

1  To  be  bound  out,  when. 1816' 

2  Protection  of  against  ill-usage 1817 

Overseers. 

1  Rights,  powers,  and  duties 2189 

2  And  employers  may  contract  by 
parol 2190 

3  Suits  against  employers  by 2191 

O^tsrseers  of  Roads. 

1  Duties  of 653,  655  to  657,  671     672 

2  May  use  timber  for  roads 670 

3  Penaltyfor  neglect  of  duty.673,  674    688 

4  How  appointed 698 

5  Entitled  to  half  of  road  fines 700 

6  Daty  as  to  railroad  crossings . .  748    749 
Oyer. 

1  Not  demandable,  when 3911 

Oysters. 
1  Mode  of  taking,  prescribed .  1612 


1048 


INDEX. 


2  Illegal  taking  of,  how  punished. . .  1613 

3  Planted  beds  of,  protected 1614 

4  Eights  of  land  owners  to 1615 

5  Penalty  for  disturbing  owner 1617 

Papers. 

1  Production  of,  how  regulated. . . . 

3457  to  3467 

Parents. 

1  Duty  of,  to  minor  children 1783 

2  Power  of,  how  lost 1784 

3  Cruelty  of,  hov/ relieved  against. .  1786 

4  May  defend  their  children 1787 

5  Shall  support  pauper  children. 786    787 

6  Colored  parents  shall  support  their 
children 1667 

Parent  and  Child. 

1  Legitimate  children  defined. . '  . . .  1777 

2  Legitimation  by  marriage .... 1777 

3  Legitimation  by  Courts 1778 

4  Adoption  of  children 1779 

5  Effect  of  such  adoption 1779 

6  Proceedings  to  change  name    of 
child 1779 

7  Objection  to  adoption 1780 

8  Adoption  of  adults 1781 

9  Changing  name  of  adult 1781 

10  Age  of  legal  majority 1782 

11  Obligations  of  parents 1783 

12  Power  of  parent  and  how  lost. . . .  1784 

13  Rights  of  mother  on  death  of  fath- 
er   1785 

14  Cruelty  of  father-protection  against  1786 

15  Mutual  defense  of 1787 

16  Bound  to  support  each  other  when 
poor 786    787 

17  Parents  may  sue  for  torts  to  child.  2909 

18  Parent  liable  for  torts  of  child, 
when 2910 

19  Child  may  sue  for  homicide    of 
Mher 2920  2954 

20  Parent  may  sue  for  sale  of  liquor 

to  child 2959 

21  Parent  may  sue  for  gaming  with 

son 2960 

22  Punishment  of  father  for  abandon- 
ing child 4307 

23  Relation  of,  amongst  freed  peonle . 
1667  to  1669 

Pardons. 

1  By  the  General  Assembly. 4988 

2  By  the  Governor 4950 

Parol  Evidence 

1  To  affect  written  contracts .  3747  to  3756 
Partial  Failure  of  Consideration. 

1  Pleadable  as  defense 2706  3431 

•Parties. 

1  To  contracts,  law  concerning  2687  to  2696 

2  To  suits  on  official  bonds.  .^12,  149    152 

3  To  suits  on  bonds  taken  by  officers      13 

4  To  bills  in  equity 4119  to  4121 

5  To  bills  of  exchange 2731 

6  To  actions 3192  3193 

7  To  attachments,  how  made. .  .3238  3239 

8  Claimant  of  land,  how  made  party  3284 

9  Made  on  motion,  when 3373  3384 

10  How  made  on  death  of  defendant.  3374 


11  On  death  or  removal  of  fiducial 
agent 3375 

12  How  made  in  claim  cases 3376 

13  Appeals  v/hen  parties  die 3377 

14  Appeal  revives  suit 3378 

15  When  garnishee  dies 3379 

16  Administrators  de  bonis  non  may  be  3380 

17  Scire  facias  to  make  parties 3381 

18  /Scw'^ /aaa«,  how  issued  and  served 
3381  to  3383 

19  How  made  on  marriage  of  feme 

sole 3385 

20  When  both  die 3386 

21  How  made  on  death  of  usee 3387 

23  On  death  of  trustee  or  receiver. . . .  3388 

23  Execution  against  female  defendant  3389 

24  Continuance  for  absence  of 3473 

25  Failing  party  liable  for  cost 3625 

26  Admissions  of,  are  evidence..  .3731  3733 

27  Competent  witnesses,  when 3798 

28  How  made  in  Supreme  Court 4216 

Partition. 

1  Between  tenants  in  common 2278 

2  In  equity 3127 

3  Decree  of,  passes  title 3128 

4  Moulding  decrees 3129 

5  Of  lands,  application  for 3920 

6  Application,  by  whom  made 3921 

7  Notice  of  intended  application.. . .  3922 

8  Partltioners,  appointment  of 3933 

9  Writ  of  partition,  how  executed. .  3934 

10  Defenses  and  trial  of  issue 3925 

11  Judgment,  new  partition 3936 

13  Land  sold,  when 3927 

13  Disposition  of  proceeds 3928 

14  Titles  to  purchaser 3939 

15  Power  of  Court  over 3930 

16  Remedy  of  absent  or  disabled  party  3931 

17  Of  personalty,  how  made 3932 

Partners. 

1  Rights    and    liabilities     amongst 
themselves 1891  to  1897 

2  Rights  and  liabilities  as  to  third 
persons 1895  to  1909 

Partnerships. 
1  How  created 1877 

3  Extent  of 1878 

3  Ostensible  and  dormant  partners. .  1879 

4  What  constitutes. 1880 

5  Commencement  of 1881 

6  Duration  of 1883  1883 

7  Death  of  partner,  effect  of 1882 

8  Dissolution  of,  how  effected..  .1884  1885 

9  Effect  of  dissolution. . 1886 

10  False  partner,  forfeiture 1887 

11  Proof  of,  when  required 1888 

13  Denial  of,  must  be  on  oath  ......  1888 

13  Judgments  for  and  against 1889 

14  Service  of  pai'tuers 1889 

15  Execution  of  bonds  by 1890 

16  Interest  of  partners 1891 

17  Contribution  amongst  partners. . . .  1893 

18  Good  faith  of  partners 1893 

19  Rights  and  powers  of  partners  1894  1896 

30  Introduction  of  new  partner 1895 

21  Power  of  majority 1896 


INDEX. 


1049 


22  Bight  of  surviving  partner 1897 

23  Secret  stipulations 1898 

24  Partners,  "wben  bound  by   act   of 
(^q^qIx 1899 

25  Duty  of  agent  for." ......]........  1900 

26  Transactions  outside  of. 1901 

27  Loans  to  one  partner 1902 

28  Purchasers  from  one  partner  . , .     1903 

29  Guaranty,  etc.^  do  not  bind 1904 

30  Liable  for  fraud  of  partner,  when.   1905 

31  Not  liable  for  torts  of  partner 1906 

32  Liable  for  torts  of  agent,  when.. . .  1906 

33  Power  of  partner  after  dissolution 
1886  1907 

34  Assets  of  insolvent,  how  disposed 

of. 1908 

35  Garnishments  against 1909 

36  Limited  partnerships,  law  of  1910  to  1933 

37  New  promise  by  partner,  effect  of.  2886 

38  Attachments  by  and  against  part- 
ners   3202  3209 

39  Suits  against  partners ......  3272  to  3276 

40  Judgments   for  and  against,  how 
entered 3518 

Passengers. 

1  Carriers  of,  liability  of 2041 

2  Carriers  bound  to  receive 2043 

3  May  be  rejected,  when 2056 

Paupers. 

1  Under  supervision  of  Inferior  Court  776 

2  Laws  concerning 777  to  795 

3  Burial  of,  how  provided  for 788 

4  Liability  for  removal  of 789  790 

Pawns. 

1  Definition  of. : 2110 

2  Pawnee  of  notes,  rights  of 2111 

3  Pawnee  may  sell,  when  and  how..  2112 

4  Use  of,  and  lien  of  pawnee 2113 

5  Property  in 2114 

6  Not  affected  b}^  death  of  parties. . .  2115 

7  Sale  of,  under  execution 2116 

8  Liability  of  pawnee 2117 

9  Expenses  and  profits  oi. 2118 

10  Increase  belongs  to  pawner 2119 

Payment. 

1  Definition  of. 2813 

2  To  naked  trustee  not  good 2814 

3  To  nominal  party  invalid 2814 

4  By  post 2815 

5  In  bank  bills,  checks  and  notes. . .  2816 

6  By  stakeholders 2817 

7  Appropriation  of  payments 2818 

8  How  applied  to  interest 2029 

9  From  State  Treasury,  how  made . .  71 
10  Equivalent  to  new  promise,  when.  2884 

Peace. 

1  Bills  of,  when  entertained 3166 

2  Bond  to  keep 4654  to  4658 

Peace  Warrants. 

1  When  issued  and  proceedings  on 

...4654  to  4658 

Peddlers. 

1  Obtainment  of  license  by 1625 

2  Agricultural  products  excepted .. .   1626 

3  Sales  by  sample 1627 

4  Qualifications  and  oath  of 1628 

70 


5  License  for  each  vehicle 1629 

6  Indigent  and  infirm 1630 

7  Disabled  soldiers 569 

8  Foreigners  licensed,  when 1631 

9  Omts  on  foreigner,  when 1632 

10  Forfeiture  for  not  showing  license.     570 

Peddling  without  License. 

1  Forfeiture  for,  to  the  County 568 

2  Disabled  soldiers  need  no  license. .     569 

3  Punishment  for. . , 4510 

Penal  Laws. 

1  Criminal  law  of  the  State.  .4227  to  4667 

2  Crime  defined 4227 

3  Persons    capable    of    committing 
crime 4228  to  4238 

4  Felony  defined 4239 

5  Principals  and  accessories  in  crime 
4240  to  4245 

6  Treason  and  insurrection.  .4246  to  4251 

7  Circulating  insurrectionary  papers  4252 

8  Crime  against  the  person.  .4253  to  4307 

9  Arson  and  burglary.. ....  .4308  to  4322 

10  Crimes  relative  to  property.4323  to  4374 

11  Forgerv — counterfeiting,  etc 

:' 4375  to  4392 

12  Crimes  against  public  justice. 

4393  to  4439 

13  Crimes  against  public  peace.4440  to  4445 

14  Crimes  against  public  morality 

4456  to  4498 

15  Cheating  and  swindling 4499  to  4514 

16  Malicious  mischief 4515  to  4534 

17  Indictments  and  arraignments 

, 4535  to  4548 

18  Order  of  argument — power  of  jury 
4551  4552 

19  Trial,  and  demand  for  trial. .  .4553  4554 

20  Nolle  prosequi — oath  of  jury.. 4555  4556 

21  Oath  of  witness — imprisonments — 
fines 4557  to  4567 

22  Sentence  of  death — limitations  of 
indictments 4568  to  4578 

23  Lunatics — attempts — second  con- 
viction  4579  to  4582 

24  Impanneling  jury— change  of  venue 
4584  to  4593 

25  Other  provisions 4594  to  4613. 

26  Contempts  of  Court — attempts  at 
crime 4614  4615 

27  Warrants  for  offenses 4616  to  4624 

28  Arrest  and  consequences..  .4625  to  4632 

29  Courts  cf  Inquiry 4633  to  4650 

30  Warrant  for  good  behavior.4651  to  4653 

31  Peace  warrants 4654  to  4658 

32  eearch  warrants 4659  to  4663 

33  Proceedings  in  bastardy. .  .4664  to  4667 

34  Convicts  and  chain-gang. .  .4716  to  4723 
Penalties. 

1  In  bonds,  not  liquidated  damages.  2890 

2  Compounding — punishment 4424 

Pendency  of  Former  Suit. 

1  A  good  defense,  when 2843  3426 

2  Election  between  two  suits 2843 

3  Does  not  apply  to  attachments —  2844 

4  First  suit  by  informer  preferred . . .  2845 

5  In  cases  of  tort 3008 


1050 


INDEX. 


Penitentiaky. 

1  Officers  of,  appointed  by  Governor      68 

2  Salaries  of  the  officers 1636 

3  Escapes  from,  punishable 4416 

4  Aiders  of  escapes  punished 4416 

5  Escapes,  where  tried 4565 

6  Convicts  testify  in  such  cases. ....  4583 

7  Voluntary  escapes — penalty 4417 

8  Penalty  for  rejecting  convict 4419 

9  Mutiny — punishment 4437 

10  Instigators  to  mutiny 4438 

11  Convicts,  when  sent 4563 

13  Execution  of  several  sentences... .  4559 

13  Notice  to  keeper,  of  conviction. . .  4564 

14  Commutation  of  sentence. .......  4601 

15  Convict  can  hold  no  office 4594 

16  Management  of 4668  to  4715 

Peeformance. 

1  Of  contracts,  law  concerning 

2819  to  2886 

2  Specific  performance  in  Equity. . . 
3130  to  3136 

Perjury  and  False  Swearing. 

1  Definition  and  punishmeut.4393  to  4399 

2  Subornation  of 4397  4398 

3  Convict  of,  disqualified 4399 

4  Judgments  by,  how  set  aside .  3533  4400 

5  Perjury   causing    death  —  punish- 
ment   4401 

Perpetuation  op  Testimony. 

1  By  Courts  of  Equity 3053 

2  Possession  of  the  property  imma- 
terial   3054 

3  Testimony,  when  and  how  used. .  3055 

4  Costs  of,  by  whom  paid 3056 

5  At  law,  how  done 3836  to  3840 

Person. 

1  Protection  to,  duty  of  government  4890 

2  Injuries  to  the  person 2917  to  2961 

3  What  the  word  includes 5 

Personalty. 

1  Definition  of. . . '. 2211 

2  In  possession 2212 

3  Glioses  in  action 2213 

4  Property  in  wild  animals 2214 

5  Deposits  and  increase  on  land 2215 

6  Issue  follows  condition  of  mother.  2216 

7  Kemedy  for  injuries  to 2217 

8  Tenant  for  life  can  not  remove.. . .  2235 

9  Purchaser  of  life  estate,  bond  of. .  2236 

10  Future  interest  in   exempt  from 
sale 2582 

11  Lien  of  judgment  on  future  inter- 
est in 2583 

12  Injury  to  possession  of^suit  for. . .  2972 

13  Mere  possession  gives  action,  when  2973 

14  Trover  lies  to'  recover 2974 

15  Damages  for  trespass  upon 2975 

16  Right  of  action  in  cases  of  bail- 
ment   2976 

17  Remainder  interest,  suits  for 2977 

18  Bail  in  suits  for. 3370  to  3372 

19  Partition  of 3932 

20  Form  of  action  for 3314 

Personating  Another. 

1  Inbail,  judgment  etc.— punishment  4407 


2  In  using  fictitious  name. 4386 

3  In  executing  notes,  etc 4387 

4  Obtaining  goods  b}^ 4388  4506 

5  As  a  witness 4508 

Persons. 

1  Natural  and  artificial 1645 

2  Classification  of 1646 

3  Citizens 1647  to  1653 

4  Residents  and  aliens 1654  to  1660 

5  Persons  of  color 1661  to  166& 

6  Corporations 1670  to  1688 

Persons  op  Color. 

1  Who  are 5  1661 

2  Rights  and  privileges  of 1662 

3  Are  competent  witnesses 1663 

4  Affidavits  by 1664 

5  Relation  of  husband  and  wife. . . .  1665 

6  May  be  married  by  colored  minis- 
ter    1666 

7  Relation  of  parent  and  child 1667 

8  Obligation  and  control  of  children  1668 

9  What  are  legitimate  children 1669 

10  Can  not  intermarry  with  whites. .  1707 

11  Receiving  stolen  goods  from 4439 

12  Laws  as  to  shall  be  enacted 4939 

Petition  and  Process. 

1  Suits  commenced  by  petition 3256 

2  Date  of  filing  to  be  indorsed  on . .  3257 

3  Annexation  of  process 8258 

4  Waiver  of  process 3259  3261 

5  Process  good  though  Judge  be  dead  3260 

6  Petition  filed  twenty  days  before 
Court 3262 

7  Process  served  fifteen  days  before 
Court • 3262 

8  What  is  service  of  process 3263 

9  Entry  of  service  traversable 3264 

10  Service  in  different  Counties 3265 

11  Return  of  unserved  process 3267 

12  Who  acts  when  no  Clerk  or  Sheriff  3266 

13  Where  Sheriff  is  a  party 3268 

14  Technical  defects  disregarded....  3269 

15  Special  pleading  forbidden 3270 

16  Amendments 3429  to  3440 

Photographic  Artists, 

1  Tax  on 806 

Physicians. 

1  Regulations  concerning. .  ..1416  to  1428 

2  Tax  on 806 

Physicians  and  Druggists. 

1  Tax  on 806 

2  W^ho  may  practite  medicine 1416 

3  Allopathic  Board  of  Physicians..  1417 

4  Authority  of  such  board 1417 

5  Duty  of  the  board 141S 

6  Temporary  license  of 141& 

7  Books  of  board,  evidence 1420 

8  Quorum  of  Board 1421 

9  Board  of  Reformed  Practice 1422 

10  Authority  and  duty  of  said  board.  1422 

11  Boards  not  changed  by  Code 1423 

12  Practicing  without  license — penal- 
ty    1424 

13  Onus  on  the  accused 1425 

14  Boards  restricted  to  their  schools..  1426 

15  Fee  for  hcense 1427 


INDEX. 


1051 


16  Who  exempt 1428 

17  Druggists  to  be  licensed 1429 

18  Peuaity  for  not  having  license. . . .  1430 

19  Druggists  that  are  exempt 1481 

20  Malpractice — action  for 2922 

21  Mistakes  of  druggists,  action  for. .  2954 

22  Selling  adulterated  drugs  or  liquors 
2953  4473 

Pilots  and  Pilotage. 

1  Commissioners  of  Pilotage 1510 

2  Power  of  Commissioners 1511  1515 

3  Pilot's  license  and  oath 1512 

4  Bond  of  pilot. 1513 

5  Forfeiture  of  license .1514  1516 

'    6  Regulations  of  pilotage 1515 

7  Duty  of  pilot — penalty  for  neglect  1517 

8  Rejection  of  pilot — penalty., 1518 

9  Rights  of  pilot  bringing  in  vessel.   1519 

10  Substitutes 1520 

11  Penalty  for  employing  another  pi- 
lot  .... 1520 

12  Default  in  pilot — penalty 1520 

13  Notice  to  pilot  of  departure 1521 

14  Pilot  shall  moor  vessel 1522 

15  Payment  of  pilot's  fees 1523 

16  Carrying  off  pilot — penalty 1524 

17  Fees  of  boat  relieving  pilot 1525 

18  Pilot's  fees  for  delivering  letters.. .  1526 

19  For  guiding  vessels  to  other  ports.  1527 

20  Pilot's  neglect — how  punished 1528 

21  Disputes,  how  settled 1529 

22  Duty  of  pilot  as  to  health  of  vessels  1403 

23  Records  of  commissioners 1530 

24  Copies,  evidence,  Secretary's  fees.  1531 

25  Office  and  records,  where  kept. .  .  1532 

26  Attendance  of  witnesses 1533  1534 

27  Interrogatories,  when  taken 1535 

28  Service  of  subposnas 1536 

29  Fees  therefor 1537 

80  Appeals  fi-om  commissioners 1538 

31  Testimony  for  appeal  trial 1539 

32  Fines  and  forfeitures,  how  disposed 

of 1540 

33  Qualifications  of  pilots 1541 

34  Appointment  of  branch  pilots 1542 

35  Obstructing  harbors 1543  to  1546 

36  Pilot's  duty  relative  thereto 1545 

37  Suits  for  forfeitures 1547 

38  Appointments  undisturbed  by  Code  1548 

Pitch. 

1  Must  be  inspected  before  shipment  1572 
Plank  Roai>,s. 

1  Law  regulating 752 

2  Shall  not  appropriate  highways  ,ete.    753 
Pleadings. 

1  In  divorce  cases 1714,  1716  1717 

2  In  cases  of  attachment 3232  to  3240 

3  In  ordinary  suits 3256  3270 

4  Dates  and  amounts  may  be  in  fig- 
ures   3195 

5  Numerals  and  initials 3195 

6  Answer  of  defendant,  when  filed . .  3400 

7  What  answer  shall  set  forth 3400 

8  No  part  of  answer  shall  be  stricken  3401 

9  Petition  and  answer  make  issues..  3403 


10  Non  est  factum  shall  be  on  oath 
3403  3422 

11  Dilatory  pleas  sworn  to  3404 

12  Default  and  its  elfect 3405 

13  Judgment  without  proof,  when. . .  8405 

14  General  issue  defined 3406 

15  Answer  at  first  term  is  general  is- 
sue   3406 

16  All  but  general  issue  must  be  plead- 
ed   3406 

17  Patent  defects  objected  to  by  mo- 
tion   3407 

18  Pleas  to  jurisdiction 3408  to  34]  2 

19  Pleas  of  set-off 3413  to  3418 

20  Usury,  how  pleaded 3419  3420 

21  Failure  of  consideration 3421 

22  Ne  unques  executor 3423 

23  Plene  administramt 3423 

24  Plene  administravit  praeter 2423 

25  Nul  tiel  record .  -. 3425 

26  Former  recovery 3426 

27  Pendency  of  another  suit 3426 

28  Coverture 3427 

29  Amendments  of 3429  to  3440 

30  In  equity 4116  to  4131 

Pleas. 

1  When  to  be  filed  3400 

2  Of  non  est  factum 2800,  3402  3422 

3  Of  justification,  effect  of 2996 

4  No  part  of  rejected 3401 

5  Dilatory  shall  be  sworn  to 3404 

6  General  issue,  special  pleas 3406 

7  Default,  effect  of "3405 

8  To  the  jurisdiction 3408  to  3412 

9  Of  set-off. 3413  to  3418 

10  Of  usury 3419  3420 

11  Of  failure  of  consideration 3421 

12  By  executors  and  administrators 
3423  3424 

13  Of  former  recovery 3426 

14  Of  pendency  of  another  suit 3426 

15  Of  nul  tiel  record.  '. 3425 

16  Of  coverture 3427 

17  Amendment  of  pleas 3429 

18  In  equity 4134 

19  In  Justices'  Court 4086  4087 

Pledges  or  Pawns. 

1  Law  relating  to 2110  to  2119 

Plene  Administravit. 

1  Plea  of 3423 

Plundering. 

1  Wrecked  or  distressed  vessels. . . .  4342 
Poisoning  Crops. 

1  Presumption  in  cases  of 1460 

Poisoning  Fish. 

1  Punishment  for 4533 

Police  Courts. 

1  How  affected  by  the  Code 514 

Poll  Tax. 

1  Who  subject  to 806 

Polygamy. 

1  Defined  and  punished 4456  to  4458 

2  When  excused  by  absence 4457 

Poor. 

1  Laws  concerning  the  poor.  .776  to    795 

2  Burial  of  paupers 788 


"V  -^ 


<i 


l^^ 


1052 


INDEX. 


P     -p^ 


3956 
3957 
3958 
3959 
3960 
8961 
3962 
3963 


1471 

3114 

142 

3558 


Poor  Houses. 

1  Power  of  Inferior  Court  to  buy 
777  to    779 

2  Exempt  from  taxation 796 

PooK  Schools. 

1  Beneficiaries  of 1300  to  1302 

Possessory  Warra^mt. 

1  By  wliom,  and  on  what  grounds  is- 
sued  311 

2  How  executed  and  returned 

3  Hearing — continuance 

4  Judgment  and  after  proceedings. . 

5  Bond,  wliere  returned 

6  Defendant  imprisoned,  when 

7  Certiorari  and  its  trial 

8  Judgment  on  certiorari 

Powder. 

1  How  kept  and  transported 

.1192, 1469  to 

Powers,  Execution  of. 

1  Jurisdiction  of  equity  over.3109  to 
Power  of  Attorney. 

1  Filed  with  official  bonds,  when.. . 

2  By  which  appeal  is  entered,  to  be 
filed 

Practice. 

1  Rules  of,  how  made,  and  when 
binding 192 

2  In  County  Court 282,  301 

3  In  Courts  of  Ordinary 4043  to 

4  In  Inferior  Court  for  County  pur- 
poses.  4058  to 

5  In  Supreme  Court 4208  to 

6  Supreme  Court  makes  its  rules  of. 

7  Rules  of  in  equity , . 

Presidential  Electors. 

1  Law  relating  to 1332  to 

President  of  the  Senate. 

1  Hoy/  elected 171 

2  Pro  tempore,  election  of. 

3  Pay  of 

4  Exercises  executive  power,  when. 
Prescription. 

1  Title  by,  defined. 

2  What  kind  of  possession  will  sup- 
port  

3  Actual  possession  of  land,  how  evi- 
denced     . 

4  Constructive  possession 

5  Actual  possession  for  20  years  is 
title 

6  Possession  for  seven  years  gives 
title,  when 

7  Dedication  of  land  to  public  use. . 

8  Possession  of  personalty  four  years 
is  title 

9  Does  not  work  against  disabilities. 

10  Stops  during  disability 

11  Other  excepted  cases 

12  Possession  may  be  tacked 

Presentments. 


1  Duty  of  Grand  Jury  as  to 

2  Solicitor  General  shall  prosecute  on 

3  How  made  and  tried  in  County 
Court 

4  Instigators  oi,  when  liable 


3181 

302 

4050 

4064 

4226 

205 

4148 

1338 

4919 
171 

178 
4947 

2636 

2637 

2638 
2639 

2640 

2641 
2642 

2643 
2644 
2645 
2646 
2647 

3849 
4539 

301 
2934 


Presumptions. 

1  Are  of  law  and  fact 3699 

2  Conclusive,  examples  of 3700 

3  Disputable 3701 

4  When  will  is  lost  or  destroyed 2398 

5  Where  crops  are  poisoned 1460 

6  Of  gift  attach,  when 2621  2622 

7  In  cases  of  imprisonment 2940 

8  Of  negligence  against  railroad  com- 
panies    2979 

9  Of  probate  arise,  when 3769 

10  Against  Clerk  of  Inferior  Court...  4368 

11  Against  County  Treasurer 4368 

12  Of  good  faith  of  holder  of  nego- 
tiable paper 2745 

Principal  and  Agent. 

1  Relation  of  arises,  when 2152 

2  What  may  be  done  by  an  agent . . 
2153  2181 

3  Fiducial  agents  may  convey  by  at- 
torney   2154 

4  Who  may  be  an  agent 2155 

5  Agency,  how  created 2156 

6  Agency,  when  revocable 2157 

7  Agent  restrained  by  authority ....  2158 

8  Diligence  of  agents 2159 

9  Agent  can  not  sell  to,  nor  buy  from 

self 2160 

10  Can  not  dispute  principal's  title. . .  2162 

11  Exception 2162 

12  Agent  can  not  make  personal  profit  2161 

13  Agent  of  several,  how  protected. .  2163 

14  Pay  and  expenses  of  agent,  when 

due 2164 

15  Agency  for  illegal  purpose,  null. .  2165 

16  Ratification  of  agency,  efi"ect  of. . .  2166 

17  Agent's  loss  by  confusion  of  goods.  2167 

18  How  far  acts  of  agent  bind  princi- 
pal   2168 

19  Form  of  act  immaterial 2169 

20  Authority  of  agent,  how  construed  2170 

21  Where  principal  is  not  disclosed . .  2171 

22  Principal  not  bound  if   agent  is 
credited 2172 

23  Agent's  representations  bind  prin- 
cipal , 2173 

,24  Notice  to  agent  binds  principal . . .  2174 

25  Agent's  neglect  binds  principal. . .  2175 

26  Principal  not  liable  for  act  of  co- 
agent 2176 

27  Exception  to  such  rule 2176 

28  Principalnot  liable  for  agent's  tres- 
pass'.    2177 

29  Shall  have  benefit  of  agent's  con- 
tracts    2178 

30  Principal  may  recover  back  money, 
when 2179 

31  Agent  is  competent  witness 2180 

32  Declarations  of  agent  bind  princi- 
pal, when 2180 

33  Payments  to  or  by  agent,  by  mis- 
take   2182 

34  Agent  may  sue  on  contracts,  Avhen  2183 

35  May  sue  for  disturbing  his  posses- 
sion  2184 

36  Agent  not  liable  unless  credited...  2185 


^>^ 


INDEX. 


1053 


37  Public  agents  not  liable 

38  Agent  individually  liable,  when. . . 

39  Agent  exceeding   authority    may 
sue,  when 

Pkincipal  and  Surety. 

1  Contract  of  suretyship 

2  ISTature  of  surety's  obligation 

3  Contract  is  one  of  strict  law 

4  Form  of  contract  immaterial 

5  Accommodation  indorser  is  surety 

6  Release  of  surety,  effect  of 

7  Novation  discharges  surety,  when 

8  Acts  of  creditor  that    discharge 
surety 

9  Surety  may  take  up  debt  and  secu- 
rities  

10  Notice  by  surety  to  sue  and  its  ef- 
fect  

11  Surety  may  bail  principal 

12  Obligation  of  surety  can  not  be  ex- 
tended  

13  Promise  of  surety  in  ignorance, 
void 

14  Surety  must  be  sued  as  such,  when 

15  Surety  may  attach  principal 

16  May  sue  principal  for  money  paid 

17  Payment  conclusive   as    to    sum, 
when 

18  Surety  shall  recover  usury,  when. 

19  Proof  of  suretyship,  how  made. . 
2138 

20  Foreclosure  of  mortgage  by  surety 

21  Control  of  ^.  fa.  by  surety. .  .2140 

22  Payment  by  surety  pending  suit. . 

23  Control  oifi.  fa.  against  co-sureties 

24  Control  of  j?.  fa.  by  indorsers. . . . 

25  Bona  fide  purchasers  protected.. . . 

26  Contribution  amongst  sureties.2146 

27  Surety  may  have  ne  exeat  against 
co-surety 

28  Subrogation  of  sureties 2150 

Principals  and  Accessories. 

1  Principals  in  first  and  second  de- 
gree  

2  Accessories  before  and  after  the 
fact 4241  to 

3  Punishment  of 4244 

Printer  (State.) 

1  Law  relating  to 1021  to 

Prison  Bounds. 

1  How^  laid  off 

2  Plan  of,  how  recorded 

3  Benefit  of,  how  obtained 

4  Ceases  after  six  months 

5  Sheriff  is  surety,  when 

6  Fees  of  Jailor,  how  paid 

Prisoner. 

1  Shall  not  be  brought  in  fettered. . . 

2  Nor  arraigned  in  bar  dock,  when. 

3  Punishment  for  rejecting 

Private  Sales. 

1  Essentials  of  a  valid  sale 

2  Auction  sales 

3  To  defraud  creditors,  etc.,  void. . . 

4  Voided  by  fraud  or  duress 

5  Fraud  defined 


2186 
2187 

2188 

2120 
2121 

2122 
2123 
2123 
2124 

2125 

2126 

2127 

2128 
2129 

2130 

2131 
2132 

2133 
2134 

2135 
2136 

2139 
2137 
2141 
2142 
2143 
2144 
2145 
2148 

2149 
2151 


4240 

4243 
4245 

1042 

2007 
2008 
2009 
2010 
2011 
2012 

4548 
4548 
4418 

2587 
2588 
2589 
2591 
2592 


6  Concealment  is  fraud,  when 2594 

7  Mistakes  annul,  when 2594 

8  Contingency  or  possibility  not  sub- 
jects of 2596 

9  Speculation  on  chances  void 2596 

10  Seller  conveys  no  more  than  he  has  2597 

11  Of  negotiable  paper,  bank  bills, 
money,  etc 2597 

12  Buyer  gets  title  though  seller  had 
none,  w^hen 2597 

13  Contracts  of,  entire  or  divisible. . .  2599 

14  Bona  fide  purchasers  protected.. . .  2598 

15  Deficiency  in  sale  of  lands — appor- 
tionment   2600 

16  Defect  of  title — right  of  purchaser  2601 

17  Delivery  of  goods — risk 2602 

18  Of  goods  to  be  manufactured — title  2603 

19  Consideration  of 2604 

20  Inadequacy  of  price 2605 

21  Purchase  money,  when  due 2606 

22  Stoppage  in  transitu.,  right  of 2607 

23  Does  not  exist  against  purchasers.  2608 

24  Warranty  of  seller 2609 

25  Breach  of  warranty,  effect  of 261 0 

26  Warranty,  how  construed 2611 

27  Disclosure  of  defects 2612 

28  Warranty  covers    patent  defects, 
when 2613 

29  Parol  evidence  as  to  intention. . . .  2613 

30  Barter  and  exchange 2614 

Private  Ways. 

1  How  and  by  whom  granted.  ..754  4906 

2  Width  and  repair  of 755 

3  Application  for,  how  m^de 756 

4  Notice  to  land  owners  ].  A 757 

5  Mode  of  laying  out 757 

6  Damages  for,  how  assessed ....  758    770 

7  Damages  paid  in  advance 759 

8  Applicant  may  decline 759 

9  Established  by  agreement 760 

10  Entered  in  road  book 761 

11  Land  owners  may  join  in 762 

12  Apportionment  of  w^ork  on 763 

13  Damage  for  over  wild  lands 764 

14  Damages,  when  barred 765 

15  How  closed  after  one  year's  use . . .     766 

16  Special  ways 767 

17  Extent  of  special  right  of  way. . . .     767 

18  Where  there  is  but  one  landing 
place 768 

19  Application  for  use  of  landing. . . .     769 

20  May  be  made  public  roads 771 

21  Right  of,  arises  how 2209 

22  For  mining  companies,  how  ob- 
tained   ' 772  to  775 

Privileged  Communications. 

1  What  are  so  considered 2929 

2  Malicious  use  of 2930 

1  Of  wills— law  concerning.. 2386  to  2402 

2  Of  deeds  for  record. . . .; . . . ;  .2665  2666 

3  Of  mortgages 1951 

Proceedings  in  Courts  op  Ordinary. 

1  Law  regulating 4040  to  4051 

Process. 
1  Annexation  of  to  petition 3258 


1054 


INDEX. 


2  Appearance  and  pleading  waive . .  3259 

3  Good,  though  Judge  be  dead 3260 

4  Express  waiver  of 3261 

5  Waiver  of  amendable,  when 3440 

6  Served  fifteen  days  before  Court . .  3263 

7  How  served 3263 

8  Entry  of  service  of  traversable . . .  3264 

9  Service  of  in  different  Counties. . .  3265 

10  Return  of  unserved 3267 

11  Where  Sheriff  is  a  party 3268 

12  Technical  objections  disregarded..  3269 

13  Amendment  of  process 194 

14  Executed  by  Coroner,  when 629 

15  Against  railroad  companies — how 
served 2988,  2994  3293 

16  Counties,  how  served  with 526 

17  How  served  on  partners 1889 

18  Against  corporations  and  compa- 
nies  3293  to  3300 

19  Against  banks  for  acts  of  agent. . .  3337 

20  Service  of  on  express  companies . .  3334 

21  Service  of  on  Insurance  Companies  3332 
Processioning. 

1  Processioners,  appointment  of 2349 

2  Lands,  how  processioned 2350 

3  Surveyor's  duty — plat — evidence..   2351 

4  Rules  where  lines  are  disputed.. . .  2352 

5  General  reputation — acquiescence.  2353 

6  Adverse  possession  respected 2354 

7  Protest  and  appeal. 2355 

8  Fees  of  processioners  and  surveyor  2356 

9  Fees,  how  paid 2356 

10  Return  of  processioners 2357 

11  Land  cut  off  by  stream,  how  mark- 
ed   , 2358 

PsoDucE,  Agricultural. 

1  Law  concerning  sale  of 1589  to  1600 

Production  op  Papers. 

1  May  be  required  by  the  Courts.. . ,  3457 

2  Notice  to  produce,  how  served 3458 

3  Effect  of  failure  to  produce 3459 

4  Non-resident,  how  sworn 3461 

5  Notice,  how  made  available 3462 

6  Subpmna  duces  tecum 3463 

7  Penalty  for  not  obeying 3464 

8  How  complied  with 3464 

9  Parol  proofofpapers  allowed,  when  3465 

10  Transcripts  of  books 3466 

11  Examination  of  books  by  commis- 
sion  3467 

12  Notice    to    produce   unnecessary, 
when 3781 

13  Before  arbitrators 4180 

Prohibition. 

1  Who  may  grant 237,  4970 

2  In  what  cases  granted 3148 

3  May  be  granted  in  vacation 3145 

4  Enforced  by  attachment 3169,  4159 

5  Does  not  lie  against  Governor 3146 

Promissory  Notes. 

1  Definition  of 2732 

2  Payable  in  specific  articles 2732 

3  Negotiability  may  be  restrained. ..  2733 

4  Joint,  or  joint  and  several 2732 

5  Indorsers  of,  may  limit  their  liabil- 
ity   2735 


6  Warranty  of  transferer  of 2736 

7  Undertaking  of  indorser  of. 2738 

8  Payable  in  bank,  notice  to  indorser  2739 

9  Holidays  not  counted 2741 

10  Days  of  grace  not  allowed  on  sight 
paper 2742 

11  Rights  of  bona  fide  holder  of 2743 

12  Over  due  is  dishonor 2744 

13  Presumption  of  holder's  good  faith  2745 

14  Holder  of  collaterals 2746 

15  Title  inquired  into,  when 2747 

16  What  is  notice  of  dishonor 2748 

17  Are  due,  when 2749 

18  Purchaser  gets  title  though  seller 

has  none. .'.  .■ 2597 

19  Rights  of  pawnee  of 2111 

20  Judgments  have  no  lien  on 3524 

21  Form  of  action  on 3315 

Property. 

1  Protection  to,  duty  of  government  4890 

2  Taken  away  only  bv  due  process  of 
law " 4891 

3  How  taken  for  public  use 4908 

4  Meaning  of  the  word  in  statutes. .         5 

5  In  wild  animals 2214 

6  What  exempt  from  taxation. .  .796    807 

7  Sold  subject  to  mortgage,  purchaser 
shall  give  bond,  when 1958 

Property  Exempt  from  Sale. 

1  Specification  of 897, 1176  2013 

2  Benefit  of  exemption,  how  obtained  2014 

3  Land  exempt,  how  laid  off. 2015 

4  Objections  to  survey,  how  tried. . .  2016 

5  Town  property,  how  exempt 2017 

6  Land  sold  subject  to  exemption. ..  2018 

7  Seizure  of  is  a  trespass 2019 

8  Debtor  can  not  sell  or  encumber. .  2020 

9  How  vested 2021 

10  Exemptions    extend     to    estates, 

when 2022 

Prosecutors. 

1  Name  indorsed  on  indictment 4537 

2  Liable  for  costs,  when 1640  4537 

3  Shall  have  no  fees  as  witnesses —  3795 

Protection. 
1  To  person  and  property,  duty  of 

government 4890 

Protest  and  Notice. 

1  Of  bills  of  exchange  and  notes.. . .  2739 

2  Sundays  and  holidays  not  counted  2741 

3  Proof  of  Notarial  acts 3777 

Public  Agents. 

1  Not  personally  liable 2186 

Public  Arms  and  Arsenals. 

1  Keepers  of,  how  appointed 68 

2  Where  kept 1185 

3  Delivery  of  arms  to  volunteers — 
1186  to  1188 

4  Inspection  of  arms 1189 

5  Duty  of  Secretary  of  State  as  to. .  1190 

6  Volunteers  may  keep  arms  in  arse- 
nals    1191 

7  By-laws  of  cities  respected 1192 

8  Military  store-keepers,  duty  of . . . . 
1193  to  1196 


INDEX. 


1055 


Public  Buildings. 

1  Belonging  to  the  State 964 

2  In  which  State  has  interest 965 

Public  Debt. 

1  Book  of  shall  be  kept 73 

2  Provisions  for  payment  of. .  959  to  961 

3  Earnings  of  W.  and  A.  R.  R.  ap- 
plied to 963 

4  Laws  relating  to  State  bonds 

947  to    963 

Public  Documents. 

1  How  proved  in  Courts 3763  to  3777 

2  Acts  of  Congress  as  to  proof  of. . .  3777 
Public  Indecency. 

1  Punishment  for 4461 

Public  Money. 

1  Account  of  to  be  published 4941 

2  How  drawn  from  Treasury 4941 

3  Holders  of  ineligible  to  office 4916 

Public  Printer. 

1  Election  and  official  term  of.  .1021  1364 

2  Bond  of— additional  bond  of.  1022  1024 
8  Failure  to  give  bond  makes  vacan- 
cy  1024 

4  Damages  for  breach  of  bond 1025 

5  He  and  sureties  must  be  citizens . .  1026 

6  Printing,  where  to  be  done..  .1026  1027 

7  Forfeiture  for  failure 1028 

8  Duties  of  begin,  when 1029 

9  Shall  print,  what 1030 

10  How  the  printing  shall  be  done 1031 

11  Laws  and  Journals,  how  printed.. 
1032  1033 

12  Delivery  of  printed  matter 1037 

13  Compensation  of 1038 

14  Forfeiture  for  delay 1039 

15  May  be  appointed,  when 1039 

16  Bond  and  contract  of  appointee. .   1040 

17  Compensation  of  removed  Printer  1041 

18  Representative  may  complete  work 

of 1042 

Public  Printing. 

1  Shall  be  done  in  Georgia 1026 

2  When  done  during  session  of  Leg- 
islature   ' 1027 

3  In  what  manner  executed 1031 

4  Outside    of    printer's    duty,   how 
done 1043  1044 

Public  Property. 

1  Buildings  belonging  to  State 964 

2  Buildings  in  which  State  has  in- 

est 965 

3  Lands  of  the  State 966 

4  Western  &  Atlantic  Railroad 967 

5  Other  property  of  the  State 1020 

6  Governor  shall  supervise  and  pro- 
tect  65      67 

Public  Revenue. 

1  From  taxation 797  to    943 

2  From  other  sources 944  to    946 

Public  Roads. 

1  Law  relating  to 638  to    691 

2  Commissioners  of 692  to    706 

Punishment. 

1  Cruel  and  unusual  forbidden 4900 

3  For  minor  offenses,  prescribed 4608 


3  For  attempts  to  commiit  crimes . . .  4615 
Purchasers. 

1  At  judicial  sales,  may  enforce  cov- 
enants  2581 

2  Must  look  to  title  and  soundness . .  2580 

3  ISTot  affected  by  irregularities 2586 

4  Shall  have  possession  of  land 

2582,  3601  3602 

5  Sheriff's  successor  may  make  titles 

to 2585 

6  Of  negotiable  paper,  eitc,  protected  2597 

7  Sales  to  defraud,  are  void 2589 

8  Not  affected  by  voluntary  convey- 
ance   2590 

9  Not  affected  by  mistakes,  when. . .  3064 

10  Losing  land   by  defect  of  titles, 
rights  of 26^1 

11  May  attack  judgments,  when 3538- 

12  At  Sheriff's  sale,  action  against.. . 
3605  360S 

13  Of  mortgaged  property,  bond  of. .   1958' 
Quarantine. 

1  How  prescribed  and  regulated 

.., ..1397  to  140a 

2  Of  inland  travelers 1402 

3  Violation  of 1406 

4  Fines  for  violating,  how  disposed  of  1408 

5  Performance  of — certificate 1409^ 

6  Against  small-pox 1412  to  1415' 

7  Punishment  for  violating 4475 

Quia  Timet. 

1  Bills  of,  who  may  grant 237 

2  For  what  purpose  sustained 3165 

3  Enforced  by  attachment 3169- 

Quo  Warranto. 

1  Granted  by  Judge  of  Superior  Co't.    237 

2  Lies  in  what  cases 3147 

3  May  be  gi'anted  in  vacation 3145 

4  Enforced  by  attachment 3169 

5  Does  not  lie  against  Governor. . . .  3146 
Railroad  Companies. 

1  Shall  keep  crossings  in  order 740' 

2  Extent  of  crossings 741 

3  Notice  to  repair  crossings 747 

4  Proceedings  where   crossings  are 
neglected 747  to     751 

5  Shall  erect  blow  posts 742 

6  Engineer  shall  blow  whistle 742 

7  Penalty  for  neglect , 743    744 

8  Onus  in  case  of  injury  at  crossings.     745 

9  Suits  for  such  injury,  where  brought    74(> 

10  Service  in  such  case 746 

11  Shall  not  appropriate  highways,  efc.     753 

12  Damages  for  right  of  way  against.  2978 

13  Venue  of  suits  against 3329 

14  Lessees  of,  where  sued 3330' 

15  Are  common  carriers 2057 

16  Liability  of  to  employees 2057 

17  Liability  of  to  passengers 2041 

18  Responsibility  of  for  baggage.2045  2055 

19  Shall  check  baggage 2046 

20  Freight  bills,  how  made  out 2052 

21  Lien  of 2051  2053 

22  May  reject  passengers,  when 2056 

23  Liability  for  injuries  by  cars,  etc.. . 
2979,2987  3292 


1056 


INDEX. 


24  Presumptions  against  2979 

25  Negligence  of  injured  party 2980 

26  Injuries  by  co-employees  of 2981 

27  Shall  keep  record  of  property  in- 
jured   2982 

28  Liability  for  failure 2982 

29  Marks  and  brands  of  stock  killed.  2983 

30  List  of  marks  and  brands  to  be 
posted 2984 

31  Liability  for  failure 2985  2986 

32  Summary  remedy  against. .  2987  to  2995 

33  Notice  to,  of  property  injured.2988  2990 

34  Form  of  notice 2989  2990 

35  Trial,  judgment,  and  execution. . .  2990 

36  Appeals  and  trial  of 2991 

37  Levy,  advertisement,  and  sale 2992 

38  Proceeds  of  sale,  how  disposed  of.  2993 

39  Tender  of  damages,  effect  of 2994 

40  Suits  for  over  $30,  v^here  brought.  2994 

41  Notice  in  such  case,  how  served . .  2994 

42  Suits  by  partners  and  joint  owners  2995 

43  Shall  give  special  receipt  for  freight  4514 

44  Punishment  for  refusal 4514 

45  Indictable  for  overcharges 4513 

46  Shall  keep  lights  and  water  on 
trains    4498 

47  Indictable  for  failure 4498 

Railroad  Crossings. 

1  Law  relating  to 740  to    751 

Railroads. 

1  Damages  for  right  of  waj^  how  as- 
sessed    2978 

2  Crossings,  law  as  to 745  to    751 

3  Suits  against,  where  brought 746 

4  Tax  on 813    815 

5  Tax  returns  of,  how  made 822    828 

6  Burning  bridge  of,  is  arson 4317 

7  Employee  exempt  from  militia  du- 
ty   1064 

8  Laborers  on  exempt  from  road  du- 
ty, when 675 

9  Lessees  of,  where  sued 3330 

10  W.  &  A.  R.  R.,  laws  relating  to.. . 
967  to  1016 

11  Liability  of  connecting 2058 

12  Punishment  for  interfering  with . . 
4370  4371 

13  Penal t}'-  for  running  freight  trains 

on  Sunday — indictment  for 4492 

14  Lights  and  water  on  trains. 4498 

15  Legislative  power  as  to,  restrained.  4943 
Rape. 

1  Definition  and  punishment. .  .4283  4284 

2  Assault  with  intent  to  commit 4285 

Ratification. 

1  Of  torts 2912 

2  Of  agencies 2166 

3  Of  appeals 3558 

4  Of  invalid  marriages 1701 

Realty  and  Real  Estate. 

1  Definition  of 2192 

2  What  is  part  of  and  passes  with. .  2193 

3  Things  detached  from,  become  per- 
sonalty    2194 

4  By  what  tenure  held 2195 

5  Eminent  domain  defined 2196 


6  When  and  how  exercised.  .2197  to  2199 

7  Powers  of  corporations 2200 

8  Right  to  running  water 2201 

9  Riparian  rights 2202 

10  Navigable  streams  defined 2203 

11  Right  of  adjacent  owner 2204 

12  Rights  of  stream  owners 2205  2967 

13  Right  to  make  levees  and  ditches.  2206 

14  Bridge  and  ferry  rights 2207 

15  Franchise  exclusive,  when ......  2208 

16  Right  of  private  way,  arises  how.  2200 

17  Charges  on  land 2210 

18  Descends  to  heirs 2220  2447 

19  Injuries  to  and  actions  for. 2962  to  2971 

20  Rights  above  and  below  surface . .  2969 

21  Slander  of  title  to,  gives  action . . .  2971 

22  Venue  of  suits  respecting  title  to. 
3326  4967 

23  Form  of  action  to  recover 3313 

24  Partition  of 3920  to  3931 

25  Sale  of  for  purchase  money.  .3225  3604 
Receiving  Stolen  Goods. 

1  Punishment  for 4420 

2  Indictable  though  thief  escapes. . .  4421 

3  From  persons  of  color 4439 

Receipts. 

1  May  be  explained  by  parol .......  3754 

2  Form  of  action  on 3315 

3  Of  guardians,  how  attested  and  re- 
corded    1837 

4  Of  administrators,  how  proved. . .  2563 

5  Of  carriers,  shall  be  special 4514 

6  Indictment  for  refusing  to  give. . .  4514 
Receivers. 

1  When  appointed 265  3092 

2  Are  officers  of  Court 265 

3  Liability  of 267 

4  May  be  required  to  give  bond. . . .     268 

5  Compensation  of 268 

6  Of  corporations,  where  amenable.     269 

7  Of  bank  assets,  duties  and  compen- 
sation  1493  1494 

8  Abatement  of  suits  by 1498 

9  Courts  of  Equity  may  appoint. . . .  3043 

10  Accountability  of 3093 

11  Not  subject  to  garnishment 3495 

ROCOGNIZANCES. 

1  Forfeiture  and  proceedings  on.4605  4600 
Record. 

1  Of  deeds,  law  concerning.. 2663  to  2671 

2  Of  mortgages 1946  to  1950 

3  Of  marriage  contracts  and  settle- 
ments    1768 

4  Of  receipts  of  guardians 1837 

5  Of  receipts  of  administrators 2563 

Records. 

1  May  be  removed,  when 195 

2  Preservation  of  Countv  records. .     531 

3  Duty  of  Clerk  of  Superior  Court..     256 

4  Amendment  of 194,  3448  3449 

5  Exemplifications  of,  evidence.3763  3764 

6  Acts  of  Congress  as  to  proof  of. . .  3777 

7  Falsification  of,  punished 4404 

Recoupment. 

1  Definition 2858 

2  Differs  from  set-off  in  what 285^ 


INDEX. 


1057 


3  Lies  for  certain  payments 2860 

4  In  what  cases  pleadable 2861 

Re-entry. 

1  By  landlord,  when  tenant  is  in  ar- 
rears    2259 

Reformation  of  Contracts. 

1  When  decreed  in  Eqiiity.3059, 3068  8069 
Refunding  Bonds. 

1  Demandable,  when 2564 

Refusing  to  Receive  Prisoner. 

1  Punishment  for 4418 

Registration. 

1  Of  deeds 2663  to  2671 

2  Of  Mortgages 1946  to  1950 

3  Of  marriage  contracts  and  settle- 
ments   1768 

4  Of  certificates  of  partnership 1915 

5  How  proved 3766 

6  Copy  fi'om  registry,  when  evidence  3767 

7  Evidence  w^hen  registry  is  lost 3768 

Regrating. 

1  Punishment  of 4503 

Release. 

1  Covenant  never  to  sue  is  a 2810 

2  By  operation  of  law 2811 

3  By  intermarriage 2812 

4  Of  property  fromj^.  fa.,  effect  of..  3608 

5  Effect  of  releasing  surety 2124 

Religious  Belief.    - 

1  Ko  right  lost  on  account  of 4894 

2  Goes  only  to  credit  of  witness 3797 

Religious  Test. 

1  None  required  or  allowed 4894 

Religious  Worship. 

1  Punishment  for  disturbing 4489 

2  Selling  liquor  near  place  of. 4490 

Remainder. 

1  Estates  in,  law  concerning. 2237  to  2246 

2  Suits  for  injuries  to 2977 

Remaindermen. 

1  May  terminate  life  tenancy,  when .  2229 

2  May  demand  bond  from  purchaser 

of  life  estate 2236 

3  May  have  ne  exeat  against  life  ten- 
ant    .  .  2235 

4  Right  of  action  by 2977 

Remedy. 

1  For  every  right 3185 

2  Courts  may  frame 3185 

Remitter. 

1  From  Supreme  Court 4220 

Removing  Landmarks. 

1  Punishment  for 4516 

Rent. 

1  Landlord  may  distrain  for 2259 

2  Lien  of  landlord  for 2260 

3  In  kind  exempt  from  sale,  when . .  2263 

4  Contracts  for  bear  interest. 2262 

5  Casualties  do  not  abate 2267 

6  Judgment  for  rendered  at  first  term  2262 

7  Distress  warrant  for 4010  to  4013 

Replications. 

1  A.re  abolished 3403  4140 

Replevy. 

1  Of  property  attached 3243  3244 

2  By  claimant 3248  to  3250 

71 


3  Of  property  in  bail  cases  for  per- 
sonalty   3372 

4  Of  property  distrained 4012 

Reporter  of  Supreme  Court. 

1  Appointment,  oath,  and  term  of. .  213 

2  May  have  assistant 214 

3  His  duties  specified 215 

4  Shall  not  report  arguments 216 

5  Penalty  for  failure  to  publish  re- 
ports   217 

6  Has  copyright  of  reports 218 

7  Salary  of 1640 

Representatives. 

1  From  new  Counties,  when 41 

2  Counties  that  are  entitled  to  two. .  40 

3  In  Congress,  election  of. .  .1326  to  1331 

4  How  commissioned 124 

5  In  Legislature,  election  of  .1309  to  1321 

6  Resignations,  how  made  known. .  128 
Republication. 

1  Of  wills,  how  effected 2436  2442 

Recision  of  Contracts. 

1  By  consent 2808 

2  Without  consent 2809 

3  Of  Court  contracts 2722 

Rescue. 

1  Definition  and  punishment. 4410  to  4412 

2  Attempts  to 4413 

Residence. 

1  Of  officers 123 

2  Of  the  Governor. . , 75 

3  Of  Secretary  of  State 77 

4  Of  Comptroller  General 93 

5  Of  State  Treasurer  85 

6  Law  of  domicil. 1689  to  1695 

7  Process  left  at,  is  good  service 3263 

Resignation. 

1  Of  Governor,  how  made  known  .  127 

2  Of  other  oificers 128 

3  Of  guardians 1839 

4  Of  administrators 2569 

5  Of  executors 2412 

Res  Gest^. 

1  May  always  be  shown 3751 

Resulting  Trusts. 

1  Exist  in  what  cases 2286  3138 

Retailing  without  License. 

1  Punishment  for 4481 

2  Sutlers  not  liable 1150 

3  Vendors  by  gallon  liable  for,  when  1433 

4  Retailer  defined 1437 

5  Forfeiture  for,  to  County 566 

6  Selling  to  drunken  persons — pen- 
alty  1436 

Retail  License. 

1  County  charge  for 564 

2  Confined  to  one  place  and  person . 
565,  1434 

3  Forfeiture  for  violating 566 

4  How  obtained 1432 

5  Towns  excepted,  when 1435 

6  Penalty  for  sale  to  drunken  persons  1436 

7  Who  is  a  retailer 1437 

Retraxit  of  Suit. 

1  Definition  of 3397 

'a  Differs  from  dismissal,  in  what 3398 


1058 


INDEX. 


Revenue. 

1  Of  State,  from  taxation 797  to    821 

2  From  other  sources 944  to    946 

3  Of  Counties,  from  taxes 543  to    562 

4  From  other  sources 563  to    577 

Revenue  Stamps. 

1  Taxable  as  costs 3633 

Reversion. 

1  Estates  in,  law  concerning.  2237  to  2246 

2  Right  of  action  for  injuries  to. . . .  2977 
Reviev\". 

1  Bills  for,  must  be  filecl  in  three 

years 2868 

Revocation. 

1  Of  wills,  law  concerning... 2434  to  2441 

2  Of  letters  of  administration 2472 

8  Of  agencies. . .   2157 

Rev/ards. 

1  For  arrest  of  felons 61 

Rice  and  RrcE  Culture. 

1  0\vnership  of  rice,  when  changed.  1589 

2  Penalty  for  not  paying  for  rice.. . .   159C 

3  Weigher  of,  how  sworn 1595  1596 

4  Tare  allowed  on 1597 

5  Water  shall  not  be  diverted 1601 

6  Extension  of  drains 1601 

7  Rice  dams,  Avhen  to  be  opened. . ..  1602 

8  Penalty  against  offenders.  .1603  to  1607 

9  Proceedings  against  obstructions. .  1608 

10  Penalty  for  stopping  drains 1609 

11  Enlargement  of  dams 1610 

12  Pay  of  freeholders,  penalty 1611 

Right  of  Way. 

1  Interference  with  is  trespass 2970 

2  Arises,  how 2209 

Rights. 

1  Not  denied  though  not  enumerated  4910 

2  Remedies  for 3185 

Riots. 

1  Definition  and  punishment 4441 

Rivers. 

1  Law  as  to,  and    riparian    rights 

2201  to  2207 

Roads. 

1  Include  bridges  thereon 5 

2  Public  roads  defined 638 

3  W  idth,  and  how  cleared  out 639 

4  Bridges  and  causeways,  how  made    640 

5  Road  districts,  how  laid  off. 641 

6  Apportionment  of  hands 641    698 

7  Register  to  be  kept ,^42 

8  How  laid  out  and  altered . . .  643  to    645 

9  Yoid  roads 646 

10  Discontinuance  of 647 

11  Mode  of  laying  out 648 

12  Who  subject  to  work  on 649 

13  Who  are  exempt  from  work  on .  699  1073 

14  Railroad  hands  exempt,  how 675 

15  Where  hands  shall  work 650 

16  Extent  of  work  required 651 

17  Colored  hands,  how  ascertained. . .     652 
IS  Penalty  for  not  giving  names 652 

19  Hands,  how  summoned 653    654 

20  Duty  of  overseer  as  to  work  on. . .     655 

21  Report  of  defaulters 055 

23  Special  work  on 658 


23  Credit  for  special  work 

24  Defaulters,  how  dealt  with. 

25  Extraordinary  implements. 


26  May  be  parceled  out. 

27  Duty  of  applicant 661  to 

28  Remedy  for  unjust  parceling 

29  Excuse  of  defaulters,  when  made. 

30  Process  against  defaulters 

31  Fines,  how  disposed  of 

32  Grarnishments  against  employers. . 

33  Lien  of  commissioners'  judgment. 

34  Use  of  timber  for  roads 

35  Timber,  how  paid  for 

36  Shall  be  measured  and  posted 

37  Guide  boards  at  forks  of. 

38  Overseer's    liability    for    neglect 
673,674 

39  Redress  of  land  owners'damaged  by 

40  Damages  assessed  by  jury 

41  Competency  of  jurors 

42  Trial,  how  conducted 

43  Notice  to  parties  and  witnesses. . . 

44  Time  and  place  of  trial 

45  Objections  to  jurors 

46  Continuances 

47  Who  presides  at  trial 676 

48  Mistrial 

49  Certiorari  of  proceedings 

50  Fin al  j udgmen t,  damages,  how  paid 

51  Value  of  land,  how  estimated 

52  Prospective  andcousequential  dam- 
ages   

53  Penalty  for  altering 

54  Penalty  for  obstructing 690 

55  Neglected  streets,  how  worked . . . 

56  Appointment  of  overseers 

57  Trial  of  defaulters 

58  On  district  line,  how  worked 

59  Railroad  crossings,  how  repaired 

740,  741,  747  to 

60  R.  R.  Companies  shall  not  use.. . . 

61  Overseer's  duty    as    to    crossings 

62  Duty  of  commissioners  as  to  cross- 
ings  747  to 

63  Jurisdiction  of  Inferior  Court  over 
Robbery. 

1  Definition  and  punishment.4223  to 

2  Assault  with  intent  to  rob.  .4294  to 
Rogues  and  Vagaisonds 

1  Definition  and  punishment 

Rosin. 

1  Shall  be  inspected  before  shipment 
Rules  against  Officers. 

1  Law  regulating 3872  to 

Rules  for  New  Trial. 

Grounds  of 3662  to 

When  to  be  applied  for 3668 

Service  of 

AVho  may  decide  on 

Operate  as  supersedeas,  when. . . . 

May  be  amended 

Rules  of  Court. 

1  How  established 

2  Binding  force  ot 

3  Of  Supreme  Court,  how  established 

4  Irregular  rules  void 


657 

658 
659 
660 
663 
664 
665 
666 
667 
668 
669 
670 
670 
671 
672 

688 
676 
676 
677 
678 
679 
680 
681 
682 
682 
683 
684 
685 
686 

687 
689 
4527 
691 
698 
698 
704 

751 
753 

747 

749 
346 

4325 
4295 

4477 

1572 

3885 

3667 
3670 
3G73 
3669 
3674 
3452 

3181 
192 
205 

3182 


INDEX. 


1059 


Rules  to  Establish  Lost  Papers. 

1  In  Superior  Court 3906  3908 

2  In  Justice's  Court 3914 

Sabbath. 

1  Trading  or  working  on,  punished.  4493 

2  Not  counted,  when 4,  2747  3551 

3  Penalty  for  running  freight  trains 

on 4492 

4  Illegal  bathing  on,  punished 4494 

5  Keeping  open  tippling  house  on, 
penalty 4461 

6  Attachments  may  issue  on 3207 

7  Bail  may  be  served  on 3355 

8  Fines  for  violating,  how  disposed 

of 4495 

Sabbath  Schools. 

1  Certain  fines  go  to  promote 4495 

Salaries  of  Officers. 

1  Standing  appropriation  for 1633 

2  Of  Governor 1634 

3  Of  Governor's  Secretaries 1634 

4  Of  Governor's  messenger 1634 

5  Of  Judges  of  Supreme  Court 1640 

6  Of  Reporter  of  Supreme  Court. . .  1640 

7  Of  Judges  of  Superior  Court 1640 

8  Of  Solicitors  General 1640 

9  Of  Comptroller  General 1634 

10  Of  Comptroller's  Clerk 105  1634 

11  Of  State  Treasurer 1634 

12  Of  Treasurer's  Clerk 91  1634 

13  Of  Secretary  of  Slate 1634 

14  Of  State  Librarian 1634 

15  Of  Legislative  officers 185  1639 

16  Of  Superintendent  of  W.&  A.  R.R.    972 

17  Of  Superintendent  of  G.  M.  1 1239 

18  Of  Trustees  of  Lunatic  Asylum . . .   1636 

19  Of  Officers  of  Lunatic  Asylum 1638 

20  Of  Officers  of  Penitentiary 1636 

21  Of  mihtary  storekeepers 1636  1637 

22  Pay  of  officers,  when  none  is  fixed  1635 
Sales. 

1  Under  process  from  County  Court    300 

2  Under  wills,  how  made 2526 

3  Under  tax  ji.  fas.,  how  made 893 

4  By  guardians 1819 

5  By  trustees 2301  2302 

6  By  administrators 2513  to  2528 

7  By  Constables 4112  4114 

8  Under  execution 3598  to  3606 

9  Judicial  sales 2577  to  2586 

10  Under  distress  warrants.. 4010  4011 

11  Property  exempt  from 897  2013 

12  To  evade  taxes,  are  void 810 

13  By  limited    partnerships,    void — 
when 1929  1930 

14  Of  mortgaged  goods — purchaser's 
bond 1958 

15  Private  sales 2587  to  2614 

Salt. 

1  Inspection  of. 1569 

Satisfaction  op  Executions. 

1  Law  relating  to 3607  to  3610 

Savannah. 

1  Laws  in  reference  to 4724  to  4889 

Schedules. 

1  01  insolvent  debtors 1988 


2  May  be  amended 3451 

3  Of  property  in  divorce  cases 1719 

4  Of  County  orders 595    602 

School  Fund. 

1  Ordinary  is  Treasurer  of 378 

2  Ordinary's  duty  as  to 380 

3  Of  State,  how  made  up.. .  .1269  to  1274 

4  How  paid  out  by  the  State.  1275  to  1279 

5  Of  Counties,  how  made  up.  1280  to  1284 

6  How  managed  by  Counties.  1285  to  1299 

7  Beneficiaries  of 1300  to  1302 

Schools. 

1  System  of,  in  Georgia 1285  to  1299 

2  Beneficiaries  of 1300  to  1302 

Scire  Facias. 

1  Against  bail,  where  issued 3340 

2  How  issued,  directed  and  served 
3364,3366  3367 

3  Judgment  on 3369 

4  To  make  parties 3381  to  3383 

5  Amendment  of 3439 

6  To  revive  dormant  judgment 

^...3381  to  3383 

7  On  forfeited  recognizances 4606 

8  On  vagrant's  bond 4496 

9  Duty  and  fee  of  Solicitor  in  such 
case 4497 

Seal. 

1  Meaning  of,  in  statutes 5 

2  Of  Executive  Department 73 

3  For  County  Court  310 

4  Of  Notaries  Public 1509 

5  Officers  that  must  keep 123 

6  What  contracts  are  under 2864 

7  Indorsement  need  not  be  under. . .  2734 
Seal  of  Georgia. 

1  Where  kept 80 

2  Description  of. 81 

Seal  op  Executive  Department. 

1  Prescribed 73 

Seamen. 

1  Proceedings  against  defaulting 1549 

2  Warrants  to  search  for  and  seize. .  1550 

3  Shall  not  be  credited 1551 

4  Shall  not  be  furnished  with  liquor  1552 

5  May  demand  certificate  of  service  1553 

6  Shall  not  be  employed  without. . . 
1554  1555 

7  Penalty  for  inveigling 1556 

8  Penalty  for  aiding  escapes  of. ... .  1557 

9  Harboring,  penalty  for 1558 

10  Other  laws  concerning 1559 

Searches  and  Seizures. 

1  Security  against 4907 

Search  Warrants. 

1  Law  regulating 4907,  4659  to  4663 

Secretaries  op  Governor. 

1  Governor  may  appoint  two 67 

2  Their  salaries 1634 

Secretary  op  the  Senate. 

1  Election  and  official  term  of 182 

2  His  duties 176, 188  to    190 

3  Duty  of,  as  to  Senate  journals 1034 

4  Assistants  and  Clerks 180 

5  He  and  subordinates  shall  take  oath    183 

6  Who  may  administer  the  oath. . . .     184 


1060 


INDEX. 


7  Pay  of,  and  his  subordinates. . .  185 

8  Qualifications  of  under  Clerks 

Secretary  op  State. 

1  Election  of. 

2  Bond  of,  and  how  used  as  proof. . . 

3  Office  and  residence  at  capital. . . . 

4  Shall  give  copies  of  records. 

5  Has  no  perquisites j 

6  Is  also  Surveyor  General. 

7  Shall  do  duties  of  both  offices 

8  Shall  keep  Great  Seal  of  State 

9  Duties  of,  specified 80 

10  Shall  not  speculate  in  wild  lands. . 

11  Shall  furnish  land  maps 

13  Military  duties  of. 

13  Duty  as  to  military  property 

14  Is  Chief  of  Staff  organization .... 

15  Salary  of 

Seduction. 

1  Action  for,  by  parent 

2  Indictment  and  punishment  for. .. 

3  Prosecution  for,  how  stopped 

Seizures. 

1  Security  against 

•2  By  pretended  U.S.  Agents,  penalty 
Senate  of  Georgia. 

1  How  composed 

2  Qualifications  of  Senators 

3  President  of,  how  chosen .HI 

4  Secretary  of,  and  his  duties 

5  Has  sole  power  to  try  impeachment 
Senatorial  Districts ^ 

1  Number  of,  and  how  composed . . . 
Senators  in  Congress. 

1  When  elected 

2  Commissioned  under  Great  Seal. . 

3  Resignation  of,  how  commuuicated 
Separate  Estates. 

1  Of  married  women 1765  to 

Separate  Maintenance. 

1  Of  wife — alimony 1731  to 

Servants. 

1  Illegal  employment  of,  indictable . 

2  Enticement  of. 

3  Master  and  servant 

1862  to  1864,2909 

Service  op  Process. 


1  Against  Counties. 


2  Against  individuals 

3  Against  R.  R.  Go's 2988,  2994 

4  Against  Banks  for  acts  of  agent. . 

5  On  Express  Companies 

6  On  Insurance  Companies 

7  On  corporations  and  companies. . 
3293  to 

Set-Opp. 

1  Definition  of 

2  Subjects-matter  of. 2849, 2850, 3413 

3  Judgments  may  be 2851 

4  Allowed  against  beneficiary,  when 

5  In  suits  on  negotiable  paper 

6  Against  testators  and  intestates.. . 

7  Against  mesne  profits 2855 

8  After  plea  of,  plaintiff  can  not  dis- 
miss  

9  Of  debts  not  due,  allowed  when . . 


1639 

187 

1364 

76 

77 

78 

79 

80 

80 

80 

82 

83 

868 

1125 

1128 

1133 

1634 

2958 
4305 
4305 

4907 
4354 

4917 

4918 

4919 

176 

4920 

4917 

1363 
124 
128 

1776 

1742 

4428 
4428 

2910 

526 
3263 
3293 
3337 
3334 
3332 

3300 

2848 
3417 
3415 
2852 
2853 
2854 
3416 

2856 

2857 


10  Differs  from  recoupment 2859 

11  Of  debts  of  testator  or  intestate.. .  3414 

12  Judgment  for  excess  of 3417 

13  Equity  follows  law  as  to 3084 

14  Statutes  of  limitation  apply  to —  3418 
Settleiments. 

1  Of  guardian's  accounts 1830  to  1838 

2  With  administrators 2557  to  2564 

3  Of  criminal  cases 4609  4610 

4  Marriage  settlements 1765  to  1776 

Severance. 

1  Of  joint  offenders  on  trial 4595 

2  Effect  of  continuance  by  one 4596 

3  Of  produce  from  land 4528 

Sheriffs  and  their  Deputies. 

1  Who  are  ineligible 382 

2  Election  and  official  term  of 381 

3  Oath  of 384 

4  Bond  of 385 

5  Bond,  when  to  be  executed.   143 

6  How  approved  and  certified 

150, 151,  386  to    388 

7  Sureties  where  deputy  is  successor.    389 

8  Vacancies,  how  filled 383 

9  Office  of,  where  kept 390 

10  Appointment  of  deputies 391 

11  May  appoint  Jailors 392 

12  Bond  and  oath  of  Jailors 393 

13  Record  of  such  bond  and  oath 394 

14  Jailor's  duty  as  to  U.  S.  prisoners.     395 

15  Liable  for  Jailor's  misconduct. . . .     396 

16  Duties  of  Sheriffs  specified 397 

17  Books  of  when  full,  where  kept. . .     398 

18  Can  not  buy  at  their  own  sale 399 

19  Allowed  only  legal  fees 400 

20  Fined  for  certain  failures 401 

21  Coroner's  liability  same  as,  when.     626 

22  Bond  of  Coroner  acting  as,  when.     627 

23  Who  acts  when  they  are  disquali- 
fied  629,  3266,  3268  3884 

24  Exempt  from  military  duty 1064 

25  Shall  lay  off  prison  bounds 2007 

26  Are  sureties  themselves,  when 2011 

27  Liable  to  rule  or  action 3873 

28  Liability  of 3872,  3873,  3881  3883 

29  Shall  pay  20  per    cent,  interest, 
when 3874  3880 

30  Demand  on  for  money,  how  proved  3875 

31  Subject  to  rule  though  out  of  office  3876 

32  Granting  and  service  of  rules  on. .  3877 

33  Answer  and  proceedings  thereon .  3878 

34  Ruled  without  notice,  when 3879 

35  Lien  of  rule  absolute  against 3880 

36  Punished  for  rejecting  prisoner. . .  4418 

37  Of  Supreme  Court 219    220 

38  Are  officers  of  County  Court 327 

39  Fees  of  in  Supreme  Court 221  3640 

40  Fees  of  in  County  Court 328 

41  Fees  of  generally 3646 

42  Extra  compensation  of 3646 

Sheriff's  Sales. 

1  Time  and  pldce  of 3598  3599 

2  Advertisement  of 3599 

3  Change  of  advertising  paper 3600 

4  Purchaser  to  have  possession  of 
land 3601 


INDEX. 


1061 


5  Order  necessary,  when 3602 

6  Rights  of  widow  and  lessee 3603 

7  Of  land  for  purchase  money 3604 

8  Re-sale  at  purchaser's  risk 3605 

9  Suit  against  purchaser 3606 

Shingles. 

1  Inspection  of 1569 

Shippestg. 

1  Pilotage,  law  governing. .  .1510  to  1548 

2  Seamen 1549  to  1559 

Shootestg  at  Another. 

1  Definition  and  punishment 4304 

Shows  and  Exhibitions. 

1  Forfeiture  for,  without  license. . . .     567 

2  Tax-payer  may  demand  license. . .     570 
8  Proceedings,  if  without  license . . . 

571to    574 

4  Duty  of  officers  in  the  matter 

571  to    574 

Signature. 

1  Meaning  of,  in  statutes 5 

2  By  initials,  may  be  used  in  suits. .  3195 
Skinning  Cattle. 

1  Punishment  for  illegal 4338 

Slander. 

1  Defined— suit  for 2926  2927 

2  Malice,  how  shown 2924 

•3  Truth  of  charge  justifies 2928 

4  Privileged  communications 2929 

5  Malicious  use  of  privilege 2930 

6  Of  title  to  land,  gives  action 2971 

7  Form  of  action  for 3219  to  3221 

8  Costs  in  actions  of 3630 

Slavery. 

1  Forbidden 4909 

Small-Pox. 

1  Conceahiaent  of,  indictable 1407 

2  Punishment  for  spreading 4474 

3  Regulations  to  arrest 1411  to  1415 

Sodomy. 

1  Definition  and  punishment. .  .4286  4287 

2  Attempts  to  commit 4290 

Solicitors  General. 

1  Election  and  qualification  of 

407, 1343, 1344  4976 

2  Qualifications  for  office  of. 410 

3  Oath  and  bond  of. 408 

4  Vacancy,  how  filled 409 

5  Not  ousted  by  change  of  Circuits.  411 

6  Duties  of  specified. 412 

7  Are  subject  to  rule 413 

8  Fined  for  not  attending  Court  . . .  414 

9  May  nol.  pros,  indictments 415 

10  Penalty  for  illegal  costs 415  to    417 

11  Pro  tern.,  appointed  when 419 

12  Agreement  to  inflaence  Grand  Ju- 
ry  ,.     418 

13  Pro  tern,  fees  and  responsibility... .     420 

14  Prosecutions  against 421 

15  Shall  prosecute  cases  from  County 
Court 299 

16  Fee  therefor 299 

17  Fees  not  due  until  case  disposed  of  4611 

18  Fees  of 1640, 1641, 1643, 1644  4497 

19  Salary  of. 1640 


Sovereignty  and  Jurisdiction  of  the 
State. 

1  Jurisdiction  as  to  places 20 

2  Jurisdiction  as  to  persons 21 

Speaker  of  House  op  Representatives. 

1  How  elected 171  4923 

2  Speaker  pro.  tern 171 

3  Pay  of 178 

4  Exercises  executive  powers,  when.  4947 
Special  Bailiff. 

1  Bond,  duty,  power,  and  liability  of 

330    332 

2  His  fees  and  commissions 332    334 

Special  Damage. 

1  Necessary  to  be  shown,  when 2926 

Special  Juries. 

1  How  selected  from  Grand  Jury . . .  8854 

2  Oath  of. 3855 

3  Appeals  tried  by 3574 

Special  Pleading. 

1  Prohibited 3270 

Specialties. 

1  Definition  of 2675  2864 

2  Limitation  of  actions  on 2864 

Special  Verdicts, 

1  In  actions  of  trover 3505  3506 

2  May  be  rendered  in  Equity 4151 

Special  Warrants. 

1  Who  may  issue 4620 

Specific  Performance. 

1  Of  contracts,  decreed  when 3130 

2  Of  parol  contracts  for  land 3131 

3  Of  contracts  for  personalty 3132 

4  Of  voluntary  agreements 3133 

5  Inadequacy  of  price — grounds  of 
denial 3134 

6  Ability  of  party  to  comply 3135 

7  Damages  in  cases  of  impossible 
compliance 3136 

8  Decree  for,  passes  title. 4150 

Specific  Articles. 

1  Promissory  notes  payable  in 2732 

2  Tender  of 2824  to  2826 

Spirituous  Liquors. 

1  License  to  retail,  how  obtained. . .  1432 

2  Vendors  by  the  gallon,  oath  of 1433 

3  Sale  of  to  drunken  persons,  penalty  1436 

4  Sale  of  to  minors,  action  for 2959 

5  Retailing  without  license — penalty  44S1 

6  Vending  near  places  of  worship. .  4490 
Spreading  Small-pox. 

1  Punishment  for 4474 

Squatters  on  Land. 

1  Proceedings  to  eject 4000  to  4004 

Stabbing. 

1  Definition  and  punishment 4303 

Stakeholders. 

1  Responsibility  of 2817 

State  Bonds. 

1  How  authenticated 947 

2  Amounts,  and  how  payable 948    951 

3  Coupons  of,  how  signed  and  paid . 
949    950 

4  Exchange  of  allowed,  when. .  .952    953 

5  New  bonds  for  those  lost 954  to    956 

6  New  bonds  in  lieu  of  stolen 957 


1062 


INDEX. 


7  When  paid,  liow  disposed  of. 958 

8  Bonded  debt,  provision  for 959  960 

9  Disposition  of  surplus 961 

10  Redeemed  in  advance,  report  of. .  962 

State  House  Guards. 
1  Appointed  by  Governor 67, 118    119 

State  Librarian. 

1  Appointed  by  Governor 67 

2  His  salary 1634 

8  Duty  as  to  distribution  of  laws. . . 

1050  to  1062 

4  Other  laws  relating  to 106  to    114 

State  Library. 

1  Where,  how,  and  by  whom  kept. . 
107    108 

2  Catalogue  of  books  in 109 

3  Open  to  citizens 108 

State  of  Georgia. 

1  Boundaries  of 15  to  19 

2  Jurisdiction  of 20  21 

3  Suits  in  which  she  is  interested ...  22 
State  Printer. 

1  When  elected 1364 

2  Law  concerning 1021  to  1042 

State  Seal. 

1  Description  of 81 

2  Keeper  of 80  4957 

3  What  officers  commissioned  under    124 
State  Stocks. 

1  Specification  of 1017  to  10aL9 

State  Treasurer. 

1  Election  of 1364 

2  Bond  of 84 

3  Office  and  residence  at  Capital 85 

4  Shall  give  copy  records 85 

5  Has  no  perquisites 85 

6  Duties  of  specified 86 

7  Office  supervised  by  Governor 87 

8  Settlement  with  successor 88 

9  Deftxulter,  how  dealt  with 89 

10  Shall  keep  record  of  State  bonds.       90 

11  May  have  clerk 91 

12  Exempt  from  military  duty 1064 

13  Salary  of 1634 

State  Treasury. 

1  Payments  from,  how  made 79  4941 

State  University. 

1  Law  in  reference  to 1197  to  1216 

Statutes. 

1  Mode  of  enacting.4930, 4931,  4954  4955 

2  Must  be  published 3 

3  Meaning  of  words  in 5 

4  Construction  of— rules  for 4 

5  Rights  under,  when  sued  for 2865 

Statutes  of  Limitation. 

1  In  actions  ex  contractu 2862  to  2882 

2  New  promise  and  its  effect.2883  to  2887 

3  In  actions  ex  delicto 3003  to  3006 

4  As  to  indictments 4571 

5  In  Equity  cases 2873  4161 

6  As  to  subsisting  trusts 3140 

Statutory  Rights. 

1  Limitation  of  suits  for 2865 

Staves. 
1  Inspection  of. 1569 


Stay  of  Executions. 

1  In  Superior  Courts 3611  to  3613 

2  In  Justice's  Courts 4106 

Steamboat  Companies. 

1  Liability  of  as  carriers 2039  to  2056 

2  Contents  of  freight  receipts 4514 

3  Indictment  for  not  giving  receipt .  4514 
Steamboats. 

1  Lien  on,  and  how  enforced.  1968  to  1972 
Stocks. 

1  Are  personalty 2211 

2  How  levied  on  and  sold 2584  3222 

3  Belonging  to  the  State 1017  to  1019 

Stone-Cutters. 

1  Lien  of 1974 

Stoppage  in  Transitu. 

1  Right  of  exists,  when 2049  2607 

2  ES'ect  on  carrier's  liability 2048 

3  Rights  ofpurchaser  of  bill  of  lading  2608 
Strays. 

1  Law  relating  to 1440  to  1450 

Streams. 

1  Ownership  of,  and  right  to 

2201,  2202  2205 

2  Riparian  rights 2204  2206 

SUBPCENA. 

1  For    witnesses,   how    issued  and 
served 3788 

2  In  equity  cases,  issue  and  service. .  4126 
Subpcena  Duces  Tecum. 

1  How  issued  and  served 3463 

2  Penalty  for  disobeying 3464 

3  How  complied  with 3464 

4  For  books,  how  complied  with.3466  3467 
Subornation. 

1  Of  perjury  and  false  swearing 4397 

2  Punishment 4398 

3  Convict  of,  cannot  be  witness 4399 

Subrogation. 

1  Of  sureties 2150  2151 

Substitution. 

1  Of  legacies 2428 

2  Of  pilots 1520 

3  In  military  service 1182 

Suits. 

1  See  Actions,  beginning  at 3186 

Sunday. 

1  Not  counted,  when 4,  2747  3557 

2  Work  and  trade  on,  forbidden ....  4493 

3  Runningfreight  trains  on,  punished  4492 

4  Bathing  on,  punished  when 4494 

5  Keeping  open  tippling  house  on. .  4461 

6  Fines  for  violating,  how  used 4495 

7  Attachments  may  issue  on 3207 

8  Service  of  bail  on 3355 

Sunday  Schools. 

1  Promoted  by  certain  fines 4495 

Supersedeas. 

1  By  whom  granted. 237 

Superior  Courts. 

1  How  often  held 231, 3173  4974 

2  Table  of  sessions 3174 

3  Authority  and  jurisdiction  of 

236.,  4964  to  4973 

4  Duties  of  Clerk  of. 256 

5  Authority  of  Clerk 557 


INDEX. 


1063 


6  Dockets  of,  ennmerated 

7  Adjournments  of,  by  Cierk. .  .3175 

8  Causes  of  adjournment 

9  Adjourned  terms  held,  when 

10  Special  sessions  of 

11  Receivers  are  officers  of 

13  May  order  investment  of  funds. .. 

13  Bank  receivers  amenable  to 

14  Rules  of  practice  in,  how  made. . . 

15  Contingent  expenses  of,  how  paid. 

SUPPLEIMENTAL  BiLLS. 

1  Need  not  be  tiled. , 

Support. 

1  Of  families  of  decedents 

2415,2530  to 

SuPREiviE  Court. 

1  Powers  of  vested  in  three  Judges. 

2  Eligibility  of  Judges 

3  Election  and  official  term  of  Judges 

198 

4  Oath  of  Judges 

5  Chief  justice  of 198 

6  Two  Judges  may  hold 

7  When   Judges  incompetent,  who 
holds 

8  Unanimous  decision,  how  changed 

9  Rule  of  decision,  when  two  pre- 
side  206 

10  Authority  and  jurisdiction  of 

11  Officers  of. 

12  Clerk's  oath  and  term 

13  Clerk  may  appoint  deputies 

14  Duties  of  Clerk  and  deputies . .  209 

15  Fees  of  Clerk 

16  Fees  may  be  increased  or  diminish- 
ed . . ... 

17  Who  liable  for  costs  in 212 

18  Costs — mode  of  taxing 211 

19  Damages  for  delay 

20  Reporter — oath  and  term  of 

21  Reporter  may  have  assistant 

22  Reporter's  duties. 

23  Reports,  shall  contain,  what 

24  Sheriff  of 

25  May  appoint  special  Sheriff. 

26  Sheriff's  fees  in 221 

27  Attorneys,  how  admitted . 

28  Times  and  place  of  holding.  .3170 

29  How  and  for  what  cause  adjourned 

30  Adjournment  to  another  place. . . . 

31  Bill  of  exceptions. 4191  to 

32  Order  of  hearing  cases  to  be  fixed. 

33  Such  order  to  be  published. ...... 

-34  Number  of  cases  to  be  published. . 

35  Mode  of  announcing  decisions 

36  Cases  to  be  decided,  when 

37  Continuances 

•38  Decision  may  be  withheld  one  term 

39  Arguments  by  brief . 

40  Brief,  how.  sent  and  disposed  of 
4213  to 

41  Parties,  how  made  in 

42  Diminution  of  record 

43  Proceedings  in  such  case 

44  Majority  decides  cases 

45  Decision  and  power  of  Court 


256 
3176 
3177 

3178 

3178 

265 

269 
3181 
3642 

4122 


2537 

198 
201 

4960 
199 
200 
200 

203 
204 

4218 
205 
207 
208 
209 
210 

3638 

3639 

4225 

4226 

4221 

213 

214 

215 

216 

219 

220 

3640 

438 

4961 

3171 

3172 

4207 

4208 

4208 

4209 

4210 

4211 

4211 

4962 

4212 

4215 
4216 
4217 
4217 
4218 
4219 


46  Remitter 4220 

47  Supersedeas  ceases,  when 4222 

48  Admendment  of  bill  of  exceptions  4223 

49  Transcripts  of  records,  filed 4224 

Sureties. 

1  On  official  bonds,  how  relieved. . .  159 

2  Of  deputy  who  succeeds  Sheriff. . .  389 

3  Of  bridge  builders,  can't  be  road 
commissioners 717 

4  Of  guardians,  how  relieved 1808 

5  May  take  mortgage  for  indemnity.  1953 

6  Attachments  in  favor  of. 3211 

7  Judgments,  how  entered  against. .  3514 

8  Rights  and  liability  of 2124  to  2132 

9  Rights  against  principal. .  .2133  to  2145 

10  Rights  against  each  other.. 2146  to  2149 

11  Subrogation  of 2150  2151 

12  Of  administrators,  how  relieved. . .  2470 

13  Of  trustees,  how  relieved 2315 

Surgeons. 

1  Malpractice  of,  suit  for 2922 

2  Other  law  as  to 1416  to  1428 

G  TT  T>  T>  "D  X  O  Tji 

1  Definition  and  effect  of. 3123 

Surveyor,  County. 

1  Law  as  to 607  to    621 

Surveyor  General. 

1  Office  of,  blended  with  Secretary 

of  State 80 

Surveys. 

1  When  and  how  far  evidence 619 

2  Penalty  for  illegal  surveys 622 

Sutlers, 

1  How  appointed  1150 

2  Not  liable  as  retailer 1150 

Swindlers. 

1  Crimes  by 4499  to  4514 

Talesmen. 

1  Juries  made  up  by 3862 

2  In  criminal  cases 4584 

Tar. 

1  Inspection  of 1569  1572 

2  How  marked  for  shipment 1572 

Tare. 

1  Allowed  on  rice 1597 

2  On  other  articles 1598 

Tavern  and  Retail  License. 

1  Law  regulating 1432  to  1437 

2  Retailing  without  license 4481 

3  Selling  liquor  to  drunken  persons .  1436 

4  Charge  for , 564 

Tax  (State.) 

1  Property  exempt  from 796 

2  Subjects  of  taxation .797  to  800 

3  Amount  of,  and  how  assessed. . . . 
801  to  803 

4  In  what  paid 804 

5  Mode  of  netting  digests 805 

6  Specific  taxes 806 

7  Poll  tax,  and  who  subject  to 806 

8  Property  exempt,  when  owner  is 
taxed  for  keeping  it 807 

9  Does  not  affect  license  laws 808 

10  Lien  for,  paramount 809 

11  Conveyances  to  evade  are  void. . .  810 

12  Property  and  vendee  bound 811 


1064 


INDEX. 


33 

24 

25 
26 


13  On  banks 812 

14  On  railroads  and  other  companies.  813 

15  On  private  bankers  and  brokers, .  814 

16  On  railroads,  how  assessed 815 

17  On  agents  of  foreign  banks  and 
brokers 816 

18  On  foreign  insurance  companies . .  817 

19  On  express  companies 818 

20  On  managers  of  lotteries.. .  .819  to  821 

21  On  corporations,  how  returned  and 
paid 822,  828  829 

22  How  returned  and  paid  by  other 

companies 823 

Of  mining  companies,  where  re- 
turned    824 

Return  of  mines,  etc.^  on  County 

lines 825 

Returns  of  non-residents 826  827 

Returns  by  other  companies,  etc. . . 
823  830 

27  Oath  of  tax  payer  and  agents. . . . 
831  to  833 

28  Time  of  returning  and  paying 830 

29  Penalty  for  false  oath 834 

30  Returns  to  be  scrutinized 835 

31  Tax  payers  may  complain  of  re- 
turns   837 

32  Property  may  be  valued  by  assess- 
ors   836 

83  Oath  of  assessors 838 

34  Relief  against  double  tax. .  .839  to  841 

35  Form  and  number  of  digests..  .842  845 

36  Lauds,  how  returned 843 

37  How  entered  in  digests. 844 

38  Mistakes  in  digests,  how  corrected  846 

39  Refunded,  in  what  cases 847  848 

40  Doubtful  cases  referred  to  Legisla- 
ture   849 

41  Defaulters,  how  taxed 850  852 

42  Unreturned    proper tj',  how   dealt 
with a51 

43  Agents  of  non-residents,  liable  for.  853 

44  Time  of  payment  by  Collector 854 

45  Insolvent  lists,  how  allowed.854  to  861 

46  Indulgence  of  new  officers.-. .  .862  863 

47  Schedule  of  defaulters 864 

48  Time  given  in  other  cases, ...  865 

49  Of  former  years  to  be  collected. . .  866 

50  Estates  not  in  default,  when 867 

51  Land  map  to  be  furnished 868 

52  Lands,  how  given  in  and  assessed . 
869to  877 

53  Fi.  fas.  against  defaulting  corpor- 
ations    879 

54  Penalties  against  them. , 880  881 

55  Default  tax  on  insurance  companies  882 

56  On  foreign  bank  agencies 882 

57  On  express  companies 882 

58  Against  lottery  dealers 883 

59  tlow  assessed  when  no  return 884 

60  Comptroller's  Ji./(X8,,  how  directed  885 

61  Against  foreign  institutions 886 

62  Collections  to  be  sent  to  Comptrol- 
ler    887 

63  Relief  against  unjust  default 888 

64  Collector's  Ji.  /(xs.,  how  directed..  889 


65  Fee  for  tax  fi.  fa.  and  how  paid. . .  890 

,  66  Taxj^.  fa.,  by  whom  levied. .  .891  8^2 

67  Sales  under  U^  fi.  fas 891  893 

68  Excess,  to  whom  paid 894 

69  Validity  of  conveyance 895 

70  Purchaser  shall  have  possession.. .  896 

71  Property  exempt  from  sale 897 

72  Claims  against  tax  sales 898 

73  Sale  of  unreturned  property 899 

74  Proceeds,  how  disposed  of. 899 

75  Land  sold,  how  redeemed     900 

76  Tax  fi.  fa.  runs  to  any  County . . ,  901 

77  Penalty  on  defaulting  brokers,  etc.  902 

78  On  defaulting  corporations,  etc. . .  903 

79  Governor  may  suspend  collection 

of 70 

80  In  lieu  of  military  duty.  1064, 1008  1074 

81  Garnishments  for  taxes 3499  3500 

82  Treasurer  shall  keep  account  of. . .  86 

83  ISTo  judicial  interference  with 3618 

Tax  (County.) 

1  Levied  by  Inferior  Court 346 

2  On  account  of  the  poor 779 

3  For  Court  Houses  and  Jails 536 

4  For  new  County,  how  levied 34 

5  Other  law  relating  to 543  to  556 

Taxation. 

1  Power  of,  by  whom  and  for  what 
used 4905 

2  Judgments  against  Counties  paid 

by 542 

3  Authority  of  Inferior  Court  as  to ,  562 

4  Remedy  against  improper, 562  888 

5  Persons  and  property  exempt  from  796 

6  Subjects  of 796  to  801 

7  Specific  taxation 806 

8  Assessments,  by  whom  and  how 
made.. 802 

9  System  of  is  ad  valorem 801 

Tax  Collectors. 

1  Election  and  term  of. 930  1347 

2  Bonds  of  and  when  executed.  ,143  933 

3  How  approved,  filed,  and  certified 
..:. ,  1;50'  1.51 

4  Property  of   bound  from  date'  of 
bond : 915 

5  Vacancies,  how  filled 931 

6  Oath  of 932 

7  Forfeiture    for   premature   collec-  , 
tions 917  918 

8  Penalty  for  altering  digests 910 

9  Duties  of  specified 937 

10  Negligence  of  no  execuse  to  tax- 
payer    938 

11  Shall  collect  County  tax 554 

12  Liability  as  to  County  tax 554  556 

13  Bond  of  for  County  tax — approval 

of 934 

14  Comptroller  prescribes  rules  for. . .  940 

15  For  County  tax,  appointed  when .  935 

16  Bond,   oath,  and  liability  of  ap- 
pointee   936 

17  Failing  to  settle,  how  dealt  with.Ml  912 

18  Fi.  fas.,  against,  how  executed. . .  913 

19  Such  fi.  fas.,  how  suspended 914 

20  Sales  under  fi.  fas.  against 916 


mDEX. 


1065 


21  Compensation  of 

22  Commissions  of  on  County  tax, . . 

23  Such  commissions,  how  assessed. . 

24  May  issue  garnishment  for  taxes . . 
3499 

Tax  Payers. 

1  May  complain  of  tax  returns 

2  Rights  of  as  to  County  tax 537 

3  Delinquent,  proceedings  against. . 
, .'879  to 

Tax  Receivers. 

1  Bond  of,  when  to  be  executed. . . , 

2  How  approved,  filed,  and  certified . 
150 

3  County  tax  assessed  on  books  of. . 

4  Forfeiture  for  not  completing  di- 
gests   

5  Forfeiture  for  defective  digests. 905 

6  Liability^  how  enforced 

7  How  dealt  with  for  false  digests. . . 


8  Fi.  fas.  against,  how  executed. . . . 

9  Such  fi.  fas  ,  how  suspended 

10  Property  of,  bound  from  date  of 
bond 

11  Sales  under  fi.  fas.  against 

12  How  elected  and  commissioned. . . 

13  Vacancies,  how  filled 

14  Oath  and  bond  of 

15  Liability  on  the  bond 

16  Duties  of  specified 

17  Negligence  of,  no  excuse  for  tax 
payer 

18  Indictable  for  rejecting  return, . . . 

19  Claim  of  right  to  assess  is  not  re- 
jection  , 

20  Return,  how  made  when  refused 

by 

21  Clerk  shall  forward  return 

22  Compensation  of 

23  Paj'-  of,  from  County 

24  Bond  of  may  be  sued  on. , 

25  Comptroller  may  make  rules  for. . 

26  Shall  obtain  military  statistics.1068 

27  Time  of  electing .., 

Teachers. 

1  Pay  of  for  teaching  the  poor 

2  Examination  of 

3  Certificates  to 

4  How  paid 1290 

5  Accounts  of,  how  made  out 

Telegraph  Companies. 

1  Employees  of,  exempt  from  militia 
duty 

2  Punishment  for  interfering  with . . 
Tenancy  at  Will. 

1  Exists  when 

2  How  terminated 

3  Notice  to  quit 

4  Tenant  has  emblements,  when. . . . 
Tenancy  in  Common. 

1  Substituted  for  joint  tenancy 

2  Definition  of 

3  Rights  and  liability  of  co-tenants . 

4  Adverse  possession,  what  is 

5  Partition  of  property 

72 


939 
554 
555 

3500 

837 

547 

903 

143 

151 
553 

904 
906 
907 

909 
913 
914 

915 
916 
919 
920 
921 
922 
923 

924 
925 

926 

926 

927 
939 
929 
943 
940 
1069 
1347 

1287 
1286 
1288 
1291 
1292 


1064 

4372 

2264 
2264 
2265 
2266 

2274 
2275 
2276 
2277 
2278 


Tenants. 

1  Rights  of  genersiiny 2255 

2  Shall  deliver  possession, 2256 

3  Can  not  dispute  landlord's  title. . .  2257 

4  Can  not  attorn  to  another 2257 

5  Lien  on  crops. ... 2261 

6  Notice  to  quit  by  tenant  at  will.   .  2265 

7  At  will,  have  emblements,  when. .  2266 

8  In  common,  rights  and  liability  of.  2276 
&  Adverse  possession  by  in  common.  2278 

10  For  life,  law  concerning. .  ,2229  to  2235 

11  For  years,  law  relating  to.. 2249  to  2251 

12  In  common,  may  sue  alone... 3194  3282 

13  Holding  over  or  in  arrears,  how 
dealt  with .4005  to  4013 

Tender. 

1  Nature  and  effect  of.. 2823 

2  Of  specific  articles,  how  made. . . .  2824 

3  When  and  where  made. . . ,. 2825 

4  Effect  of  tender  of  specific  articles  2826 

5  Of  damages  by  railroad  companies  2994 

6  Of  damages  for  torts,. 3001 

7  Of  personalty  sued  for. . , 3002 

Tenure. 

1  Of  realty  in  Georgia. 2195 

Testamentary  Capacity. 

1  Law  defining. 2370  to  2377 

Testimony. 

1  Attendance  and  fees  of  witnesses . 

3788  to  3795 

2  Competency  of  witnesses.  .3796  to  3805 

3  Examination  of  witnesses .  3806  to  3820 

4  Interrogatories  and  depositions. ... 
3821  to  3835 

5  Perpetuation  of  at  law 3836  to  3840 

6  Perpetuation  of  in  Equity. 3053  to  3056 

7  General  rules  as  to. 3703  to  3716 

8  Hearsay ,..3717  to  3729 

9  Admissions  and  confessions.3730  to  3746 

10  Parol  to  affect  written.. . ,  .3747  to  3756 

11  Discovery  from  parties. ..  .3757  to  3761 

12  Records  and  public  documents . . ... 
3762  to.  3777 

13  Private  writings 3778  to  3787 

Testimony  de  Bene  Esse. 

1  When  allowed 3055  3839 

Testimony,  Perpetuation  of. 

1  At  law— mode  of 3836  to  3840 

2  How  done  in  Equity 3053  to  3056 

Threatening  Letters. 

1  Punishment  for  sending 4433 

Theft. 

1  Kinds  of  and  punishment. 4326  to  4358 
Timber. 

1  H^ow  inspected  and  measured 1569 

2  Penalty  for  buying  or  selling  drift- 
ed  1570.1571 

3  Illegal  measurement  of,  indictable  4512 
Time. 

1  Present  or  past  includes  future 4 

2  How  counted  in  life  insurance. . . .-  2781 

3  When  of  the  essence  of  con  tracts,  v  2715 

4  Is  of  the  essence  of  Court  contracts  2724 
Tippling  Houses. 

1  Punishment  for  keeping  open  on 
Sabbath 4461 


1066 


INDEX. 


Title.   UlU'^'  '    ^ V   iUM       "7ol^ 

1  Definition  of T  .VT 2317 

What  is  perfect  title 2318 

Orisjin  of,  to  lands , 2319 

By  prescription .2686  to  2647 

To  land  passes  only  bj"-  writing. . .   1940 
Of  bona  ^(Repurchaser,  when  good 
2597  2598 

7  Slander  of,  gives' action 2971 

8  Verdict  in  trover,  effect  of  on 3024 

9  Decree  of  partition  passes 3128 

10  Decree    of    specific    performance 
passes 4150 

11  Tenant  can  not  deny  landlord's. . .  2257 

12  To  produce,  passes  only  on  pay- 
ment for 1589 

13  How  made  wiiere  parties  to  bond 

for  are  dead. 2508  to  2512 

Tobacco. 

1  Inspection  of 1569 

Toll. 

1  At  bridges  and  ferries,  how  regu- 
lated      710 

2  Rates  to  be  posted,  penalty  for  neg- 
lect      723 

3  Excessive  toll  prohibited 725 

4  Penalty  for  illegal  charges  of 727 

5  Rates  of,  annually  examined 726 

6  Forfeiture  for  evading 735 

7  Militia  on  duty  shall  not  pay 1174 

8  For  grinding  grain 1466 

Torts  or  Injuries. 

1  What  is  a  tort 2900 

2  Special  damage  before  suit. .  .2900  2901 

3  Failure  of  legal  duty. 2902 

4  Violations  of  private  duty 2903 

5  Election  of  injured  party 2904 

6  Privity  necessary,  when 2905 

7  Fraud  with  damage,  gives  action .  2~906 

8  Deceit,  action  lies  for,  when .  2907 

9  Letters  to  obtain  credit 2908 

10  To  wife,  child,  ward,  or  servant. .  2909 

11  By  wife,  child,  or  servant 2910 

12  By  employee 2911 

13  Ratification  of 2912 

'  14  By  vicious  animals 2913 

15  By  mischievous  dogs 2914 

16  Fraud,  how  committed ,  2915 

17  Abatement  of  actions  for 2916 

18  Physical  injuries .2917  2918 

19  Must  be  prosecuted  if  felonies 2919 

80  Suit  by  widow  or  child  for  homi- 
cide   2920 

21  Diligence  of  injured  party 2921 

23  Malpractice  of  physicians  and  sur- 
geons   2922 

23  Libel  and  slander 2923  to  2930 

24  Malicious  prosecution 2931  to  2938 

25  False  imprisonment 2939  to  2941 

26  Malicious  arrest 2942  to  2945 

27  Ntiisances '. 2946  to  2951 

28  Other  injuries  to  health.. .  .2952  to  2954 

29  Indirect  torts  to  the  person.2955  to  2961 

30  Liability  of  procurers  of  torts 2961 

31  To  real  estate 2962  to  2971 

32  To  personalty  generally. .  .2972  to  2977 


33  By  railroad  companies 2978  to  2995 

34  By  railroads  at  crossings 745 

35  Suits  when  brought  iu  such  case. .     746 
3t]  Justification,  plea  of  and  its  effect.  2996 

37  Extenuation  of  torts  2997 

38  By  consent  of  injured  partj^ 2998 

39  Satisfaction  for. .2999  3000 

40  Tender  of  damages  for 3001 

41  Tender  of  personalty  sued  for 3002 

42  Damages  for,  la\v  of. 3010  to  3024 

43  Partners  not  liable  for  each  others  1906 

44  Infancy  no  defense,  for 8009 

45  Limitation  of  suits  for 3003  to  3006 

Tradesmen. 

1  Accounts  of,  bear  interest 2031 

Transient  Persons. 

1  Where  suable 3339 

2  Liable  to  military  duty 1076 

3  May  be  followed  with  bail  process  3351 

4  Domicil  of 1690 

Treason. 

1  Definition  and  punishment.4246  to  4248 
Treasurer  (County.) 

1  Law  concerning 578  to  606 

2  Time  of  electing 1348 

3  Embezzlement  by. 4368 

4  Fiscal  statement  of 544 

5  Fees  of 3652 

Treasurer  (State.) 

1  Election  of 1364 

2  His  salary 1634 

3  Exempt  from  military  duty.. .....  1034 

4  Law  concerning 84  to      91 

Treasury  (StxVTe.) 

1  Payments  from,  how  made,. . .  .71  4941 
Trees. 

1  Punishment  for  injuring. 4525 

Trespass. 

1  To  personalty  defined 2975 

2  Verdicts  in  actions  of , . .  3020 

3  Certain  acts  of  indictable 4373 

4  Suits  for  in  cases  of  bailment 2976 

5  Suits  for,  by  remaindermen 2977 

6  To  personalty,  suable  for  in  Justi- 
ce's Court 4067 

Trespassers 

1  How  ejected  from  land 4000  to  4004 

2  Verdicts  against 3020 

3  Contribution  amongst 3021 

Trial. 

1  Mode  of,  in  equity  cases 4142  4147 

2  Of  collateral  issues 3554  3555 

3  Joint  offenders  may  serve  on 4595 

4  Indictments  stand  for,  when 4553 

5  Demand  for  b}'-  accused 4554 

Trotter. 

1  Action  of,  lies  when 2974 

2  Proof  of  conversion  dispensed  with, 
when 2974 

3  Verdicts  in  actions.2974, 3024, 3505  3506 

4  Tender  in  actions  of,  and  its  effect  3002 
5.  Lien  of  judgment  in 3024 

6  Effect  of  destruction  of  the  proper- 
ty  3023 

7  Damages  in 3022 

8  Bail  in  actions  of. 3370  to  3372 


INDEX. 


1067 


9  Form  of  action  of. , 3314 

Trustees, 

1  How  appointed  and  removed 

2293  to  2296 

2  Shall  make  inventory  of  trust  prop- 
erly   2297 

3  Returns  of,  how  made 2298 

4  Naked  trustees,  liability  of 2299 

0  Sales  by,  how  authorized 2301 

6  Sales  by,  how  conducted 2302 

7  Rights  of  purchasers  from 2303 

8  Investments  by,  how  made. ......  2304 

9  May  contract  for  labor,  how 2305 

10  Can  not  make  personal  profits. . . ."  2306 

11  Trust  funds  may  be  traced 2307 

12  Income  of  estate,  how  disposed  of.  2308 

13  Can  not  encroach  upon  corpus. . . .  2808 

14  Can  not  create  liens  on  estate 2309 

15  Beneficiary  may  create  debts 2310 

16  Sale  by  beneficiary 2311 

17  Liability  of,  paramount  when.. . . .  2312 

18  Acceptance  of  trust  by. 2313 

19  Extent  of  trust  estate 2314 

20  Sureties  of,  how  relieved 2315 

21  Compensati(m  of  trustees 2316 

22  Power  of  as  to  doubtful  claims. 2498  2500 

23  May  join  in  assignments 2499 

24  May  appoint  attoi'ncy  in  ftict. ....  2498 

25  Fund  to  pay  commissions  but  once  2554 

26  Commissions  of,  how  forfeited. .. .  2555 

27  May  submit  to  arbitration. ...  2498  2883 

28  Negligence  of,  action  for 2955 

29  Consent  of  to  marriage  compelled.  3113 

30  Suits  against,  how  brought. .  .3302  3304 

31  Cestui  que  trusty  sued  when 3303 

32  Lien  of  judgm.ent  in  such  cases. . .  3305 

33  Form  of  j^*.  fa. — on  what  levied. . .  3306 

34  Limitation  of  suits  against.    2871 

35  Trusts  shall  not  fail  for  lack  of. . .  3139 

Trusts  and  Trust  Estates. 

1  Definition,  and  creation  of. , . . .  2279 

2  For  whom  created 2280 

-3  What  will  creat<3,  for  wife 2281 

4  Trusts  are  express  or  implied 2282 

-5  Definition  of  each 2283 

-6  Express  trusts  must  be  in  writing.  2284 

7  Express   trusts  are  contingent  or 
siiifting 2285 

8  Distinction  between  the  two 2285 

9  Resulting  trusts 2286  3138 

10  Merger  in  executed  trusts 2288 

11  Trusts  may  be  limited  on  trusts. . .  2289 

12  Are  implied  in  wiiat  cases 2290 

13  Parol  evidence  to  imply  or  rebut. .  2291 

14  Precatory  words  create,  when. . . .  2292 

15  Equity  jurisdiction  over 8137 

16  Do  not  fail  for  want  of  trustee. . . .  8139 

17  Subsisting  trusts-limitation  of  suits  3140 

18  Belief,  how  moulded  in  cases  of. . .  3141 

19  Claims  against,  how  recovered. . . . 
, 3801  to  3306 

Turnpike  Roads. 

1  Law  regulating. . , 707  to    739 

2  Shall  not  use  highways 753 

"3  Militia  on  duty,  pass  toll  free  ....  1174 


Turpentine. 

1  Inspected  before  shipment 

2  How  put  up,  and  inspected. .  .1573 
Turtles. 

1  Time  of  taking 

2  Penalty  for  illegal  taking.. 

Umpire. 

1  Award  by,  good 

United  States  Senator. 

1  When  to  be  elected 

2  How  commissioned « 

3  Resignation  of,  how  communicated 

University  of  Georgia. 

1  Government  of,  where  vested 

2  Corporate  name  and  style  of  trus- 
tees  

3  Number  of  trustees — quorums : . . . 

Vacancies,  how  filled 

Powers  of  trustees 

Meetings  and  action  of  trustees. . . 
Trustees  lose  places,  when 

8  Stocks  of  not  to  be  disposed  of.. . . 

9  Report  of  trustees,  annually 

10  Board  of  visitors — their  duty 

11  Reports  submitted  to  Legislature.. 

12  Ofiicers  of  to  be  of  Christian  reli- 


gion. 


1573 
1574 

1616 
1617 

2839 

1363 
124 
128 

1197 

1198 
1199 
1200 
1201 
1202 
1203 
1204 
1205 
1206 
1207 

1208 
1209 

1210 
1211 

1213 
1213 
1214 
1215 
1216 
4937 

4440 
4367 

4473 

2952 
447^ 

1 

3752 

2024 
2025 
2026 
1478 
3419 
3420 

4092 

Vagabonds  and  Rogues. 

1  Definition  and  punishment  of 4477 

Vagrants  and  Vagrancy. 

1  Definition  and  punishment  of. 4476 

2  Proceedings  on  violation  of  bond  of  4496 

3  Duty  and  fee  of  Solicitor. 4497 


13  Need  not  take  certain  oaths 

14  Chancellor  may  go  before  Legisla- 
ture  

15  May  confer  degrees 

16  Rights  of  graduates  in  law  and 
medicine 

17  Other  schools  connected  with 

18  Campus  of,  not  to  be  sold 

19  Deficiency  of  income,  how  met. . . 

20  Laws  relating  to,  kept  in  force .... 

21  Legislature  shall  endow. 

Unlawful  Assemblies. 

1  Punishment  of 

Unlav^pul  Mining. 

1  Defined  and  punished 4366 

Unwholesome  Bread  or  Drink. 


1  Punishment  for  selling. 


Unwholesome  Provisions. 

1  Action  for  sale  of 

2  Punishment  for  selling. . . ,. .  .4472 
Usage. 

1  When  binding ; 

2  May  be  proved  for  wha^t  purpose . . 
Usury.  ^f/ 

1  Definition  of r^\ 

2  Effect  of 

3  Interest  from  date  is  not,  when . . . 

4  By  banks,  forbidden 

5  Plea  of  must  set  forth,  what 

6  Examination  of  parties  as  to 

7  Plea  and    proof  of,  in    Justice's 
Court 4090  to 


^^1''''^. 


C  r^  ^%^ 


O 


10@8 


INDEX. 


VENDnfG  NEAR  CASrP   GROUNDS. 

1  Punishment  for 4491 

Vendor  and  Purchaser. 

1  Vendor's  equitable  lien  abolished .   1978 

2  Private  s^es,  law  of 2587  to  2G14 

Vendue  Masters. 

1  Privileges  of,  how  obtained 

2  Liable  for  selling  stolen  horse.., . . 

3  Tax  on 

4  Memorandum  of  sales  by 

5  A.re  agents  of  buyer  and  seller. . . . 

6  May  sue  for  goods  sold  by  them . . . 
Vessels. 

1  Plundering — punishment 

Venue. 

1  Of  civil  cases  at  law 3325 

2  Of  suits  respecting  titles  to  land. , 
3326 

3  Of  suits  against  several  in  different 
Counties. 3327 

4  Of  suits  against  makers  and  indor- 
dorsers 3328 

5  Of  suits  against  R.  R.  companies. 
746,2890 

6  Of  suits  against  lessees  of  railroads 

7  Of  suits  against  insurance  compa- 
nies  3331 

8  Of  suits  against  express  companies 


9  Of  suits  against  banks.  .3336,  3337 

10  Of  suits  against  non-residents 

11  Of  scire  facias  against  bail 

12  Of  scire  facias  to  revive  judgment 

13  Of  suits  in  equity 4124 

14  Of  suits  against  W.  and  A.  R.  R. 
..." 746,978 

15  Of  indictments 4576  to  4578 

16  Change  of,  in  criminal  cases.  .4593 
Verdicts. 

1  Must  cover  the  issues 

2  Must  show  on  what  plea  found . . . 

3  Construction  of 

4  May  be  moulded 295 

5  Alternative,  in  actions  of  trover. . 
3024 

6  Option  of  plaintiff  as  to 

7  Effect  and  lien  of,  in  trover 

8  Against  joint  trespassers 

9  In  trials  of  citizenship 3966 

10  Form  of,  in  divorce  cases 3507 

11  Special  in  equity 

12  How  received 

,  13  Amendment  of 3441  to 

14  Obtained  by  perjury,  set  aside. . . . 
Vicious  Animals. 

1  Liability  «f  owner,  for  acts  of.2913 
Voluntary  Conveyances. 

1  Void  against  creditors,  when .   ... 

2  Void  against  purchasers,  when. . . 
Volunteers. 

1  Equity  of,  inferior. 

2.  Accidents  and  mistakes  of,  not  re- 
lievable 

3  Specific  performance   decreed  in 
favor  of,  .w^hen. 


1438 
1439 

806 

2588 
2588 
2183 

4342 

4971 

4967 

4972 

4973 

3329 
3330 

3332 

3335 
3338 
3339 
3340 

3548 
4967 

2890 
4966 
4966 

3501 
3502 
3503 
3504 

3505 
3506 
3024 
3020 
3968 
3508 
4151 
3509 
3443 
4400 

2914 

1942 
2590 

3033 
3061 
3133 


4  Marriage  settlements  enforced  in 
favor  of. 

5  Who  are,  in  respect  to  such  settle- 
ments  

Volunteers  (Military.) 

1  Laws  concerning 1080  to 

Voters. 

1  Qualifications  and  oath  of 

1303  to  1307 

2  How  affected  by  change  of  Coun- 
ties  

3  Lists  of,  to  be  examined  by  Grand 
Ji^iy 

4  Exempt  from  arrest,  when 

5  Shall  not  be  influenced  as  to  voting 
Votes. 

1  Punishment  for  buying  or  selling. 
Voting  Illegally. 

1  Punishment  for 4484 

2  Duty  of  Grand  Jury  as  to 

Vulgar  and  Obscene  Language. 

1  In  presence  of  females,  punished . . 
Wages. 

1  Of  laborers,  exempt  from  garnish- 
ment. . . ., 

Waiver. 

1  Of  law,  when  allowed 

2  Of  process,  how  done 3259 

Warehousemen. 

1  Liability  of,  as  depositary 

Warrants. 

1  On  treasury,  shall  specif}^  what. . . 

2  Comptroller  shall  countersign. . . . 

3  Against  detainers  of  office  books.. 
163 


Against  tenants  holding  over. 4005 
Against  tenants  in  arrears. .  ..4005 

Of  distress  for  rent 4010 

Possessory  warrants 

Warrants  Against  Offenders. 

1  Who  may  issue 

2  Affidavit  to  obtain 

3  Form  of  affidavit 

4  Form  of  warrant 

5  Special  warrants,  who  may  issue.. 

6  By  whom  heard 

7  Bond  to  prosecute 

8  When  issued 

9  By  w^hom  and  where  executed 

10  Arrests  under — officer's  posse 

11  Arrests  without 

12  Arrests  by  private  persons 

13  Duty  of  persons  arresting 

14  Diligence  of  officer 

15  Bench  warrants 

16  What  is  an  arrest 

17  Officer  may  break  doors 

Warrant  for  Bastardy. 

1  When  and  how  issued 

Warrants  for  Good  Behavior. 

1  By  w^hom  and  for  what  granted. .. 

2  Bond  for  good  behavior 

3  Suit  for  breach  of  bond 

4  Extension  of  bond 

Warrants  to  Keep  the  Peace. 

1  By  whom  and  when  issued 


1771 
1771 
1102 

4980 

1308 

1317 
1320 
1319 

4484 

4486 
1317 

4306 

3496 

10 
3261 

2086 

71 
94 

164 
4006 
4006 
4011 
3956 

4610 
4617 
4618 
4619 
4620 
4621 
4622 
4623 
4624 
4625 
4626 
4627 
4628 
4629 
4630 
4631 
4632 

4664 

4651 
4651 
4652 
4653 

4654 


INDEX, 


1069 


2  Bond  to  keep  the  peace. 4654 

3  Breach  of  bond,  and  suit  ±^r 4655 

4  Provoked  breach,  defeats  recovery  4656 

5  Bond,  how  extended. . . . , 4657 

6  Wife  may  have  warrant  against 
husband 4658 

Warrants  to  Search. 

1  When  issued 4659 

2  How  executed 4660 

3  Goods  found,  how  disposed  of. . . .  4661 

4  Forcible  taking  goods,  no  ground 

for 4662 

5  Recognition  of  defendant 4663 

6  Must  describe  places  and  things. . .  4907 
Warranty. 

1  Covenants  of,  how  construed 2611 

2  Defects  covered  by  express 2613 

3  Breach  of  and  its  effect 2610 

4  Of  all  who  sell 2609 

5  Of  transferer  of  notes,  etc 2736 

6  Offer  to  rescind,  effect  of 2662 

7  Of  title,  damages  for  breach  of . . .  2897 

8  By  administrator,  effect  of. 2522 

9  Form  of  action  for  breach  of 3318 

W^ASTE. 

1  By  administrators 2472 

2  By  executors , 2412  2472 

3  B}'  guardians 1807 

Water  and  Lights. 

1  Shall  be  kept  on  railroad  trains . . .  4498 

2  Failure  to  keep,  indictable 4498 

Watercourses. 

1  Right  of  land  owner  to. 2967 

2  Riparian  rights 2204  2206 

3  Under  ground 2968 

4  Are  fences,  when 1461 

5  Diversion  of,  by  mining  companies    774 
Ways. 

1  Private  ways,  law  concerning. . . . 
754  to    771 

2-  Interference  with,  is  trespass 2970 

3  For  mining  purposes 772  to    775 

Weapons. 

1  Punishmentfor  carrying  concealed  4454 
Weights  and  Measures. 

1  Standard  of,  and  how  procured. . . 
1584  1587 

2  Seal  or  stamp  for 1584 

3  Must  be  marked 1585 

4  Effect  of  failure  to  mark 1585 

5  Penalty  for  selling  by  false 1586 

6  Notice  by  Clerk -... . .  1588 

7  Indictment  for  selling  by  false 4502 

Western  and  Atlantic  Railroad. 

1  Is  tlie  property  of  the  State. . , . , .  967 

2  Relation  of  State  and  people  to. . .  968 

3  Net  earnings  of,  how  applied 963 

4  Officers  of,  how  appointed. 68 

5  Public  roads,  and  penal  laws  apply 

to 969 

6=  Liability  of,  by  what  laws  regulated  970 

7  Laws  concerning,  still  of  force.. . .  971 

8  Suits  against,  by  what  law  regulated  970 

9  Superintendent,  how  appointed. . . .  972 
10  Bond  and  oath  of  Superintendent 

.. .973    974 


11  Salary  of  Superintendent 

12  His  authority 

13  His  rules  to  be  recorded 

14  Force  of  such  rules 

15  Suits    against,    where    and    how 
brought......... 746,  978 

16  Demand  before  suit 

17  Books  of,  evidence 

18  Debtors  of,  are  public  debtors 

19  Treasurer  of,  how  appointed 

20  Oath  and  bond  of  treasurer. .  .983 

21  His  duties-  specified 

22  Auditor  of,  how  appointed 

23  Bond  and  oath  of  auditor 987 

24  His  duties  specified 

25  Remedy  against  officers  of 

26  Additional  bonds  may  be  required 

27  Agents  shall  account  monthly 

28  Agents  and  officers  dismissed  for 
default. .... .  = 

29  Dismissed  officers,  how  credited  for 
freight. ...... 

30  Dues  from  defaulters,  how  treated. 

31  Oath  of  agents 

32  Bonds  of  agents 998  to 

33  Settlements- with  agents 

34  Bonds  of  agents,  how  revised 

35  Conductors,  oath  of 

36  No  credit  given  for  freight 

37  Settlements  by  conductors 

38  Disbursements,  how  made 

39  Who  decides  between  Superintend- 
ent and  Auditor 

40  Net  earnings,  how  disposed  of. . . . 
963,1007 

41  Sale  of  useless  property  of 

42  Terms  of  sale  and  disposition  of 
proceeds 

43  Officers  can  not  buy  at  such  sales. 

44  Record  of  sales 

45  Land  of,  how  sold 

46  Gratuitous  passengers 

47  Execution  of  laws  of 

48  Lime,  how  transported  over 

49  Stock  gaps  may  be  built  on 

50  Summary  remedy  against.. 2987  to 

51  Intruding  on  track  of,  penalty. . . . 

52  Punishment  for  interfering  with . . 

53  Shall  keep    light  and   water  on 
trains 

54  Indictment  for  failure 

Wharfingers. 

1  Liability  of. 

Wheat. 

1  Inspection  of. 

Widows. 

1  Shall  occupy  house,  etc., of  decedent 

2  Shall  not  be  dispossessed,  when. . 

3  Support  of  after  husband's  death . 
2459,  2530  to 

4  Right  of,  to  dower 1753  to 

5  Not  subject  to  bail  process 

6  May  appoint  testamentary  guar- 
dians.  

7  Limitations  over  on  marriage  of, 
how  viewed ,   .-, 


972 
975 

976 
977 

2890 
979 
980 
981 

982 
984 
985 
986 


990 
991 
992 
993 

994 

995 
996 
997 
1000 
1001 
1002 
1003 
1004 
1005 
1005 

idbe 

1270 

1008 

1009 
1010 
1011 
1012 
1013 
1014 
1015 
1016 
2995 
4370 
4371 

4498 
4498 

2087 

1568 

1758 
3603 

2537 
1761 
3356 

1796 

224(> 


1070 


INDEX. 


8  May  sue  for  homicide  of  husband .  2920 

9  Eight  to  custody  of  children 1785 

Wife. 

1  Rights  of.. , .  .1744  to  1752,  1764  to  1776 

2  Rights  of  undei:  marriage  settle- 
ments.:   1765  to  1776 

3  Husband    may    sue  for  adultery 
with 2957 

4  fie  may  sue  for  abducting  or  har- 
boring   , 2956 

5  Liability  of  husband  for  torts  of. .  2910 

6  Punishment  for  wliipping 4488 

7  May  bind  husband  to  keep  peace. .  4658 

Wills. 

1  Detinition  of 2359 

2  Form  of  immaterial ;  intention  the 

test 2360 

3  Paper,  may  be  part  will  and  part 
deed , 2381 

4  Mutual  wills 2362 

5  Take  effect  at  testator's  death. . .  ,  2363 

"G  Testamentary  powers. 2364 

7  When  probate  should  be  refused . .  2364 
'S  May  be  good  in  part,  and  void  in 

part 2365 

9  Mnst  be  voluntary 2366 

10  Fraud  vitiates 2367 

11  Made  under  mistake,  how  far  void  2368 

12  Codicil  defined — how  executed. . . .  2369 

13  Who  may  make  a  will ,  2370 

14  Infants   under    fourteen    can   not 
make 2371 

15  Insane  persons,  how  far  able 2372 

16  Amount  of  capacity  required,  2373  2374 

17  Married  women  may  make,  when.  2375 

18  Criminals  and  prisoners  may  make  2376 

19  Blind  mutes  may  make. 2377 

20  Interpreter,  competency  of. 2378 

21  Formal  execution  of. 2379 

22  Attestation  of  witnesses 2380 

23  Time  of  witnesses'  competency . . .  2381 

24  Effect  of  witness  being  legatee 2382 

25  Testator's  knowledge  of  contents, 
how  shown 2383 

26  Restraints  on  charitable  bequests.  2384 

27  Inventory  and  returns,  when  dis- 
pensed with 2385 

28  Probate,  when  made 366,  2386  2387 

29  Probate  in  common  form 2388 

30  Probate  in  solemn  form 2389 

31  In  common  form  conclusive,  when  2390 

32  Probate  in  vacation 2391 

83  Notice  of  probate  in  solemn  form.  2392 

34  Guardians  ad  litem  for  minors. . . .  2393 

35  Interrogatories  for  witnesses 2394 

36  Custodians  of,  must  file 2395 

37  Establishment  of,  when  lost  or  de- 
stroyed   2396 

38  Presumption  in  case  of  loss 2396 

39  Copy  of  foreign,  when  evidence.. .  2398 

40  Original,  remain  in  office 2397 

41  Certified  copies  are  evidence 2397 

42  Who  may  propound 2399 

43  Non-resident    may    be    executor, 
when 2399 


44  When  to  be  propounded 2400 

45  Executor's  renunciation  is  final. ..  2401 

46  Admissions  of  executor  and  legatee 
inadmissible 2402 

47  Devises  and  legacies 2415  to  2433 

48  Revocation  of  wills 2434 

49  Revocation,  express  or  resulting. .  2435 

50  Express  revocation,  how  effected.. 
2435  to  2437 

51  Intention  to  revoke,  necessary. .. .  2438 

52  Implied  revocation 2435  2439 

53  Re-publication  of  wills 2436  2442 

54  Marriage  revokes,  when 2441 

65  Nuncupative  wills,  when  good.  . . .  2443 

56  When  to  be  written  out  and  proved  2444 

57  Notice  of  probate  to  heirs 2445 

58  What  passes  by  nuncupative  wills.  2446 

59  Election  under  wills 3104  to  3107 

Witnesses. 

1  Attendance  of  in  County  Court.294    303 

2  Number  required 3702 

3  Testimony  of  deceased 3729 

4  Subscribing,  must  be  produced.. . .  3784 

5  Excepted  cases 3784  3785 

6  How  summoned 3788 

7  Subpcjena,  how  issued  and  served.  3788 

8  Fees  of 3788 

t)  Fees  of,  how  collected 3789 

10  Forfeiture  for  excessive  claim 3790 

11  Penalty  for  non-attendance 3791 

12  For  the  State  from  other  Counties  3792 

13  Fees  of  such,  and  how  paid 3792 

14  Imprisoned,  how  brought  up 3793 

15  Exempt  from  arrest 3794 

16  Denied  fees,  when 3795 

17  Prosecutor  has  no  fees 3795 

18  Competency  of,  decided  by  Court.  3796 

19  Religious  belief  goes  to  credit. . . .  3797 

20  Who  competent — exceptions 3798 

21  In  cases  of  adultery 3799 

22  In  cases  of  breach  of  promise. . . .  3799 

23  Persons  non  compos,  incompetent.  3800 

24  Drunkenness  incapacitates 3801 

25  Physical  defects  do  not  incapacitate  3802 

26  Explanation  by  interpreter 3802 

27  Incapacity  decided  by  Court 3803 

28  Objections  to  competency,  when 
made 3804 

29  Proof  of  incompetency 3804 

30  Restoration  of  competency 3805 

31  Must  be  sworn 3806 

32  Separate  examination  of 3807 

33  Cross  examination  of 3808 

34  Leading  questions,  w^hen  allowed.  3809 

35  Memorandum  for 3810 

36  Opinions  of 3811 

37  Experts 3812 

38  Impeachment  of. 3815 

39  Foundation  for  impeachment. .    ..  3816 

40  General  bad  character 8818  3819 

41  Feeling  and  relationship 3820 

42  Impeaching  one's  own  witness.. . .  3813 

43  Privileges  of 3814 

44  Siibpozna  duces  tecum 3463 

45  How  complied  with. . .  .3464,  3466  3467 

46  Penalty  for  disobeying 3464 


INDEX. 


lOTl 


47  Interrogatories  and  depositian-s. . . 
3821  to  3835 

48  Perpetuation  of  testimony  at  law. 
3836  to  3840 

49  In  cases  of  inquest . .  4035  4036 

50  In  Justice's  Court 4093 

51  Before  arbitrators 4177  to  4179 

52  Causing  death  b3qDerjur3^,  punished  4401 

53  Protection  of,  in  certain  cases ....  4427 

54  Oath  of,  in  criminal  cases 4557 

55  Oath  of,  before  Grand  Jury. ......  4558 

56  Injured  parties  competent 4558 

57  Of  adverse  party,  costs  of 3632 

58  Continuances  for  absence  of 3471 

59  To  wills,  examinable  by  commis- 
sion   2394 

CO  To  wills,  time  of  competency 2381 

61  To  wills,  lose  legacies 2382 

62  Illiterate  witnesses,  to  wills 2380 

63  I^umber  of,  to  wills 2379 

64  Persons  of  color  competent.  .1662  1663 
Wood. 

1  How  measured  and  inspected. . . ,  1569 


2  Size  of  cord 1569* 

Woods. 

1  Regulations  as  to  firing. .  .1462  to  1465 

2  Indictment  for  malicious  firing, . .  4519 
Women. 

1  Can  not  vote  or  hold  oflice. ......  1650 

2  Exempt  from  public  duties 1650 

3  Domicil  of  married  women 1691 

4  Single  women  exempt  from  bail. .  3356 
Words. 

1  Meaning  of,  in  statutes 4        5 

2  Of  contracts,  how  interpreted 2715 

Worship. 

1  Punishment  for  disturbing ,  4480 

2  Selling  liquor  near  place  of. 4490 

Writ  of  Error. 

1  Law  concerning 4191  to  4207 

2  Within  what  time  taken 2870- 

Writ  op  Possession. 

1  On  judgments  in  ejectments 3582 

2  Shall  not  go  against  strangers 358S 


E  RH  A^  T  ^ 


There  are  some  errors  in  the  side-notes  and  head-notes  of  the  Code,  bnt  as  the}'  do  not 
affect  the  Iom^  no  mention  is  made  of  them  here.  Errors  in  the  text  may  have  escaped 
notice,  but  it  is  believed,  that  if  such  is  the  case,  tliey  are  so  trivial,  as  that  it  ifi  unneces- 
sary to  specify  them  further  than  as  follows  : 

In  line  1  of  Section  289,  for  "  Court "  read  "  Code." 

In  line  5  of  Section  1825,  for  "  slaves  "  read  "  employees." 

In  line  1  of  Section  1953,  for  "  guarantees  "  read  "  guarantors." 

In  line  9  of  Section  2399,  for  "  2458  "  read  "  24-57." 

In  line  6  of  Section  2741,  for  "judgment"  read  "  payment." 


In  line  24  of  Section  4358,  for  "  entrusted  "  read  "  entrusting/' 


EXPLANATORY    NOTE. 


'As  there  have  been  frequent  changes  in  the  Government  of  the  State, 
as  well  as  in  her  relations  to  the  Government  of  the  United  States,  within 
a  few  years  past,  and  as  dates  of  events  are  often  very  important  to  ascer- 
tain the  rights  of  citizens,  it  is  deemed  proper  to  state  that  the  Code  of 
Georgia,  prepared  by  Clarke,  Cobb  and  Irwin,  was  adopted,  as  containing 
the  Laws  of  the  State,  on  the  19th  day  of  December,  1860,  to  take  effect 
and  be  of  force  on  the  1st  day  of  January,  1862  ;  but  by  an  Act  of  the 
Legislature  of  1861  the  operation  of  said  Code  was  suspended  until  the 
1st  day  of  January,  1863,  at  which  time  said  Code  went  into  operation. 
On  the  7th  day  of  ^November,  1865,  a  Convention  of  the  State  of  Georgia 
made  various  important  amendments  to  the  Constitution,  and  again  adopted 
the  Code,  so  far  as  the  same  was  not  in  conflict  with  said  amended  Consti- 
tution, the  ordinances  of  said  Convention  and  the  Constitution  and  Laws 
of  the  United  States  ;  after  which,  and  in  conformity  thereto,  (as  well  as 
to  the  then  existing  Constitution  and  Laws  of  the  United  States,)  the 
undersigned  revised,  corrected  and  republished  said  Code,  with  the  amended 
Constitution  of  1865  appended  thereto.  On  the  11th  day  of  March,  1868, 
T*>  a  Convention  of  the  State  of  Georgia  framed  a  new  Constitution,  which  is, 
together  with  the  14th  Article  of  the  Constitution  of  the  United  States, 
added  to  said  revised  Code  as  a  part  thereof,  by  which  the  Constitution  of 
1865  is  superseded,  but  which  is  allowed  to  remain  in  the  book  for  the 
purpose  of  reference.  Said  Convention  also  adopted  said  revised  Code,  as  ^ 
containing  the  Laws  of  Georgia,  so  far  as  the  same  is  not  in  conflict  with 
the  Constitution  of  1868,  the  ordinances  of  said  Convention  and  the 
Constitution  and  Laws  of  the  United  States. 

D.  IRWIN. 


73 


AMENDMENT  ADOPTED  JULY  1,  1868. 


ARTICLE    XIV. 


Section. 

5071.  Citizens,  who  are. 

5072.  Representation.    Apportionment. 

5073.  Senators    and   Representatives — 

qualifications. 


Section. 

5074.  Public  debt,  validity  of. 

5075.  Power  of  Congress. 


§  5071.    1.  All    persons    born   or   naturalized  in    the    United 
Citizens—  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 

protectionof  ij^.,^g^  States,  and  of  the  State  wherein  they  reside.  No  State 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States ;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  propert}^,  without  due 
process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. 

§  5072.    2.  Representatives    shall  be  apportioned  among    the 

Representa-  several  States  according  to  their  respective  numbers,  counting  the 

tionment"^"  wholc  number  of  persons  in  each  State,  excluding  Indians  not 
taxed.  But  when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  President  and  Vice-President  of  the  United  States, 
Representatives  in  Congress,  the  executive  and  judicial  officers  of 
a  State,  or  the  members  of  the  Legislature  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  such  State,  being  twenty-one  years 
of  age,  and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebellion  or  other  crime,  the  basis  of 
Represen-' representation  therein  shall  be  reduced  in  the  proportion  which 

«S— when^"  the  number  of  such  male  citizens  shall  bear  to  the  whole  number 
of  male  citizens  twenty-one  years  of  age  in  such  State. 

§  5073^.    3.  No  person  shall  be  a  Senator   or  Representative  in 
Disquaiifi-  Congress,  or  elector  of  President  and  Vice-President,  or  hold  any 

Senat'ors  etc  o^ce,  civil  or  military,  under  the  United  States,  or  under  any 
State,  who,  having  previously  taken  an  oath  as  a  member  of  Con- 
gress, or  as  an  officer  of  the  United  States,  or  as  a  member  of 
any  State  Legislature,  or  as  an  executive  or  judicial  officer  of  any 
State,  to  support  the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the  same,  or  given 
aid  or  comfort  to  the  enemies  thereof.  But  Congress  may,  by  a 
vote  of  two-thirds  of  each  House,  remove  such  disability. 

§  5074.    4.   The   validity  of    the   public  debt   of    the    United 

^Pubiicdebt  States,  authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing  insurrection 
or  rebellion,  shall  not  be  questioned.  But  neither  the  United 
States,  nor  any  State,  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave;  but 
all  such  debts,  obligations  and  claims,  shall  be  held  illegal  and  void. 
§  5075.    5.    The   Congress    shall    have    power  to  enforce,  by 

c<»ngrSs.  ^^  appropriate  legislation,  the  provisions  of  this  article. 


J^M 


APPENDIX.— Constitution  of  the  State  of  Georgia.      1075 

A-rticle  I. — Declaration  of  Rights. 


CONSTITUTION  OF  THE  STATE  OF  GEORGIA, 

AS  ADOPTED  BY  THE   STATE   CONVENTION  AT  ATLANTA,  ON 

THE  llTH  DAY  OP  MARCH,  1868,  AND  RATIPIED  BY 

THE  PEOPLE  AT  AN  ELECTION  HELD 

APRIL  20th,  21st,  23d,  23d,  1868. 


PREAMBLE. 


We,  the  people  of  Georgia,  in  order  to  form  a  permanent  Gov- 
ernment, establish  justice,  insure  domestic  tranquility,  and  secure 
the  blessings  of  liberty  to  ourselves  and  our  posterity,  acknowledg- 
ing and  invoking  the  guidance  of  Almighty  God,  the  Author  of 
ail  good  Government,  do  ordain  and  establish  this  Constitution  for 
the  State  of  Georgia. 


PreaEible. 


Article  I. — Declaration  of  Rights. 

Article  II. — Francldse  and  Elections. 

Article  III. — Legislative  Department. 

Article  IV. — Executive  Department. 

Article  Y. — Judicial  Department. 

Article  VI. — Ediication. 

Article  VII. — Homestead  and  Exemption. 

Article  VIII. — Militia. 

Article  YK,— County  Officers. 

Article  X. — Seat  of  Government. 

Article  XI, — Laws  of  Force. 

Article  XII. — Amendments  to  the  Constitution. 


ARTICLE  I. 

declaration  of  fundamental  principles. 


Section. 

5076.  Duty  of  Government. 

5077.  Citizens,  who  are,  etc. 

5078.  Life,  liberty  and  property. 

5079.  Slavery. 

6080.  Right  of  the  People. 

5081.  No  religious  test. 

5082.  Persons  charged  with  crime. 

5083.  Life  or  liberty— jeopardized. 

5084.  Freedom  of  speech. 

5085.  Unreasonable  searches. 

5086.  Social  status  of  citizen. 

5087.  Opinions. 

5088.  Habeas  Corpus. 

5089.  Arms,  right  to  keep. 

5090.  Frauds — punishment. 

5091.  Excessive  bail. 
6092.  Power  of  the  Courts. 


Section. 

6093.  Imprisonment  for  debt. 

5094.  Libel. 

5095.  Private  ways. 

5096.  Penalties— how  proportioned. 

5097.  Whipping. 

5098.  Lottery. 

5099.  Corruption  of  blood. 

5100.  Treason. 

5101.  Laws  shall  be  general. 

5102.  Taxation— J.C1?  valorem. 

5103.  Taxation,  by  counties,  etc. 

5104.  Poll  tax. 

5105.  Liens  by  mechanics,  ete. 

5106.  Departments  of  Government.. 

5107.  Legislative  acts  void — when. 

5108.  Paramount  allegiance. 


1076       APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  I. — Declaration  of  Rights. 

§  5076.  I.  Protection  to  person  and  property  is  the  paramount 
Protection,  dutj  of  Government,  and  shall  be  impartial  and  complete. 

§  5077.  II.  All  persons  born,  or  naturalized,  in    the    United 
Citizens.    States,  and  resident  in  this  State,  are  hereby  declared  citizens  of 
this  State,   and  no  laws   shall  be  made  or  enforced   which  shall 
•  abridge  the  privileges  or  immunities  of  citizens  of   the  United 
States,  or  of  this  State,  or  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  its  laws.     And  it  shall  be  the  duty  of 
Legislature  the  General  Assembly,  by  appropriate  legislation,  to  protect  every 
laAvsfonhli?  person  in  the  due  enjoyment  of  the  rights,  privileges  and  immuni- 
protection.    ^.j^g  guaranteed  in  this  Section. 

Life,  liber-      §5078.  III.  ISTo  pcrson  shall  be  deprived  of   life,  liberty    or 
erty?*^  ^^^^'  pi'operty,  except  by  due  process  of  law. 

§  5079.  TV.  There  shall  be  within  the  State  of  Georgia  neither 
Slavery,    slavery  nor  involuntary  servitude,  save  as  a  punishment  for  crime 
after  legal  conviction  thereof. 

§5080.  V.  The  right  of  the  people    to  appeal  to  the   Courts, 
Rightofthe  to  petition  Government  on  all  matters,  and  peaceably  to  assemble 
people.        £qj.  ^-^q  consideration  of  any  matter  shall  never  be  impaired. 

§  5081.  yi.   Perfect    freedom  of   religious   sentiment  shall  be 
Religious  and  the  same  is  hereby  secured,  and  no  inhabitant  of  this  State 
shall  ever  be  molested  in  person  or  property,  or  prohibited  from 
holding   any    public    office   or  trust  on   account  of  his  religious 
opinion ;  but  the  liberty  of  conscience,  hereby  secured,  shall  not 
be  so   construed  as   to  excuse  acts  of    licentiousness   or  justify 
practices  inconsistent  with  the  peace  or  safety  of  the  people. 
§  5082.   VII.  Every  person  charged  with    an  offence    against 
Benefit  of  the  laws,  shall  have  the  privilege  and  benefit  of  counsel,  shall  be 
cusa«on,fist  fumishcd,  on  demand,  with  a  copy  of  the  accusation  and  a  list  of 
compulsory  ^^®  witncsscs    on   whosc    testimony   the    charge    against    him    is 
process  and  founded,  shall  have  compulsory  process  to  obtain  the  attendance 
of  his  own  witnesses,  shall  be  confronted  wit,h  the  witnesses  testi- 
fying against  him,  and  shall  have  a  public  and  speedy  trial  by  an 
impartial  jury. 

§  5083.  VIII.  No  person  shall  be  put  in  jeopardy  of  life  or 

jcapardyof  liberty  morc  than  once  for  the  same  offence,  save  on  his  or  her 

^f*^'  ^^^'       own  motion  for  a  new  trial,  after  conviction,  or  in  case  of  mis-trial. 

§  5084.  IX.  Freedom  of  speech  and  freedom  of  the  press   are 

Freedom  of  inherent  elements  of  political  liberty.     But  while  every  citizen 

pres?   *"^  ^^y  freely  speak,  or  write,  or  print  on  any  subject,  he  shall  be 

responsible  for  the  abuse  of  the  liberty. 

§  5085.  X.  The  right  of  the  people  to  be  secure  in  their  per- 
unreasona-  SOUS,   houscs,  papors,   and  effects  against  unreasonable  searches 
1)10 searches,  g^j^^  scizurcs,  shall  not  be  violated;  and  no  warrant  shall  issue, 
but  upon  probable  cause,  supported  by  oath,  or  affirmation,  par- 
ticularly describing  the  place,  or  places,  to  be  searched,  and  the 
person,  or  things,  to  be  seized. 
^      §  5086.  XI.   The  social  status  of  the  citizen    shall   never  be 

status    of,*'... 

the  citizen,    the  suDjcct  01  legislation. 


APPENDIX. — Constitution  of  the  State  of  Georgia.      1077 

Article  I. — Declaration  of  Rights. 

§  5087.  XII.  No  person  shall  be  molested  for  his  opinions,  or 
be  subject  to  any  civil  or  political  incapacity,  or  acquire  any  civil    opinions. 
or  political  advantage  in  consequence  of  such  opinions. 

§  5088.   XIII.  The   writ  of   habeas  corpus  shall    not  be  sus-  Habeas cor- 
pended  unless,  in  case  of  rebellion  or  ilivasion,  the  public  safety  ^'"^' 
may  require  it. 

§  5089.  XIV.   A  well  regulated  Militia  being  necessary  to  the    Arms, 
security  of  a  free  people,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed;  but  the  General  Assembly  shall  have 
power  to  prescribe  by  law  the  manner  in  which   arms  may  be 
borne.  I 

§  5090.  XV.  The  punishment  of   all  frauds  shall  be  provided     Frauds, 
by  law.  .  •      . 

§  5091.  XVI.  Excessive  bail  shall  not  be  required,  nor  exces-     Bail,  fines 
sive  fines  imposed,  nor  cruel  and  unusual  punishments  inflicted,  ment'^"^^^' 
nor  shall  any  person  be  abused  in  being  arrested,  whilst  under 
arrest,  or  in  prison. 

§  5092.  XVII.  The  power  of  the  Courts  to  punish  for  con-  contempt 
tempt  shall  be  limited  by  legislative  acts.  °  imprison- 

§  5093.  XVIII.   There  shall  be  no  imprisonment  for  debt.  J^J^'J*  ^""^ 

§5094.  XIX.  In  all  prosecutions  or  indictments  for  libel,  the    Libel, 
truth  may  be  given  in  evidence,  and  the  jury  shall  have  the  right 
to  determine  the  law  and  the  facts. 

§  5095.  XX.  Private  ways  may  be  granted  upon  just  com-  Private 
pensation  being  paid  by  the  applicant.  ^^y^- 

§  5096.  XXL  All  penalties  shall  be  proportioned  to  the  na-    Penalties, 
ture  of  the  offence. 

§  5097.  XXII.  Whipping,  as  a  punishment  for  crime,  is  pro-  Whipping, 
hibited. 

§  5098.  XXIII.  No    Lottery  shall    be   aiithorized,  or  sale  of    Lottery. 
Lottery  tickets  allowed,  in  this  State,  and  adequate  penalties  for 
such  sale  shall  be  provided  by  law. 

§5099.  XXIV.  No  conviction  shall  work  corruption  of  blood,  corruption 
and  no  conviction  of  treason  shall  work  a  general  forfeiture  of  es-  fi,?eiture*°of 
tate  longer  than  during  the  life  of  the  person  attainted.  estate. 

§  5100.  XXV.  Treason  against  the  State  of  Georgia  shall  con-    Treason. 
sist  only  in  levying  war  against  the  State,  or  the  United  States,  or 
adhering  to  the  enemies  thereof,  giving  them  aid  and  comfort ;  and 
no  person  shall  be  convicted  of  treason  except  on  the  testimony  of  ^ 

two  witnesses  to  the  same  overt  act,  or  his  own  confession  in  open 
Court. 

§5101.  XXVI.  Laws  shall  have  a  general  operation,   and  no    Lawsshaii 
general  law,  affecting  private  rights,  shall  be  varied,   in  any  par-  ^®  s^^^^rai. 
ticular  case,  by  special  legislation,   except  with  the  free  consent, 
in  writing,  of  all  persons  to  be  affected  thereby;  and  no  person 
under  legal  disability  to  contract  is  capable  of  such  free  consent. 

§  5102.  XXVII.  The  power  of  taxation  over  the  whole  State 
shall  be  exercised  by  the  General  Assembly  only  to  raise  revenue 


1078      APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  II. — Franchise  and  Elections.       ' 


By  County 
and  munici- 
pal authority 


Poll  tax. 


Taxation—  f^r  the  support  of  Government,  to  pay  the  public  debt,  to  provide 
shall  be  ad  ^  general   school   fund,   for   common   defence,   and   for  public  im- 
provement ;  and  taxation  on  property  shall  be  ad  valorem,  only, 
and  uniform  on  all  species  of  property  taxed. 

§  5103.  XXVIII.  The  General  Assembly  may  grant  the  power 
of  taxation  to  the  County  authorities  and  ^Municipal  corporations, 
to  be  exercised  within  their  several  territorial  limits. 

§  5104.  XXIX.  No  poll  tax  shall  be  levied  except  for  educa- 
tional purposes,  and  such  tax  shall  not  exceed  One  Dollar  annu- 
ally on  each  poll. 

§  5105.  XXX.  Mechanics  and  laborers  shall  have  liens  upon  the 
propei^ty  of  their  employers  for  labor  performed  or  material  fur- 
nished, and  the  Legislature  shall  provide  for  the  summary  enforce- 
ment of  the  same. 

5106.  XXXI.  The  Legislative,  Executive  and  Judicial  Depart- 
ments shall  be  distinct ;  and  each  department  shall  be  confided  to 
a  separate  body  of  Magistracy.  No  person  or  collection  of  per- 
sons, being  of  one  Department,  shall  exercise  any  power  properly 
attached  to  either  of  the  others,  except  in  cases  herein  expressly 
provided. 

§5107.  XXXII.  Legislative  acts  in  violation  of  this  Constitu- 
tion, or  the  Constitution  of  the  United  States,  are  void,  and  the 
Judiciary  shall  so  declare  them. 

§  5108.  XXXIII.  The  State  of  Georgia  shall  ever  remain  a 
member  of  the  American  Union  ;  the  People  thereof  are  a  part  of 
the  American  Nation  ;  every  citizen  thereof  owes  paramount  alle- 
giance to  the  Constitution  and  Government  of  the  United  States, 
and  no  law  or  ordinance  of  this  State,  in  contravention  or  subver- 
sion thereof,  shall  ever  have  any  binding  force. 


Liens. 


Depart- 
in  en  1 8  of 
Government 


Legislative 
acts  void. 


Paramount 

allegiance. 


ARTICLE  II. 


FRANCHISE     AND     ELECTIONS. 


Sectiok. 

5109.  Elections— by  ballot. 

5110.  Electors,  who  are— oath. 

5111.  Disqualification  of  voters. 

5112.  Holders  of  public  money. 

5113.  Dueling. 

5114.  Registration  of  Electors. 


Section. 

5115.  Freedom  from  arrest. 
511G.  Sale  of  liquors. 
6117.  Election  returns. 

5118.  Protection  of  Electors. 

5119.  Day  of  Election. 


Ballot 


Electors. 


§  5109.  I.  In  all  elections,  by  the  People,  the  Electors  shall 
vote  by  ballot. 

§  5110.  II.  Every  male  person,  born  in  the  United  States,  and 
every  male  person  who  has  been  naturalized,  or  who  has  legally 
declared  his  intention  to  become  a  citizen  of  the  United  States, 
twenty-one  years  old,  or  upward,  who  shall  have  resided  in  this 


APPENDIX. — Constitution  of  the  State  of  Georgia.      1079 


Article  II. — Franchise  and  Elections. 


State  six  months  next  preceding  the  election,  and  shall  have  resi- 
ded thirty  days  in  the  county  in  which  he  offers  to  vote,  and  shall 
have  paid  all  taxes  which  may  have  been  required  of  him,  and 
which  he  may  have  had  an  opportunity  of  paying,  agreeably  to 
law,  for  the  year  preceding  the  election,  (except  as  hereinafter 
provided)  shall  be  deemed  an  Elector ;  and  every  male  citizen  of 
the  United  States,  of  the  age  aforesaid,  (except  as  hereinafter 
provided)  who  may  be  a  resident  of  the  State  at  the  time  of  the 
adoption  of  this  Constitution,  shall  be  deemed  an  Elector,  and 
shall  have  all  the  rights  of  an  Elector,  as  aforesaid :  Provided^ 
That  no  soldier,  sailor,  or  marine  in  the  military  or  naval  service 
of  the  United  States,  shall  acquire  the  rights  of  an  Elector  by 
reason  of  being  stationed  on  duty  in  this  State  ;  and  no  person 
shall  vote,  who,  if  challenged,  shall  refuse  to  take  the  following 
oath :  "  I  do  swear  that  I  have  not  given,  or  received,  nor  do  I  oath. 
expect  to  give,  or  receive,  any  money,  treat,  or  other  thing  of 
value,  by  which  my  vote,  or  any  vote,  is  affected,  or  expected  to 
be  affected,  at  this  election,  nor  have  I  given,  or  promised  any  re- 
ward, or  made  any  threat,  by  which  to  prevent  any  person  from 
voting  at  this  election." 

§  5111.  III.  No  person  convicted  of  felony  or  larceny  before    Felony  or 
any  court  of  this  State,  or  of,  or  in  the  United  States,  shall  be  quaimes.^^^' 
eligible  to  any  office  or  appointment  of  honor  or  trust  within  this 
State,  unless  he  shall  have  been  pardoned. 

§5112.  IV.  No  person  who  is  the  holder  of  any  public  moneys  HoWer  of 
shall  be  eligible  to  any  office  in  this  State,  until  the  same  is  ac-  £ey!^^  ^^' 
counted  for  and  paid  into  the  Treasury. 

§  5113.  V.  No  person  who,  after  the  adoption  of  this  Constitu-  Dueling, 
tion,  being  a  resident  of  this  State,  shall  engage  in  a  duel  in  this 
State,  or  elsewhere,  or  shall  send  or  accept  a  challenge,  or  be  aider 
or  abettor  to  such  duel,  shall  vote  or  hold  office  in  this  State  ;  and 
every  such  person  shall,  also,  be  subject  to  such  punishment  as  the 
law  may  prescribe. 

§  5114.  VI.  The  General  Assembly  may  provide,  from  time  to  Eegistra- 
time,  for  the  registration  of  all  Electors,  but  the  following  classes  tots.*^^"^^^^' 
of  persons  shall  not  be  permitted  to  register,  vote,  or  hold  office  : 
First — Those  who  shall  have  been  convicted  of  treason,  embezzle- 
ment of  public  funds,  malfeasance  in  office,  crime  punishable  by 
law  with  imprisonment  in  the  Penitentiary,  or  bribery.  Second — 
Idiots  or  insane  persons. 

§5115.  VII.  Electors  shall,  in  all  cases  except  treason,  felony,      Freedom 
or  breach  of  the  peace,  be  privileged  from  arrest  for  five  days  ^""^"^  ^"^^^' 
before  an  election,  during  the  election,  and  two  days  subsequent 
thereto. 

§  5116.  VIII.  The  sale  of  intoxicating  liquors  on  days  of  elec-  Saie  ofii- 
tion  is  prohibited.  *^"^''^' 

§  5117.  IX.  Returns  of  election  for  all  civil  officers  elected  by  Eiectioure 
the  people,  who  are  to  be  commissioned  by  the  Governor,  and,  also,  ^ 


turns. 


1080     APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  III, — Legislative  Department. 

for  the  Members  of  the  General  Assembly,  shall  be  made  to  the 
Secretary  of  State,  unkss  otherwise  provided  by  law. 

§  5118.  X.  The  General  Assembly  shall  enact  laws  giving  ade- 
of^?ectorr  ^^^*®  protection  to  Electors  before,  during    and  subsequent  to 
elections. 

§  5119  XI.  The  election  of  Governor,   Members  of  Congress, 
Dayofeiec-  and  of  the  General  Assembly,   after  the  year  1868,  shall  com- 
mence on  the  Tuesday  after  the  first  Monday  in  November,  unless 
otherwise  provided  by  law. 


ARTICLE  III. 


legislative   department. 


SECTION  I. 


Section. 

5120.  Legislative  power. 

5121.  Senators  and  Representatives. 

5122.  Meeting  of  General  Assembly. 


Sectiok. 

5123.  Disqualification  of  members. 

5124.  Effect  of  removal. 


power. 


Senators. 


Of  Eepre 
sentatives. 


§  5120.  I.  The  Legislative  Power  sliall  be  vested  in  a  General 

Legislative  Assembly,  which  shall  consist  of  a  Senate  and  House  of  Repre- 
sentatives, and  until  otherwise  directed,  the  members  thereof,  after 
the  first  election,  shall  be  elected,  and  the  returns  of  the  election 
made  as  now  prescribed  by  law. 

§5121.  II.  The  members  of  the  Senate  shall  be  elected  for  four 

Term  o  f  ycars,  except  that  the  members  elected  at  the  first  election  from 
the  twenty-two  Senatorial  Districts  numbered  in  this  Constitution 
with  odd  numbers,  shall  only  hold  their  office  for  two  years.  The 
members  of  the  House  of  Representatives  shall  be  elected  for  two 
years.  The  election  for  members  of  the  General  Assembly  shall 
begin  on  Tuesday  after  the  first  Monday  in  November  of  every 
second  year,  except  the  first  election,  which  shall  be  within  sixty 
days  after  the  adjournment  of  this  Convention  ;  but  the  General 
Assembly  may  by  law  change  the  time  of  election,  and  the 
members  shall  hold  until  their  successors  are  elected  and  qualified. 
§  5122.  III.  The  first  meeting  of  the   General  Assembly  shall 

Meetingof  be  within  ninety  days  after  the  adjournment   of  this   Convention, 

ture.^^^^^^^  after  which,  it  shall  meet  annually  on  the  second  Wednesday  in 

January,   or  on  such  other  day  as  the   General  Assembly  may 

Quorum,  prescribe.  A  majority  of  each  House  shall  constitute  a  quorum 
to  transact  business  ;  but  a  smaller  number  may  adjourn  from  day 
to  day  and  compel  the .  presence  of  its  absent  members  as  each 
House  may  provide.     No  session  of  the  General  Assembly,  after 


APPENDIX. — Constitution  of  the  State  of  Georgia.     1081 

Article  III. — Legislative  Department. 

the  second  under  this  Constitution,  shall  continue  longer  than  forty       sessions 
days,  unless  prolonged  by  a  vote  of  two-thirds  of  each  branch  "™ited. 
thereof. 

§5123.  IV.  No  person  holding  a  Military  Commission,  or  other  Eligibility 
appointment  or  office,  having  any  emolument  or  compensation  an- 
nexed thereto,  under  this  State  or  the  United  States,  or  either  of 
them,  except  Justices  of  the  Peace  and  officers  of  the  Militia,  nor 
any  defaulter  for  public  money,  or  for  any  legal  taxes  required  of 
him,  shall  have  a  seat  in  either  House ;  nor  shall  any  Senator  or 
Representative,  after  his  qualification  as  such,  be  elected  by  the 
General  Assembly  or  appointed  by  the  Governor,  either  with  or 
without  the  advice  and  consent  of  the  Senate,  to  any  office  or  ap- 
pointment, having  any  emolument  annexed  thereto,  during  the 
time  for  which  he  shall  have  been  elected. 

§  5124.  V.  The  seat  of  a  member  of  either  House  shall  be  va-      Eemovai 
Gated  on  his  removal  from  the  District  from  which  he  was  elected.  ^^*^^^^*- 


SECTION  II. 


Section. 

5125.  Senatorial  Districts. 

5126.  Qualification  of  Senators. 


Section. 

5127.  The  President. 

5128.  Trial  of  Impeachment. 


§  5125.  There  shall  be  Forty-Four  Senatorial  Districts  in  this     senatorial 
State,  composed,  each,  of  three  contiguous  Counties,  from  each  of 
w^hich  Districts  one  Senator  shall  be  chosen.     Until  otherwise  ar- 
ranged, as  hereinafter  provided,  the  said  Districts  shall  be  consti- 
tuted as  follows :  *^ 

The  First  District  of  Chatham,  Bryan  and  Effingham. 

The  Second  District  of  Liberty,  Tatnall  and  Mcintosh. 

The  Third  District  of  Wayne,  Pierce  and  Appling. 

The  Fourth  District  of  Glynn,  Camden  and  Charlton. 

The  Fifth  District  of  Coffee,  Ware  and  Clinch. 

The  Sixth  District  of  Echols,  Lowndes  and  Berrien.     *' 

The  Seventh  District  of  Brooks,  Thomas  and  Colquitt. 

The  Eighth  District  of  Decatur,  Mitchell  and  Miller. 

The  Ninth  District  of  Early,  Calhoun  and  Baker. 

The  Tenth  District  of  Dougherty,  Lee  and  Worth. 

The  Eleventh  District  of  Clay,  Randolph  and  Terrell. 

The  Twelfth  District  of  Stewart,  Webster  and  Quitman. 

The  Thirteenth  District  of  Sumter,  Schley  and  Macon. 

The  Fourteenth  District  of  Dooly,  Wilcox  and  Pulaski. 

The  Fifteenth  District  of  Montgomery,  Telfair  and  Irwin. 

The  Sixteenth  District  of  Laurens,  Johnson  and  Emanuel. 

The  Seventeenth  District  of  Bullock,  Scriven  and  Burke. 

The  Eighteenth  District  of  Richmond,  Glasscock  and  Jefferson. 

The  Nineteenth  District  of  Taliaferro,  Warren  and  Greene. 

The  Twentieth  District  of  Baldwin,  Hancock  and  Washington. 

The  Twenty-First  District  of  Twiggs,  Wilkinson  and  Jone's. 

The  Twenty-Second  District  of  Bibb,  Monroe  and  Pike. 

The  Twenty-Tliird  District  of  Houston,  Crawford  and  Taylor. 

The  Twenty-Fourth  District  of  Marion,  Chattahoochee  and  Muscogee. 

The  Twenty-Fifth  District  of  Harris,  Upson  and  Talbot. 


1082      APPENDIX. — Constitution  of  the  State  of  Georgia. 


Article  III. — Legislative  Department. 


counties 
created 


The  Twenty-Sixth  District  of  Spalding,  Butts  and  Fayette. 
The  Twenty-Seventh  District  of  JMewton,  Walton  and  Clarke. 
The  Twenty-Eighth  District  of  Jasper,  Putnam  and  Morgan. 
The  Twenty-Ninth  District  of  Wilkes,  Lincoln  and  Columbia. 
The  Thirtieth  District  of  Oglethorpe,  Madison  and  Elbert. 
The  Thirty-First  District  of  Hart,  Franklin  and  Habersham. 
The  Thirty-Second  District  of  White,  Lumpkin  and  Dawson. 
The  Thirty-Third  District  of  Hall,  Banks  and  Jackson. 
The  Thirty-Fourth  District  of  Gwinnett,  DeKalb  and   Henry. 
The  Thirty-Fifth  District  of  Clayton,  Fulton  and   Cobb. 
The  Thirty-Sixth  District  of  Meriwether,  Coweta  and  Campbell. 
The  Thirty-Seventh  District  of  Troup,  Heard  and  Carroll. 
The  Thirty-Eighth  District  of  Haralson,  Polk  and  Paulding. 
The  Thirty-Ninth  District  of  Cherokee,  Milton  and  Forsyth. 
The  Fortieth  District  of  Union,  Towns  and  Rabun. 
The  Forty-First  District  of  Fannin,  Gilmer  and  Pickens. 
The  Forty-Second  District  of  Bartow,  Floyd  and  Cliattooga. 
The  Forty-Third  District  of  Murray,  Whitfield  and  Gordon. 
The  Forty-Fourth  District  of  Walker,  Dade  and  Catoosa. 

If  a  new  County  be  established  it  shall  be  added  to  a  District 
If  new  which  it  adjoins,  and  from  which  the  larger  portion  of  its  territory 
^®  is  taken.  The  Senatorial  Districts  may  be  changed  by  the  Gen- 
eral Assemby,  but  only  at  the  first  session  after  the  publication  of 
each  census  by  the  United  States  Government,  and  their  number 
shall  not  be  increased. 

§  5126.  II.  The  Senators  shall  be  citizens  of  the  United  States, 
Quaiifica-  who  have  attained  the  age  of  twenty-five  years,  and  who,  after 
tion  of  Sen-  ^j^^  gj.g^  elcctiou  Under  this  Constitution,  shall  have  been  citizens 
of  this  State  for  two  years,  and  for  one  year  resident  of  the  Dis- 
trict from  which  elected. 

§  5127.  III.  The  Presiding  Officer  of  the  Senate  shall  be  styled 
Presidentof  the  President  of  the  Senate,  and  shall  be  elected,  viva  voce,  from 

the  Senate.     ,^       c\  ^ 

the  feenators. 

§  5128.  IV.  The  Senate  shall  have  the  sole  power  to  try  im- 
Triaiofim-  pcachments.  When  sitting  for  that  purpose,  the  members  shall  be 
peachments.  ^^  ^^^j^  ^^  affirmation,  and  shall  be  presided  over  by  one  of  the 
Judges  of  the  Supreme  Court,  selected  for  that  purpose  by  a  viva 
voce  vote  of  the  Senate;  and  no  person  shall  be  convicted  without 
the  concurrence  of  two-thirds  of  the  members  present.  Judg- 
ments in  cases  of  impeachment  shall  not  extend  further  than  re- 
moval from  office  and  disqualification  to  hold  and  enjoy  any  office 
of  honor,  trast,  or  profit,  within  this  State  ;  but  the  party  con- 
victed shall,  nevertheless,  be  liable  and  subject  to  indictment,  trial, 
judgment,  and  punishment  according  to  law. 


ators. 


SECTION  IIL 


Section. 

5129.  House  of  Representatives. 

5130.  Change  of  Appointment. 

5131.  Qualification  of  Members. 


Section. 

5132.  Speaker  of  the  House. 

5133.  Power  of  Impeachment. 

5134.  Bills  for  Raising  Revenue. 


§  5129.  I.  The  House  of  Representatives  shall  consist  of  one 


^'v- 


APPENDIX. — Constitution  of  the  State  of  Georgia.     1083 


Article  III. — Legislative  Department. 


)use    of 
resenta- 


hundred  and  seventy-five  Representatives,  apportioned  as  follows  : 
To  the  six  largest  Counties,  to  wit:  Chatham,  Richmond,  Fulton, -^J*'^ 
Bibb,  Houston  and  Burke,  three  Representatives  each;  to  the  t»ves. 
thirty-one  next  largest,  to-wit :  Bartow,  Columbia,  Cobb,  Coweta, 
Clarke,  Decatur,  Dougherty,  Floyd,  Gwinnett,  Greene,  Hancock, 
Harris,  Jefferson,  Lee,  Muscogee,  Monroe,  Meriwether,  Morgan, 
Macon,  Newton,  Oglethorpe,  Pulaski,  l^andolph,  Sumter,  Stewart, 
Troup,  Thomas,  Talbot,  Washington,  Wilkes,  and  Warren,  two 
Representatives  each;  and  to  the  remaining  ninety-five  Counties, 
one  Representative  each. 

§  5130.   II.   The  above  apportionment  may  be  changed  by  the   Apportion- 
General  Assembly  after  each  census  by  the  United  States  Govern- °^^^^™^y^® 
ment,  but  in  no  event  shall  the  aggregate  number  of  Representa- 
tives be  increased, 

§  5131.  III.  The  Representatives  shall  be  citizens  of  the  United  Qualification 
States  who  have  attained  the  age  of  twenty-one  years,  and  who,  "^  i^embera. 
after  the  first  election  under  this  Constitution,  shall  have  been  citi- 
zens of  this  State  for  one  year,  and  for  six  months  resident  of  the 
Counties  from  which  elected. 

§5132.  IV.  The  Presidincj  Officer  of  the  House  of  Represen-    sppakerof 
lives  shall  be  styled  the  Speaker  of  the  House  of  Representatives,  ^^^^^i^use. 
and  shall  be  elected,  viva  voce,  from  the  body. 

§  5133,  y.  The  House  of  Representatives  shall  have  the  sole     impeach- 
power  to  impeach  all  persons  who  shall  have  been,  or  may  be,  in™^"^' 
office. 

§  5134.    YI,    All   bills    for   raising    revenue,   or    appropriating    Eevenue. 
money,  shall  originate  in  the  House  of  Representatives,  but  the 
Senate  may  propose,  or  concur  in   amendments  as  in  other  bills. 


SECTION  IV. 


Section. 

5135.  Election  and  return  of  Members. 

5136.  May  punish  for  contempts. 

5137.  Members  free  from  arrest. 
6138.  Journal  of  each  House.. 
5139.  Passing  bills. 


Section. 

6140.  Acts— by  whom  signed. 

5141.  Adjournments.    • 

5142.  Officers— their  compensation. 

5143.  Yeas  and  nays. 

5144.  Oath  of  Members. 


§  5135.  I.  Each    House   shall   be   the  judge   of  the  election.     Elections, 
returns,  and  qualifications  of  its  members,  and  shall  have  power  returns  and 
to  punish  them  for  disorderly  behavior  or  misconduct,  by  censure,  ti^rl^ 
fine,  imprisonment,  or  expulsion  ;  but  no  member  shall  be  expelled, 
except  by  a  vote  of  two-thirds  of  the  House  from  which  he  is 
expelled. 

§5136.  II.  Each  House  may  punish,  by  imprisonment,  not  Each  House 
extending  beyond  the  session,  any  person,  not  a  member,  who  XnderT'''' 
shall  be  guilty  of  a  contempt  by  any  disorderly  behavior  in  its 


1084     APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  III. — Legislative  Department. 

presence,  or  who,  during  the  session,  shall  threaten  injury  to  the 
person,  or  estate  of  any  member  for  anything  said,  or  done,  in 
either  House,  or  who  shall  assault  any  member  going  to,  or  return- 
ing therefrom,  or  who  shall  rescue,  or  attempt  to  rescue,  any  per- 
son arrested  by  order  of  either  House. 

§5137.  III.  The  members  of  both  Houses  shall  be  free  from 

Exempt  arrest  during  their  attendance  on  the  General  Assembly,  and  in 

from  arrest.  gQijjg   ^q^   q^   returning-  therefrom,   except    for    treason,   felony, 

larceny,  or  breach  of  the  peace  ;  and  no  member  shall  be  liable 

to  answer  in  any  other  place  for  anything  spoken  in  debate  in 

either  House. 

§  5138.  IV.  Each  House  shall  keep  a  Journal  of  its  proceedings 
journaisof  and  publish  it  immediately  after  its  adjournment.  The  yeas  and 
nays  of  the  members  on  any  question  shall,  at  the  desire  of  one- 
fifth  of  the  members  present,  be  entered  on  the  Journal.  The 
original  Journal  shall  be  preserved,  after  publication,  in  the  office 
of  the  Secretary  of  State,  but  there  shall  be  no  other  record 
thereof. 

§  5139.  V.  Every  bill  before  it  shall  pass  shall  be  read  three 

Bills.        times  and  on  three  separate  days  in  each  House,  unless  in  cases  of 

actual  invasion  or  insurrection.     Nor  shall  any  law,  or  ordinance 

pass,  which  refers  to  more  than  one  subject-matter,  or  contains 

matter  different  from  what  is  expressed  in  the  title  thereof. 

§  5140.  YI.  All  acts  shall  be  signed  by  the  President  of  the 
Acts— by  Senate  and  the  Speaker  of  the  House  of  Representatives;  and  no 
w  om  sign-  |^-|j^  ordinance,  or  resolution,  intended  to  have  the  effect  of  a  law, 
which  shall  have  been  rejected  by  either  House,  shall  be  again 
proposed  during  the  same  session,  under  the  same,  or  any  other 
title,  without  the  consent  of  two-thirds  of  the  House  by  which  the 
same  was  rejected. 

§  5141.  YII.  Neither  House  shall  adjourn  for  more  than  three 
Adjourn-  days,  nor  to  any  other  place,  without  the  consent  of  the  other ; 
and  in  case  of  disagreement  between  the  two  Houses  on  a  ques- 
tion of  adjournment,  the  Governor  may  adjourn  either  or  both  of 
them. 

§  5142.  YIII.  The  officers  of  the  tw^o  Houses,  other  than  the 
Officers  of  President  and  Speaker,  shall  be  a  Secretary  of  the  Senate,  and 
ouse.  Qjgj.]^  q£  ^j^^  House,  and  an  Assistant  for  each,  a  Journalizing 
Clerk,  two  Engrossing  and  two  Enrolling  Clerks  for'each  House, 
and  the  number  shall  not  be  increased  except  by  a  vote  of  the 
House.  And  their  pay,  as  w^ell  as  the  pay  and  mileage  of  the 
members,  shall  be  fixed  by  law. 

§  5143.  IX.  Whenever  the  Constitution  requires  a  vote  of  two- 
pe^satioT"  thirds  of  either  or  both  Houses  for  the  passing  of  an  act  or  reso- 
lution, the  yeas  and  nays  on  the  passage  thereof  shall  be  entered 
on  the  Journal,  and  all  votes  on  confirmations,  or  refusals  to  con- 
Yeas  and  ^^^   nominations  to  office  by  the  Governor,  shall  be  by  yeas  and 
nays.  cays,  and  the  yeas  and  nays  shall  be  recorded  on  the  Journal. 


ments. 


APPENDIX. — Constitution  of  the  State-  of  Georgia.     1085 


Article  III.— Legislative  Department. 


lives. 


§5144.  X.  Every  Senator,  or  Representative,  before  taking 
his  seat,  shall  take  an  oath,  or  affirmation,  to  support  the  Consti- ^^^^^^^^^^^f^ 
tution  of  the  United  States,  and  of  this  State  ;  that  he  has  not  f^^^^^^^''^^- 
practiced  any  unlawful  means,  directly  or  indirectly,  to  procure 
his  election,  and  that  he  has  not  given,  or  offered,,  or  promised,  or 
caused  to  be  given,  or  offered,  or  promised,  to  any  person,  any 
money,  treat,  or  thing  of  value,  with  intent  to  affect  any  vote,  or 
to  prevent  any  person  voting  at  the  election  at  which  he  was 
elected. 


SECTION  y. 


Section.  /  I  Section. 

5145.  Pov^ers  of  the  General/issembly.    '        5146.  New  Counties— Changing  lines. 

§5145.  I.'  The  General  Assembly  shall  have  power  to  make  all     Powers  of 
laws  and  ordinances,/ consistent  with  this  Constitution,  and  not  AssembiyT^ 
repugnant   to  the  Cynstitution  of  the  United  States,  which  they 
shall  deem  necessary  and  proper  for  the  welfare  of  the  State. 

§  5146.  II.  The  General  Assembly  may  alter  the  boundaries  of,  counties. 
or  lay  off  and  establish  new  Counties,  or  abolish  Counties,  attach- 
ing the  territory  thereof  to  contiguous  Counties,  but  no  new 
County  shall  be  established  except  by  a  vote  of  two-thirds  of  each 
House ;  nor  shall  any  County  be  abolished  except  by  a  vote  of 
two-thirds  of  each  House,  and  after  the  qualified  voters  of  the 
County  shall,  at Aan  election  held  for  the  purpose,  so  decide. 


SECTION  YI. 


Section. 

5147.  Monej'— low  drawn. 

5148.  Donations. 

5149.  Code— how  amended. 


Section. 

5150.  Stockholders. 

5151.  Restriction  of  powers. 


Donations. 


§  5147.  I  No  money  shall  be  drawn  from  the  Treasury  except      Money— 
by  appropriation  made  by  law,   and  a  regular    statement    and  f ?om  'the 
account  of  the  receipt  and  expenditure  of  all  public  money,  shall  "^^^^^"^'y* 
be  published  from  time  to  time,  and,  also,  with  the  laws  passed  by 
each  session  of  the  General  Assembly. 

§  5148.  II.  No  vote,  resolution,  law,  or  order,  shall  pass, 
granting  a  donation,  or  gratuity,  in  favor  of  any  person,  except 
by  the  concurrence  of  two-thirds  of  each  branch  of  the  General 
Assembly,  nor,  by  any  vote,  to  a  sectarian  corporation,  or  asso- 
ciation. 

§  5149.  III.  No  law  or  section  of  the  Code  shall  be  amended  code 
or  repealed  by  mere  reference  to  its  title,  or  to  the  number  of  the  ^'"®°'^^*^' 


how 


1086      APPENDIX. — Constitution  of  the  State  of  Georgia. 


Article  IV. — Executive  Department. 


section  in  the  Code,  but  the  amending  or  repealing  act  shall  dis- 
tinctly and  fully  describe  the  law  to  be  amended  or  repealed,  as 
well  as  the  alteration  to  be  made  ;  but  this  clause  shall  be  con- 
strued as  directory  only,  to  the  General  Assembly. 

§  5150.  IV.  ]So  law  shall  be  passed  by  which  a  citizen  shall  be 
Citizens  not  compelled  agaiust  his  consent,  directly  or  indirectly,  to  become  a 
cSfbifteto  stockholder   in,  or  contribute   to,  any  railroad   or  work   of  public 
p?oveWnS^  improvement,  except  in  the  case  of  the  inhabitants  of  a  corporate 
town  or  city.     In  such  cases,  the  General  Assembly  may  permit 
the  corporate  authorities  to  take  such  stock,  or  make  such  contri- 
bution, or  engage  in  such  work,  after  a  majority  of  the  qualified 
voters  of  such  town  or  city,  voting  at  an  election  held  for  the  pur- 
pose, shall  have  voted  in  favor  of  the  same;  but  not  otherwise. 
§  5151.  V;  The  General  Assembly  shall  have  no  power  to  grant 
Corpora-  corporate  powers  and  privileges  to  private  companies,  except  to 
cincts,bfidg-  Banking,  Insurance,  Railroad,  Canal,  Navigation,  Mining,  Express, 
—iiowestab-  Lumber,  Manufacturing  and  Telegraph  Companies  ;  nor  to  make, 
iished, etcj.    qj.  change,  election  precincts;  nor  to  establish  Bridges  or  Ferries; 
nor  to  change  names  or  legitimate  children  ;  but  it  shall  prescribe, 
by  law,  the  manner  in  which  such  powers  shall  be  exercised  by  the 
Courts.     But    no    charter    for    any   Bank    shall   be    granted,    or 
extended,  and  no  act  passed  authorizing  the  suspension  of  specie 
speciepay.  payments    by   any  Bank,  except  by  a  vote  of  two-thirds  of  the 
General   Assembly.     The  General  Assembly  shall  pass  no   lar.^ 
The  state  making  the  State   a  stockholder  in  any  corporate  company  ;  nor 
a  stockhoid-  shall   the  credit   of  the  State  be  granted,  or  loaned,  to  aid   anv 
ei,i  sere  i .  gQjjjpj^^^jy  without  a  provisiou  that  the  whole  property  of  the  Com- 
pany shall  be   bound  for  the  security  of  the  State,  prior  to  any 
other  debt,  or  lien,  except  to   laborers  ;  nor  to   any  Company  in 
w^hich  there  is  not,  already,  an  equal  amount  invested  by  private 
persons  ;  nor  for  any  other  object  than  a  work  of  public  improve- 
ment.    No  provision   in  this  Constitution   for  a  two-thirds  vote  of 
both  Houses  of  the  General  Assembly,  shall  be  construed  to  waive 
the   necessity  for  the  signature  of  the  Governor,  as  in  any  other 
case,  except  in  the  case  of  the  two-thirds  vote  required  to  override 
the  veto. 


ARTICLE  IV. 

EXECUTIVE     DEPARTMENT. 


SECTION  L 


Section. 

6152.  Executive  powers. 

5153.  Governor — liow  elected,  etc. 

5154.  Qualification  of  Governor. 


Skction. 

5155.  Death,  Eesignation,  or  Disability. 
5150.  jPath  of  Governor.  , 


§  5152.  I.  The  Executive  power  shall  be  vested  in  a  Governor, 


APPENDIX. — Constitution  of  the  State  of  Georgia.      1087 

Article  IV. — Executive  Department. 

who  shall  hold  his  office  during  the  term  of  four  years,  and  until 

such  time  as  a  successor  shall  be  chosen  and  qualified.      He  shall     Executive 

have  a  competent  salary  estHblished  by  law,  which  shall  not  be 

increased,  or  diminished,  during  the  period  for  which  he  shall  have 

been  elected ;  nor  shall  he  receive,  within  that,  period,  any  other 

emolument  from  the  United  States,  or  either  of  them,  or  from  any 

foreign  power. 

§6153.  II.  After   the   first    election,    the    Grovernor    shall   be   Governor- 
elected  quadrennially,  by  the  persons  qualified   to  vote   for  mem- 
bers  of  the  General   Assembly,   on   the  Tuesday  after   the   first 
Monday  in  November,  until  such  time   be  altered  by  law,  which 
election  shall  be  held  at  the  places  of  holding  general  elections  in 
the  several  Counties  of  this  State,  in  the  same  manner  as  is  pre- 
scribed for  the  election  of   members   of  the  General  Assembly. 
The  returns  for  every  election   of  Governor,  after  the  first,  shall    Eetumsof 
be  sealed  up  by  the  Managers,  separately  from  other  returns,  and   ^^  ^^^^'-^on. 
directed  to  the  President  of  the  Senate  and  Speaker  of  the  House 
of  Representatives,  and  transmitted  to  His  Excellency,  the  Gov- 
ernor, or  the  person  exercising  the  duties  of  Governor  for  the  time 
being,  who  shall,  without  opening  the  said  returns,  cause  the  same 
to  be  laid  before  the  Senate,  on  the  day  after  the  two  Houses  shall 
have  been  organized;  and  they  shall  be  transmitted  by  the  Senate 
to  the  House  of  Representatives.     The  members  of  each  branch 
f  the  General  Assembly  shall  convene  in  the  Representative  Hall, 
and  the  President  of  the  Senate  and  the  Speaker  of  the  House  of 
:itiepresentatives  shall  open  and  publish  the  returns  in  the  presence 
of  the  General  Assembly  ;  and  the  person  having  the  majority  of 
the  whole  number  of  votes  given  shall  be  declared  duly  elected 
Governor  of  this  State  ;  but  if  no  person  have  such  majority,  then  ifnomajor- 
from  the  tw^j  persons  having  the  highest  number  of  votes,  who  shall  tS-'e  e£\?" 
be  in  life,  and  shall  not  decline  an  election  at  the  time  appointed 
for  the  Legislature  to  elect,   the  General  Assembly  shall  imme- 
diately elect  a  Governor  viva  voce  ;  and  in  all  cases  of  election  of 
a  Governor  by  the  General  Assembly,  a  majority  of  the  votes  of 
the  members  present,  shall  be  necessary  for  a  choice.      Contested     contested 
elections   shall  be  determined  by  both   Houses   of  the  General  *^^^«"'^°^- 
Assembly,  in  such  manner  as  shall  be  prescribed  by  law. 

§  5154.  III.  No  person  shall  be  eligible  to  the  office  of  Governor     Quaimca- 
who  shall  not  have  been  a  citizen  of  the  United  States  fifteen  ^^^^"r.^' ^'''^' 
years,  and  a  citizen  of  this  State  six  years,  and  who  shall  not 
have  attained  the  age  of  thirty  years. 

§5155.  IV.  In  case  of  the  death,  resignation,  or  disability  of     in  case  of 
the    Governor,   the  President   of  the   Senate    shall   exercise  the  nati?il''*^<fr 
Executive   powers    of   the  Government  until    such    disability  be  ^i^abiiity  of 
removed,  or  a  successor  is  elected  and  qualified.     And,  in  case  of 
the  death,  resignation,  or  disability  of  the  President  of  the  Senate, 
the  Speaker  of  the  House  of  Representatives  shall  exercise  the 
Executive  powers  of  the  Government  until  the  removal  of  the 


1088      APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  IV. — Executive  Department. 

disability,  or  the  election  and  qualification  of  a  Governor.  The 
General  Assembly  shall  have  power  to  provide  by  law  for  filling 
Unexpired  terms  by  a  special  election. 

§  5156.  y.  The  Governor  shall,  before  he  enters  on  the  duties 

Oath  of  of  his  ofiice,  take  the  following  oath  or  affirmation  :   "I  do  solemnly 

Governor,     g-^ygg^j.  j^qj.  affirm,  as  the  case  may  be,)  that  I  will  faithfully  execute 

the  office  of  Governor  of  the  State  of  Georgia,  and  will,  to  the 

best  of  my  ability,  preserve,  protect  and  defend  the  Constitution 

thereof,  and  the  Constitution  of  the  United  States  of  America." 


Sectiox. 


SECTION  11. 


Section. 


5157.  Commander-in-eliief. 

5158.  Pardons  and  reprievea. 

5159.  Writs  of  election. 

5160.  Vacancies. 

5161.  Persons  once  rejected. 


5162.  Revision  of  bills. 

5163.  Resolutions  and  orders. 

5164.  State  House  Officers. 

5165.  Great  Seal  of  the  State. 

5166.  May  appoint  secretaries. 


§5157.  I.  Th-e  Governor  shall  be  Commander-in-Chief  of  the 

Command-  Army  and  Navy  of  this  State  and  of  the  Militia  thereof. 

er-in-Ghief.       g  5158.  II.  He  shall  have  power  to  grant  reprieves  and  par- 

Pardons.    dons,  to  commuto  penalties,  and  to  remit  any  part  of  a  sentence 

for  offences  against  the  State,  except  in  cases  of  impeachment. 

§  5159.  III.  He  shall  issue  writs  of    election  to  fill  all  vacan- 

writs  of  cies  that  happen  in  the  Senate  or  House  of  Representatives,  and 

election.       gj^a]],  havc  DOWcr  to  convoke  the  General  Assembly  on  extraordi- 

CoBVOca-  y  T       1       11        •  1  n  •  •  •      n 

tions,  etc.  nary  occasions,  and  shall  give  them,  irom  time  to  time,  iniormation 
of  the  state  of  the  Commonwealth,  and  recommend  to  their  con- 
sideration such  measures  as  he  may  deem  necessary  and  expedient. 
§  5160.  IV.  When  any  office  shall  become  vacant  by  death. 
Vacancies,  resignation,  or  otherwise,  the  Governor  shall  have  power  to  fill 
such  vacancy,  unless  otherwise  provided  by  law ;  and  persons  so 
appointed  shall  continue  in  office  until  a  successor  is  appointed 
agreeably  to  the  mode  pointed  out  by  this  Constitution,  or  by  law, 
in  pursuance  thereof. 

§  5161.  y.  A   person  once  rejected  by  the  Senate,   shall  not 
Nominees  be  rc-appointed  by  the  Governor  to  the  same  office  during  the 
rejected.      scssion,  or  the  recess  thereafter. 

§  5162.  VI.  The  Governor  shall  have  the  revision  of  all  bills, 

Eevisionof  P^^^®^  by  both  Houscs,  before  the  same  shall  become  laws,  but 

bills.  two-thirds  of  each  House  may  pass  a  law,  notwithstanding  his 

dissent,  and  if  any  bill  should  not  be  returned  by  the  Governor 

within  five  days  (Sunday  excepted,)  after  it  has  been  presented 

to  him,  the  same  shall  be  a  law,  unless  the  General  Assembly,  by 

their  adjournment,   shall  prevent  its  return.     He  may  approve 

any  appropriation  and  disapprove  any  other  appropriation  in  the 

Two-ihird  ^^^^  ^i^^'  ^^^  ^^^®  latter  shall  not  be  effectual,  unless  passed  by 

vote.  two-thirds  of  each  House. 


APPENDIX. — Constitution  of  the  State  of  Georgia.     1089 


Article  V. — Judicial  Department. 


§  5163.  yil.  Every  vote,  resolution,  or  order,  to  which  the  Resolutions. 
concurrence  of  both  Houses  may  be  necessary,  except  on  a  ques- 
tion of  election,  or  adjournment,  shall  be  presented  to  the  Governor, 
and  before  it  shall  take  effect,  be  approved  by  him,  or  being  dis- 
approved, shall  be  re-passed  by  two-thirds  of  each  House,  according 
to  the  rules  and  limitations  prescribed  in  case  of  a  bill. 

§  5164.  VIII.  There  shall  be  a  Secretary  of  State,   a   Comp-  g^.JJJ®^(^''^*** 
troller  General,  a  Treasurer  and  Surveyor  General,  elected  by  the  troUer  Gen- 
General  Assembly,  and  they  shall  hold  their  offices   for  the  like  ureran/su?- 
period  as  the  Governor,  and  shall  have  a  competent  salary,  which  l^l^^^  ^^^' 
shall  not  be  increased,  or  diminished,  during  the  period  for  which 
they  shall  have  been  elected.     The  General  Assembly  may,  at 
any  time,  consolidate  any  two  of  these  offices,  and  require  all  the 
duties  to  be  discharged  by  one  officer. 

§  5165.  IX.  The  Great  Seal  of  the  Stato  shall  be  deposited  in 
the  office  of  the  Secretary  of  State,  and  shall  not  be  affixed  to 
any  instrument  of  writing  but  by  order  of  the  Governor,  or  Gen- 
eral Assembly ;  and  that  now  in  use  shall  be  the  Great  Seal  of 
the  State  until  otherwise  provided  by  law.  ^  • 

§  5166.  X.  The  Governor  shall  have  power  to  appoint  his  own 
Secretaries,  not  exceeding  two  in  number,  unless  more  shall  be 
authorized  by  the  General  Assembly. 


Great  Seal 
of  the  state. 


governor'* ' 
Secretaries. 


ARTICLE   V. 


JUDICIAL     DEPARTMENT. 


SECTION  I. 

Section  5167— Judicial  Powers. 


§  5167.  I.  The  Judicial  Powers  of  this  State  shall  be  Tested  ^^^j. 
in  a  Supreme  Court,  Superior  Courts,  Courts  of  Ordinary,  Jus- 
tices of  the  Peace,  Commissioned  Notaries  Public,  and  such  other 
Courts  as  have  been  or  may  be  established  by  law. 


Judicial 


SECTION  11. 


Section. 

5168.  Supreme  Court, 

5169.  Jurisdiction— Sessions. 


Section. 

5170.  Cases— how  disposed  of. 

5171.  When  two  judges  disagree. 


§  5168.  I.  The  Supreme  Court  shall  consist  of  three  Judges, 

.     74 


1090      APPENDIX. — Constitution^  of  the  State  of  Georgia. 

Article  V. — Judicial  Department.  • 

Supreme  two  of  whom  stiall  Constitute  a  quorum.  When  a  majority  of  the 
^^  \;  -Judges  are  disqualified  from  deciding  any  case,  by'^interest  or 
otherwise,  the  Governor  shall  designate  certain  Judges  of  the 
Superior  Courts  to  sit  in  their  stead.  At  the  first  appointment 
of  Judges  of  the  Supreme  Court,  under  this  Constitution,  one 
shall  be  appointed  for  four  years,  one  for  eight  years,  and  one 
for  twelve  years ;  but  all  subsequent  appointments,  except  to  fill 
unexpired  terms,  shall  be  for  the  term  of  twelve  years. 

§  5169.  II.  The  Supreme   Court  shall  have  no  original  juris- 

Jurisdiction  dictiou,  but  shall  be  a  Court  alone  for  the  trial  and  correction  of 

errors  from   the   Superior  Courts  and   from   the   City   Courts  of 

Savannah  and  Augusta,   and  such  other  like   Courts  as  may  be 

hereafter  established  in  other  cities;  and  shall  sit  at  the  seat  of 

Sessions.    Government  at  such  times  in  each  year  as  shall  be  prescribed  by 

law,  for  the  trial  and   determination  of  writs  of  error  from  said 

Superior  and  City  Courts.     The  days  on  which  the  cases  from  the 

several  Circuit  and  City  Courts  shall  be  taken  up  by  the  Court, 

/      £f  /A^  tr^^^^^  ^®  fixed  by  law. 

/^^^'^     '^^^^  5170.  III.  The  Supreme  Court  shall  dispose  of  every  case 

yi^<^     /  Cases— how  at  the  first  or  second  term  after  such  writ  of  error  is  brought ; 

*/(♦  ^^V^^^^  ^'  and  in  case  the  plaintiff  in  error  shall  not  be  prepared  at  the  first 

^  term   to    prosecute  the   case,  unless    prevented  by    Providential 

cause,  it  shall  be  stricken  from  the  docket,   and   the  judgment 

below  shall  stand  affirmed.     In  any  case,  the  Court  may,  in  its 

discretion,  withhold  its  judgment  until  the  next  term  after  the 

«:  same  is  argued. 

§  5171.  IV.  When  only^  two  Judges  sit  in  any  case,  and  they 
If  only  two  disagree,  the  iudij-ment  below  shall  stand  affirmed. 

Judges.  fc>        ?  J       o 


SECTION  IIL 


Section. 

5172,  Judges  of  the  Superior  Court. 

5173.  Jurisdiction. 


Sectio?:. 

5174.  Appeals,  mistrials,  etc, 

5175'.  Sessions. 


§  5172.  I.  There  shall  be  a  Judge  of  the  Superior  Courts  for 
Judges  of  each  Judicial  Circuit.  He  may  act  in  other  Circuits  when  author- 
court!'^'*^"^'^  ized  by  law.  At  the  first  appointment  of  such  Judges  under  this 
Constitution,  one-half  of  the  number  (as  near  as  may  be),  ghall 
be  appointed  for  four  years,  and  the  other  half  for  eight  years; 
but  all  subsequent  appointments,  except  to  fill  unexpired  terms, 
shall  be  for  the  term  of  eight  years. 

§  5173.  II.  The   Superior    Courts  shall  have  exclusive   juris- 
Jariseiction  dlction  in  cases  of  divorce;  in  criminal  cases,  where  the  ofi'ender 
is  subjected  to  loss  of  life  or  confinement  in  the  Penitentiary ;  in 
cases  respecting  titles  to  land  and  equity  cases,  except  as  herein- 
after provided ;  but  th^  General  Assembly  shall  have  power  to 


APPENDIX. — Constitution  op  the  State  of  Georgia.      1091 


Article  V. — Judicial  Department. 


merge  the  Common  Law  and  Equity  Jurisdiction  of  said  Courts. 
Said  Courts  shall  have  jurisdiction  in  all  other  civil  cases,  except 
as  hereinafter  provided.  They  shall  have  appellate  jurisdiction 
in  all  such  cases  as  may  be  provided  by  law.  They  shall  have 
power  to  correct  errors  in  Inferior  Judicatories,  by  writ  of  cer- 
tiorari, which  shall  only  issue  on  the  sanction  of  the  Judge ;  and 
to  issue  writs  of  mandamus,  prohibition,  scire  facias,  and  all 
•other  writs  that  may  be  necessary  for  carrying  their  powers  fully 
into  effect,  and  shall  have  such  other  powers  as  shall  be  conferred 
on  them  by  law. 

§  5174.  III.  There  shall  be  no  appeal  from  one  jury  in  the 
Superior  Courts  to  another  ;  but  the  Court°may  grant  new  trials  j^udTgrnent 
on  legal  grounds.  The  Court  shall  render  judgment  without  the 
verdict  of  a  jury  in  all  civil  cases,  founded  on  contract,  where  an 
issuable  defence  is  not  filed  on  oath. 

§  5175.  IV.  The  Superior  Courts   shall   sit  in  each  County  not    Sessions, 
less  than  twice  in  each  year,  at  such  times  as  have  been,  or  may 
be,  appointed  by  law. 


Appeals ;  *  ^jT 
new     trials  :         f  «-* 


SECTION  IV. 


Section. 

5176.  District  Judge  and  Attorneys. 

6177.  Criminal  jurisdiction. 

6178.  Sessions. 
5179.  Mode  of  trial. 


Section. 

5180.  Jury  trial,  when. 

5181.  Civil  jurisdiction. 

5182.  Term  of  office— compensation. 


Sessions. 


§  5176.  I.  Until  the  General  Assembly  shall  otherwise  direct,  District 
there  shall  be  a  District  Judge  and  a  District  Attorney  for  each  Al?o?neyr*^ 
Senatorial  District  in  this  State. 

§  5177.  II.   The  District  Judge  shall  have  jurisdiction  to  hear      cnmiDai 
and  determine  all  offences  not  punishable  with  death  or  imprison-  jiir^sdiction. 
ment  in  the  Penitentiary;  and  it  shall  be  the  duty  of  the  District 
Attorney  to  represent  the   State  in  all  cases  before  the  District 
Judge. 

§  5178.  III.  The  District  Judge  shall  sit  at  stated  times,  not 
less  than  once  in  each  month,  in  each  County  in,  his  District,  for 
the  trial  of  offences,  and  at  such  other  times  as  the  General 
Assembly  may  direct. 

§  5179.  IV.  Offences  shall  be  tried  before  the   District  Judge  Accusation. 
on  a  written  accusation  founded  on  affidavit ;  said  accusation  shall 
plainly  set  forth  the  offence  charged,  and  shall  contain  the  name 
of  the  accuser,  and  be  signed  by  tlie  District  Attorney. 

§  5180.  V.   There  shall  be  no   jury  trial  before  the    District    jury. 
Judge  except  when  demanded  by  the  accused,  in-  which  case  the 
jury  shall  consist  of  seven. 


1092      APPENDIX. — Constitution  of  the  State  of  Geoegia. 

Article  Y. — Judicial  Department. 

§  5181.  VI.  Such-  civil  jurisdiction  maj  be  conferred   on  the 

Civil  juris-  District  Judo^es  as  the  General  Assembly  may  direct. 

diction.  I  5^32,  yii,  Tj^g  District  Judges  and  Attorneys    shall  hold 

Term  of  of-  their  officcs  for  a  pcriod  of  four  years,  and  shall  receive  for  their 

pensation!"^  scrvices  such  Stated  compensation,  in  their  respective  Districts,  as 

may  be  provided  by  law,  but  in  no  event  shall  their  compensation 

be  in  anywise  dependent  on  fines,  forfeitures,  or  costs. 


SECTION  V. 

Section.  I   Sectiok. 

,  5183.  Court  of  Ordinary.  5185.  Term  of  office. 

5184.  Powers  of. 

Probate      §  5183.  I.  The  powers  of  a  Court  of    Ordinary  and  of  Pro- 
powers.       }^2iiQ  shall  be  vested  in  an  Ordinary  for  each  County,  from  whose 
decision  there  may  be   an  appeal  to  the  Superior  Court,  under 
regulations  prescribed  by  law. 

§  5184.  II.  The  Courts  of  Ordinary  shall  have  such  powers  in 
Ordinary,  relation    to   roads,    bridges,    ferries,    public    buildings,    paupers, 
County  oiRcers,  County  funds,  and  taxes,  and  other  matters,  as 
shall  be  conferred  on  them  by  law. 

§  5185.  III.  The  Ordinary  shall  hold  his  office  for  the  term  of 
Term  of  of- four  ycars,  and  until  his  successor  is  elected  and  qualified. 

fice. 


SECTION  YI. 


Section'. 

5186.  Justices  of  the  Peace. 

5187.  Jurisdiction. 


Section. 

5188.  Appeals. 

5189.  Notaries  Public. 


§  5186.  I.  There  shall  be  in  each  District,   one  Justice  of  the 
justiceof  Peace,  whose  official  term,  except  when  elected  to  fill  an  unex- 
the  peace,     pjj-g^j  term,  shall  be  four  years. 

§  5187.  II.  The  Justices  of  the  Peace  shall  have  jurisdiction. 
Jurisdiction,  cxccpt  as  hereinafter  provided,  in  all  civil  cases  where  the  princi- 
pal sum  claimed  does  not  exceed  one  hundred  doUai's,  and  may 
sit  at  any  time  for  the  trial  of  such  cases ;  but  in  cases  where  the 
sum  claimed  is  more  than  fifty  dollars,  there  may  be  an  appeal,  to 
the  Superior  Court,  under  such  regulations  as  may  be  prescrioed 
by  law. 

§  5188.  III.  There  shall  be  no  appeal  to  a  jury  from  the  de- 
Appeais.  cision  of  a  Justice  of  the  Peace,  except  as  provided  in  the 
foregoing  paragraph. 

§  5189.     IV.  Notaries  Public  may  be  appointed  and  commis- 


APPENDIX. — Constitution  of  the  State  of  Georgia.      1093 

Article  V. — Judicial  Department. 


sioned  bj  the  Governor,  not  to  exceed  one  for  each  Militia  District,       Notaries 
for  a  term  of  four  jears,  and  shall  be,  ex  officio^  Justices  of  the 
Peace. 


SECTION  VII. 

Section.  j  Section.  ^  ^ 

5190.  Attorney-General.  ^      I        5191.  His  duty!  . 

§  5190.     I.  There  shall  be  an  Attorney  General  of  the  State,      Attorney 
whose  official  term,  except  when  appointed  to  fill  an  unexpired 
term,  shall  be  four  years.  ^ 

§5191.     II.  It  shall  be  the  duty  of  the  Attorney  General  to    msduty. 
act  as  the  legal  adviser  of  the  Executive  Department,  to  represent 
the  State  in  all  civil  and  criminal  cases  in  the  Supreme  and  Supe- 
rior Courts,  when  required  by  the  Governor,  and  to  perform  such 
other  services  as  shall  be  required  of  him  by  law. 


SECTION  VIII. 

Section.  j  Section. 

5192.  Solicitors  General.  |        5193.  Their  duty. 

§  5192.  I.   There  shall  be  a  Solictor  General  for  each  Judicial     solicitors 
Circuit,  whose  official  term,  except  when  appointed  to  fill  an  un- ^^°®^^^- 
expired  term,  shall  be  four  years. 

§  5193.  II.  It  shall  be  the  duty  of  the  Solicitor  General  to  re-  Their  duty. 
present  the  State  in  all  cases  in  the  Superior  Courts  of  his  Circuit, 
and  in  all  cases  taken  up  from  his  Circuit   to  the  Supreme  Court, 
and  to  perform  such  other  services   as  shall  be  required  of  him 
by  law. 


SECTION  IX. 

Section.  j  Section. 

5194.  Judicial  Officers— how  appointed.  |        5195.  Justices,  Election  of. 

§  5194.  I.  The  Judges  of  the  Supreme  and  the  Superior  Courts,       judicial 
the  Attorney  General,  Solicitors  General  and  the  District  Judges,  SowappoirJ 
and  Attorneys  shall  be  appointed  by  the  Governor,  with  the  ad-  ^oved'*  ^^' 
vice  and  consent  of  the  Senate,   and  shall  be  removable  by  the 
Governor  on   the    address    of  two-thirds    of  each   branch  of  the 
General  Assembly,  or  by  impeachment  and  conviction  thereon. 

§  5195.  II.  Justices  of  the  Peace  shall  be  elected  by  the  legal 


1094      APPENDIX. — Constitution  of  the  State  op  Georgia. 

. » 

Article  T.— Judicial  Department. 

^    Justices  voters  in  their  respective  Districts,  and  shall  be  commissioned  by 
removable,    the  Gov^mor.     They  shall  be  removable   on  conviction  for   mal- 
practice in  office. 


SECTION    X. 


Section.  / 

5196.  Compensation  of  Judicial   officers. 

5197.  Of  District  Judges  and  Attorneys. 


Sectiox. 

5198.  Qualifications  of  Judges  and  At- 
torney General. 


§5196.  I.  The  Judges  of  the  Supreme  and  Superior  Courts, 
Compensa-  and  the  Attorney  and   Solicitors   General  shall  have,    out  of  the 
diciaiofficers  State  Treasury,    adequate   and  honorable   salaries   on   the  specie 
basis,  which  shall  not  be  increased  or  diminished  during  their  con- 
tinuance in  office.     The   District   Judges   and   District  Attorneys 
shall  receive,   out   of  the   Treasuries   of  the   several  Counties   of 
their  Districts,  adequate  compensation,  on  the  specie  basis,   which 
.  shall  not  be  increased  or  diminished  during  their  term   of  office  ; 
but  said  Judges  shall   not  receive  any  other  perquisites,  or  emolu- 
ments whatever,  from  parties,  or  others,  on  account  of  any  duty 
required  of  them. 

§  5197.  II.  The  General  Assembly  shall  provide  for  the  equit- 

Of  District  able  apportionment  of  the  compensation  of  the  District   Judges 

AtSeys."^^  and  Attorneys  between  the   Counties   composing  their  Districts, 

and  shall  require  the  moneys  arising  from  fines  and  forfeitures  in 

the  District  Courts  to  be  paid  into  the  Treasuries  thereof. 

§5198.  III.  No  person  shall  be  Judge  of  the  Supreme  or  Su- 

,  Quaiifica-  perior  Courts,  or  Attorney  General,  unless,  at  the  time  of  his  ap- 

jidges*  and  pointmcut,  he  shall  have  attained  the  age  of  thirty  years,  and  shall 

General.^  ^■'^  ^i^vo  been  a  citizen  of  this  State  three  years,  and  have  practiced 

law  for  seven  years. 


SECTION  XL 


Section  5199.— Divorce. 


§  5199.  I.  No  total  divorce  shall  be  granted  except  on  the  con- 
Divorce,    current  verdicts  of  two  juries.     When  a   divorce  is  granted,  the 
jury  rendering   the  final  verdict  shall  determine  the  rights  and 
disabilities  of  the  parties,  subject  to  the  revision  of  the  Court. 


SECTION  XII. 


Section. 

5200.  Bivorce  cases,  where  tried. 

5201.  Criminals,  where  tried. 

5202.  Land  titles,  where  tried. 

5203.  Equity  cases,  where  tried. 


Section.  ^ 

5204.  Suits  against  joint  obligors. 

5205.  Suits  against  maker  and  indorser. 

5206.  All  other  cases.    ^ 


\ 


APPENDIX. — Constitution  of  the  State  of  Georgia.      1095 
Article  Y^Judicial  Department. 


§5200.  I.  Divorce  cases  shall  be  tried  in  the  County  where  the  where  tried, 
defendant  resides,  if  a  resident  of  this  State. 

§  5201.  II.   Criminal  cases  shall  be  tried  in   the   County  where  criminals— 
the  crime  was  committed,  except   cases  in  the    Superior   Courts, 
when  the  presiding  Judge  is  satisfied  that  an  impartial  jury  cannot 
be  obtained  in  such  County. 

§  5202.  III.  Cases  respectino-  titles  to  land  shall  be  tried  in  the    Landtities 
County  where  the  land  lies,  except  where  a  single  tract  is   divided 
by  a   County  line,   in  which  case  the  Superior   Court  of  either     - 
County  shall  have  jurisdiction. 

§  5203.  ly.  Equity  cases  shall  be  tried  in  the  County  where  a  Equity  cases 

t    f>       ^  .-i^.  ,  -,  ,,,.p.  1  -where  tried 

cietendant  resides  against  whom  substantial  reliei  is  prayed. 

§5204.  V.   Suits  against  joint  obligors,  joint  promissor,  co-part- .^y'^ijs^^j^^f 
ners,  01"  joint  trespassers  residing:  in  different   Counties  may  be  ors,  etc.— 

J.   •     -I   •         -.1.        n  J.  where  tried. 

tried  m  either  County. 

§  5205.  YI.   Suits  against  the  maker  and  indorser  of  promisso-  Suits-wersMs 
ry  notes,  or  other  like  instruments,  residing  in  different   Counties,  indorser. 
shall  be  tried  in  th^  County  where  the  maker  resides. 

§  5206.  VII.  All  other  cases  shall  be  tried  in  the  County  where     aii  other 
the  defendant  resides. 


cases. 


SECTION  XIII. 

SECTioisr.     '  I  Section. 

5207.  Right  of  trial  by  jury.  I        5208.  Jurors. 

§  5207.  I.  The  right  of  trial  by  jury,  except  where  it  is  other-  Rightoftri- 
wise  provided  in  this  Constitution,  shall  remain  inviolate.  *    yj"iy- 

§  5208.  II.   The  General  Assembly  shall  provide  by  law  for  the    Jurors, 
selection  of  upright  and  intelligent  persons  to  serve   as   Jurors. 
There  shall  be  no  distinction  between  the  classes  of  persons  who 
compose  grand  and  petit  juries.     Jurors  shall  receive  adequate 
compensation  for  their  services,  to  be  prescribed  by  law. 


SECTION  XIV. 

Section  5209.— Inferior  Courts  abolished. 

§  5209.  I.  The  Courts  heretofore  existing  in  this  State,  styled  ^    inferior 
Inferior  Courts,  are  abolished,  and  their  unfinished  business  and  ished.^ 
the  duties  of  the  Justices  thereof  are  transferred  to   such   tribu- 
nals as  the  General  Assembly  may  designate. 


SECTION  XV. 

Section  5210.— County  Commissioners. 


§  5210.  I.  The  General  Assembly  shall  have  power  to  provide 


/  - 


1096     APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  V. — Judicial  Degartment. 

County  for  the  creation  of  County  Commissioners  in  such  Counties  as  may 
sionSa!^  ^  *  require  them,  and  to  define  their  duties. 


SECTION  XVL 

Section  5211.— County  Courts  abolished. 

§  5211.  I.  All  Courts  not  specially  mentioned  by  name  in  the 
County  first  Scction  of  this  Article,  may  be  abolished  in  any  County,  at 
Courts  aboi-  ^jjg  discretion  of  the  General  Assembly,  and  the   County  Courts 
now  existing  in  Georgia  are  hereby  abolished. 


ished. 


SECTION  XVII. 


Sectiow. 

5212.  Limitation  of  jurisdiction. 

5213.  Confederate  contracts. 


Section. 

5214.  Tax  on  debts. 


§  5212.  I.  No  Court  or  officer  shall  have,  nor  shall  the  General 
jurisdic- Assembly  give  jurisdiction  or  authority  to  try,  or  give  judgment 
iafatu^re.^^^"  ^^j  ^^  cnforcc  any  debt,  the  consideration  of  which  was  a  slave  or 
slaves,  or  the  hire  thereof. 

§  5213.  II.  All  contracts  made  and  not  executed  during  the 
Confederate  latc  rebellion,  with  the  intention,  and  for  the  purpose,  of  aiding 
contracts.  ^^^  cucouraging  said  rebellion,  or  where  it  was  the  purpose  and 
intention  of  any  one  of  the  parties  to  such  contract  to  aid  or  en- 
courage such  rebellion,  and  that  fact  was  known  to  the  other  par- 
ty, whether  said  contract  was  made  by  any  person  or  corporation 
with  the  State  or  Confederate  States,  or  by  a  corporation  with  a 
natural  person,  or  between  two  or  more  natural  persons,  are  hereby 
declared  to  have  been,  and  to  be  illegal;  and  all  bonds,  deeds, 
promissory  notes,  bills,  or  other  evidences  of  debt,  made  or  exe- 
cuted by  the  parties  to  such  contract,  or  either  of  them  in  connec- 
tion with  such  illegal  contract,  or  as  the  consideration  therefor  or 
in  furtherance  thereof,  are  hereby  declared  7iuU  and  void,  and  shall 
be  so  held^in  all  Courts  in  this  S^tate  when  attempt  shall  be  made 
to  enforce  any  such  contract  or  give  validity  to  any  such  obliga- 
tion or  evidence  of  debt.  And  in  all  cases  when  the  defendant  or 
any  one  interested  in  the  event  of  the  suit  will  make  a  plea,  sup^ 
ported  by  his  or  her  affidavit,  that  he  or  she  has  reason  to  believe 
that  the  obligation  or  evidence  of  indebtedness  upon  which  the 
suit  is  predicated,  or  some  part  thereof,  has  been  given  or  used  for 
the  illegal  purpose  aforesaid,  the  burden  of  proof  shall  be  upon 
the  plaintiff  to  satisfy  the  Court  and  Jury  that  the  bond,  deed, 
note,  bill  or  other  evidence  of  indebtedness  upon  which  said  suit 
is  brought,  is  or  are  not,  nor  is  any  part  thereof,  founded  upon,  or 


APPENDIX. — Constitution  op  the  State  of  Georgia.     1097 

Article  VI. — Education. 


Ta^  o  D 


in  any  way  connected  with  any  such  illegal  contract,  and  has  not 
been  used  in  aid  of  the  rebellion,  and  the  date  of  such  bond,  deed, 
note,  bill  or  other  evidence  of  indebtedness  shall  not  be  evidence 
that  it  has,  or  has  not,  since  its  date,  been  issued,  transferred  or 
used  in  aid  of  the  rebellion. 
.  |/^214.  III.  It  shall  be  in  the  power  of  the  (general  Assembly 
t^^assess  and  collect  upon  all  debts,  judgments,vbr  causes  of  action  ^^^^^ 
when  due,  founded  on  any  contract  made  or  implied  before  the  first 
4ay  of  June,  1865,  in  the  hands  of  any,  one  in  his  own  right,  of 
fas  trustee,  agcQt  or  Attoj"ney  of  another, 'on  or  after  the  first  4ay 
V^f  January,  1868,  a  tax  of  not  exceeding  25  per  cent.,  t^  be  p^id 
^by  the  creditor  on  pain  of  the  forfeiture  of  the  debt,  but  charge; 
able  by  Mm  as  to  one-half  thereof  g^gainst  the  debtor,  and  collect-^ 
sMq  "^th  th^  debt :  Provided,  That' this  tax  shall  hot  be  collect 
if  tke  debtor  cause  of  action  be  abandoned  or  settled  without' 
le^l  process,  or,  if  in  judgment,  be  settled  without  levy  a^d  $»ale: 
And  provided  further,  Ithat  thip  tax  shall  not'be  levi'ed^  loiigya^s 
th0  Courts  of  this  State  shall  n^t  have^jurisdiofion  of,  such   ""     '^ 
or  caus^6  of  action.  '  '     ] "  ^-^^ ^"t| 


ARTICLE  VI. 


EDUCATION. 


Section. 

5215.  General  Education. 
6216.  School  Commissioner. 


Section. 

5217.  Educational  fund. 


§  5215.  I.  The  General  Assembly,  at  its  first  session  after   the  General  ed- 
adoption  of  this  Constitution,  shall  provide  a  thorough   system  of  "^**^^"- 
General  Education  to  be  forever  free  to  all  children  of  the  State, 
the  expense  of  which  shall  be  provided  for  by  taxation,  or  other- 
wise. 

§  5216.    11.    The    office    of     State    School    Commissioner   is  school com- 
hereby  created.     He  shall  be  appointed  by  the  Governor,  with  the  °^^^^^°°®''- 
consent  of  the  Senate,  and  shall  hold  his  office  for  the  same  term 
as  the  Governor.     The   General  Assembly  shall  provide  for  the 
said  Commissioner  a  competent  salary  and  necessary  clerks.     He 
shall  keep  his  office  at  the  Seat  of  Government. 

§  5217.  III.  The  Poll  tax  allowed  by  this  Constitution,  any  Ed-  Education- 
ucational  fund  now  belonging  to  this  State — except  the  endowment  * 
of  and  debt  due  to,  the  State  University — or  that  may  hereafter 
be  obtained  in  any  way,  a  special  tax  on  Shows  and  Exhibitions, 
and  on  the  sale  of  spirituous  and  malt  liquors — which  the  General 
Assembly  is  hereby  authorized  to  assess — and  the  proceeds  from 
the  commutation  for  militia  service,  are  hereby  set  apart  and  de- 
voted to  the  support  of  Common  Schools.  And  if  the  provision 
herein  made  shall,   at  any  time,  prove  insufficient,  the  General 


1098      APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  VII. — Homestead  and  Exemption. 


Assembly  shall  have  power  to  levy  such  general  tax  upon  the 
property  of  the  State,  as  may  be  necessary  for  the  support  of  said 
School  System.  And  there  shall  be  estixblished,  as  soon  as  prac- 
ticable, one  or  more  Common  Schools  in  each  School  District  in 
this  State. 


ARTICLE  VII. 

HOMESTEAD  AND  EXEMPTION. 

Section.  I  Section. 

5218.  Homestead.  I        5219.  Wife's  estate. 

-s 

§  5218.  I.  Each  head  of  a  family,  or  guardian,  or  trustee,  of  a 
H6mesteadt*family  of  minor  children,  shall  be  entitled  to  a  homestead  of  realty 
to  the  value  of  two  thousand  dollars,  in  specie,  and  personal  pro- 
perty to  the  value  of  one  thousand  dollars  in  specie,  both  to  be 
valued  at  the  time  they  are  set  apart.  And  no  Court,  or  Minis- 
terial officer  in  this  State,  shall  ever  have  jurisdiction,  or  authority, 
to  enforce  any  judgment,  decree,  or  execution  against  said  pro- 
perty so  set  apart — including  such  improvements  as  may  be  made 
thereon,  from  time  to  time — except  for  taxes,  money  borrowed 
and  expended  in  the  improvement  of  the  homestead,  or  for  the 
purchase  money  of  the  same,  and  for  labor  done  thereon,  or 
material  furnished  therefor,  or  removal  of  encumbrances  thereon. 
And  it  shall  be  the  duty  of  the  General  Assembly,  as  early  as 
practicable,  to  provide,  by  law,  for  the  setting  apart  and  valuation 
of  said  property,  and  to  enact  laws  for  the  full  and  complete  pro- 
tection and  security  of  the  same  to  the  sole  use  and  benefit  of  said 
families  as  aforesaid. 

§5219.  II.  All  property  of  the  wife,  in  her  possession  at  the 
Wife^3es-  *^"^®  ^^  ^^^  marriage,  and  all  property  given  to,  inherited,  or 
tate.  acquired  by  her,  »hall  remain  her  separate  property,  and  not  be 

liable  for  the  debts  of  her  husband. 


ARTICLE    VIII. 

MILITIA. 


Sbction. 

5220.  Militia. 

5221.  Volunteers. 


Section. 

5222.  Exemption. 


§5220.  I.  The    Militia  shall  consist  of   all  able  bodied  male 

Militia,     persons  between  the  ages  of  eighteen  and  forty-five  years,  except 

such  as  may  be  exempted  by  the  laws  of  the  United  States  or  this 

State;    and  shall  be  organized,  officered,  armed,   equipped    and 

trained  in  such  manner  as  may  be  provided  b}^  law ;  subject  to  the 


Authority 


of  Congress,  paramouut  authority  of  Congress  over  this  subject. 


i 


APPENDIX. — Constitution  of  the  State  of  Georgia.      1099 


Article  IX. — County  Officers. 


§  5221.  II.    Volunteer     Companies    of    Cavalry,     Infantry   or  Volunteers. 
Artillery,  may  be  formed  in  such  manner,  and  with  such  restric- 
tions, as  may  be  provided  by  law- 

§  5222    III.    No   person    conscientiously    opposed    to    bearing  Exemption. 
arms,  shall  be  compelled  to  do  Militia  duty,  but  such  person  "shall 
p^y  an  equivalent  for  exemption  ;  the  amount  to  be  prescribed  by 
law  and  appropriated  to  the  Common  School  Fund. 


ARTICLE  IX. 

county    officers. 

Section  5223.— County  Officers. 

§5223.  I.  The  County  officers  recognized  as  existing  by  the  county  os- 
laws  of  this  State,  and  not  abolished  by  this  Constitution,  shall,  ^^^^' 
where  not  otherwise  provided  for  in  this  Constitution,  be  elected 
by  the  qualified  voters  of  their  respective  Counties  or  Districts, 
and  shall  hold  their  offices  for  two  years.  They  shall  be  remov- 
able on  conviction  for  malpractice  in  office,  or  on  the  address  of 
two-thirds  of  the  Senate. 


ARTICLE  X. 


seat    of    government. 


Sectiox. 

5224.  Seat  of  Government. 


Section. 

5225.  Removal. 


§  5224.  I.  The  seat  of  Government   of  this   State,   from  and  seatofOov- 
after  the  date  of  the  ratification  of  this   Constitution,  shall  be  in  emment. 
the  City  of  Atlanta,  and  the  General  Assembly  shall  provide  for 
the  erection  of  a  new  Capitol,  and   such   other  buildings  as  the 
public  welfare  may  require. 

§  5225.  II.  The  General  Assembly  shall  have  power  to  pro- 
vide for  the  temporary  removal  of  the  Seat  of  Government  in 
case  of  invasion,  pestilence,  or  other  emergency. 


Removal. 


ARTICLE  XL 


the  laws  of  general  operation  in  force  in  this  state  ARE; 


Section. 


5226.  The  Constitution  of  United  States. 

5227.  Constitution  of  Georgia. 

5228.  Irwin's  Code. 

5229.  Local  and  private  acts. 

5230.  Legal  rights, 

5231.  Court  Records. 


Section. 
5232. 
5233. 
5234. 
5235. 
5236. 


Records  of  Inferior  Courts. 
City  Courts. 
Military  appointees. 
Confirmatory  acts. 
Amendments  by  Congress. 
5237.  Limitation  of  Ordinances. 


1100      APPENDIX. — Constitution  of  the  State  of  Georgia. 

Article  XI. — Laws  of  General  Operatioa. 

Constitu-      §  5226.  I.  As  the   Supreme  Law :     The  Constitution   of    the 

the  U.S."  ^  United  States,  the  laws  of  the  United  States  in  pursuance  thereof, 
and  all  treaties  made  under  the  authority  of  the  United  States. 
This  Con-      §  5227.  II.  As  next  in  authority  thereto  :     This  Constitution. 

Btitution.  §5228.  III.  In  subordination  to  the  foregoing:       All    Acts 

Irwin's  passcd  by  any  legislative  body,  sitting  in  this  State  as  such,  since 

^^^'  the  19th  day  of   January,  1861,   including  that  bodv  of   laws 

known  as  the  Code  of  Georgia,  and  the  acts  amendatory  thereof, 
or  passed  since  that  time,  which  said  Code  and  acts  are  embodied 
in  the  printed  book  known  as  ^*  Irwin's  Code ;"  and  also  so  much 
of  the  Common  and  Statute  laws  of  England  and  of  the  Statute 
laws  of  Georgia,  as  were  in  force  in  this  State  on  the  19th  day  of 
December,  1860,  as  are  not .  superseded  by  said  Code,  though  not 
embodied  therein,  except  so  much  of  the  said  several  Statutes, 
Code  and  Laws  as  may  be  inconsistent  with  the  supreme  law 
herein  recognized,  or  may  have  been  passed  in  aid  of  the  late 
rebellion  against  the  United  States,  or  may  be  obsolete,  or  may 
refer  to  persons  held  in  slavery,  which  excepted  laws  are  inopera- 
tive and  void ;  and  any  future  General  Assembly  shall  be 
competent  to  alter  or  repeal  (if  not  herein  prohibited)  any  portion 
of  the  laws  declared  to  be  of  force  in  this  third  specification  of 
this  clause  of  this  Article ;  and  if  in  any  of  said  laws  herein  de- 
clared of  forc^,  the  word  ''Confederate"  occurs  before  the  word 
States,  such  law  is  hereby  amended  by  substituting  the  word 
"  United  "  for  the  word  "  Confederate." 

§  5229.  IV.  Local  and  private  acts  passed  for  the  benefit  of 
Local  and  counties,  citics,  towns,  corporations  and  private  persons,  not  in- 

private  acts,  (.f^^sistent  with  the  Supreme  Law,  nor  with  this  Constitution,  and 
which  have  not  expired,  nor  been  repealed,  shall  have  the  force  of 
Statute  Law,  subject  to  Judicial  decision  as  to  their  validity  when 
passed,  and  to  any  limitations  imposed  by  their  own  terms. 

§  5230.  V.  All  rights,   privileges   and  immunities  which  may 

Legairigiits.  havc  vestcd  in,  or  accrued  to,  any  person  or  persons,  or  corporS.- 
tion  in  his,  her,  or  their  own  right,  or  in  any  fiduciary  capacity, 
under  any  act  of  any  legislative  body  sitting  in  this  State  as  such, 
or  of  any  decree,  judgment  or  order  of  any  Court  sitting  in  this 
State,  under  the  laws  then  of  force  and  operation  therein — and 
recognized  by  the  people  as  a  Court  of  competent  jurisdiction, 
since  the  19th  day  of  January,  1861,  shall  be  held  inviolate  by 
all  the  Courts  of  this  State,  unless  attacked  for  fraud,  or  unless 
otherwise  declared  invalid  by,  or  according  to,  this  Constitution. 
§  5231.  YI.  The  records,  dockets,  books,  papers,  and  proceed- 
cowtre- iiigs  of  any  Court  or  office  existing  in  this  State  by  the  laws 
thereof  on  the  19th  of  January,  1861,  or  purporting  to  exist  by 
said  laws,  and  recognized  and  generally  obeyed  by  the  people,  as 
such,  since  the  said  time,  and  before  the  several  Courts  and  officers 
provided  for  by  this  Constitution  shall  have  gone  into  actual  opera- 
tion, shall  be  transferred  to  the  several  Courts  and  offices  of  the 


I 


cords. 


APPENDIX. — Constitution  op  the  State  of  Georgia.     1101 


Article  XI. — Laws  of  General  Force. 


same  name  or  functions  by  this  Constitution  provided  for,  and 
shall  have  force  and  be  executed,  perfected  and  performed  therein, 
and  thereby,  as  follows,  and  not  otherwise,  to-wit : 

Final  judgments,  decrees,  proceedings  and  acts  fully  executed  Judicmi 
and  performed,  or  not  requiring  performance  or  execution,  shall  ^^^^""^  '°^*' 
have  full  force  and  effect  as  though  no  interruption  had  taken 
place  in  *.he  legal  succession  of  said  courts  and  offices,  except  as 
herein  otherwise  provided.  Proceedings  not  final,  and  judgments 
and  decrees  not  fully  executed  or  performed,  shall  proceed  and  be 
performed  in  such  cases,  and  such  cases  only,  as  this  Constitution, 
or  the  laws  made  in  pursuance  thereof,  confer  jurisdiction  and 
authority  over  the  causes  of  actions  on  Vi^hich  said  cases,  judg- 
ments, decrees,  or  proceedings,  civil  or  criminal,  are  founded : 
Provided,  that  all  said  judgments,  decrees  and  proceedings  shall 
be  subject  to  be  set  aside,  or  reversed,  or  vacated,  by  proceedings 
in  the  several  courts  having  custody  of  the  records,  as  though 
they  were  the  judgments  of  said  courts,  and  shall  be  subject 
always  to  be  explained  as  to  the  meaning  of  the  word  dollar  or  dol- 
lars, as  used  in  the  same ;  and  no  motion  for  a  new  trial,  bill  of 
review,  or  other  proceeding,  to  vacate  any  judgment,  order  or 
decree,  made  since  the  19th  of  January,  1861,  by  any  of  said 
courts  for  fraud,  illegality,  or  error  of  law,  shall  be  denied,  by 
reason  of  the  same  not  having  been  moved  in  time;  Provided^ 
said  motion  or  application  is  made  in  twelve  months  from  the 
adoption  of  this  Constitution. 

§  5232.  VII.  The  books,  papers  and  proceedings  of  the  Inferior    Eeoordsof 
Courts  shall  be  transferred  to,  and  remain  in,  the  control  of  the  courta/^""^ 
Ordinaries,  who  shall  perform  the  duties  of  said  Courts  until  other- 
wise provided  by  law.     The  books,  papers  and  proceedings  of  the 
County  Courts,  and  the  unfinished  business  thereof,  shall  be  trans-    or  County 

Courts 

ferred  to  the  Superior  Courts,  and  the  same  shall  be  finished  and 
performed  by  the  said  Superior  Courts  and  the  oflicers  thereof,  in 
such  cases,  and  in  such  cases  only,  as  the  said.  Courts,  are,  by  this 
Constitution,  or  the  laws  made  in  pursuance  thereof,  granted  juris- 
diction over  the  subject-matter  or  debts  on  which  said  cases  and 
judgments,  civil  or  criminal,  are  founded. 

§5233.  YIII.  The  cases  pending,  and  the  judgments  had  and  CityCoiirts. 
made,  in  the  City  Courts  of  Savannah  and  Augusta,  and  in  the 
various  Justices'  Courts  in  this  State,  shall  be  finished,  and  the 
judgments  performed  by  the  City  Courts,  and  officers  and  justices 
provided  by  this  Constitution,  in  such  cases,  and  such  only,  as  by 
this  Constitution  jurisdiction  is  given  to  said  Courts  and  officers, 
over  the  causes  of  action  on  which  they  are  founded. 

§  5234.  IX.  The  judgments  and  proceedings  of  Courts,   and       Judicial 
acts  of  officers  within  their  jurisdiction,  as  provided  by  law,  shall  pointed  Ty 
be  valid,  notwithstanding  the  Judges  of  said  Courts  or  the  said  Sityf  ^"" 
officers  were  appointed  by  the  Military  Authorities  of  the  United 
States;  and  any  of  said  judgments,  or  acts,  or  proceedings  made, 


■^^*''-  - 


■  v 

1102      APPENDIX. — Co2;rsTiTUTio^  QF  JHE  State  OF  Georgma, 


Article  XII.-^Amendments. 


or  done,  under  or  by  virtue  of,  or  in  accordance  with,  the  orders, 
of  said  Military  Authorities,  duly  made,  are  as  valid  as  if  done 
under  a  law  of  this  Sta.te. 

§  5235.  X.   These  several  acts  of  confirmation  shall  not  be  con- 
Confirma-  strued  to  divcst  any  vested  right,  nor  to  make  any  act  criminal, 
^^^'  otherwise  not  criminal,  but   they  shall  be   construed  as   acts  of 

peace,  and  to  prevent  injustice :  Provided,  That  nothing  in  this 
Constitution  shall  be  so  construed  as  to  make  valid  any  acts  done 
by,  or  before,  any  such  de  facto  officer,  which  would,  by  legalizing 
such  acts,  render  that  criminal  which  was  not  criminal  when  done, 
or  cause  any  act  not  legally  criminal,  when  done,  to  become  crimi- 
nal, by  giving  validity,  to  such  act  after  it  was  done  ;  but  all  such 
acts  shall  be  held  by  the  Courts  to  be  null  and  void. 

§  5236.  XI.  Should  this  Constitution  be  ratified  by  the  people, 
Amend-  and  Cougross  accept  the  same  with  any  qualifications  or  condi- 
congress.^^  tious,  the  Govcmment  herein  provided  for,  and  the  officers  elected, 
shall  nevertheless  exist  and  continue  in  the  exercise  of  their  several 
functions,  as  the  Government  of  this  State,  so  far  as  the  same 
may  be  consistent  with  the  action  of  the  United  States  in  the 
premises. 

§5237.  XII.  The  ordinances  of  this  Convention  on  the  subject 
Limitation  of  the  first  elcction,  and  the  first  General  Assembly,  shall  have 

o  t      ccrttiiii  • 

ordinances,  the  forco  of  laws,  Until  they  expire  by  their  own  limitation,  and  all 
other  ordinances  of  a  mere  Legislative  character,  shall  have  the 
force  of  laws  until  otherwise  provided  by  the  General  Assembly. 


y.^ 


ARTICLE  XIL  ♦ 

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AMENDMENTS     TO     THE     CONSTITUTION. 
Section  5238.— Amendment  to  the  Constitution. 

§  5238.  I.  This  Constitution  may  be  amended  by  a  two-thirds 
Amendment  vote  of  two  succcssive  Legislatures,  and  by  a  submission  of  the 
lion.^^^^^^^'  amendment  to  the  qualified  voters  for  final  ratification.  But  the 
General  Assembly  shall  not  call  a  Convention  of  the  people  in  the 
election  of  delegates  to  which  any  person,  qualified  to  vote  by  this 
Constitution,  shall  be  disqualified.  And  the  representation  in  said 
Convention  shall  be  based  on  population.  Nor  shall  the  right  of 
suffrage  ever  be  taken  from  any  person  qualified  l*y  this  Constitu- 
tion to  vote. 


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Georgia.  Laws,  statutes,  etc. 

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The  code  of  the  State  of  Georgia. 

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